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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Case No: 19-md-02913-WHO
Case Name: In Re: Juul Labs, Inc., (San Francisco Unified School District v. Juul (Case No. 20-cv-8117-WHO)
TRIAL SHEET, EXHIBIT and WITNESS LIST
JUDGE: PLAINTIFF ATTORNEYS: DEFENSE ATTORNEYS:
William H. Orrick Sarah London, Dena Sharp, and
Thomas Cartmell
Beth Wilkinson, Brian Stekloff,
and John Massaro
TRIAL DATE: 04/28/2023 REPORTER: CLERK:
8:03 a.m. to 1:27 p.m.
5 hours and 24 minutes
Debra Pas Jean Davis
PLF
NO.
DEF
NO.
TIME
OFFERED ID REC DESCRIPTION
8:03 a.m. In camera conference conducted. Counsel London, Sharp,
Wilkinson, Stekloff and Massaro present. Motions and
objections discussed. Exhibits 5079 and 5140 will be barred
from admission. Counsel should meet and confer as to
appropriate examination of witness Pritzker.
8:20 a.m. Court in recess
8:31 a.m. Court in session (jurors present)
Testimony of William F. Gifford, Jr. presented by way of
video deposition excerpts continues (Pl: 12 mins, Def: 16
mins)
9:00 a.m. Plaintiff announces exhibits admitted pursuant to stipulated
order of the Court (Cartmell)
74 9:01 a.m. X 12/06/2018 Email from Brian Blaylock to Jwappler, et al.
Re: BoD Portal presentations
75 9:01 a.m. X 12/13/2017 Email from Brian Blaylock to Howard Willard
et al. Re: Updated Project Tree presentation
642 9:01 a.m. X 05/10/2018 Email from Brian Blaylock to Howard Willard
et al. Re: Project Tree - BOD Full presentation
643 9:01 a.m. X Kaplan, B. et al. "The Youth e-cigarette epidemic: New
estimates of JUUL Labs revenue from youth users in the
US" Tobacco Induced Diseases, March 2, 2021
1633 9:01 a.m. X 10/04/2018 Email from Murray Garnick to Howard Willard
et al. Re: Thoughts about tomorrow's Board call and
Attachment
76 9:01 a.m. X 10/15/2018 Email from Paige Magness to Howard Willard et
al. Re: Town Hall Plan w-Draft Script for October Townhall
644 9:01 a.m. X 10/25/2018 Email from Howard Willard to Nicholas Pritzker
et al. Re: Altria Response to FDA Letter
1838 9:01 a.m. X 12/20/2018 Altria Makes $12.8 Billion Minority Investment
in JUUL to Accelerate Harm Reduction and Drive Growth -
Business Wire
2898 9:01 a.m. X 1/5/2019 Email from Todd Walker to Murray Garnick Re:
Re: FDA action items/Juul coordination
Case 3:19-md-02913-WHO Document 3994 Filed 04/28/23 Page 1 of 5
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Case No: 19-md-02913-WHO
Case Name: Madison County Publice Schools v. In Re: Juul Labs, Inc., Marketing, Sales Practices
Date: April 28, 2023
Courtroom Deputy: Jean Davis - Court Reporter: Debra Pas
EXHIBIT and WITNESS LIST CONTINUED
PLF
NO.
DEF
NO.
TIME
OFFERED ID REC DESCRIPTION
645 9:01 a.m. X 01/06/2019 Email from Murray Garnick to Howard Willard
et al. Re: Juul proposal
712 9:01 a.m. X Services Agreement - Altria Group, Inc. and JUUL Labs,
Inc. - 12/20/2018
77 9:01 a.m. X 02/14/2019 Email from Murray Garnick to Howard Willard
and William Gifford Re: Early Impact: JUUL
646 9:01 a.m. X 09/26/2018 Email from 'ALCS Investor Relations
Information Delivery' to Howard Willard et al. Re: Analyst
Comments
1868 9:01 a.m. X 6/28/2018 Email from Dinya Devitre to William Gifford Re:
Jefferies - Tobacco - Nielsen US cigarette industry vols -
stop with all the negativity -- 06.26.18.pdf
647 9:01 a.m. X 10/31/2018 Email from William Gifford to Murray Garnick
Re: Publication of First Youth Juul Usage Data
1992 9:01 a.m. X 11/1/2018 Email from Elizabeth Mountjoy to ALCS team
Re: FW: Analyst Comments
2910 9:01 a.m. X 11/13/2018 JUUL Labs Action Plan - Message from Kevin
Burns
9:02 a.m. Plaintiff indicates that “trial exhibit 31023” was omitted
from the announcement (deposition exhibit 31023 is trial
exhibit 1868)
9:02 a.m. Testimony of Howard Arnold Willard, III presented by
way of video deposition excerpts
10:00 a.m. Jurors excused
10:01 a.m. Admission of Exhibit 965 discussed outside the presence of
the jurors
10:04 a.m. Exhibit 47 discussed; exhibit is admitted by stipulation
10:06 a.m. Court in recess
10:21 a.m. Court in session (jurors present)
Continuing testimony of Howard Arnold Williard, III
presented by way of video deposition excerpts (Pl: 1 hr, 3
mins, Def: 31 mins)
11:01 a.m. Plaintiff announces exhibits admitted pursuant to stipulated
order of the Court (Cartmell)
3302 11:01 a.m. X 1/2/2020 Richter, R. Has Smoking Lost Its Cool?
https://www.statista.com/chart/20385/cigarette-sales-in-theunited-states/
988 11:01 a.m. X Foundation for a Smoke-Free World website homepage
Case 3:19-md-02913-WHO Document 3994 Filed 04/28/23 Page 2 of 5
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Case No: 19-md-02913-WHO
Case Name: In Re: Juul Labs, Inc., (San Francisco Unified School District v. Juul (Case No. 20-cv-8117-WHO)
Date: April 28, 2023
Courtroom Deputy: Jean Davis - Court Reporter: Debra Pas
EXHIBIT and WITNESS LIST CONTINUED
PLF
NO.
DEF
NO.
TIME
OFFERED ID REC DESCRIPTION
992 11:01 a.m. X 06/02/2017 Email from D. Wise to J. Wappler et al. Re:
Project Tree Draft
994 11:01 a.m. X Email from B. Chambers to Howard Willard et al. re: Draft
3 year Strategic Plan Board of Directors Presentation
952
956 11:01 a.m. X 2/27/2019 Email from S. Quigley to Howard Willard, et al.
Re: March 2019 Executive Summit Agenda and Logistics
42 11:01 a.m. X 10/15/2019 Letter from Justin P. Hedge to James E. Abell
III, Esq. Re: Request for Additional Information and
Documentary Materials Issued to Altria Group, Inc., No.
20190791
23 11:01 a.m. X JUUL Teen Tabulations - Percent Appealing to Teens
(Flavors)
961 11:01 a.m. X 10/17/2018 Email from Paige Magness to Howard Willard,
et al. Re: October Town Hall Plan
965 11:01 a.m. X 09/15/2019 Email from Paige Magness to Howard Willard
Re: HAW Video Outline 9.15.2019
249 11:01 a.m. X 10/4/2018 Outline re: Three topics: Restructuring, FDA, and
Tree (Notes for board call)
971 11:01 a.m. X 09/12/2018 Statement from FDA Commissioner Scott
Gottlieb, M.D., on new steps to address epidemic of youth ecigarette use
972 11:02 a.m. X 09/12/2018 letter from FDA to Howard Willard Re:
MarkTen
195 11:02 a.m. X 10/02/2018 Email from Murray Garnick to William Gifford
and Kevin Crosthwaite Re: Draft Outline - Engagement with
Commissioner Gottlieb
368 11:02 a.m. X DRAFT Outline for Meeting with Commissioner Gottlieb,
October 18, 2018 - Altria
46 11:02 a.m. X 10/4/2018 Outline re: Three topics: Restructuring, FDA, and
Tree (Notes for board call)
998 11:02 a.m. X 10/14/2018 Email from Anthony Reale to Howard Willard et
al. Re: Tree Term Sheet.
975 11:02 a.m. X 10/18/2018 Email from Murray Garnick to Howard Willard
Re: Antitrust council
12 11:02 a.m. X 10/25/2018 Letter from Howard Willard to Scott Gottlieb
Re: underage use of e-vapor products
72 11:02 a.m. X 10/30/2018 Email from Murray Garnick to Howard Willard
Re: FDA Update
2925 11:02 a.m. X 2/6/2019 Letter from Scott Gottlieb to Howard Willard
Case 3:19-md-02913-WHO Document 3994 Filed 04/28/23 Page 3 of 5
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980 11:02 a.m. X 7/28/2017 Email from W. Hilsman to J. Dillard, et al. Re:
Commissioner Gottlieb's Prepared Remarks from today's
announcements
982 11:02 a.m. X 10/31/2018 FDA Statement from FDA Commissioner Scott
Gottlieb, M.D., on meetings with industry related to the
agency's ongoing policy
983 11:02 a.m. X 11/13/2018 JUUL Labs Action Plan - Message from Kevin
Burns
984 11:02 a.m. X 03/04/2019 Email from Paige Magness to Murray Garnick et
al. Re: Approach to FDA Announcements on E-Vapor
985 11:02 a.m. X 03/13/2019 Statement from FDA Commissioner Scott
Gottlieb, M.D., on advancing new policies aimed at
preventing youth access to, and appeal of, flavored tobacco
987 11:02 a.m. X 11/15/2018 Email from Joe Murillo to M. Garnick, et al. Re:
Statement from FDA Commissioner Scott Gottlieb, M.D.,
on Proposed new steps to protect youth by preventing access
to flavored tobacco products and banning menthol in
cigarettes
989 11:03 a.m. X 12/11/2018 Email from Brian Blaylock to William Gifford
et al. Re: Project Tree (DEC BoD updated 12.11 Final) and
Discussion Materials - Eagle (BoD 12.11)
11:03 a.m. Plaintiff reads stipulation of parties to the jury (Cartmell)
11:03 a.m. Testimony of James Xu presented by way of video
deposition excerpts (Pl: 15 mins, Def: 6 mins)
11:25 a.m. Plaintiff announces exhibits admitted pursuant to stipulated
order of the Court (Cartmell)
1017 11:25 a.m. X 4/1/2019 Email from James Xu to Russell Rogers et al. Re:
meeting on continued discussion to resolve serious issues
created for Avail by Altria's shift in strategy
2740 11:25 a.m. X 12/7/2015 Investment Agreement between Altria Ventures,
Inc. and Avail Vapor, LLCYRBS
11:26 a.m. Plaintiff direct examination of Erica Lingrell (Sharp)
5074 11:50 a.m. X X (no objection)
11:55 a.m. Jurors excused; court in recess
12:09 a.m. Court in session (jurors out)
Plaintiff counsel provides brief overview of afternoon
schedule.
12: 11 a.m. Jurors seated
Plaintiff direct examination of Erica Lingrell continues
(Sharp)
5077 12:16 a.m. X X Vaping 101 For Middle School What to know and What to do
Micelle Rait and Lynda Boyer-Chu TUPE Nurse Facilitators,
SFUSD School Year 2019-20 (no objection)
12:29 p.m. Defense cross examination of Erica Lingrell (Stekloff)
7076 12:34 p.m. X X Email 08/21/2019 (no objection)
6249 12:38 p.m. X X Email 11/25/2019 (objection overruled)
7115 12:45 p.m. X X YRBS Survey results report (no objection)
Case 3:19-md-02913-WHO Document 3994 Filed 04/28/23 Page 4 of 5
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7116 12:45 p.m. X X YRBS Survey results report (no objection)
7117 12:45 p.m. X X YRBS Survey results report (no objection)
12:53 p.m. Plaintiff redirect of Erica Lingrell (Sharp)
1:00 p.m. Defense follow up examination of Erica Lingrell (Stekloff)
1:01 p.m. Plaintiff follow up examination of Erica Lingrell (Sharp)
1:01 p.m. Witness excused
1:03 p.m. Plaintiff direct examination of Madeline Cho (Sharp)
5117 1:15 p.m. X X 2/7/2020 Email from Nina H. Mayer to Susan C. Saunders
Re: New Bathroom Policy (no objection)
1:20 p.m. Defense waives cross examination
1:20 p.m. The Court reminds jurors of the Court’s admonitions as to
their conduct.
1:25 p.m. Jurors dismissed
1:27 p.m. Court in recess
Plaintiff time at start of day: 27 hours, 50 minutes
Time used 04/28/2023: 2 hours, 53 minutes
Time remaining: 24 hours, 57 minutes
Defendant total time: 35 hours, 55 minutes
Time used 04/28/2023: 1 hour 18 minutes
Time remaining: 34 hours, 37 minutes
Case 3:19-md-02913-WHO Document 3994 Filed 04/28/23 Page 5 of 5
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United States District Court
For the Northern District of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
ROBERT CURTIS,
Plaintiff,
v.
STEVE SHAPIRO, et al.,
Defendants /
No. C-05-3883 MMC
ORDER CERTIFYING APPEAL NOT
TAKEN IN GOOD FAITH; DENYING
PLAINTIFF’S APPLICATION TO FILE
APPEAL IN FORMA PAUPERIS
Before the Court is plaintiff Robert Curtis’s (“Curtis”) application to proceed in forma
pauperis, filed November 23, 2005. As Curtis, on November 14, 2005, filed a notice of
appeal of the Court’s October 26, 2005 order dismissing the instant action with prejudice,
the Court construes the instant application as a motion to proceed in forma pauperis on
appeal.
The Federal Rules of Appellate Procedure require that such motion be decided by
the district court. See Fed. R. App. 24(a)(1). A party seeking to proceed in forma pauperis
on appeal must file an affidavit showing the party’s “inability to pay or to give security for
fees and costs,” claiming “an entitlement to redress,” and stating “the issues that the party
intends to present on appeal.” See Fed. R. App. P. 24(a)(1). Curtis has not submitted an
affidavit claiming an entitlement to redress and stating the issues he intends to present on
appeal.
Case 3:05-cv-03883-MMC Document 11 Filed 11/28/05 Page 1 of 2
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Even if Curtis had complied with Rule 24(a)(1), however, the Court would deny his
application. Pursuant to 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma
pauperis if the trial court certifies in writing that it is not taken in good faith.” See 28 U.S.C.
§ 1915(a)(3). “Good faith” requires that the applicant seek review of an issue that is not
frivolous. See Coppedge v. United States, 369 U.S. 438, 445 (1962).
For the reasons set forth in the Court’s October 26, 2005 order dismissing the
instant action, Curtis may not evade the dismissal of actions he filed in the District of
Oregon by refiling an essentially identical complaint in this Court.
Accordingly, the Court hereby CERTIFIES that Curtis’s appeal is not taken in good
faith and, consequently, his application to file his appeal in forma pauperis is hereby
DENIED.
IT IS SO ORDERED.
Dated: November 28, 2005
MAXINE M. CHESNEY
United States District Judge
Case 3:05-cv-03883-MMC Document 11 Filed 11/28/05 Page 2 of 2
|
PRO HAC VICE APPLICATION & ORDER October 2012
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Plaintiff(s),
v.
Defendant(s).
)
)
)
)
)
)
)
)
)
)
Case No: _______________
APPLICATION FOR
ADMISSION OF ATTORNEY
PRO HAC VICE
(CIVIL LOCAL RULE 11-3)
I, , an active member in good standing of the bar of
, hereby respectfully apply for admission to practice pro hac vice in the
Northern District of California representing: in the
above-entitled action. My local co-counsel in this case is __________________________________, an
attorney who is a member of the bar of this Court in good standing and who maintains an office
within the State of California.
MY ADDRESS OF RECORD: LOCAL CO-COUNSEL’S ADDRESS OF RECORD:
MY TELEPHONE # OF RECORD: LOCAL CO-COUNSEL’S TELEPHONE # OF RECORD:
MY EMAIL ADDRESS OF RECORD: LOCAL CO-COUNSEL’S EMAIL ADDRESS OF RECORD:
I am an active member in good standing of a United States Court or of the highest court of
another State or the District of Columbia, as indicated above; my bar number is: .
