Opinion
Case No. 22-cv-05064-JST
2022-12-16
Raymond WANG, et al., Plaintiffs, v. FUTURE MOTION, INC., Defendant.
Jerrod C. Patterson, Joseph Kingerski, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, Seattle, WA, Abby R. Wolf, Hagens Berman Sobol Shapiro LLP, Berkeley, CA, for Plaintiffs. Pablo Orozco, Nilan Johnson Lewis PA, Minneapolis, MN, for Defendant.
Jerrod C. Patterson, Joseph Kingerski, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, Seattle, WA, Abby R. Wolf, Hagens Berman Sobol Shapiro LLP, Berkeley, CA, for Plaintiffs. Pablo Orozco, Nilan Johnson Lewis PA, Minneapolis, MN, for Defendant.
ORDER DENYING STEVE W. BERMAN'S PRO HAC VICE APPLICATION
Re: ECF No. 3 JON S. TIGAR, United States District Judge
Before the Court is Steve W. Berman's application for admission to practice pro hac vice. ECF No. 3. The Court will deny the application.
I. BACKGROUND
On September 6, 2022, Berman applied for admission to practice pro hac vice in the Northern District of California to represent Plaintiffs in this matter. Id. Berman indicated that he has "been granted pro hac vice admission by the Court five times in the 12 months preceding this application." Id. at 1. The Court ordered Berman to provide additional information regarding his application to determine whether Berman was "regularly engaged in the practice of law" in California because a query of the Court's electronic filing system indicated that "Berman may be appearing in cases in this district without having first applied for pro hac vice admission." When reviewing the electronic filing system, the Court found cases where Berman was listed on the complaint, but never filed an application for pro hac vice, and the "electronic filing system indicate[d] that Berman is or has been an attorney in 271 cases in this district." ECF No. 14 at 1.
As of December 15, 2022, the Court's electronic filing system indicates that Berman is or has been an attorney in 274 cases in this district.
Berman contends that he "is not engaged in the regular practice of law in California." ECF No. 22 at 4. Berman identifies nine actions in which he has been admitted pro hac vice as the "California Actions." This includes eight cases that he has been admitted pro hac vice in in this district or the Central District of California over the last 12 months and Holley v. Gilead Sciences, Inc., No. 18-cv-06972-JST (N.D. Cal.). In "[e]ach of the California Actions" there is "at least one designated counsel in good standing with the California Bar." ECF No. 22 at 5. Berman claims that other than in Holley, he has not appeared for, argued, or been physically present in California for the California Actions, and his "signature does not appear in any briefings or filings . . . (except for his pro hac vice application)." Id. Berman further states that the only clients in the California Actions that he has communicated with are those in Société du Figaro v. Apple, Inc., No. 22-cv-04437-HSG (N.D. Cal.); he has had only one "direct communication[ ] with opposing counsel in the California Actions"; he "does not reside in the State of California"; and he does not "have a physical office in any of" his firm's California office locations. Id.
Berman describes his role in the California Actions as one of a "Managing Partner" who "[p]articipates in case status meetings, offer[s] case and legal strategy and direction, consider[s] settlement offers, and coordinate[s] with local co-counsel." ECF No. 22-1 ¶ 13. He states he "provides an integral and important function in shaping legal strategy, but this strategy . . . is 'filtered' through Jerrod Patterson, who is . . . admitted pro hac vice in this matter." ECF No. 22 at 6. He also "rel[ies] on [his] Partners in California and elsewhere to run the cases on a day-to-day basis." ECF No. 22-1 ¶ 13. He does note that "[i]f any of [the California Actions] were to go to trial, [he] would anticipate leading the trial team and appearing for trial." Id.
