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`Case 2:22-cv-01599-KKE Document 143 Filed 09/30/24 Page 1 of 14
`
`Honorable Kymberly K. Evanson
`
`
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`STEVEN FLOYD, et al., individually and on
`behalf of all other similarly situated,
`Plaintiff,
`
`v.
`AMAZON.COM INC. and APPLE INC.,
`Defendants.
`
`Case No. 2:22-cv-01599 KKE
`APPLE INC.’S RESPONSE TO
`HAGENS BERMAN SOBOL SHAPIRO
`LLP’S MOTION TO WITHDRAW AS
`COUNSEL FOR PLAINTIFF STEVEN
`FLOYD
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`APPLE INC.’S RESPONSE TO HAGENS BERMAN’S
`MOTION TO WITHDRAW
`Case No. 2:22-cv-01599 KKE
`
`
`
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`
`
`Orrick Herrington & Sutcliffe LLP
`401 Union Street, Suite 3300
`Seattle, Washington 98101 / tel+1-206-839-4300
`
`

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`Case 2:22-cv-01599-KKE Document 143 Filed 09/30/24 Page 2 of 14
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`TABLE OF CONTENTS
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`Page
`
`INTRODUCTION ............................................................................................................................ 1
`
`FACTUAL BACKGROUND .......................................................................................................... 2
`
`A.
`
`B.
`
`C.
`
`Plaintiffs’ Counsel Did Not Withdraw Mr. Floyd, But Something
`Prompted The Quick Filing Of A Proposed Amended Complaint With
`
`New Plaintiffs. .............................................................................................. 2
`
`As Soon As The New Plaintiffs Were Added, Plaintiffs’ Counsel
`Quickly Sought to Withdraw Mr. Floyd Before He Complied With
`Discovery. .................................................................................................... 3
`
`Plaintiffs’ Counsel Seeks An Extension Of Court-Ordered Discovery
`While Failing To Disclose The “Breakdown” In Their Relationship
`With Mr. Floyd. ............................................................................................ 4
`
`LEGAL STANDARD ...................................................................................................................... 4
`
`ARGUMENT ................................................................................................................................... 5
`
`I.
`
`II.
`
`The Unique Circumstances Require An Extension Of Mr. Floyd’s Court-
`Ordered Discovery Because The Burden Of Ensuring Compliance From An
`Improper Pro Se Named Plaintiff Will Now Fall To The Court and
`Defendants. ............................................................................................................... 5
`
`The Prejudice From Mr. Floyd’s Discovery Non-Compliance Demands A
`More Transparent Record From Withdrawing Counsel. .......................................... 7
`
`CONCLUSION ................................................................................................................................ 9
`
`
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`APPLE INC.’S RESPONSE TO HAGENS BERMAN’S
`MOTION TO WITHDRAW
`Case No. 2:22-cv-01599 KKE
`
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`i
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`Orrick Herrington & Sutcliffe LLP
`401 Union Street, Suite 3300
`Seattle, Washington 98101 / tel+1-206-839-4300
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`

`

`Case 2:22-cv-01599-KKE Document 143 Filed 09/30/24 Page 3 of 14
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`TABLE OF AUTHORITIES
`
`
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`Page(s)
`
`Cases
`
`3M Co. v. Aime LLC,
`2023 WL 1863517 (W.D. Wash. Feb. 9, 2023) ..................................................................... 1, 5
`
`Alberghetti v. Corbis Corp.,
`263 F.R.D. 571 (C.D. Cal. 2010) ............................................................................................... 8
`
`China Agritech v. Resh,
`584 U.S. 732 (2018) ................................................................................................................... 9
`
`Curry v. Haynes,
`2023 WL 3902520 (W.D. Wash. May 23, 2023) ....................................................................... 7
`
`In re Dependency of G.M.W.,
`24 Wash. App. 2d 96, 124, 519 P.3d 272 (2022) ....................................................................... 8
`
`Discovery Park Cmty. All. v. City of Seattle,
`2020 WL 509657 (W.D. Wash. Jan. 31, 2020) .......................................................................... 6
`
`Ewalan v. Washington State Dept. of Corrections,
