IN RE BROCADE COMMUNICATIONS SYSTEMS, INC. DERIVATIVE LITIGATION

Filing 437

ORDER re Dismissal of remaining claim against defendant Robert D. Bossi re 436 Stipulation filed by Brocade Communications Systems, Inc.. Signed by Judge Charles R. Breyer on 3/25/09. (be, COURT STAFF) (Filed on 3/26/2009)

Download PDF
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEWEY & LEBOEUF LLP Barbara A. Caulfield (bcaulfield@dl.com) SBN 108999 Peter E. Root (proot@dl.com) SBN 142348 1950 University Avenue, Suite 500 East Palo Alto, California 94303 Telephone: (650) 845-7000 Facsimile: (650) 845-7333 DEWEY & LEBOEUF LLP 1101 New York Avenue, N.W., Suite 1100 Washington, DC 20005 Telephone: (202) 346-8000 Facsimile: (202) 346-8102 DEWEY & LEBOEUF LLP 1301 Avenue of the Americas New York, New York 10019 Telephone: (212) 259-8000 Facsimile: (212) 259-6333 Attorneys for Plaintiff Brocade Communications Systems, Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION IN RE BROCADE COMMUNICATIONS SYSTEMS, INC. DERIVATIVE LITIGATION This Document Relates to: ALL ACTIONS Case No. C 05-02233 CRB STIPULATION AND [PROPOSED] ORDER RE: DISMISSAL OF REMAINING CLAIM AGAINST DEFENDANT ROBERT D. BOSSI STIPULATION AND PROPOSED ORDER RE: DISMISSAL OF REMAINING CLAIM AGAINST BOSSI CASE NO.: C-05-02233 CRB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Stipulation is made by and between plaintiff Brocade Communications Systems, Inc. ("Brocade"), through the Special Litigation Committee of its Board of Directors (the "SLC"), and defendant Robert D. Bossi ("Bossi"). RECITALS WHEREAS, beginning in June 2005, certain shareholder derivative actions were commenced in the United States District Court for the Northern District of California asserting a variety of claims arising from Brocade's historical equity options compensation practices and related matters, which actions were assigned to this Court and consolidated as In re Brocade Communications Systems, Inc. Derivative Litigation, No. 05-cv-2233-CRB (the "Consolidated Federal Derivative Action"); WHEREAS, the SLC, acting on behalf of Brocade, filed a Second Amended Complaint in the Consolidated Federal Derivative Action on August 1, 2008, asserting claims on behalf of Brocade against ten defendants, including Bossi, who had not previously been a defendant in the Consolidated Federal Derivative Action; WHEREAS, on October 6, 2008, Bossi and the other nine defendants each filed a motion to dismiss the Second Amended Complaint; WHEREAS, on December 12, 2008, this Court issued an Order, supplemented by an opinion issued January 6, 2009, in which the Court dismissed all claims against Bossi with the exception of a claim for aiding and abetting other defendants' breaches of fiduciary duty (i.e., the Thirteenth Cause of Action of the Second Amended Complaint); WHEREAS, Brocade and Bossi entered into a settlement agreement on January 26, 2009 (the "Settlement Agreement"); WHEREAS, on February 3, 2009, Brocade submitted a copy of the Settlement Agreement to this Court, and filed a motion seeking a determination that the settlement was made in good faith and a Complete Bar Order barring contribution claims; WHEREAS, on March 13, 2009, this Court entered an Order Determining Good Faith Settlement, which included a Complete Bar Order; -1STIPULATION AND PROPOSED ORDER RE: DISMISSAL OF REMAINING CLAIM AGAINST BOSSI CASE NO.: C-05-02233 CRB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, on March 23, 2009, Bossi completed full payment and transfer of the settlement consideration to Brocade as provided in the Settlement Agreement; WHEREAS, the Settlement Agreement provides that, within two business days after the date of payment, Brocade shall move the Court for an Order dismissing with prejudice the remaining claim against Bossi in the Consolidated Federal Derivative Action; WHEREAS, the Settlement Agreement provides that Bossi has continuing cooperation obligations as set forth in paragraphs 3 and 4 of the Settlement Agreement, and that Brocade and Bossi each may terminate the Settlement Agreement under certain circumstances, as provided in subparagraphs (a) and (b) of paragraph 10 of the Settlement Agreement; WHEREAS, the Settlement Agreement further provides that Brocade and Bossi will request the Court to retain continuing and exclusive jurisdiction to enforce the Complete Bar Order and to adjudicate any claims relating to the interpretation of the Complete Bar Order and the Settlement Agreement; WHEREAS, Brocade and Bossi request the Court to retain jurisdiction to enforce the terms of their Settlement Agreement and the Complete Bar Order under the authority of Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375, 381-82 (1994). NOW, THEREFORE, Brocade and Bossi, through their respective undersigned counsel, hereby stipulate, subject to the Court's approval, as follows: 1. The remaining claim against Bossi in the Consolidated Federal Derivative Action, i.e., the Thirteenth Cause of Action of the Second Amended Complaint (for aiding and abetting breaches of fiduciary duty), shall be and hereby is dismissed with prejudice. 2. Brocade and Bossi shall comply with the terms of their Settlement Agreement, a copy of which is attached and incorporated by reference as if fully set forth. 3. By consent of Brocade and Bossi, the Court shall retain jurisdiction for purposes of enforcing the terms of the Settlement Agreement and the Complete Bar Order. -2STIPULATION AND PROPOSED ORDER RE: DISMISSAL OF REMAINING CLAIM AGAINST BOSSI CASE NO.: C-05-02233 CRB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: March 24, 2009 DEWEY & LEBOEUF LLP By: /s/ Peter E. Root Peter E. Root Attorneys For Plaintiff Brocade Communications Systems, Inc. Dated: March 24, 2009 ORRICK, HERRINGTON & SUTCLIFFE LLP By: /s/ Michael D. Torpey Michael David Torpey Attorneys For Defendant Robert D. Bossi ATTESTATION PURSUANT TO GENERAL ORDER 45 I, Peter E. Root, am the ECF User whose ID and password are being used to file this Stipulation and [Proposed] Order Re: Dismissal of Remaining Claim Against Defendant Robert D. Bossi. In compliance with General Order 45.X.B, I hereby attest that concurrence in the filing of this document has been obtained from each of the other signatories. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 24th day of March 2009, at East Palo Alto, California. /s/ Peter E. Root Peter E. Root -3STIPULATION AND PROPOSED ORDER RE: DISMISSAL OF REMAINING CLAIM AGAINST BOSSI CASE NO.: C-05-02233 CRB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 March 25, 2009 Dated: _____________ ORDER PURSUANT TO STIPULATION, IT IS SO ORDERED. UNIT ED S S DISTRICT TE C ______________________________ TA RT U O Charles R. Breyer United States District Judge ER N D IS T IC T R OF -4STIPULATION AND PROPOSED ORDER RE: DISMISSAL OF REMAINING CLAIM AGAINST BOSSI CASE NO.: C-05-02233 CRB A C LI FO J arles R udge Ch . Breyer R NIA O OR IT IS S DERED NO RT H ATTACHMENT TO STIPULATION AND [PROPOSED] ORDER RE: DISMISSAL OF REMAINING CLAIM AGAINST DEFENDANT ROBERT D. BOSSI STIPULATION AND PROPOSED ORDER RE: DISMISSAL OF REMAINING CLAIM AGAINST BOSSI CASE NO.: C-05-02233 CRB

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?