Free Declaration in Support - District Court of California - California

Case 4:07-cv-04785-SBA

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Joseph R. Saveri (State Bar No. 130064) [email protected] Michele C. Jackson (State Bar No. 090807) [email protected] Robert J. Nelson (State Bar No. 132797) [email protected] Eric B. Fastiff (State Bar No. 182260) [email protected] Nimish R. Desai (State Bar No. 244953) [email protected] LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 Attorneys for Plaintiff Richard Thal and the Proposed Class UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

RICHARD THAL, 15 Plaintiff, 16 v. 17 HITACHI AMERICA, LTD., et al., 18 Defendants. 19 20 21 22 23 24 25 26 27 28 I, Joseph R. Saveri, declare as follows: 1.

Case No. C-07-4785-BZ DECLARATION OF JOSEPH R. SAVERI IN SUPPORT OF PLAINTIFF RICHARD THAL'S NOTICE OF CROSS-MOTION AND CROSS-MOTION FOR APPOINTMENT OF LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP AS INTERIM LEAD OR CO-LEAD COUNSEL IN DIRECT PURCHASER CASES (RULE 23(g)(2)(A)); RESPONSE TO MOTION FOR APPOINTMENT OF DIRECT PURCHASER PLAINTIFFS' INTERIM CO-LEAD COUNSEL Date: Time: Courtroom: October 30, 2007 1:00 p.m. 3, Third Floor

The Honorable Bernard Zimmerman

I am a partner of Lieff Cabraser, Heimann & Bernstein, LLP ("Lieff

Cabraser"), and a member in good standing of the State Bar of California. I am one of the
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CASE NO. C-07-4785-BZ

DECLARATION OF JOSEPH R. SAVERI IN SUPPORT OF PLAINTIFF RICHARD THAL'S NOTICE OF CROSS-MOTION

Case 4:07-cv-04785-SBA

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counsel for Plaintiff Richard Thal in this action. I make this declaration based on my own personal knowledge. If called upon to testify, I could and would testify competently to the truth of the matters stated herein. 2. I have 20 years of experience in trial courts and before courts of appeal in

the areas of antitrust and intellectual property law, as well as complex and class action litigation in the areas of securities, employment, consumer protection and general commercial litigation. I have been hired by the City and County of San Francisco to prosecute claims on behalf of a class of purchasers of electrical carbon products and on behalf of the People of the State of California to pursue civil penalties in claims under the California Unfair Competition Law. Currently, I serve as lead counsel in federal antitrust litigation pending in this district against a number of banks comprising the Star ATM Network, alleging that those banks conspired to fix the price of ATM interchange fees. In re ATM Fee Antitrust Litigation (N.D. Cal.). I also serve or have served as co-lead counsel in a number of other antitrust and other unfair competition cases. Marchbanks Truck Service, Inc. v. Ceridian Corp., Civil Action No. 07-cv-1128 (E.D. Pa.); eMag Solutions, LLC, et al. v. Todo Kogyo Corp., et al., Case No. C-02-1611 (PJH) (N.D. Cal.) (pending); McIntosh, et al. v. Monsanto Co., et al., Case No. 4:01CV65(RWS) (E.D. Mo.) (confidential settlement); In re Lupron Marketing and Sales Practices Litig., MDL No. 1430 (D. Mass.) ($150 million settlement); Coalition for Elders' Independence, Inc., et al. v. Biovail Corp., et al., Case No. CV023320, (San Joaquin County Sup. Ct.) (pending); Pharmaceutical Cases I, II, and III ($170 million settlement), as well as numerous other class actions pending in state courts throughout the United States. I have served in leadership roles in numerous other cases as well. I have substantial jury trial experience in antitrust cases, including serving as a member of the trial team in lawsuits involving the price-fixing of brand name prescription drugs, carpets and commissions paid to travel agents. I am one of the authors of California Antitrust Law published by the State Bar of California Antitrust and Unfair Competition Section and a contributor to the California Class Action treatise. I am also a frequent lecturer, author and panelist on antitrust and complex litigation matters.

