Case 2:15-cv-09929-BRO-RAO Document 52 Filed 04/25/16 Page 1 of 4 Page ID #:1384

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MAYER BROWN LLP

JOHN NADOLENCO (SBN 181128)
jnadolenco@mayerbrown.com
EUGENE VOLOKH (SBN 194464)
evolokh@mayerbrown.com
350 South Grand Avenue, 25th Floor
Los Angeles, California 90071-1503
Telephone: (213) 229-9500
Facsimile: (213) 625-0248
A. JOHN P. MANCINI*
jmancini@mayerbrown.com
ALLISON LEVINE STILLMAN*
astillman@mayerbrown.com
1221 Avenue of the Americas
New York, New York 10020-1001
Telephone: (212) 506-2295
Facsimile: (212) 849-5895

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ARCHIS A. PARASHARAMI*
aparasharami@mayerbrown.com
1999 K Street, N.W.
Washington, D.C. 20006-1101
Telephone: (202) 263-3328
Facsimile: (202) 263-5328

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*Admitted pro hac vice

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Attorneys for Defendant SPOTIFY USA INC.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DAVID LOWERY, VICTOR

KRUMMENACHER, GREG
LISHER, and DAVID FARAGHER,
individually and on behalf of
themselves and all others similarly
situated,

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Plaintiffs,
vs.
SPOTIFY USA INC., a Delaware
corporation,

Case No. 2:15-cv-09929-BRO-RAO

DEFENDANT SPOTIFY USA INC.S
RESPONSE TO PLAINTIFFS
CROSS-MOTION TO
CONSOLIDATE RELATED CASES
AND APPOINT INTERIM LEAD
COUNSEL
Date:
Time:
Judge:

May 16, 2016

1:30 p.m.
Hon. Beverly Reid OConnell

Defendant.

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SPOTIFYS RESPONSE TO PLAINTIFFS CROSS-MOTION FOR CONSOLIDATION AND TO APPOINT
INTERIM LEAD COUNSEL; CASE NO. 2:15-CV-09929-BRO-RAOx

Case 2:15-cv-09929-BRO-RAO Document 52 Filed 04/25/16 Page 2 of 4 Page ID #:1385

Just as it did in responding to the consolidation motion filed by the Plaintiffs

in Ferrick v. Spotify USA Inc. (No. 16-cv-00180), Defendant Spotify USA Inc.

challenges the timing of this request for consolidation rather than (for the most

part) its substance. See Resp. to Motion to Consolidate (Ferrick Dkt. No. 52), filed

Apr. 21, 2016. Indeed, Spotify does not dispute that, under Federal Rule of Civil

Procedure 42(a), this Court has the authority to consolidate this case and Ferrick,

or that the standards for consolidation have been met. But it is apparent that at

least one reason why this cross-motion for consolidation was filed is the jockeying

for position between counsel for Plaintiffs in this action and counsel for the Ferrick

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Plaintiffs over who should serve as interim lead counsel in the litigation. Indeed,

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this cross-motion is devoted entirely to that conflict; on the issue of consolidation,

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the cross-motion simply joins in the arguments already made by the Ferrick

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Plaintiffs. See Mot. 4 n.2.

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As in Ferrick, Spotify takes no position in this filing on the disagreement

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among potential class counsel.

Rather, it submits simply that it may be

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prematureand a potential waste of this Courts resourcesto address whether

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the cases should be consolidated and interim lead class counsel appointed. See

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Ferrick Dkt. No. 52, at 1-2.

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In addition, for the reasons stated in our response in Ferrick, this Court may

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well conclude that judicial economy is best served by denying Plaintiffs cross-

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motion without prejudice and deferring any ruling on consolidation or appointment of

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interim class counsel until after the Court decides whetheras Spotify intends to

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argue in response to the Amended Complaints in this case and in Ferrickthese

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cases should proceed (if at all) in another forum.

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Of course, the Court may conclude that it prefers to consolidate the two

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cases now. Whether the Court consolidates the cases or not, however, it should

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order staging of Spotifys challenges to the pleadings to maximize efficiency for

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the Court and the parties. Specifically, the Court should order that the filing and
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SPOTIFYS RESPONSE TO PLAINTIFFS CROSS-MOTION FOR CONSOLIDATION AND TO APPOINT
INTERIM LEAD COUNSEL; CASE NO. 2:15-CV-09929-BRO-RAOx

Case 2:15-cv-09929-BRO-RAO Document 52 Filed 04/25/16 Page 3 of 4 Page ID #:1386

briefing of any motion by Spotify to strike class allegations under Rule 12(f) be

deferred until after the Court resolves Spotifys forum-related challenges. There

can be no question that it would be more efficient for the Court to resolve these

threshold issues before delving into the viability of Plaintiffs class allegations.

And it would make little sense for the parties to brief the motion to strike class

allegations now, only to have to brief the issue all over again if the case is

transferred to or refiled in the Southern District of New York.

CONCLUSION

For the foregoing reasons, the Court should deny Plaintiffs cross-motion

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without prejudice. In addition (or in the alternative), the Court should order that

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the filing of and briefing on Spotifys motion to strike class allegations in both this

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action and Ferrick be deferred until after the resolution of Spotifys motion to

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dismiss for lack of personal jurisdiction or to transfer.1

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Dated: April 25, 2016

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A. John P. Mancini*
Allison Levine Stillman*
1221 Avenue of the Americas
New York, New York 10020
jmancini@mayerbrown.com
astillman@mayerbrown.com
T 212.506.2295
F 212.849.5895

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Archis A. Parasharami*
1999 K Street, N.W.
Washington, D.C. 20006
aparasharami@mayerbrown.com
T 202.263.3328
F 202.263.5328

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MAYER BROWN LLP

/s/ _John Nadolenco____________
John Nadolenco
Eugene Volokh
350 South Grand Avenue
Los Angeles, California 90071
jnadolenco@mayerbrown.com
T 213.229.5173
F 213.576.8133

A copy of this Response has been served on all counsel of record for the
plaintiffs in the Ferrick action.
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SPOTIFYS RESPONSE TO PLAINTIFFS CROSS-MOTION FOR CONSOLIDATION AND TO APPOINT
INTERIM LEAD COUNSEL; CASE NO. 2:15-CV-09929-BRO-RAOx

Case 2:15-cv-09929-BRO-RAO Document 52 Filed 04/25/16 Page 4 of 4 Page ID #:1387

*Admitted pro hac vice

Attorneys for Defendant Spotify USA Inc.

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SPOTIFYS RESPONSE TO PLAINTIFFS CROSS-MOTION FOR CONSOLIDATION AND TO APPOINT
INTERIM LEAD COUNSEL; CASE NO. 2:15-CV-09929-BRO-RAOx