The Port Authority of Allegheny County Retirement and Disability Allowance Plan for Employees Represented by Local 85 of the Amalgamated Transit Union v. Smith et al

Filing 54

Motions terminated: 49 MOTION to Dismiss / Notice of Motion and Motion to Dismiss Amended Shareholder Derivative Complaint; Memorandum of Points and Authorities in Support Thereof filed by Mary Lee Widener, Mariann Byerwalter, Jose H. Villar real, Carmine Guerro, Kenneth T. Rosen, John D. Roach, Victor J. Bacigalupi, Bradley M. Shuster, Raymond L. Ocampo, Jr., Wayne E. Hedien, PMI Group, Inc., L. Stephen Smith, David H. Katkov, Thomas H. Jeter, James C. Castle, Donald P. Lofe, Jr., W. Roger Haughton, Steven L. Schied, Ronald H. Zech, Louis G. Lower, II., ORDER vacating all dates (tf, COURT STAFF) (Filed on 12/1/2010)

The Port Authority of Allegheny County Retirement and Disa...malgamated Transit Union v. Smith et al

Doc. 54

1 BARRACK, RODOS & BACINE STEPHEN R. BASSER (121590) 2 [e-mail] SAMUEL M. WARD (216562) 3 [e-mail] 600 West Broadway, Suite 900 4 San Diego, CA 92101 Telephone: [phone] Facsimile: [phone] 6 BARRACK, RODOS & BACINE LEONARD BARRACK 7 DANIEL BACINE 3300 Two Commerce Square 8 2001 Market Street Philadelphia, PA 19103 9 Telephone: [phone] Facsimile: [phone] 10 Attorneys for Plaintiff, the Port Authority of Allegheny County Retirement and Disability 11 Allowance Plan for Employees Represented by Local 85 of the Amalgamated Transit Union 12 13 THE PORT AUTHORITY OF ALLEGHENY 14 COUNTY RETIREMENT AND DISABILITY ALLOWANCE PLAN FOR EMPLOYEES 15 REPRESENTED BY LOCAL 85 OF THE AMALGAMATED TRANSIT UNION 16 Plaintiff, 17 18 19 20 21 22 23 24 25 26 27 ) ) ) ) ) ) ) vs. ) ) L. STEPHEN SMITH, DAVID H. KATKOV, ) DONALD P. LOFE, JR., JOHN D. ROACH, ) RONALD H. ZECH, WAYNE E. HEDIEN, MARY ) LEE WIDENER, CARMINE GUERRO, JOSE H. ) VILLARREAL, RAYMOND L. OCAMPO JR., LOUIS G. LOWER II, W. ROGER HAUGHTON, ) ) VICTOR J. BACIGALUPI, BRADLEY M. ) SHUSTER, KENNETH T. ROSEN, JAMES C. ) CASTLE, MARIANN BYERWALTER, and ) STEVEN L. SCHEID, ) ) Defendants, ) ) -and ) PMI GROUP, INC., ) ) Nominal Defendant ) ) )
Case No.: 3:08-cv-02046-SI

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No.: 3:08-cv-02046-SI STIPULATION TO STAY AND [PROPOSED] CASE MANAGEMENT ORDER Judge: The Honorable Susan Illston

28 STIPULATION TO STAY AND [PROPOSED] CASE MANAGEMENT ORDER
Dockets.Justia.com

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Plaintiff, the Port Authority of Allegheny County Retirement and Disability Allowance

2 Plan for Employees Represented by Local 85 of the Amalgamated Transit Union ("Plaintiff" or 3 "ATU 85"), and defendants L. Stephen Smith, W. Roger Haughton, David H. Katkov, Donald P. 4 Lofe, Jr., Mariann Byerwalter, Dr. James C. Castle, Carmine Guerro, Wayne E. Heiden, Louis G. 5 Lower, II, Raymond L. Ocampo, Jr., John D. Roach, Dr. Kenneth T. Rosen, Steven L. Scheid, 6 Jose H. Villarreal, Mary Lee Widener, and Ronald H. Zech (collectively, the "Individual 7 Defendants"), and nominal defendant, The PMI Group, Inc., ("PMI" or the "Company") hereby 8 submit the following Stipulation and [Proposed] Case Management Order ("Order"): 9 10 11 12 13 14 2. On April 17, 2008, a shareholder derivative action based on similar factual 1. On April 18, 2008, Plaintiff ATU 85 filed a shareholder derivative action on

behalf of PMI against certain of its officers and directors seeking to remedy Defendants' alleged violations of federal law, including breaches of fiduciary duty, waste of corporate assets and unjust enrichment (the "Federal Derivative Action").

