Free Statement of Recent Decision - District Court of California - California

Case 3:07-cv-04732-MJJ

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STROOCK & STROOCK & LAVAN LLP JULIA B. STRICKLAND (State Bar No. 083013) STEPHEN J. NEWMAN (State Bar No. 181570) 2029 Century Park East, Suite 1800 Los Angeles, California 90067-3086 Telephone: 310-556-5800 Facsimile: 310-556-5959 [email protected] Attorneys for Defendants CHASE BANK U.S.A., N.A., CHASE MANHATTAN BANK U.S.A., N.A. d.b.a. CHASE BANK U.S.A., N.A. and JPMORGAN CHASE & CO. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

DAVID J. LEE and DANIEL R. LLOYD, as individuals and, on behalf of others similarly situated,

) ) ) ) Plaintiffs, ) ) vs. ) ) CHASE MANHATTAN BANK U.S.A., N.A., ) a Delaware corporation, CHASE ) MANHATTAN BANK U.S.A., N.A. d.b.a. ) CHASE BANK U.S.A., N.A., JPMORGAN ) CHASE & CO., a Delaware corporation; and ) DOES 1 through 100, inclusive, ) ) Defendants. ) ) )

Case No. CV-07-4732 MJJ THE HON. MARTIN J. JENKINS DEFENDANTS' FURTHER STATEMENT OF ADDITIONAL AUTHORITY IN SUPPORT OF MOTION TO DISMISS DATE: January 29, 2008 TIME: 9:30 a.m. CTRM: 11, 19th Floor 450 Golden Gate Ave. San Francisco, CA 94102

Pursuant to Civil Local Rule 7-2(d), Defendants hereby advise the Court of further authority bearing on the Motion to Dismiss scheduled for hearing on January 29, 2008. A. Lee v. Capital One Recent proceedings before Judge Marilyn Patel, David J. Lee et al. v. Capital One Bank, Case No. CV-07-4599 (MHP) (N.D. Cal. Sep. 5, 2007), bear on the issues before the Court here. In that case, plaintiffs, who are the same Plaintiffs here, challenge the legality of their cardmember agreements with Capital One. The gravamen of the complaint against Capital One is, just like here, that the agreements in question contained allegedly unconscionable arbitration
DEFENDANTS' FURTHER STATEMENT OF ADDITIONAL AUTHORITY IN SUPPORT OF MOTION TO DISMISS ­ Case No. CV-07-4732 MJJ

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Case 3:07-cv-04732-MJJ

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provisions. Plaintiffs argue the same legal theory of liability asserted in this action, namely, that they did not get the full value of their credit agreements with Capital One because the agreements contained the allegedly unconscionable arbitration provisions. Plaintiffs, however, never have invoked the arbitration provision. Nor do they identify any dispute related to charges on their credit cards. At a case management conference, Judge Patel sua sponte raised the question of whether a "case or controversy" exists. (Ex. A, 3:15.) Suggesting strongly that Plaintiffs lack Article III standing, she asked, "Why don't you wait until there is a dispute? Many of us hold credit cards for years, and a lot of people hold them for years and never have a dispute with their credit card company. . . . You're creating a dispute where it seems there is none." (Id. at 4:13-19.) Judge Patel encouraged the defendants to file a motion to dismiss or for judgment on the pleadings, and suggested that Plaintiffs' counsel may be sanctioned under F.R.C.P. 11 if he persists in the litigation. (See id. at 5:7-20.) "If you are going to proceed on this, you proceed at your peril," Judge Patel told Plaintiffs' counsel. (Id. at 7:2-3.) "I'm very disturbed that this kind of lawsuit is proliferating around the courthouse here." (Id. at 7:9-11.) These same concerns should inform the Court in assessing Defendants' pending Motion to Dismiss here. Defendants make the same standing arguments, against the same Plaintiffs. As recognized by Judge Patel, strong arguments exist in favor of dismissal because there is no actual case or controversy. Dated: January 9, 2008 Respectfully submitted, STROOCK & STROOCK & LAVAN LLP JULIA B. STRICKLAND STEPHEN J. NEWMAN By: /s/ Stephen J. Newman Stephen J. Newman

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Attorneys for Defendants CHASE BANK U.S.A., N.A., CHASE MANHATTAN BANK U.S.A., N.A. d.b.a. CHASE BANK U.S.A., N.A. and JPMORGAN CHASE & CO. -2LA 51018022v1

DEFENDANTS' FURTHER STATEMENT OF ADDITIONAL AUTHORITY IN SUPPORT OF MOTION TO DISMISS ­ Case No. CV-07-4732 MJJ