Free Memorandum in Opposition - District Court of California - California

Case 3:08-cv-02873-JSW

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LISA I. CARTEEN, Bar No. 204764 BAKER & HOSTETLER LLP 12100 Wilshire Boulevard, 15th Floor Los Angeles, California 90025-7120 Telephone: 310.820.8800 Facsimile: 310.820.8859 Email: [email protected] BRUCE O. BAUMGARTNER, Bar No. 0025701 (Pro Hac Vice) ROBIN E. HARVEY, Bar No. 0014183 (Pro Hac Vice) BAKER & HOSTETLER LLP 312 Walnut Street, Suite 3200 Cincinnati, Ohio 45202-4072 Telephone: 513.929.3400 Facsimile: 513.929.0303 Email: [email protected] [email protected] LEE H. SIMOWITZ, Bar No. 185728 (Pro Hac Vice) BAKER & HOSTETLER LLP 1050 Connecticut Avenue, NW, Suite 1100 Washington, DC 20036-5304 Telephone: 202.861.1500 Facsimile: 202.861.1783 Email: [email protected] Attorneys for Defendants GANZ, INC. and GANZ U.S.A., LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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NUTS FOR CANDY, a Sole Proprietorship, individually and on behalf of all others similarly situated, Plaintiff, v. GANZ, INC. and GANZ U.S.A., LLC, Defendants.

Case No. CV 08-2873 JSW DEFENDANTS GANZ, INC. AND GANZ U.S.A., LLC'S OPPOSITION TO PLAINTIFF'S MOTION FOR APPOINTMENT OF INTERIM LEAD COUNSEL [Filed concurrently herewith Declaration of Lisa I. Carteen and [Proposed] Order in support thereof] Date: Time: Judge: Ctrm: October 10, 2008 9:00 a.m. Hon. Jeffrey S. White Courtroom 2, 17th Floor

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DEFENDANTS GANZ, INC. AND GANZ U.S.A., LLC'S OPPOSITION TO PLAINTIFF'S MOTION FOR APPOINTMENT OF INTERIM LEAD COUNSEL

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MEMORANDUM OF POINTS AND AUTHORITIES Defendants Ganz, Inc., a Delaware Corporation, and its related company Ganz U.S.A., LLC (collectively referred to as "Ganz") submit their Opposition to the motion by Plaintiff Nuts for Candy for entry of an order appointing the law firm of Cotchett, Pitre & McCarthy interim lead class counsel for the putative class before determining whether to certify the action as a class action. I. INTRODUCTION Nuts for Candy's Motion for Appointment of Interim Lead Counsel ("Motion") is premature and unnecessary to "protect the interests of class members," (Motion at 3:25-27) for two reasons, each of which warrants the Court's denial of the Motion. First, this Court has yet to determine whether the putative class warrants certification and such a determination may never be made. Ganz contends in its pending Motion to Dismiss that the "class" described in Nuts for Candy's Motion cannot state a claim under controlling U.S. Supreme Court and Ninth Circuit antitrust decisions. The Court's consideration of this Motion prior to a ruling on Ganz's Motion to Dismiss and a class certification hearing is premature since the viability of the putative class has yet to be determined. If Ganz's Motion to Dismiss is granted, it is axiomatic that there is no need for class counsel, much less interim class counsel. Second, Nuts for Candy's purported grounds for the appointment of lead counsel do not require, or even suggest that this Court should take the extraordinary step of appointing interim lead counsel pursuant to Federal Rule of Civil Procedure 23(g). To the contrary, this Court's recent and controlling decisions demonstrate that the circumstances warranting appointment of interim lead counsel are not present in this case. II. STATEMENT OF RELEVANT FACTS Nuts for Candy, a sole proprietorship selling chocolates, candy, toys, gifts and ice cream, filed a legally baseless Complaint asserting Ganz imposed on it and other alleged members of a purported class a per se unlawful tying arrangement in violation of the Sherman Act, 15 U.S.C. Sec. 1, and the Clayton Act, 15 U.S.C. Sec. 14. Plaintiff claims that Ganz adopted and implemented a "co-order" policy and Loyalty Program requiring some of Ganz's customers to
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DEFENDANTS GANZ, INC. AND GANZ U.S.A., LLC'S OPPOSITION TO PLAINTIFF'S MOTION FOR APPOINTMENT OF INTERIM LEAD COUNSEL