15 allegations and asserting substantially similar claims was filed in the Superior Court of the State 16 of California, County of Contra Costa, Jorge Torres v. L. Stephen Smith, et al., Case No. C0817 01068 (the "State Derivative Action"). 18 19 20 21 4. On May 12, 2010, pursuant to the stipulation of the parties to this action and the 3. On March 1, 2010, Plaintiff ATU 85 filed an Amended Shareholder Derivative

Complaint ("Amended Complaint") in the Federal Derivative Action.

22 State Derivative Action, this Court temporarily stayed this action so that the parties could engage 23 in mediation with (Ret.) Judge Layn Phillips. 24 25 26 27 28
STIPULATION TO STAY AND [PROPOSED] CASE MANAGEMENT ORDER Case No.: 3:08-cv-02046-SI

5.

Thereafter, the parties in the Federal Derivative Action and the State Derivative

Actions (collectively "Actions") engaged in all day long mediation sessions with (Ret.) Judge Layn Phillips on June 10, 2010 and July 13, 2010 and conducted numerous follow-up telephonic conferences.

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6.

After unsuccessful efforts to settle the Actions via mediation, the parties renewed

2 litigation. To that end, Defendants filed and served their motion to dismiss the Amended 3 Complaint on November 1, 2010, setting a hearing date for April 8, 2011. The deadline for 4 Plaintiff to file any opposition to Defendant's motion to dismiss is currently scheduled for 5 December 16, 2010. 6 7 8 9 10 11 8. The parties are now preparing for execution a formal Stipulation of Settlement 7. Subsequent to the filing of Defendant's motion to dismiss, the parties to the

Federal Derivative Action and the State Derivative Action participated in a further telephonic mediation with additional assistance from Judge Phillips, culminating on November 23, 2010 in the execution of a Memorandum of Understanding by duly authorized Counsel.

12 which will be followed by the preparation and filing of a motion for preliminary approval of the 13 settlement and Notice. 14 15 16 17 18 10. In light of the Memorandum of Understanding, Defendants have agreed to 9. It is anticipated that the Stipulation of Settlement will be completed and executed

early in the first quarter of 2011 and that the Plaintiffs shall be in a position to move for preliminary approval of the settlement and Notice within the first quarter 2011.

19 withdraw their pending motion to dismiss, without prejudice to re-filing in the event that the 20 settlement is not approved, and that the hearing date on and deadline for filing Plaintiff's 21 opposition to the motion should be vacated. 22 23 24 25 1. Defendants' motion to dismiss the Plaintiff's Amended Complaint is withdrawn, NOW THEREFORE, the undersigned parties hereby stipulate and agree, and respectfully request that the Court enter an order as follows:

26 without prejudice to re-filing in the event that the settlement is not approved, and the April 8, 27 2011 date for hearing on the motion and the December 16, 2010 deadline for any opposition to 28 the motion are vacated;
STIPULATION TO STAY AND [PROPOSED] CASE MANAGEMENT ORDER Case No.: 3:08-cv-02046-SI

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2.

Plaintiff shall file a motion for preliminary approval of the settlement and

2 approval of Notice no later than 14 days from the execution by the parties of a Stipulation for 3 Settlement; 4 5 6 7 8 9 IT IS SO STIPULATED. BARRACK, RODOS & BACINE STEPHEN R. BASSER SAMUEL M. WARD /s/ SAMUEL M. WARD SAMUEL M. WARD 600 West Broadway, Suite 900 San Diego, CA 92101 Telephone: [phone] Facsimile: [phone] BARRACK, RODOS & BACINE LEONARD BARRACK DANIEL BACINE 3300 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff, the Port Authority Of Allegheny County Retirement and Disability Allowance Plan for Employees represented by Local 85 of the Amalgamated Transit Union 3. The parties shall submit a stipulated proposed schedule with respect to all further

settlement related procedures, including the filing deadline for the motion for final approval and a suggested briefing schedule with respect thereto, with the motion for preliminary approval papers filed with the Court.