A true and correct copy of a certificate of good standing or equivalent official document from said
bar is attached to this application.
I agree to familiarize myself with, and abide by, the Local Rules of this Court, especially the
Standards of Professional Conduct for attorneys and the Alternative Dispute Resolution Local Rules.
I declare under penalty of perjury that the foregoing is true and correct.
Dated:
APPLICANT
ORDER GRANTING APPLICATION
FOR ADMISSION OF ATTORNEY PRO HAC VICE
IT IS HEREBY ORDERED THAT the application of is granted,
subject to the terms and conditions of Civil L.R. 11-3. All papers filed by the attorney must indicate
appearance pro hac vice. Service of papers upon, and communication with, local co-counsel
designated in the application will constitute notice to the party.
Dated:
UNITED STATES DISTRICT/MAGISTRATE JUDGE
Reset Form
In re Hard Disk Drive Suspension
Assemblies Antitrust Litigation 19-md-2918
This Document Relates To:
All Actions
Alexander James Scolnik
/s/ Alexander James Scolnik
Alexander James Scolnik
New York
TDK Corp. and related entities
C. Cecilia Wang
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178
Morgan, Lewis & Bockius LLP
One Market Street, Spear Tower
San Francisco, CA 94105
(212) 309-6051 (415) 442-1000
[email protected] [email protected]
4940789
06/02/20
p y
UNITED STATES DISTRICT/MAGISTRA
June 9, 2020
Case 3:19-md-02918-MMC Document 234 Filed 06/09/20 Page 1 of 2
Appellate Division of the Supreme Court
of the State of New York
First Judicial Department
I, Susanna Rojas, Clerk of the Appellate Division of
the Supreme Court of the State of New York, First Judicial
Department, certify that
Alexander James Scolnik
was duly licensed and admitted to practice as an Attorney and
Counsellor at Law in all the courts of the State of New York on
June 15, 2011, has duly taken and subscribed the oath of office
prescribed by law, has been enrolled in the Roll of Attorneys and
Counsellors at Law on file in my office, has duly registered with the
administrative office of the courts, and according to the records of
this court is in good standing as an attorney and counsellor at law.
In Witness Thereof, I have hereunto set my
hand and affixed the seal of this court on
May 29, 2020
Clerk of the Court
4119
Case 3:19-md-02918-MMC Document 234 Filed 06/09/20 Page 2 of 2
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United States District Court
For the Northern District of California
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United States District Court
For the Northern District of California
NOT FOR CITATION
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
PATRICK DEMARC SAMPSON,
Petitioner,
vs.
MIKES KNOWLES, Warden,
Respondent. /
No. C 05-3825 PJH (PR)
ORDER GRANTING
RESPONDENT'S MOTION TO
DISMISS; RULINGS
This is a habeas case filed pro se by a state prisoner. Respondent has moved to
dismiss the petition on grounds that it is barred by the statute of limitations. Petitioner has
resisted the motion and the time for respondent to reply has passed, so it is now ready for
ruling. Also before the court for ruling are several motions by petitioner.
DISCUSSION
1. Petitioner's motions for appointment of counsel
The right to counsel provided in the Sixth Amendment does not apply in habeas
corpus actions. Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). However, 18
U.S.C. § 3006A(a)(2)(B) authorizes appointment of counsel to represent a habeas
petitioner whenever "the court determines that the interests of justice so require and such
person is financially unable to obtain representation." The decision to appoint counsel is
committed to the discretion of the district court. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th
Cir. 1986).
Petitioner has presented his claims adequately in the petition, and has done a good
job opposing the motion to dismiss, given the facts he has to work with. The interests of
justice do not require appointment of counsel. The motions for appointment of counsel will
Case 4:05-cv-03825-PJH Document 25 Filed 03/13/07 Page 1 of 7
United States District Court
For the Northern District of California
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be denied.
2. Petitioner's other motions
Petitioner moves for leave to amend his petition to add a claim. Because no
responsive pleading had been filed when he filed his amendment, it is an amendment as of
right. See Fed. R.Civ.P. 15(a). The motion will be denied as unnecessary.
Petitioner's "Motion for Relief from Default" refers to his "default" of not filing the
petition on time, that is, it is his opposition to the motion to dismiss. As a motion, it will be
denied.
As to petitioner's motion for entry of default against respondent, respondent' s
motion for an extension of time was granted and the motion to dismiss filed within the time
as extended, so the motion for default will be denied.
3. Motion to dismiss
a. Basic calculation
The statute of limitations is codified at 28 U.S.C. § 2244(d). Petitions filed by
prisoners challenging non-capital state convictions or sentences must be filed within one
year of the latest of the date on which: (1) the judgment became final after the conclusion
of direct review or the time passed for seeking direct review; (2) an impediment to filing an
application created by unconstitutional state action was removed, if such action prevented
petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme
Court, if the right was newly recognized by the Supreme Court and made retroactive to
cases on collateral review; or (4) the factual predicate of the claim could have been
discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Time during
which a properly filed application for state post-conviction or other collateral review is
pending is excluded from the one-year time limit. Id. § 2244(d)(2).
Petitioner's conviction became final on September 10, 2002. His federal petition
therefore was due by September 10, 2003, absent tolling or a different starting date for the
limitations period. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying
“anniversary method” to habeas limitations period; absent any tolling, the expiration date of
Case 4:05-cv-03825-PJH Document 25 Filed 03/13/07 Page 2 of 7
United States District Court
For the Northern District of California
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the limitation period will be the same date as the triggering event but in the following year).
His first state habeas petition was filed on May 25, 2003, about eight months after the
limitations period began running. This stopped the clock until the last petition was denied
by the California Supreme Court on September 29, 2004. This federal petition was not filed
until August 3, 2005, about ten months after tolling ended. These dates are not disputed by
petitioner.
With eight months of the period having been used before petitioner started state
collateral proceedings, and ten months having passed after completion of them before the
petition was filed, this petition is clearly untimely, absent other considerations.
Petitioner contends in his opposition that he was so caught up in investigations he
was undertaking to support the claims he raised in the petition that he "must have lost
time," and that he was not abusing the legal system by his delay. This may be an attempt
to claim equitable tolling.
b. Equitable tolling
The one-year limitation period can be equitably tolled because § 2244(d) is a statute
of limitations and not a jurisdictional bar. Calderon v. United States District Court (Beeler),
128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds by Calderon v.
United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). Equitable
tolling will not be available in most cases because extensions of time should be granted
only if "extraordinary circumstances beyond a prisoner's control make it impossible to file a
petition on time." Beeler, 128 F.3d at 1288 (citation and internal quotation marks omitted).
The petitioner bears the burden of showing that this "extraordinary exclusion" should
apply to him. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). He must establish
two elements in order to be granted equitable tolling: “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way.” Rasberry
v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) (quoting Pace v. DiGuglielmo, 544 U.S. 408,
419 (2005)). The prisoner also must show that “the ‘extraordinary circumstances’ were the
cause of his untimeliness.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).
Case 4:05-cv-03825-PJH Document 25 Filed 03/13/07 Page 3 of 7
United States District Court
For the Northern District of California
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Petitioner's contention that he was so absorbed in his investigation that he just lost
track of time is far from meeting these stringent requirements. Equitable tolling does not
apply. See Beeler, 128 F.3d 1283 at 1288-89 (stating that equitable tolling “will not be
available in most cases” and expressing confidence that district courts will “take seriously
Congress's desire to accelerate the federal habeas process, and will only authorize
extensions when this high hurdle ["extraordinary circumstances"] is surmounted.”).
c. Actual innocence
Petitioner also contends that he is "actually innocent." The Ninth Circuit has stated
in dictum that the actual innocence gateway established in Schlup v. Delo, 513 U.S. 298
(1995), may be available to a petitioner whose petition is otherwise barred by AEDPA’s
limitations period. See Majoy v. Roe, 296 F.3d 770, 776-77 (9th Cir. 2002) (implying that
unavailability of actual innocence gateway would raise serious constitutional concerns and
remanding to district court for a determination of whether actual innocence claim was
established before deciding whether gateway is available under AEDPA).
The “actual innocence” or “miscarriage of justice” exception arose in the context of
procedural bars: If a state prisoner cannot meet the cause and prejudice standard to
escape a procedural bar, a federal court may still hear the merits of the successive,
abusive or procedurally defaulted claims if failure to hear the claims would constitute a
"miscarriage of justice." Sawyer v. Whitley, 505 U.S. 333, 339-340 (1992) (citations
omitted); see also Majoy, 296 F.3d at 776-77. In the traditional understanding of habeas
corpus, a "miscarriage of justice" occurs whenever a conviction or sentence is secured in
violation of a constitutional right. See Smith v. Murray, 477 U.S. at 543-44. However, the
Supreme Court limits the "miscarriage of justice" exception to habeas petitioners who can
show that "a constitutional violation has probably resulted in the conviction of one who is
actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995) (citing Murray v. Carrier, 477
U.S. at 496); see, e.g., Wildman v. Johnson, 261 F.3d 832, 842-43 (9th Cir. 2001)
(petitioner must establish factual innocence in order to show that a fundamental
miscarriage of justice would result from application of procedural default). Under this
Case 4:05-cv-03825-PJH Document 25 Filed 03/13/07 Page 4 of 7
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exception, a petitioner may establish a procedural "gateway" permitting review of defaulted
claims if he or she demonstrates "actual innocence." Schlup, 513 U.S. at 316 & n.32.
Thus,
[i]f a petitioner . . . presents evidence of innocence so strong that a court
cannot have confidence in the outcome of the trial unless the court is also
satisfied that the trial was free of non-harmless constitutional error, the
petitioner should be allowed to pass through the gateway and argue the
merits of his underlying claim.
Id. at 316.
"To be credible, such an actual innocence claim requires petitioner to support his
allegations of constitutional error with new reliable evidence--whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence--that was
not presented at trial." Schlup, 513 U.S. at 324. The "new" evidence need not be newly
available, just newly presented -- that is, evidence that was not presented at trial. Griffin v.
Johnson, 350 F.3d 956, 961 (9th Cir. 2003).
It is not enough that the new evidence show the existence of reasonable doubt;
rather, petitioner must show "that it is more likely than not that no ‘reasonable juror’ would
have convicted him." Schlup, 513 U.S. at 329. As the Ninth Circuit has stated, "the test is
whether, with the new evidence, it is more likely than not that no reasonable juror would
have found [p]etitioner guilty." Van Buskirk v. Baldwin, 265 F.3d 1080, 1084 (9th Cir.
2001). Thus, "actual innocence" means factual innocence, not merely legal insufficiency.
Bousley v. United States, 523 U.S. 614, 623-24 (1998) (citing Sawyer, 505 U.S. at 339).
A petitioner need not always affirmatively show physical evidence that he or she did
not commit the crime. Gandarela v. Johnson, 286 F.3d 1080, 1086 (9th Cir. 2002). A
petitioner may pass through the Schlup gateway by producing evidence "that significantly
undermines or impeaches the credibility of witnesses presented at trial, if all the evidence,
including new evidence, makes it 'more likely than not that no reasonable juror would have
found petitioner guilty beyond a reasonable doubt.'" Id. (quoting Schlup, 513 U.S. at 327).
Petitioner contends that he has always asserted his innocence and presents a
conclusory claim that the facts alleged in the petition show that he is indeed actually
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innocent. The allegations of the petition are, of course, not proof of anything. This is far
from meeting the demanding standard set out above. The actual innocence exception,
assuming it exists, does not apply.
d. Starting date for limitations period
Petitioner also refers to newly discovered evidence uncovered in the investigation
which led to his supplemental petition filed on May 25, 2006. This might be an attempt to
claim that as to the issue in the supplemental petition the limitations period should not have
begun running until the evidence was discovered. One of the possible starting dates for the
limitations period provided in the statute is "the date on which the factual predicate of the
claim or claims presented could have been discovered through the exercise of due
diligence." See 28 U.S.C. § 2244(d)(1)(D).
The claim petitioner raises in the supplemental petition is that defense counsel was
ineffective in waiving his right to be present at an in camera review of possibly impeaching
materials from the arresting officer's personnel file. Petitioner has completely failed to
establish that he exercised due diligence to discover this fact; indeed, he provides no
information except that he did not discover it until May 12, 2006. Obviously, this does not
go to whether he was diligent in attempting to discover it.
The supplemental petition also contains a reference to "new evidence." In a section
headed "Exhibits B" on the last page of the supplemental petition, petitioner refers to an
attached copy of a newspaper story which appeared in the San Jose Mercury News
contending that many persons had been convicted in cases where the prosecutor
misstated the law or the evidence. The exhibit includes a page of the story listing
defendants in whose cases the paper says there was "questionable conduct," and the list
includes petitioner.
Even if he intended to add this as a separate claim in this proceeding, which is by no
means clear, petitioner has not established due diligence – he presumably was present at
the trial, and therefore knows what the prosecutor did or did not do before the jury. This
court also notes that several claims of prosecutorial misconduct were raised in petitioner's
Case 4:05-cv-03825-PJH Document 25 Filed 03/13/07 Page 6 of 7
United States District Court
For the Northern District of California
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direct appeal, and that the California Court of Appeal concluded that the prosecutor
committed misconduct but that it was not prejudicial. See People v. Sampson, 2002 WL
462279 at *12-16 (Cal. App. 2002). This may well be the misconduct to which the
newspaper article refers; it simply is not possible to tell, because the copies provided by
petitioner do not contain any discussion of his case. If the newspaper story is a reference
to the same misconduct, petitioner obviously was aware of it long before May 12, 2006.
Petitioner has failed to show that a starting date for the limitations period other than
completion of direct review should apply.
CONCLUSION
Petitioner's motion for leave to amend was filed before a responsive pleading, so is
an amendment as of right. His motion (document number 7 on the docket) is DENIED as
unnecessary. His motions for appointment of counsel (documents 8 and 10) and for entry
of default (document 13) are DENIED for the reasons set out above. His motion for relief
from default (document 21) is actually his opposition to the motion to dismiss; considered
as a motion, it is DENIED.
Respondent’s motion to dismiss (document 18) is GRANTED. The petition is
DISMISSED. The clerk shall close the file.
IT IS SO ORDERED.
Dated: March 13, 2007.
PHYLLIS J. HAMILTON
United States District Judge
G:\PRO-SE\PJH\HC.05\SAMPSON825.DSM
Case 4:05-cv-03825-PJH Document 25 Filed 03/13/07 Page 7 of 7
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NOTICE OF APPEARANCE OF DEVIN S. ANDERSON
CASE NO. 19-MD-02913-WHO
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Devin S. Anderson
KIRKLAND & ELLIS LLP
1301 Pennsylvania Ave., NW
Washington, D.C., 20004
Telephone: (202) 389-5000
Email: [email protected]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
IN RE JUUL LABS, INC., MARKETING,
SALES PRACTICES, AND PRODUCTS
LIABILITY LITIGATION
This Document Relates to:
ALL ACTIONS
Case No. 19-md-02913-WHO
NOTICE OF APPEARANCE OF
DEVIN S. ANDERSON
Judge: Honorable William H. Orrick
Case 3:19-md-02913-WHO Document 3798 Filed 02/16/23 Page 1 of 3
- 2 - NOTICE OF APPEARANCE OF DEVIN S. ANDERSON
CASE NO. 19-MD-02913-WHO
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Dated: February 16, 2023 Respectfully submitted,
By: /s/ Devin S. Anderson
Devin S. Anderson
KIRKLAND & ELLIS LLP
1301 Pennsylvania Ave., NW
Washington, D.C., 20004
Telephone: (202) 389-5000
Email: [email protected]
TO THE COURT, THE PARTIES, AND ALL COUNSEL OF RECORD:
PLEASE TAKE NOTICE that DEVIN S. ANDERSON of the law firm of Kirkland & Ellis LLP
hereby enters an appearance as counsel for all Defendants represented by Kirkland & Ellis LLP
and hereby requests that all notices given or required to be given, and all papers filed or served
or required to be served in the above-captioned matter, be provided and served upon:
Devin S. Anderson
KIRKLAND & ELLIS LLP
1301 Pennsylvania Ave., NW
Washington, D.C., 20004
Telephone: (202) 389-5000
Email: [email protected]
Case 3:19-md-02913-WHO Document 3798 Filed 02/16/23 Page 2 of 3
- 3 - NOTICE OF APPEARANCE OF DEVIN S. ANDERSON
CASE NO. 19-MD-02913-WHO
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CERTIFICATE OF SERVICE
I hereby certify that on February 16, 2023, I electronically filed the foregoing document
with the Clerk of the Court using the CM/ECF system, which will automatically send
notification of the filing to all counsel of record.
