ryan hart, individually and on behalf plaintiffs, vs. case...

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

(TRENTON)

RYAN HART, individually and on behalf of all others similarly situated, Plaintiffs,

vs. ELECTRONIC ARTS, INC., a Delaware Corporation; and DOES I-50, Defendants.

Case No. 3:09-cv-05990-FLW-LHG

MOTION (I) FOR LEAVE TO FILE THIRD AMENDED COMPLAINT REPLACING RYAN HART, THE CURRENT NAMED

CLASS REPRESENTATIVE WITH PROPOSED REPRESENTATIVES MYRON ROLLE, JACK CORCORAN, AND JACKSON RICE; AND (II) TO WITHDRAW AS COUNSEL FOR

CURRENT NAMED CLASS REPRESENTATIVE RYAN HART, IN HIS INDIVIDUAL CAPACITY

Case 3:09-cv-05990-FLW-LHG Document 76-2 Filed 10/04/13 of 21 PageID: 1326

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TABLE OF CONTENTS

INTRODUCTION.. .................................................................................................. 1 BASIS FOR THIS MOTION ................................................................................... 1 RELEVANT PROCEDURAL BACKGROUND .................................................... 5 ARGUMENT............................................................................................................ 6

I. LEAVE TO AMEND SHOULD BE GRANTED DUE TO THE GENERAL PRESUMPTION IN FAVOR OF AMENDMENT, AND DUE TO THE FACT THAT DEFENDANT WILL NOT BE PREJUDICED...................................6 A. Court Freely Grant Leave to Amend..............................................6 B. Courts Deny Amendment Only in Limited

Circumstances That Do Not Apply in This Case............................7 C. Defendant will not be Prejudiced or Disadvantaged in

Any Way Since No New Claims Are Asserted, and Because Hart’s Discovery Has Not Yet Commenced, But, in Any Case, Discovery In This Action Will Be Averted If the Settlement Is Confirmed..................................... 8

II. SINCE COURTS ROUTINELY ALLOW FOR THE SUBSTITUTION OF PLAINTIFFS, LEAVE TO AMEND SHOULD BE GRANTED.................................................. 10 III. PROPOSED CLASS COUNSEL HAS DEMONSTRATED

GOOD CAUSE TO WITHDRAW ITS APPEARANCE....................12

CONCLUSION....................................................................................................... 14


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TABLE OF AUTHORITIES

Case(s) Page(s)

Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989) ............................................................................... 6 Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 886 (3d Cir. 1992) ............................................................................... 7 Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 938 (3d Cir. 1984) ............................................................................... 7 Cornell & Co. v. Occupational Safety & Health Review Comm’n, 573 F.2d 820, 823 (3d Cir. 1978) ............................................................................... 7 Dole v. Arco Chemical Co., 921 F.2d 484, 486-487 (3d Cir. 1990) ........................................................................ 6, 7 Forman v. Davis, 371 U.S. 178, 182 (1962)............................................................................................ 7 Greenfield v. Villager Indus., Inc., 483 F.2d 824, 832 (3d Cir. 1973) ............................................................................... 7 Greig v. Macy’s Northeast, Inc., No. 95 –cv-1259, 1996 U.S. Dist. LEXIS 22142 (D.N.J. Nov. 21, 1996)........13, 14 Haines v. Liggett Group, Inc., 814 F. Supp. 414, 422 (D.N.J. 1993).......................................................................12 Heartland Commc’ns, Inc. v. Sprint Corp., 161 F.R.D. 111, 115 (D. Kan. 1995).......................................................................10 Heyl & Paterson International, Inc. v. F.D. Rich Housing, Inc., 663 F.2d 419, 426 (3d Cir. 1981) ............................................................................... 8 In re Aluminum Phosphide Antitrust Litig., 160 F.R.D. 609, 613 (D. Kan. 1995).......................................................................10