II. LEGAL STANDARD
"[T]here is no fundamental right to appear pro hac vice." Paciulan v. George, 38 F. Supp. 2d 1128, 1144 (N.D. Cal. 1999), aff'd, 229 F.3d 1226 (9th Cir. 2000). The Supreme Court describes attorneys admitted pro hac vice as "one-time or occasional practitioners." Frazier v. Heebe, 482 U.S. 641, 647, 107 S.Ct. 2607, 96 L.Ed.2d 557 (1987).
Applications for admission to practice pro hac vice are governed by Civil Local Rule 11-3. "Unless authorized by an Act of Congress or by an order of the assigned Judge, an applicant is not eligible for permission to practice pro hac vice if the applicant . . . [i]s regularly engaged in the practice of law in the State of California." Civil L.R. 11-3(c). In determining whether an attorney is "regularly engaged in the practice of law," courts consider factors including "whether the attorney physically appeared in cases, was responsible for meeting or communicating with clients, was the sole or primary counsel, was having contact with opposing counsel, was signing papers filed with the court, or otherwise arguing cases." Nalan v. Access Fin., Inc., No. 20-cv-02785-EJD, 2020 WL 12863495, at *2 (N.D. Cal. Oct. 23, 2020) (citing Ang v. Bimbo Bakeries USA, Inc., No. 13-cv-01196-WHO, 2015 WL 1474866, at *3 (N.D. Cal. Jan. 14, 2015)).
III. DISCUSSION
Berman argues that he does not regularly practice in California because his role is limited to providing legal counsel that is "filtered" through California counsel. And because in the California Actions, he "has not appeared or argued in the district court . . . (except for Holley)"; "has not signed briefs . . . except in Holley"; "has had no communication with the clients" except for those in Société du Figaro; and has communicated with opposing counsel only in Zakikhani v. Hyundai Motor Co., No. 8:20-cv-01584-SB (JDEx) (C.D. Cal.). ECF No. 22 at 6. Berman attempts to analogize his conduct to that of the attorneys in Winterrowd v. American General Annuity Insurance Co., 556 F.3d 815 (9th Cir. 2009) and Ang, 2015 WL 1474866. Id. at 6. Courts in this district have analyzed the factors considered in Ang when determining whether an out-of-state attorney "is regularly engaged in the practice of law" in California. See Nalan, 2020 WL 12863495, at *2. And Ang based its analysis upon Winterrowd. Ang, 2015 WL 1474866, at *2-3.
In Winterrowd, the Ninth Circuit held that plaintiffs could recover attorney's fees for work completed by an Oregon attorney who was not barred in California and had not applied for admission to practice pro hac vice. 556 F.3d at 822-25. The court stated that a plaintiff could recover fees based on an attorney's work if that attorney would have been admitted pro hac vice, but "decline[d] to rest [its] reasoning" on whether the Oregon attorney would have been admitted pro hac vice because "the record ha[d] not been developed" on whether the attorney had "(a) [r]eside[d] in California; or (b) [was] regularly employed in California; or (c) [was] regularly engaged in business, professional, or other similar activities in California." Id. at 822-23. Instead, the court relied upon the fact that the Oregon attorney's "conduct did not rise to the level of 'appearing' before the district court" because the attorney "never appeared or argued in front of the district court," never signed briefs, and never appeared physically in California "in connection with the prosecution of this case." Id. at 824. And because the attorney's role in the case was "similar to . . . litigation support or consultants," like "paralegals, database managers, legal support, summer associates, and even attorneys who have yet to pass the bar" and was limited to "advising his [co-counsel] and reviewing pleadings, which he did with minimal, nonexclusive contact with the client and no communication with opposing counsel." Id. at 823. The court also noted that its "holding d[id] not adversely impact the very important role pro hac vice admissions play in our federal court system" and "[a]n out of state attorney must still apply for pro hac vice admission if that attorney appears in court, signs pleadings, or is the exclusive contact in a case with the client or opposing counsel." Id.