`2022 WL 5258463 (W.D. Wash. Oct. 6, 2022) ..................................................................... 5, 7
`
`Fujifilm Sonosite, Inc. v. Imaging Specialists Grp., LLC,
`2014 WL 1400992 (W.D. Wash. Apr. 10, 2014) ....................................................................... 9
`
`McPeak v. Butcher,
`2022 WL 5154095 (W.D. Wash. Oct. 5, 2022) ......................................................................... 6
`
`Pistrak v. Washington,
`2023 WL 3479692 (W.D. Wash. May 16, 2023) ....................................................................... 6
`
`Unger v. Amedisys Inc.,
`401 F.3d 316 (5th Cir. 2005) ...................................................................................................... 8
`
`White v. Green,
`310 F. App’x 159 (9th Cir. 2009) ............................................................................................... 5
`Statutes
`
`15 U.S.C. § 15b ................................................................................................................................ 9
`Other Authorities
`
`Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, 7A Federal Practice &
`Procedure § 1766 (4th ed. 2024) ............................................................................................... 8
`
`APPLE INC.’S RESPONSE TO HAGENS BERMAN’S
`MOTION TO WITHDRAW
`Case No. 2:22-cv-01599 KKE
`
`
`
`ii
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`Orrick Herrington & Sutcliffe LLP
`401 Union Street, Suite 3300
`Seattle, Washington 98101 / tel+1-206-839-4300
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`Case 2:22-cv-01599-KKE Document 143 Filed 09/30/24 Page 4 of 14
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`1 Newberg and Rubenstein on Class Actions § 3:70 (6th ed.) ......................................................... 8
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`7A C.J.S. Attorney & Client § 331 .................................................................................................. 6
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`Fed. R. Civ. P. 1 ............................................................................................................................... 9
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`Fed. R. Civ. P. 60(b)(3) .................................................................................................................... 8
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`W.D. Wash. L.C.R. 83.2(b) .......................................................................................................... 5, 7
`
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`APPLE INC.’S RESPONSE TO HAGENS BERMAN’S
`MOTION TO WITHDRAW
`Case No. 2:22-cv-01599 KKE
`
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`iii
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`Orrick Herrington & Sutcliffe LLP
`401 Union Street, Suite 3300
`Seattle, Washington 98101 / tel+1-206-839-4300
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`Case 2:22-cv-01599-KKE Document 143 Filed 09/30/24 Page 5 of 14
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`INTRODUCTION
`Defendant Apple Inc. has no desire to force Plaintiffs’ counsel to continue representing
`Plaintiff Steven Floyd. Apple does, however, oppose the motion for an unconditional withdrawal,
`filed the same day that Mr. Floyd’s already-extended Court-ordered document and written
`discovery deadline passed without any production (see Dkt. 142). At this stage of the litigation, an
`unconditional withdrawal will (i) transfer the burden of dealing with Mr. Floyd’s discovery
`noncompliance from Plaintiffs’ counsel to the Court, and (ii) “delay the resolution of the case,”
`impede the “administration of justice,” and “prejudice” Defendants—three factors that guide this
`Court’s analysis. See 3M Co. v. Aime LLC, 2023 WL 1863517, at *1 (W.D. Wash. Feb. 9, 2023).
`First, Plaintiffs’ counsel fails to explain how this case will proceed with a non-compliant,
`pro se named plaintiff who violated a Court order to produce discovery while represented by
`counsel. The motion is silent as to whether Mr. Floyd knows of this request to withdraw or his
`ability to obtain new counsel. And the motion ignores the well-recognized impropriety of a putative
`class action litigated by a pro se named plaintiff. A motion seeking appropriate relief against Mr.
`Floyd will be filed shortly to enforce the Court’s August 16 Order. The result of this situation will
`likely be a further delayed case schedule and a transfer of the burden of ensuring Mr. Floyd’s
`compliance to the Court and Defendants.