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In re Corn Derivatives Antitrust Litigation, 748 F.2d 157, 162-166 (3d Cir. 1984) ........................................................................ 11 In re General Motors Corp., 55 F.3d 768, 801 (3d Cir. 1995) ................................................................................. 3 In re Herley Indust. Inc. Sec. Litig., 2009 WL 3169888 at *7 (E.D. Pa. Sept. 30, 2009) .................................................... 10 In re Motor Fuel Temp. Sales Pract. Litig., 2009 WL 3122501, at *1-3 (D.Kan. Sep. 24, 2009)................................................10 In re Prudential Ins. Co. America Sales Prac. Litig., 148 F. 3d 282, 319 (3d Cir. 1998).............................................................................9 Kiser v. General Elec. Corp., 831 F.2d 423 (3d Cir. 1987) ....................................................................................... 8 Lindley v. Life Investors Ins. Co. of Am., Nos. 08-0379 & 09-1429, 2009 WL 260194...........................................................10 Maywalt v. Parker & Pasley Petroleum Co., 67 F.3d 1072, 1078 (2d Cir. 1995) ............................................................................ 11 Romero v. ALLSTATE INS. CO., No. 01:3894, 2010 WL 2996963.............................................................................10 Rusinow v. Kamara, 920 F. Supp. 69. 71 (D.N.J. 1996).....................................................................12, 13 Wright , Miller & Kane, 6A Fed. Prac. & Proc. Civ. 2d § 1495 (3d. ed.) .......................................................... 8 Other Authorities FED. R. CIV. P. 15(a)(2) .......................................................................................... 6 L. Civ. R. 102.1.............................................................................................2, 12, 13


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Rule. 1.16(b)(6).........................................................................................................2 Rule 1.16(b)(7)..........................................................................................................3 Rule 23.....................................................................................................................10 R.P.C. 1.16(b)..........................................................................................................12 R.P.C. 1.16(b)(4)..............................................................................................12, 14 Manual for Complex Litigation (Third) at § 22.921................................................. 9


INTRODUCTION

Proposed Plaintiffs’ Co-Lead Class Counsel (“Proposed Class Counsel”) has

been litigating this case since February 2009. After recently participating in a

mediation with Defendant Electronic Arts, Inc. (“EA” or “Defendant”), Counsel

helped reach a potentially historic settlement in principle for a significant amount

of money to resolve this putative class action, together with the In re NCAA Name

and Likeness Licensing Litigation, pending in the Northern District of California

(also known as the Keller/O’Bannon case). Now, because the current lead plaintiff

no longer adequately represents the class, and because irreconcilable differences

have developed between Hart and Counsel, Proposed Class Counsel moves the

Court to withdraw from representing Ryan Hart and for leave to file a Third

Amended Complaint to replace the current proposed lead plaintiff with newly

proposed and representative lead plaintiffs who will adequately represent the

interests of the proposed putative class.

BASIS FOR THIS MOTION

Proposed Class Counsel has been litigating this action for more than four

years, culminating in their recent participation in negotiating a significant class

settlement that will benefit perhaps greater than one hundred thousand plaintiffs in

the putative class. However, since shortly after the announcement of the proposed


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settlement, current class representative Ryan Hart (“Hart”) has chosen not to

communicate with Proposed Class Counsel. Instead, Hart has purported to appoint

his father-in-law (a non-lawyer) to act as his personal attorney-in-fact, and has

communicated information to Proposed Class Counsel through his father-in-law

indicating that Hart’s narrow personal interests now conflict with the absent class

members and that he no longer adequately represents the class as a whole.

Thus, Hart has failed to cooperate in the representation and has made it

unreasonably difficult for Proposed Class Counsel to carry out representation of

the putative class action effectively, entitling Proposed Class Counsel to withdraw

from representing him pursuant to L. Civ. R. 102.1 and Rule 1.16(b)(6) of the New

Jersey Rules of Professional Conduct. Accordingly, Proposed Class Counsel

moves for leave to replace Hart with three new class representatives who have

agreed to serve in that role and would adequately represent the class.

