Harris v. Blockbuster Inc

Filing 41

Plaintiffs' MOTION to Lift Stay, Consolidate Proceedings and MOTION for Order to Show Cause filed by Cathryn Elaine Harris, Mario Herrera, Maryam Hosseiny with Brief/Memorandum in Support. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8) (Wilson, Jeremy)

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1 SCOTT KAMBER (admitted pro hac vice) DAVID STAMPLEY (admitted pro hac vice) 2 [e-mail] [e-mail] 3 KAMBEREDELSON, LLC 11 Broadway, 22nd Floor 4 New York, New York 10004 5 Telephone: [phone] Facsimile: [phone] 6 JOSEPH H. MALLEY (admitted pro hac vice) LAW OFFICE OF JOSEPH H. MALLEY 7 1045 North Zang Boulevard 8 Dallas, Texas 75208 Telephone: [phone] Facsimile: [phone] 10 DAVID C. PARISI (SBN 162248) SUZANNE HAVENS BECKMAN (SBN 188814) 11 [e-mail] [e-mail] 12 PARISI & HAVENS LLP 15233 Valleyheart Drive 13 Sherman Oaks, California 91403 Telephone: [phone] Facsimile: [phone] 15 ATTORNEYS FOR PLAINTIFFS 16 17 18 19 20 21 22 23 24 25 26 27 28
Declaration of S. Kamber in Support of Motion for Preliminary Approval Case No. No. 08-cv-3845 RS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION SEAN LANE, et al., Plaintiffs, v. FACEBOOK, INC., a Delaware Corporation, BLOCKBUSTER, INC., a Delaware Corporation, FANDANGO, INC., a Delaware Corporation, HOTWIRE, INC., a Delaware Corporation, STA TRAVEL, INC., a Delaware Corporation, OVERSTOCK.COM, INC., a Delaware corporation, ZAPPOS.COM, INC., a Delaware Corporation, GAMEFLY, INC., a Delaware Corporation, and DOES 1-40, corporations, Defendants. No. 08-cv-3845 RS [Assigned to the Hon. Richard Seeborg] DECLARATION OF SCOTT A. KAMBER IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT Location: Courtroom 4, 5th Floor 280 South First Street San Jose, CA 95113 Date: October 14, 2009 Time: 9:30 a.m.

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DECLARATION OF SCOTT A. KAMBER

I, Scott A. Kamber, declare as follows: 1. I am one of plaintiffs' counsel in the above-captioned litigation. I make this

4 declaration in support of plaintiffs' motion for final approval of the settlement and for ap5 proval of their application for fees and expenses. I have actively participated in all aspects 6 of this litigation, including negotiation of the settlement, and am fully familiar with the 7 proceedings in the matter in which resolution is sought by the parties. If called upon, I am 8 competent to testify that the following facts are true and correct to the best of my knowl9 edge, information, and belief. 10

2.

I represent that the disclosures contained herein relating to mediation and

11 negotiation between the parties are with the consent of Michael Rhodes of Cooley God12 ward Kronish LLP and are not violative of any settlement or mediation privilege. 13

3.

For over three months prior to the filing of the complaint in this matter, my-

14 self and attorneys under my direct supervision worked closely with co-counsel Joseph 15 Malley and certain class representatives, investigating facts and developing legal theories 16 contained in the complaint. This pre-complaint effort occupied hundreds of hours of attor17 ney and client time as well as consultations with certain nonlegal experts. This case im18 pacted millions of class members and dealt with highly technical areas of the implementa19 tion of the sharing of class member information between Internet sites by Facebook and 20 required a tremendous effort to understand the issues, the mechanisms by which Facebook 21 shared certain information, and Facebook's implementation of the consent mechanism. I 22 believe that this understanding allowed us to plead this case with the detail and accuracy 23 that motivated rather early settlement negotiations between the parties. Based on my ex24 perience, I believe that the promptness of relief is an absolutely critical feature in address25 ing resolution of internet usage issues that involve injunctive relief. Our research, con26 firmed through the settlement process, is that there are millions of class members and that 27 numerosity is satisfied. 28
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1

4.