By: /s/ Devin S. Anderson
Devin S. Anderson
Case 3:19-md-02913-WHO Document 3798 Filed 02/16/23 Page 3 of 3
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
IN RE JUUL LABS, INC., MARKETING, )
SALES PRACTICES, AND PRODUCTS )
LIABILITY LITIGATION, )
)
)
)
______________________________________)
Case No. 3:19-MD-02913-WHO
APPLICATION FOR ADMISSION OF
ATTORNEY PRO HAC VICE
(CIVIL LOCAL RULE 11-3)
I, Gregor J. Schwinghammer, Jr., an active member in good standing of the bar of Florida hereby
respectfully apply for admission to practice pro hac vice in the Northern District of California
representing: JUUL Labs, Inc. in the above-entitled action. My local co-counsel in this case is waived
through prior order of the Court, an attorney who is a member of the bar of this Court in good standing
and who maintains an office within the State of California.
MY ADDRESS OF RECORD: LOCAL CO-COUNSEL’S ADDRESS OF RECORD:
777 S. Flagler Drive N/A
Suite 500 East Tower
West Palm Beach, Florida 33401
MY TELEPHONE # OF RECORD: LOCAL CO-COUNSEL’S TELEPHONE # OF RECORD:
561-650-0594 N/A
MY EMAIL ADDRESS OF RECORD: LOCAL CO-COUNSEL’S EMAIL ADDRESS OF
[email protected] RECORD:
N/A
I am an active member in good standing of a United States Court or of the highest court of another
State or the District of Columbia, as indicated above; my bar number is 90158.
A true and correct copy of a certificate of good standing or equivalent official document from said
bar is attached to this application.
I have been granted pro hac vice admission by the Court 0 times in the 12 months preceding this
application.
I agree to familiarize myself with, and abide by, the Local Rules of this Court, especially the
Standards of Professional Conduct for attorneys and the Alternative Dispute Resolution Local rules.
Case 3:19-md-02913-WHO Document 4244 Filed 05/21/24 Page 1 of 3
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I declare under penalty of perjury that the foregoing is true and correct.
Dated: May 21, 2024 /s/ Gregor J. Schwinghammer, Jr.
APPLICANT
Case 3:19-md-02913-WHO Document 4244 Filed 05/21/24 Page 2 of 3
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ORDER GRANTING APPLICATION
FOR ADMISSION OF ATTORNEY PRO HAC VICE
IT IS HEREBY ORDERED THAT the application of Gregor J. Schwinghammer, Jr. is granted,
subject to the terms and conditions of Civil L.R. 11-3. All papers filed by the attorney must indicate
appearance pro hac vice. Service of papers upon, and communication with, local co-counsel designated in
the application will constitute notice to the party.
Dated: ________________________________
UNITED STATES DISTRICT/MAGISTRATE JUDGE
ACTIVE:22448423.1
Case 3:19-md-02913-WHO Document 4244 Filed 05/21/24 Page 3 of 3
|
-
Objection filing for Juul settlement
1 message
ClaimClam Support <[email protected]>
To: [email protected]
To whom it may concern,
RECEIVED
JUL 31 2023
... CLERK, U.S. DISTRICT COURT
NORTH DISTRICT OF CALIFORNIA
Thu, Jul 20, 2023 at 8:33 AM
I, Michelle Powers, respectfully object to the Juul settlement Please reference the below information for my objection.
1. My full name, address, telephone number, and email address;
Full name: Michelle Powers
Address: 6603 Cooper Meadows Rd .
Westerville, OH 43081
Telephone number: 16146073792
Email address: [email protected]
2. The case name and number: In re JUUL Labs, Inc. Marketing, Sales Practices, and Products Liability Litigation, No. 19-
md-02913-WHO (N.D. Cal.);
3. Documentation demonstrating that I am a member of the Class and/or this statement, followed by my signature: •1
declare under penalty of perjury under the laws of the United States of America that [Insert your name) is a member of
the Class:;
Month, day, and year I first purchased JUUL Products: 02/10/2018
Month, day, and year I last purchased JUUL Products: 06/21/2021
NUMBER of Products I Purchased on Average in a Year from a retailer other than the JUUL website:
• JUUL Pods (4 pack): 4
• JUUL Pods (2 pack): 3
• Starter Kit (Device, USB Charger, 4 JUUL Pods): 1
• Starter Kit {Device, use Charger, 2 JUUL Pods): 1
• Basic Kit/Device Kit (Device plus USB Charger): 1
• USB Charger: 1
• Charging Case: 2
•1 declare under penalty of perjury under the laws of the United States of America that Michelle Powers Is a member of the
Class:
Signature: /a/Michelle Powers
4. A written statement of all grounds for my objection, including any legal support for the objection;
My agent, ClaimClam, has infonned me that the Settlement Administrator is rejecting my submitted claim due to it being
submitted by an agent.
Case 3:19-md-02913-WHO Document 4093 Filed 07/31/23 Page 1 of 3
I respectfully object, and ask the Court to deny the settlement, unless the Settlement Administrator takes an interpretation
that allows claims submitted by an authorized agent.
I find the class action claims filing process to be unduly burdensome, namely figuring out which settlements I'm eligible
for, making the filing, and receiving the payment. I would not have known about the Juul settlement if not for my agent.
They also made the filing easier for me by simplifying the language and breaking it down into smaller, more manageable
pieces. I also rely on my agent to collect my payment and ensure that I receive it, in addition to being responsive and
looking out for my interests.
I urge the Court to preserve the agent-principal relationship in the consumer class action context, as well as my freedom
to choose how I wish to participate.
5. Copies of any papers, briefs, or other documents your objection is based on;
NIA
6. The name, address, email address, and telephone number of every attorney representing me;
NIA
7. A statement saying whether I and/or my attorney intend to appear at the Anal Approval Hearing and, if so, a list of all
persons, If any, who will be called to testify In support of the objection.
I, Michelle Powers, intend to appear at the Final Approval Hearing.
Sincerely,
Case 3:19-md-02913-WHO Document 4093 Filed 07/31/23 Page 2 of 3
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Case 3:19-md-02913-WHO Document 4093 Filed 07/31/23 Page 3 of 3
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
,15(-88//$%6,1&0$5.(7,1*
6$/(635$&7,&(6$1'352'8&76
/,$%,/,7</,7,*$7,21
Case No.
APPLICATION FOR ADMISSION OF
ATTORNEY PRO HAC VICE
(CIVIL LOCAL RULE 11-3)
I, , an active member in good standing of the bar of
, hereby respectfully apply for admission to practice pro hac
vice in the Northern District of California representing: in the
above-entitled action. My local co-counsel in this case is , an
attorney who is a member of the bar of this Court in good standing and who maintains an office
within the State of California. Local co-counsel’s bar number is: _________________.
MY ADDRESS OF RECORD LOCAL CO-COUNSEL’S ADDRESS OF RECORD
MY TELEPHONE # OF RECORD LOCAL CO-COUNSEL’S TELEPHONE # OF RECORD
MY EMAIL ADDRESS OF RECORD LOCAL CO-COUNSEL’S EMAIL ADDRESS OF RECORD
I am an active member in good standing of a United States Court or of the highest court of
another State or the District of Columbia, as indicated above; my bar number is: .
A true and correct copy of a certificate of good standing or equivalent official document
from said bar is attached to this application.
I have been granted pro hac vice admission by the Court _______ times in the 12 months
preceding this application.
+R\RXQJ+XK1LFKRODV3ULW]NHUDQG5LD]9DODQL
ZDLYHGWKURXJKSULRURUGHURIWKHFRXUW
.HOORJJ+DQVHQ7RGG)LJHO )UHGHULFN3//&
06WUHHW1:6XLWH:DVKLQJWRQ'&
3:19-MD-02913-who
Andrew Skaras
District of Columbia
N/A
(202) 326-7900
[email protected]
90004011
1
N/A
Case 3:19-md-02913-WHO Document 4302 Filed 09/17/24 Page 1 of 2
Updated 11/2021 2
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United States District Court
Northern District of California
APPLICANT
UNITED STATES DISTRICT/MAGISTRATE JUDGE
ORDER GRANTING APPLICATION
FOR ADMISSION OF ATTORNEY PRO HAC VICE
IT IS HEREBY ORDERED THAT the application of Andrew Skaras is
granted, subject to the terms and conditions of Civil L.R. 11-3. All papers filed by the attorney
must indicate appearance pro hac vice. Service of papers upon, and communication with, local cocounsel designated in the application will constitute notice to the party.
Dated: 9/17/2024
I agree to familiarize myself with, and abide by, the Local Rules of this Court, especially
the Standards of Professional Conduct for attorneys and the Alternative Dispute Resolution Local
Rules. I declare under penalty of perjury that the foregoing is true and correct.
Dated: 9/17/2024 Andrew Skaras
Case 3:19-md-02913-WHO Document 4302 Filed 09/17/24 Page 2 of 2
|
The Florida Bar
651 East Jefferson Street
Tallahassee, FL 32399-2300
Joshua E. Doyle
Executive Director
850/561-5600
www.FLORIDABAR.org
State of Florida )
County of Leon ) In Re: 1018179
Sarah J. Foster
Schlesinger Law Offices
1212 SE 3rd Ave
Ft Lauderdale, FL 33316-1906
I CERTIFY THE FOLLOWING:
I am the custodian of membership records of The Florida Bar.
Membership records of The Florida Bar indicate that The Florida Bar member listed above was admitted to
practice law in the state of Florida on September 16, 2019.
The Florida Bar member above is an active member in good standing of The Florida Bar who is eligible to
practice law in the state of Florida.
Dated this 16th day of September, 2024.
Cynthia B. Jackson, CFO
Administration Division
The Florida Bar
PG:R10
CTM-305608
Case 3:19-md-02913-WHO Document 4303-2 Filed 09/17/24 Page 1 of 1
|
1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Case No: 19-md-02913-WHO
Case Name: In Re: Juul Labs, Inc., (San Francisco Unified School District v. Juul (Case No. 20-cv-8117-WHO)
TRIAL SHEET, EXHIBIT and WITNESS LIST
JUDGE: PLAINTIFF ATTORNEYS: DEFENSE ATTORNEYS:
William H. Orrick Sarah London, Dena Sharp, and
Andrew Kaufman
Beth Wilkinson, Brian Stekloff,
and Alyssa Bohanan
TRIAL DATE: 04/25/2023 REPORTER: CLERK:
8:00 a.m. to 1:33 p.m.
5 hours, 33 minutes
Ana Dub Jean Davis
PLF
NO.
DEF
NO.
TIME
OFFERED ID REC DESCRIPTION
8:00 a.m. Court in session (jurors out)
Grunberg slides discussed. Lawyers cautioned to avoid
mention of events that have occurred since the close of
discovery. Objections to exhibits and deposition
designations discussed. Agreed upon special instruction
provided to the Court.
8:18 a.m Court in recess
8:35 a.m. Jurors seated. Special instruction regarding Multidistict
Litigation provided by the Court.
8:36 a.m. Plaintiff direct examination of Neil Everett Grunberg
continues (London)
1118 8:38 a.m. X X How Tobacco smoke causes disease: The Biology and
Behavior Basis for Smoking - Attributable Disease - A
report of the Surgeon General 2010 (no objection)
1613 9:12 a.m. X X 2012 Surgeon General Report: Preventing Tobacco Use
Among Youth and Young Adults [Full Report] (no
objection)
1527 9:38 a.m. X X 2020 Surgeon General Report: Smoking Cessation [Full
Report] (no objection)
10:02 a.m. Jurors excused
10:03 a.m. Court in recess
10:18 a.m. Court in session (jurors present)
Plaintiff direct examination of Neil Everett Grunberg
continues (London)
102 10:33 a.m. X X Preventing Tobacco Use Among Youth and Young Adults -
A Report of the Surgeon General. 2012. CDC (no objection)
10:44 a.m. Sidebar
2061 11:39 a.m. X X 2012 Surgeon General Report: Executive Summary
(objection overruled)
Case 3:19-md-02913-WHO Document 3961 Filed 04/25/23 Page 1 of 2
2
Case No: 19-md-02913-WHO
Case Name: Madison County Publice Schools v. In Re: Juul Labs, Inc., Marketing, Sales Practices
Date: April 25, 2023
Courtroom Deputy: Jean Davis - Court Reporter: Ana Dub
EXHIBIT and WITNESS LIST CONTINUED
PLF
NO.
DEF
NO.
TIME
OFFERED ID REC DESCRIPTION
11:47 a.m. Jurors and witness excused
11:48 a.m. Counsel heard as to scope of examination (international vs
US only)
11:57 a.m. Court in recess
12:05 p.m. Court in session (jurors present)
Plaintiff direct examination of Neil Everett Grunberg
continues (London)
1614 12:06 X X 2014 Surgeon General Report: The Health Consequences of
Smoking - 50 Years of Progress [Full Report] (objection
overruled)
12:06 a.m. Defense cross examination of Neil Everett Grunberg
(Stekloff)
12:17 p.m. Court advises jurors of stipulated facts agreed upon by
counsel
12:20 p.m. Defense cross examination of Neil Everett Grunberg
continues (Stekloff)
6138 12:32 p.m. X X JLI Action Plan (no objection)
6540 1:06 p.m. X X Gilman et al., Characterization of Temperature Regulation
and HPHC Profile of a Nicotine-Salt Based ENDS Product
(no objection)
7066 1:10 p.m. X X FDA document (no objection)
6479 1:15 p.m. X X Wynne amd Waaka, Acute use of nicotine salt-based ENDS and
combusted cigarettes, Poster for Society for Research on Nicotine
and Tobacco 24th Annual Meeting (no objection)
6313 1:20 p.m. X X ALCS presentation re JUUL Overview (no objection)
7065 1:28 p.m. X Science Advances article (published to jurors without
objection)
1:32 p.m Jurors excused
1:33 p.m. Court in recess
Plaintiff time at start of day: 37 hours, 6 minutes
Time used 04/25/2023: 2 hours, 50 minutes
Time remaining: 34 hours, 14 minutes
Defendant total time: 39 hours, 5 minutes
Time used 04/25/2023: 1 hour, 30 minutes*
Time remaining: 37 hours, 35 minutes
*4 minutes charged to defendant for sidebar
Case 3:19-md-02913-WHO Document 3961 Filed 04/25/23 Page 2 of 2
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EXHIBIT D
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Apple’s Answer and Counterclaims - 1 - Case No.: 3:19-cv-6352-EMC
SHOOK, HARDY & BACON L.L.P.
Jason M. Richardson
One Montgomery, Suite 2600
San Francisco, California 94104
Telephone: 415.544.1900
Facsimile: 415.391.0281
Trent Webb (admitted pro hac vice)
Ryan J. Schletzbaum (admitted pro hac vice)
Lauren E. Douville (admitted pro hac vice)
Maxwell C. McGraw (admitted pro hac vice)
2555 Grand Blvd.
Kansas City, MO 64108
Attorneys for Apple Inc.
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
APPLE INC.,
Plaintiff,
v.
PRINCEPS INTERFACE TECHNOLOGIES
LLC and PRINCEPS SECONDUS LLC,
Defendants.
