1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 LAW OFFICES OF RONALD JASON PALMIERI~ P.C. Ronald Jason Palmieri (CA Bar No. 96953) 1644 North Orange Grove Avenue Los Angeles, CA 90046 TELEPHONE: (323) 882-8225 FACSIMILE: (323) 882-8208 lawofcsrjp(laol. com WILDMAN, HARROLD, ALLEN & DIXON LLP Carole E. Handler (CA Bar No. 129381) 9665 Wilshire Boulevard, Suite 200 Beverly Hills CA 90212 TELEPHONE: (310) 860-8705 FACSIMILE: (310) 860-3805 handler(lwzldman. com WILDMAN, HARROLD, ALLEN & DIXON LLP Peter N. Moore (admitted pro hac vice) 225 West Wacker Drive, Suite 2800 Chicago, IL 60606- 1229 TELEPHONE: (312) 201-2000 FACSIMILE: (312) 201-2555 pm oore(lwzldm an. com Attorneys for Defendant REUNION.COM, INC. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA VIOLETTA HOANG, LIVIA HSIAO, and MICHAEL BLACKSBURG, and MATTHEW HALL, individually and on behalf of a class of similarly situated persons, Plaintiffs, No. 3:08-cv-3518 MMC DEFENDANT'S REPLY IN SUPPORT OF MOTION To CERTIFY MARCH 31,2010 ORDER FOR INTERLOCUTORY REVIEW PURSUANT TO 28 U.S.C. § 1292(B) Date: June 11,2010 Time: 9:00 a.m. Judge: Hon. Maxine Chfisney Courtroom 7 (19 Floor) v. REUNION.COM, INC., a California corporation, 22 Defendant. 23 24 25 26 27 28 DEFENDANT'S REPL YIN SUPPORT OF MOTION TO CERTIFY MARCH 31,2010 ORDER FOR INTERLOCUTORYREVIEWPURSUANTT02SUS.C. § 1292(B) NO.3:0S-cv-351SMMC 2078345 Case3:08-cv-03518-MMC Document125 Filed05/28/10 Page1 of 14 1 TABLE OF CONTENTS2 Pa2:e 3 ARGUMENT...............................................................................................................4 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. SUBSTANTIAL GROUNS FOR DIFFERENCE OF OPINION EXIST AS RECOGNIZED BY THIS COURT, PLAINTIFFS' OWN ARGUMNTS BEFORE THE NINTH CIRCUIT, AN BETWEEN THE STATE AND FEDERAL COURTS......................................................................................... 4 II. CERTIFICATION OF THE CORE LEGAL ISSUES WILL LEAD TO A SPEEDIER RESOLUTION THAN PROCEEDING WITH PROLONGED POTENTIALL Y UNECES SAR Y CLAS S D ISCO VERY .............................. 9 CONCLUSION......................................................................................................... 1 1 DEFENDANT'S REPL YIN SUPPORT OF MOTION TO CERTIFY MARCH 31,2010 ORDER FOR INTERLOCUTORYREVIEWPURSUANTT02SU.S.C. § 1292(B) NO.3:0S-cv-351SMMC Case3:08-cv-03518-MMC Document125 Filed05/28/10 Page2 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Pa2:e(s) Cases APCC Servs., Inc. v. AT & T CorlZ., 297 F. Supp. 2d 101 (D.D.C. 2003).................................................................... 10 Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., . No. 01-2821,2004 WL 838160 (N.D. CaL. April 19,2004) .................................8 Gordon v. Virtumundo, Inc., 575 F .3d 1040 (9th Cir. 2010)..................................................................... passim Hightower v. Schwarzenegg§!, No. 04-06028,2009 WL 3756342 (E.D. CaL. Nov. 6,2009) ................................ 9 Hypertouch v Azoogle, No. 09-15943 (9th Cir. 2009) ................................................ 1, 5 In re C673eF~21nlg2Ös(9~giei:il982)............................................................................. 10 In re Cintas Corp. Overtime Pay Arbitration Litgation, 2007 WL 1302496 (N.D. CaL. May 2,2001) ...................................................... 10 Milbert v. Bison Laboratories, 60 F.2d 431 (3d Cir. 1958).................................................................................10 Omeg4~oF~~¡348e( 4th ~i;:2åd6f~~.~~~'. .~~~..~...................................................... 