In re Google Assistant Privacy Litigation

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 Case No. 19-cv-04286-BLF

8 ORDER DENYING MOTION FOR 9 IN RE GOOGLE ASSISTANT PRIVACY APPOINTMENT OF INTERIM CO- LITIGATION LEAD COUNSEL; VACATING 10 JANUARY 14, 2021 MOTION HEARING 11

13 Before the Court is a Motion for Appointment of Interim Co-Lead Counsel by Asif 14 Kumandan, Melissa Spurr, Melissa Spurr, as guardian of B.S., a minor, Lourdes Galvan, and 15 Eleeanna Galvan (“the moving Plaintiffs”). Mot., ECF 113. Moving Plaintiffs seek to appoint 16 Lowey Dannenberg, P.C. and Scott+Scott Attorneys at Law LLP as co-lead interim counsels. Id. 17 at 1. Plaintiffs Edward Brekhus and Jon Hernandez (“the Brekhus Plaintiffs”) oppose this motion 18 19 and, in the alternative, request that their preferred counsel, Gutride Safier LLP, be appointed 20 interim class counsel. Opp., ECF 114. For the reasons set forth below, the Court DENIES 21 WITHOUT PREJUDICE the motion to appoint interim co-class counsel. 22 By way of background, the moving Plaintiffs filed two separate suits on July 25, 2019 and 23 July 30, 2019. ECF 1; Galvan v. Google LLC, et al., 5:19-cv-04360-VDK. The Court consolidated 24 the moving Plaintiffs’ cases on September 25, 2019 (the “Kumandan action”). ECF 42. On August 25 26 7, 2020, Plaintiffs Brekhus and Hernandez filed their complaint (the “Brekhus action”). See 27 Brekhus et al. v. Google LLC et al., No. 5:20-cv-5488-BLF. On September 10, 2020, the Court third consolidated amended complaint. ECF 109. The complaint was filed on November 9, 2020. 1 2 ECF 118. 3 Under Federal Rule of Civil Procedure 23(g)(3), the district court may appoint interim 4 counsel to act on behalf of a putative class before determining whether to certify a class. The 5 appointment of interim class counsel is discretionary and is particularly suited to complex actions, 6 as explained in the Manual for Complex Litigation (Fourth): 7 If the lawyer who filed the suit is likely to be the only lawyer seeking 8 appointment as class counsel, appointing interim class counsel may be unnecessary. If, however, there are a number of overlapping, 9 duplicative, or competing suits pending in other courts, and some or 10 all of those suits may be consolidated, a number of lawyers may compete for class counsel appointment. In such cases, designation of 11 interim counsel clarifies responsibility for protecting the interests of the class during precertification activities . . . . 12 Manual for Complex Litigation (Fourth) § 21.11 (2004). Further, the commentary to Rule 23 notes 13 14 that “[i]n some cases . . . there may be rivalry or uncertainty that makes formal designation of 15 interim counsel appropriate.” Fed. R. Civ. P. 23 advisory committee’s note (discussing former 16 subdivision (g)(2)(A), now renumbered to (g)(3)). This rule “authorizes [a] court to designate 17 interim counsel during the pre-certification period if necessary to protect the interests of the 18 putative class.” Azpeitia v. Tesoro Refining & Marketing Co. LLC, 2017 WL 4071368, at *1 (N.D. 19 Cal. Sept. 14, 2017). 20 This is not the type of case that warrants appointment of interim class counsel, at least at 21 22 the current stage of litigation. As the Court discussed above, the Kumandan action originated as 23 two separate cases in this district with similar complaints, which the Court consolidated. The 24 attorneys for those Plaintiffs have successfully worked together since consolidation. More 25 recently, the Court consolidated the Brekhus action, also filed in this district, with the Kumandan 26 action. There is now a single consolidated action with a single consolidated complaint. See ECF 27 attorneys to enter the fray. Under these circumstances, the Court sees no danger to the interests of 1 2 the putative class that appointment of interim counsel will remedy. See Huynh v. Quora, Inc., No. 3 5:18-cv-7597-BLF, ECF 45 (finding the appointment of interim lead plaintiff inappropriate where 4 three original actions and complaints were consolidated into one). Thus, “[t]his action as it 5 currently stands . . . does not present special circumstances warranting the appointment of interim 6 class counsel.” In re Nest Labs Litig., No. 14-cv-01363-BLF, 2014 U.S. Dist. LEXIS 115596, *4 7 (N.D. Cal. Aug. 18, 2014) (quoting Donaldson v. Pharmacia Pension Plan, No. CIV. 06-3-GPM, 8 2006 WL 1308582, at *1-2 (S.D. Ill. May 10, 2006) (noting that typical situation requiring 9 10 appointment of interim class counsel is one “where a large number of putative class actions have 11 been consolidated or otherwise are pending in a single court”)); see also Kristin Haley v. Macy's, 12 Inc., No. 15-CV-06033-HSG, 2016 WL 4676617, at *3 (N.D. Cal. Sept. 7, 2016) (“at present, 13 there is only one consolidated action with one consolidated complaint”). 14 The Court is unconvinced by the moving Plaintiffs’ argument that interim appointment is 15 necessary to “protect the interests of the class and to resolve rivalry and uncertainty” among the 16 moving Plaintiffs and the Brekhus Plaintiffs. Reply, ECF 117 at 2-4. First, the Court notes that the 17 18 moving Plaintiffs only raised this issue in their reply brief. Nathanson v. Polycom, Inc., No. 13- 19 3476 SC, 2015 WL 12964727, at *1 (N.D. Cal. Apr. 16, 2015) (“As numerous courts (including 20 the Ninth Circuit) have concluded, [i]t is inappropriate to consider arguments raised for the first 21 time in a reply brief.”) (internal quotation marks omitted, alteration in original)). If this conflict 22 was truly material, Plaintiffs should have properly raised it in their opening brief. Even 23 considering this argument, the moving Plaintiffs fail to explain why this supposed conflict requires 24 25 the appointment of interim counsel. Indeed, to the extent the Brekhus plaintiffs seek to include 26 different claims within the consolidated complaint, the Court does not find those claims to be 27 averse to the interests of the moving Plaintiffs or the putative class—a fact which is further 1 since the instant motion was filed. The Court does not wish to invite future parties to manufacture 9 || conflict in an attempt to get an early bite at the apple for motions for the appointment of lead 3 || plaintiff and selection of lead counsel. 4 Because appointment of interim class counsel at this time is not necessary to protect the 5 interests of Plaintiffs or the class, the motion is DENIED WITHOUT PREJDUICE. The Court 6 VACATES the January 14, 2021 hearing on this motion. 7 g IT IS SO ORDERED. 9 10 || Dated: December 14, 2020 kom hh ham tn) 11 Po BETH LABSON FREEMAN 12 United States District Judge

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