Special Situations Fund III QP, L.P. et al v. Marrone Bio Innovations, Inc. et al

Filing 33

ORDER signed by Chief Judge Morrison C. England, Jr on 6/3/2015 ORDERING 32 Lead Plaintiffs shall file and serve the Consolidated Complaint no later than 60 days after MBII announces the Restatement(s); Defendants shall file and serve any responsive pleading(s) or motion(s) to dismiss no later than 60 days after the filing and service of the Consolidated Complaint 22 . (Reader, L)

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JORDAN ETH (CA SBN 121617)
[e-mail]
JUDSON E. LOBDELL (CA SBN 146041)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]

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Attorneys for Defendants
MARRONE BIO INNOVATIONS, INC., PAMELA G.
MARRONE, JAMES B. BOYD, DONALD J. GLIDEWELL,
ELIN MILLER, RANJEET BHATIA, PAMELA CONTAG, TIM
FOGARTY, LAWRENCE HOUGH, JOSEPH HUDSON, LES
LYMAN, RICHARD ROMINGER, SHAUGN STANLEY,
SEAN SCHICKEDANZ

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(Additional Counsel on Signature Page)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SPECIAL SITUATIONS FUND III QP, L.P.,
AND SPECIAL SITUATIONS CAYMAN
FUND, L.P, Individually and On Behalf of
All Others Similarly Situated,

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Plaintiffs,
vs.
MARRONE BIO INNOVATIONS, INC.,
PAMELA G. MARRONE, JAMES B.
BOYD, DONALD J. GLIDEWELL,
HECTOR ABSI, ELIN MILLER, RANJEET
BHATIA, PAMELA CONTAG, TIM
FOGARTY, LAWRENCE HOUGH,
JOSEPH HUDSON, LES LYMAN,
RICHARD ROMINGER and SHAUGN
STANLEY,

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Master File No.: 2:14-cv-2571-MCE-KJN
Chief Judge Morrison C. England, Jr.
CONSOLIDATED CLASS ACTION
STIPULATION AND ORDER (1)
SETTING TIME FOR FILING OF
CONSOLIDATED CLASS ACTION
COMPLAINT AND (2)
ESTABLISHING BRIEFING
SCHEDULE FOR RESPONSIVE
MOTION(S)

Defendants.
(caption continued on the following page)
STIPULATION AND ORDER (1) SETTING TIME FOR FILING OF CONSOLIDATED CLASS ACTION COMPLAINT AND (2)
ESTABLISHING BRIEFING SCHEDULE FOR RESPONSIVE MOTION(S)
MASTER FILE NO. : 2:14-CV-2571-MCE-KJN
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JOANN N. MARTINELLI, Individually and
On Behalf of All Others Similarly Situated,

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Plaintiff,
vs.
MARRONE BIO INNOVATIONS, INC.,
PAMELA G. MARRONE, DONALD J.
GLIDEWELL, and JAMES B. BOYD,
Defendants.

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PAUL SAUSMAN, Individually and On
Behalf of All Others Similarly Situated,

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Plaintiff,

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vs.
MARRONE BIO INNOVATIONS, INC.,
PAMELA G. MARRONE, DONALD J.
GLIDEWELL, and JAMES B. BOYD,
Defendants.

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SUSCHIA CHEN, Individually and On
Behalf of All Others Similarly Situated,
Plaintiff,

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vs.
MARRONE BIO INNOVATIONS, INC.,
PAMELA G. MARRONE, DONALD J.
GLIDEWELL, and JAMES B. BOYD,
Defendants.

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(caption continued on the following page)
STIPULATION AND ORDER (1) SETTING TIME FOR FILING OF CONSOLIDATED CLASS ACTION COMPLAINT AND (2)
ESTABLISHING BRIEFING SCHEDULE FOR RESPONSIVE MOTION(S)
MASTER FILE NO. : 2:14-CV-2571-MCE-KJN
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KENT OLDHAM, Individually and On
Behalf of All Others Similarly Situated,

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Plaintiff,

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vs.
MARRONE BIO INNOVATIONS, INC.,
JAMES B. BOYD, DONALD J.
GLIDEWELL, PAMELA G. MARRONE,
RANJEET BHATIA, TIM FOGARTY,
LAWRENCE HOUGH, JOSEPH HUDSON,
RICHARD ROMINGER, SEAN
SCHICKEDANZ, SHAUGN STANLEY,
PIPER JAFFRAY & CO., STIFEL,
NICOLAUS & COMPANY,
INCORPORATED, ROTH CAPITAL
PARTNERS, LLC, and JEFFERIES LLC,
Defendants.