1, 3, 6 S.A. ex reI. L.A. v. Tulare County Offce of Educ., No. 08-1215,2009 WL 331488 (E.n. CaL. Feb. 10,2009) ...................................9 Stuart v. RadioShack Corporation, No. C-07-4499 EMC, 2009 WL 1817007 (N.D. CaL. June 25, 2009) ...............4, 5 United3~~~~2~7~~e(9c¡hCi~. Tr~gí)~............................................................................. 10 Statutes 15 U.S.C. § 7706(g)(1) .................................................................................................. 5 15 U.S.C. § 7707............................................................................................................ 3 17 U.S.C. § 7706............................................................................................................ 6 28 U.S.C. 1292(b).......................................................................................................... 3 11 DEFENDANT'S REPL YIN SUPPORT OF MOTION TO CERTIFY MARCH 31,2010 ORDER FOR INTERLOCUTORYREVIEWPURSUANTT02SU.S.C. § 1292(B) NO.3:0S-cv-351SMMC Case3:08-cv-03518-MMC Document125 Filed05/28/10 Page3 of 14 1 REPL Y 2 In their opposition, Plaintiffs misinterpret case law and distort the parties' 3 positions and arguments, all to obfuscate and confuse the fact that, as they themselves 4 have recognized, there is substantial disagreement as to the core legal issues raised by 5 Defendant's motion. 1 Contrary to Plaintffs' gross oversimplifications, the controlling 6 legal issues are far from settled in federal or in state court. Most tellingly, Plaintiffs' 7 own counsel recognizes that fact when, in their own brief to the Court of Appeals for 8 the Ninth Circuit, they argue that Plaintiffs' complaint in another case "does not come 9 close to stating a cause of action for fraud or any other tort," and must be preempted 10 because "CAN-SPAM's preemption clause was intended to bar states from regulating 1 1 commercial email other than pursuant to 'traditional tort theories such as claims arising 12 from fraud or deception,' Gordon, 595 F.3d at 1063), citing Omega, 459 F.3d at 156." 13 (See Declaration of Carole Handler, Exhibit A (Appellees' Joint Answering Brief in 14 Hypertouch v. Azoogle, No. 09-15943 (9th Cir. Oct. 21, 2009)), at 41, hereinafter 15 "Hypertouch Brief'). Even more remarkably, in Azoogle, Plaintiffs' counsel adopt the 16 identical interpretation of the leading cases which support Defendant, an interpretation 17 which they oppose here. Nothing could better demonstrate the existence of the 18 substantial disagreement that cries out for an interlocutory determination. 19 Contrary to Plaintiffs' arguments in their opposition, this is not posturing, nor a 20 renewed attempt to get sanctions. When the Court reviewed Defendant's Sanctions 21 Motion, it found that "because no circuit court, to date, has addressed the primary issue 22 presented herein, specifically, whether a state statute prohibiting the making of a 23 materially false statement in a commercial e-mail, but not requiring a showing of actual 24 reliance on such statement, is preempted," no sanctions were appropriate. In fact, this is 25 the core issue before this Court as to whether a controversy exists as to the law. That 26 27 28 i Plaintiffs apparently concede that the issues raised by Defendant's motion are controlling questions oflaw and do not oppose this portion of Defendant's motion. i DEFENDANT'S REPL YIN SUPPORT OF MOTION TO CERTIFY MARCH 31,2010 ORDER FOR INTERLOCUTORYREVIEWPURSUANTT02SU.S.C. § 1292(B) NO.3:0S-cv-351SMMC Case3:08-cv-03518-MMC Document125 Filed05/28/10 Page4 of 14 1 issue should be resolved before this case needlessly proceeds further. 