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The State of California V. Ebay Inc., Case No

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The State of California V. Ebay Inc., Case No Case5:12-cv-05874-EJD Document55 Filed05/01/14 Page1 of 18 1 KAMALA D. HARRIS Attorney General of California 2 MARK J. BRECKLER Chief Assistant Attorney General 3 KATHLEEN E. FOOTE Senior Assistant Attorney General 4 PAUL A. MOORE (SBN 241157) BRIAN D. WANG (SBN 284490) 5 NICOLE S. GORDON (SBN 224138) Deputy Attorneys General 6 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 7 Telephone: (415) 703-5702 Fax: (415) 703-5843 8 E-mail: [email protected] Attorneys for Plaintiff 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 SAN JOSE DIVISION 12 13 14 THE STATE OF CALIFORNIA, CASE NO. CV 12-5874-EJD-PSG 15 Plaintiff, NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF 16 v. SETTLEMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN 17 SUPPORT EBAY INC., 18 Date: August 29, 2014 Defendant. Time: 9:00 am 19 Dept: Courtroom 4, 5th Floor Judge: Edward J. Davila 20 21 22 23 24 25 26 27 28 MOTION FOR PRELIMINARY APPROVAL CV12-5874-EJD-PSG Case5:12-cv-05874-EJD Document55 Filed05/01/14 Page2 of 18 1 TABLE OF CONTENTS 2 Page 3 NOTICE OF MOTION AND MOTION ........................................................................................ 1 ISSUES TO BE DECIDED ............................................................................................................ 2 4 I. INTRODUCTION .............................................................................................................. 2 5 II. PROCEDURAL HISTORY ................................................................................................ 2 6 III. THE PROPOSED SETTLEMENT..................................................................................... 3 A. Monetary payments ................................................................................................. 3 7 1. Payments to Natural Persons ....................................................................... 3 8 2. Payments to California ................................................................................ 5 9 B. Injunctive relief ....................................................................................................... 5 C. Cooperation............................................................................................................. 6 10 D. Release .................................................................................................................... 6 11 IV. THE PROPOSED SETTLEMENT MEETS THE STANDARD FOR PRELIMINARY APPROVAL ........................................................................................... 6 12 A. The standard for preliminary approval .................................................................... 6 13 B. Preliminary approval should be granted because the settlement is fair, reasonable, adequate, and within the range of possible approval .......................... 8 14 1. The Strength of California’s Case in Light of the Risk, Expense, 15 Complexity, and Likely Duration of Further Litigation Favors Settlement .................................................................................................... 8 16 2. The Amount Offered in Settlement is Significant and Favors Settlement .................................................................................................... 8 17 3. The Extent of Discovery Completed and the Stage of Proceedings 18 Indicate Settlement May be Appropriate .................................................... 9 4. The Experience and Views of Counsel and the Absence of 19 Collusion Between the Parties Further Supports Settlement ...................... 9 20 V. THE CY PRES PLAN FOR DISTRIBUTION OF REMAINDER FUNDS AND THE AMOUNT OF ATTORNEYS’ FEES REQUESTED ARE REASONABLE ......... 10 21 A. California’s cy pres distribution of any remainder funds is reasonable ................ 10 22 B. California’s request for attorney’s fees and costs is reasonable ........................... 11 VI. THE PROPOSED NOTICE AND OPT-OUT PROCEDURES SHOULD BE 23 APPROVED...................................................................................................................... 11 24 A. Notice and opt-out procedures .............................................................................. 11 B. The notice and opt-out procedures meet the requirements of due process ........... 12 25 VII. CONCLUSION ................................................................................................................. 13 26 27 28 i MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT (CV12-5874-EJD-PSG) Case5:12-cv-05874-EJD Document55 Filed05/01/14 Page3 of 18 1 TABLE OF AUTHORITIES 2 Page 3 CASES 4 Churchill Village, LLC v. Gen. Elec. 361 F.3d 566 (9th Cir. 2004) ................................................................................................... 12 5 6 Dunk v. Ford Motor Co. 48 Cal. App. 4th 1794 (Cal. App. 1996) ................................................................................. 10 7 Ellis v. Naval Air Rework Facility 8 87 F.R.D. 15 (N.D.Cal. 1980), aff’d, 661 F.2d 939 (9th Cir. 1981) ......................................... 9 9 In re Bluetooth Headset Prods. Liab. Litig. 654 F.3d 935 (9th Cir. 2011) ................................................................................................... 11 10 In re Cellphone Fee Termination Cases 11 186 Cal. App. 4th 1380 (Cal. App. 2010) ............................................................................... 12 12 In re High-Tech Employee Antitrust Litigation 13 Case No. 11-CV-2509-LHK (N.D. Cal. filed May 4, 2011) ..................................................... 9 14 In re Lorazepam & Clorazepate Antitrust Litigation 205 F.R.D. 369 (D.D.C. 2002) ................................................................................................ 10 15 In re Mego Fin. Corp. Sec. Litig. 16 213 F.3d 454 (9th Cir. 2000) ................................................................................................. 7, 8 17 In re Music Compact Disc Minimum Advertised Price Litigation 18 216 F.R.D. 197 (D. Maine 2003) ............................................................................................ 10 19 In re Tableware Antitrust Litig. 484 F. Supp. 2d 1078 (N.D. Cal. 2007) ................................................................................ 7, 8 20 In re TFT-LCD (Flat Panel) Antitrust Litig. 21 M 07-1827 SI, 2013 WL 1365900 (N.D. Cal. Apr. 3, 2013) ................................................... 6 22 In re Toys “R” Us Antitrust Litig. 23 191 F.R.D. 347 (E.D.N.Y. 2000) ........................................................................................ 7, 10 24 Mullane v. Central Hanover Trust Co. 339 U.S. 306 (1950) ................................................................................................................ 13 25 Nachshin v. AOL 26 663 F.3d 1034 (9th Cir. 2011) ................................................................................................. 10 27 New York v. Salton, Inc. 28 265 F. Supp. 2d 310 (S.D.N.Y. 2003) ....................................................................................... 7 ii MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT (CV12-5874-EJD-PSG) Case5:12-cv-05874-EJD Document55 Filed05/01/14 Page4 of 18 1 TABLE OF AUTHORITIES (continued) 2 Page 3 Phillips Petroleum Co. v. Shutts 472 U.S. 797 (1985) ................................................................................................................ 12 4 States of N.Y. & Md. et al. v. Nintendo of Am., Inc. 5 775 F. Supp. 676 (S.D.N.Y. 1991) ............................................................................................ 7 6 U.S. Department of Justice v. eBay Inc. 7 (Case No. CV12-5869-EJD) ..................................................................................................... 3 8 STATUTES 9 15 U.S.C. § 15b .......................................................................................................................................... 9 10 § 15c(c) ..................................................................................................................................... 7 11 § 15c and 26 ...................................................................................................................... 1, 2, 6 § 15c(b)(1) ............................................................................................................................... 13 12 § 15c(b)(c) ............................................................................................................................... 12 13 California Business and Professions Code § 16750 (c) .............................................................................................................................. 11 14 § 16760 .............................................................................................................................. 1, 2, 6 15 § 16760(b) ......................................................................................................................... 12, 13 § 16760(e)(1) ............................................................................................................................. 4 16 Clayton Act 17 § 4C and 16 ....................................................................................................................... 1, 2, 6 18 Sherman Act § 1 .............................................................................................................................. 2 19 COURT RULES 20 Federal Rule of Civil Procedure Rule 23 .................................................................................................................................
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