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STIPULATION AND ORDER (1) SETTING TIME FOR FILING OF CONSOLIDATED CLASS ACTION COMPLAINT AND (2)
ESTABLISHING BRIEFING SCHEDULE FOR RESPONSIVE MOTION(S)
MASTER FILE NO. : 2:14-CV-2571-MCE-KJN
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Lead Plaintiffs Special Situations Fund III QP, L.P. and Special Situations Cayman

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Fund, L.P. (“Lead Plaintiffs”) and Defendants Marrone Bio Innovations, Inc. (“MBII” or “the

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Company”), Pamela G. Marrone, James B. Boyd, Donald J. Glidewell, Hector Absi, Elin Miller,

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Ranjeet Bhatia, Pamela Contag, Tim Fogarty, Lawrence Hough, Joseph Hudson, Les Lyman,

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Richard Rominger, Shaugn Stanley, and Sean Schickedanz (collectively, “Defendants”), by and

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through their respective counsel hereby recite and stipulate, subject to the approval of the Court,

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the following as concerns (1) the filing of a consolidated class action complaint (“Consolidated

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Complaint”), and (2) the briefing schedule for any responsive motions.

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RECITALS

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WHEREAS Lead Plaintiffs filed a class action complaint on November 3, 2014 [Docket

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No. 1], alleging that Defendants engaged in conduct that violates the federal securities laws,

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specifically Sections 11 and 15 of the Securities Act of 1933 and Sections 10(b) and 20(a) of the

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Securities Exchange Act of 1934;

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WHEREAS the claims in this action are subject to the Private Securities Litigation
Reform Act of 1995 (the “PSLRA”);

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WHEREAS counsel for Defendants accepted service of the initial complaint on

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Defendants’ behalf, and the parties entered into a stipulation continuing the date by which

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Defendants must answer or otherwise respond to the complaint until after the Court issued an

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order pursuant to the PSLRA appointing lead plaintiff(s) and lead counsel [Docket No. 13];

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WHEREAS the parties further stipulated that counsel for Defendants would meet and

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confer with the Court-appointed lead counsel within twenty (20) days following the Court’s

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order appointing lead plaintiff(s) and lead counsel, to determine (i) whether the lead plaintiff(s)

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will file a Consolidated Complaint, (ii) establish a common response date for all defendants,

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including a briefing schedule on anticipated motions to dismiss, and (iii) establish a date by

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which to provide the Court with a Joint Status Report;

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WHEREAS by Order dated February 13, 2015 [Docket No. 18], this Court consolidated

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the actions denominated as Martinelli v. Marrone Bio Innovations, Inc., No. 2:14-cv-2055-

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STIPULATION AND ORDER (1) SETTING TIME FOR FILING OF CONSOLIDATED CLASS ACTION COMPLAINT AND (2)
ESTABLISHING BRIEFING SCHEDULE FOR RESPONSIVE MOTION(S)
MASTER FILE NO. : 2:14-CV-2571-MCE-KJN
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MCE-KJN, Sausman v. Marrone Bio Innovations, Inc., No. 2:14-cv-2072-MCE-KJN, Chen v.