Case No.: 3:19-cv-6352-EMC
APPLE INC.’S ANSWER AND
COUNTERCLAIMS TO COUNTERCLAIMANT PRINCEPS SECUNDUS
LLC’S AMENDED
COUNTERCLAIMS
PRINCEPS SECUNDUS LLC,
Counterclaim-Plaintiff,
v.
APPLE INC.,
Counter-Defendant.
APPLE INC.,
Counterclaim-Plaintiff,
v.
PRINCEPS SECONDUS LLC,
Counterclaim-Defendant.
Case 3:19-cv-06352-EMC Document 60 Filed 05/11/20 Page 1 of 9
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Apple’s Answer and Counterclaims - 2 - Case No.: 3:19-cv-6352-EMC
Counter-Defendant Apple Inc. (“Apple”) files this Answer and Counterclaims to
Counterclaim-Plaintiff Princeps Secundus, LLC’s (“Princeps II”) Amended Counterclaims
(“Counterclaims”). Except as expressly admitted below, Apple denies each and every allegation set
forth in the Counterclaims. Apple responds to the numbered paragraphs of the Counterclaims and
the prayer for relief as follows:
NATURE OF THE ACTION
1. Apple admits that Princeps II purports to bring a counterclaim for patent
infringement arising under the patent laws of the United States, 35 U.S.C. §§ 1 et seq. Apple denies
that Princeps II states a meritorious claim for patent infringement against Apple and denies that it
has infringed the asserted patent in this District or elsewhere.
THE PARTIES
2. Apple lacks sufficient information to form a belief as to the truth of the allegations in
Paragraph 2 of the Counterclaims and on that basis denies them.
3. Apple admits that it is organized under the laws of the state of California having a
principal place of business at One Apple Park Way, Cupertino, California 95014. Apple admits that
it has regular and established places of business in this District including Apple Stores that sell
Apple-branded products. Apple denies the remaining allegation in Paragraph 3, including
specifically denying that Apple retail stores sold and/or sell infringing products in this District or
elsewhere.
JURISDICTION AND VENUE
4. Apple admits that this Court has subject matter jurisdiction over meritorious actions
for patent infringement generally under 28 U.S.C. § 1331 and 1338(a). Apple denies that Princeps II
states a meritorious claim for patent infringement against Apple and denies it has infringed the
asserted patent in this District or elsewhere.
5. Apple admits the allegations in Paragraph 5.
6. Apple admits that it conducts business in this District and that it is not challenging
personal jurisdiction in this matter. Apple denies the remaining allegations in Paragraph 6,
Case 3:19-cv-06352-EMC Document 60 Filed 05/11/20 Page 2 of 9
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Apple’s Answer and Counterclaims - 3 - Case No.: 3:19-cv-6352-EMC
including denying any and all allegations that Apple has infringed the asserted patent in this District
or elsewhere.
7. Apple admits that it distributes, offers for sale, and sells Apple products in the
United States and in this District, and that it is not challenging personal jurisdiction in this matter.
Apple denies the remaining allegations in Paragraph 7, including denying any and all allegations
that Apple has infringed the asserted patent in this District or elsewhere.
8. Apple admits that it transacts business in this District and that it is not challenging
personal jurisdiction in this matter. Apple denies the remaining allegations in Paragraph 8,
including denying any and all allegations that Apple has infringed the asserted patent in this District
or elsewhere.
BACKGROUND
9. Apple admits that Exhibit A to the Counterclaims appears on its face to be an
uncertified copy of U.S. Patent No. 6,703,963 (“the ‘963 patent”). Apple further admits that the face
of the ‘963 patent lists Timothy B. Higginson as the inventor of the ‘963 patent. Apple is without
sufficient information to form a belief of the truth of the remaining allegations in Paragraph 9 and
on that basis denies them.
10. Apple admits that the face of the’963 patent states that provisional patent application
No. 60/323,680 was filed on September 20, 2001. Apple lacks sufficient information to form a
belief as to the truth of the remaining allegations set forth in Paragraph 10 and on that basis denies
them.
11. Apple admits that Paragraph 11 includes language that appears in the specification of
the ‘963 patent. Apple lacks sufficient information to form a belief as to the truth of the remaining
allegations set forth in Paragraph 11 of the Counterclaims and on that basis denies them.
12. Apple admits that Paragraph 12 includes language that appears in the specification of
the ‘963 patent. Apple lacks sufficient information to form a belief as to the truth of the remaining
allegations set forth in Paragraph 12 of the Counterclaims and on that basis denies them.
Case 3:19-cv-06352-EMC Document 60 Filed 05/11/20 Page 3 of 9
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Apple’s Answer and Counterclaims - 4 - Case No.: 3:19-cv-6352-EMC
Technological Innovation
13. Apple admits that Paragraph 13 includes language that appears in the specification of
the ‘963 patent. Apple denies the remaining allegations in Paragraph 13 of the Counterclaims.
14. Apple denies the allegations set forth in Paragraph 14 of the Counterclaims.
15. Apple denies the allegations set forth in Paragraph 15 of the Counterclaims.
16. Apple denies the allegations set forth in Paragraph 16 of the Counterclaims.
17. Apple denies the allegations set forth in Paragraph 17 of the Counterclaims.
18. Apple denies the allegations set forth in Paragraph 18 of the Counterclaims.
COUNT I - INFRINGEMENT OF U.S. PATENT NO. 6,703,963
19. Apple incorporates by reference each of its responses set forth in Paragraphs 1-18
above as if fully set forth herein.
20. Apple admits that the face of the ‘963 patent bears a “Date of Patent” of March 9,
2004 and is titled “Universal Keyboard.” Apple lacks sufficient information to form a belief as to
the truth of the remaining allegations set forth in Paragraph 20 of the Counterclaims and on that
basis denies them.
21. Apple denies any allegation of infringement of the ‘963 patent. Apple lacks
sufficient information to form a belief as to the truth of any remaining allegations set forth in
Paragraph 21 of the Counterclaims and on that basis denies them.
22. Apple admits that Exhibits A-1 and A-2 appear to be Princeps II’s preliminary and
exemplary claim charts. Apple denies the remainder of the allegations in Paragraph 22, and
specifically denies that it has committed any acts of infringement.
23. Apple denies the allegations of Paragraph 23, and specifically denies that it
committed any acts of infringement.
24. Apple admits that it was served with a complaint in the District of Delaware
identifying the ‘963 patent on or around June 18, 2019. Apple denies the remaining allegations of
Paragraph 24, and specifically denies that it committed any acts of infringement.
Case 3:19-cv-06352-EMC Document 60 Filed 05/11/20 Page 4 of 9
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Apple’s Answer and Counterclaims - 5 - Case No.: 3:19-cv-6352-EMC
25. Apple denies the allegations of Paragraph 25, and specifically denies that it
committed any acts of infringement.
26. Apple admits that it is a for-profit organization. Apple denies the remaining
allegations of Paragraph 26, and specifically denies that it committed any acts of infringement.
27. Apple denies the allegations of Paragraph 27, and specifically denies that it has
committed any act of infringement.
28. Paragraph 28 does not contain facts that Apple must admit or deny. To the extent
Paragraph 28 contains any allegations that require a response, Apple denies them and specifically
denies that it committed any acts of infringement.
JURY DEMAND
29. Paragraph 29 does not contain facts that Apple must admit or deny.
PRAYER FOR RELIEF
30. Princeps II’s prayers for relief (A)-(D) each contain a request for relief to which no
response is required. To the extent that a response is required to Princeps II’s prayer for relief,
Apple denies that Princeps II is entitled to any relief from Apple in connection with the
Counterclaims including, without limitation, the relief specified in Princeps II’s prayer for relief
contained in Paragraph 34(A)-(D).
APPLE’S DEFENSES
Apple pleads the following defenses to Counterclaim-Plaintiff’s Counterclaim. Apple
reserves the right to amend its Answer to add additional defenses not presented herein, including
but not limited to those defenses revealed during discovery. Without admitting or acknowledging
that Apple bears the burden of proof as to any of the following, based on information and belief,
Apple asserts the following defenses:
FIRST DEFENSE
One or more of the claims of the ‘963 patent are invalid for failure to meet the conditions of
patentability and/or otherwise comply with one or more provisions of 35 U.S.C. §§ 101 et seq.,
Case 3:19-cv-06352-EMC Document 60 Filed 05/11/20 Page 5 of 9
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Apple’s Answer and Counterclaims - 6 - Case No.: 3:19-cv-6352-EMC
including 35 U.S.C. §§ 101, 102, 103 and/or 112. Apple incorporates the allegations in its
counterclaims.
SECOND DEFENSE
Apple has not directly or indirectly infringed, either literally or under the doctrine of
equivalents, any valid claim of the ‘963 patent. Apple incorporates the allegations in its declaratory
judgment complaint.
THIRD DEFENSE
Counterclaim-Plaintiff’s claims for infringement of the ‘963 patent are barred, in whole or
in part, by the doctrines of prosecution history estoppel and/or prosecution disclaimer due to
representations, amendments, arguments, and admissions made to the United States Patent and
Trademark Office during prosecution of the ‘963 patent.
FOURTH DEFENSE
Counterclaim-Plaintiff’s claims for alleged damages or costs are barred, in whole or in part,
by 35 U.S.C. § 288.
FIFTH DEFENSE
Counterclaim-Plaintiff’s pleading fails to state a claim for patent infringement or to state a
claim upon which relief can be granted.
COUNTERCLAIMS
Apple incorporates by reference its above responses as if fully set forth herein. In
accordance with Rule 13 of the Federal Rules of Civil Procedure, Apple asserts the following
counterclaims against Princeps II.
PARTIES
1. Apple is a California corporation having its principal place of business at 1 Apple
Park Way, Cupertino, California 95014.
2. On information and belief, Counterclaim-Defendant Princeps Secundus LLC is a
limited liability company organized under the laws of the State of Delaware with a place of
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Apple’s Answer and Counterclaims - 7 - Case No.: 3:19-cv-6352-EMC
business at Princeps Secundus LLC, 261 West 35th Street, Suite No. 1003, New York, New York
10001.
JURISDICTION AND VENUE
3. The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§
1331 and 1338(a) because this action involves claims arising under the patent laws of the United
States, 35 U.S.C. § 1, et seq., and under the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201
and 2202.
4. Princeps II has consented to this Court’s personal jurisdiction by asserting
counterclaims for patent infringement against Apple in this Court.
5. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(b) and 1391(c).
COUNT I
(Declaration of Invalidity of U.S. Patent No. 6,703,963)
6. Apple repeats and realleges Paragraphs 1 through 5 of this Counterclaim.
7. None of the asserted claims of the ‘963 patent are valid because the claims fail to
meet the conditions of patentability and/or otherwise comply with one or more provisions of 35
U.S.C. § 101 et seq., including 35 U.S.C. §§ 101, 102, 103, and/or 112.
8. For example, at least claim 1 of the ‘963 patent is invalid as anticipated and/or
obvious under 35 U.S.C. §§102 and/or 103 in view of at least U.S. Patent No. 6,597,374 to Baker,
Sanchez, and Tobey, alone or in combination with other prior art. The ‘374 Patent was filed on
November 12, 1998 and discloses an input device with a “functional mode control for selecting a
first functional mode of operation” (e.g., touchscreen 16 or wheel 24 in Figure 1 for selecting a first
functional mode among multiple functional modes, e.g., “Watch TV,” “Watch DVD,” or “Watch a
Video,” etc.). The ‘374 Patent further discloses “a domain control for selecting one of multiple
domain levels within the first functional mode” (e.g., soft buttons 94 and 96 to select among
multiple domain levels, e.g., “Page 1 of 2” or “Page 2 of 2” as reflected in Figures 6A and 6B). The
‘374 Patent further discloses “a plurality of input keys, separate and distinct from the domain
control” (e.g., soft buttons depicted in Figures 6A and 6B). The ‘374 Patent discloses a “functionCase 3:19-cv-06352-EMC Document 60 Filed 05/11/20 Page 7 of 9
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Apple’s Answer and Counterclaims - 8 - Case No.: 3:19-cv-6352-EMC
specific display indicating a domain-level value associated with each input key” (e.g., “8” in Figure
6A and “Mute” in Figure 6B). And the aforementioned input keys (soft buttons) are presented
simultaneously with the domain controls (e.g., buttons 94/96). Attached as Exhibit 1 is a true and
correct copy of the ‘374 Patent.
9. Additionally, all asserted claims of the ‘963 patent are invalid because they claim
patent-ineligible subject matter in violation of 35 U.S.C. § 101 and Alice Corp. Pty. Ltd. v. CLS
Bank International, 573 U.S. 208 (2014). First, the claims at issue are directed to “patent-ineligible
concepts,” id., including the abstract idea of displaying and using a keyboard with multiple input
values assigned to each key. Keyboards have existed for well over one hundred years. Having a
mobile computer perform the functions of a keyboard does not transform this abstract idea into one
that is patentable. Second, the asserted claims “both individually and ‘as an ordered combination,’”
do not “transform the nature of the claim into a patent-eligible application.” Id. (quoting Mayo, 566
U.S. at 75-80). More specifically, the claims do not contain an “inventive concept’—i.e., an element
or combination of elements that is sufficient to ensure that the patent in practice amounts to
significantly more than a patent upon the ineligible concept itself. Id. at 235 (quoting Mayo, 566
U.S. at 72-73). Again, the claims recite nothing more than a keyboard with keys that can represent
more than one character. Typewriters and QWERTY keyboards have long had this functionality.
The claims do not improve the functionality of a computer. The asserted claims likewise do not
claim any improvements to the alleged disadvantages of any of the prior art. However, even if the
claims did recite any such improvements, e.g., a keyboard smaller than prior art QWERTY
keyboards, they would still not contain an inventive concept under step 2 of Alice.
10. Paragraph 22 of Princeps II’s Counterclaims asserts that Apple has infringed and
continues to infringe at least claim 1 of the ‘963 Patent.
11. There exists a substantial controversy of sufficient immediacy and reality to warrant
the issuance of a declaratory judgment as to whether the asserted claims of the ‘963 patent are valid.
12. Apple is entitled to a judicial determination that the asserted claims, including at
least claim 1, of the ‘963 patent are invalid.
Case 3:19-cv-06352-EMC Document 60 Filed 05/11/20 Page 8 of 9
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Apple’s Answer and Counterclaims - 9 - Case No.: 3:19-cv-6352-EMC
PRAYER FOR RELIEF
WHEREFORE, Apple respectfully requests entry of judgment in its favor and against
Counterclaim-plaintiff as follows:
A. Enter judgment declaring that each asserted claim in the ‘963 patent is invalid;
B. That the Court find this to be an exceptional case under 35 U.S.C. § 285, entitling
Apple to an award of reasonable attorney’s fees;
C. That the Court award Apple its costs associated with this case;
D. For such other and further relief as the Court may deem just, proper, and equitable.
May 11, 2020 Respectfully Submitted
SHOOK, HARDY & BACON L.L.P.
By: /s/ Ryan J. Schletzbaum
Attorney for Apple Inc.
Case 3:19-cv-06352-EMC Document 60 Filed 05/11/20 Page 9 of 9
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Exhibit D
Case 3:19-md-02913-WHO Document 3817-4 Filed 02/24/23 Page 1 of 9
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Juror Questionnaire
NAME (Please print):
1. Gender: Age: Place of birth:
2. a. City/neighborhood where you live: For how long?
3. a. What is the last level of education you completed?
❑ Grade school or less ❑ Some college (no degree)
❑ Some high school ❑ 2-year Associate of Arts degree
❑ High school graduate ❑ 4-year College graduate (Major: )
❑ Technical/Business School ❑ Post graduate study (Major/degree: )
b. What schools did you attend?
c. Please list any certificates or degrees you have obtained:
4. What is your employment status?
❑ Employed full time ❑ Running household ❑ Retired for year(s)
❑ Employed part-time ❑ Unemployed ❑ Full time student ❑ Other:
5. Please list the primary jobs you have had in the past, beginning with your current or most recent
employment. If retired or unemployed, please indicate the last job you had.