On August 12, 2008, the plaintiffs in this matter filed a complaint on their

2 own behalf and on behalf of a purported class of all Facebook members who had visited 3 the websites of one or more entities affiliated with Facebook, including Facebook's co4 defendants in this matter, between November 7 and December 5, 2007, inclusive, and 5 whose activities on those affiliated sites were communicated to Facebook via Facebook's 6 Beacon program. Plaintiffs alleged that the defendants failed to provide them proper and 7 adequate notice regarding Beacon's transmissions of information about them to Facebook, 8 failed to obtain their consent for such transmissions, and engaged in actions that violated 9 the Electronic Communications Privacy Act ("ECPA"), the Video Privacy Protection Act 10 ("VPPA"), the Computer Fraud and Abuse Act ("CFAA"), the California Consumer Legal 11 Remedies Act ("CLRA"), and the California Computer Crime Law ("CCCL"). (Dkt. 1). . 12

5.

At all times, all Defendants have denied and continue to deny that they have

13 engaged in any wrongdoing or committed, threatened to commit, or attempted to commit 14 any wrongdoing of any kind, including that alleged in the complaint in this matter. On Oc15 tober 10, 2008, Facebook, pursuant to Federal Rule of Civil Procedure 12(b)(6), moved to 16 dismiss plaintiffs' causes of action under Count I, alleging ECPA violations; Counts III and 17 IV, alleging violations of the VPPA against Facebook, and regarding which Facebook ar18 gued that it is not a "Video Tape Service Provider" as defined in the statute and that it can19 not be held secondarily liable; Count V, alleging violations of the CLRA by defendants 20 Facebook, Fandago, Hotwire, Gamefly, and STA, and regarding which Facebook argued 21 that the complaint lacked the particularity required by Federal Rule of Civil Procedure 9(b) 22 and that the plaintiffs were not "consumers" as defined by the statute; and Count VI, alleg23 ing violations of the CCCL against defendants Facebook, Fandago, Hotwire, Gamefly, and 24 STA, alleging, inter alia, that plaintiffs failed to adequately plead damages or losses attrib25 utable to Facebook's conduct. Facebook did not challenge Count II, alleging VPPA viola26 tions by Blockbuster, Fandago, Overstock, and Gamefly. (Dkt. 14). Plaintiffs' counsel have 27 briefed their response to Facebook's motion to dismiss and believe that plaintiffs would 28 prevail in an adjudication of that motion.
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1

6.

Plaintiffs did not file their brief following Facebook's filing of its motion to

2 dismiss. Instead, the parties agreed to private and confidential mediation of the matter and 3 engaged in nine months of substantive, arms-length negotiations. 4

a.

On December 9, 2008, representatives of Facebook and plaintiffs met

5 with mediator Antonio Piazza in the offices of Gregorio, Haldeman, Piazza, Rotman, Frank 6 & Feder in San Francisco, California. I led the plaintiffs' negotiating team, which included 7 Joseph Malley of the Law Office of Joseph H. Malley and David Stampley, Michael 8 Aschenbrener, and Alan Himmelfarb of KamberEdelson, LLC. Facebook was represented 9 by Mark Howitson, Deputy General Counsel, Ted Ullyot, General Counsel, Sam 10 O'Rourke, Associate General Counsel from Facebook and Michael Rhodes and Maria Os11 trovsky of the law firm of Cooley Godward Kronish LLP. With the assistance of Mr. Pi12 azza, Plaintiffs' counsel met with Facebook's representatives and with the participation of 13 Facebook CEO, Mark Zuckerberg. Throughout the day, the parties' representatives met 14 unilaterally with Mr. Piazza. In addition, Mr. Stampley and Mr. Aschenbrener met sepa15 rately with Mr. O'Rourke of Facebook and Ms. Ostrovsky of Cooley Godward to view and 16 discuss examples of users' interactions on Facebook's website and on the websites of af17 filiates deploying the Beacon program. After a full day of mediation, the parties agreed on 18 all substantive relief and memorialized their mutual understanding in document outlining 19 the principal terms of settlement. 20

b.

At no point prior to reaching agreement on the substantive terms of

21 settlement did the parties discuss the amount of any incentive fees or payments to class 22 counsel. This took place for the first time at the end of the mediation and immediately 23 prior to the memorialization of terms set forth above. 24

c.