2 Plaintiffs' own counsel simply cannot argue in this Court that the law is 3 sufficiently clear to defeat Defendant's motion and simultaneously argue to the Ninth 4 Circuit in their briefs that the law is in question. It is simply impossible that both 5 arguments can be advanced at the same time, in the same circuit, before the same court, 6 and presented by the same lawyers. If Defendant did not prove its point as to a 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 substantial difference of view in its own arguments, Plaintiffs' counsel's contradictions prove it. See F.R.C.P. 1 l(b )(2) ("By presenting to the court a pleading, written motion, or other paper... an attorney... certifies that. . the claims defenses, and other Ie gal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law"). As Plaintiffs' counsel say, as officers of this Court and the Ninth Circuit, in their own recently filed brief, the issue is far from resolved: "CAN-SPAM's preemption clause was intended to bar states from regulating commercial email other than pursuant to 'traditional tort theories such as claims arising from fraud or deception,' Gordon, 595 F.3d at 1063), citing Omega, 459 F.3d at 156." See Hypertouch Brief, at 41. Next, Plaintiffs fail even to mention in passing the critical factual differences for both standing and preemption between this case and every other such case decided to date - namely that Plaintiffs are consumers and, as such, damages cannot be presumed for them in the same way that they can for an Internet Service Provider. Allegations of damage by individual consumers obviously must be tested under a different standard than claims from an ISP that unwanted mail is clogging its system. Finally, Plaintiffs misapply and misinterpret this Court's March 31, 2010 Order ("March 31 Order," Docket No. 107) and the Ninth Circuit's holding in Gordon v. Virtumundo, Inc., 575 F.3d 1040 (9th Cir. 2010) ("Virtumundo"), in an effort to convince this court that no controlling legal issue remains to be addressed and that the 2 DEFENDANT'S REPL YIN SUPPORT OF MOTION TO CERTIFY MARCH 31,2010 ORDER FOR INTERLOCUTORYREVIEWPURSUANTT02SU.S.C. § 1292(B) NO.3:0S-cv-351SMMC Case3:08-cv-03518-MMC Document125 Filed05/28/10 Page5 of 14 1 latter ruling has already resolved all of the issues raised by the instant motion. Contrary 2 to Plaintiffs' disingenuous distortions, neither the March 31 Order, nor Virtumundo 3 resolve the disagreement over the key issues presented here - whether Plaintiffs, who 4 are consumers and not ISPs, have standing to assert their state law claims in the 5 absence of allegations of reliance and resulting harm, and whether Plaintiffs' state law 6 claims are preempted by the CAN-SPAM Act (15 U.S.C. § 7707) ("CAN-SPAM") by 7 virtue of their failure to allege reliance and resulting harm. Acting as if the pleading 8 rules were infinitely elastic, Plaintiffs ignore the fact that their own counsel, by taking 9 contrary positions in an appeal to the Ninth Circuit in another case that they are 10 currently pursuing, recognize that difference. 1 1 Plaintiffs also misrepresent Defendant's brief as a focused attempt to challenge 12 Virtumundo, which it is anything but. Far from it. Indeed in its briefs regarding 13 Virtumundo (Docket Nos. 102, 105), Defendant candidly stated its belief, still held 14 today, and endorsed by Plaintiffs' counsel in Azoogle, that the Ninth Circuit's decision 15 supports, rather than undercuts, Defendant's position in this case. After all, 16 Virtumundo adopted, to a word, the position of the Fourth Circuit in Omega World 17 Travel v. Mummagraphics, Inc., 469 F.3d 348 (4th Cir. 2006) which was the main 18 authority this Court relied upon in its pre-Virtumundo dismissal orders. It was 19 Virtumundo 's silence as to the controlling issues in this case, rather than its statements, 20 that caused this Court to reconsider its prior decision, thus further crystallizing the fact 21 that differences of opinion can and do exist as to the meaning of Virtumundo and CAN- 22 SP AM preemption in the consumer class action context and necessitating the 23 interlocutory review sought by Defendant here. 24 In sum, this Court must reject Plaintiffs' misreading of the applicable law and 25 distortion of the operative facts. When that is done, Defendant respectfully submits, 26 this case becomes an exemplary candidate for certification under 28 U.S.C. 1292(b). 