Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Lindsay Kamakahi, An Individual, On Behalf of v. American Society For An Executive Committee

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION


March 13, 2012

LINDSAY KAMAKAHI, AN INDIVIDUAL, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED,
PLAINTIFF,
v.
AMERICAN SOCIETY FOR AN EXECUTIVE COMMITTEE
REPRODUCTIVE MEDICINE, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Saundra Brown Armstrong United States District Judge

ORDER GRANTING MOTION TO CONSOLIDATE; GRANTING INTERIM LEAD CLASS COUNSEL; AND DENYING MOTION FOR APPOINTMENT OF MOTION FOR APPOINTMENT OF Docket 48.

The parties are presently before the Court on Plaintiff Lindsay Kamakahi's 16("Plaintiff") motion to consolidate the instant action, Kamakahi v. American Society for 17 Reproductive Medicine, et al., C 11-01781-SBA ("Kamakahi"), with the related action 18 Levy v. American Society of Reproductive Medicine, et al., C 11-03803-SBA ("Levy") 19 under Rule 42 of the Federal Rules of Civil Procedure. Dkt. 48. Also before the Court are 20 Plaintiff's motion for appointment of interim lead class counsel under Rule 23(g) of the 21 Federal Rules of Civil Procedure, and motion for appointment of a three-firm Executive 22 Committee to prosecute this action. Id. No Defendant has filed an opposition. Having 23 read and considered the papers filed in connection with this matter and being fully 24 informed, the Court hereby GRANTS the motion to consolidate, GRANTS the motion for 25 appointment of interim lead class counsel, and DENIES the motion for appointment of a 26 three-firm Executive Committee to prosecute this action, for the reasons stated below. The 27 28 1Court, in its discretion, finds this matter suitable for resolution without oral argument. See

I. DISCUSSION 4

6 appropriate because the actions are substantially similar and raise nearly identical questions 7 of law and fact, and therefore consolidation will serve the interests of efficiency and 8 judicial economy. 9

Fed.R.Civ.P. 78(b); N.D. Cal. Civ. L.R. 7-1(b). 3

A. Motion to Consolidate

Plaintiff argues that consolidation of the instant action and the related Levy action is

If actions before the court involve a common question of law or fact, the court may 10 consolidate the actions. Fed.R.Civ.P. 42(a). A court has broad discretion in determining 11 whether to consolidate actions pending in the same district. See Investors Research Co. v. U.S. Dist. Court for Cent. Dist. of Cal., 877 F.2d 777, 777 (9th Cir. 1989). In determining 13 whether or not to consolidate cases, the court should "weigh the interest of judicial 14 convenience against the potential for delay, confusion and prejudice." Zhu v. UCBH Holdings, Inc., 682 F.Supp.2d 1049, 1052 (N.D. Cal. 2010). 16

17 consolidation is appropriate in light of the substantial similarity between the two actions. 18

The Plaintiff in both actions seeks to represent a class against American Society for 19

Reproductive Medicine ("ASRM") and Society for Assisted Reproductive Technology 20

("SART"), and all fertility clinics and egg donor agencies that agreed to comply with 21

SART/ASRM rules regarding egg donor compensation, excluding entities located in 22

Indiana. Compl. ¶ 20, Dkt. 1; Levy action Compl. ¶ 23, Dkt. 1. In addition, both actions 23 are brought on behalf of a class consisting of all women who during the preceding four 24 years sold human eggs to any Defendant class member for assisted reproductive purposes. 25

Compl. ¶ 13; Levy action Compl. ¶ 17. Finally, both complaints assert one cause of action, 26 alleging that Defendants entered into a price fixing agreement to suppress the price paid to 27 putative class members for human egg donor services in violation of Section 1 of the 28

Having reviewed the complaints filed in both actions, the Court concludes that

1Sherman Antitrust Act, 15 U.S.C. § 1. Compl. ¶¶ 1, 106-110, Levy action Compl. ¶¶ 110-2 114. 3

4 questions of law and fact, Plaintiff's motion to consolidate is GRANTED. The Court finds 5 that consolidation will serve the interests of efficiency and judicial economy. Pursuant to 6

Rule 42, Kamakahi v. American Society for Reproductive Medicine, et al., C 11-01781-7

SBA and Levy v. American Society for Reproductive Medicine, et al., C 11-03803-SBA 8 shall be consolidated for all purposes into one action. The first-filed consolidated case, 9

Accordingly, because the instant action and the related Levy action involve common

Kamakahi, shall be the lead case. All future filings shall be filed under the caption and case 10 number Kamakahi v. American Society for Reproductive Medicine, et al., C 11-01781-11

B. Motion for Appointment of Interim Lead Class Counsel

SBA. 12

Plaintiff requests that the Court appoint her counsel Finkelstein Thompson LLP and

14Cafferty Faucher LLP as interim co-lead class counsel under Rule 23(g). 15

16 before determining whether to certify the action as a class action." Fed.R.Civ.P. 23(g)(3). 17

In making this determination, the court considers: "(i) the work counsel has done in 18 identifying or investigating potential claims in the action; (ii) counsel's experience in 19 handling class actions, other complex litigation, and the types of claims asserted in the 20 action; (iii) counsel's knowledge of the applicable law; and (iv) the resources that counsel 21 will commit to representing the class." Fed.R.Civ.P. 23(g)(1)(A). In addition, the Court 22