`Second, Plaintiffs’ counsel has now disclosed additional details of its communications with
`Mr. Floyd since January 2024, which suggest that Plaintiffs’ counsel sought to and did file an
`amended putative class action complaint with Mr. Floyd as a named plaintiff without Mr. Floyd’s
`authorization. See Dkt. 141 ¶ 4; Dkt. 81 ¶ 2. Defendants and this Court need to know if Mr. Floyd
`authorized the amendment. If not, then the amended complaint should be dismissed, as the
`otherwise time-barred putative class action claims of the two additional named plaintiffs would not
`be able to benefit from Mr. Floyd’s allegedly timely claims. The administration of justice is not
`served, and Defendants are prejudiced, by allowing counsel to shield the true course of events,
`which may reveal that the entire action should not proceed.
`Accordingly, Defendants respectfully request that the Court take the following steps:
`First, to ensure that Defendants obtain discovery from Mr. Floyd that this Court has already
`
`1
`APPLE INC.’S RESPONSE TO HAGENS BERMAN’S
`Orrick Herrington & Sutcliffe LLP
`MOTION TO WITHDRAW
`401 Union Street, Suite 3300
`Case No. 2:22-cv-01599 KKE
`Seattle, Washington 98101 / tel+1-206-839-4300
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`Case 2:22-cv-01599-KKE Document 143 Filed 09/30/24 Page 6 of 14
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`held is relevant, the Court should extend the deadlines for the Court-ordered discovery of Mr. Floyd
`pending the resolution of the forthcoming motion seeking relief to enforce the Court’s Order.
`Second, to develop a proper record about whether the filings made this year were
`authorized, the Court should condition Plaintiffs’ counsel’s withdrawal on an order requiring it to:
`
`(i) provide the Court with all documentation regarding their communications with Mr. Floyd since
`January 2024 for in camera review, as Plaintiffs’ counsel themselves volunteer to do for recent
`communications; and (ii) provide Defendants with non-privileged information regarding all of
`Plaintiffs’ counsel’s communications with Mr. Floyd since January 2024, along with a privilege
`log for any in camera submissions with information sufficient to show the method of
`communication, the sender/copied/recipient information, the subject line, and any attachments of
`draft filings or filings and their file names.
`FACTUAL BACKGROUND
` Mr. Floyd’s participation in this litigation has been a contested and confused issue for more
`than eight months. Plaintiffs’ counsel’s motion to withdraw indicates that August 20, 2024, was
`the date on which “Mr. Floyd made his first attempt” since January 16, 2024, to contact his counsel.
`Dkt. 141 ¶ 4; Dkt. 81 ¶ 2. Plaintiffs’ counsel also disclosed a breakdown in the attorney-client
`relationship, necessitating the motion. See Dkt. 142 at 1. However, little is known of what occurred
`between Mr. Floyd and his counsel during the intervening seven months, the events leading up to
`his “disappearance” in January 2024, and whether and when he ever indicated an affirmative
`intention to withdraw. The motion raises important but unanswered questions.
`
`A.
`
`Plaintiffs’ Counsel Did Not Withdraw Mr. Floyd, But Something Prompted
`The Quick Filing Of A Proposed Amended Complaint With New Plaintiffs.
`Plaintiffs’ counsel’s latest filings suggest that prior to August 21, counsel had not
`communicated with Mr. Floyd since January 16. Dkt. 141 ¶ 4; Dkt. 81 ¶ 2. Plaintiffs’ counsel
`have not provided any detail on the January 16 interaction with Mr. Floyd beyond stating that it
`“was not a withdrawal.” Liegel Decl. ¶ 3 & Ex. A. Plaintiffs’ counsel “initiated outreach efforts”
`(Dkt. 80 at 4) to substitute Mr. Floyd “should [he] fail to reengage” on January 24 (Dkt. 81 ¶ 3). It
`waited until February 13, to notify Defendants that Mr. Floyd had “become difficult to reach.”