27 28 3 DEFENDANT'S REPL YIN SUPPORT OF MOTION TO CERTIFY MARCH 31,2010 ORDER FOR INTERLOCUTORYREVIEWPURSUANTT02SU.S.C. § 1292(B) NO.3:0S-cv-351SMMC Case3:08-cv-03518-MMC Document125 Filed05/28/10 Page6 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARGUMENT I. SUBSTANTIAL GROUNDS FOR DIFFERENCE OF OPINION EXIST AS RECOGNIZED BY THIS COURT. PLAINTIFFS' OWN ARGUMENTS BEFORE THE NINTH CIRCUIT. AND BETWEEN THE STATE AND FEDERAL COURTS Substantial grounds for difference of opinion do not exist solely by virtue of a difference of opinion among judicial bodies, contrary to what Plaintiffs would have this Court believe. (Plaintiffs' Opposition at 5); but see Stuart v. RadioShack Corporation, No. C-07-4499 EMC, 2009 WL 1817007, *3 (N.D. CaL. June 25, 2009) (holding that it is still possible to show substantial ground for a difference of opinion even when there is no case law on the relevant legal issue before the Court). Here, Defendant has shown that substantial grounds for difference of opinion exist by virtue of: (i) the Court's reversal in its March 31, 2010 Order of four of its own prior decisions on these issues, notwithstanding that the precedent upon which it had originally relied (Mummagraphics) was adopted by the Ninth Circuit as its own; (ii) the Court's repeated recognition that this area of law is "unsettled"; (iii) Plaintiffs' counsels' own conflicting representations of "controlling" and "settled" law on this exact issue before different courts; and (iv) conflicting decisions within the federal courts, within the state courts and between the federal and state courts. These disagreements require certification. First, counsel for Plaintiffs' continued representations on both sides of the bar on the controlling legal issues does, contrary to their representations, support the existence of substantial grounds for difference for opinion. Plaintiffs argue that this is permitted advocacy, but the issue is not simply their Janus-like adoption of two positions at once or whether flexible loyalties on a dispositive issues raises ethical questions. Plaintiffs ignore that, at this stage, the question is not whether Plaintiffs' counsel's representations are relevant to the ultimate issue, but whether they tend to show substantial grounds for difference of opinion. As noted above, counsel for Plaintiffs 4 DEFENDANT'S REPL YIN SUPPORT OF MOTION TO CERTIFY MARCH 31,2010 ORDER FOR INTERLOCUTORYREVIEWPURSUANTT02SU.S.C. § 1292(B) NO.3:0S-cv-351SMMC Case3:08-cv-03518-MMC Document125 Filed05/28/10 Page7 of 14 1 have appeared only recently before the Ninth Circuit in Hypertouch v Azoogle, No. 09- 2 15943 (9th Cir. 2009) (argued and submitted on April 13, 2010), to represent the exact 3 counter position to what they advocate here. See Declaration of Peter Moore in Support 4 of Defendant's Response to Plaintiff s Supplemental Brief Regarding the Virtumundo 5 Decision, Exhibit 4 (Docket No. 106-4). Plaintiffs' counsels' appellate brief in 6 Hypertouch expressly argues that claims lacking allegations of reliance or damage are 7 preempted by CAN-SPAM. Id. While the court's decision in Hypertouch remains 8 pending, there is clearly a difference of opinion within Plaintiffs' own attorneys, not to 9 mention the Court's. Examples of such differences may be considered to determine 10 whether substantial grounds for difference of opinion exist. See Stuart v. RadioShack 11 Corporation, 2009 WL 1817007, at *3. 