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purchase any of Ganz's other products "unrelated to Webkinz" when they placed initial orders for Ganz's popular Webkinz products. Plaintiff's Complaint ¶ 2. Accordingly, Plaintiff's definition of the "proposed class" is: "All persons and entities in the United States who were required as a condition of their purchase of Webkinz to purchase products from Ganz's "core line" of products." Motion at 2:10-11. Plaintiff has not filed a motion to certify the purported class. And, although there are similar actions pending in other federal courts,1 this is the only action where a motion seeking appointment of interim lead counsel has been filed. Declaration of Lisa I. Carteen ("Carteen Decl.") ¶¶ 2, 3 and Exhibits A and B attached thereto. On or about July 24, 2008, Nuts for Candy filed with the Joint Panel for Multidistrict Litigation a Motion for Transfer and Consolidation of Related Actions to the Northern District of California Pursuant to 28 U.S.C. § 1407 for Coordinated Consolidated Pretrial Proceedings. ("MDL Petition"). Carteen Decl. ¶¶ 6, 7 and Exhibits C and D. Based on the procedural posture of this case, specifically, Ganz's pending Motion to Dismiss, and the legal reasons set out below, the Court should not appoint interim class counsel and should deny Nuts for Candy's Motion. III. ARGUMENT A. With Ganz's Pending Motion To Dismiss, The Appointment Of Interim Lead Counsel Is Premature

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Although Federal Rule of Civil Procedure 23(g) provides that "the Court may designate interim counsel to act on behalf of the putative class before determining whether to certify the action as a class action," the determination of class counsel is routinely made when and if the Court certifies the class. Fed. R. Civ. P. 23(c)(1)(B) ("An order that certifies a class action must . . . appoint class counsel under Rule 23(g)."). Plaintiff has not yet filed a motion for class certification. And, such a motion will not be necessary if this Court grants Ganz's Motion to
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See Cortes County Stores, Inc., d/b/a Freetown Trading Post v. Ganz, Inc. and Ganz U.S.A., LLC, United States District Court for the District of Massachusetts, Civil Action No. 08-11184-RGS and Scott and Sherri Comstock d/b/a/ The Cheshire Cat and The Spotted Crocodile v. Ganz, Inc., and Ganz U.S.A., LLC, United States District Court for the Northern District of Illinois, Civil Action No. 08-CV-04167. Carteen Decl. ¶¶ 2-5 and Exhibits A and B.
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Dismiss for which this Court has set a briefing schedule and a hearing on November 7, 2008, less than a month after the October 10 hearing on this Motion. Ganz's Motion to Dismiss should be decided prior to the Court's consideration of either the class allegations or this Motion because if the Court grants the relief Ganz is seeking it will obviate the need for the Court's requisite comprehensive analysis of whether The Cotchett Firm has the "ability to fairly and adequately represent the interests of the class." Fed. R. Civ. P. 23(g)(1)(B). Ganz contends that Plaintiff's Complaint is incurably defective and that the Complaint's flaws do not simply reflect a failure of pleading; rather, they betray the absence of any plausible facts that could support an antitrust claim, requiring dismissal of the Complaint with prejudice. See Rick-Mik Enterprises, Inc., 2008 U.S. App. LEXIS 14761 at *6 (9th Cir. July 11, 2008) ("[I]n antitrust matters, `[f]actual allegations must be enough to raise a right to relief above the speculative level[.]' Bell Atlantic Corp. v. Twombly, 127 S.Ct 1955, 1965 (2007) (citations omitted). `[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]'") Thus, it is in the interest of judicial economy for this Court to rule on Ganz's Motion to Dismiss before proceeding with issues involving class certification such as the instant Motion. B. Interim Lead Counsel Is Not Necessary To Protect The Interests Of Putative Class Members

