Free Motion for Leave to File - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

IN RE INTEL CORP. MICROPROCESSOR LITIGATION This Pleading Pertains to:

MDL Docket No. 05-1717-JJF

JIM KIDWELL, MARY REEDER, JOHN Case No. 05-470-JJF MAITA, JWRE, INC., CHRYSTAL MOELLER, and CARESSE HARMS, on their own behalves and on behalf of all others similarly situated, Plaintiffs, vs. INTEL CORPORATION, CORPORATION, A DELAWARE

Defendant. ROBERT J. RAINWATER, KATHY ANN Case No. 05-473-JJF CHAPMAN, and SONIA YACO, on their own behalves and on behalf of all others similarly situated, Plaintiffs, vs. INTEL CORPORATION, CORPORATION, A DELAWARE

Defendant. Additional captions continue on following pages

THE NATIONAL PLAINTIFFS GROUP'S MEMORANDUM IN SUPPORT OF THEIR MOTION FOR LEAVE TO FILE THEIR CONSOLIDATED COMPLAINT

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RYAN JAMES VOLDEN, CHARLES DUPRAZ, VANESSA Z. DEGEORGE, MELISSA GOEKE, JAMES R. CONLEY, NANCY BJORK, TOM KIDWELL, and JEFF VAUGHT, on their own behalves and on behalf of all others similarly situated, Plaintiffs, vs. INTEL CORPORATION, CORPORATION, A DELAWARE

Case No. 05-488-JJF

Defendant. FICOR ACQUISITION CO., LLC, d/b/a MILLS & Case No. 05-515-JJF GREER SPORTING GOODS, RICHARD CAPLAN, MARIA PILAR SALGADO, PAULA NARDELLA, NANCY WOLFE, LESLIE MARCH, TOM HOBBS, ANDREW MARCUS, and VIRGINIA DEERING, on their own behalves and on behalf of all others similarly situated, Plaintiffs, vs. INTEL CORPORATION, CORPORATION, A DELAWARE

Defendant. BILL RICHARDS, CARL YAMAGUCHI, and RON TERRANOVA on their own behalves and on behalf of all others similarly situated, Plaintiffs, vs. INTEL CORPORATION, CORPORATION, A DELAWARE Case No. 05-672-JJF

Defendant.

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DAVID KURZMAN, on behalf of himself and all others similarly situated, Plaintiff, vs. INTEL CORPORATION, CORPORATION, A DELAWARE

Case No. 05-710-JJF

Defendant. GIACOBBE-FRITZ FINE ART LLC, on its own Case No. 05-846-JJF behalf and on behalf of all others similarly situated, Plaintiff, vs. INTEL CORPORATION, CORPORATION, A DELAWARE

Defendant. THE NATIONAL PLAINTIFFS GROUP'S MEMORANDUM IN SUPPORT OF THEIR MOTION FOR LEAVE TO FILE THEIR CONSOLIDATED COMPLAINT The plaintiffs comprising the National Plaintiffs Group,1 by their counsel, respectfully submit this memorandum in support of their Motion for Leave to File Their Consolidated Complaint (the "Leave Motion"). The Leave Motion was necessitated by the refusal of Courtappointed Interim Class Counsel to include the plaintiffs comprising the National Plaintiffs' Group in their consolidated complaint, filed with the Court on April 28, 2006 (Document No. 59), along with the claims those plaintiffs have asserted.

1

A list of the plaintiffs comprising the National Plaintiffs Group and the captions of their pending actions are set forth in Footnote 1 to the National Plaintiff Group's Motion for Leave to File Their Consolidated Complaint, filed contemporaneously herewith.