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CASE NO. C-07-4785-BZ

DECLARATION OF JOSEPH R. SAVERI IN SUPPORT OF PLAINTIFF RICHARD THAL'S NOTICE OF CROSS-MOTION

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3.

Lieff Cabraser, headquartered in San Francisco, is one of the country's

largest law firms devoted exclusively to representing plaintiffs, particularly in class actions and mass tort litigation. The firm has substantial and extensive experience in complex antitrust litigation, and has for over thirty years successfully represented plaintiffs in antitrust and other complex class action litigation throughout the country. Lieff Cabraser is one of only three law firms in the country to be included in "The Plaintiffs' Hot List," by the National Law Journal in each of the last four years. Despite its colloquial title, the factors informing the "Hot List" selection are carefully considered, focusing on "an impressive record of victories over the preceding five years." A Different Sort of Trial for Plaintiffs, The National Law Journal, Oct. 9, 2006. In previous years, The National Law Journal has recognized the successes of Lieff Cabraser's antitrust attorneys in the federal litigation In re Buspirone Antitrust Litigation and record-setting achievements in Natural Gas Antitrust Cases and Wholesale Electricity Antitrust Cases I & II. 4. Attached hereto as Exhibit A is a true and correct copy of Lieff Cabraser's

firm resume and attorney biographies. As described in the firm's resume, courts throughout the country have appointed Lieff Cabraser as class counsel in well over 200 class actions and have recognized the qualifications of Lieff Cabraser in appointing the firm lead counsel in numerous cases. Recently, in the area of antitrust, Lieff Cabraser was appointed to serve as Lead Counsel in In re TFT-LCD Antitrust Litig., MDL No. 1827(SI) (N.D. Cal.) (pending); In re ATM Fee Antitrust Litig., C-04-2676 (CRB) (N.D. Cal.) (pending); Marchbanks Truck Service, Inc. v. Ceridian Corp., Civil Action No. 07-cv-1128 (E.D. Pa.) (pending); Natural Gas Antitrust Cases I-IV, J.C.C.P. No. 4221 (Cal. Supr. Ct.) (Co-Lead counsel in record $1.5 billion settlement on behalf of California natural gas businesses and consumers); In re Buspirone Antitrust Litig., MDL No. 1340 (S.D.N.Y.) (Co-Lead counsel in $90 million settlement); In re Compact Disc Antitrust Litig., MDL No. 1216 (C.D. Cal.) (Co-Lead counsel in $50 million settlement. As Lieff Cabraser's credentials demonstrate, its attorneys have led and participated in a significant number of antitrust cases and other complex litigation including matters taken successfully to trial. In addition, courts and bar associations throughout the country have acknowledged Lieff Cabraser
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DECLARATION OF JOSEPH R. SAVERI IN SUPPORT OF PLAINTIFF RICHARD THAL'S NOTICE OF CROSS-MOTION

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attorneys through leadership appointments, committee service, and awards of excellence. This unsurpassed record in California and throughout the country demonstrates Lieff Cabraser's adequacy to represent class members and proves its ability to represent its clients effectively. 5. Attached as Exhibit "B" is the Order by Judge Illston appointing Lieff

Cabraser one of two Interim Co-Lead counsel for the putative direct purchaser class in In re TFTLCD Antitrust Litig., MDL No. 1827 (N.D. Cal.) ("TFT-LCD"). Together with Co-Lead Counsel Pearson Simon, Lieff Cabraser has been able to organize the litigation effectively and efficiently. Integral to this process has been the coordination of plaintiffs' counsel, taking best advantage of their resources, experience and skills. A number of the other firms in this case, including Saveri & Saveri also serve as plaintiffs' counsel in TFT-LCD. Together with Pearson Simon, Lieff Cabraser has been able to organize the litigation effectively and efficiently. Integral to this process has been the coordination of plaintiffs' counsel, taking best advantage of their resources, experience and skills. 6. In In re Static Random Access Memory Litig., MDL No. 1819 (N.D. Cal.)