`
`Orrick Herrington & Sutcliffe LLP
`401 Union Street, Suite 3300
`Seattle, Washington 98101 / tel+1-206-839-4300
`
`APPLE INC.’S RESPONSE TO HAGENS BERMAN’S
`MOTION TO WITHDRAW
`Case No. 2:22-cv-01599 KKE
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`Case 2:22-cv-01599-KKE Document 143 Filed 09/30/24 Page 7 of 14
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`Liegel Decl. ¶ 2 & Ex. A. Defendants’ questions about what transpired were rebuffed. Id. Ex. A.
`Plaintiffs’ counsel’s lack of disclosure masks whether Mr. Floyd indicated as early as
`January 16 that he did not want to proceed with the case or that he refused to comply with discovery.
`That Plaintiffs’ counsel felt the need to identify new named plaintiffs just eight days after the
`
`January 16 communication suggests Mr. Floyd made some indication, even if “not a withdrawal”
`in Plaintiffs’ counsel’s view. Plaintiffs’ counsel has also failed to provide any detail on the amount
`and type of efforts they made to regain contact with Mr. Floyd.
`After locating new plaintiffs, Plaintiffs’ counsel filed a motion to amend on February 29.
`In that motion, Plaintiffs’ counsel suggested that Mr. Floyd may be suffering from “health issues
`or other incapacitating events.” Dkt. 80 at 1. As Defendants noted at the time, publicly available
`social media posts demonstrated that was inaccurate, raising questions over whether Plaintiffs’
`counsel made any serious efforts to contact Mr. Floyd. See Dkt. 87 (Perry Decl.), Ex. S.
`
`B.
`
`As Soon As The New Plaintiffs Were Added, Plaintiffs’ Counsel Quickly
`Sought to Withdraw Mr. Floyd Before He Complied With Discovery.
`In support of their February 2024 motion to amend, Plaintiffs’ counsel insisted that Mr.
`Floyd “has not informed us of any intention to withdraw as a class representative,” (Liegel Decl.
`¶ 3 & Ex. A) and expressed “reluctan[ce]” to interpret any intention to withdraw (Dkt. 80 at 4).
`Yet, on May 7, 2024—immediately after amendment was allowed—Plaintiffs’ counsel claimed
`that Mr. Floyd “no longer wishes to serve[.]” Liegel Decl. Ex. B. Defendants’ questions about
`what happened were rebuffed again. Liegel Decl. ¶ 5 & Ex. C.
`Plaintiffs’ counsel formally attempted to withdraw Mr. Floyd on June 7 (Dkt. 114), before
`Mr. Floyd complied with any outstanding discovery requests. However, the Court granted Apple’s
`Motion to Compel (Dkt. 104), ordered him to respond to written discovery and produce documents
`by August 30, 2024, and ordered him to sit for a deposition by September 30, 2024. Dkt. 132 at 8.
`The parties immediately conferred about the ordered discovery from Mr. Floyd. Liegel
`Decl. ¶ 6. & Ex. D. Plaintiffs’ counsel confirmed that it sent Mr. Floyd the Order and that it still
`represented him, but it had not made contact with him. Id. ¶ 7. On August 21, Plaintiffs’ counsel
`informed Defendants that Mr. Floyd “reached out to us today” and that they were “working with
`
`Orrick Herrington & Sutcliffe LLP
`401 Union Street, Suite 3300
`Seattle, Washington 98101 / tel+1-206-839-4300
`
`APPLE INC.’S RESPONSE TO HAGENS BERMAN’S
`MOTION TO WITHDRAW
`Case No. 2:22-cv-01599 KKE
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`Case 2:22-cv-01599-KKE Document 143 Filed 09/30/24 Page 8 of 14
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`him to address the Court’s order.” Id. ¶ 8.1 The parties were also scheduling a deposition by
`September 30. Id. Plaintiffs’ counsel has not explained how they were able to reestablish contact
`with Mr. Floyd within days of the Court’s Order after apparently failing to do so for many months.
`
`C.