12 Second, Plaintiffs make short shrift of one of the key distinctions between the 13 instant case and that of the other cases Plaintiffs parade before the Court, burying its 14 discussion in the middle of a paragraph to better mask its importance. (Plaintiffs' 15 Opposition, at 7). As Plaintiffs are well aware, this case involves consumer claims 16 asserted by individual consumers, while all the other cases decided to date involve 17 service provider claims. Service provider plaintiffs are treated differently under CAN- 18 SPAM (see 15 U.S.C. § 7706(g)(1), limiting standing to "Internet access service" 19 providers ("IAS providers")) and have at least a plausible likelihood of substantial 20 injury (see 15 U.S.C. § 7706(g)(1)). Plaintiffs incorrectly argue that Defendant 21 provides no information about this "plausible likelihood of substantial injury." In 22 Virtumundo, the service provider plaintiff alleged a "clogg(ing)" of his e-mail system 23 and other related harms. 575 F.3d at 1055. This "clogging" of e-mail systems by virtue 24 of the alleged spam e-mails represents the type of injury that is conceivably plausible -- 25 at least for Aricle III standing. And, contrary to Plaintiffs' representation, the Court 26 merely noted that Gordon was not deceived by the e-mails, it never stated he suffered 27 no harm whatsoever. Whether the analysis undertaken in prior cases differs for 28 5 DEFENDANT'S REPL YIN SUPPORT OF MOTION TO CERTIFY MARCH 31,2010 ORDER FOR INTERLOCUTORYREVIEWPURSUANTT02SU.S.C. § 1292(B) NO.3:0S-cv-351SMMC Case3:08-cv-03518-MMC Document125 Filed05/28/10 Page8 of 14 1 consumers as compared to service providers, especially given that CAN-SPAM itself 2 expressly recognizes this distinction, is a controlling question of law about which a 3 difference of opinion may exist. See 17 U.S.C. § 7706 (limiting standing under CAN- 4 SP AM to Federal Trade Commission, certain state and federal agencies, state attorneys 5 general, and IAS providers adversely affected by violations of the CAN-SPAM Act); 6 Virtumundo, 575 F.3d at 1049-50 (citing statute for same principle). 7 Third, Plaintiffs incorrectly argue that Defendant disapproves of Virtumundo. 8 (Plaintiffs' Opposition, at 1). As observed, this is a deliberate misstatement. Defendant 9 has always advanced that Virtumundo reaffirmed and bolstered the decision from the 10 Fourth Circuit in Omega World Travel v. Mummagraphics, Inc., 469 F.3d 348 (4th Cir. 11 2006) (hereinafter "Mummagraphics"), upon which this Court relied in its earlier 12 rulings, and therefore supported those rulings. (See Defendant's Supp. Brief in Support 13 of Dismissal of Plaintiffs' First Amended Complaint, Docket No. 102, at 2). As this 14 Court is aware, the Ninth Circuit in Virtumundo referred to, considered, and adopted the 15 analysis in Mummagraphics in reaching its own conclusions. It is precisely this 16 discrepancy between this Court's prior rulings based on Mummagraphics, and the 17 Court's subsequent reliance on Virtumundo to reach the opposite conclusion, that serves 18 as one of the myriad examples of the differences of opinion on the controlling legal 19 issues. 