Hohenberg v. Ferrero USA, Inc

Filing 145

MOTION to Vacate Judgment and for Indicative Ruling by Courtney Drey, Andrea Pridham. (Attachments: # 1 Memo of Points and Authorities Motion to Vacate Judgment, # 2 Exhibit Ex A - Order in Unilever case, # 3 Exhibit Ex B - Order in Yelp case, # 4 Exhibit Ex C - Judge Whelan Order re Weston)(Pridham, Grenville) (ag).

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Exhibit G

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BORIS LEVITT,

No. C 10-1321 MHP
No. C 10-2351 MHP

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Plaintiff,
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ORDER

YELP! INC,
For the Northern District of California

United States District Court

v.
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Re: Appointment of Lead Counsel

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Defendant.
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/
CATS AND DOGS ANIMAL HOSPITAL,
INC., et al.,

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Plaintiffs,
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v.
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YELP! INC,
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Defendant.
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/

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The above-captioned actions, both purported class actions against the same defendant, have
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been consolidated. Fed. R. Civ. P. 42(a). On July 26, 2010, attorneys vying for lead counsel
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submitted information ordered by the court. Fed. R. Civ. P. 42(a)(1)(3) (allowing court to issue any
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other orders to avoid unnecessary cost or delay, including appointment of lead counsel). Two sets of
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attorneys originally sought appointment as lead counsel: 1) the law firm of Beck & Lee, in
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conjunction with the Weston firm; and 2) Ongaro Burtt LLP, in conjunction with Murray &
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Associates. Due to a recent dispute between the Beck & Lee firm and the Weston firm, neither firm
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desires to continue working with the other, but each firm nonetheless seeks to be lead counsel.
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The Beck & Lee firm and the Weston firm claim to have seventeen pending federal actions,

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fourteen of which are pending in California. A review of these actions demonstrates that the vast

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majority of them settled prior to much litigation. Class certification was also denied in numerous

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actions. Some actions were dismissed after hearing on a motion to dismiss. Thus, it appears that the

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firms do not have significant experience actually obtaining class certification, or with litigation

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subsequent to class certification. The firms do, however, intend to avoid cost and delay through the

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following measures: using technology; minimizing travel and foregoing reimbursement for certain

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travel costs; and not billing for research, photocopying and phone calls. They have also

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implemented a website to disseminate information to the public about this action. Moreover, they
filed the first of the three separate purported class actions against defendant, and have agreed to limit

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For the Northern District of California

United States District Court

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their fees.

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Although both firms have worked on this action extensively, the court is concerned about

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their relative lack of experience with class certification motions and subsequent litigation. The first-

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named plaintiff, Cats & Dogs Animal Hospital, Inc., is no longer represented by Beck & Lee, and

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appears to have retained the Weston firm. The relations between the firms appear to have broken

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down irretrievably, since one has filed a lawsuit against the other. The court, therefore, is concerned

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that the dispute between the firms will preclude both firms from adequately representing the interests

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of plaintiffs only represented by the other firm.

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Ongaro Burtt LLP, on the other hand, intends to create efficiencies by stipulating to a

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protective order and meeting in person with respect to discovery disputes. In their papers, they also

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provide time-estimates regarding various aspects this action, up to and including class certification

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briefing. Although Murray & Associates is listed on the moving papers, during oral argument,

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David Ongaro of Ongaro Burtt LLP represented that he would be “carrying the laboring oar” in this

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action, including trial if necessary. Docket No. 32 (Transcript) at 12:8-11. The Ongaro firm appears

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to litigate frequently in the Northern District of California, representing both plaintiffs and

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defendants, although the firm does not appear to have any significant class action experience.

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Nonetheless, given the circumstances described above and the observation of the court as to the

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demeanor of the attorneys and their ability and willingness to work cooperatively with other counsel

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in this action, the court appoints David Ongaro and the Ongaro firm as lead counsel.

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The court is mindful that the Beck & Lee firm and the Weston firm represent approximately

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70 separate plaintiffs in this action, and this order does not substitute the Ongaro firm as counsel for

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all the party-plaintiffs. The function of lead counsel is to act for all plaintiffs, and to the extent that

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parties not represented by lead counsel are uniquely affected by lead counsel’s decisions, approval

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from counsel for those parties must be sought. Cf. MacAlister v. Guterma, 263 F.2d 65, 68 (2d Cir.

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1958) (discussing role of general counsel). For example, lead counsel should work with the

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respective attorneys regarding decisions affecting claims brought only by clients of the Beck & Lee
firm or the Weston firm. Similarly, decisions by lead counsel regarding the “Sponsor Class”

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For the Northern District of California

United States District Court

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subclass, asserted only by clients of the Beck & Lee firm and the Weston firm, should be discussed

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with the Beck & Lee firm and the Weston firm. Lead counsel must also keep the other attorneys

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advised of the progress of the litigation. Lead counsel must use their judgment about limits on this

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communication; too much communication may defeat the objectives of efficiency and economy,

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while too little may prejudice the interests of the parties.

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All counsel shall work cooperatively with each other, and shoulder responsibilities as

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necessary, especially with respect to issues particular to their own clients. The court expects both

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civility and cooperation amongst plaintiffs’ counsel, and will be mindful of these efforts if and when

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attorneys’ fees are awarded. The court may be willing to revisit the issue of lead counsel if the

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attorneys are able to demonstrate a working relationship amongst themselves that will foster

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efficiency.

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It is early in this litigation and a good time to point out the responsibilities that all counsel

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have in this or any other litigation. The American College of Trial Lawyers has adopted Codes of

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Conduct for pretrial and trial. In the preamble to each they advise that a trial lawyer owes opposing

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counsel and the court “duties of courtesy, candor, and cooperation” at all stages of the proceedings.

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American College of Trial Lawyers, Codes of Trial and Pretrial Conduct, approved Oct. 2002, at 1.

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What have been referred to as “rambo” or “guerilla warfare” techniques should not be confused with

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their offices are located, state that they are members of the California Bar. In 2007, the Board of

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Governors of the State Bar adopted “California Attorney Guidelines of Civility and

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Professionalism”, adopted July 20, 2007, available at http://calbar.ca.gov/calbar/pdfs/reports/Atty-

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Civility-Guide.pdf. The Guidelines commence by declaring that attorneys have “an obligation to be

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professional with clients, other parties and counsel, the courts and the public. This obligation

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includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, and

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cooperation, all of which are essential to the fair administration of justice and conflict resolution.”

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Id. App. B at 3. The attorneys in this action shall comply with the California Bar Guidelines and to

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that end they shall: 1) read them in their entirety; 2) sign the Pledge that follows the Guidelines; and

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For the Northern District of California

zealous advocacy. The court notes that all of the attorneys in this litigation, regardless of where

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United States District Court

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3) file the Pledge with the court within thirty (30) days of the date of this order. This court will take

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seriously the obligations of counsel and expects all counsel to do so as well.

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Also within thirty (30) days of this order, the Ongaro firm shall file a consolidated amended

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complaint. Within thirty (30) of the filing of the consolidated amended complaint, defendant shall

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file a responsive pleading. Class-related discovery may commence subsequent to the court’s order

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adjudicating the motion to dismiss if one is filed, or subsequent to the filing of an answer.

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IT IS SO ORDERED.

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Dated: August 24, 2010
MARILYN HALL PATEL
United States District Court Judge
Northern District of California

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