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Case5:15-cv-00807-RMW Document29 Filed04/03/15 Page1 of 20

RODGER R. COLE (CSB No. 178865)
rcole@fenwick.com
FENWICK & WEST LLP
Silicon Valley Center
801 California Street
Mountain View, CA 94041
Telephone: 650.988.8500
Facsimile: 650.938.5200

Attorneys for Defendant Superfish, Inc.

Daniel J. Stephenson
DYKEMA GOSSETT LLP
333 South Grand Avenue, Suite 2100
Los Angeles, CA 90071
Phone: (213) 457-1800
Fax: (213) 457-1850
dstephenson@dykema.com

Attorneys for Defendant Lenovo (United States), Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

STERLING INTERNATIONAL
CONSULTING GROUP, on behalf of itself and
all others similarly situated,

Plaintiff,

v.

LENOVO (UNITED STATES) INC.,
LENOVO GROUP LIMITED, and
SUPERFISH INC.,

Defendants.

Case No. 5:15-cv-00807-RMW

DEFENDANTS SUPERFISH, INC.’ S AND
LENOVO (UNITED STATES), INC.’S
NOTICE OF MOTION AND MOTION
FOR STAY AND [PROPOSED] ORDER

Date: May 8, 2015
Time: 9:00 a.m.
Courtroom: 6, 4th Floor
Judge: Hon. Ronald M. Whyte

DFS’ NOTICE OF MOTION AND MOTION
FOR STAY

No. 5:15-cv-00807-RMW

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Case5:15-cv-00807-RMW Document29 Filed04/03/15 Page2 of 20

This document also relates to:

Case No. 5:15- cv-00819-RSW

DAVID HUNTER, individually, and on
behalf of all others similarly situated,

Plaintiff,

v.

LENOVO (UNITED STATES), INC., a
Delaware corporation, and SUPERFISH, INC.,
a Delaware corporation,

Defendants.

This document also relates to:

CHRISTOPHER HALL, MATTHEW
KELSO, MICHAEL MORICI, JAYNE
COSTANZO, RYAN BAUMGARTNER,
LAURA BURNS, THOMAS CARNEY,
BEATRIZ DAVIS, DENNIS HASTY,
WENDY DURAN and GABE DURAN,
individually, and on behalf of all others similarly
situated,

Plaintiff,

v.

LENOVO (UNITED STATES), INC.,
LENOVO GROUP LIMITED and SUPERFISH,
INC.,

Defendants.

Case No. 5:15-cv-00964-RMW

This document also relates to:

Case No. 5:15-cv-01044-RMW

RHONDA ESTRELLA, SONIA FEREZAN,
JOHN WHITTLE, and ALAN WOYT on behalf
of themselves and all others similarly situated,

Plaintiffs,

v.

LENOVO (UNITED STATES), INC. and
SUPERFISH, INC.,

Defendants.

DFS’ NOTICE OF MOTION AND MOTION
FOR STAY

No. 5:15-cv-00807-RMW

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Case5:15-cv-00807-RMW Document29 Filed04/03/15 Page3 of 20

This document also relates to:

Case No. 5:15-cv-01069-RMW

KEN MARTINI, individually and on behalf of
all others similarly situated,

v.

Plaintiff,

LENOVO (UNITED STATES), Inc.
and SUPERFISH, INC.,

Defendants.

This document also relates to:

Case No. 5:15-cv-01113-RMW

JGX, INC. d/b/a LEFTY O’DOUL’S’
individually and on behalf of a class of those
similarly situated,

v.

Plaintiff,

LENOVO GROUP LIMITED, LENOVO
(UNITED STATES), INC., and SUPERFISH,
INC.,

Defendants.

This document also relates to:

Case No. 5:15-cv-01122-RMW

STANLEY D. JOHNSON, individually and on
behalf of all others similarly situated,

v.

Plaintiff,

LENOVO (UNITED STATES), INC.,
LENOVO GROUP LIMITED, and
SUPERFISH, INC.,

Defendants.

DFS’ NOTICE OF MOTION AND MOTION
FOR STAY

No. 5:15-cv-00807-RMW

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Case5:15-cv-00807-RMW Document29 Filed04/03/15 Page4 of 20

This document also relates to:

Case No. 5:15-cv-01125- RMW

MICHAEL SIMONOFF, individually and on
behalf of all others similarly situated,

v.

Plaintiff,

LENOVO (UNITED STATES), INC., and
SUPERFISH, INC.,

Defendants.


This document also relates to:

RUSSELL WOOD and THOMAS WILSON,
individually and on behalf of all others
similarly situated,

v.

