Free Motion for Preliminary Injunction - District Court of California - California

Case 3:07-cv-02126-BEN-RBB

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Filed 11/15/2007

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1 Alan Himmelfarb (Cal. Bar. No. 90480) KAMBEREDELSON LLC 2 2757 Leonis Blvd. Los Angeles, CA 90058 3 (323) 585-8696 [email protected] 4 Jay Edelson 5 Ethan Preston KAMBEREDELSON LLC 6 53 West Jackson Ave., Suite 1530 Chicago, IL 60604 7 312-589-6370 [email protected] 8 [email protected] 9 Counsel for Plaintiffs 10 11 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA No. 07cv2126-JM(NLS) PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION AND CONDITIONAL CLASS CERTIFICATION Date: January 11, 2008 Time: 1:30 p.m. United States District Court Judge Jeffrey T. Miller 940 Front Street Courtroom 6, 3rd Floor San Diego, CA 92101

JASON DEMAS and JOHN RENNINGER, 12 on their own behalves and on behalf of all others similarly situated, 13 Plaintiffs, 14 v. 15 SONY ELECTRONICS, INC., a Delaware 16 corporation, 17 18 19 20 21 22 23 24 25 26 27 28
Plaintiff's Motion for Preliminary Injunction and Conditional Class Certification

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No. 07cv2126 -JM(NLS)

Case 3:07-cv-02126-BEN-RBB

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NOTICE OF MOTION NOTICE IS HEREBY GIVEN that Jason Demas and John Renninger will move the Court for a preliminary injunction in the above referenced proceedings, pursuant to Federal Rule of Civil Procedure 65(a) on January 11, 2008 at 1:30 p.m., or as soon thereafter as counsel may be heard by the U.S. District Court for the Southern District of California, located at 940 Front Street, San Diego, California 92101 before the Honorable Jeffrey T. Miller, in Courtroom 6, 3rd Floor. MOTION FOR PRELIMINARY INJUNCTION AND CONDITIONAL CLASS CERTIFICATION This Motion is based on this Notice of Motion and Motion, the Brief in Support of the

11 Motion, and the authorities cited therein, oral argument of counsel, and any other matter that 12 may be submitted at the hearing. Through this Motion, Plaintiffs seek the following equitable 13 remedies: 14 This Motion seeks to impose a constructive trust on those sums Sony Electronics, Inc.

15 ("SEI") has received from the sales or distribution of any its KDS R60XBR1 and KDS 16 R50XBR1 television sets ("XBR1 Televisions"). Plaintiffs have a right to the imposition of 17 this constructive trust because of SEI's obvious statutory violations. These sums should be not 18 be dispersed, but should be placed in a segregated account pending the resolution of this 19 action. 20 Further, SEI must be enjoined from continuing to market and represent to its

21 customers and to the public that its KDS XBR1 series of television sets are capable of the 22 1080p resolution without also disclosing that these television sets do not have any 1080p 23 connections and are not capable of receiving a 1080p signal. SEI's deceptive actions threaten 24 to cause irreparable harm to consumers' confidence in representations made in the 25 marketplace and should be enjoined on that basis. 26 27 28 In sum, this Motion seeks an Order from this Court against Sony Electronics, Inc. that: 1. Certifies the action as a class action and designates Plaintiffs as representatives of a class of all persons or entities in the United States who purchased one or more of the KDS XBR1 series of television sets manufactured and/or marketed by Defendant and KAMBEREDELSON, LLC as class counsel under Rule 23(b)
ii No. 07cv2126-JM(NLS)

Plaintiff's Motion for Preliminary Injunction and Conditional Class Certification

Case 3:07-cv-02126-BEN-RBB

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(2) and Rule 23(c)(4) to the extent necessary, and only to the extent necessary, for the Court to grant the preliminary injunction sought herein. Imposes a constructive trust on (a) those sums Sony Electronics, Inc. received from the sales or distribution of any KDS R60XBR1 or KDS R50XBR1 model television sets ("Constructive Trust Funds"), which Sony Electronics, Inc. and/or its officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them who receive actual notice of the Court's order ("Constructive Trustees") possess or control.

(b)

Requires Sony Electronics, Inc. to provide notice of the Court's order to any person which it knows or has reason to believe has control over Constructive Trust Funds, and to certify to the Court that it has provided such notice no later than 5 days after the entry of the Court's order. Requires each Constructive Trustee (a) to certify to the Court no later than 10 days after the entry of the Court's order that all Constructive Trust Funds in their control as of the date of the Court's order, or which come into the control of the Constructive Trustees after the date of the Order, have been placed into a segregated, interest-bearing fiduciary account maintained by a FDIC-insured financial institution; and to provide the Court and Plaintiffs an accounting of all Constructive Trust Funds which such Constructive Trustees controlled any any time but do not control as of the date of accounting, no later than 30 days after the entry of the Court's order.

(b)

Prohibits Sony Electronics, Inc. from continuing to make any written or oral representation that the KDS R60XBR1 or KDS R50XBR1 model television sets are capable of 1080p resolution which representation does not also disclose that these television sets do not have any 1080p connector, and are not capable of receiving a 1080p signal. Requires Sony Electronics, Inc. to provide the following written notice to any person which it knows or has reason to believe possesses one or more KDS R60XBR1 or KDS R50XBR1 model television sets, and to certify to the Court that it has provided such notice no later than 30 days after the entry of the Court's order: NOTICE: Your KDS R60XBR1 and/or KDS R50XBR1 model television sets do not contain a connector which is capable of receiving a 1080 progressive scan ("1080p") signal. WITHOUT SUCH A CONNECTOR, THESE TELEVISION SETS CANNOT DISPLAY MEDIA CONTENT ENCODED AT A 1080p RESOLUTION AT A 1080p RESOLUTION. IF YOU CONTINUE TO MARKET, ADVERTISE, OR REPRESENT THAT YOUR KDS R60XBR1 AND/OR KDS R50XBR1 MODEL TELEVISION SETS ARE CAPABLE OF 1080p RESOLUTION OR PROGRESSIVE SCAN

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RESOLUTION, YOU MAY BE MISLEADING POTENTIAL PURCHASERS AND COULD BE LIABLE UNDER APPLICABLE CONSUMER PROTECTION LAWS. Your KDS R60XBR1 and/or your KDS R50XBR1 model television sets are capable of receiving and displaying 1080i signals. November 15, 2007 By: s/Alan Himmelfarb Attorneys for Jason Demas and John Renninger Alan Himmelfarb (Cal. Bar. No. 90480) KAMBEREDELSON LLC 2757 Leonis Blvd. Los Angeles, CA 90058 (323) 585-8696 [email protected] Jay Edelson Ethan Preston KAMBEREDELSON LLC 53 West Jackson Ave., Suite 1530 Chicago, IL 60604 312-589-6370 [email protected] [email protected]

Plaintiff's Motion for Preliminary Injunction and Conditional Class Certification

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No. 07cv2126-JM(NLS)

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Certificate of Service

CERTIFICATE OF SERVICE Pursuant to 28 U.S.C.§ 1746, I hereby certify that a copy of the foregoing Motion, Memorandum of Points and Authorities of the foregoing Motion, and accompanying supporting documents was this date served upon Defendant Sony Electronics, Inc. pursuant to Fed. R. Civ. P. 5(b) by placing a copy of the same in the United States Mail, postage prepaid, and sent to its last known address as follows: Sony Electronics, Inc. 1645 West Bernardo Street San Diego, CA 92127 Date: November 15, 2007 By: s/Alan Himmelfarb ALAN HIMMELFARB

No. 07cv2126-JM(NLS)