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Federal Rule of Civil Procedure 23(g) authorizes a court to designate interim counsel during the pre-certification period "if necessary to protect the interests of the putative class." Fed. R. Civ. P. 23(g)(2)(A) Advisory Committee Notes of 2003 amends.; see also White v. TransUnion, LLC, 239 F.R.D. 681, 683 (C.D. Cal. 2006). Nuts for Candy's Motion generally states two reasons why The Cotchett Firm should be appointed interim lead counsel: (1) to "assist in streamlining the conduct of this complex litigation;" (Motion at 2:12-13) and (2) to "insure that the putative class action will be managed from the outset by a law firm with experience in prosecuting complex antitrust actions in federal
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court and specifically the Northern District of California." (Motion at 3:2-5). Neither of the purported grounds have any merit, let alone warrant this Court taking the extraordinary step of appointing The Cotchett Firm interim lead counsel. Contrary to Nuts for Candy's assertion, appointment of interim lead counsel is more likely to complicate this litigation, as opposed to "assist in streamlining" it. Motion at 2:12-13. Those cases in which interim counsel is appointed "are typically those in which a large number of putative class actions have been consolidated or are otherwise pending before a single court." White, 239 F.R.D. at 683 (emphasis added). If the lawyer who filed the lawsuit is the only lawyer seeking appointment as class counsel, the appointment of interim class counsel is unnecessary because the pre-class-certification work is generally handled by that attorney. See Parrish v. National Football League Players, Inc., 2007 LEXIS 43732 at *9, 25-26 (N.D. Cal. June 4, 2007). Here, there are not multiple actions pending before the same court; rather, there is a single action pending in this Court. Formal appointment of interim class counsel is not needed to insure that The Cotchett Firm is acting in the best interests of the putative class as a whole. As counsel of record for the putative class, The Cotchett Firm must act in the best interests of the class as a whole, regardless of formal appointment as interim class counsel. Fed. R. Civ. P. 23(g)(2)(A), Advisory Committee Notes of 2003 amends. Thus, Nuts for Candy's assertion that the appointment of interim counsel is necessary to "insure that the putative class action will be managed from the outset by a law firm with experience in prosecuting complex antitrust actions in federal court and specifically the Northern District of California" (Motion, 3:2-5) is not grounds to appoint The Cotchett Firm as lead counsel at this juncture in the proceedings. Critical for its Motion, Nuts for Candy assumes that the putative class will be certified. As evidenced by Ganz's Motion to Dismiss, this is not a foregone conclusion. Nuts for Candy's opposition to Ganz's Motion is due August 19. Subsequently, the Court will determine whether this action should proceed at all. For this reason alone, Plaintiff's Motion should be denied.

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IV.

CONCLUSION One word sums up why Plaintiff's Motion should be denied. That word is premature.

Accordingly, Nuts for Candy's Motion to appoint The Cotchett Firm as interim lead counsel should be denied.

Dated: August 8, 2008

Respectfully submitted, BAKER & HOSTETLER LLP LISA I. CARTEEN BRUCE O. BAUMGARTNER ROBIN E. HARVEY LEE H. SIMOWITZ

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/s/ Lisa I. Carteen Lisa I. Carteen Attorneys for Defendants GANZ, INC. and GANZ U.S.A., LLC

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LISA I. CARTEEN, Bar No. 204764 BAKER & HOSTETLER LLP 12100 Wilshire Boulevard, 15th Floor Los Angeles, California 90025-7120 Telephone: 310.820.8800 Facsimile: 310.820.8859 Email: [email protected] BRUCE O. BAUMGARTNER, Bar No. 0025701 (Pro Hac Vice) ROBIN E. HARVEY, Bar No. 0014183 (Pro Hac Vice) BAKER & HOSTETLER LLP 312 Walnut Street, Suite 3200 Cincinnati, Ohio 45202-4072 Telephone: 513.929.3400 Facsimile: 513.929.0303 Email: [email protected] [email protected] LEE H. SIMOWITZ, Bar No. 185728 (Pro Hac Vice) BAKER & HOSTETLER LLP 1050 Connecticut Avenue, NW, Suite 1100 Washington, DC 20036-5304 Telephone: 202.861.1500 Facsimile: 202.861.1783 Email: [email protected] Attorneys for Defendants GANZ, INC. and GANZ U.S.A., LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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NUTS FOR CANDY, a Sole Proprietorship, individually and on behalf of all others similarly situated, Plaintiff, v. GANZ, INC. and GANZ U.S.A., LLC, Defendants.

Case No. CV 08-2873 JSW DECLARATION OF LISA I. CARTEEN IN SUPPORT OF DEFENDANTS GANZ, INC. AND GANZ U.S.A., LLC'S OPPOSITION TO PLAINTIFF'S MOTION FOR APPOINTMENT OF INTERIM LEAD COUNSEL [Filed concurrently herewith Defendants' Opposition to Plaintiff's Motion for Appointment of Interim Lead Counsel and [Proposed] Order in support thereof] Date: Time: Judge: Ctrm: October 10, 2008 9:00 a.m. Hon. Jeffrey S. White Courtroom 2, 17th Floor

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DECLARATION OF LISA I. CARTEEN IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR APPOINTMENT OF INTERIM LEAD COUNSEL

