MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
PHILADELPHIA
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HEWLETT-PACKARD COMPANY'S OPPOSITION TO THE REQUEST TO FIND DECKER ACTION UNRELATED TO NVIDIA
GPU LITIGATION (08-CV-04312-JW)
HOWARD HOLDERNESS (SBN 169814)
MORGAN, LEWIS & BOCKIUS LLP
One Market, Spear Street Tower
San Francisco, CA 94105
Telephone: 415.442.1000
Facsimile: 415.442.1001
E-mail: hholderness@morganlewis.com
ROBERT A. PARTICELLI (PAB 82651) (Pro Hac Vice)
MORGAN, LEWIS & BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103
Telephone: 215.963.5000
Facsimile: 215.963.5001
E-mail: rparticelli@morganlewis.com
Attorneys for Defendant
HEWLETT-PACKARD COMPANY
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
The NVIDIA GPU Litigation
Case No. 08-cv-04312-JW
HEWLETT-PACKARD COMPANY'S
OPPOSITION TO THE REQUEST TO
FIND THE DECKER ACTION
UNRELATED TO THE NVIDIA GPU
LITIGATION
Case5:08-cv-04312-JW Document72 Filed03/05/09 Page1 of 6
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
PHILADELPHIA
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HEWLETT-PACKARD COMPANY'S OPPOSITION TO THE REQUEST TO FIND DECKER ACTION UNRELATED TO NVIDIA
GPU LITIGATION (08-CV-04312-JW)
Hewlett-Packard Company (“HP”) respectfully submits this opposition to Plaintiff
Katherine E. Decker’s (“Plaintiff Decker’s”) “request” to “unrelate” Decker v. Hewlett-Packard
Co., Case No. 09-cv-00295-JW (“Decker”) following the Court’s sua sponte ruling that Decker is
related to and should be consolidated with the several earlier-filed, already-related actions and
consolidated under the above-captioned docket (together, the “Consolidated Actions”). Plaintiff
Decker’s request is without merit and this Court should not disturb its prior Order for the reasons
set forth below.
I. INTRODUCTION
On February 25, 2009, this Court found sua sponte that Decker is related to the
Consolidated Actions and should be consolidated as part of the Nvidia GPU Litigation. See
Docket No. 63, attached as Exh. 1 hereto. Plaintiff Decker, who’s putative class action complaint
is not only the last to be filed among the nearly one dozen Consolidated Actions but is also sixth
in line in terms of the complaints naming HP as a defendant, now asks the Court to vacate its
earlier finding and “unrelate” Decker from the group. Plaintiff Decker cannot escape the reality
that her claims are subsumed by the several, earlier-filed putative class actions asserted against
HP. In order of filing, these cases are:
1) Inicom Networks, Inc. v. NVIDIA Corp., et al., No. 08-cv-04332-JW (“Inicom”);
2) Nat’l Bus. Officers Assoc., Inc. v. NVIDIA Corp., et al., No. 08-cv-05179-JW
(“NBOA”);
3) Olivos v. NVIDIA Corp., et al., No. 08-cv-05520-JW (“Olivos”);
4) Waidzunas, et al. v. Hewlett-Packard Co., Case No. 08-cv-05081-JW
(“Waidzunas”); and
5) LeBlanc v. Hewlett-Packard Co., No. 09-cv-00328-JW (“LeBlanc”).1
Indeed, like the cases preceding it, Decker alleges claims against HP on behalf of a
1 Nakash v. NVIDIA Corp., No. 08-cv-04312-JW (“Nakash”), the earliest-filed of the
Consolidated Actions, has been designated “lead case.” See Docket No. 63 (Exh. 1).
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HP'S OPPOSITION TO THE REQUEST TO FIND
DECKER ACTION UNRELATED TO NVIDIA GPU
LITIGATION (08-CV-04312-JW)
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putative nationwide class of consumers who purchased overlapping computer models that
allegedly have exhibited coincidental performance deficiencies. Moreover, while Plaintiff
Decker argues that her claim is limited to alleged wireless internet connection problems, the same
alleged problems are part of the allegations of the remaining actions in the Consolidated Action.
Thus, as to HP, the claims asserted by Plaintiff Decker are not only substantially similar to the
multiple other already-related cases, but they also are asserted on behalf of a nearly identical
putative class.
Plaintiff Decker’s remaining arguments are equally unavailing. First, not only have
substantially similar legal theories already been advanced against HP by the earlier-filed
Consolidated Actions naming HP as a defendant, but any lingering issues can be addressed by
way of the forthcoming consolidated amended complaint. Moreover, Plaintiff Decker’s
contention that relationship and consolidation are improper because some of the Consolidated
Actions name Nvidia as an additional defendant and/or include non-HP computers is simply
illogical given that such variations did not preclude relationship or consolidation of the other
actions. The Court has concluded through its sua sponte Order that the result here should be no
different. Plaintiff Decker offers no reason to deviate from that ruling.
II. ARGUMENT
Under Local Rule 3-12, an action is related to another when:
(1) The actions concern substantially the same parties, property,
transaction or event; and
(2) It appears likely that there will be an unduly burdensome
duplication of labor and expense or conflicting results if the cases
are conducted before different Judges.
Civ. L.R. 3-12(a).
For the reasons set forth below, Decker fulfills these elements and, therefore, is primed for
relationship with the other Consolidated Actions pursuant to Local Rule 3-12.