Dates of
Employment
Employer Occupation Duties
6. Do you currently or have you ever had any management or supervisory responsibilities? ❑ Yes ❑
No If Yes, was it: ❑ Senior management ❑ Middle management ❑ Entry-level management
Please explain, including which job(s), your duties, and how many people you supervise(d):
7. Do you currently or have you ever served on a board of directors? ❑ Yes ❑ No
Please describe when, for what entity, and your duties: ___________________________________
_________________________________________________________________________________
_________________________________________________________________________________
8. What is your marital status?
❑ Single, never married ❑ Married for years ❑ Divorced/Separated
❑ Living with partner ❑ Widowed/Widower ❑ Other:
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9. What is your spouse/partner’s primary employment status?
❑ Employed full time ❑ Running Household ❑ Retired for year(s)
❑ Employed part-time ❑ Unemployed ❑ Full-time Student ❑ Other:
10. Please list the jobs your spouse/partner has had in the past, beginning their current or most
recent employment. If retired or unemployed, please indicate the last job they had.
Dates of
Employment
Employer Occupation Duties
11. If you have any children, please fill in the list below.
Gender Age Do they live
with you?
Education Occupation /School Attending If married, list their
Spouse’s Occupation
❑ Yes ❑ No
❑ Yes ❑ No
❑ Yes ❑ No
❑ Yes ❑ No
12. If there are any other adults (besides spouse/partner and children) in your household, please
provide their employment information below. If any are retired or unemployed, please indicate
the last job they had.
Relationship Age Occupation Employer
13. What are/were your parents’ occupations? (List even if retired or deceased)
Mother: Father:
Guardian:
14. What social, political, civic, church, trade or other organizations are you associated with?
15. Have you or has anyone close to you ever owned your own business or operated a franchise?
❑ Yes ❑ No If Yes, please explain, including type of business, number of employees, whether still
operating, and/or how it ended:
Was the business ever sued or was a claim ever brought against it? ❑ Yes ❑ No If Yes, please
explain:
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16. Do you or anyone close to you have a financial interest in, work for, own stock in, or otherwise have
a financial relationship with any of the following:
JUUL Labs, Inc. ❑ Yes ❑ No
Altria Group, Inc. ❑ Yes ❑ No
Philip Morris USA ❑ Yes ❑ No
Pax Labs ❑ Yes ❑ No
Tao, LLC ❑ Yes ❑ No
Tao Invest. LLC ❑ Yes ❑ No
Tao Capital Partners ❑ Yes ❑ No
JL Special, LLC ❑ Yes ❑ No
Kataly Foundation ❑ Yes ❑ No
Global Asset Capital ❑ Yes ❑ No
If Yes, please explain:
17. Do you or anyone close to you work for the San Francisco Unified School District (SFUSD)? ❑ Yes ❑ No
If Yes, please explain:
18. Have you or has anyone close to you worked for the San Francisco Unified School District (SFUSD) in the
past? ❑ Yes ❑ No If Yes, please explain:
19. Do you or anyone close to you have any children currently attending school in the San Francisco Unified
School District (SFUSD)? ❑ Yes ❑ No If Yes, please explain, including which schools:
20. Did you, your partner or your children (if applicable) attend any SFUSD schools in the past? ❑ Yes ❑ No
If Yes, please explain, including who/relationship to you, and which schools:
When was the last time you/your partner/children attended a SFUSD school?
21. What is your opinion of the San Francisco Unified School District? ❑ Positive ❑ Negative ❑ No Opinion
Please explain:
22. What is your opinion of JUUL Labs, Inc.? ❑ Positive ❑ Negative ❑ No Opinion Please explain:
23. What is your opinion of Altria (meaning Altria Group Inc., Philip Morris USA, Inc. and Altria-related
entities)? ❑ Positive ❑ Negative ❑ No Opinion Please explain:
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24. Do you, a family member, or someone close to you have expertise or ever had any training, courses
or worked in or around the following areas?
Addiction ❑ Yes, self ❑ Yes, family ❑ Yes, someone close
Advertising ❑ Yes, self ❑ Yes, family ❑ Yes, someone close
Convenience Store ❑ Yes, self ❑ Yes, family ❑ Yes, someone close
Counselling ❑ Yes, self ❑ Yes, family ❑ Yes, someone close
Engineering ❑ Yes, self ❑ Yes, family ❑ Yes, someone close
Environmental Protection Agency (EPA) ❑ Yes, self ❑ Yes, family ❑ Yes, someone close
Education/Teaching/Administration ❑ Yes, self ❑ Yes, family ❑ Yes, someone close
Food and Drug Administration (FDA) ❑ Yes, self ❑ Yes, family ❑ Yes, someone close
Finance/Investments ❑ Yes, self ❑ Yes, family ❑ Yes, someone close
Insurance/Claims ❑ Yes, self ❑ Yes, family ❑ Yes, someone close
Legal ❑ Yes, self ❑ Yes, family ❑ Yes, someone close
Marketing ❑ Yes, self ❑ Yes, family ❑ Yes, someone close
Psychology ❑ Yes, self ❑ Yes, family ❑ Yes, someone close
Research and Development ❑ Yes, self ❑ Yes, family ❑ Yes, someone close
Social Media ❑ Yes, self ❑ Yes, family ❑ Yes, someone close
Social Work Yes, self Yes, family Yes, someone close
Technology/Software/Hardware ❑ Yes, self ❑ Yes, family ❑ Yes, someone close
Tobacco Industry ❑ Yes, self ❑ Yes, family ❑ Yes, someone close
Product Design/Development ❑ Yes, self ❑ Yes, family ❑ Yes, someone close
If Yes to any of the above, please explain:
25. Which best describes your cigarette smoking history?
❑ Current smoker ❑ Former smoker ❑ Never smoked
If current smoker, how many per day? ________
If current smoker, have you tried to quit smoking in the past? ❑ Yes ❑ No
If former smoker, how many per day? ________ When did you quit? ________
26. Did your parents/guardians smoke cigarettes when you were growing up? ❑ Yes ❑ No If Yes, please
explain:
Did they ever quit smoking? ❑ Yes ❑ No If Yes, how old were you when they quit?
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27. Does anyone close to you currently smoke cigarettes? ❑ Yes ❑ No If Yes, please explain, including
who/relationship to you, how long they have smoked, and how much they smoke:
Has the person tried to quit smoking in the past? ❑ Yes ❑ No ❑ Don’t Know
28. Do you currently use electronic cigarettes / vape devices? ❑ Yes ❑ No
Have you used electronic cigarettes / vape devices in the past? ❑ Yes ❑ No
If Yes, to either, how often per day?
How old were you when you started? ________ How long have/did you used electronic cigarettes /
vape devices?
What brand(s) of electronic-cigarettes / vape devices have you used?
Did you/do you use any flavored electronic cigarettes / vape products? ❑ Yes ❑ No
If Yes, which flavor(s)?
Have you ever tried to quit? ❑ Yes ❑ No If Yes, how many times
29. Has anyone close to you used electronic cigarettes / vape devices? ❑ Yes ❑ No If Yes, please
explain:
Who/
Relationship to
you:
Age? Current or
former?
How often
per day?
For how
Long?
Brand(s) / Flavors: Did they formerly
smoke traditional
cigarettes?
`
30. Have you read, seen, or heard anything about JUUL brand e-cigarettes? ❑ Yes ❑ No If Yes, please
explain: __________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
31. Have you ever served on a jury before? ❑ Yes ❑ No If Yes, please complete for each case:
Civil or Criminal Nature of the Case When/Where Verdict Reached? Foreperson?
❑ Civil ❑ Crim. ❑ Yes ❑ No ❑ Yes ❑ No
❑ Civil ❑ Crim. ❑ Yes ❑ No ❑ Yes ❑ No
❑ Civil ❑ Crim. ❑ Yes ❑ No ❑ Yes ❑ No
32. Have you or anyone in your family ever been sued by anyone, even in small claims court?
❑ Yes ❑ No
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If Yes, please explain, including who, the nature of claim, and outcome:
Were you satisfied with the result? ❑ Yes ❑ No Please explain:
33. Have you or anyone in your family ever sued anyone, even in small claims court? ❑ Yes ❑ No
If Yes, please explain, including who, the nature of claim, and outcome:
Were you satisfied with the result? ❑ Yes ❑ No Please explain:
34. Have you recently suffered a significant emotional or financial loss (of a loved one, a job, home, or
other)? ❑ Yes ❑ No If Yes, please explain:
35. Have you or anyone close to you ever been a witness, given a deposition and/or testified in any
proceeding? ❑ Yes ❑ No If Yes, please explain:
36. Do you support caps or limits on the amount of money juries can award in civil cases? ❑ Yes ❑ No
If Yes, please explain:
37. Punitive damages are money damages awarded against defendants in civil lawsuits to punish bad
conduct and prevent future bad behavior. What is your opinion about punitive damages?
❑ Positive ❑ Negative Please explain:
38. To what extent do you agree or disagree with the following statements:
a. Most lawsuits today are about people looking for “deep pockets.”
❑ Strongly Agree ❑ Agree ❑ Disagree ❑ Strongly Disagree
b. There is nothing wrong with corporations trying to make as much profit as they can.
❑ Strongly Agree ❑ Agree ❑ Disagree ❑ Strongly Disagree
c. Consumer product lawsuits only drive up costs and do little good.
❑ Strongly Agree ❑ Agree ❑ Disagree ❑ Strongly Disagree
39. Do you have any physical or medical problems that would affect your service as a juror in this case?
❑ Yes ❑ No If Yes, please explain:
Case 3:19-md-02913-WHO Document 3817-4 Filed 02/24/23 Page 7 of 9 Case 3:19-md-02913-WHO Document 3599 Filed 10/14/22 Page 6 of 8
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40. Do you have any ethical, religious, political, or other beliefs or opinions that would affect your
ability to be a juror in this case? ❑ Yes ❑ No If Yes, please explain:
41. Is there any other information that you would like the Court to know about your ability to serve as
an impartial juror in this case? ❑ Yes ❑ No If Yes, please explain:
42. Please carefully read the following list of names and place a check mark by the names of any of the
individuals that you personally know, think you may know, or have any type of affiliation or
relationship with:
o Adam Bowen o James Monsees o Riaz Valani o Nicholas Pritzker
o Hoyoung Huh o[all trial witnesses] o o
o o o o
o o o o
o o o o
o o o o
o o o o
o o o o
o o o o
o o o o
o o o o
o o o o
o o o o
o o o o
o o o o
o o o o
o o
If you checked any of the above, please explain your relationship with any of the names you
checked:
Case 3:19-md-02913-WHO Document 3817-4 Filed 02/24/23 Page 8 of 9 Case 3:19-md-02913-WHO Document 3599 Filed 10/14/22 Page 7 of 8
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Thank you for your honest and complete answers. Before returning this questionnaire, please check
to see if you have skipped any questions and respond to those questions. Be sure to write “Private”
next to any questions that you would prefer to take up with the judge and attorneys outside the
presence of the other prospective jurors.
I certify, under penalty of perjury, that the answers given above are true and correct.
Dated:
Signature of Juror
Case 3:19-md-02913-WHO Document 3817-4 Filed 02/24/23 Page 9 of 9 Case 3:19-md-02913-WHO Document 3599 Filed 10/14/22 Page 8 of 8
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Case 3:19-cv-06361-RS Document 394 Filed 11/09/23 Page 1 of 8
Case 3:19-cv-06361-RS Document 394 Filed 11/09/23 Page 2 of 8
Case 3:19-cv-06361-RS Document 394 Filed 11/09/23 Page 3 of 8
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for comment or input, the attorney-client privilege attaches to the draft and remains intact even
after the final document is disclosed,” id., even if “[the] document [was] prepared for a business
purpose,” In re Premera Blue Cross Customer Data Sec. Breach Litig., 329 F.R.D. 656, 662 (D.
Or. 2019). Contrary to BRS’s contention, “[t]he determination of what information should be
disclosed for compliance [with securities laws and regulations] is not merely a business operation,
but a legal concern.” Roth v. Aon Corp., 254 F.R.D. 538, 541 (N.D. Ill. 2009). Thus,
communications for the purpose of receiving or rendering legal advice relating to “crafting a proxy
statement that complies with securities laws” are privileged. NECA-IBEW Pension Tr. Fund v.
Precision Castparts Corp., 2019 WL 4750251, at *2 (D. Or. Sept. 27, 2019). “Counsel [may also]
render[] legal advice throughout the process of structuring and implementing [a] transaction.” U.S.
v. ChevronTexaco Corp., 241 F. Supp. 2d 1065, 1069 (N.D. Cal. 2002). Here, the at-issue portions
of the documents at Log Nos. 1887–89, 4816, 4941, 10185, 10228, and 13741 contain and/or
reveal Uber’s attorney-client communications for the purpose of receiving or providing legal
advice regarding regulatory disclosures or filings, including compliance with SEC regulations
regarding financial reporting. That the portions concern Uber’s business (or may implicate
accounting issues) is irrelevant. “A client is entitled to hire a lawyer, and have his secrets kept,
for legal advice regarding the client’s business affairs.” U.S. v. Chen, 99 F.3d 1495, 1501 (9th Cir.
1996); see also Staley v. Gilead Scis., Inc., 2021 WL 4318403, at *2 (N.D. Cal. July 16, 2021)
(“[P]rivilege can still obtain even where a business decision is implicated.”).
BRS’s characterization of the email chains at Log Nos. 4941 and 10228 as “primarily between
non-attorneys” is a red herring; the targeted redactions at issue are in emails from an attorney or
describe discussions with the attorney. Similarly, BRS’s complaint that the request for legal advice
is not explicit is irrelevant; a privileged “request for legal advice need not be express.” Gramercy
Grp., Inc. v. D.A. Builders, LLC, 2017 WL 5179530, at *3 (D. Haw. Nov. 8, 2017); see also Karl
Storz Endoscopy-Am., Inc. v Stryker Corp., 2010 WL 727220, at *2 (N.D. Cal. Mar. 1, 2010).
BRS’s argument that Log Nos. 4816 and 10185 are not privileged because an in-house lawyer is
merely copied likewise fails. The in-house lawyer was explicitly addressed in the first email in
the chain. And even if he was not, non-lawyer communications are privileged if, for example,
they discuss the “intent to seek legal advice about a particular issue,” Datel Holdings Ltd. v.
Microsoft Corp., 2011 WL 866993, at *5 (N.D. Cal. Mar. 11, 2011), or had “the purposes of
transmitting information to legal counsel so they may provide legal advice,” Stevens v. Corelogic,
Inc., 2016 WL 397936, at *7 (S.D. Cal. Feb. 2, 2016), which is contrary to BRS’s misreading of
Eventbrite, Inc. v. M.R.G. Concerts Ltd., 2021 WL 3286827, at *2 (N.D. Cal. Aug. 2, 2021).
BRS’s attempt to characterize the attorney communications at Log Nos. 1887-89 as merely
relating to “segment reporting” ignores that segment reporting implicates SEC disclosure issues
for which Uber needed legal advice. Unlike in Anastasion v. Credit Serv. of Logan, Inc., 2010
WL 94008, at *2 (D. Utah Jan. 8, 2010), these materials are not just mere “financial summaries,”
and unlike in LightGuard Sys., Inc. v. Spot Devices, Inc., 281 F.R.D. 593, 605 (D. Nev. 2012),
there are no waiver issues and no dispute that these are confidential communications with
attorneys. These issues “require[d] a knowledge of [] law beyond that possessed by [accountants]”
and thus make the “lawyer’s assistance . . . legal in nature.” Roseville Emps.’ Ret. Sys. v. Apple
Inc., 2022 WL 3083000, at *10 n.5 (N.D. Cal. Aug. 3, 2022). The redaction in Log No. 13741 is
likewise proper because it involves legal advice regarding Uber’s IPO and preparation of required
regulatory filings. Finally, BRS’s reliance on Dolby and Shenwick is inappropriate because the
documents here involve attorney-client communications for purposes of obtaining legal advice.
