Case 2:22-cv-01599-KKE Document 81 Filed 02/29/24 Page 1 of 5
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`The Honorable Kymberly K. Evanson
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`STEVEN FLOYD, individually and on behalf
`of all others similarly situated,
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`Plaintiff,
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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` Case No. 2:22-cv-01599-KKE
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`DECLARATION OF BEN M.
`HARRINGTON IN SUPPORT OF
`MOTION TO AMEND FIRST AMENDED
`COMPLAINT AND TO INTERVENE
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`NOTE ON MOTION CALENDAR:
`March 15, 2024
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`v.
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`AMAZON.COM, INC., a Delaware
`corporation, and APPLE INC., a California
`corporation
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`Defendants.
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`HARRINGTON DECLARATION ISO MOTION TO AMEND
`FIRST AMENDED COMPLAINT AND TO INTERVENE
`Case No. 2:22-cv-01599-KKE
`011184-11/2447439 V1
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`Case 2:22-cv-01599-KKE Document 81 Filed 02/29/24 Page 2 of 5
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`I, Ben M. Harrington, declare as follows:
`1.
`I am an attorney duly licensed to practice law before this Court. I am a member of
`the California Bar, and I have been admitted to this Court pro hac vice. I am a partner in the law
`firm Hagens Berman Sobol Shapiro LLP (“class counsel”), counsel to Plaintiff Steven Floyd,
`proposed intervenors Jolene Furdek and Jonathan Ryan, and the putative class in this matter.
`Based on personal knowledge or discussions with counsel in my firm about the matters stated
`herein, if called upon, I could and would competently testify thereto.
`2.
`Up until recently, Mr. Floyd has been an attentive and responsive class
`representative. Mr. Floyd communicated with class counsel promptly and effectively during the
`preparation of pleadings in this matter and as the case progressed. But the last communication
`class counsel received from Mr. Floyd was on January 16, 2024. Since that time, class counsel’s
`messages to Mr. Floyd—including by phone, text, and email—have gone unanswered.
`3.
`Although Mr. Floyd has not affirmatively withdrawn as a class representative, his
`lapse in communication prompted class counsel to initiate a search for potential additional class
`representatives who could be added or (if necessary) substituted should Mr. Floyd fail to
`reengage. Those outreach efforts began on January 24, 2024.
`4.
`On February 1, 2024, Jolene Furdek confirmed that she would be willing to serve
`as a class representative in this matter. On February 12, 2024, Jonathan Ryan provided the same
`confirmation.
`5.
`Class counsel prepared a proposed Second Amended Complaint including Ms.
`Furdek and Mr. Ryan as class representatives and, on February 13, 2024, requested Defendants’
`consent to the amendment pursuant to Fed. R. Civ. P. 15(a)(2). Class counsel informed counsel
`to Defendants that Mr. Floyd had “become difficult to reach” and that class counsel was
`“working diligently to determine whether Mr. Floyd wishes to continue serving as a class
`representative, and that he is fully capable of doing so.” See Exhibit A.
`6.
`Class counsel’s February 13, 2024 message to Defendants’ counsel further
`confirmed that, to avoid any disruption to the case schedule, Ms. Furdek and Mr. Ryan would be
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`HARRINGTON DECLARATION ISO MOTION TO AMEND
`FIRST AMENDED COMPLAINT AND TO INTERVENE - 1
`Case No. 2:22-cv-01599-KKE
`011184-11/2447439 V1
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`Case 2:22-cv-01599-KKE Document 81 Filed 02/29/24 Page 3 of 5
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`prepared to treat Defendants’ existing discovery requests as having been propounded on them
`and would adopt Mr. Floyd’s written responses as their own. See Exhibit A.
`7.
`Class counsel requested Defendants’ position on the proposed amendment by
`Friday, February 16, 2024. On that date, counsel for Defendants stated that they needed
`additional time to confer with their clients and that they would respond on February 20, 2024.
`Defendants’ counsel also requested that class counsel provide the proposed new Plaintiffs’
`Amazon and Apple account IDs, which class counsel promptly provided the following Monday
`(a federal holiday). See Exhibit B (email with confidential account details excluded from
`Exhibit).
`8.
`On February 20, 2024, counsel for Defendants contacted class counsel by
`telephone to request until February 22, 2024, to provide Defendants’ position on the motion to
`amend. Class counsel granted that request as a courtesy.
`9.
`On February 22, 2024, Defendants’ counsel provided notice that Defendants
`would oppose the motion to amend. See Exhibit A. Defendants’ counsel also requested various
`details as to class counsel’s communications with clients, along with an immediate deposition of
`Mr. Floyd (in advance of any hearing on the motion to amend) preceded by an expedited
`production of documents. Class counsel generally oppose Defendants’ demands for additional
`(and expedited) discovery of Mr. Floyd, but notified Defendants the following day that Mr.
`Floyd’s last communication to class counsel was on January 16, 2024, and that class counsel
`would provide deposition dates if and when Mr. Floyd reengages. See Exhibit A.
`10.
`Subsequent to this exchange, class counsel has made several additional attempts
`to contact Mr. Floyd, but has not received a response. Mr. Floyd was notified that class counsel
`would be filing a motion to amend the pleadings to add additional class representatives, and
`invited to notify class counsel should he have any opposition to this course of action. Mr. Floyd
`did not respond.
`11.
`Class counsel have initiated ESI collections with Ms. Furdek and Mr. Ryan and
`will proceed with these efforts pending the Court’s ruling on the motion to amend. Class counsel
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`HARRINGTON DECLARATION ISO MOTION TO AMEND
`FIRST AMENDED COMPLAINT AND TO INTERVENE - 2
`Case No. 2:22-cv-01599-KKE
`011184-11/2447439 V1
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`Case 2:22-cv-01599-KKE Document 81 Filed 02/29/24 Page 4 of 5
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`B
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`D
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`anticipate that Ms. Furdek and Mr. Ryan will be able to substantially complete their document
`productions by the April 3, 2024 substantial completion deadline.
`12.
`Attached are true and correct copies of the following documents:
`Exhibit
`Description
`A
`Email correspondence between counsel dated February 13, 2024, to
`February 23, 2024
`Email correspondence between counsel dated February 13, 2024, to
`February 16, 2024
`Proposed Second Amended Class Action Complaint
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`Redline of Proposed Second Amended Class Action Complaint
`against First Amended Class Action Complaint
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`I declare under penalty of perjury under the laws of the United State that the foregoing is
`true and correct. Executed this 29th day of February, 2024 at Berkeley, California.
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`BEN M. HARRINGTON
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`HARRINGTON DECLARATION ISO MOTION TO AMEND
`FIRST AMENDED COMPLAINT AND TO INTERVENE - 3
`Case No. 2:22-cv-01599-KKE
`011184-11/2447439 V1
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`Case 2:22-cv-01599-KKE Document 81 Filed 02/29/24 Page 5 of 5
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`CERTIFICATE OF SERVICE
`I hereby certify that on February 29, 2024, a true and correct copy of the foregoing was
`filed electronically by CM/ECF, which caused notice to be sent to all counsel of record.
`/s/ Steve W. Berman
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`Steve W. Berman
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`HARRINGTON DECLARATION ISO MOTION TO AMEND
`FIRST AMENDED COMPLAINT AND TO INTERVENE - 4
`Case No. 2:22-cv-01599-KKE
`011184-11/2447439 V1
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