Plaintiffs,

LENOVO (UNITED STATES), INC.,
LENOVO HOLDING COMPANY, INC.,
LENOVO GROUP LIMITED, and
SUPERFISH, INC.,

Defendants.

Case No. 5:15-cv-01166-RMW

This document also relates to:

Case No. 5:15-cv-01177-RMW

MICHELLE BEHREN and MARY JANE
BARBOSA, individually and on behalf of all
others similarly situated,

v.

Plaintiffs,

LENOVO (UNITED STATES) INC. and
SUPERFISH INC.,

Defendants.

DFS’ NOTICE OF MOTION AND MOTION
FOR STAY

No. 5:15-cv-00807-RMW

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Case5:15-cv-00807-RMW Document29 Filed04/03/15 Page5 of 20

This document also relates to:

Case No. 5:15-cv-01206-RMW

ROBERT RAVENCAMP, on behalf of
Himself and all others similarly situated,

v.

Plaintiff,

LENOVO (UNITED STATES), INC. and
SUPERFISH, INC.,

Defendants.

This document also relates to:

Case No. 5:15-cv-01270-RMW

SUSAN WEBSTER SCHULTZ, on behalf of
herself and all others similarly situated,

Plaintiff,

v.

LENOVO GROUP LIMITED, LENOVO
(UNITED STATES) INC. and SUPERFISH
INC.,

Defendants.

This document relates to:

Case No. 5:15-cv-01432-RMW

THOMAS KIM, individually, and on behalf of all
others similarly situated,

Plaintiff,

v.

LENOVO (UNITED STATES), INC., a
Delaware corporation, and SUPERFISH, INC., a
Delaware corporation,

Defendants.

DFS’ NOTICE OF MOTION AND MOTION
FOR STAY

No. 5:15-cv-00807-RMW

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Case5:15-cv-00807-RMW Document29 Filed04/03/15 Page6 of 20

This document relates to:

Case No. 5:15-cv-014781

VINCENT WONG and
NAGASUBRAHMANYAM
KUMMARAGUNTA, individually, and on
behalf of all others similarly situated,

Plaintiffs,

v.

LENOVO (UNITED STATES), INC., a
Delaware corporation, and SUPERFISH, INC., a
Delaware corporation,

Defendants.


1 On April 3, 2015, Counsel for Plaintiff Sterling International Consulting Group filed an unopposed motion to relate
the Wong, et al v. Lenovo (United States), Inc., et al. (Case No. 5:15-cv-01478) and Cullifer, et al. v. Superfish, Inc.
et al. (Case No. 5:15-cv-01496) actions to the other N.D. Cal. Lenovo Adware Actions pending before Judge Whyte.
(Sterling, Dkt. No. 28).

DFS’ NOTICE OF MOTION AND MOTION
FOR STAY

No. 5:15-cv-00807-RMW

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Case5:15-cv-00807-RMW Document29 Filed04/03/15 Page7 of 20

This document relates to:

Case No.: 5:15-cv-01496

BILL CULLIFER, LIZ EDWARDS,
DOUGLAS IRWIN, JOSEPH GUERRA,
AUSTIN ARDMAN, HANK BAUMER,
THOMAS BEHRENDT, ALLAN BOGH,
RICHARD BROOKS, JILL CAZAUBON,
JENNIFER COLE, LAUREN DANNHEIM,
JENNIFER DAVIS, EDWARD DRESSEL,
CHRISTOPHER DUNN, DONALD
GEARHART, KENG GEE, BRIAN
GUTTERMAN, HEATHER HARE, JOSE
HIDALGO, NEERAJ KALRA, RYAN
KEMPER, JIM KOPPS, RAJKUMAR
KOTHAPA, MICHELE LARGÉ , ARUL
LOUIS, THOMAS LUCAS, TOM MILLER,
ERIC MORETTI, TREVOR MURDOCK,
TRAVIS PALMER, ELIZABETH PRATT,
ROBERT QAKISH, TINA RICHMAN,
CANDACE ROSE, DANIELLE ROUGIER,
RAY SCHMALZER, ZESHAN SHEIKH,
CHRIS SHOUTS, ALICE SPALITTA,
ZACHARY STEIN, CONNIE SUPERNAULT,
RUSS TAKLE, NATE TALLEY, NIKOLAS
THERIOT, ARIELLA VASQUEZ, KATE
WOODS, KYLE YOUNGS, AND
LIANGFANG ZHAO, INDIVIDUALLY AND
ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED,

Plaintiffs,

vs.
SUPERFISH, INC., and LENOVO (UNITED
STATES), INC.