("SRAM"), Judge Wilken appointed Lieff Cabraser to a four firm steering committee to run the case along with a lead counsel. Both SRAM and TFT-LCD involve many of the same defendants as the Flash Memory litigation before the Court. 7. Lieff Cabraser's experience is not limited to the investigation and filing of

cases. Lieff Cabraser has an unsurpassed record of prosecution of complex litigation, up to and including trial on the merits. See, e.g., Claghorn v. Edsaco Ltd., C-98-3039-SI (securities fraud suit resulting in a jury verdict of $170.7 million, later settled). Lieff Cabraser has successfully prosecuted numerous other complex matters before the Court. Satchell v. FedEx Express, C-03-2659-SI ($54.9 million settlement of race discrimination class action lawsuit), Gonzalez v. Abercrombie & Fitch Stores, Inc. C-03-2817-SI (settlement valued at approximately $50 million in employment discrimination class action), Zuckman v. Allied Group, C-02-5800-SI (over $8 million settlement of wage and hour class action), Hanlon v. Chrysler Corp., No. C-95-2010CAL (N.D. Cal.) (over $200 million settlement in product defect class action), Butler v. Home Depot, Inc., Case No. 94-4335-SI ($87.5 million settlement and injunctive relief in employment
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discrimination class action lawsuit), Gross v. Mobil, C-95-1237-SI (settlement valued at over $12.5 million in consumer protection case). The most recent successful trial produced a $55 million verdict in a complex product liability wrongful death suit. Mraz v. DaimlerChrysler Corp., BC332487 (Cal. Sup. Ct. 2007). Upon information and belief, the case is now on appeal, after the firm successfully opposed a series of post-trial motions by the defendant. 8. On information and belief, at a June 14, 2002 hearing in the matter of

Claghorn v. Edsaco Ltd., C-98-3039-SI (N.D. Cal.), this Court commented on Lieff Cabraser's representation in the Edsaco matter, "Counsel for the plaintiffs did a very good job in a very tough situation of achieving an excellent recovery for the class here....There were some complicated questions....It was an excellent result for the class . . . . [T]he recovery that was achieved for the class in this second trial is remarkable, almost a hundred percent." 9. On information and belief, at a January 14, 1998 hearing in the matter of

Butler v. Home Depot, Inc., Case No. 94-4335-SI (N.D. Cal.), this Court stated that Lieff Cabraser and co-counsel's settlement of the Home Depot case provided "a very significant monetary payment to the class members for which I think they should be grateful to their counsel . . . . Even more significant is the injunctive relief that's provided for . . . ." 10. On information and belief, at hearing in the matter of Butler v. Home

Depot, Inc., Case No. 94-4335-SI (N.D. Cal.), this Court stated that the injunctive relief obtained has been a "win/win . . . for everyone, because . . . the way the Decree has been implemented has been very successful and it is good for the company as well as the company's employees." 11. On information and belief, at a hearing in the matter of Zuckman v. Allied

Group, C-02-5800-SI (N.D. Cal.), this Court commended counsel for their "really good lawyering" and stated that they did "a splendid job on this" case. 12. Following a competitive bidding process, the Court appointed Lieff

Cabraser as Lead Counsel for the Lead Plaintiff and the class of investors in In re Network Associates, Inc. Securities Litigation, No. C-99-1729-WHA (N.D. Cal.). On information and belief, in reviewing the proposed settlement, Judge William H. Alsup observed, "[T]he class was well served at a good price by excellent counsel . . . We have class counsel who's one of the most
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DECLARATION OF JOSEPH R. SAVERI IN SUPPORT OF PLAINTIFF RICHARD THAL'S NOTICE OF CROSS-MOTION

