JCCP No (Assigned to the Honorable Carl J. West Dept. CCW-311) CLASS ACTION

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1 MONTGOMERY STREET, SUITE 0 SAN FRANCISCO, CALIFORNIA 0 LEE M. GORDON (SBN ) ELAINE T. BYSZEWSKI (SBN 0) HAGENS BERMAN SOBOL SHAPIRO LLP 00 South Flower Street, Suite 0 Los Angeles, CA 00 Telephone: () 0-0 Facsimile: () 0- -and- STEVE W. BERMAN HAGENS BERMAN SOBOL SHAPIRO LLP 0 Fifth Avenue, Suite 00 Seattle, WA Telephone: (0) - Facsimile: (0) -0 BRUCE L. SIMON (Bar No. ) ESTHER L. KLISURA (Bar No. ) PEARSON, SIMON, WARSHAW & PENNY, LLP Montgomery Street, Suite 0 San Francisco, California Telephone: () -000 Facsimile: () -00 -and- CLIFFORD H. PEARSON (Bar No. ) PEARSON, SIMON, WARSHAW & PENNY, LLP Ventura Blvd., Suite 00 Sherman Oaks, CA 0 Telephone: () -00 Facsimile: () - Co-Lead Counsel for Plaintiff and the Class [Additional Counsel Listed on Signature Page] SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL CIVIL WEST COURTHOUSE Coordination Proceeding Special Title (California Rule of Court 0(b)) ipod NANO CASES This Document Relates to: ALL ACTIONS JCCP No. (Assigned to the Honorable Carl J. West Dept. CCW-) CLASS ACTION CLASS PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR ASSESSMENT OF APPEAL BOND OR UNDERTAKING UPON OBJECTOR APPELLANT; and MEMORANDUM OF POINTS AND AUTHORITIES IN 00.

2 MONTGOMERY STREET, SUITE 0 SAN FRANCISCO, CALIFORNIA 0 (Filed Concurrently with the Declaration of Bruce L. Simon, Declaration of Joni Brown, and [Proposed] Order Assessing Appeal Bond or Undertaking Upon Objector Appellant) Date: August, 00 Time: :0 p.m. Dept.: CCW- TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Please take notice that on August, 00, at :0 p.m. or as soon thereafter as this matter may be heard before the Honorable Carl J. West, Judge of the Superior Court, County of Los Angeles, Department, 00 South Commonwealth Ave., Los Angeles, CA 000, Plaintiffs will move the court for an order to assess an appeal bond or undertaking upon objector appellant Rene L. Obregon. This motion is made pursuant to California Rule of Court., and Sections, and. of the California Code of Civil Procedure, and is based upon this Notice of Motion and Motion for Assessment of Appeal Bond or Undertaking Upon Objector Appellant; the attached Memorandum of Points and Authorities in Support Thereof; the Declaration of Bruce L. Simon; the Declaration of Joni Brown; Plaintiffs' Request for Judicial Notice, 00.

3 MONTGOMERY STREET, SUITE 0 SAN FRANCISCO, CALIFORNIA 0 the papers, records, and documents on file herein; and upon evidence, oral and documentary, to be presented at the hearing on the motion. DATED: July, 00 PEARSON, SIMON, WARSHAW & PENNY, LLP BRUCE L. SIMON CLIFFORD H. PEARSON ESTHER L. KLISURA HAGENS BERMAN SOBOL SHAPIRO LLP LEE M. GORDON ELAINE T. BYSZEWSKI STEVE W. BERMAN By: /s/ BRUCE L. SIMON Co-Lead Class Counsel 00.