1

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Interim Class Counsel's unilateral decision to drop the plaintiffs comprising the National Plaintiffs Group and their claims from their consolidated pleading directly contravenes the purpose and intent of Rule 23(g) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P." or "Rule ___"); Fed. R. Civ. P. 21, which mandates that parties may not be dropped from an action without court order granting a motion requesting such relief; the Rules of Procedure of the Judicial Panel on Multidistrict Litigation; and this Court's April 18, 2006 Memorandum Order, These actions were transferred to this Court following proceedings before the Judicial Panel on Multidistrict Litigation ("JPML"). All claims originally brought in this District and in other Districts were assigned to this Court by the JPML.2 Nevertheless, without motion or permission of this Court, Interim Class Counsel has filed a consolidated complaint, with one of its purposes being to dismiss certain plaintiffs and their claims without the consent of those parties or Court Order permitting them to do so. In its April 18, 2006 Memorandum Order appointing interim class counsel here, the Court ­ after, inter alia, voicing its concerns about the inefficiencies and potential for abuse inherent in multi-firm leadership structures ­ ordered that all purchaser antitrust actions pending against Intel in the District of Delaware be consolidated and that interim class counsel was charged with, inter alia, overseeing all of those actions for the benefit of the plaintiffs named therein. The Court's Memorandum Order is consistent with Rule 23(g)'s mandate that Interim Class Counsel is required to "fairly and adequately represent the interests of the class." Rule
2

Rule 1.4 of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation confirms the JPML's expectation that the plaintiffs and claims asserted in transferred actions are to proceed unabated in the transferee court, mandating that "[a]ny attorney of record in any action transferred under Section 1407 may continue to represent his or her client in any district court of the United States to which such action is transferred" ­ which presupposes the continued pendency of those transferred actions and claims in the transferee court.

2

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23(g)(1)(B). The scope of this obligation is confirmed by the Advisory Committee Notes to Rule 23, which state, in pertinent part, that "[w]hether or not formally designated interim counsel, an attorney who acts on behalf of the class before certification must act in the best interests of the class as a whole." (emphasis added). Interim Class Counsel here, however, have failed to comply with their obligations to protect and represent the interests and claims of all plaintiffs in the consolidated actions, thereby necessitating the National Plaintiffs Group's Leave Motion. Specifically, rather than represent the interests and claims of all plaintiffs in the consolidated actions, Interim Class Counsel unilaterally expelled the plaintiffs comprising the National Plaintiffs Group from the consolidated action and refused to include their state law claims and proposed state law classes in their consolidated complaint ­ despite being specifically instructed by counsel for the National Plaintiffs Group that they were not authorized to do so.3 In an effort to respect the Court's interim class counsel ruling and to work within the parameters thereof, the National Plaintiffs Group ­ at Interim Class Counsel's request and invitation ­ reviewed a draft version of Interim Class Counsel's consolidated complaint and returned detailed comments and proposed revisions designed to preserve Interim Class Counsel's proffered theory of the case, while pleading alternative state class claims to confront and overcome the serious standing problems the National Plaintiffs Group believes continues to plague Interim Class Counsel's pleadings.4
3

Interim Class Counsel rejected the National

In an effort to present this issue to the Court in a streamlined manner, the National Plaintiffs Group has not appended to this memorandum the emailed correspondence between Fred Taylor Isquith of Wolf Haldenstein Adler Freeman & Herz, an attorney representing the National Plaintiffs Group, and Steve Berman of Hagens Berman LLP, one of the firms comprising Interim Class Counsel here. Should the Court wish to review that email correspondence, counsel for the National Plaintiffs Group is ready, willing, and able to proffer it to the Court.