"may consider any other matter pertinent to counsel's ability to fairly and adequately 23 represent the interests of the class." Fed.R.Civ.P. 23(g)(1)(B). 24

The Court has reviewed the evidence submitted by Plaintiff and concludes that

25Finkelstein Thompson LLP and Cafferty Faucher LLP possess sufficient experience, 26 knowledge of the applicable law, and resources to represent the putative class in this matter. 27

Mark Punzalan Decl., Exhs. A-B, Dkt. 48-1. Accordingly, Plaintiff's motion for 28

A district court "may designate interim counsel to act on behalf of a putative class

1appointment of interim lead class counsel is GRANTED. The Court appoints Finkelstein

C. Motion for Appointment of an Executive Committee

Thompson LLP and Cafferty Faucher LLP as co-lead counsel in this consolidated action. 3

5 prosecute this action, consisting of her counsel, Finkelstein Thompson LLP and Cafferty 6

Plaintiff requests that the Court appoint a three-firm Executive Committee to

Faucher LLP, and Plaintiff's counsel in the Levy action, Bursor & Fisher, P.A. In support 7 of this request, Plaintiff asserts that "Bursor & Fisher has a wealth of experience litigating 8 complex commercial and consumer class actions, including antitrust cases, and will be a 9 valuable member of the team prosecuting this case." Moreover, the "Executive Committee 10 will advance the common interests of Plaintiffs and the Class in the prosecution of the 11 consolidated action, and will work in conjunction with one another to ensure that the case is 12 effectively and efficiently prosecuted, and the interests of Plaintiffs and the proposed class 13 are best represented." 14

15 a three-firm Executive Committee to prosecute this action is warranted. See Manual for 16

Complex Litig., § 10.221 (4th ed. 2004) ("Committees are most commonly needed when 17 group members' interests and positions are sufficiently dissimilar to justify giving them 18 representation in decision making."). First, there has been no showing that the interests and 19 positions of the putative class members represented by Bursor & Fisher, P.A in the Levy 20 action are sufficiently dissimilar to the interests and positions of the putative class members 21 represented by Finkelstein Thompson LLP and Cafferty Faucher LLP in the Kamakahi 22 action to justify giving Bursor & Fisher, P.A representation in decision making. Plaintiff, 23 for her part, has not identified any diverse interest among the parties that would support the 24 appointment of a committee of counsel. See id. § 10.221 (in appointing counsel in complex 25 litigation, a court may consider, among other factors: "whether designated counsel fairly 26 represent the various interests in the litigation-where diverse interests exist among the 27 parties, the court may designate a committee of counsel representing different interests"). 28

The Court concludes that Plaintiff has failed to demonstrate that the appointment of

2 best served by appointing a three-firm Executive Committee. Plaintiff has not 3 demonstrated that a committee of counsel is necessary to effectively and efficiently 4 prosecute this action, while avoiding unnecessary costs and duplication of efforts. See

Manual for Complex Litig., § 10.221 (noting that "Committees of counsel can sometimes 6 lead to substantially increased costs"). Accordingly, Plaintiff's request for appointment of 7 a three-firm Executive Committee to prosecute this action is DENIED. 8

9 formulating and presenting positions on substantive and procedural issues during this 10 litigation on behalf of other counsel and their clients, are, of course, free to consult with 11

Bursor & Fisher, P.A on all significant litigation decisions and to divide case 12 responsibilities and costs as they see fit, including tasking Bursor & Fisher, P.A. with 13 litigation assignments. However, while it may be appropriate, and even beneficial, for the 14 firms to divide work among themselves, counsel should be mindful that this Court will 15 ultimately scrutinize the reasonableness of any application for attorneys' fees and costs. As 16 such, counsel should strive to avoid unnecessary costs and duplication of efforts.

II. CONCLUSION 18

Second, there has been no showing that the interests of efficiency and economy are

The Court notes that appointed co-lead counsel, as the attorneys charged with

For the reasons stated above, IT IS HEREBY ORDERED:

1. Plaintiff's motion to consolidate is GRANTED. Kamakahi v. American

20Society for Reproductive Medicine, et al., C 11-01781-SBA and Levy v. American Society 21 for Reproductive Medicine, et al., C 11-03803-SBA shall be consolidated for all purposes 22 into one action. All future filings shall be filed under the caption and case number 23

Kamakahi v. American Society for Reproductive Medicine, et al., C 11-01781-SBA. 24

25 date of this Order. Defendants shall file a responsive pleading in accordance with Rule 12 26 of the Federal Rules of Civil Procedure. 27

2. Plaintiffs shall file a consolidated complaint within thirty (30) days from the

3. Plaintiff's motion for appointment of interim lead class counsel is

2GRANTED. The Court appoints Finkelstein Thompson LLP and Cafferty Faucher LLP as 3 co-lead counsel in this consolidated action. 4

4. Plaintiff's motion for appointment of a three-firm Executive Committee to

5 prosecute this action is DENIED. 6

5. In light of the Court's ruling on the motion to consolidate, the motion to

7 dismiss (Dkt. 33) is DENIED as MOOT. 8

6. This Order terminates Docket 33 and Docket 48.

IT IS SO ORDERED.

20120313

© 1992-2012 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.