The Ang court extended Winterrowd to pro hac vice applications, granting an out-of-state attorney's application for admission pro hac vice because the "facts [did] not indicate that [the attorney] has regularly engaged in the practice of law in California." 2015 WL 1474866, at *2. While the attorney had "appeared or sought to appear" in the Northern District of California 13 times other than the case at issue, he "always filtered [his] work in any case filed in California through an in-state attorney"; had "not signed briefs or argued cases"; limited his activities to "legal research and advising co-counsel" outside of California; and "sought pro hac vice admission in [the] case 'out of an abundance of caution to ensure that [he], although working outside of California, could review and assess the voluminous documents produced in this case by defendant pursuant to a protective order.' " Id. at *3 (citing Winterrowd, 556 F.3d at 824).
Berman's conduct is distinguishable from that of the attorneys in Winterrowd and Ang. First, Berman concedes that, unlike the attorneys in Winterrowd and Ang, he has appeared, argued, and signed briefs in this district. ECF No. 22 at 5-6. Berman claims that, of the California Actions, he has signed briefs or filings only in one case, Holley v. Gilead. Id. at 6; ECF No. 22-1 ¶ 9. But a review of the Central District of California and this district's electronic filing systems belies this claim. In September 2022, Berman signed and filed corporate disclosure statements on behalf of his clients in one of the California Actions. See ECF Nos. 32-34, Société du Figaro v. Apple Inc., No. 22-cv-04437-YGR (N.D. Cal.). And in August 2022, he submitted a declaration in support of his client's motion for preliminary approval of class settlement in another of the California Actions. ECF No. 115-2, Zakikhani v. Hyundai Motor Co., 8:20-cv-01584-SB (JDEx) (C.D. Cal.).
After Berman submitted his motion and declaration, he signed and filed several items in one of the California Actions, including a certificate of interested entities; an opposition to a motion to stay discovery; a notice of his client's intent to amend the complaint; and an amended complaint. ECF Nos. 35, 37, 39-40, Affinity Credit Union v. Apple Inc., No. 22-cv-04174-JSW (N.D. Cal.).
Second, while Berman describes his involvement in California federal court cases as minimal like the attorney in Ang, Berman's website and a declaration he submitted in one of the California Actions paint a different picture. Berman's website lists numerous cases that Berman has been involved in, including "career highlights," "recent cases," and "recent successes." See Steve W. Berman, Hagens Berman, https://www.hbsslaw.com/attorneys/steve-berman. Of these cases, six are cases filed in California federal court where Berman describes his position on the case as "Lead Counsel" or "Co-Counsel Lead Counsel." See Toyota Sudden, Unintended Acceleration (SUA), Hagens Berman, https://www.hbsslaw.com/cases/toyota-sudden-unintended-acceleration; Batteries Antitrust, Hagens Berman, https://www.hbsslaw.com/cases/batteries-antitrust; Optical Disc Drives (ODD), Hagens Berman, https://www.hbsslaw.com/cases/optical-disc-drives-odd-all-devices-with-cd-or-dvd-players; NCAA Athletic Grant-in-Aid Cap Antitrust, Hagens Berman, https://www.hbsslaw.com/cases/ncaa-athletic-grant-in-aid-cap-antitrust; Ford MyFord Touch, Hagens Berman, https://www.hbsslaw.com/cases/ford-myford-touch; Schwab Yield-Plus Funds, Hagens Berman, https://www.hbsslaw.com/cases/schwab-yieldplus-funds. Berman was also on the "Plaintiffs' Steering Committee" in two cases in this district. FCA EcoDiesel Emissions, Hagens Berman, https://www.hbsslaw.com/cases/dodge-ram-1500-diesel-emissions; Qualcomm Monopoly, Hagens Berman, https://www.hbsslaw.com/cases/qualcomm-monopoly. Berman further notes that he filed two other cases and "[f]orged a class-action" in this district. DRAM Price Fixing, https://www.hbsslaw.com/cases/dram-price-fixing; Facebook Users' Privacy, Hagens Berman, https://www.hbsslaw.com/cases/facebook-users-privacy; DRAM Manufacturers, Hagens Berman, https://www.hbsslaw.com/cases/dram-price-fixing. Additionally, in a declaration Berman filed in the Central District of California, he describes his extensive experience serving as counsel, including as lead and co-lead class counsel, or on the plaintiffs' steering committee, for automotive class actions filed in this district and throughout the state of California. ECF No. 115-2 ¶ 3, Zakikhani v. Hyundai Motor Co., 8:20-cv-01584-SB (JDEx) (C.D. Cal.).