Defendants.

DFS’ NOTICE OF MOTION AND MOTION
FOR STAY

No. 5:15-cv-00807-RMW

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Case5:15-cv-00807-RMW Document29 Filed04/03/15 Page8 of 20

TABLE OF CONTENTS

Page

I.

II.

III.

IV.

INTRODUCTION ........................................................................................................2

BACKGROUND ..........................................................................................................3

A.

B.

C.

The In re Lenovo Adware Litig. Cases ........................................................3

The Motion for Transfer Pending Before the JPML ...................................3

Proceedings in the N.D. Cal. Lenovo Adware Actions ...............................4

LEGAL STANDARD...................................................................................................5

ARGUMENT................................................................................................................6

A.

The Interests of Judicial Economy in Granting a Short Stay Outweigh
the Negligible Prejudice, If Any, Plaintiffs Might Suffer ...........................6

1.

2.

Denial of a Stay Pending the JMPL’s Determination Would
Lead to an Inefficient Use of Limited Court Resources ..................6

There is a Strong Likelihood of Consolidation and Transfer of
the In re Lenovo Adware Litig. Cases..............................................7

B.

C.

Defendants Will Be Prejudiced Absent A Stay ...........................................8

Plaintiffs Face No Prejudice from the Short Stay Proposed by
Defendants ...................................................................................................8

V.

CONCLUSION.............................................................................................................9

DFS’ NOTICE OF MOTION AND MOTION
FOR STAY

i

No. 5:15-cv-00807-RMW

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Case5:15-cv-00807-RMW Document29 Filed04/03/15 Page9 of 20

TABLE OF AUTHORITIES

Page(s)

CASES

Barnes v. Equinox Grp., Inc.,

No. 10-03586-LB, 2010 WL 5479624 (N.D. Cal. Dec. 30, 2010) .............................................7

Bonenfant v. R.J. Reynolds Tobacco Co.,

No. 07-60301-CIV, 2007 WL 2409980 (S.D. Fla. July 31, 2007) .............................................2

Couture v. Hoffman–La Roche, Inc.,

No. 12–02657–PJH, 2012 WL 3042994 (N.D. Cal. July 25, 2012)...........................................5

Dependable Highway Express, Inc. v. Navigators Ins. Co.,

498 F.3d 1059 (9th Cir. 2007) ....................................................................................................5

Fuller v. Amerigas Propane, Inc.,

Nos. 09-02493-TEH, 09-02616-TEH, 2009 WL 2390358 (N.D. Cal. Aug. 3,
2009)...........................................................................................................................................5

J.W. v. Pfizer, Inc.,

No. 13-00318-YGR, 2013 WL 1402962 (N.D. Cal. Apr. 5, 2013)............................................6

Jones v. Bristol-Myers Squibb Co.,

No. 13-2415-PJH, 2013 WL 3388659 (N.D. Cal. July 8, 2013) ................................................6

Landis v. N. Am. Co.,

299 U.S. 248 (1936)....................................................................................................................5

Little v. Pfizer, Inc.,

No. 14-01177-EMC, 2014 WL 1569425 (N.D. Cal. Apr. 18, 2014)..........................................6

Rifenbery v. Organon USA, Inc.,

No. 13-05463-JST, 2014 WL 296955 (N.D. Cal. Jan. 26, 2014)...........................................5, 6

Rivers v. Walt Disney Co.,

980 F. Supp. 1358 (C.D. Cal. 1997) .......................................................................................6, 7

Tucker v. Organon USA, Inc.,

No. 13-00728-SBA, 2013 WL 22558884, at *1 (N.D. Cal. May 22, 2013)...........................5, 6

STATUTES

28 U.S.C. § 1407...................................................................................................................1, 2, 6, 8

RULES

Federal Rule of Civil Procedure 26(f) ......................................................................................2, 5, 8
DFS’ NOTICE OF MOTION AND MOTION
FOR STAY

No. 5:15-cv-00807-RMW

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Case5:15-cv-00807-RMW Document29 Filed04/03/15 Page10 of 20

Federal Rules of Civil Procedure 16.............................................................................................4, 5

OTHER AUTHORITIES

Manual for Complex Litigation § 20.131 (4th ed. 2004)..................................................................2

DFS’ NOTICE OF MOTION AND MOTION
FOR STAY

iii

No. 5:15-cv-00807-RMW

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Case5:15-cv-00807-RMW Document29 Filed04/03/15 Page11 of 20

