Case5:10-md-02188-RMW Document52-2 Filed06/01/12 Page1 of 206 ROTHKEN LAW FIRM 1 IRA P. ROTHKEN (160029) 3 Hamilton Landing, Suite 280 2 Novato, CA 94949 Telephone: 415/924-4250 3 415/924-2905 (fax) [email protected] 4 ROBBINS GELLER RUDMAN 5 & DOWD LLP STUART A. DAVIDSON 6 MARK DEARMAN 120 East Palmetto Park Road, Suite 500 7 Boca Raton, FL 33432 Telephone: 561/750-3000 8 561/750-3364 (fax) [email protected] 9 GARDY & NOTIS, LLP 10 JENNIFER SARNELLI (242510) 560 Sylvan Avenue, Suite 3085 11 Englewood Cliffs, NJ 07632 Telephone: 201/567-7377 12 201/567-7337 (fax) [email protected] 13 KIRTLAND & PACKARD LLP 14 BEHRAM V. PAREKH (180361) 2041 Rosecrans Avenue, Third Floor 15 El Segundo, CA 90245 Telephone: 310/536-1000 16 310/536-1001 (fax) [email protected] 17 Co-Lead Counsel for Plaintiffs 18 19 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 20 SAN JOSE DIVISION 21 IN RE APPLE IPHONE 4 PRODUCTS MDL Docket No. 10-2188 (RMW) LIABILITY LITIGATION 22 ________________________________ DECLARATION OF IRA P. ROTHKEN IN SUPPORT OF MOTION FOR FINAL APPROVAL 23 THIS DOCUMENT RELATES TO: OF SETTLEMENT AND AWARD OF All Actions ATTORNEYS’ FEES AND EXPENSES 24 DATE: July 13, 2012 25 TIME: 9:00 A.M. 26 CTRM: 6 - 4th Floor Judge: Hon. Ronald M. Whyte 27 28 DECL. OF IRA P. ROTHKEN IN SUPPORT OF MOTION IN RE APPLE IPHONE 4 PRODUCTS LIABILITY FOR FINAL APPROVAL OF ACTION SETTLEMENT LITIGATION AND AWARD OF ATTYS’ FEES AND EXPENSES Case5:10-md-02188-RMW Document52-2 Filed06/01/12 Page2 of 206 1 I, Ira P. Rothken, hereby declare: 2 1. I am an attorney at law duly licensed to practice in all of the courts of the state of 3 California, and I am the founder of the Rothken Law Firm, which along with 3 other firms, was 4 appointed Co-Lead Counsel in this class action. The facts set forth herein are of my own personal 5 knowledge. If called to testify I could and would testify competently thereto. 6 2. Named Plaintiffs Stacey Milrot, Christopher DeRose, Steve Tietze, Jeffrey 7 Rodgers, Hung Michael Nguyen, Anthony Cologna, Joy Bearden, David Popik, Charles Fasano, 8 Greg Aguilera II, Thomas Gionis, Christopher Bensberg, David Purdue, Michael James 9 Goodglick, Karen Young, Joshua Gilson, Brandon Ellison Reininger, Trevor Antunez, Jessica 10 Lares, Jaywill Sands, Bryan Colver, Jaclyn Badolato, Nicole Stankovitz, Vinny Curbelo, Kevin 11 McCaffrey, Sam Balooch, Donald Garcia, Arcelia Hurtado, Mark Musin, Matt Vines, James 12 Blackwell, and Jethro Magat, brought this consolidated nationwide class action pursuant to 13 Federal Rules of Civil Procedure 23, on behalf of themselves and all others similarly situated as 14 members of the following class (the “Class”): 15 All United States residents who are or were the original owners of an iPhone 4 as 16 of February 17, 2012. The Settlement Class excludes Apple; any entity in which Apple has a controlling interest; Apple’s directors, officers, and employees; and 17 Apple’s legal representatives, successors, and assigns. 18 3. On June 25, 2010, the first of a number of class action complaints were filed in 19 this Court arising out of the problems associated with the iPhone 4’s telephone reception, which 20 was reported in numerous media outlets. All cases pending in this Court were ‘related over’ by 21 order of this Court. On September 30, 2010, the Judicial Panel on MultiDistrict Litigation heard 22 Apple’s Motion for MDL consolidation and transfer to the Northern District of California of the 23 then pending 18 similar class actions. On October 8, 2010, the MDL panel issued an order 24 consolidating all actions and transferring them to this Court. On January 14, 2011, this Court 25 signed Pretrial Order No. 1, consolidating the federal cases into a single action entitled, In Re 26 Apple Iphone 4 Products Liability Litigation, Case No. 5:10-md-02188-RMW (“Federal Action”), 27 28 DECL. OF IRA P. ROTHKEN IN SUPPORT OF MOTION IN RE APPLE IPHONE 4 PRODUCTS LIABILITY 2 FOR FINAL APPROVAL OF ACTION SETTLEMENT LITIGATION AND AWARD OF ATTYS’ FEES AND EXPENSES Case5:10-md-02188-RMW Document52-2 Filed06/01/12 Page3 of 206 1 appointing Plaintiffs’ Co-Lead Counsel,1 and ordering the filing of a Consolidated Amended 2 Complaint to supersede each of the complaints in the Action. 3 4. Concurrently, four California state actions were also consolidated by the California 4 Judicial Panel and transferred to the Superior Court of Santa Clara. The actions were 5 subsequently assigned to one judge and, by agreement of the parties and court order, William M. 6 Audet of Audet & Partners, LLP was appointed as Liaison counsel for the state court plaintiffs. 7 The Court order also included a provision that coordinated the state actions with the federal 8 MDL, including any mediation efforts. 