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I, Lisa I. Carteen, declare as follows: 1. I am an attorney duly licensed and authorized to practice before this Court. I am a

partner in the law firm Baker & Hostetler LLP, attorneys of record for Defendants GANZ, INC. and GANZ U.S.A., LLC ("Defendants") in the above matter. I make this declaration, based on my personal knowledge, in support of Defendants' Opposition to Plaintiff's Motion for Appointment of Interim Lead Counsel ("Motion"). If called upon to do so, I could and would personally and competently testify to the following facts. 2. I have reviewed the Court's docket in the matter of Cortes County Stores, Inc.,

d/b/a Freetown Trading Post v. Ganz, Inc. and Ganz U.S.A., LLC, United States District Court for the District of Massachusetts, Civil Action No. 08-11184-RGS (the "Massachusetts Case") and determined that Plaintiff's counsel has not filed a motion for appointment of interim lead counsel. 3. I have reviewed the Court's docket in the matter of Scott and Sherri Comstock

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d/b/a/ The Cheshire Cat and The Spotted Crocodile v. Ganz, Inc., and Ganz U.S.A., LLC, United States District Court for the Northern District of Illinois, Civil Action No. 08-CV-04167 (the "Illinois Case") and determined that Plaintiff's counsel has not filed a motion for appointment of interim lead counsel. 4. Attached hereto as Exhibit A is a true and correct copy of the Court's docket in the

Massachusetts Case. 5. Illinois Case. 6. Attached hereto as Exhibit C is a true and correct copy of Plaintiff's Motion for Attached hereto as Exhibit B is a true and correct copy of the Court's docket in the

Transfer and Consolidation of Related Actions to the Northern District of California Pursuant to 28 U.S.C. § 1407 For Coordinated or Consolidated Pretrial Proceedings ("Plaintiff's Motion for Transfer").

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DECLARATION OF LISA I. CARTEEN IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR APPOINTMENT OF INTERIM LEAD COUNSEL

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7.

Attached hereto as Exhibit D is a true and correct copy of a letter from the Judicial

Panel on Multidistrict Litigation dated July 30, 2008 providing notice of the Panel's filing of Plaintiff's Motion for Transfer. I declare under the penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on August 8, 2008, in Los Angeles, California.

/s/ Lisa I. Carteen Lisa I. Carteen
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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NUTS FOR CANDY, a Sole Proprietorship, individually and on behalf of all others similarly situated, Plaintiff, v. GANZ, INC. and GANZ U.S.A., LLC, Defendants.

Case No. CV 08-2873 JSW [PROPOSED] ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF INTERIM LEAD COUNSEL [Filed concurrently herewith Defendants' Opposition to Plaintiff's Motion for Appointment of Interim Lead Counsel and Declaration of Lisa I. Carteen in Support thereof Date: Time: Judge: Ctrm: October 10, 2008 9:00 a.m. Hon. Jeffrey S. White Courtroom 2, 17th Floor

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TO ALL PARTIES AND THEIR COUNSEL OF RECORD: The Motion of Plaintiff Nuts for Candy ("Plaintiff") for Appointment of Interim Lead Counsel, came on regularly for hearing by the Court on October 10, 2008 at 9:00 a.m. before the Honorable Jeffrey S. White. Plaintiff was represented by Joseph Cotchett and Steven Williams. Defendants Ganz, Inc. and Ganz U.S.A., LLC ("Defendants") were represented by Bruce O. Baumgartner and Robin E. Harvey. Based upon the briefs, arguments of counsel and all other matters presented to the Court, the Court finds as follows: 1. Federal Rule of Civil Procedure 23(g) authorizes a court to designate interim

counsel during the pre-certification period if necessary to protect the interests of the putative class. Fed. R. Civ. P. 23(g)(2)(A), Advisory Committee Notes of 2003 Amendments; 2. The appointment of interim counsel is typically only necessary when there are

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multiple putative class actions that have been consolidated or are otherwise pending before the same court with different plaintiffs' counsel. White v. TransUnion, LLC, 239 F.R.D. 681, 683 (C.D. Cal. 2000); 3. Currently before this Court, there is only one pending class action complaint and

the Cotchett Firm represents the putative class members in this action; 4. As such, the Cotchett Firm must act in the best interests of the class as a whole and

appointment as interim counsel is unnecessary; 5. 6. The pending actions in other jurisdictions are not relevant to this Court's inquiry; Further, in light of Defendants' pending Motion to Dismiss, appointment of

interim counsel is premature and unnecessary. THEREFORE, IT IS HEREBY ORDERED that: 1. Plaintiff's Motion for Appointment of Interim Lead Counsel is denied.

Dated: ________________________

______________________________________ HONORABLE JEFFREY S. WHITE UNITED STATES DISTRICT COURT JUDGE

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