Case5:08-cv-04312-JW Document72 Filed03/05/09 Page3 of 6
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HP'S OPPOSITION TO THE REQUEST TO FIND
DECKER ACTION UNRELATED TO NVIDIA GPU
LITIGATION (08-CV-04312-JW)
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A. Decker Involves Substantially the Same Parties and Underlying
Allegations As Inicom And The Already-Related Actions.
The parties in each action are substantially the same. Each plaintiff purports to represent
the interests of an overlapping putative class of consumers who purchased allegedly defective HP
computers. Compare First Amended Inicom Compl. (Docket No. 10) (“Inicom FAC”) at ¶ 1 (“all
consumers who purchased . . . computers containing defective NVIDIA graphic controller chips”)
with Decker Compl. (Exh. 2 hereto) at ¶ 53 (“all other persons in the United States . . . who
purchased or acquired . . . HP laptops”). Indeed, Decker and Inicom, the earliest-filed matter
naming HP as a defendant, each expressly identify the HP Pavilion dv2000, dv6000 and dv9000
series notebooks and Compaq Presario v3000 and v6000 series notebooks as part of the putative
class. Compare Inicom FAC at ¶ 26 with Decker Compl. (Exh. 2) at ¶ 16. The Decker Plaintiff,
therefore, is already a member of the putative Inicom class.
Notwithstanding her preexisting membership in the putative Inicom class, and the fact that
Inicom was marked related with Nakash, et al. weeks before the Decker Complaint was even
filed, Plaintiff Decker also contends that relationship is somehow inappropriate because several of
the Consolidated Actions implicate non-HP computers and defendants. This is a red-herring at
best – relationship is appropriate even where, as here, the defendants in each action are not
identical. See, e.g., Ervin v. Judicial Council of California, No. C 06-7479 CW, 2007 WL
1489165, *2 (N.D. Cal. May 18, 2007) (explaining that cases were substantially similar and
relation proper where “[t]he only difference between the two cases is that . . . Plaintiff added new
parties and causes of action.”). To be sure, these exact variations among the defendants and
computer brands did not hinder relationship and consolidation of the other Nvidia GPU actions.
As the Court has already determined, Decker deserves similar treatment.
Moreover, not only do the already-related and consolidated cases concern substantially the
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HP'S OPPOSITION TO THE REQUEST TO FIND
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LITIGATION (08-CV-04312-JW)
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same parties, but the claims against HP are also predicated on the same underlying conduct. Even
a cursory review of Decker and the other related and Consolidated Actions pending against HP
reveals that the alleged inability on the part of these same notebook computer model families to
detect wireless networks is firmly encompassed by the Nvidia GPU Litigation. Compare Decker
Compl. (Exh. 2) at ¶ 4 (“Specifically, the HP laptops at issue in this Complaint . . . (b) are not
reliable for mobile computing as the internal wireless device is inherently defective making it
impossible to detect and/or use wireless signals) with Inicom FAC at ¶ 28 (alleging, inter alia,
failure to detect wireless networks and related difficulties as symptoms of alleged GPU issue);
LeBlanc Compl. at ¶ 19 (same); NBOA Compl. at ¶ 24 (same); Olivos Compl. at ¶¶ 4-14 (same);
and Waidzunas Compl. at ¶ 17 (same).
Further, allegations that HP failed to disclose these purported performance issues,
including vis-à-vis wireless connectivity difficulties, are included in the earlier-filed actions. See
Inicom FAC at ¶¶ 50-56; Decker Compl. (Exh. 2) at ¶¶ 62-87. Likewise, these cases each allege
that HP breached certain warranties provided with its computers. See, e.g., Decker Compl. (Exh.
1) at ¶¶ 88-100 and Inicom FAC at ¶¶ 57-65.2 Plaintiff Decker’s request should be denied for
these additional reasons as well.
B. Resolution By A Single Judge Would Avoid Duplication of Effort And The
Potential For Conflicting Results.
As discussed above, the allegations in these cases are substantially similar. The putative
classes in each action are virtually identical, with the broader putative class definition asserted in
Inicom and the other already-related actions subsuming Decker, and there is repetition among the
defendants. Consequently, the evidence in each case will focus on: the same computers, many of
the same alleged defects; and other related factual issues. For these reasons too, the legal issues
will coincide.
Accordingly, allowing the parties to proceed on parallel tracks before different Judges in
2 See also Olivos Compl. at ¶¶ 46-76; NBOA Compl. at ¶¶ 52-60; Waidzunas Compl. at ¶¶ 42-46.
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HP'S OPPOSITION TO THE REQUEST TO FIND
DECKER ACTION UNRELATED TO NVIDIA GPU
LITIGATION (08-CV-04312-JW)
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the same District would squander private and judicial resources and create a risk of inconsistent
results. See In re Leapfrog Enter., Inc. Sec. Litig., No. C 03-05421 RMW, 2005 WL 5327775, *1
(N.D. Cal. July 5, 2005) (granting motion for administrative relief and relating cases). By way of
example, in addition to compelling redundant litigation and efforts, doing so could bring about
differing interpretations of the same warranties and/or varying treatment of dispositive issues.
III. CONCLUSION
For the foregoing reasons, HP respectfully requests that this Court deny Plaintiff Decker’s
request to “unrelate” Decker from the remainder of the Nvidia GPU Litigation actions.
Dated: March 5, 2009 Respectfully submitted,
MORGAN, LEWIS & BOCKIUS LLP
By: /s/ Robert A. Particelli
Attorneys for Defendant
HEWLETT-PACKARD COMPANY
Case5:08-cv-04312-JW Document72 Filed03/05/09 Page6 of 6