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foremost law firms in the country in both securities law and class actions. And they have a very excellent reputation for the conduct of these kinds of cases and their experience and views . . ." 13. Lieff Cabraser served as Liaison Counsel for the Colorado Public

Employees' Retirement Association and the California State Teachers' Retirement System, and the class they represented in In re California Micro Devices Securities Litigation, No. C-94-2817VRW (N.D. Cal.). On information and belief, the Court approved settlements which provided class members an almost complete return on their losses. Commenting in 2001 on Lieff Cabraser's work in Cal Micro Devices, U.S. District Court Judge Vaughn R. Walker stated, "It is highly unusual for a class action in the securities area to recover anywhere close to the percentage of loss that has been recovered here, and counsel and the lead plaintiffs have done an admirable job in bringing about this most satisfactory conclusion of the litigation." Judge Walker later observed that the nearly 100% recovery was "pretty remarkable. In these cases, 25 cents on the dollar is considered to be a magnificent recovery, and this is [almost] a hundred percent." 14. In Frank v. United Airlines, Inc., No. C-92-0692 MJJ (N.D. Cal.). Lieff

Cabraser and co-counsel obtained a $36.5 million settlement in February 2004 in a gender discrimination case brought on behalf of female flight attendants. Former U.S. District Court Judge Charles B. Renfrew (ret.), who served as a mediator in the case, stated, "As a participant in the settlement negotiations, I am familiar with and know the reputation, experience and skills of lawyers involved. They are dedicated, hardworking and able counsel who have represented their clients very effectively." U.S. District Judge Martin J. Jenkins, in granting final approval to the settlement, found "that the results achieved here could be nothing less than described as exceptional," and that the settlement "was obtained through the efforts of outstanding counsel." Judge Jenkins observed that lawyers at Lieff Cabraser "in particular, are very sophisticated in handling matters of this type." 15. The City and County of San Francisco has retained Lieff Cabraser to

represent it in price-fixing cases brought against manufacturers of electrical carbon products in In re Electrical Carbon Products Antitrust Litig., MDL No. 1514 (D.N.J.) and Electrical Carbon Products Cases, J.C.C.P. 4294 (Cal. Sup. Ct.). Similarly, Lieff Cabraser has been retained to
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handle complex securities cases on behalf of a number of institutions, such as in the matters of Alaska State Department of Revenue v. AOL/Time Warner, No. 1JU-04-503 (Alaska Sup. Ct.) (co-counsel with the Alaska Attorney General in a non-class securities fraud action filed in state court which produced a $50 million settlement), Merrill Lynch Fundamental Growth Fund v. McKesson HBOC, Inc., No. 02-405792 (Cal. Sup. Ct.) (counsel for two Merrill Lynch mutual funds in a private lawsuit resulting into a confidential settlement, the terms of which were satisfactory to the Merrill Lynch Funds). 16. The statements in this paragraph are made on information and belief. For

over twenty-five years, Michele Jackson has focused her practice on complex business litigation, including antitrust, intellectual property, unfair competition, business torts, and fraud litigation. She has litigated cases in industries ranging from computer software, brand name prescription drugs, packaged and frozen food, food preparation equipment, shipping, motion pictures, educational publishing and games, food additives, chemicals, motor vehicles, cosmetics, electronic equipment, office products to financial printing. Ms. Jackson has successfully handled a range of complex issues in these cases, including price fixing, monopolization, distribution and supply disputes, challenges to mergers and other company control issues, misappropriation of intellectual property, trade secrets, employment of competitors' personnel, and trademark infringement. Ms. Jackson played a leading role in the antitrust litigation against Microsoft Corporation in multiple states and was an architect of the 2006 nationwide (federal court and state court) settlements of indirect purchaser antitrust litigation against 3M Company. She is currently overseeing the firm's participation in In re Static Random Access Memory Antitrust Litig., MDL No. 1819, a case involving many of the same defendants and issues as the instant matter. Ms. Jackson has published articles and has spoken on antitrust issues at numerous education programs and seminars for antitrust practitioners. She has been honored as a recipient of the California State Bar Board of Governors Award. 17. The statements in this paragraph are made on information and belief.