NOTICE OF MOTION AND MOTION FOR STAY

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on May 8, 2015, or as soon thereafter as available, in the

courtroom of the Honorable Ronald M. Whyte, located at 280 South 1st Street, San Jose, CA
95113, Defendants Lenovo (United States), Inc. (“Lenovo”) and Superfish, Inc. (“Superfish”)

(collectively, the “Defendants”) will and hereby do move for an order staying all proceedings in

this action and the following fourteen actions related to this action pending the transfer decision

by the Judicial Panel on Multidistrict Litigation (“JPML”):

- Hunter v. Lenovo (United States), Inc., et al., Case No. 5:15- cv-00819-RMW;

- Hall, et al. v. Lenovo (United States), Inc., et al., Case No. 5:15-cv-00964-RMW;

- Estrella, et al. v. Lenovo (United States) Inc., et al., Case No. 5:15-cv-01044-RMW;

- Martini v. Lenovo (United States) Inc., et al., Case No. 5:15-cv-01069-RMW;

-

-

-

JGX, Inc. v. Lenovo Group Ltd., et al., Case No. 5:15-cv-01113-RMW;

Johnson v. Lenovo (United States) Inc., et al., Case No. 5:15-cv-01122-RMW;

Simonoff v. Lenovo (United States) Inc., et al., Case No. 5:15-cv-01125-RMW;

- Wood, et al. v. Lenovo (United States) Inc., et al., Case No. 5:15-cv-01166-RMW;

- Behren, et al. v. Lenovo (United States) Inc., et al., Case No. 5:15-cv-01177-RMW;

- Ravencamp v. Lenovo (United States), Inc., et al., Case No. 5:15-cv-01206-RMW;

-

Schultz v. Lenovo Group Limited, et al., Case No. 5:15-cv-01270-RMW;

- Kim v. Lenovo (United States), Inc., et al., Case No. 5:15-cv-01342-RMW;

- Wong, et al. v. Lenovo (United States), Inc., et al., Case No. 5:15-cv-01478; and

- Cullifer, et al. v. Superfish, Inc. et al., Case No. 5:15-cv-01496.

(collectively, the “N.D. Cal. Lenovo Adware actions”). This Motion is made on the grounds that

stays of proceedings in these actions are necessary and appropriate to achieve the judicial

economies that underlie 28 U.S.C. § 1407.

This Motion is based on this Notice of Motion and Motion, the Memorandum of Points

and Authorities, the Declaration of Molly R. Melcher, and the pleadings and paper on file in this

action, the arguments of counsel, and any other matter that the Court may properly consider.
DFS’ NOTICE OF MOTION AND MOTION
FOR STAY

1

No. 5:15-cv-00807-RMW

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Case5:15-cv-00807-RMW Document29 Filed04/03/15 Page12 of 20

MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION
The N.D. Cal. Lenovo Adware actions are fifteen of twenty-five cases filed in nine

different districts since February 19, 2015, naming Superfish and Lenovo as defendants and

alleging similar claims relating to the operation of Superfish software installed on Lenovo

computers (collectively, the “In re Lenovo Adware Litig. cases”). Nearly all of the In re Lenovo

Adware Litig. cases are currently pending consideration by the JPML on whether they should be

transferred for consolidation and pre-trial coordination, pursuant to 28 U.S.C. § 1407.

In light of the Motion for Transfer and Consolidation pending before the JPML, the

parties in the N.D. Cal. Lenovo Adware actions have agreed to extend the deadline for

Defendants to answer or otherwise respond to the respective complaints until forty-five days after

the JPML issues an order deciding the Motion for Transfer and Consolidation or as otherwise

ordered by the transferee Court if the Motion for Transfer and Consolidation is granted. See

Sterling Int’l Consulting Grp. v. Lenovo (United States) Inc. et al., No. 5:15-cv-00807-RMW;

Dkt. No. 25; see also Declaration of Molly R. Melcher in Support of Defendants’ Motion for Stay

filed herewith (“Melcher Decl.”) at ¶¶ 11, 13, 15-19. However, most Plaintiffs declined to

stipulate to stay the parties’ obligations triggered by the Case Management Conference, currently

scheduled to take place on June 19, 2015, including the parties’ obligations under the Federal

Rules of Civil Procedure 16 and 26(f) and any ADR-related deadlines. See id. at ¶¶ 15, 18, 19.