Case 3:19-cv-06361-RS Document 394 Filed 11/09/23 Page 4 of 8
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See Dolby, 402 F. Supp. 3d at 872 (communication related to business impact of removing certain
technology from a product); Shenwick, 2018 WL 5750119, at *2.
Communications about factual information to obtain or render legal advice are privileged.
Information compiled by non-attorneys “for the purpose of seeking legal advice and later
communicated to counsel are protected by [the] attorney-client privilege.” AT&T Corp. v.
Microsoft Corp., 2003 WL 21212614, at *3 (N.D. Cal. Apr. 18, 2003) (citation omitted); see also
U.S. ex rel. Schmuckley v. Rite Aid Corp., 2023 WL 425841, at *2 (E.D. Cal. Jan. 26, 2023)
(collecting cases); Roseville, 2022 WL 3083000, at *25. The same is true for “communications
about facts that relate to potential legal liability” of the type at issue here. See Roseville, 2022 WL
3083000, at *14; see also Fox v. Shinseki, 2013 WL 11319070, at *5-6 (N.D. Cal. June 11, 2013).
And it is wrong to state that “PowerPoints and excel sheets are simply not privileged.” See, e.g.,
Hart v. TWC Prod. & Tech. LLC, 2022 WL 1529407, at *2 (N.D. Cal. Apr. 11, 2022); U.S. v.
Electron Hydro LLC, 2021 WL 1909800, at *9 (W.D. Wash. May 12, 2021). The redacted portions
of the documents at Log Nos. 1998, 14326 and 14345 contain and/or reveal attorney-client
communications for the purpose of receiving or providing legal advice regarding regulatory
disclosures or filings, including compliance with SEC regulations regarding financial reporting.
The redacted portions of Log No. 9497 contain and/or reveal attorney-client communications for
the purpose of receiving or providing legal advice regarding passenger safety issues that could
give rise to potential legal liability. Log No. 1998 is privileged regardless of whether the
redactions are under the “Action/Event/Meeting” column because “[m]aterials . . . that reflect
matters about which the client intends to seek legal advice are comparable to notes a client would
make to prepare for a meeting with her lawyer . . . . It would undermine the purpose of the attorneyclient privilege not to extend protection to such notes.” ChevronTexaco, 241 F. Supp. 2d at 1077.
The same goes for the redactions in Log No. 9497. The “overall tenor” and contents of Log No.
14326 clearly indicate that they relate to SEC disclosures and compliance—underlying requests or
provisions of legal advice and discussions of factual information embedded in such
communications are protected by the attorney-client privilege. See Karl, 2010 WL 727220, at *2.
And the redacted material at Log No. 14345 “directly [and] indirectly reveal[s] communications
of a confidential nature by [Uber] to [its] attorney[s].” U.S. v. Christensen, 828 F.3d 763, 802 (9th
Cir. 2015).
These documents were not prepared in the normal course of business and do not constitute mere
factual information. Instead, they were prepared at the direction of counsel, or for purposes of
seeking or providing legal advice, and are protected from disclosure by the attorney-client
privilege. See, e.g., AT&T, 2003 WL 21212614, at *3 (documents containing factual analysis
privileged because they addressed matters upon which party intended to seek legal advice). BRS’s
own cases reinforce this point. See Upjohn, 449 U.S. at 395–96 (“[T]he protection of the privilege
extends . . . to communications . . . . A fact is one thing and a communication concerning that fact
is an entirely different thing.”) (citation and quotation marks omitted); Dolby, 402 F. Supp. 3d at
869 (analysis or opinions about facts for the purpose of seeking legal advice are privileged).
In sum, BRS’s challenges to the Log are baseless and fail to demonstrate any need for in camera
review. See AT&T, 2003 WL 21212614, at *8; see also In re Grand Jury Investigation, 974 F.2d
1068, 1075 (9th Cir. 1992). If the Court is nevertheless inclined to entertain BRS’s challenges or
request for in camera review, Uber respectfully requests full briefing of the dispute.
Case 3:19-cv-06361-RS Document 394 Filed 11/09/23 Page 5 of 8
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BRS’s counsel and counsel for Uber attest that they have met and conferred regarding these
discovery issues, with the last meet and confer occurring on November 8, 2023. Uber requests oral
argument. BRS believes this matter should be decided on the written submission herein, or via in
camera review of the limited documents being presented to this Court.
Case 3:19-cv-06361-RS Document 394 Filed 11/09/23 Page 6 of 8
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Respectfully submitted,
LABATON SUCHAROW LLP
By: /s/ Alfred L. Fatale III
Jonathan Gardner (admitted pro hac vice)
Alfred L. Fatale III (admitted pro hac vice)
Joseph N. Cotilletta (admitted pro hac vice)
Beth C. Khinchuk (admitted pro hac vice)
Charles J. Stiene (admitted pro hac vice)
140 Broadway
New York, NY 10005
Telephone: (212) 907-0700
Facsimile: (212) 818-0477
Email: [email protected]
[email protected]
[email protected]
[email protected]
[email protected]
Lead Counsel for the Class
LEVI & KORSINSKY LLP
Gregory M. Nespole (admitted pro hac vice)
55 Broadway, 10th Floor
New York, NY 10006
Telephone: (212) 363-7500
Facsimile: (212) 363-1294
Email: [email protected]
-andAdam M. Apton (SBN 316506)
388 Market Street, Suite 1300
San Francisco, CA 94111
Telephone: (415) 373-1671
Facsimile: (415) 484-1294
Email: [email protected]
Liaison Counsel for Lead Plaintiff
Boston Retirement System
SHEARMAN & STERLING LLP
By: /s/ Daniel H.R. Laguardia
Daniel H.R. Laguardia (SBN 314654)
535 Mission Street, 25th Floor
San Francisco, CA 94105-2997
Telephone: (415) 616-1100
Facsimile: (415) 616-1199
Email: [email protected]
-andPaula Anderson (admitted pro hac vice)
Agnès Dunogué (admitted pro hac vice)
Dennis D. Kitt (admitted pro hac vice)
599 Lexington Avenue
New York, NY 10022-6069
Telephone: 212.848.4000
Facsimile: 212.848.7179
Email: [email protected]
[email protected]
[email protected]
Attorneys for Defendants Uber Technologies,
Inc., Dara Khosrowshahi, Nelson Chai,
Glen Ceremony, Ronald Sugar, Ursula
Burns, Garrett Camp, Matt Cohler, Ryan
Graves, Arianna Huffington, Travis
Kalanick, Wan Ling Martello, Yasir AlRumayyan, John Thain, and David Trujillo
Cc: All Counsel of Record (via ECF)
Case 3:19-cv-06361-RS Document 394 Filed 11/09/23 Page 7 of 8
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ECF ATTESTATION
Pursuant to Civil L.R. 5-1(i)(3), the filer attests that concurrence in the filing of this
document has been obtained from each of the other signatories thereto.
Executed this 9th day of November, 2023.
/s/ Alfred L. Fatale III
Case 3:19-cv-06361-RS Document 394 Filed 11/09/23 Page 8 of 8
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JLI’s Consolidated Plaintiff
Fact Sheet Update For
Case Management Conference
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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
IN RE: JUUL LABS, INC., MARKETING SALES
PRACTICE AND PRODUCTS LIABILITY
LITIGATION
This Document Relates to All Plaintiffs Identified in
Exhibit A
3:19-md-02913 (WHO)
Hon. William H. Orrick
JUUL LABS, INC.’S CONSOLIDATED PLAINTIFF FACT SHEET UPDATE FOR
CASE MANAGEMENT CONFERENCE
Per the Court’s August 21, 2020, Minute Entry following the Case Management Conference held
on the same date (Dkt No. 915), Defendant Juul Labs, Inc. (“JLI”) hereby provides a consolidated update
informing the Court as to the status of each plaintiff identified in JLI’s Motions to Dismiss Without
Prejudice for Failure to Submit Discovery Required by Case Management Order Nos. 8 and 14 that are
noticed for hearing at the June 17, 2022, Case Management Conference. The plaintiffs identified in Exhibit
A were included in JLI’s Motions to Dismiss Without Prejudice filed on 7/18/2022 (Dkt. 3348) and
8/8/2022 (Dkt. 3376).
Case 3:19-md-02913-WHO Document 3442 Filed 09/09/22 Page 1 of 3
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JLI’s Consolidated Plaintiff
Fact Sheet Update For
Case Management Conference
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Dated: September 9, 2022 /s/ Pierce N. Giboney
Pierce N. Giboney, FL Bar 124704
GUNSTER, YOAKLEY & STEWART, P.A.
1 Independent Drive, Suite 2300
Jacksonville, FL 32202
Telephone: (904) 350-7177
Facsimile: (904) 354-2170
[email protected]
(pro hac vice)
/s/ Renee D. Smith/
Renee D. Smith
KIRKLAND & ELLIS LLP
300 North LaSalle
Chicago, IL 60654-3406
Telephone: (312) 862-2000
Facsimile: (312) 862-2200
[email protected]
Peter A. Farrell, P.C.
KIRKLAND & ELLIS LLP
1301 Pennsylvania Ave., N.W.
Washington, DC 20004
Telephone: (202) 389-5000
Facsimile: (202) 389-5200
[email protected]
Gregory P. Stone (SBN 78329)
[email protected]
Bethany W. Kristovich (SBN 241891)
[email protected]
John M. Gildersleeve (SBN 284618)
[email protected]
MUNGER, TOLLES & OLSON LLP
350 South Grand Avenue, 50th Floor
Los Angeles, CA 90071-3426
Telephone: (213) 683-9100
Facsimile: (213) 687-3702
Attorneys for Defendant Juul Labs, Inc.
Case 3:19-md-02913-WHO Document 3442 Filed 09/09/22 Page 2 of 3
JLI’s Consolidated Plaintiff
Fact Sheet Update For
Case Management Conference
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CERTIFICATE OF SERVICE
I hereby certify that on September 9, 2022, I electronically served the foregoing Consolidated
Plaintiff Fact Sheet Update for Case Management Conference on all counsel of record in this action using
the CM/ECF system.
/s/ Pierce N. Giboney
Pierce N. Giboney
Case 3:19-md-02913-WHO Document 3442 Filed 09/09/22 Page 3 of 3
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UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION
IN RE: JUUL LABS, INC., MARKETING, SALES
PRACTICES, AND PRODUCTS LIABILITY
LITIGATION MDL No. 2913
(SEE ATTACHED SCHEDULE)
CONDITIONAL TRANSFER ORDER (CTO −27)
On October 2, 2019, the Panel transferred 5 civil action(s) to the United States District Court for the
Northern District of California for coordinated or consolidated pretrial proceedings pursuant to 28
U.S.C. § 1407. See 396 F.Supp.3d 1366 (J.P.M.L. 2019). Since that time, 162 additional action(s)
have been transferred to the Northern District of California. With the consent of that court, all such
actions have been assigned to the Honorable William H. Orrick, III.
It appears that the action(s) on this conditional transfer order involve questions of fact that are
common to the actions previously transferred to the Northern District of California and assigned to
Judge Orrick.
Pursuant to Rule 7.1 of the Rules of Procedure of the United States Judicial Panel on Multidistrict
Litigation, the action(s) on the attached schedule are transferred under 28 U.S.C. § 1407 to the
Northern District of California for the reasons stated in the order of October 2, 2019, and, with the
consent of that court, assigned to the Honorable William H. Orrick, III.
This order does not become effective until it is filed in the Office of the Clerk of the United States
District Court for the Northern District of California. The transmittal of this order to said Clerk shall
be stayed 7 days from the entry thereof. If any party files a notice of opposition with the Clerk of the
Panel within this 7−day period, the stay will be continued until further order of the Panel.
FOR THE PANEL:
John W. Nichols
Clerk of the Panel
Apr 08, 2020
Case 3:19-md-02913-WHO Document 444 Filed 04/13/20 Page 1 of 2
IN RE: JUUL LABS, INC., MARKETING, SALES
PRACTICES, AND PRODUCTS LIABILITY
LITIGATION MDL No. 2913
SCHEDULE CTO−27 − TAG−ALONG ACTIONS
DIST DIV. C.A.NO. CASE CAPTION
FLORIDA MIDDLE
FLM 6 20−00536 McKnight et al v. Juul Labs, Inc. et al
Case 3:19-md-02913-WHO Document 444 Filed 04/13/20 Page 2 of 2
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KELLER ROHRBACK L.L.P.
■ 1201 THIRD AVENUE, SUITE 3200, SEATTLE, WA 98101-3052 | TELEPHONE: (206) 623-1900 | FACSIMILE: (206) 623-3384 ■
SEATTLE PHOENIX NEW YORK OAKLAND MISSOULA SANTA BARBARA
WWW.KELLERROHRBACK.COM | WWW.KRCOMPLEXLIT.COM
January 29, 2021
VIA ELECTRONIC FILING CM/ECF
The Honorable William H. Orrick
United States District Court, N.D. California
450 Golden Gate Avenue
San Francisco, CA 94102
Re: In re: Juul Labs Inc., Marketing, Sales Practices, and Products Liability
Litigation, 19-md-02913-WHO / Plaintiffs’ Response to Defendants’
Government Entity Bellwether Sequencing Proposal
Dear Judge Orrick:
This Court has repeatedly provided guidance that for reasons of efficiency and judicial
economy, the initial bellwether trials should focus on cases that it can try. See ECF No. 1125 at
1-2; Transcript of Videoconference Proceedings, January 15, 2021 at 8:1-3. Plaintiffs have
heeded the Court’s guidance and are proposing four Wave 1 bellwethers all triable by this Court.
Defendants’ have ignored the Court by proposing three Wave 1 bellwethers, none of which can
be tried by Your Honor without raising Lexecon issues.
Plaintiffs are proposing that Wave 1 consist of four government entity cases: San
Francisco Unified School District, Livermore Valley Joint Unified School District, Tucson
Unified School District and King County. Two of these entities – San Francisco and Livermore –
are located in the Northern District of California and can be tried by Your Honor. The Tucson
and King County cases can be remanded back to their home districts, the District of Arizona and
the Western District of Washington, respectively, where Your Honor can also sit by designation
and try them without any Lexecon issues. See In re Motor Fuel Temperature Sales Practice
Litigation, 711 F.3d 1050, 1053 (9th Circ. 2013) (rejecting argument that allowing an MDL judge
to sit by designation and try a remanded case raises Lexecon issues: “Lexecon dealt with venue,
not judicial case assignment”); 15 Wright & Miller, Federal Practice & Procedure § 3866.2,
n.29 (4th ed.) (“28 U.S.C.A. § 292 permits an intercircuit or intracircuit assignment of judges,
which would permit the assignment of the transferee MDL judge to the transferor district to
oversee trial.”). Unlike intercircuit assignments, which require the approval of the Chief Justice
of the United States and a Certificate of Necessity from either the chief judge or presiding justice
of the home district’s circuit, intracircuit assignments like this one may be made by the chief
judge “in the public interest.” Compare 28 U.S.C.A. § 292(d) (intercircuit assignments) with 28
U.S.C.A. § 292(b) (intracircuit assignments). The public interest in judicial efficiency and
economy is clearly served by MDL judges sitting by designation to try cases in transferor courts
that cannot be resolved pretrial.1 See In re Motor Fuel, 711 F.3d at 1053 (noting comments from
1 Plaintiffs recognize that there is conflicting authority over intercircuit assignments, though the weight of
authority permits and encourages these assignments in the interests of judicial efficiency. Compare In
re Motor Fuel Temperature Sales Practice Litigation, 711 F.3d 1050 (9th Circ. 2013) (declining to
permit intercircuit assignment) with Edward F. Sherman, WHEN REMAND IS APPROPRIATE IN
MULTIDISTRICT LITIGATION, 75 La. L. Rev. 455, 460 (2014) (noting that intercircuit assignments “are
Case 3:19-md-02913-WHO Document 1349 Filed 01/29/21 Page 1 of 3
Honorable Judge Orrick KELLER ROHRBACK L.L.P.