In the following months, I personally negotiated with Mr. Rhodes of

25 Cooley Godward to flesh out the settlement framework and implementation. and other at26 torneys at my firm met with other outside and in-house counsel at Facebook. On February 27 11, 2009, Mr. Stampley and Mr. Aschenbrener met with Mr. O'Rourke, Facebook Associ28 ate General Counsel, at Facebook's offices to continue discussing the mechanics of users'
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1 online experiences when interacting with the websites of Facebook and its affiliates. Over 2 the following months, the parties continued to negotiate, exchange information regarding 3 settlement details, and examine creative approaches to potential injunctive relief compati4 ble with Facebook's business model. 5

d.

In the late spring, the parties reached a seeming impasse regard the

6 details of injunctive relief involving changes to the Facebook website and Beacon program 7 operation. In my opinion, the parties were unable to resolve this impasse without substan8 tively diverging from the framework agreed upon in the principal terms of settlment previ9 ously memorialized during mediation. Since this required revisiting a previously agreed-to 10 substantive term, I refused to engage in any resolution of this issue outside the presence of 11 the mediator and requested that the parties schedule an additional mediation session in an 12 effort to conclude the settlement process. 13

e.

On July 28, 2009, the parties' representatives again met in person with

14 mediator Antonio Piazza and, afterwards, continued negotiating the details of a settlement 15 agreement. To break the impasse over the terms, the parties with the active input of the 16 mediator agreed Facebook would terminate the Beacon program itself within 60 days of 17 preliminary approval. I believed this provided clarity with respect to the relief being of18 fered and was beneficial to the class. This obviated the need to define what may be permis19 sible moving forward with Beacon, and allowed the parties to move forward in a manner 20 that provided maximum benefit to the class. Further, at this mediation session, I was able 21 to obtain an accelerated funding of the Foundation by Facebook. With the assistance of Mr. 22 Piazza, the parties were able to successfully conclude the negotiation of the major sticking 23 points with the settlement agreement. Less than a month later, all parties had given their 24 consent to the terms contained in the settlement agreement. Having reached full agreement 25 on terms and conditions of a settlement, the parties now seek the Court's preliminary ap26 proval. 27

7.

I have participated directly in the mediation and negotiation efforts and the

28 petition for preliminary approval of the proposed settlement now before this Court.
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1 Throughout our mediation and negotiation efforts and in advising our clients of the pro2 posed settlement, plaintiff's counsel's has at all times considered the fairness, reasonable3 ness, and adequacy of the settlement for the class, taking into account: the strength of 4 plaintiffs' case; the risk, expense, complexity, and likely duration of any further litigation; 5 the risk of certifying a class and then maintaining class action status through trial; the 6 amount offered in settlement; the extent of discovery completed and the stage of the pro7 ceedings; and the experience and views of plaintiffs' counsel. Against the backdrop of 8 counsels' collective experience in prosecuting complex class actions, co-counsel and I 9 have considered the claims set forth in the complaint and our continued confidence in the 10 merit of those claims, the scope of relief offered in the settlement compared to the potential 11 relief at the conclusion of litigation, and the risks and costs of continued litigation. Taking 12 these factors into account, it is my opinion that the proposed settlement is fair, reasonable, 13 and adequate, well within the range of possible approval, and therefore deserving of the 14 Court's preliminary approval. 15

8.

A true and correct copy of the proposed settlement agreement entered into by

16 the parties in this matter is attached as Exhibit A to the Notice of Motion of which this dec17 laration is an exhibit. 18

9.

Proposed class counsel possesses extensive experience in prosecuting class

19 actions and other complex litigation. A copy of the firm resume of KamberEdelson, LLC is 20 attached as Exhibit C to the Notice of Motion of which this declaration is an exhibit. 21

10.

Further, proposed class counsel have diligently investigated and prosecuted

22 this matter, dedicating substantial resources to the investigation of the claims at issue in the 23 action, and have successfully negotiated the settlement of this matter to the benefit of the 24 class. 25

11.

I declare under penalty perjury under the laws of the United States of Amer-

26 ica that the foregoing is true and correct. 27 28
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1 Executed on September 18, 2009 at New York, New York. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Declaration of S. Kamber in Support of Motion for Preliminary Approval

s/Scott A. Kamber Scott A. Kamber

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