`
`Plaintiffs’ Counsel Seeks An Extension Of Court-Ordered Discovery While
`
`Failing To Disclose The “Breakdown” In Their Relationship With Mr. Floyd.
`On August 26, Plaintiffs’ counsel told Defendants that they had again lost contact with Mr.
`Floyd. See Liegel Decl. ¶ 9 & Ex D. Plaintiffs’ counsel requested Defendants’ agreement to an
`extension of the Court-ordered August 30 written discovery deadline on Mr. Floyd’s behalf. Id.
`Plaintiffs’ counsel’s motion to withdraw reveals, however, that at the time it filed the
`stipulation on August 29, counsel already knew that there was an apparently permanent breakdown
`in the attorney-client relationship. Plaintiffs’ counsel had contact with Mr. Floyd on August 27
`and 28, during which “it became apparent … that Mr. Floyd was increasingly unwilling to
`participate in the case or provide discovery” and that it “indicate[d] a refusal to adhere to Class
`Counsel’s advice regarding compliance with the Order and a breakdown in the attorney-client
`relationship.” Dkt. 141 ¶ 6. Plaintiffs’ counsel never informed Defendants of this communication
`and instead represented in a proposed stipulation sent on August 28 that “Plaintiffs’ counsel is
`attempting to coordinate with Mr. Floyd to comply with the Court’s order.” Liegel Decl. ¶¶ 11–12
`& Ex. E.2 After Defendants agreed to the extension based on these representations, Plaintiffs’
`counsel filed the discovery extension stipulation. Dkt. 134. Plaintiffs’ counsel fails to explain how
`this August 27 and 28 contact that forms the basis of the “breakdown” in their relationship was
`sufficient to move to withdraw just two weeks later, but was insignificant enough such that counsel
`requested an extension of a Court-ordered deadline on Mr. Floyd’s behalf.
`LEGAL STANDARD
`“No attorney shall withdraw an appearance in any case, civil or criminal, except by leave
`of court[.]” W.D. Wash. L.C.R. 83.2(b). Courts in this District consider four factors when ruling
`
`
`1 The declaration accompanying the motion to withdraw, however, cites an earlier, August 20 communication from
`Mr. Floyd as the date “Mr. Floyd made his first attempt since January 2024 to contact” his counsel. Dkt. 141 ¶ 4.
`2 When Defendants’ counsel asked a question about the “exact course of communication” in an August 28, 2024 email,
`Plaintiffs’ counsel omitted that Mr. Floyd had again reached out to them. Liegel Decl. ¶ 13 & Ex. D.
`
`4
`APPLE INC.’S RESPONSE TO HAGENS BERMAN’S
`Orrick Herrington & Sutcliffe LLP
`MOTION TO WITHDRAW
`401 Union Street, Suite 3300
`Case No. 2:22-cv-01599 KKE
`Seattle, Washington 98101 / tel+1-206-839-4300
`
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`Case 2:22-cv-01599-KKE Document 143 Filed 09/30/24 Page 9 of 14
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`on a motion to withdraw: “(1) the reasons why withdrawal is sought; (2) the prejudice withdrawal
`may cause to other litigants; (3) the harm withdrawal might cause to the administration of justice;
`and (4) the degree to which withdrawal will delay the resolution of the case.” 3M Co., 2023 WL
`1863517, at *1. The Local Rules also require reasonable warning to the client in the event of a
`
`motion to withdraw as counsel, and that the attorney seeking to withdraw certify that the motion
`was served on the client. See W.D. Wash. L.C.R. 83.2(b); Ewalan v. Washington State Dept. of
`Corrections, 2022 WL 5258463, at *1–2 (W.D. Wash. Oct. 6, 2022).
`ARGUMENT
`
`I.
`
`The Unique Circumstances Require An Extension Of Mr. Floyd’s Court-Ordered
`Discovery Because The Burden Of Ensuring Compliance From An Improper Pro Se
`Named Plaintiff Will Now Fall To The Court and Defendants.