January 29, 2021
Page 2
Judge Motz, former chair of the Committee on Intercircuit Assignments, emphasizing the
benefits to judicial efficiency by permitting MDL judges to sit by designation).
In contrast to the Plaintiffs, Defendants have proposed one case, the City of Rochester,
that some of the Defendants suggest may be triable by Your Honor in the Northern District of
California because it was directly filed in the District. But Plaintiffs note that the Altria
Defendants are only joining in portions of Defendants’ submission that proposes each side select
three cases and identifies the three Defendant cases that would comprise Wave 1. ECF No. 1336
fn. 1. The Altria Defendants are not joining Defendants’ statement that this case is triable by
Your Honor, and will presumably seek to raise Lexecon issues, and possibly jurisdictional issues,
to avoid a trial in this District.
Defendants also seek to justify their picks by paying lip service to the argument that their
picks are somehow representative of the larger pool and hence will advance this litigation. As
explained in Plaintiffs’ initial submission, this is incorrect. Defendants’ alleged focus on
“geographic diversity” ignores the distribution of government entity cases. Resolving the only
case filed in New Hampshire (the City of Rochester) or the only case filed in Wyoming (Natrona
School District) will do little to assist in the resolution of the majority of cases in the MDL.
Moreover, none of Defendants’ bellwethers are from the jurisdictions identified as briefing
bellwethers, whereas both California and Arizona are state laws that were already subject to
extensive motion practice. Plaintiffs’ proposed bellwethers also come from states where a
number of schools and/or other government entities have filed suit, ensuring that resolution of
Plaintiffs’ selections will give the parties information about other, similar cases in the MDL. For
example, because many of the Government Entity Plaintiffs are from California, resolving any
issues specific to California law would be efficient. No trial dates are set in the JCCP as of now.
It is quite possible that this Court will try its first bellwether trials before that proceeding.
Given the limitations on the government entity bellwethers selected by Defendants there
is nothing unfair about placing all of these bellwethers into Wave 2. The Court has been clear
that it is focused on cases that it can try, and Defendants’ decision to ignore this guidance has
consequences. Plaintiffs are proposing government entity bellwethers that are consistent with the
case schedule set by the Court which provides for five trials starting in early 2022. Defendants’
proposal makes clear that they have no interest in any government entity trials occurring next
year and are instead advocating that the Court and the parties expend valuable resources
completing discovery far in advance on cases that cannot be tried on the Court’s schedule.
often granted routinely by circuit chief judges”); Hon. Eduardo C. Robreno, THE FEDERAL ASBESTOS
PRODUCT LIABILITY MULTIDISTRICT LITIGATION (MDL-875): BLACK HOLE OR NEW PARADIGM?, 23
Widener L.J. 97, 146-47 (2013) (intercircuit assignment process is routinely utilized “to ensure a
remanded case is not placed at the ‘end of the line’ or otherwise delayed for trial for lack of an available
judge.”). Regardless, this does not apply to intracircuit assignments of the type contemplated here.
Case 3:19-md-02913-WHO Document 1349 Filed 01/29/21 Page 2 of 3
Honorable Judge Orrick KELLER ROHRBACK L.L.P.
January 29, 2021
Page 3
Sincerely,
/s/ Dean Kawamoto
/s/ Sarah R. London
/s/ Dena C. Sharp
/s/ Ellen Relkin
Co-Lead Counsel for Plaintiffs
cc: MDL Counsel of Record
4817-9230-5882, v. 3
Case 3:19-md-02913-WHO Document 1349 Filed 01/29/21 Page 3 of 3
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BOSTON RETIREMENT SYSTEM,
Individually and on behalf of all others
similarly situated,
Plaintiff,
v.
UBER TECHNOLOGIES, INC., et al.,
Defendants.
Case No. 19-cv-06361-RS (DMR)
ORDER ON JULY 19, 2023 JOINT
DISCOVERY LETTER
Re: Dkt. No. 303
The parties filed a joint discovery letter on July 19, 2023 in which Defendants seek an
order staying 16 “apex” depositions, and Lead Plaintiff cross-moves to compel those depositions.
[Docket No. 303 (“JDL”).]1 On July 27, 2023, the court ordered the parties to submit additional
information regarding each potential deponent. [Docket No. 305.] On August 31, 2023, the
parties timely submitted a helpful 80-page summary chart setting forth each side’s factual support
for their position on each proposed deponent. [Docket No. 318.] On September 12, 2023, at the
court’s request, the parties filed a joint letter updating their respective positions in light of the
summary discovery set forth in their chart. [Docket No. 330.] Having reviewed the parties’
detailed evidence and arguments, the court finds that this matter is suitable for resolution without a
hearing. Civ. L.R. 7-1(b). For the following reasons, Defendants’ request to stay the depositions
is denied, and Lead Plaintiff’s request is granted in part.2
1 Defendants assert that all 16 individuals qualify as “apex” deponents. Lead Plaintiff does not
challenge this assertion.
2 Lead Plaintiff also filed two related administrative motions to consider whether another party’s
material should be sealed. [Docket Nos. 302, 319.] Defendants filed statements in support of
those motions. [Docket Nos. 304, 325.] In the first motion, Lead Plaintiff seeks to seal excerpts
of 11 documents cited in the JDL, but states that it does not believe that any of the designated
information satisfies the definition of “confidential” under the protective order in this case. In
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“When a party seeks the deposition of a high-level executive (a so-called ‘apex’
deposition), courts have observed that such discovery creates a tremendous potential for abuse or
harassment.” Apple Inc. v. Samsung Elecs. Co., Ltd, 282 F.R.D. 259, 263 (N.D. Cal. 2012).
Accordingly, the court has discretion to limit discovery “where the discovery sought can be
obtained from some other source that is more convenient, less burdensome, or less expensive.” Id.
(quotation omitted). However, concerns about a party’s potential use of an apex deposition for the
purposes of harassment must be balanced with the liberal discovery provisions of the Federal
Rules. See Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975) (“[A] strong showing
is required before a party will be denied entirely the right to take a deposition.”). The party
seeking to avoid an apex deposition bears the burden of showing good cause for why the
deposition should not be allowed. In re Transpacific Passenger Air Transportation Antitrust
Litig., No. 07-cv-05634-CRB (DMR), 2014 WL 939287, at *2 (N.D. Cal. Mar. 6, 2014); see also
Hunt v. Cont’l Cas. Co., No. 13-cv-05966-HSG, 2015 WL 1518067, at *2 (N.D. Cal. Apr. 3,
2015) (stating that the party resisting an apex deposition must show that “extraordinary
circumstances” exist that preclude taking the deposition altogether).
In considering whether to permit an apex deposition, courts examine whether the proposed
their statement, Defendants explain they only seek to seal excerpts from 9 of the cited documents.
[Docket No. 304 at 5.] For good cause shown, Lead Plaintiff’s motion is granted in part and
denied in part. By September 26, 2023, Lead Plaintiff is directed to re-file a version of the JDL
consistent with the redactions proposed in Defendants’ statement.
In the second motion, Lead Plaintiff seeks to seal the entirety of the summary chart as
confidential, but again states that it does not believe that any of the designated information
satisfies the definition of “confidential” under the protective order. In their statement, Defendants
explain they only seek to seal specific portions of the summary chart, which fall under the
following categories of “commercially sensitive and proprietary information”: 1) business strategy
and corporate decision making, 2) confidential marketing strategy, and 3) regulatory strategy and
passenger safety information. [Docket No. 325 at 3-11.] For good cause shown, Lead Plaintiff’s
motion is granted in part and denied in part. By September 26, 2023, Lead Plaintiff is directed to
re-file a version of the summary chart consistent with the redactions proposed in Defendants’
statement.
In granting these two sealing motions, the court applies the Ninth Circuit’s lower good
cause standard to sealed discovery documents attached to non-dispositive motions. Krieger v.
Atheros Commc’ns, Inc., No. 11-CV-00640-LHK, 2011 WL 2550831, at *1 n.1 (N.D. Cal. June
25, 2011) (citing Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th Cir.
2006)).
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deponent possesses first-hand knowledge of “important, relevant, and material facts.” First
United Methodist Church of San Jose v. Atl. Mut. Ins. Co., No. 95-cv-2243-DLJ, 1995 WL
566026, at *2 (N.D. Cal. Sept. 19, 1995). “The party seeking to take the deposition need not
prove conclusively that the deponent certainly has unique non-repetitive information; rather,
where a corporate officer may have any first-hand knowledge of relevant facts, the deposition
should be allowed.” In re Apple Iphone Antitrust Litig., No. 11CV06714YGRTSH, 2021 WL
485709, at *5 (N.D. Cal. Jan. 26, 2021) (emphasis added) (quotation marks and citation omitted).
Courts also consider whether the party seeking the apex deposition has obtained the information
sought through other discovery or less intrusive means. See In re Transpacific Passenger, 2014
WL 939287, at *5 (noting that the party seeking discovery is not required to exhaust other means
of discovery before taking an apex deposition, but that exhaustion is an important consideration
for the court). “If it appears unlikely that [the apex witness] has percipient knowledge of material
facts, or if there are other witnesses who could testify to those facts from a similar vantage point,
there is more reason to question whether the deposition is being sought for abusive rather than
appropriate fact-finding purposes.” Id. at *3.
In the summary chart, for each potential deponent, Lead Plaintiff provided (1) the
deponent’s name; (2) the deponent’s title; (3) bullet points summarizing what Lead Plaintiff
characterizes as that deponent’s unique, first-hand, non-repetitive percipient knowledge of relevant
facts; and (4) bullet points enumerating the steps taken to obtain the information sought through
other discovery or less intrusive means. In the same chart, Defendants submitted bullet points
summarizing the facts that they assert constitute good cause for precluding or at least limiting each
deposition. Namely, Defendants described why each deponent lacks first-hand, unique knowledge
regarding the relevant issues, how others could testify to the same issues from a similar vantage
point, and the specific prejudice or harm that would result from the deposition.
In assessing the propriety and length of the proposed depositions, the court first analyzed
whether each proposed deponent possesses first-hand knowledge of “important, relevant, and
material facts” in order to assess whether the deposition was being sought for abusive rather than
legitimate fact-finding purposes. In so doing, the court generally considered: 1) whether the
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deponent is an individual defendant;32) the deponent’s degree of ‘apex-ness’;
4
3) the deponent’s
role(s) at Uber during the relevant time period and his or her alleged personal involvement in or
knowledge of information relevant to the claims at issue, including involvement by outside
directors in relevant committees; and 5) the extent of the deponent’s institutional knowledge of
Uber, given the underlying allegation that the offering materials “proudly proclaimed: ‘It is a new
day at Uber’” – differentiating between “2017 Uber and the purportedly new and reformed Uber
of today” – while failing to disclose the truth about the company’s (i) business model and growth
strategy; (ii) passenger safety issues; and (iii) financial condition. [Docket No. 137 (Second
Amended Complaint) ¶¶ 153, 155, 156.] As part of its analysis, the court also considered other
steps taken by Lead Plaintiff to obtain the information sought – notably, interrogatories, requests
for admission, requests for production, and other witness testimony – as well as all arguments
proffered by Defendants to explain why the deposition should not be allowed or should be limited.
Taking the above factors into account, and based on a detailed review of the parties’
evidence, the court finds that Lead Plaintiff has established that the 16 depositions at issue are all
justified with the following time limitations:
- Dara Khosrowshahi (Chief Executive Officer, Board Member, and Individual
Defendant): Lead Plaintiff may depose Khosrowshahi for 7 hours.
3
In considering this factor, the court is mindful that there is no bright-line exception to the apex
doctrine for named defendants because such an exception “would be inconsistent with [the
doctrine’s] aim of thwarting harassment.” Myun-Uk Choi v. Tower Rsch. Cap. LLC, No. 14-CV9912 (KMW), 2019 WL 6271324, at *2 (S.D.N.Y. Nov. 25, 2019) (affirming magistrate judge’s
order preventing named defendant’s deposition where plaintiffs had failed to come forward with
any evidence that the defendant had knowledge of any of the claims or defenses in the case or
information that could not easily be obtained through other discovery). As part of this analysis,
the court considered the individual defendant’s level of involvement in the challenged conduct
(and therefore their percipient knowledge of the same), as well as their potential testimony to
defend against the claims made against them.
4
See In re Apple Iphone Antitrust Litig., 2021 WL 485709, at *4 (noting that senior vice
presidents may have important, high-ranking jobs, but they are “not a CEO or head of an agency”
and therefore “less is required to justify their depositions,” given their “lesser degree of apexness.”). “[T]he apex ‘doctrine’s common application to the classic paradigm of a single-hierarchy
corporate structure [is] ill-suited to determining apex status . . . in the case of a large, multinational corporation . . . For ‘[a] company of global proportions,’ ‘the two-prong test for firsthand, non-repetitive knowledge and for the party’s attention to other, less intrusive discovery
methods,’ must also be measured against ‘the person’s degree of ‘apex-ness’ in relation to these
factors.’” Id. (quoting Apple Inc. v, 282 F.R.D. at 263)).
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- Nelson Chai (Chief Financial Officer and Individual Defendant): Lead Plaintiff may
depose Chai for 7 hours.
- Gus Fuldner (Vice President, Safety and Insurance), Jill Hazelbaker (Senior Vice
President, Marking and Public Affairs), and Andrew Macdonald (Vice President,
Americas Operations and Global Business Development): The facts submitted by the
parties suggest that there is some overlap between the knowledge of these three
important non-Defendant witnesses. Therefore, Lead Plaintiff may select two of these
three witnesses for depositions of 7 hours each. In the alternative, Lead Plaintiff may
choose to depose all three witnesses for no more than 5 hours each.
- Ronald Sugar (Chairman of the Board and Individual Defendant): Lead Plaintiff may
depose Sugar for no more than 5 hours.
- John Thain (Board Member and Individual Defendant): Lead Plaintiff may depose
Thain for no more than 5 hours.
- Travis Kalanick (Co-founder, former CEO, Board Member, and Individual Defendant):
Lead Plaintiff may depose Kalanick for no more than 3 hours.
- Garrett Camp (Co-founder, Board Member, and Individual Defendant): Lead Plaintiff
may depose Camp for no more than 2.5 hours.
- Ryan Graves (Board Member and Individual Defendant): Lead Plaintiff may depose
Graves for no more than 2.5 hours.
- Arianna Huffington (Board Member and Individual Defendant): Lead Plaintiff may
depose Huffington for no more than 2.5 hours.
- David Trujillo (Board Member and Individual Defendant): Lead Plaintiff may depose
Trujillo for no more than 2.5 hours.
- Ursula Burns (Board Member and Individual Defendant): Lead Plaintiff may depose
Burns for no more than 2 hours.
- Matt Cohler (Board Member and Individual Defendant): Lead Plaintiff may depose
Cohler for no more than 2 hours.
- Wan Ling Martello (Board Member and Individual Defendant): Lead Plaintiff may
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depose Martello for no more than 2 hours.
- Yasir Al-Rumayyan (Board Member and Individual Defendant): Lead Plaintiff may
depose Al-Rumayyan for no more than 2 hours.
The depositions shall take place by December 20, 2023.5
IT IS SO ORDERED.
Dated: September 19, 2023
______________________________________
Donna M. Ryu
Chief Magistrate Judge
5 The current discovery deadline is 9/20/23. The order does not extend that deadline; this court
does not have the authority to do so. The 12/20/23 deadline only applies to the 16 depositions
addressed in this discrete discovery dispute.
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BOSTON RETIREMENT SYSTEM, et al.,
Plaintiffs,
v.
UBER TECHNOLOGIES, INC., et al.,
Defendants.