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Marrone Bio Innovations, Inc., 2:14-cv-2105-MCE-KJN, Oldham v. Marrone Bio Innovations,

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Inc., 2:14-cv-2130-MCE-KJN, and Special Situations Fund III QP, L.P. v. Marrone Bio

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Innovations, Inc., No. 2:14-cv-2571-MCE-KJN, designating No. 2:14-cv-2571 as the Master

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File and administratively closing all of the other consolidated cases;

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WHEREAS by that same Order, the Court appointed Special Situations Fund III QP,

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L.P. and Special Situations Cayman Fund, L.P. as Lead Plaintiffs, and Lowenstein Sandler LLP

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as Lead Counsel;

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WHEREAS MBII has previously announced that the independent Audit Committee

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investigation of certain revenue recognition issues is substantially completed, and that, in light

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of the Audit Committee’s findings, MBII’s management is evaluating the necessity, nature and

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scope of any restatements to any of MBII’s financial statements previously filed with the

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Securities and Exchange Commission (“SEC”) (the “Financial Statement Review”);

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WHEREAS Lead Plaintiffs intend to file a Consolidated Complaint, and Defendants

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have indicated that they intend to move to dismiss the Consolidated Complaint pursuant to Fed.

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R. Civ. P. 12 and any other applicable law;

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WHEREAS pursuant to the PSLRA, 15 U.S.C. § 78u-4(b)(3)(B), all discovery in this
consolidated class action is automatically stayed by operation of law;

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WHEREAS by Order dated April 16, 2015 [Docket No. 27], this Court directed

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Plaintiffs to file and serve the Consolidated Complaint no later than thirty (30) days after MBII

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announces the results of the Financial Statement Review and, if MBII does not announce the

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results of the Financial Statement Review by May 13, 2015, file and serve the Consolidated

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Complaint no later than June 1, 2015;

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WHEREAS on April 23, 2015, MBII announced that (i) its Audit Committee concluded,

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after consultation with management, that certain financial statements should no longer be relied

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upon, and (ii) although the Company expects to restate certain of its previously filed financial

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statements, the Company’s evaluation process is ongoing and, accordingly, the Company cannot

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STIPULATION AND ORDER (1) SETTING TIME FOR FILING OF CONSOLIDATED CLASS ACTION COMPLAINT AND (2)
ESTABLISHING BRIEFING SCHEDULE FOR RESPONSIVE MOTION(S)
MASTER FILE NO. : 2:14-CV-2571-MCE-KJN
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at this time provide an estimate of the timing, extent, or effect of such restatement (the

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“Restatement(s)”);

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WHEREAS the Restatement(s) may impact the allegations in the Consolidated
Complaint;

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WHEREAS although Lead Plaintiffs may properly file the Consolidated Complaint at

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any time, undersigned counsel agree that the interests of justice would be best served by an

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order directing Lead Plaintiffs to file the Consolidated Complaint after MBII announces the

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results of the Restatement(s), so as to avoid the expense and delay that would be incurred by

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further amending the Consolidated Complaint should the Restatement(s) be announced while

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Defendants’ anticipated motion(s) to dismiss are being briefed.

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STIPULATION
THEREFORE, IT IS HEREBY STIPULATED AND AGREED by Lead Plaintiffs and
Defendants, through their respective counsel of record, as follows:
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Lead Plaintiffs shall file and serve the Consolidated Complaint no later than sixty

(60) days after MBII announces the Restatement(s).
2.

Defendants shall file and serve any responsive pleading(s) or motion(s) to

dismiss no later than sixty (60) days after the filing and service of the Consolidated Complaint.
3.

If a motion to dismiss is filed, Lead Plaintiffs shall file and serve their opposition

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brief(s) no later than forty-five (45) days after Defendants file and serve their motion(s) to

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dismiss.

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4.

Defendants shall file and serve their reply(ies) in further support of the motion(s)

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to dismiss no later than twenty-one (21) days after Lead Plaintiffs file and serve their opposition

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brief(s).

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5.

In the event Defendants’ motion(s) to dismiss are denied in whole or in part,

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Lead Plaintiffs and Defendants shall meet and confer within forty-five (45) days of the Court’s

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disposition of Defendants’ motion(s) to dismiss to address the discovery-related topics set forth

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STIPULATION AND ORDER (1) SETTING TIME FOR FILING OF CONSOLIDATED CLASS ACTION COMPLAINT AND (2)
ESTABLISHING BRIEFING SCHEDULE FOR RESPONSIVE MOTION(S)
MASTER FILE NO. : 2:14-CV-2571-MCE-KJN
sf-3538812

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in the Court’s Order Requiring Joint Status Report and will thereafter submit to the Court a Rule

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26(f) discovery plan consistent with that Order.