`Although unaddressed by Plaintiffs’ counsel’s motion, the requested withdrawal leaves the
`case, and Mr. Floyd, in a procedural quagmire—one all but certain to delay the case and potentially
`impact it significantly. Mr. Floyd is a current plaintiff and proposed class representative. See Dkt.
`99 (SAC). He has not been withdrawn, nor fulfilled the required discovery conditions ordered by
`the Court as a threshold to considering whether he may withdraw. Dkt. 132 at 8. While Plaintiffs’
`counsel may no longer wish to represent him, it cannot ignore his presence or use this motion as a
`backdoor attempt to revisit the motion to withdraw Mr. Floyd (which was denied unless Mr. Floyd
`fulfills his discovery obligations). Simply put, Plaintiffs’ counsel seeking to withdraw does not
`change Mr. Floyd’s status in this case as a current putative class representative.
`Plaintiffs’ counsel’s motion does not cite any authority that it, as counsel for other named
`plaintiffs, can leave Mr. Floyd as an unrepresented putative class representative. The motion claims
`this “is not a situation where a withdrawal will require a party to retain new counsel.” Dkt. 142 at
`6. That assertion is inconsistent with Ninth Circuit law holding that class representatives may not
`proceed pro se, even before class certification. See White v. Green, 310 F. App’x 159, 160 (9th
`Cir. 2009); Pistrak v. Washington, 2023 WL 3479692, at *3 (W.D. Wash. May 16, 2023). If
`granted, Plaintiffs’ counsel will put Mr. Floyd in that untenable position.
`Plaintiffs’ counsel has no answer to this and does not explain what would happen to Mr.
`
`APPLE INC.’S RESPONSE TO HAGENS BERMAN’S
`MOTION TO WITHDRAW
`Case No. 2:22-cv-01599 KKE
`
`
`
`5
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`Orrick Herrington & Sutcliffe LLP
`401 Union Street, Suite 3300
`Seattle, Washington 98101 / tel+1-206-839-4300
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`Floyd. The motion claims there will be no delay, yet it does not address the unavoidable
`consequence of an unrepresented putative class representative in a case where he is compelled to
`provide discovery. The schedule has already been significantly delayed due to the request to add
`new named plaintiffs and because Mr. Floyd has failed to comply with Court-ordered discovery.
`
`Dkts. 99, 132, 135. Plaintiffs’ counsel has also barred Defendants from communicating with Mr.
`Floyd until withdrawal is granted. Liegel Decl. ¶ 14 & Ex. F. To avoid prejudice, Apple
`respectfully requests that, as a condition of withdrawal, the Court extend the deadlines for Mr.
`Floyd to provide discovery and that Plaintiffs’ counsel advise him of the forthcoming motion when
`filed. See McPeak v. Butcher, 2022 WL 5154095, at *2 (W.D. Wash. Oct. 5, 2022) (extending
`deadlines in conjunction with granting motion to withdraw as counsel); Discovery Park Cmty. All.
`v. City of Seattle, 2020 WL 509657, at *2 (W.D. Wash. Jan. 31, 2020) (resetting case schedule
`which “will alleviate any risk of prejudice posed by [counsel’s] withdrawal”).3
`Further, an unconditional withdrawal also frustrates the administration of justice because it
`does not appear that Mr. Floyd is aware of the consequences of withdrawal, or what actions he need
`take (to either proceed or withdraw). Plaintiffs’ counsel’s declaration states only that, on
`September 12, Mr. Floyd was “advised” that his lawyers “would be filing a motion to withdraw.”
`Dkt. 141 ¶ 8. However, the declaration does not explain the manner in which that advice occurred
`or whether Mr. Floyd was informed of the consequences of withdrawal, his right to hire new
`counsel, or his rights to respond or participate in his case. See 7A C.J.S. Attorney & Client § 331
`(attorneys are “not entitled to withdraw” “until his or her client has been given due and reasonable
`warning or notice,” “an opportunity to be heard before the court,” and “an opportunity to obtain a
`substitute”). This would have immediate impact. For example, if Plaintiffs’ counsel’s motion is
`granted before the Court considers the forthcoming motion seeking relief to enforce the Court’s
`discovery Order, Mr. Floyd will be unrepresented (and likely unaware of his right to respond).