Hart and his father-in-law (who is not a member of the putative class) have

also retained another law firm that – without this Court’s permission – has

purported to terminate Proposed Class Counsel effective immediately and has

instructed Proposed Class Counsel to turn over Hart’s file to the new firm and sign

a consent to substitution of counsel. Proposed Class Counsel cannot abide by these

instructions because Proposed Class Counsel has fiduciary duties to the absent

members of the putative class. Carrying out the unilateral instructions of the lead


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plaintiff (and his non-class-member father-in-law), who are now pursuing their

own unique personal interests that are contrary to the interests of the class as a

whole, would be contrary to law and would breach Proposed Class Counsel’s

fiduciary duties to the class as a whole.1

Proposed Class Counsel also has “other good cause for withdrawal”

pursuant to Rule 1.16(b)(7) of the New Jersey Rules of Professional Conduct, and

has additional specific grounds for replacing Hart as class representative, but

concerns about the attorney-client privilege and confidentiality prohibit Proposed

Class Counsel from divulging those additional grounds absent a Court Order

compelling further explanation.

For all of these reasons, Proposed Class Counsel must advise the Court that

Hart is no longer a suitable class representative, and that in order to advance the

interests of the entire class, Proposed Class Counsel urges the Court to grant this

motion for leave to file the proposed and accompanying Third Amended

Complaint (Annexed to the Notice of Motion filed herewith), thereby substituting

1 See, e.g., In re General Motors Corp., 55 F.3d 768, 801 (3d Cir. 1995) (holding that class counsel purporting to represent a class also owe fiduciary duties to putative class members once the complaint is filed.).


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out the current named class representative in favor of new class representatives

Myron Rolle2, Jack Corcoran3 and Jackson Rice.4

The proposed and accompanying Third Amended Complaint does not raise

any new claims and granting the motion for leave to amend will not result in any

delay and/or prejudice to the Defendant. Rather, the proposed Third Amended

Complaint is intended to permit newly proposed class representatives to be placed

in a position where they can adequately represent the interests of all class members

by seeing the previously negotiated settlement through the settlement confirmation

process, or otherwise by advancing the litigation on behalf of the putative class in

the absence of a settlement.

Moving counsel have conferred with Defendant EA, and as of the time this

motion was made, Defendant was not yet able to confirm its position with respect

to the instant motion filed by Proposed Class Counsel.

2 Myron Rolle, a former strong safety for the Florida State University football team, is a citizen of the State of New Jersey residing in Galloway, New Jersey. 3 Jack Corcoran, a former fullback for the Rutgers University football team, is a citizen of the State of New Jersey residing in Atlantic City, New Jersey. 4 Jackson Rice, a former punter for the University of Oregon football team, is a citizen of the State of California residing in Moraga, California.


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RELEVANT PROCEDURAL BACKGROUND

In 2009, Hart, formerly a Rutgers University NCAA Men’s Division I

football player, brought suit on his behalf, and on behalf of others similarly

situated, against Defendant for violating their rights of publicity as recognized

under New Jersey law. Specifically, the claims stemmed from the Defendant’s use

of Hart’s and Class Members’ likeness and biographical information in its NCAA

Football series of videogames. On behalf of himself and Class Members, Plaintiff

asserted claims concerning: (i) Invasion of privacy – Misappropriation of

Identities and Likeness; and (ii) Infringement – Appropriation of Plaintiff and

Class Members’ Identities and Likeness for a Commercial/Trade Purpose.

The Defendant has previously filed a motion for summary judgment in this

action, asserting that its “expressive” games were protected by the First

Amendment. This Court agreed with the Defendants and granted summary

judgment. Plaintiff appealed that decision, and, on May 21, 2013, the Third

Circuit reversed the grant of summary judgment. On September 10, 2013, the

parties participated in a lengthy mediation, at significant expense, with continuous

negotiations and significant effort that followed in the days and weeks thereafter.