The statutory goals of centralization under 28 U.S.C. § 1407 are to aid “the convenience

of parties and witnesses” and to “promote the just and efficient conduct” of multiple related

actions. 28 U.S.C. § 1407(a). A transfer order by the JPML is intended “to eliminate duplication

in discovery, avoid conflicting rulings and schedules, reduce litigation cost, and save the time and

effort of the parties, the attorneys, the witnesses, and the courts.” Manual for Complex Litigation

§ 20.131 (4th ed. 2004). Because the goals of the multidistrict litigation statute may be thwarted

by continued litigation during the pendency of a request for transfer, “it is common practice for

courts to stay an action pending a transfer decision by the JPML.” Bonenfant v. R.J. Reynolds

Tobacco Co., No. 07-60301-CIV, 2007 WL 2409980, at *1 (S.D. Fla. July 31, 2007). Because of
DFS’ NOTICE OF MOTION AND MOTION
FOR STAY

No. 5:15-cv-00807-RMW

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Case5:15-cv-00807-RMW Document29 Filed04/03/15 Page13 of 20

the strong probability that the In re Lenovo Adware Litig. cases will be consolidated and

transferred by the JPML, considerations of efficiency, judicial economy, and the avoidance of

inconsistent rulings strongly favor staying this case for a brief period of time until the JPML

renders its decision, which will likely happen by mid-June. For these reasons, there is no basis to

deviate from the common practice of staying these actions.

II.

BACKGROUND

The In re Lenovo Adware Litig. Cases

A.
On February 19, 2015, Reuters published an article suggesting that Superfish software on

Lenovo computers unlawfully intercepted Lenovo customers’ communications, and exposed

these customers to significant security vulnerabilities. Melcher Decl. ¶ 2. The following day a

blog post focusing on these same allegations went viral. Id. In the wake of these allegations,

Plaintiffs began filing a series of lawsuits across the country against Superfish and Lenovo. Id.

There are now fifteen In re Lenovo Adware Litig. cases pending in the Northern District of

California, which proceed contemporaneously with at least ten other cases filed in nine different

districts. Id. at ¶ 3. All twenty-five In re Lenovo Adware Litig. cases raise substantially similar

claims based on virtually identical alleged facts relating to the operation of Superfish software on

Lenovo computers. Id. These lawsuits all center around the allegation that Superfish software

unlawfully intercepted customer communications and undermined the security of online

transactions on Lenovo computers. Id. All actions filed to date seek to represent a class of

consumers who purchased Lenovo computers on which Superfish software was pre-installed.

Superfish and Lenovo are common defendants in each of the twenty-five In re Lenovo Adware

Litig. cases. Id.

The Motion for Transfer Pending Before the JPML

B.
On February 25, 2015, Plaintiff in one of the In re Lenovo Adware Litig. cases pending in

the Eastern District of North Carolina—Pick v. Lenovo (United States), et al., Case No. 15-cv-

00068-D—filed a Motion for Transfer and Consolidation in the Eastern District of North Carolina

in the In re: Lenovo Adware Litig., MDL No. 2624 (“Pick MDL Motion for Transfer”). See

Melcher Decl. ¶ 4. Since then, there have been five responses filed in support of consolidation.
DFS’ NOTICE OF MOTION AND MOTION
FOR STAY

No. 5:15-cv-00807-RMW

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Case5:15-cv-00807-RMW Document29 Filed04/03/15 Page14 of 20

Id. at ¶ 5. Three responses, filed by Lenovo, Superfish, and nineteen named Plaintiffs

respectively, seek transfer to the Northern District of California. Id. One Plaintiff’s response

seeks consolidation in the Southern District of Florida. Id. And one Plaintiff’s response supports

consolidation in the Eastern District of North Carolina. Id. Finally, the Pick Plaintiff filed a reply

to the Pick MDL Motion for Transfer in further support of transfer of the actions to the Eastern

District of North Carolina, or alternatively, to the Northern District of California. Id. at ¶ 6. To

date, no parties have opposed consolidation. Id. at ¶ 7.

The JPML will likely hear and take under submission whether the In re Lenovo Adware

Litig. cases should be consolidated and transferred at the next hearing session scheduled for May

28, 2015. Id. at ¶ 8. A decision whether to transfer and consolidate the In re Lenovo Adware

Litig. cases is expected within seven to ten days following the hearing. Id. at ¶ 9.

Proceedings in the N.D. Cal. Lenovo Adware Actions

C.
Counsel for Defendants and Counsel for Plaintiffs in the N.D. Cal. Lenovo Adware

Actions have been in contact regarding the status of the cases and Defendants’ response

deadlines. Counsel for Plaintiffs in the Hunter v. Lenovo (United States), Inc., et al., Case No.