Robert J. Nelson has been practicing law in California for two decades, and has been a partner at Lieff Cabraser for the last 13 years. Among his litigation successes, Mr. Nelson managed the
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firm's litigation against the tobacco industry on behalf of Attorneys General, resulting in a settlement of $246 billion, far and away the largest settlement in litigation history. Mr. Nelson has served as lead class counsel or participated in a number of consumer protection cases, including False Claims Act lawsuits and many others involving defective products. Mr. Nelson also served in 2007 as lead trial counsel in a complex product liability action against DaimlerChrysler that resulted in a jury verdict of over $55 million. Mraz v. DaimlerChrysler Corp., BC332487 (Cal. Sup. Ct. 2007). Mr. Nelson is a frequent lecturer at litigation conferences sponsored by Mealey's and other CLE providers. He has been named a Northern California "Super Lawyer" by Law and Politics magazine during each of the four years (2004-2007) that survey has been performed. 18. The statements in this paragraph are made on information and belief. Eric

Fastiff is a partner at Lieff Cabraser. Mr. Fastiff has over 10 years of experience in representing plaintiffs in numerous antitrust cases including In re Vitamins Antitrust Litig., In re Carpets Antitrust Litig., In re Compact Disc Antitrust Litig. and the Natural Gas Antitrust Cases. Mr. Fastiff has represented individuals, consumer groups, business entities, and government entities. He serves at the primary Editor of California Class Actions Practice and Procedure and has spoken at education programs about complex discovery practices. 19. The statements in this paragraph are made on information and belief.

Nimish Desai is an Associate at Lieff Cabraser and practices in the antitrust, consumer protection and mass tort groups. Mr. Desai has been heavily involved in MDL practice and procedure before the Court through his participation in In re TFT-LCD Antitrust Litig., MDL No. 1827, In re Static Random Access Memory Antitrust Litig., MDL No. 1819 and In re Bextra and Celebrex Products Liability Litig., MDL No. 1699 (N.D. Cal.). 20. On behalf of its client, Mr. Thal, Lieff Cabraser has thoroughly

investigated the facts alleged in its client's complaint. This investigation has included analysis of the flash memory market, the market participants, pricing, likely defendants and potential consultants and experts. Lieff Cabraser has also investigated the flash memory products and the chain of distribution.
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DECLARATION OF JOSEPH R. SAVERI IN SUPPORT OF PLAINTIFF RICHARD THAL'S NOTICE OF CROSS-MOTION

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21.

In the interests of advancing this litigation, Lieff Cabraser has commenced

service of process on foreign defendants located in Japan, South Korea and Taiwan. That process includes translating the complaint, summons and all other documents to be served on the defendants and applying for issuance of letters rogatory. This includes translation of all documents to be served into the foreign defendants' respective languages. By starting this lengthy process now, the firm hopes to save the Court and the Class from various administrative problems that may arise when a significant number of the defendants have not been served. Lieff Cabraser will be prepared to report on the progress of these efforts at the October hearing, if the Court so wishes. 22. Lieff Cabraser is ready, willing, and able to commit the resources

necessary to litigate this case vigorously. Lieff Cabraser has already committed the time and efforts of three of its experienced attorneys and two research paralegals to the legal research and fact investigation of this case, and will continue to do so. Lieff Cabraser has the financial resources necessary to represent the class. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 25th day of September, 2007 at San Francisco, California. /s/ Joseph R. Saveri Joseph R. Saveri

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DECLARATION OF JOSEPH R. SAVERI IN SUPPORT OF PLAINTIFF RICHARD THAL'S NOTICE OF CROSS-MOTION