4 MONTGOMERY STREET, SUITE 0 SAN FRANCISCO, CALIFORNIA 0 MEMORANDUM OF POINTS & AUTHORITIES I. INTRODUCTION Objector Rene L. Obregon has filed an appeal of the Final Judgment approving the class action settlement in this action despite the fact that his boilerplate objection was not supported by any legal argument and he neglected to appear at the final approval hearing. Objector Obregon s appeal to the Final Judgment has all the markings of a frivolous appeal by a professional objector for the sole purpose of obstructing the resolution of this action for the financial benefit of himself and his law partner, Douglas Chaves, who represents him. (See Declaration of Bruce L. Simon ( Simon Decl. ) at -. Objector Obregon's frivolous appeal carries the substantial probability of the imposition of attorneys fees and costs as sanctions and requires the imposition of an appropriate appellate bond to preserve the status quo pending appeal. This Court has jurisdiction to order Obregon to post such a surety bond or undertaking pursuant to Code of Civil Procedure ( C.C.P. ),, and., and California Rule of Court.. Specifically, C.C.P.. provides trial courts with the authority to require appellants to post a surety bond or undertaking in the amount of up to two () times the amount of judgment including attorneys' fees and costs in order to stay enforcement of a monetary judgment pending appeal. See C.C.P. (a)(), (d). Furthermore, the Court has the inherent authority under C.C.P. and and California Rule of Court. to craft appropriate orders, including the imposition of an appellate bond, in the furtherance of the effective management of this case and to preserve the funds distributed to the Class. C.C.P..(b) provides that the amount of the surety bond or undertaking required to stay execution of the judgment, shall be for one and one-half (.) times the amount of judgment if paid by an admitted surety insurer or two () times the amount of the judgment if paid by the appellant personally. 00.

5 MONTGOMERY STREET, SUITE 0 SAN FRANCISCO, CALIFORNIA 0 II. PROCEDURAL HISTORY This action arises out of an alleged scratching defect in the first generation Apple ipod Nano MP player manufactured by Defendant Apple, Inc. ( Apple ). In total, ten class action complaints were filed in state and federal courts. After the parallel consolidation of this litigation, class counsel filed consolidated complaints in the federal and state proceedings. The consolidated complaints were the result of factual investigation, legal research, and collaboration among plaintiffs counsel. After conducting extensive discovery in support of the merits of their action, Plaintiffs attended a day-long mediation with the Honorable Daniel Weinstein (Ret.) and his mediation associate, Catherine Yanni, Esq. on April, 00. Pursuant to extensive arm s-length negotiations with the assistance of Judge Weinstein and Ms. Yanni continued assistance the parties entered into a settlement agreement resolving all claims raised in this case. The settlement of this action resulted in the creation of a $. million common fund for distribution to the settlement class. (See Final Judgment and Order at, attached at Exhibit A to Simon Decl.) Under the Settlement Agreement, the Settlement Class will be distributed: () a $ cash reimbursement if the class member purchased an uncoated Nano without a protective slip case; and () a $ cash reimbursement if the class member purchased an uncoated Nano with a protective slip case. (See id.) The settlement fund is fixed at $. million regardless of the number of claims made by class members. (See id.) Accordingly, the amount recovered by each class member will increase if there are fewer than expected claims in this case (subject to certain limitations). (See id.) Any residuary after distribution of funds to the class members will be donated to charity through a cy pres award. (See id.) The Court also awarded attorneys' fees, costs, and incentive awards totaling $,,00.00 to Class Counsel. (See Order Awarding Attorneys' Fees, Costas and Incentive Awards, attached at Exhibit B to Simon Decl.) Objector Obregon is a litigator and a partner in the law firm of Chaves, Resendez & 00.

6 MONTGOMERY STREET, SUITE 0 SAN FRANCISCO, CALIFORNIA 0 Rivero LLP. (See Simon Decl. at ). For the purposes of his objection, Obregon is represented by Douglas Chaves, Obregon s partner in the law firm of Chaves, Resendez & Rivero LLP. (See id. at.) Despite his legal experience, Objector Obregon s four page objection to the settlement agreement states in conclusory fashion that the settlement agreement is unfair and unreasonable and the fees and expenses requested by Plaintiffs and their counsel are excessive. (See Obregon Objection to Class Settlement and Motion for Attorneys Fees and Expenses, attached at Exhibit C to Simon Decl.). Obregon does not cite any legal authority in support of his objection and failed to reasonably articulate the basis for his objection. Neither Objector Obregon nor his partner, Chaves, attempted to make an appearance at the final approval hearing in this matter to articulate the basis and merits of Obregon s objection. (See Simon Decl. at.) The Court held the hearing on the Motion for Final Approval of the settlement agreement in this case on April, 00. At the hearing, the Court rejected Obregon's objection and approved the settlement between Plaintiffs and Apple. (See Final Judgment and Order, supra.) Objector Obregon filed a Notice of Appeal to the Final Judgment and Order on May, 00. (See Obregon Notice of Appeal, attached at Exhibit D to Simon Decl.) III. LEGAL ARGUMENT A. The Court Has Broad Authority to Craft an Appropriate Appeal Bond in This Action The trial court s jurisdiction to require the posting of an appeal bond is derived from C.C.P.,,. and Rule of Court.. See C.C.P.. (requiring appellant to post an appeal bond to stay execution of a judgment by the trial court pending appeal.); C.C.P. (defining broad powers of trial courts to control proceedings before them); C.C.P. (giving trial courts discretion to carry out its jurisdictional authority); Cal. R. Ct.. (defining the authority of trial courts to manage class action litigations). These rules and statutes allow trial courts to fashion an appropriate appeal bond against 00.