5:15- cv-00819-RSW, and Kim v. Lenovo (United States), Inc., et al., Case No. 5:15-cv-01342-

RMW actions each agreed to extend Defendants’ response deadlines until forty-five days after the

JPML issues an order deciding the Pick MDL Motion for Transfer, or as otherwise ordered by the

transferee Court if the Pick MDL Motion for Transfer is granted. Melcher Decl. at ¶¶ 11, 16, 18.

Counsel for Plaintiffs Hunter and Kim further agreed to stipulate that the parties’ obligations

under Federal Rules of Civil Procedure 16 and 26(f) and any other pending deadlines shall be

stayed until further order from the Court or the transferee Court if the Pick MDL Motion for

Transfer is granted. Id. Magistrate Judge Cousins granted the order staying the Hunter action on

March 19, 2015. Id. Subsequently, the Hunter action was related to the Sterling International

Consulting Grp. v. Lenovo (United States), Inc., et al. action and assigned to this Court. Id. at ¶

12.

On March 19, 2015, this Court issued the Order Granting Plaintiff’s Administrative

Motion to Consider Whether Cases Should Be Related relating eleven of the N.D. Cal. Lenovo
DFS’ NOTICE OF MOTION AND MOTION
FOR STAY

No. 5:15-cv-00807-RMW

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Case5:15-cv-00807-RMW Document29 Filed04/03/15 Page15 of 20

Adware actions and reassigning them to this Court. Id. at ¶ 12. A Case Management Conference

has been scheduled for June 19, 2015. Id.

Following this Court’s order relating the N.D. Cal. Lenovo Adware actions, Counsel for

Plaintiffs in all of the N.D. Cal. Lenovo Adware Actions have agreed to stipulate to extend

Defendants’ response deadlines. Id. at ¶¶ 11, 13, 15-19. However, most Plaintiffs have been

unwilling to stipulate to stay the parties’ obligations under Federal Rules of Civil Procedure 16

and 26(f) and any other pending deadlines. Id. at ¶¶ 15, 18, 19.

III.

LEGAL STANDARD
A district court’s discretion to stay proceedings “is incidental to the power inherent in

every court to control disposition of the cases on its docket with economy of time and effort for

itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); see also

Tucker v. Organon USA, Inc., No. C 13-00728 SBA, 2013 WL 2255884, at *1 (N.D. Cal. May

22, 2013) (“A district court’s decision to grant or deny a stay is a matter of discretion.”) (citing

Dependable Highway Express, Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007)).

In determining whether a stay is warranted pending the JPML’s determination of a

transfer petition, courts consider: (1) the judicial resources that would be saved by avoiding

duplicative litigation if the cases are in fact consolidated; (2) potential prejudice to the non-

moving party; and (3) hardship and inequity to the moving party if the action is not stayed.

Rifenbery v. Organon USA, Inc., No. 13-CV-05463-JST, 2014 WL 296955, at *1 (N.D. Cal. Jan.

26, 2014) (citing Couture v. Hoffman–La Roche, Inc., No. 12–cv–2657–PJH, 2012 WL 3042994

(N.D. Cal. July 25, 2012)).

Applying these three factors, Courts in the Northern District of California have found

stays to be warranted when a motion for transfer and consolidation is pending before the JPML,

and the case is in its infancy. See, e.g., Fuller v. Amerigas Propane, Inc., Nos. 09-2493 TEH, 09-

2616 TEH, 2009 WL 2390358, at *2 (N.D. Cal. Aug. 3, 2009) (“The decision to issue a stay is

consistent with the rulings of ‘a majority of courts [that] have concluded that it is often

appropriate to stay preliminary pretrial proceedings while a motion to transfer and consolidate is

pending with the MDL Panel because of the judicial resources that are conserved.’”) (citation and
DFS’ NOTICE OF MOTION AND MOTION
FOR STAY

No. 5:15-cv-00807-RMW

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Case5:15-cv-00807-RMW Document29 Filed04/03/15 Page16 of 20

internal quotation marks omitted); Rifenbery, 2014 WL 296955, at *2 (“The potential prejudice to

Plaintiffs that could result from a stay is minimal, as the JPML’s decision is likely to be issued

shortly. On the other hand, Defendants would face the risk of unnecessary proceedings and

inconsistent rulings on recurring questions of law and fact if the case is not stayed.”); J.W. v.

Pfizer, Inc., No. 13-CV-00318-YGR, 2013 WL 1402962, at *4 (N.D. Cal. Apr. 5, 2013); Little v.

