United States District Court, N.D. California, San Jose Division
IN RE SEAGATE TECHNOLOGY LLC LITIGATION CONSOLIDATED ACTION
ORDER DENYING MOTION FOR APPOINTMENT AS INTERIM
CO-LEAD CLASS COUNSEL RE: DKT. NO. 42
M. WHYTE United States District Judge.
the court is plaintiffs’ Motion for Appointment as
Interim Co-Lead Class Counsel filed on May 13, 2016. Dkt. No.
42. Plaintiffs move for the appointment of their attorneys
Hagens Berman Sobol Shapiro LLP (“Hagens Berman”)
and Axler Goldich LLC (“Axler Goldich”) as
interim co-lead counsel for the putative class. The court
heard argument on June 17, 2016. For the reasons set forth
below, the court DENIES without prejudice the Motion for
Appointment as Interim Co-Lead Class Counsel.
bring this putative consumer class action against defendant
Seagate Technology LLC, alleging that Seagate’s
misrepresentations and failure to disclose the latent defects
of certain internal and external hard disk drives constitute
breach of consumer protection, unfair competition, and false
advertising laws; breach of express and implied warranties;
and unjust enrichment. Dkt. No. 39 ¶¶ 1-12.
original complaint in this case was filed on February 1,
2016, under the name Nelson v. Seagate Technology
LLC. Dkt. No. 1. A similar complaint was filed on
February 5, 2016 in Ginsberg, et al. v. Seagate
Technology LLC. Case No. 16-cv-00612, Dkt. No. 1.
Plaintiffs filed an amended complaint for Nelson on
May 4, 2016. Dkt. No. 36. The amended complaint for
Ginsburg was filed on the same day. Case No.
16-cv-00612, Dkt. No. 36. On May 6, 2016, the court
consolidated the two actions. Dkt. No. 38. Plaintiffs filed a
Consolidated Amended Complaint on May 9, 2016. Dkt. No. 39.
Motion for Appointment as Interim Co-Lead Class
now move to appoint Hagens Berman and Axler Goldich as
interim co-lead counsel for the putative class pursuant to
Federal Rule of Civil Procedure 23(g)(3). Plaintiffs contend
that doing so will protect the interests of the putative
class and empower counsel to move the case forward.
Plaintiffs aver that Hagens Berman and Axler Goldich are the
most qualified firms to represent the putative class during
the pre-certification stage because both firms have expended
a considerable amount of time investigating the underlying
claims, have significant experience litigating complex
consumer class action cases, are intimately familiar with the
applicable law, and have substantial resources to devote to
this case. Plaintiffs also note the firms’ willingness
and ability to commit to a time-consuming process, in
addition to their geographic diversity.
opposition rests on two arguments. First, defendant opposes
the motion as premature and unnecessary, stating that there
are no overlapping, duplicative, or competing lawsuits
against Seagate pending before this court or any other
federal court, and thus no other firms competing for
appointment. Second, defendant asserts that counsel for
plaintiffs have failed to demonstrate efficiency in these
proceedings. Defendant points to the multiple complaints and
amended complaints filed before the Consolidated Amended
Complaint, which required defendant to brief its 12(b)(6)
motion three times.
reject defendant’s contention that plaintiffs’
counsel have litigated this case inefficiently, maintaining
instead that they have timely navigated each procedural
issue. Plaintiffs allege that other firms have been
investigating the underlying claims and that some of these
firms have contacted plaintiffs’ counsel seeking
involvement. Finally, plaintiffs discuss Pozar v. Seagate
Technology LLC (No. CGC-15-547787), a similar lawsuit
pending in California Superior Court. To ensure efficient
coordination between the state and federal actions,
particularly during discovery, plaintiffs argue that all
parties should be clear that Hagens Berman and Axler Goldich
are authorized to act on behalf of the putative federal
to Rule 23(g)(3), the court may designate interim counsel to
act on behalf of a putative class before determining whether
to certify a class. Although Rule 23(g)(3) does not provide a
standard for appointment of interim counsel, courts typically
look to the factors used in determining the adequacy of class
counsel under Rule 23(g)(1)(A). See, e.g., Ramirez v.
Trans Union, LLC, No. 12-cv-00632-JSC, 2013 U.S. Dist.
LEXIS 37186, at *2 (N.D. Cal. Mar. 13, 2013). These factors
(1) the work counsel has done in identifying or investigating
potential claims in the action;
(2) counsel's experience in handling class actions, other
complex litigation, and the types of claims ...