Walter et al v. Hughes Communications, Inc. et al

Filing 93

STIPULATION AND ORDER Regarding Withdrawal Without Prejudice of Defendants' Motion to Dismiss, Motions terminated: 80 MOTION to Dismiss Defendants' Notice of Motion and Motion to Dismiss Pursuant to Federal Arbitration Act and Alternative Motion to Dismiss and Strike ETF Claims; Memorandum of Points and Authorities in Support filed by Hughes Network Systems, LLC, Hughes Communications, Inc... Signed by Judge Samuel Conti on 10/14/11. (tdm, COURT STAFF) (Filed on 10/14/2011)

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Robert B. Hawk (SBN 118054)
J. Christopher Mitchell (SBN 215639)
HOGAN LOVELLS US LLP
525 University Avenue, 4th Floor
Palo Alto, California 94301
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Defendants
HUGHES COMMUNICATIONS, INC.
and HUGHES NETWORK SYSTEMS, LLC

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TINA WALTER, CHRISTOPHER BAYLESS,
and ERIC SCHUMACHER, individually and on
behalf of all others similarly situated,

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Plaintiffs,
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v.
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HUGHES COMMUNICATIONS, INC. and
HUGHES NETWORK SYSTEMS, LLC,

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CASE NO.: 09-CV-02136 SC
STIPULATION AND [PROPOSED]
ORDER REGARDING
WITHDRAWAL WITHOUT
PREJUDICE OF DEFENDANTS’
MOTION TO DISMISS
The Honorable Samuel Conti

Defendants.

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STIPULATION AND ORDER REGARDING WITHDRAWAL OF MOTION TO DISMISS;
CASE NO.: 09-CV-02136 SC
\058224/000230 - 100203 v6

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WHEREAS, currently pending before the Court is Hughes Communications, Inc. and
Hughes Network Systems LLC’s (collectively, “Hughes”) Motion to Dismiss Pursuant to the
Federal Arbitration Act and Alternative Motion to Dismiss and Strike ETF Claims (the “Motion
to Dismiss”), which has been fully briefed and submitted to the Court;
WHEREAS, Hughes and Plaintiffs Tina Walter, Christopher Bayless and Eric
Schumacher (“Plaintiffs”) (collectively, the “Parties”) have continued to discuss a potential
revised settlement following the Court’s July 6, 2011 Order Denying Plaintiffs’ Motion for Class
Certification and Preliminary Approval of Settlement, with the express understanding and
agreement that any and all actions by Hughes with respect to any revised settlement were subject
to and without waiver of any of their respective rights to enforce the Parties’ arbitration
agreements, or Plaintiffs’ rights to assert all applicable defenses to the aforementioned arbitration
agreements, excluding any defense based in any way on the negotiation, drafting, execution,
submission for Court approval or performance of such settlement, or on any other actions relating
to the approval or implementation of such settlement;
WHEREAS, the Parties have reached an agreement in principle to settle their disputes,
and, upon completion of the necessary settlement documentation, they desire to submit an
Amended and Restated Stipulation of Settlement (the “Amended Settlement Agreement”) to the
Court for approval, subject to all of the terms and conditions of their agreement in principle;
WHEREAS, under the Parties’ agreement in principle, as a condition of proceeding with
any settlement, Plaintiffs have stipulated that the negotiation of and entry into an Amended
Settlement Agreement, and the submission of an Amended Settlement Agreement to the Court, is
without prejudice to any right Hughes may have to compel arbitration or otherwise enforce the
Parties’ arbitration agreements, and does not constitute a waiver or relinquishment of any
arbitration rights, or a waiver of any applicable defenses to such rights that may be asserted by
Plaintiffs, excluding any defense based in any way on the negotiation, drafting, execution,
submission for Court approval or performance of Amended Settlement Agreement, or on any
other actions relating to the approval or implementation of such Amended Settlement Agreement;

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STIPULATION AND ORDER REGARDING WITHDRAWAL OF MOTION TO DISMISS;
CASE NO.: 09-CV-02136 SC
\058224/000230 - 100203 v6

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WHEREAS, the Parties have agreed that, subject to the foregoing preservation of rights,
Hughes may withdraw the Motion to Dismiss without prejudice to its right to reassert the Motion
and/or any arguments made as a part of the Motion at a later time.

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IT IS HEREBY STIPULATED, by and between the Parties through their respective
counsel, that:
1.

Hughes hereby withdraws its Motion to Dismiss without prejudice to Hughes’s right to

later re-file that Motion and seek a ruling on that fully-briefed Motion, or to file a new motion to
dismiss on the same or similar grounds as the pending Motion to Dismiss.
2.

Consistent with the September 28, 2011 stipulation of the parties, neither the Amended

Settlement Agreement nor any action taken by Hughes pursuant to or in furtherance of a revised
settlement or the Amended Settlement Agreement, including its withdrawal of the Motion to
Dismiss without prejudice, shall waive or otherwise adversely affect any right Hughes may have
with respect to its position and arguments in the Motion to Dismiss;
3.

Plaintiffs expect to file a Motion for Preliminary Approval of the Amended Settlement

Agreement on or before November 21, 2011.

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STIPULATION AND ORDER REGARDING WITHDRAWAL OF MOTION TO DISMISS;
CASE NO.: 09-CV-02136 SC
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4.

Hughes’ time to move to dismiss, answer or otherwise respond to the Second Amended

Complaint shall and hereby is extended until (a) November 25, 2011, or (b) if Plaintiffs file a
Motion for Preliminary Approval of the Amended Settlement Agreement on or before November
21, 2011, twenty (20) days after the Court rules on such motion.

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IT IS SO STIPULATED.

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Dated: October 12, 2011

HOGAN LOVELLS US LLP

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By:

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/s/ Robert B. Hawk
Robert B. Hawk
Attorneys for Defendants
HUGHES COMMUNICATIONS, INC. and
HUGHES NETWORK SYSTEMS LLC

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Dated: October 12, 2011

AUDET & PARTNERS, LLP
By:

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/s/ Joshua C. Ezrin
Joshua C. Ezrin
Attorneys for Plaintiffs

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S
UNIT
ED

Dated: October 14 2011
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Hon. Samuel J. Conti
United States DistrictelCourt Judge
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IT IS SO ORDERED.

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C

I, Robert B. Hawk, attest that Joshua C. Ezrin has read andN D IS T R I C T O F
approved the STIPULATION
AND [PROPOSED] ORDER REGARDING WITHDRAWAL WITHOUT PREJUDICE OF
DEFENDANTS’ MOTION TO DISMISS and consents to its filing in this action.

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STIPULATION AND ORDER REGARDING WITHDRAWAL OF MOTION TO DISMISS;
CASE NO.: 09-CV-02136 SC
\058224/000230 - 100203 v6