Pfizer, Inc., No. C-14-1177 EMC, 2014 WL 1569425, at *3 (N.D. Cal. Apr. 18, 2014).

IV.

ARGUMENT

A.

The Interests of Judicial Economy in Granting a Short Stay Outweigh the
Negligible Prejudice, If Any, Plaintiffs Might Suffer

1.

Denial of a Stay Pending the JMPL’s Determination Would Lead to an
Inefficient Use of Limited Court Resources

The interests of judicial economy strongly favor a stay here, where twenty-five pending

cases raising substantially similar claims against the same defendants are likely to be transferred

for consolidation by the JPML. The purpose of multidistrict litigation is to coordinate the pretrial

management of actions sharing common facts in a just and efficient manner. See 28 U.S.C. §

1407(a). Indeed, “a majority of courts have concluded that it is often appropriate to stay

preliminary pretrial proceedings while a motion to transfer and consolidate is pending with the

MDL Panel because of the judicial resources that are conserved.” Rivers v. Walt Disney Co., 980

F. Supp. 1358, 1362 (C.D. Cal. 1997); see, e.g., Tucker, 2013 WL 2255884, at *2 (“[S]taying the

case and permitting the eventual transfer of the action will promote judicial economy because the

actions raise common issues that can be handled more efficiently through consolidated for

discovery and pretrial proceedings.”); Jones v. Bristol-Myers Squibb Co., No. C 13-2415 PJH,

2013 WL 3388659, at *2 (N.D. Cal. July 8, 2013) (granting motion to stay the proceedings as it

“would promote judicial economy and uniformity by avoiding the possibility of inconsistent

rulings within the Northern District, conserving judicial resources and allowing the MDL to

consistently address the issues before it.”).

A district court is best served not expending resources “familiarizing itself with the

intricacies of a case” that will be coordinated for pretrial management before a transferee judge.

See Rivers, 980 F. Supp. at 1360. Unless stayed, this Court will need to waste judicial resources
DFS’ NOTICE OF MOTION AND MOTION
FOR STAY

No. 5:15-cv-00807-RMW

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acquainting itself with the legal and factual, including complex technical, issues in this case prior

to consolidation of the actions and the filing of a consolidated amended complaint. Similarly, this

Court’s efforts at pretrial case management would need to be either revisited by this Court or

duplicated by the transferee court. See id. at 1360-61 (“[A]ny efforts on behalf of this Court

concerning case management will most likely have to be replicated by the judge that is assigned

to handle the consolidated litigation . . .”). Furthermore, engaging in case management activities

would be a poor use of this Court’s resources when there is a substantial likelihood that the JPML

will consolidate the pending cases in the next two to three months.

Accordingly, because a stay will promote judicial economy, Defendants respectfully

request that the Court stay these proceedings until the JPML rules on whether to transfer this case.

2.

There is a Strong Likelihood of Consolidation and Transfer of the In
re Lenovo Adware Litig. Cases

There is a strong likelihood the JPML will consolidate and transfer these actions. It is not

necessary, however, for this Court to decide that the JPML will transfer this case, only that there

is sufficient likelihood of a transfer that a stay may realize gains to judicial economy. See Barnes

v. Equinox Grp., Inc., No. C 10-03586 LB, 2010 WL 5479624, at *1 (N.D. Cal. Dec. 30, 2010)

(holding it was unnecessary to “wade into the merits of the pending motion [to transfer].”).

Defendants easily satisfy that threshold. As set forth above, the In re Lenovo Adware

Litig. cases, including the N.D. Cal. Lenovo Adware cases, are all substantially similar, and in

some cases, nearly identical. Each case arises from the same common nucleus of facts – the

alleged unlawful interception of communications from Lenovo computers and related

introduction of security vulnerabilities onto those computers. Because these cases involve

virtually the same parties, arise out of common facts, and raise the same legal issues, there will be

substantial overlap between them with respect to documents, witnesses, and legal issues.

Consolidation will convenience the parties, witnesses, and the Courts, and will promote the just

and efficient conduct of the In re Lenovo Adware Litig. cases.

Indeed, counsel for Plaintiff Sterling International Consulting Group filed multiple

Administrative Motions to Consider Whether Cases Should Be Related stating that the N.D. Cal.