10 DATED: November 30, 2010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

STIPULATION TO STAY AND [PROPOSED] CASE MANAGEMENT ORDER Case No.: 3:08-cv-02046-SI

1 DATED: November 30, 2010 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 DATED: _______ ___, 2010 22 23 24 25 26 27 28
STIPULATION TO STAY AND [PROPOSED] CASE MANAGEMENT ORDER Case No.: 3:08-cv-02046-SI

MEREDITH N. LANDY PETER T. SNOW /s/ PETER T. SNOW PETER T. SNOW 2765 Sand Hill Road Menlo Park, California 94025 Telephone: [phone] Facsimile: [phone] GEORGE A. RILEY Two Embarcadero Center, 28th Floor San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants L. Stephen Smith, W. Roger Haughton, David H. Katkov, Donald P. Lofe, Jr., Mariann Byerwalter, Dr. James C. Castle, Carmine Guerro, Wayne E. Heiden, Louis G. Lower, II, Raymond L. Ocampo, Jr., John D. Roach, Dr. Kenneth T. Rosen, Steven L. Scheid, Jose H. Villarreal, Mary Lee Widener, and Ronald H. Zech

*** ORDER PURSUANT TO STIPULATION, IT IS SO ORDERED.

THE HONORABLE SUSAN ILLSTON United States District Judge

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CERTIFICATE OF SERVICE

The Port Authority Of Allegheny County Retirement and Disability Allowance Plan for Employees represented by Local 85 of the Amalgamated Transit Union v. PMI Group, 3 Inc., et. al. Case No.: CV082046 4 I, the undersigned, state that I am employed in the City and County of San Diego, 5 State of California; that I am over the age of eighteen (18) years and not a party to the 6 within action; that I am employed at Barrack, Rodos & Bacine, 600 West Broadway, Suite 900, San Diego, California 92101; and that on November 30, 2010, I served a true 7 copy of the attached: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
CERTIFICATE OF SERVICE Case No.: C-08-02046 SI

STIPULATION TO STAY AND [PROPOSED] CASE MANAGEMENT ORDER to the parties listed on the attached Service List by the following means of service: BY E-FILE: I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I have mailed the foregoing document or paper via the United States Postal Service to the non-CM/ECF participants indicated on the attached Service List. BY E-MAIL: I e-mailed a true copy addressed as indicated in the attached Service List, on the above-mentioned date. BY MAIL: I placed a true copy in a sealed envelope with postage thereon fully prepaid and addressed to the parties listed on the attached Service List, on the above-mentioned date. I am familiar with the firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business and there is a regular communication by mail between the place of mailing and the place so addressed. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 30th day of November, 2010. /s/ SAMUEL M. WARD SAMUEL M. WARD

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SERVICE LIST

3 Attorneys for Defendants L. Stephen Smith, W. Roger Haughton, David H. Katkov, Donald P Lofe, Jr., Mariann Byerwalter, Dr. James C. Castle, Carmine Guerro, 4 Wayne E. Hedien, Louis G. Lower, II, Raymond L. Ocampo Jr., John D. Roach, Dr. Kenneth T. Rosen, Steven L. Scheid, Jose H. Villarreal, Mary Lee Widener, and 5 Ronald H. Zech and Nominal Defendant, PMI Group, Inc. 6 7 Meredith L. Landy [e-mail] 8 Peter T. Snow [e-mail] 9 O'MELVENY & MYERS LLP 2765 Sand Hill Road 10 Menlo Park, Ca 94025 Telephone: [phone] Facsimile: [phone] 12 Attorneys for Plaintiffs The Port Authority Of Allegheny County Retirement and 13 Disability Allowance Plan for Employees represented by Local 85 of the Amalgamated Transit Union 14 Corey D. Holzer Marc M. Umeda 15 [e-mail] [e-mail] Michael I. Fistel, Jr. Daniel R. Forde 16 [e-mail] ROBBINS UMEDA LLP Marshall P. Dees 17 600 B Street, Suite 1900 [e-mail] San Diego, CA 92101 18 Telephone: [phone] HOLZER, HOLZER & FISTEL, LLC 200 Ashford Center North, Suite 300 Facsimile: [phone] 19 Atlanta, GA 30338 Telephone: [phone] Facsimile: [phone] 21 22 23 24 25 26 27 28
CERTIFICATE OF SERVICE Case No.: C-08-02046 SI