On September 24, 2013, EA served its Petition for Certiorari to the Supreme Court

to review the Third Circuit’s decision in this case. Later that same day, Proposed

Class Counsel, in combination with Interim Co-Lead Counsel appointed by the


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Northern District of California to oversee the O’Bannon/Keller actions, reached

agreement in principle with Defendant to settle all pending litigation on behalf of

the putative plaintiff classes.

Certain steps now need to be taken to advance the negotiated settlement on

behalf of putative class members. However, because Hart has made it

unreasonably difficult to carry on with representing the putative class as long as he

remains the lead plaintiff, Proposed Class Counsel seek to fulfill their fiduciary

duties to the class as a whole by filing this motion for leave to replace the current

proposed class representative with three additional class representatives who will

adequately represent the entire class.

ARGUMENT

I. LEAVE TO AMEND SHOULD BE GRANTED DUE TO THE GENERAL PRESUMPTION IN FAVOR OF AMENDMENTAND DUE TO THE FACT THAT DEFENDANT WILL NOT BE PREJUDICED A. Courts Freely Grant Leave to Amend. Federal Rule of Civil Procedure 15(a)(2) provides that courts “should freely

give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2); see also Bechtel v.

Robinson, 886 F.2d 644, 652 (3d Cir. 1989) (“We have noted that the courts have

shown a strong liberality in allowing amendments under Rule 15(a).”); Dole v.

Arco Chemical Co., 921 F.2d 484, 486-487 (3d. Cir. 1990) (“[W]e have

consistently held that leave to amend should be granted freely.”). The Third Circuit


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has gone so far as to recognize the existence of a “general presumption in favor of

allowing a party to amend pleadings.” Boileau v. Bethlehem Steel Corp., 730 F.2d

929, 938 (3d Cir. 1984). This liberal approach “ensures that a particular claim will

be decided on the merits rather than on technicalities.” Dole, 921 F.2d at 487.

B. Courts Deny Amendment Only in Limited Circumstances That Do Not Apply In This Case. The proposed Third Amended Complaint only seeks to amend the current

complaint by proposing the substitution of three new lead plaintiffs who will

adequately represent the entire putative class, and who are prepared to execute

their fiduciary responsibilities on behalf of the entire class.5 No other

modifications whatsoever to the Complaint are proposed.

A district court may deny leave to amend only where “plaintiffs’ delay in

seeking the amendment is undue, made in bad faith, prejudicial to the opposing

party, or fails to cure the jurisdictional defect.” Berkshire Fashions, Inc. v. M.V.

Hakusan II, 954 F2d 874, 886 (3d Cir. 1992); see also Foman v. Davis, 371 U.S.

178, 182 (1962) (holding that it is an abuse of discretion to deny leave to amend

absent a clear or declared reason of delay, bad faith, prejudice, or a repeated failure

to cure a problem with the complaint); Cornell & Co. v. Occupational Safety &

5 See Greenfield v. Villager Indus., Inc., 483 F.2d 824, 832 (3d Cir. 1973) (stating, “. . . in addition to the normal obligations of an officer of the court, and as counsel to parties to the litigation, class counsel possess, in a very real sense, fiduciary obligations to those not before the court.”).


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Health Review Comm’n, 573 F.2d 820, 823 (3d Cir.1978) (“prejudice to the non-

moving party is the touchstone for the denial of an amendment.”); Wright, Miller

& Kane, 6A Fed.Prac. & Proc.Civ. 2d § 1495 (3d ed.) (denial of leave to amend is

appropriate only where “the objecting party [is] put to some serious

disadvantage.”). The non-moving party bears the burden not just of claiming

prejudice – but of actually showing “substantial or undue prejudice.” Heyl &

Paterson International, Inc. v. F.D. Rich Housing, Inc., 663 F.2d 419, 426 (3d

Cir.1981).