DFS’ NOTICE OF MOTION AND MOTION
FOR STAY

7

No. 5:15-cv-00807-RMW

Case5:15-cv-00807-RMW Document29 Filed04/03/15 Page18 of 20

Lenovo Adware cases involve substantially the same defendants, transactions, property, events,

alleged misconduct and injury to consumers, raise similar questions with respect to liability and

class certification, and call for determination of identical or substantially similar questions of law

and facts. See Melcher Decl. at ¶¶ 11, 16, 17. Further, Plaintiffs’ Counsel in nearly all of the

N.D. Cal. Lenovo Adware cases filed a response to the Pick MDL Motion for Transfer in support

of consolidation and transfer. See id. at ¶ 5, Exh. B at 5 (“As set forth in Plaintiff Lukas Pick’s

motion for transfer, the related actions against Defendants, including the 17 actions commenced

after the motion for transfer was filed, easily meet the § 1407(a) criteria and should be transferred

and coordinated in a single district for pretrial proceedings.”). As Plaintiffs concede, the N.D.

Cal. Lenovo Adware cases all relate to substantially the same underlying facts, parties, and legal

theories.

Defendants Will Be Prejudiced Absent A Stay

B.
The prejudice to Defendants absent a stay far outweighs the nonexistent prejudice to

Plaintiffs if a stay is granted. If the actions are allowed to proceed in the short window between

the time the cases were filed and the time they are transferred for consolidation, Defendants

would be forced to engage in meet and confer discussions relating to initial disclosures, ADR

process selection, and discovery plans with Plaintiffs’ counsel for fifteen actions in this District

alone. Any such discussions, particularly those relating to ADR process selection and a discovery

plan, are premature prior to the appointment of lead counsel for Plaintiffs. Further, Defendants

would also need to draft and serve initial disclosures, and draft and file Fed. R. Civ. P. 26(f)

reports and the Case Management Statement. It is illogical and a waste of the parties’ resources

to engage in such events prior to the consolidation of the In re Lenovo Adware Litig. cases and the

filing of a consolidated class action complaint and appointment of lead counsel for Plaintiffs.

C.
Plaintiffs Face No Prejudice from the Short Stay Proposed by Defendants
In light of the very early stages of the cases, Plaintiffs will not be prejudiced by a short

stay. Plaintiffs have expended limited resources to date, the actions are in their infancy, and

discovery has not yet begun. Indeed, a stay conserves Plaintiffs’ resources and prevents them

from needlessly engaging in duplicative case management events as whatever limited proceedings
DFS’ NOTICE OF MOTION AND MOTION
FOR STAY

No. 5:15-cv-00807-RMW

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Case5:15-cv-00807-RMW Document29 Filed04/03/15 Page19 of 20

could take place in the next couple months will be wholly subsumed and superseded by the

consolidated action following transfer and consolidation. Further, the length of a stay is likely to

be very short. The JPML will likely hear argument on the pending Pick Motion for Transfer on

May 28, 2015, and will rule shortly thereafter. Thus, any prejudice to Plaintiffs from a stay

would be minimal.

V.

CONCLUSION
For the foregoing reasons, Defendants respectfully request that this Court grant their

motion to stay all proceedings in the N.D. Cal. Lenovo Adware Actions pending transfer and

consolidation by the JPML.

Dated: April 3, 2015

By: /s/ Rodger R. Cole

Rodger R. Cole (CSB No. 178865)
rcole@fenwick.com
FENWICK & WEST LLP
801 California Street
Mountain View, CA 94041
Ph: (650) 988-8500
Fax: (650) 938-5200
Attorneys for Defendant Superfish, Inc.

By: /s/ Daniel J. Stephenson

Daniel J. Stephenson
DYKEMA GOSSETT LLP
333 South Grand Avenue, Suite 2100
Los Angeles, CA 90071
Phone: (213) 457-1800
Fax: (213) 457-1850
dstephenson@dykema.com

Attorneys for Defendant Lenovo (United States), Inc.

DFS’ NOTICE OF MOTION AND MOTION
FOR STAY

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No. 5:15-cv-00807-RMW

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Case5:15-cv-00807-RMW Document29 Filed04/03/15 Page20 of 20

ATTESTATION PURSUANT TO LOCAL RULE 5-1(i)(3)

I, Rodger R. Cole, am the ECF User whose identification and password are being used to

file this DEFENDANTS SUPERFISH, INC.’ S AND LENOVO (UNITED STATES), INC.’S

NOTICE OF MOTION AND MOTION FOR STAY AND [PROPOSED] ORDER. In

compliance with Civil Local Rule 5-1(i)(3), I hereby attest that all signatories have concurred in

this filing.

Dated: April 3, 2015

/s/ Rodger R. Cole
Rodger R. Cole

DFS’ NOTICE OF MOTION AND MOTION
FOR STAY

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No. 5:15-cv-00807-RMW

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