7 MONTGOMERY STREET, SUITE 0 SAN FRANCISCO, CALIFORNIA 0 Objector Obregon in this action. C.C.P..(a)() provides in pertinent part: Unless an undertaking [or bond] is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order is for [m]oney or payment or money, whether consisting of a special fund or not, and whether payable by the appellant or another party to the action. C.C.P..(b) states that the amount of the surety bond or undertaking required to stay execution of the judgment, shall be for one and one-half (.) times the amount of judgment if paid by an admitted surety insurer or two () times the amount of the judgment if paid by the appellant personally. As set forth in C.C.P..(d), so long as any part of the appeal arises from a money judgment, the amount posted must be for the entire amount of the judgment including an award of attorneys fees and costs. See Banks v. Manos () Cal. App. d (C.C.P..(d) "requires bonding of an entire judgment when some part of it must be bonded ). In addition to the authority under C.C.P.., the trial court has discretion to fashion an appropriate appellate bond against Objector Obregon pursuant to its broad authority to manage actions and make orders in the furtherance of its jurisdiction under C.C.P. and. See C.C.P (defining the broad powers of the trial court to manage an action before the Court); see also C.C.P. (giving trial court authority to use all the means necessary to carry out its jurisdiction, via any suitable process or mode of proceeding which may appear most conformable to the spirit of this code ). Moreover, California Rule of Court. grants trial courts the authority to fashion orders pertaining to the conduct of intervenors and otherwise facilitate the effective management of class action lawsuits. Rule. provides: In the conduct of a class action the court may make orders that... () [i]mpose conditions on the representative parties or on intervenors... () [f]acilitate the management of class actions through consolidation, severance, coordination, bifurcation, intervention, or joinder; and () [a]ddress similar procedural matters. See Cal. R. Ct..; see also Asbestos Claims 00.

8 MONTGOMERY STREET, SUITE 0 SAN FRANCISCO, CALIFORNIA 0 Facility v. Berry & Berry, Cal. App. d, - (0) (recognizing the trial court's inherent powers are particularly useful in managing complex litigation). California courts have inherent power to adopt any suitable method of practice, both in ordinary actions and special proceedings, even if the procedures were not specified by statute. See Rutherford v. Owens-Illinois, Inc. () Cal. th, ; Cottle v. Superior Court () Cal. App. th,. This inherent authority empowers courts to formulate rules of procedure where justice demands it and to adopt suitable methods of practice. Rutherford, Cal. th at. In order to effectively manage cases, the trial courts have the ability to guard against unnecessary indulgences which would tend to hinder, hamper or delay the conduct and dispatch of its proceedings. Cottle, Cal. App. th at (quoting Ellis v. Roshei Corp. () Cal.App.d, - ). Trial courts have exercised their inherent powers in crafting appropriate appeal bonds to protect judgments in light of the factual realities of particular disputes before them. See Venice Canals Resident Home Owners Ass'n v. Superior Court () Cal. App. d ( Venice Canals ); Syntron Bioresearch, Inc. v. Fan, Nos. D0, D0 (May, 00) 00 WL 0. In Venice Canals, for example, the court entered a judgment preserving the sufficiency of construction permits on a project that was already under construction. See Venice Canals, Cal. App. d at. Pursuant to the defendant s motion, the trial court exercised its authority to condition a stay in the action upon the posting of a $0,000 bond to protect the rights of appellees, who had already started construction pursuant to the construction permits that appellants were challenging. See id. Appellants claimed that the bond was unlawful and beyond the jurisdictional authority of the court because the statute at issue, C.C.P..(g), did not contain any bond requirement. See id. at -0. The Court of Appeal rejected appellants argument, holding that the trial court had the ability to condition a stay on the filing of an appeal bond pursuant to its inherent power to exercise reasonable control over the litigation before it, as well as the inherent and equitable power to achieve justice and prevent misuse of processes 00.