Significantly for this motion, courts do not find prejudice if the “amendment

plaintiff seeks would not alter the claims originally asserted in any way, [and] thus

no additional burden of defense would fall on defendants.” Kiser v. General Elec.

Corp., 831 F.2d 423 (3d Cir. 1987) at 428 (internal citations omitted).

C. Defendant will not be Prejudiced or Disadvantaged In Any Way Since No New Claims Are Asserted, And Because Hart’s Discovery Has Not Yet Commenced, But, In Any Case, Discovery In This Action Will Be Averted If the Settlement Is Confirmed. In this action, the Initial Case Management Conference had previously been

postponed from October 1, 2013 until October 28, 2013. As such, a Joint

Discovery Plan has not yet even been filed, and no discovery has been commenced

following the Third Circuit’s decision remanding the action for class certification


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discovery.6 Further, Proposed Class Counsel acted with expediency to file this

Motion immediately upon learning of the issues warranting the request made

herein. Given that the Defendant will not experience any prejudice, and given that

the currently named Plaintiff will maintain his ability to recover through the

proposed settlement, or as a future opt-out, a meaningful basis exists to grant this

motion, and thereby permit the new proposed class representatives to move

forward with advancing the historic settlement on behalf of all putative class

members, together with counsel that has demonstrated their ability and competence

to work together with other plaintiffs’ counsel in other related putative class

actions and with the Defendant to bring about a significant resolution on behalf of

so many individuals.

6 Significant discovery has, however, been conducted in the related Keller/O’Bannon case in the Northern District of California, and Defendant has participated in extensive discovery which has enabled the parties to work together in arriving at a settlement at this stage. See Manual for Complex Litigation (Fourth) at § 22.921 (“[I]t is important to have an informed understanding of the dynamics of the settlement discussions and negotiations, the participants, and the steps taken by those negotiating on the plaintiff’s behalf to protect the procedural and substantive rights and interests of those whose claims they propose to settle.”); see also In re Prudential Ins. Co. America Sales Prac. Litig., 148 F.3d 283, 319 (3d Cir. 1998)( The parties’ “adequate appreciation of the merits of the case before negotiating” favor the approval of the settlement.).


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II. SINCE COURTS ROUTINELY ALLOW FOR THE SUBSTITUTION OF PLAINTIFFS, LEAVE TO AMEND SHOULD BE GRANTED. As a general matter, Courts routinely allow parties to substitute plaintiffs

and amend a complaint as fairness requires. See, e.g., Romero v. ALLSTATE INS.

CO., No. 01:3894, 2010 WL 2996963, at *3-5 (Jul 28, 2010) (granting plaintiffs’

motion for leave to amend the complaint and substitute class representative despite

defendant’s opposition that the substitute class representative would not satisfy the

numerosity requirement of Rule 23 and proposed amendments would be

prejudicial to defendants); In re Motor Fuel Temp. Sales Pract. Litig., 2009 WL

3122501, at *1-3 (D. Kan. Sep. 24, 2009) (granting plaintiffs’ motion for leave to

amend to substitute class representative when current class representative was

precluded from fulfilling his responsibilities as a class representative to the

putative class).7 Since fact discovery has not even begun, and since a settlement in

7 Indeed, courts routinely substitute class representatives if a class representative is no longer suitable. See, e.g., In re Herley Indust. Inc. Sec. Litig., 2009 WL 3169888 at *7 (E.D. Pa. Sept. 30, 2009)(substituting class representative when current representative no longer had standing to sue); Lindley v. Life Investors Ins. Co. of Am., Nos. 08-0379 & 09-1429, 2009 WL 2601949, at *4 (N.D. Okla. Aug. 20, 2009) (“If it becomes clear that class certification is appropriate but plaintiff is not a suitable class representative, . . . a new class representative may be substituted.”); In re Aluminum Phosphide Antitrust Litig., 160 F.R.D. 609, 613 (D. Kan. 1995) (“If it later becomes apparent that certain types of purchasers are not adequately represented by the named representatives, the Court may require substitution or addition of a class representative . . . .”); Heartland Commc’ns, Inc. v. Sprint Corp., 161 F.R.D. 111, 115 (D. Kan. 1995) (“[I]f it later becomes apparent that Partners selling certain types of services are


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principle has been represented to exist, there is no prejudice that will result by the

requested substitution of the current class representative.