4

While this is neither the time nor the place to debate the merits of the claims presented to the Court by Interim Class Counsel in their consolidated complaint, one of the defects that may permeate that

3

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Plaintiffs Group's suggestions and unilaterally ­ without motion or Court Order5 ­ expelled the plaintiffs comprising the National Plaintiffs Group, as well as all of their claims, from the consolidated action. By abandoning their duties and improperly and without authorization

discarding parties and claims from the consolidated action, Interim Class Counsel have left the plaintiffs comprising the National Plaintiffs Group with no alternative other than to seek relief from the Court to enable them to protect their interests and preserve their claims and the claims of the 24 individual state law classes they respectively seek to represent ­ and which are in no way protected or included by Interim Class Counsel in their consolidated pleading. CONCLUSION For all of the foregoing reasons, the plaintiffs comprising the National Plaintiffs Group respectfully request that the Court grant their motion and grant them leave to file their Consolidated Complaint. DATED: May 2, 2006 BIGGS AND BATTAGLIA /s/ Robert D. Goldberg Robert D. Goldberg (ID #631) 921 North Orange Street P.O. Box 1489 Wilmington, Delaware 19899
consolidated complaint is that the plaintiffs named in that pleading may not have standing to prosecute those claims. As the National Plaintiffs Group explained in its earlier filings before the Court, while the National Plaintiffs Group asserts claims on behalf of putative class members of separately-pleaded state classes, from states permitting indirect purchaser litigation, under the statutes of those states in which the representative plaintiffs reside, Interim Class Counsel asserts claims on behalf of nationwide classes under statutes in states where the representative plaintiffs do not reside, did not purchase their Intelequipped computers, did not suffer antitrust or other injury ­ and, in many instances, on behalf of plaintiffs from states that prohibit indirect purchaser actions.
5

Indeed, Fed. R. Civ. P. 21 states, in pertinent part, "[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." It is inarguable that no such motion practice or Court order has occurred here. Correspondingly, in their consolidated complaint, Interim Class Counsel appears to have added three additional plaintiffs ­ Elizabeth Bruderle Baran, Rob Marshall, dba Marshall Realty, and Francis H. Slattery IV ­ without leave of court permitting them to do so, thereby violating Fed. R. Civ. P. 19 as well.

4

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Telephone: (302) 655-9677 Facsimile: (302) 655-7924 Proposed Liaison Counsel for the National Plaintiffs Group WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP Fred Taylor Isquith 270 Madison Avenue New York, New York 10016 Telephone: (212) 545-4600 Facsimile: (212) 545-4653 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC Mary Jane Edelstein Fait Adam J. Levitt 55 West Monroe Street, Suite 1111 Chicago, Illinois 60603 Telephone: (312) 984-0000 Facsimile: (312) 984-0001 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP Francis M. Gregorek Betsy C. Manifold Francis A. Bottini, Jr. Rachele R. Rickert 750 B Street, Suite 2770 San Diego, California 92101 Telephone: (619) 239-4599 Facsimile: (619) 234-4599 Counsel for the National Plaintiffs Group Ann Lugbill 2406 Auburn Avenue Cincinnati, Ohio 45219 Tel: (513) 784-1280 Fax: (513) 784-1449 Counsel for Mary Reeder Brandon N. Voelker 28 West 5th Street Covington, Kentucky 41011 Tel: (859) 491-5551 Fax: (859) 491-0187 Counsel for Mary Reeder

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Gene Summerlin OGBORN, SUMMERLIN & OGBORN, PC 210 Windsor Place 330 South Tenth Street Lincoln, Nebraska 68508 Tel: (402) 434-8040 Fax: (402) 434-8044 Counsel for JWRE, Inc., Chrystal Moeller, and Caresse Harms Robert J. Sharkey VANDERVOORT, CHRIST & FISHER, PC Fifth Third Bank Building, Suite 312 67 West Michigan Avenue Battle Creek, Michigan 49017 Tel: (269) 965-7000 Fax: (269) 965-0646 Counsel for Robert J. Rainwater Richard A. Lockridge Robert K. Shelquist LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, Minnesota 55401 Tel: (612) 339-6900 Fax: (612) 339-0981 Counsel for Kathy Ann Chapman, Nancy Bjork, Ron Terranova, and Carl Yamaguchi Noah Golden-Krasner LAW OFFICES OF NOAH GOLDEN-KRASNER 354 West Main Street Madison, Wisconsin 53703 Tel: (608) 441-8924 Fax: (608) 442-9494 Counsel for Sonia Yaco Tim Semelroth RICCOLO & SEMELROTH, PC 425 Second St. SE, Ste 1140 Cedar Rapids, Iowa 52401 Tel: (319) 365-9200 Fax: (319) 365-1114