9 MONTGOMERY STREET, SUITE 0 SAN FRANCISCO, CALIFORNIA 0 lawfully issued. See id. Similarly, Syntron Bioresearch recognized that trial courts have inherent authority to fashion the terms of a stay and appeal bond as the particular facts of a case may warrant. In that case, the court entered a judgment in the amount of $ million dollars in favor of the plaintiff in an action for conspiracy, misappropriation of trade secrets, and related actions against three defendants. See Syntron Bioresearch, 00 WL 0, at *. One of the defendants, Joe Fan, sought to stay the execution of the judgment pending appeal, and filed his own action against Syntron. See id at *. The trial court held that in order to stay the execution of the judgment, the defendant would have to post a bond comprised of $. million dollars in stocks. C.C.P... See id. Fan claimed that the court s order regarding the stay exceeded its authority in requiring the posting of an appeal bond and appealed the Court s decision. In upholding this court-fashioned relief and rejecting defendant's position the Court of Appeal recognized that: courts have inherent equity, supervisory and administrative powers to control litigation before them-judicial powers derived from the state Constitution and not shackled by or dependent on statute. (In re Marriage of Johnson-Wilkes & Wilkes () Cal. App. th, ; Cottle v. Superior Court () Cal. App. th, ). The court s inherent power to control litigation before it includes to prevent abuse of its process, and to create a remedy for a wrong even in the absence of specific statutory remedies. (Western Steel & Ship Repair, Inc. v. RMI, Inc. () Cal. App. d, ). Moreover, this inherent power 'may relate to situations in which the rights and powers of the parties have been established by substantive law or court order but workable means by which those rights may be enforced or powers implemented have not been granted by statute. (Topa Ins. Co. v. Fireman s Fund Ins. Cos. () Cal. App. th,.) Id. at *. Here, the aforementioned statutory and legislative authority hold that trial courts have the ability to fashion appropriate appeal bonds. Accordingly, Plaintiffs are requesting that the court fashion an appropriate appeal bond against Objector Obregon in this action. 00.

10 MONTGOMERY STREET, SUITE 0 SAN FRANCISCO, CALIFORNIA 0 B. An Appropriate Appellant Bond is Required to Prevent Obregon s Abuse of the Judicial Process An appeal bond is particularly appropriate under the circumstances here. Objector Obregon s appeal has all the markings of the work of a professional objector attempting to hold up the settlement as ransom. Despite the fact that Obregon is an experienced litigator and represented by counsel, his four page objection does not cite any legal authority in support of his conclusory allegations that the settlement agreement is unfair and unreasonable and the fees and expenses requested by Plaintiffs are excessive. (See Obregon Objection to Class Settlement and Motion for Attorneys Fees and Expenses, attached at Exhibit B to Simon Decl.) Obregon and his counsel also failed to make an appearance at the final approval hearing in this matter or otherwise attempt to articulate the basis and merits of his objection. Despite the lack of rigor in pursuing his objection, Obregon has filed the only notice of appeal to the settlement agreement in this action. These circumstances surrounding Obregon s appeal and his utter failure to set forth facts and law in support of his position indicate that his appeal is frivolous and filed for the sole purpose of leveraging the appeal into an economic gain for the objector and his counsel. California law is clear that the filing of a frivolous appeal or appealing solely to cause delay of the final judgment is subject to an award of monetary sanctions including the attorneys fees and costs incurred during the pendency of the appeal. See C.C.P. 0; Cal. R. Ct..(a). Furthermore, both courts and commentators have cautioned against the procedural and financial impact of these professional objectors on the judicial process. As set forth in Nonpecuniary Class Action Settlements, 0 CONT. LAW & PROBS. at n. : Class action practice in the United States has developed its own cohort of professional objectors: attorneys who enter a case after a settlement is announced, manage not only to object to the settlement but to intervene as counsel on behalf of a class member, and then threaten to disrupt the settlement unless they are given a hefty reward. Their threat is not an idle one. The prospect of delaying a settlement for months or years by taking an appeal is the realistic threat that objectors hold over the heads of the 00.