Although the current named representative plaintiff has purported to

terminate his attorney-client relationship with Proposed Class Counsel, Hart has no

authority to terminate counsel on behalf of the putative class, particularly where, as

here, such attempted termination comes after proposed class counsel have invested

significant sums of time and money on behalf of the entire class to assist in

arriving at a historic settlement that seeks to compensate collegiate football players

for the alleged misappropriation of their rights of publicity. For example, in

Maywalt v. Parker & Pasley Petroleum Co., 67 F.3d 1072, 1078 (2d Cir. 1995),

the district court had denied a motion by the class representative to discharge

counsel because it had negotiated a settlement that the representative plaintiff

deemed inadequate. The Second Circuit affirmed, stating: “The choice between

the views of counsel and those of the representatives must rest with the district

court.” As addressed by the concurring opinion of Judge Adams in In re Corn

Derivatives Antitrust Litigation, 748 F.2d 157, 162-166 (3d Cir. 1984), the

obligation of class counsel runs to the class as a whole, although in general class

counsel may have personally worked only with the named parties. Id. Significant

not adequately represented by the named representatives, the court may require substitution or addition of a class representative . . . .”).


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prejudice to the putative class may be incurred if current and actively involved

Plaintiffs’ class counsel are disqualified at this late date – after Proposed Class

Counsel has worked with the plaintiffs’ lawyers who have been leading the related

California class litigation, and after Proposed Class Counsel worked with the

Defendant and its counsel to reach the settlement that the putative plaintiff class

will soon seek to confirm. Moreover, Proposed Class Counsel has acquired

considerable knowledge and a thorough understanding of the complex issues of

this litigation and are uniquely suited to proceed with representation of the Class,

particularly at this post-settlement stage.

III. PROPOSED CLASS COUNSEL HAS DEMONSTRATED GOOD CAUSE TO WITHDRAW ITS APPEARANCE

Under R.P.C. 1.16(b), an attorney may withdraw from representation if

withdrawal will not materially adversely affect the client, or if “good cause” exists

for withdrawal. See Haines v. Liggett Group, Inc., 814 F. Supp. 414, 422 (D.N.J.

1993); Rusinow v. Kamara, 920 F. Supp. 69, 71 (D.N.J. 1996). Specifically,

R.P.C. 1.16(b)(4) states that “good cause” for withdrawal exists if “the client fails

substantially to fulfill an obligation to the lawyer regarding the lawyer’s services

and has been given reasonable warning that the lawyer will withdraw unless the

obligation is fulfilled.” In addition to R.P.C. 1.16(b), the Court must also consider

L. Civ. R. 102.1 which governs the withdrawal of appearance in this District. L.

Civ. R. 102.1 provides that, “Unless other counsel is substituted, no attorney may


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withdraw an appearance except by leave of Court.” Further, after a case has been

first set for trial, substitution and withdrawal shall not be permitted except by leave

of Court. L. Civ. R. 102.1.

When considering a motion for leave to withdraw, the Court should

consider: (1) the reasons why the withdrawal is sought; (2) the prejudice

withdrawal may cause to the 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. Greig v. Macy’s Northeast, Inc., No. 95-cv-1259, 1996 U.S.

Dist. LEXIS 22142, at *8 (D.N.J. Nov. 21, 1996) citing Rusinow, 920 F. Supp. at

71 (internal citations omitted).

In Greig, the attorney client relationship deteriorated due to a

communication breakdown. 1996 U.S. Dist. LEXIS 22142, at *3. Specifically,

plaintiff’s counsel’s attempts to communicate with plaintiff were unrequited. Id.