`Plaintiffs’ counsel has also given no indication as to whether Mr. Floyd is aware of this
`
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`3 The fact discovery deadline of December 13, 2024 and the beginning of class certification briefing on January 13,
`2025 may have to move again to allow time to obtain the discovery from Mr. Floyd that the Court already recognized
`is relevant “even if [Mr.] Floyd will not be a named plaintiff at that stage.” Dkt. 132 at 6. This is particularly the case
`as no contact with Mr. Floyd can be made until the withdrawal motion is resolved.
`6
`APPLE INC.’S RESPONSE TO HAGENS BERMAN’S
`MOTION TO WITHDRAW
`Case No. 2:22-cv-01599 KKE
`
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`Orrick Herrington & Sutcliffe LLP
`401 Union Street, Suite 3300
`Seattle, Washington 98101 / tel+1-206-839-4300
`
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`Case 2:22-cv-01599-KKE Document 143 Filed 09/30/24 Page 11 of 14
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`motion, as the last known communication between counsel and client occurred on August 28.
`Courts in this District have determined that Local Rule 83.2(b) is not complied with where the
`motion to withdraw as counsel is served on the same channels where “prior attempts to contact [the
`client] were unsuccessful.” Ewalan, 2022 WL 5258463, at *2. That is the case here where, for
`
`other documents, “the process server has been unable to hand serve Mr. Floyd,” and counsel simply
`speculates that there “is no indication” that emails and mail did not reach him. Dkt. 141 at 2 n.1.
`While Plaintiffs’ counsel certify that the motion was “served on Plaintiff Steven Floyd by email
`and transmitted to a process server for hand delivery” (Dkt. No. 142 at 6), it offers no evidence that
`Mr. Floyd was in fact served with the motion and is aware of the withdrawal.4 See Ewalan, 2022
`WL 5258463, at *2 (after failed service attempts “and in the absence of evidence that the motion
`was successfully delivered, the court is not persuaded that [defendant] was in fact served with the
`motion.”); Curry v. Haynes, 2023 WL 3902520, at *1 (W.D. Wash. May 23, 2023) (similar).
`For these reasons, as a condition of withdrawal, the Court should extend the deadlines for
`Mr. Floyd to provide the Court-ordered discovery and sit for deposition. Additionally, the Court
`may also elect to hold the motion in abeyance pending Plaintiffs’ counsel’s submission of proof
`that Mr. Floyd has in fact received notice of his counsel’s withdrawal and Mr. Floyd has been
`informed of his rights and obligations upon the withdrawal of his counsel. See, e.g., Ewalan, 2022
`WL 5258463, at *2. The Court may also require Mr. Floyd’s attendance at a hearing on the motion
`to withdraw to discuss the issues presented by counsel’s withdrawal.
`
`II.
`
`The Prejudice From Mr. Floyd’s Discovery Non-Compliance Demands A More
`Transparent Record From Withdrawing Counsel.
`The unique and problematic timeline of Mr. Floyd’s disappearance, reappearance, and
`disappearance again requires a proper record to evaluate Plaintiff’s counsel’s motion to withdraw.
`For example, Plaintiffs’ counsel requested a discovery extension on Mr. Floyd’s behalf on August
`29, 2024, when their relationship apparently had a “breakdown” beforehand. The communications
`(which Plaintiffs’ counsel offered to produce to the Court, Dkt. 142 at 2 n.1) are necessary to
`
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`4 Plaintiffs’ counsel have not indicated whether the process server has successfully served the order on Mr. Floyd.
`And, based on Plaintiffs’ counsel’s previous representations, Mr. Floyd may not read emails related to this matter.