20 Finally, Plaintiffs spill much ink purporting to explain how Virtumundo decides 21 the controlling legal issues presented by the instant motion and thus represents binding 22 precedent refuting Defendant's arguments. (Plaintiffs' Opposition, at 5-7). Plaintiffs 23 then argue that Defendant's failure to discuss Virtumundo in any detail or distinguish it 24 from the instant case renders Defendant's arguments toothless. By holding up this 25 straw man argument, Plaintiffs hope to distract the Court from the fact that as 26 Defendant has argued, the issues resolved in Virtumundo do not resolve the issues 27 raised in this case. 28 6 DEFENDANT'S REPL YIN SUPPORT OF MOTION TO CERTIFY MARCH 31,2010 ORDER FOR INTERLOCUTORYREVIEWPURSUANTT02SU.S.C. § 1292(B) NO.3:0S-cv-351SMMC Case3:08-cv-03518-MMC Document125 Filed05/28/10 Page9 of 14 1 The plain fact is that Virtumundo did not address the controlling legal issues 2 raised by this motion. Specifically, as the Court is well aware, Virtumundo decided the 3 preemption question in favor of the defendant, yet did so based on the lack of 4 materiality to the alleged deception, rather than on the lack of reliance and harm as this 5 Court's prior orders had done. The Ninth Circuit commented, only in passing, that 6 Gordon admitted he was not deceived by, and did not rely upon, the e-mails, but as 7 Defendant has said at length, Gordon claimed he was a service provider, not a mere 8 consumer, and thus his potential damage (and therefore his standing to sue) was derived 9 not from personal deceit or loss but from harm to his business. Nothing more can be 10 discerned from the Ninth Circuit's opinion. That Court had whatever reasons it had for 11 resolving the case on the grounds that it chose, but to take this silence and conclude 12 from it that the Ninth Circuit has already ruled for Plaintiffs, which is all but what 13 Plaintiffs' counsel argue, is intellectually unsupportable. 14 Perhaps emboldened by the Court's March 31 Order, Plaintiffs stretch their 15 misinterpretations and misrepresentations of Virtumundo even further than they did in 16 their initial briefing. Plaintiffs claim that the Virtumundo plaintiff failed to demonstrate 17 any harms from the emails there at issue, yet because the Ninth Circuit still addressed 18 the merits of the plaintiff s claims, the Court must have recognized that standing existed 19 in that case. (Plaintiffs' Opposition at 6). Plaintiffs also concede that, as this Court 20 observed, while the Virtumundo Court never directly addressed Article III standing, had 21 the Virtumundo plaintiff lacked standing, the Virtumundo court would not have 22 proceeded to address the merits of the claim. As discussed in Defendant's previously 23 submitted briefs, however, the critical difference with the Virtumundo plaintiff - a 24 purported service provider - was that it plainly alleged "clogg(ing)" of his e-mail 25 system and other related harms. 575 F.3d at 1055. This discussion of harm actually 26 arose in the context of CAN SP AM's "adverse effect" requirement, and the Court found 27 merely that these alleged harms were insufficient to satisfy the standing threshold 28 7 DEFENDANT'S REPL YIN SUPPORT OF MOTION TO CERTIFY MARCH 31,2010 ORDER FOR INTERLOCUTORYREVIEWPURSUANTT02SU.S.C. § 1292(B) NO.3:0S-cv-351SMMC Case3:08-cv-03518-MMC Document125 Filed05/28/10 Page10 of 14 1 established by the CAN SP AM as a statutory matter, primarily because Gordon had not 2 established himself as a legitimate service provider. Here, there can be no similar 3 presumption of harm. 4 Similarly attenuated is Plaintiffs' claim that the Virtumundo decision somehow 5 decisively supports their claim against preemption here, especially since the Ninth 6 Circuit held that the Virtumundo plaintiffs claims were preempted. 575 F.3d at 1064. 7 In so holding, the Ninth Circuit focused correctly on the fact that the plaintiff s claims 8 were for immaterial errors. Id. While the Ninth Circuit did note that Gordon was not 9 deceived by the e-mails, they did not say that he suffered no harm whatsoever - which 10 is why the Court decided the case on materiality grounds, rather than lack of damage. 