11 MONTGOMERY STREET, SUITE 0 SAN FRANCISCO, CALIFORNIA 0 settling parties. In order to preserve the status quo and minimize the financial harm incurred by Plaintiffs and the class pending Obregon s appeal, it is important that the Court exercise its authority and discretion in fashioning an appropriate appeal bond to ensure that Plaintiffs are able to cover at least Plaintiffs attorneys fees and costs, and the additional settlement administrative costs incurred as a result of Objector Obregon s frivolous appeal. See, e.g., Grant v. Superior Court (0) Cal. App. d, (post-settlement objections and appeals have the practical effect of prejudicing the other injured parties by increasing transaction costs and delaying disbursement of settlement funds ). As set forth in the declarations of Bruce L. Simon, Plaintiffs' attorneys anticipate that they will incur $, in attorneys fees and $,000 in additional costs for traveling expenses, binding an copying fees as a result of Obregon s appeal. See Simon Declaration at -. Furthermore, in California, median time from notice of appeal to filing an opinion is a civil case is days (i.e. approximately months). See Judicial Council of California, 00 Court Statistics Report: Statewide Caseload Trends, at p., attached at Exhibit "A" to Plaintiffs' Request for Judicial Notice.) As set forth in the Declaration of Joni Brown, this delay will result in between $,000 and $0,000 in administration costs. See Declaration of Joni Brown at. Through this motion, Plaintiffs seek to preserve these costs pending appeal. 00.

12 MONTGOMERY STREET, SUITE 0 SAN FRANCISCO, CALIFORNIA 0 IV. CONCLUSION For the aforementioned reasons, Plaintiffs respectfully request that the Court order Objector Obregon to post an appropriate appeal bond in the amount of between $, representing the anticipated costs incurred on appeal and $,00,000 representing the amount of the judgment at issue. DATED: July, 00 PEARSON, SIMON, WARSHAW & PENNY, LLP BRUCE L. SIMON CLIFFORD H. PEARSON ESTHER L. KLISURA HAGENS BERMAN SOBOL SHAPIRO LLP LEE M. GORDON ELAINE T. BYSZEWSKI STEVE W. BERMAN By: /s/ BRUCE L. SIMON Co-Lead Class Counsel 00.

13 MONTGOMERY STREET, SUITE 0 SAN FRANCISCO, CALIFORNIA 0 PROOF OF SERVICE COORDINATION PROCEEDING SPECIAL TITLE (RULE 0(B)) IPOD NANO CASES Case No. JCCP STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of LOS ANGELES, STATE OF CALIFORNIA. My business address is Ventura Boulevard, Suite 00, Sherman Oaks, California 0. I am over the age of eighteen years and am not a party to the within action; On July, 00, pursuant to the Court's Electronic Case Management Order dated August, 00, I instituted service of the foregoing document described as CLASS PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR ASSESSMENT OF APPEAL BOND OR UNDERTAKING UPON OBJECTOR APPELLANT; and MEMORANDUM OF POINTS AND AUTHORITIES IN on ALL INTERESTED PARTIES by: ELECTRONIC MAIL TRANSMISSION: By electronic mail transmission from mwilliams@pswplaw.com on July, 00 and submitting an electronic version of the documents to CaseHomePage through the upload feature at BY FEDEX: I deposited such document(s) in a box or other facility regularly maintained by FedEx, or delivered such document(s) to a courier or driver authorized by FedEx to receive documents, in an envelope or package designated by FedEx with delivery fees paid or provided for, addressed to: Douglas E. Chaves, Esq. CHAVES, RESENDEZ & RIVERO, LLP 0 North Carancahua Suite 0 Corpus Christi, TX 0 Telephone: () -00 Facsimile: () -0 Counsel for Objector Rene L. Obregon I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July, 00, at Sherman Oaks, California. /s/ Melissa S. Williams 00.