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Counsel for Ryan James Volden Robert J. Rubin, PA RUBIN & STROUT, PA 480 West Street Rockport, Maine 04856 Tel: (207) 236-8260 Fax: (207) 236-4981 Counsel for Melissa Goeke Charles F. Speer Donnamarie Landsberg SPEER LAW FIRM, PC 104 W. 9th Street, Suite 305 Kansas City, Missouri 64105 Tel: (816) 472-3560 Fax: (816) 421-2150 Counsel for Jeff Vaught

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Dennis J. Johnson JOHNSON & PERKINSON 1690 Williston Road South Burlington, Vermont 05403 Tel: (802) 862-0030 Fax: (802) 862-0060 Counsel for Ficor Acquisition Co., LLC, dba Mills & Greer Sporting Goods Peter G. Gruber PETER G. GRUBER, P.A. One Datran Center, Suite 910 9100 South Dadeland Boulevard Miami, Florida 33156 Tel: (305) 670-1010 Fax: (305) 670-0228 Counsel for Maria Pilar Salgado Nancy Freeman Gans MOULTON & GANS, P.C. 33 Broad Street, Suite 1100 Boston, Massachusetts 02109 Tel: (617) 369-7979 Fax: (617) 369-7980 Counsel for Paula Nardella Richard J.R. Raleigh Jr. WILMER & LEE, P.A. 100 Washington Street, Suite 200 Huntsville, Alabama 35801 Tel: (256) 533-0202 Fax: (256) 533-0302 Counsel for Nancy Wolfe Jayne Goldstein MAGER & GOLDSTEIN LLP 2825 University Drive, Suite 350 Coral Springs, Florida 33065 Tel: (954) 341-0844 Fax: (954) 341-0855 Counsel for Leslie March, Virginia Deering, and Giacobbe-Fritz Fine Art LLC

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Carol A. Mager MAGER & GOLDSTEIN LLP One Liberty Place, 21st Floor Philadelphia, Pennsylvania 19103 Tel: (215) 640-3280 Fax: (215) 640-3281 Counsel for Leslie March, Virginia Deering, and Giacobbe-Fritz Fine Art LLC Van Bunch BONNETT, FAIRBOURN, FRIEDMAN & BALINT, PC 57 Carriage Hill Signal Mountain, Tennessee 37377 Tel: (423) 886-9736 Counsel for Tom Hobbs Barry C. Blackburn THE BLACKBURN LAW FIRM, PLLC 6933 Crumpler Boulevard, Suite B P.O. Box 70 Olive Branch, Mississippi Tel: (662) 895-6116 Fax: (662) 895-6121 Counsel for Bill Richards Greg McEwen THE MCEWEN LAW FIRM, P.L.L.C. 5850 Blackshire Path Inver Grove Heights, Minnesota 55076 Tel: (651) 224-3833 Fax: (651) 223-5790 Counsel for Ron Terranova Jerold T. Matayoshi FUKUNAGA MATAYOSHI HERSHEY & CHING, LLP Davies Pacific Center, Suite 1200 841 Bishop Street Honolulu, Hawaii 96813 Tel: (808) 533-4300 Fax: (808) 531-7585 Counsel for Carl Yamaguchi

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Patrick J. Murphy MURPHY, SMALL & ASSOCIATES 1100 East Bridger Avenue Las Vegas, Nevada 89101 Tel: (702) 259-4600 Fax: (702) 259-4748 Counsel for Ron Terranova David Pastor GILMAN AND PASTOR, L.L.P 60 State Street, 37th Floor Boston, Massachusetts 02109 Tel: (617) 742-9700 Fax: (617) 742-9701 Counsel for David Kurzman
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