11 Id. at 1059-64. As this Court admitted, the Court in Virtumundo did not directly 12 address squarely the issue whether Plaintiffs must allege they relied to their detriment 13 on the alleged false statements in defendant's e-mails.(March310rder.atl0. n. 5). 14 And surely, this inference by the Court here does not support Plaintiffs argument that 15 Virtumundo represents controlling and precedential authority on the issue. 16 Not surprisingly, the cases Plaintiffs cite in support of its legal propositions on 17 this issue - that controlling Ninth Circuit precedent renders any authority from other 18 jurisdictions immaterial - are cited out of context and do not support Plaintiffs' ultimate 19 proposition. (Plaintiffs' Opposition at 5). First, Envtl. Prot. Info. Ctr. v. Pac. Lumber 20 Co., No. 01-2821, 2004 WL 838160, *4 n.8 (N.D. CaL. April 19, 2004), does not 21 support the proposition that in all instances a decision by the Ninth Circuit renders 22 consideration of any other authority impossible. Envtl. Prot. Info. Ctr. v. Pac. Lumber 23 Co. stands for the entirely underwhelming proposition that where the Ninth Circuit 24 expressly disagrees with opinions from other circuits, the District Court is bound by that 25 decision to ignore that authority. Here, Virtumundo cited Mummagraphics with 26 approval and stated no express disagreement with any of the other sources cited by 27 Defendant in support of its motion. 28 S DEFENDANT'S REPL YIN SUPPORT OF MOTION TO CERTIFY MARCH 31,2010 ORDER FOR INTERLOCUTORYREVIEWPURSUANTT02SU.S.C. § 1292(B) NO.3:0S-cv-351SMMC Case3:08-cv-03518-MMC Document125 Filed05/28/10 Page11 of 14 1 Similarly, Hightower v. Schwarzenegger, No. 04-06028, 2009 WL 3756342, *4 2 (E.D. CaL. Nov. 6,2009) and S.A. ex reI. L.A. v. Tulare County Offce of Educ., No. 08- 3 1215, 2009 WL 331488, *5 (E.D. CaL. Feb. 10, 2009) stand for a fairly obvious 4 conclusion. If an appellate court when reviewing a request for certification completely 5 and unequivocally agrees with the decision reached by the district court, there obviously 6 can be no substantial grounds for disagreement. They do not support the proposition 7 that the district court may itself, in advance, reach a determination that the Ninth Circuit 8 would completely and unequivocally agree with its decision. 9 10 II. CERTIFICATION OF THE CORE LEGAL ISSUES WILL LEAD TO A 11 SPEEDIER RESOLUTION THAN PROCEEDING WITH PROLONGED 12 POTENTIALLY UNNECESSARY CLASS DISCOVERY 13 Plaintiffs argue that only by charging blithely ahead with assuredly costly and 14 exhaustive class based discovery will the parties reach a speedy resolution to this case. 15 Plaintiffs' hinging of their argument that speedy resolution comes only through costly 16 and protracted class discovery cannot pass the straight face test. 17 In support of this position, Plaintiffs suggest that the delays inherent in any 18 appeal may in fact lead to loss of documentation and memory as to the events at issue. 19 Yet in the same breath they acknowledge Defendant's preservation obligations, and 20 ignore that the factual issues in this case are unlikely to involve witness memories or 21 deteriorating evidence. This argument is completely unmerited. 