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DATED: May 27, 2015

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LOWENSTEIN SANDLER LLP
By:

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/s/ Michael J. McGaughey
(As authorized on May 27, 2015)
Michael J. McGaughey
Lowenstein Sandler LLP
390 Lytton Avenue
Palo Alto, CA 94301
Telephone: [phone]
Fax: [phone]
[e-mail]
Lawrence M. Rolnick (pro hac vice)
Steven M. Hecht (pro hac vice)
Thomas E. Redburn, Jr. (pro hac vice)
Lowenstein Sandler LLP
1251 Avenue of the Americas
New York, NY 10020
-and65 Livingston Avenue
Roseland, NJ 07068
Telephone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

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Counsel for Lead Plaintiffs Special
Situations Fund III QP, L.P. and Special
Situations Cayman Fund, L.P.

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MORRISON & FOERSTER LLP

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By:

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/s/Judson E. Lobdell
Judson E. Lobdell
[e-mail]
Jordan Eth
[e-mail]

STIPULATION AND ORDER (1) SETTING TIME FOR FILING OF CONSOLIDATED CLASS ACTION COMPLAINT AND (2)
ESTABLISHING BRIEFING SCHEDULE FOR RESPONSIVE MOTION(S)
MASTER FILE NO. : 2:14-CV-2571-MCE-KJN
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Morrison & Foerster LLP
425 Market Street
San Francisco, CA 94105
Telephone: [phone]
Facsimile: 415-268-7522

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Counsel for Defendants Marrone Bio
Innovations, Inc., Pamela G. Marrone,
James B. Boyd, Donald J. Glidewell, Elin
Miller, Ranjeet Bhatia, Pamela Contag,
Tim Fogarty, Lawrence Hough, Joseph
Hudson, Les Lyman, Richard Rominger,
Shaugn Stanley, and Sean Schickedanz

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BROWNSTEIN HYATT FARBER
SCHRECK LLP

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By:

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/s/ Jonathan C. Sandler
(As authorized on May 27, 2015)
Jonathan C. Sandler
2049 Century Park East, Suite 3550
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: 310-500-4602
Counsel for Defendant Hector Absi

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STIPULATION AND ORDER (1) SETTING TIME FOR FILING OF CONSOLIDATED CLASS ACTION COMPLAINT AND (2)
ESTABLISHING BRIEFING SCHEDULE FOR RESPONSIVE MOTION(S)
MASTER FILE NO. : 2:14-CV-2571-MCE-KJN
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ORDER

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Pursuant to the parties’ stipulation, it is hereby ordered that:

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1.

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Lead Plaintiffs shall file and serve the Consolidated Complaint no later than sixty

(60) days after MBII announces the Restatement(s).
2.

Defendants shall file and serve any responsive pleading(s) or motion(s) to

dismiss no later than sixty (60) days after the filing and service of the Consolidated Complaint.
3.

If a motion to dismiss is filed, Lead Plaintiffs shall file and serve their opposition

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brief(s) no later than forty-five (45) days after Defendants file and serve their motion(s) to

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dismiss.

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4.

Defendants shall file and serve their reply(ies) in further support of the motion(s)

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to dismiss no later than twenty-one (21) days after Lead Plaintiffs file and serve their opposition

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brief(s).

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5.

In the event Defendants’ motion(s) to dismiss are denied in whole or in part,

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Lead Plaintiffs and Defendants shall meet and confer within forty-five (45) days of the Court’s

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disposition of Defendants’ motion(s) to dismiss to address the discovery-related topics set forth

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in the Court’s Order Requiring Joint Status Report and will thereafter submit to the Court a Rule

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26(f) discovery plan consistent with that Order.

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IT IS SO ORDERED.
Dated: June 3, 2015

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STIPULATION AND ORDER (1) SETTING TIME FOR FILING OF CONSOLIDATED CLASS ACTION COMPLAINT AND (2)
ESTABLISHING BRIEFING SCHEDULE FOR RESPONSIVE MOTION(S)
MASTER FILE NO. : 2:14-CV-2571-MCE-KJN
sf-3538812