Case No. 19-cv-06361-RS
ORDER GRANTING MOTION FOR
CLASS CERTIFICATION
I. Introduction
In this putative securities class action arising from the initial public offering (“IPO”) for
Defendant Uber Technologies, Inc. (“Uber”), Plaintiff Boston Retirement System (“BRS”) and
four individual plaintiffs bring a motion for class certification and seek appointment as class
representatives. Defendants oppose the motion, arguing that BRS and the other named plaintiffs
do not satisfy the typicality and adequacy requirements of Federal Rules of Civil Procedure
23(a)(3) and 23(a)(4), and that the predominance and superiority requirements of Rule 23(b)(3) are
not met. For all the foregoing reasons, the motion for class certification is granted. Defendants’
affirmative defense of actual knowledge does not defeat certification, because the actual
knowledge asserted concerns pieces of information disseminated in news stories, rather than the
full scope of the issues Uber faced that Plaintiff avers were not disclosed until after the IPO.
Further, the proposed class representatives and counsel have demonstrated that they will
adequately serve the class.
Case 3:19-cv-06361-RS Document 217 Filed 07/26/22 Page 1 of 8
ORDER GRANTING MOTION FOR CLASS CERTIFICATION
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II. Factual and Procedural Background
Uber is a transportation company which provides on demand rides and food delivery. The
company was founded in San Francisco in 2009 and has since expanded globally. On May 10,
2019, Uber conducted its IPO, in which it sold 180,000,000 shares of common stock to the public.
The IPO was priced at $45 per share and generated nearly $8 billion in proceeds for Uber. The
IPO was conducted pursuant to several documents filed by defendants with the U.S. Securities and
Exchange Commission, including an April 11, 2019 Registration Statement on Form S-1, which,
after amendment, was declared effective by the SEC on May 5, 2019. See ECF No. 86-1 (“RS”).
BRS purchased Uber’s common stock in the IPO, and from an underwriter of the IPO,
pursuant to the offering documents, including the RS. At the time BRS purchased this stock, only
Uber shares offered in the IPO were available in the market. Uber’s share price subsequently
declined from $45 to an all-time low of $25.99 on November 14, 2019. This action was brought,
alleging violations of Sections 11, 12(a)(2), and 15 of the Securities Act, 15 U.S.C. §§ 77k,
77I(a)(2), and 77o. In January 2020, BRS was appointed lead plaintiff. The named defendants are
Uber, several of its past and present executives, and the underwriters of its IPO.
On August 7, 2020, Defendants’ motion to dismiss was denied, as Plaintiff had adequately
stated claims that Defendants omitted material facts concerning the legality (or lack thereof) of
Uber’s business model, its passenger safety record, and its financial condition. On May 14, 2021,
Plaintiff filed a Second Amended Class Action Complaint (“SAC”), adding four new proposed
class representatives. Defendants moved to dismiss the claims of these new plaintiffs, and the
motion was denied on October 1, 2021. The order denying the motion to dismiss claims brought
by the new plaintiffs noted, however, “[t]he addition of named plaintiffs in the Second Amended
Complaint does not automatically morph them into additional court-designated Lead Plaintiffs”
and that the Court would “consider any concerns about the involvement of too many law firms,
and the related concern of overgeneration of fees, at the class certification stage.” Order Denying
Motion to Dismiss, p.7.
On October 29, 2021, BRS filed this motion for class certification. BRS seeks certification
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ORDER GRANTING MOTION FOR CLASS CERTIFICATION
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of the following proposed class:
All persons and entities that purchased or otherwise acquired Uber’s publicly traded common
stock pursuant and/or traceable to the Offering Documents for Uber’s IPO, and who were
damaged thereby. Excluded from the Class are: (i) Defendants and the Individual Defendants’
immediate family members; (ii) the officers, directors, affiliates, and subsidiaries of Uber and
the Underwriter Defendants, at all relevant times, (iii) Uber’s affiliates and employee
retirement and/or benefit plan(s) and their participants or beneficiaries to the extent they
purchased or acquired Uber common stock pursuant or traceable to the Offering Documents
through any such plan(s); (iv) any entity in which Defendants have or had a controlling
interest; and (v) the legal representatives, heirs, successors, or assigns of any such excluded
person or entity.
Motion for Class Certification, p. 2-3. BRS and four of the named plaintiffs added to the Second
Amended Complaint—David Messinger, Salvatore Toronto, and Irving S. and Judith Braun—seek
appointment as Class Representatives.1 Defendants oppose the motion.
III. Legal Standard
Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure, which
represents more than a mere pleading standard. To obtain class certification, plaintiffs bear the
burden of showing they have met each of the four requirements of Rule 23(a) and at least one
subsection of Rule 23(b). Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186, amended
by 273 F.3d 1266 (9th Cir. 2001). “A party seeking class certification must affirmatively
demonstrate . . . compliance with the Rule[.]” Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350
(2011).
Rule 23(a) provides that a court may certify a class only if: “(1) the class is so numerous
that joinder of all members is impracticable; (2) there are questions of law or fact common to the
class; (3) the claims or defenses of the representative parties are typical of the claims or defenses
of the class; and (4) the representative parties will fairly and adequately protect the interests of the
class.” These requirements are commonly referred to as numerosity, commonality, typicality, and
adequacy of representation. Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir.
1
Joseph Cianci was named as a new plaintiff in the SAC, but does not seek appointment as Class
Representative.
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CASE NO. 19-cv-06361-RS
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2012). If all four Rule 23(a) prerequisites are satisfied, a court must also find that plaintiffs
“satisfy through evidentiary proof” at least one of the three subsections of Rule 23(b). Comcast
Corp. v. Behrend, 569 U.S. 27, 33 (2013). Rule 23(b)(3) requires that “the questions of law or fact
common to class members predominate over any questions affecting only individual members,
and that a class action is superior to other available methods for fairly and efficiently adjudicating
the controversy.” Fed. R. Civ. P. 23(b)(3).
IV. Discussion2
Defendants challenge whether Plaintiff has met the adequacy and typicality requirements
of Rule 23(a) and the predominance and superiority requirements of Rule 23(b)(3). As the
discussion of predominance and superiority helps resolve the concerns about adequacy and
typicality, the Rule 23(b)(3) requirements are discussed first. Since Defendants have not
challenged numerosity or commonality under Rule 23(a), those requirements are not addressed.
2 Defendants’ motion to file a sur-reply is denied, as the issues addressed in the sur-reply are not
necessary to decide the motion for class certification. The administrative motions to file materials
under seal, see Dkt. Nos. 189, 205, are denied in part and granted in part. The motion at Dkt. No.
189 is a motion from Defendants to consider whether another party’s material should be sealed.
Plaintiff filed a statement in support of the motion, outlining limited pieces of information that
should be sealed. The motion to file under seal is granted as to those limited pieces of information.
Nonparty Zevenbergen Capital Investments LLC (“ZCI”) filed a statement in support of the
motion seeking to seal all materials it had designated as confidential, maintaining that those
materials are trade secrets. These designations, however, seem to cover a wide variety of
materials, and lead to numerous redactions in Defendants’ opposition—including for sentences
which simply state what information ZCI was or was not aware of concerning Uber. The motion is
therefore denied without prejudice as to ZCI’s designations. ZCI may provide a more limited list
of designations, bearing in mind the limitations outlined in Civil Local Rule 79-5. Next, the
motion at Dkt. No. 205 is a motion from Plaintiff to consider whether Defendants’ or ZCI’s
materials should be sealed. Defendants filed a statement seeking the redaction of only a small
number of lines of deposition transcript. The motion is therefore granted as to this information.
ZCI did not file a response, and normally a nonresponse is deemed a statement that it does not
object to the unsealing of any information at issue in the administrative motion. See Civil Local
Rule 79-5(f)(3). It is noted, however, that information that ZCI seeks to maintain under seal in the
other administrative motion appears to overlap with information in this administrative motion.
ZCI’s revised statement of materials to be sealed should therefore address both Dkt. No. 189 and
No. 205. ZCI’s revised submission should be filed within fourteen days of this Order. After ZCI’s
revised submission and an order on the propriety of sealing, Plaintiff and Defendants will be
directed to file new versions of the materials reflecting the approved redactions on the public
docket.
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A. Predominance and Superiority
Defendants argue that issues concerning each plaintiff’s actual knowledge of allegedly
omitted information preclude Plaintiff from satisfying the predominance and superiority
requirements of Rule 23(b)(3). Actual knowledge is a defense to claims under Sections 11 and 12.
See 15 U.S.C. § 77k(a) (stating that a plaintiff does not establish liability if “it is proved that at the
time of such acquisition he knew of such untruth or omission”); id. at 77I(a)(2) (requiring that “the
purchaser not know[] of such untruth or omission”). Predominance concerns in connection with
affirmative defenses may be considered at class certification for affirmative defenses the defendant
“has actually advanced and for which it has presented evidence.” True Health Chiropractic, Inc. v.
McKesson Corp., 896 F.3d 923, 931 (9th Cir. 2018). As another district court has noted, “in some
circumstances individualized issues regarding knowledge can be sufficient to defeat class
certification in Section 11 and 12(a)(2) cases.” Vignola v. Fat Brands, Inc., No.
CV187469PSGPLAX, 2020 WL 1934976, at *5 (C.D. Cal. Mar. 13, 2020) (citing cases).
Issues of actual knowledge do not defeat class certification here. Defendants have
presented evidence in the form of deposition testimony from various employees of BRS’s
investment manager, ZCI, showing that some employees had knowledge of pieces of information
related to the alleged omissions. Separate and apart from issues of whether knowledge of
individual ZCI employees may be imputed to BRS, rather than only ZCI’s knowledge, the
awareness of snippets of information do not defeat predominance. In a securities class action
against fellow rideshare operator Lyft, another court in this district rejected the contention that
some knowledge about the problems Lyft faced concerning sexual assaults defeated
predominance. As stated in the order granting class certification in that case, “the declarations
concerning the sexual assault issue reflect a general awareness that Lyft was subject to some
allegations of sexual assault, rather than any knowledge about the alleged magnitude of the
problem.” In re Lyft Inc. Sec. Litig., No. 19-CV-02690-HSG, 2021 WL 3711470, at *6 (N.D. Cal.
Aug. 20, 2021). Similarly here, each of the pieces of knowledge identified by Defendants go to the
awareness of a general issue, not the magnitude of the problems alleged in the SAC.
Defendants also argue that individual issues of actual knowledge give rise to
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individualized issues of causation which will predominate over common issues and create
conflicts within the class, and that Comcast v. Behrend, 569 U.S. 27 (2013) prohibits class-wide
treatment of the causation issues in this case. Given that Defendants have failed to establish that
actual knowledge will preclude class certification, these issues similarly do not preclude
certification. The absence of loss causation, also referred to as negative causation, is an affirmative
defense for which Defendants have the burden. Hildes v. Arthur Andersen LLP, 734 F.3d 854, 860
(9th Cir. 2013). Defendants have not established that individualized issues with negative causation
will predominate over common questions, and “[t]he causes of the [Uber] stock declines are
factual questions suitable for resolution on a class-wide basis.” In re Facebook, Inc., IPO Sec. &
Derivative Litig., 312 F.R.D. 332, 350 (S.D.N.Y. 2015).
Further, Comcast does not prevent certification. “The Ninth Circuit reads Comcast to
demand only that plaintiffs be able to show that their damages stemmed from the defendant’s
actions that created the legal liability.” Hatamian v. Advanced Micro Devices, Inc., No. 14-CV00226 YGR, 2016 WL 1042502, at *8 (N.D. Cal. Mar. 16, 2016) (internal quotation marks and
citation omitted). Defendant points to no securities class action in which the concerns from
Comcast prevented certification; indeed, many courts have held that “Comcast is simply
inapposite to Section 11 actions, where damages reflect liability by statutory formula.” New Jersey
Carpenters Health Fund v. Royal Bank of Scotland Grp., PLC, No. 08-CV-5310 (DAB), 2016 WL
7409840 (S.D.N.Y. Nov. 4, 2016) (internal quotation marks and citation omitted). In short,
Plaintiff has established predominance and superiority.
B. Adequacy
To determine whether named plaintiffs will adequately represent a class, courts must
resolve two questions: “(1) do the named plaintiffs and their counsel have any conflicts of interest
with other class members and (2) will the named plaintiffs and their counsel prosecute the action
vigorously on behalf of the class?” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985 (9th Cir.
2011) (internal quotation marks and citation omitted). Defendants only invoke the latter concern.3
3 To the extent that Defendants are concerned with conflicts within the class concerning causation,
that concern is addressed in the discussion of predominance and superiority.
Case 3:19-cv-06361-RS Document 217 Filed 07/26/22 Page 6 of 8
ORDER GRANTING MOTION FOR CLASS CERTIFICATION
CASE NO. 19-cv-06361-RS
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Defendants argue that the proposed class representatives are not adequate because they are not
controlling this litigation, arguing that “Lead Plaintiff BRS has shown an inability (or
unwillingness) to control its lawyers or legal costs” and citing to the proposed participation of ten
law firms on the plaintiff side in this case. Opposition to Motion for Class Certification, p.35.
Defendants similarly argue that the proposed individual class representatives “have abdicated
responsibility for running this case to counsel[.]” Id. at 37.
Defendants assert a higher bar to establishing adequacy than is required in this circuit.
“While it is true that plaintiffs must offer affirmative evidence demonstrating that they satisfy the
requirements of Rule 23(a), the evidentiary burden upon plaintiffs is low; a class representative
will be deemed inadequate only if startlingly unfamiliar with the case[.]” In re Silver Wheaton
Corp. Sec. Litig., No. 215CV05146CASJEMX, 2017 WL 2039171, at *8 (C.D. Cal. May 11,
2017) (internal quotation marks and citations omitted). Here, the proposed class representatives
more than surpass this standard, and “satisfy the requirement that plaintiffs present some
affirmative evidence that they are familiar with this case, the claims within it, and the role of a
class representative.” Id.
As for the number of proposed class representatives, the PSLRA does not dictate that there
may only be one class representative. “[T]he PSLRA does not in any way prohibit the addition of
named plaintiffs to aid the lead plaintiff in representing a class. Rather, the proposed class and
Class Representatives are to be reviewed according to the standards of Rule 23, without any
deference to the earlier determinations made in the appointment of Lead Plaintiffs.” In re Twitter
Inc. Sec. Litig., 326 F.R.D. 619, 627 (N.D. Cal. 2018) (internal quotation marks and citation
omitted). As for the concern about the involvement of numerous law firms, only one firm—
Labaton Sucharow—seeks to serve as Lead Counsel. Labaton Sucharow has demonstrated
experience in litigating securities class actions and has an incentive to avoid duplication of efforts
amongst the firms it will draw on for support; indeed, any payments to other firms will be from
attorney’s fees due to Labaton Sucharow, should it be awarded any fees. In short, Plaintiff has
established that the proposed class representatives and Lead Counsel are adequate.
Case 3:19-cv-06361-RS Document 217 Filed 07/26/22 Page 7 of 8
ORDER GRANTING MOTION FOR CLASS CERTIFICATION
CASE NO. 19-cv-06361-RS
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C. Typicality
Defendants argue that the proposed class representatives are not typical because they are
subject to unique actual knowledge defenses, and that this is a basis to deny certification even if
the Court rejects the similar arguments concerning predominance and superiority. This argument
is rejected for the same reasons as the predominance and superiority requirements. It is very
probable that given the high profile nature of Uber and its IPO, some members of the class became
aware of information disseminated in the news media concerning the omissions Plaintiff has
averred. Plaintiff’s theory of this case, however, is that the pre-IPO information available in the
news did not reach the full scope of the alleged omissions. Thus, the actual knowledge defenses as
to the proposed class representatives are not so unique to these plaintiffs that they defeat typicality.
Typicality is therefore satisfied.
V. Conclusion
For all the foregoing reasons, the motion for class certification is granted. BRS, David
Messinger, Salvatore Toronto, and Irving S. and Judith Braun are appointed as class
representatives, and Labaton Sucharow is appointed as class counsel.
IT IS SO ORDERED.
Dated: July 26, 2022
______________________________________
RICHARD SEEBORG
Chief United States District Judge
Case 3:19-cv-06361-RS Document 217 Filed 07/26/22 Page 8 of 8
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