22 The truly dispositive threshold issue of standing is conceded to be at issue. Yet, 23 Plaintiffs would have Defendants engage in mass discovery on behalf of an uncertain 24 number of putative class members in a Court that may not - and at one time believed it 25 did not - have subject matter jurisdiction. In light of the alternatives, and with 26 substantial grounds for difference of opinion as to the controlling legal issues, 27 certification is the far superior and more efficient alternative. See In re Cintas Corp. 28 9 DEFENDANT'S REPL YIN SUPPORT OF MOTION TO CERTIFY MARCH 31,2010 ORDER FOR INTERLOCUTORYREVIEWPURSUANTT02SU.S.C. § 1292(B) NO.3:0S-cv-351SMMC Case3:08-cv-03518-MMC Document125 Filed05/28/10 Page12 of 14 1 Overtime Pay Arbitration Litgation, No. M:06-cv-01781-SBA, 2007 WL 1302496, *1 2 (N.D. Cal. May 2, 2007) (certifying order for appeal on issue of subject matter 3 jurisdiction because cases would have to be dismissed for lack of jurisdiction if the 4 order was reversed by the Ninth Circuit, and because all future orders in the transferor 5 courts would have to be nullified); In re Cement Antitrust Litgation, 673 F.2d 1020, 6 1026 (9th Cir. 1982) (certification is appropriate when "allowing an interlocutory appeal 7 would avoid protracted and expensive litigation,") (citing United States Rubber Co. v. 8 Wright, 359 F.2d 784, 785 (9th Cir. 1966) (per curiam); Milbert v. Bison Laboratories, 9 260 F.2d 431,433-435 (3d Cir. 1958)). See also, APCC Servs., Inc. v. AT & T Corp., 10 297 F. Supp. 2d 101, 107 (D.D.C. 2003) ("where proceedings that threaten to endure for 11 several years depend on an initial question of jurisdiction ... certification may be 12 justified"). 13 Finally, Plaintiffs imply that much of the blame for the delay in prosecuting the 14 instant action lies with Defendant, and that Defendant seeks nothing more than to 15 continue to delay this action. (Plaintiffs' Opposition, at 12). The docket in this action 16 shows that the opposite is true. It has been Plaintiffs tortured pleadings, frivolous 17 motions, and other procedural maneuvers that have led to the delay in moving forward. 18 Plaintiffs have continually refused to acknowledge their deficient pleadings and assert 19 the substantive allegations necessary to respond to the Court's repeated dismissal 20 orders, despite this Court's allowance of amendments with each such dismissaL. They 21 cannot now blame Defendant for their strategic choices. 22 In any event, this Court itself has suggested on its own motion that until the core 23 legal issues were resolved, this case should be stayed and invited briefing on the 24 subject. We once again request that if this motion is not granted that such a stay be 25 imposed. 26 27 28 10 DEFENDANT'S REPL YIN SUPPORT OF MOTION TO CERTIFY MARCH 31,2010 ORDER FOR INTERLOCUTORYREVIEWPURSUANTT02SU.S.C. § 1292(B) NO.3:0S-cv-351SMMC Case3:08-cv-03518-MMC Document125 Filed05/28/10 Page13 of 14 1 CONCLUSION 2 For the foregoing reasons, the Court should certify its March 31,2010 Order for 3 interlocutory review, or issue a stay as prayed for in Defendant's moving papers. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: May 28,2010 Respectfully submitted, sf Ronald Jason Palmieri One of the Attorneys for Defendant LAW OFFICES OF RONALD JASON PALMIERI~ P.C. Ronald Jason Palmieri (CA Bar No. 96953) 1644 North Orange Grove Avenue Los Angeles, CA 90046 TELEPHONE: (323) 882-8225 FACSIMILE: (323) 882-8208 lawofcsrip(§aol.com WILDMAN, HARROLD, ALLEN & DIXON LLP Carole E. Handler (CA Bar No. 129381) 9665 Wilshire Boulevard, Suite 200 Beverly Hills CA 90212 TELEPHONE: ~3 10) 860-8705 FACSIMILE: 310) 860-3805 handler(§wil man.com WILDMAN, HARROLD, ALLEN & DIXON LLP Peter N. Moore (admitted pro hac vice) 225 West Wacker Drive, Suite 2800 Chicago, IL 60606- 1229 TELEPHONE: (312) 201-2000 FACSIMILE: (312) 201-2555 pmoore(§wildman.com Attorneys for Defendant REUNION.COM, INC. 2078345 11 DEFENDANT'S REPL YIN SUPPORT OF MOTION TO CERTIFY MARCH 31,2010 ORDER FOR INTERLOCUTORYREVIEWPURSUANTT02SU.S.C. § 1292(B) NO.3:0S-cv-351SMMC Case3:08-cv-03518-MMC Document125 Filed05/28/10 Page14 of 14