The Court found that plaintiff’s “failure to effectively communicate” constituted

good cause for withdrawal. Id. at *8-9. Specifically, the Court held that the failure

to “sustain adequate communication” resulted in the deterioration of the attorney-

client relationship, caused an irreparable rift between plaintiff and counsel and

made it impossible for counsel to effectively prosecute plaintiff’s claims.8 Id. at

8 The Court also noted that in-depth detail of the firm’s reasons for withdrawal was unwarranted and would potentially prejudice the plaintiff. The breakdown in communications was a sufficient showing of “good cause.” Id. at *9.


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*9-10. Additionally, the Court stated that, although the withdrawal would delay

the resolution of the matter, mere delay is an insufficient basis upon which to deny

a motion to withdraw. Id. at *11.

This case is no different than Greig. As discussed supra, Hart has retained

another law firm - without this Court’s permission - and refuses to communicate

and cooperate with Proposed Class Counsel. Indeed, Hart is refusing to fulfill his

obligation of communicating with Proposed Class Counsel, but is also refusing to

fulfill his obligations as a proposed class representative. See R.P.C. 1.16(b)(4);

Greig, 1996 U.S. Dist. LEXIS 22142, at *8-9 (holding that plaintiff’s failure to

fulfill obligation of communicating with counsel is good cause for counsel’s

motion to withdraw). As such, Hart’s refusal to fulfill his obligations and “failure

to effectively communicate” has resulted in “a deterioration of the attorney-client

relationship” and “an irreparable rift between [Proposed Class Counsel] and

[Hart].” Greig, 1996 U.S. Dist. LEXIS 22142, at *9, *10. As such, Proposed

Class Counsel has demonstrated “good cause” for its motion for leave to withdraw.

CONCLUSION

For the reasons set forth above, Proposed Class Counsel respectfully

requests that the Court grant its motion for leave to replace the current named class

representative with proposed representatives Myron Rolle, Jack Corcoran, and

Jackson Rice, and to thereby permit the filing of the proposed Third Amended


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Complaint, or alternatively, that the Court require the parties to appear for an in

camera conference prior to deciding the instant motion, and further permits

Proposed Class Counsel to withdraw solely from representing Hart, individually.

Dated: October 4, 2013 TIMOTHY MCILWAIN, ATTORNEY AT LAW, LLC THE LANIER LAW FIRM, P.C. By: /s/ Timothy McIlwain___ By: /s/ W. Mark Lanier____ Timothy J. McIlwain W. Mark Lanier (pro hac vice) [email protected] [email protected] 89 River Street #1538 Eugene R. Egdorf (pro hac vice) Hoboken, New Jersey 07030 [email protected] Tel: (877) 375-9599 Arthur Miller (pro hac vice) Fax: (609) 450-7017 [email protected] 6810 FM 1960 West Houston, Texas 77069 Tel: (713) 659-5200 Fax: (713) 659-2204 Plaintiffs’ Co-Counsel and Proposed Plaintiffs’ Co-Counsel and Proposed Co-Lead Class Counsel Co-Lead Class Counsel


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Certificate of Service

I, Timothy McIlwain, hereby certify that on October 4, 2013, I

electronically filed the foregoing Motion with the Clerk of the Court using the

CM/ECF system, which will send notification of such filing to the email addresses

denoted on the Electronic Mail list. I further certify that I have sent a copy of the

foregoing Motion via both U.S. Mail and e-mail to Keith A. McKenna, counsel for

Ryan Hart in his individual capacity.

Dated: October 4, 2013 TIMOTHY MCILWAIN, ATTORNEY AT LAW, LLC By: /s/ Timothy McIlwain___ Timothy J. McIlwain [email protected] 89 River Street #1538 Hoboken, New Jersey 07030 Tel: (877) 375-9599 Fax: (609) 450-7017 Plaintiffs’ Co-Counsel and Proposed Co-Lead Class Counsel


ryan hart, individually and on behalf plaintiffs, vs. case...

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