9 5. On February 7, 2011, Plaintiffs filed a Master Consolidated Complaint (“MCC”) 10 in the Federal Action. Plaintiffs therein challenged Defendants’ actions in connection with their 11 marketing, advertising and sale of the Apple iPhone 4 cellular telephone (“iPhone 4”), which 12 Plaintiffs alleged was defective. The cases initially included both Apple and AT&T as 13 defendants. AT&T was subsequently dismissed without prejudice. 14 6. The MCC more specifically alleged that Apple designed, manufactured, marketed, 15 advertised, and warranted the iPhone 4 to consumers nationwide. In conjunction with each sale, 16 Apple marketed, advertised and warranted that each iPhone 4 would work, at the very least, for 17 the primary purpose a consumer buys a cellular phone – namely, making and receiving telephone 18 calls. 19 7. The MCC further alleged that Apple knew or should have known that the iPhone 4 20 was defective in design and/or manufacture. The MCC alleged that the iPhone 4 contains a defect 21 that results in the attenuation of cellular signal reception when handling the phone as a 22 reasonable, ordinary person would handle a mobile telephone while making phone calls, 23 browsing the Internet, sending text messages, or utilizing other iPhone 4 features, and in the same 24 manner as depicted in numerous Apple advertisements. That is to say, when a person holds their 25 iPhone 4 as a normal person would, cellular signal reception, voice quality, and data performance 26 1 Plaintiffs’ Co-Lead Counsel are Ira P. Rothken of the Rothken Law Firm, Stuart A 27 Davidson of Robbins Geller Rudman & Dowd LLP, Jennifer Sarnelli of Gardy & Notis, LLP, and Behram V. Parekh of Kirtland & Packard, LLP. 28 DECL. OF IRA P. ROTHKEN IN SUPPORT OF MOTION IN RE APPLE IPHONE 4 PRODUCTS LIABILITY 3 FOR FINAL APPROVAL OF ACTION SETTLEMENT LITIGATION AND AWARD OF ATTYS’ FEES AND EXPENSES Case5:10-md-02188-RMW Document52-2 Filed06/01/12 Page4 of 206 1 plummets. 2 8. The MCC further alleged that while Apple knew that the iPhone 4 was defectively 3 designed, rather than honestly acknowledge the issue and fix it, they continued to deny that any 4 specific design defect existed. On this basis, Plaintiffs pled 21 causes of action in the MCC, 5 including violations of various common laws, California consumer protection laws, and violation 6 of the consumer protection statutes of six other states (Florida, New York, New Jersey, 7 Pennsylvania, Tennessee, and Texas). 8 9. On or about February 15, 2011, Plaintiffs and Apple agreed to mediate the issues 9 set forth in the MCC. As a condition of the agreement, Apple was obligated to provide critical 10 information and documents regarding the core issues of the case, including causation, sales, and 11 other issues. The parties, which included Liaison counsel for the state court plaintiffs, proceeded 12 with settlement discussions, which included multiple rounds of in-person mediation along with 13 numerous telephonic calls in between such in-person mediation sessions. These mediations were 14 highly contentious. The mediation sessions were led by not one, but two, well-respected 15 mediators -- the Honorable Daniel Weinstein (Ret.) and Cathy Yanni, President of the Academy 16 of Court-Appointed Masters. 17 10. On June 23, 2011, July 13, 2011 and August 4, 2011, the parties (represented by 18 Co-Lead Counsel and state liaison counsel for the Plaintiffs) and Apple and its counsel, met in- 19 person to mediate the litigation. On January 24, 2012, the parties again met in-person with the 20 mediators to draft and finalize the Settlement Agreement and exhibits. The Settlement 21 Agreement was finalized late that evening. Only after reaching an agreement on all the material 22 terms of the proposed Settlement did the parties engage in an arms-length discussion, 23 communicating their positions exclusively through and with the assistance of the mediators, to 24 reach an agreement on attorneys’ fees. 25 11. The Honorable Daniel Weinstein and Catherine A. Yanni detail in their joint 26 declaration, filed concurrently herewith, that in their opinion “this settlement is fair, reasonable, 27 and adequate” for the proposed class based upon their conclusion that the parties negotiated 28 DECL. OF IRA P. ROTHKEN IN SUPPORT OF MOTION IN RE APPLE IPHONE 4 PRODUCTS LIABILITY 4 FOR FINAL APPROVAL OF ACTION SETTLEMENT LITIGATION AND AWARD OF ATTYS’ FEES AND EXPENSES Case5:10-md-02188-RMW Document52-2 Filed06/01/12 Page5 of 206 1 vigorously and at arm’s length. See Declaration of Hon. Daniel Weinstein (Ret.) and Catherine 2 A. Yanni in Support of Final Approval, attached hereto as Exhibit F at paragraph 7. 3 12. The parties’ Settlement Agreement proposed certification of a Settlement Class 4 consisting of: All United States residents who are or were the original owners of an iPhone 4.