Finally, Berman has been an attorney in hundreds more cases filed in California than the attorney in Ang. In Ang, the attorney had "appeared or sought to appear" in the Northern District of California 14 times. See 2015 WL 1474866, at *2. According to the Court's electronic filing system, Berman is or has been an attorney in 274 cases in this district, and since 2002, Berman has been an attorney in at least one new case each year. According to the electronic filing systems of the other California federal courts, Berman is or has been an attorney in 189 cases in the Central District of California (and since 2000, has been an attorney in at least one new case each year); 17 cases in the Southern District of California; and six cases in the Eastern District of California. While the number of times someone is listed as an attorney in a California case is not an Ang factor, the Court finds that Berman appearing as an attorney in over 480 California federal cases is pertinent to the Court's analysis of whether Berman is "regularly engaged in the practice of law" in California. Additionally, other courts have considered the number of appearances an out-of-state attorney has made in federal court in California when determining whether that attorney is "regularly engaged in the practice of law" in California. See Mendoza v. Golden W. Sav. Ass'n Servs. Co., No. CV 09-1200 GAF (VBKx), 2009 WL 2050486, at *2 (C.D. Cal. July 7, 2009) ("The Court considers nine pending cases in the Central District of California-in addition to any cases [the attorney] has pending in the three other federal districts in California-to be regular practice that disqualifies him from pro hac vice admission."); Guguni v. Chertoff, No. C 08-1850 JL, 2008 WL 2080788, at *1 (N.D. Cal. May 14, 2008) (noting in the analysis of whether an attorney had been regularly practicing in California that the attorney "apparently appeared before the Northern District in at least five other cases, some filed as far back as 2005"); Nalan v. Access Fin., Inc., No. 5:20-CV-02785-EJD, 2020 WL 12863495, at *2 (N.D. Cal. Oct. 23, 2020) (considering the "twenty-eight appearances [the attorney] ha[d] made in California federal courts since April 2018" in its analysis of whether the attorney was regularly practicing law in California).
In Winterrowd, the number of previous admissions or appearances was not addressed. 556 F.3d at 819-26.
Berman states that a court in the Eastern District of California "did not consider the total number of pro hac vice appearances to be dispositive, and instead weighed the Ang factors." ECF No. 22 at 4 (citing Finder v. Leprino Foods Co., Nos. 1:13-cv-02059-AWI-BAM, 1:17-cv-00796-AW1-BAM, 2019 WL 6894468 (E.D. Cal. Dec. 18, 2019)). But the Finder court made clear that it "d[id] not opine if the mere number of times admitted pro hac vice would be determinative of regularly engaging in professional activities in California, in any other situation" and also that "the mere number of times admitted pro hac vice would be indicative of regularly practicing law in California." 2019 WL 6894468, at 4 n.4 (emphasis added).
The enormous number of California cases in which Berman has been an attorney and the large role he has played in some of those cases make it clear that Berman is not a "one-time or occasional practitioner" in California, see Frazier, 482 U.S. at 647, 107 S.Ct. 2607. Rather, he is "regularly engaged in the practice of law" in California. Civil L.R. 11-3(c). Accordingly, the Court will deny his motion.
CONCLUSION
For the foregoing reasons, Berman's application for admission to practice pro hac vice is denied.
IT IS SO ORDERED.