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In Re Iphone 4s Consumer Litigation

July 5, 2012


The opinion of the court was delivered by: Claudia Wilken United States District Judge


On March 29, 2012, the Court appointed the firms of Robbins, Geller, Rudman & Dowd, LLP, Barnow and Associates, P.C. and Gardy 10 & Notis, LLP as interim co-lead class counsel. Docket No. 14.

States District Court For the Northern District of California

Faruqi & Faruqi, LLP (F&F), counsel for Plaintiff David Jones, now moves to modify the Court's Order and appoint it as co-lead class 13 counsel, along with the three firms already serving in that role. 14 Having considered the papers filed by the parties, the Court 15 DENIES the motion. 16

Federal Rule of Civil Procedure 23(g)(3) states, "The court United 17 may designate interim counsel to act on behalf of a putative class 18 before determining whether to certify the action as a class 19 action." Rule 23 requires that, when appointing counsel, the 20 court consider the following factors: 21

(i) the work counsel has done in identifying or investigating potential claims in the action;

(ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action;

(iii) counsel's knowledge of the applicable law; and

(iv) the resources that counsel will commit to representing the class.

Federal Rule of Civil Procedure Rule 23(g)(1)(A). "All other 2 things being equal," if an attorney has performed the 3 investigatory and analytical tasks necessary to draft the 4 complaint, unless that attorney has merely copied a complaint 5 from another action, "he or she is in a better position to 6 represent the class fairly and adequately than attorneys who 7 have not undertaken those tasks." 5 Moore's Federal Practice 8 § 23.120[3][a] (citing Rule 23, advisory committee note of 9 2003). The Court may also "consider any other matter 10 pertinent to counsel's ability to fairly and adequately represent the interests of the class." Federal Rule of Civil Procedure Rule 23(g)(1)(B). 13

There is no dispute that F&F and the current co-lead class 14 counsel all have experience in class actions and complex 15 litigation, knowledge of the applicable law and adequate 16 resources. However, the first factor favors the current co-lead 17 class counsel. They filed the original complaints in the separate 18 actions several weeks before F&F filed its complaint in the Jones 19 case, during which time the first lawsuits received substantial 20 national attention. A comparison of the complaints reveals that 21 the Jones complaint contains strikingly similarly allegations to 22 those in the original Fazio complaint. Contrary to F&F's 23 characterization, the similarities are not limited to quotations 24 from Defendant Apple, Inc.'s press releases and advertisements. 25

The allegations are organized in almost identical manners, cite 26 the same sources in the same order and use similar language 27 outside of quotations. Cf. Fazio Compl. ¶ 32 ("In addition to the 28 fact that Siri does not perform as advertised, recent reports have shown that continuous Siri usage dramatically increases an iPhone 2 4S users' monthly data usage, and can easily push users over their 3 data plans."), with Jones Compl. ¶ 25 ("In addition to the fact 4 that the Siri Function does not function as advertised, a recent 5 report has warned that continuous usage of the Siri Function 6 dramatically increases an iPhone 4S users' monthly data usage, and 7 can easily push users over the allotted data usage on their data 8 plans."). 9

F&F shows no deficiency with the current co-lead class 10 counsel. Thus, continuity of counsel, instead of changing counsel 11 during the pendency of a potentially dispositive motion, serves 12 the interest of providing proper representation for the putative 13 class. To the extent that F&F implies that the current co-lead 14 class counsel sought to create the current structure purposefully 15 to exclude F&F from participating in the prosecution of the 16 action, the Court finds that F&F has offered no evidence to 17 support any nefarious purpose. The Court also notes that the co-18 lead class counsel filed their stipulation proposing the current 19 structure before F&F initiated the Jones action. Further, the 20 current structure does provide for participation in the litigation 21 of all Plaintiffs' counsel and not just those serving as co-lead 22 class counsel. Not all of Plaintiffs' attorneys need to serve as 23 lead class counsel. While the Court allowed the first three firms 24 to serve in this capacity, instead of one or two of them, because 25 they agreed to share the responsibilities, the Court declines to 26 impose a more unmanageable and complicated administrative 27 structure for class counsel in this relatively straightforward 28 litigation.

Accordingly, the Court finds that maintenance of the current 2 interim class counsel structure best provides proper 3 representation of the ...

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