`
`7
`APPLE INC.’S RESPONSE TO HAGENS BERMAN’S
`Orrick Herrington & Sutcliffe LLP
`MOTION TO WITHDRAW
`401 Union Street, Suite 3300
`Case No. 2:22-cv-01599 KKE
`Seattle, Washington 98101 / tel+1-206-839-4300
`
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`Case 2:22-cv-01599-KKE Document 143 Filed 09/30/24 Page 12 of 14
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`understand whether Mr. Floyd’s intention was, has been, or is to remain in this case.
`The need for a record with more transparent disclosure from Plaintiffs’ counsel extends
`back to January 2024, as it could reveal case-dispositive facts. Plaintiffs’ counsel’s current
`representations indicate it had no contact with Mr. Floyd between January and August 2024. This
`
`calls into question whether Plaintiffs’ counsel had the requisite authority to make filings on Mr.
`Floyd’s behalf during this period. Plaintiffs’ counsel’s responses to date indicate that it unilaterally
`determined when the interpretation of Mr. Floyd’s silence crossed the line from wanting to remain
`as a named plaintiff to a desire to withdraw as a named plaintiff. The timing of that determination
`requires a proper inquiry as it conveniently coincided with the Court’s Order granting Mr. Floyd’s
`motion to amend, which added additional named plaintiffs.
`This is no small matter, as Plaintiffs’ counsel have the duty in a putative class action “to
`ensure that the parties are not simply lending their names to a suit controlled entirely by the class
`attorney.” Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, 7A Federal Practice &
`Procedure § 1766 (4th ed. 2024); see also Alberghetti v. Corbis Corp., 263 F.R.D. 571, 580 (C.D.
`Cal. 2010), aff’d, 476 F. App’x 154 (9th Cir. 2012); Unger v. Amedisys Inc., 401 F.3d 316, 321
`(5th Cir. 2005) (“Class representatives must satisfy the court that they, and not counsel, are
`directing the litigation.”); 1 Newberg and Rubenstein on Class Actions § 3:70 (6th ed.) (the
`“function of the class representative is to monitor class counsel”). Moreover, if the motion to
`amend was not authorized by Mr. Floyd, the order granting it must be vacated and set aside. See,
`e.g., Fed. R. Civ. P. 60(b)(3).5 It is fundamental that a lawyer cannot act without client
`authorization—and the class action rules do not change this. See Wash. R.P.C. 1.2(f) (generally
`prohibiting a lawyer from acting for a client “if the lawyer knows or reasonably should know that
`the lawyer is acting without the authority of that person”); In re Dependency of G.M.W., 24 Wash.
`App. 2d 96, 124, 519 P.3d 272 (2022) (“No attorney could ethically or effectively represent a client
`when they have no reachable client to consult and do not know the client’s position on the relevant
`issues.”). Plaintiffs’ counsel’s correspondence to date suggests that filings with this Court were
`
`
`5 Apple reserves all rights to bring such a motion on a full record.
`8
`APPLE INC.’S RESPONSE TO HAGENS BERMAN’S
`MOTION TO WITHDRAW
`Case No. 2:22-cv-01599 KKE
`
`
`
`
`Orrick Herrington & Sutcliffe LLP
`401 Union Street, Suite 3300
`Seattle, Washington 98101 / tel+1-206-839-4300
`
`

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`Case 2:22-cv-01599-KKE Document 143 Filed 09/30/24 Page 13 of 14
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`made without any authorization from its sole client. Critically, this included both the motion to
`amend and the Second Amended Complaint that represented Mr. Floyd’s continued interest in
`litigating this case, despite counsel publicly indicating to the contrary immediately after
`amendment was allowed. Liegel Decl. Ex. B.
`
`If the motion to amend were set aside as unauthorized, Mr. Floyd’s case would need to be
`dismissed.6 Given these serious issues that require transparency and a full record, Apple asks that
`the Court condition Plaintiffs’ counsel’s withdrawal on specific measures to preserve Apple’s
`rights, avoid prejudice, and minimize additional delay. The Court has inherent authority to impose
`such conditions. See Fujifilm Sonosite, Inc. v. Imaging Specialists Grp., LLC, 2014 WL 1400992,
`at *1 (W.D. Wash.