In Re Sunpower Corporation Shareholder Derivative Litigation

Filing 15

STIPULATION AND ORDER re 14 Stipulation. Case numbers 09-05731 and 09-05925 are consolidated for all purposes. All files for the consolidated action shall be maintained under 09-05731. Signed by Magistrate Judge Howard R. Lloyd on 1/4/2010. (hrllc1, COURT STAFF) (Filed on 1/4/2010)

** E-filed January 4, 2010 **
1 ROBBINS UMEDA LLP MARC M. UMEDA (197847) 2 [e-mail] GEORGE C. AGUILAR (126535) 3 [e-mail] ARSHAN AMIRI (246874) 4 [e-mail] DAVID L. MARTIN (253858) 5 [e-mail] 600 B Street, Suite 1900 6 San Diego, CA 92101 Telephone: [phone] Facsimile: [phone] 8 Counsel for Plaintiff Richard Logan and [Proposed] Co-Lead Counsel for Plaintiffs 9 10 JORDAN ETH (BAR NO. 121617) JUDSON E. LOBDELL (BAR NO. 146041) 11 MORRISON & FOERSTER LLP 425 Market Street 12 San Francisco, California 94105-2482 Telephone: [phone] Facsimile: [phone] 14 Attorneys for Defendants Thomas H. Werner, Thurman J. Rodgers, W. Steve Albrecht, 15 Betsy S. Atkins, Uwe-Ernst Bufe, Thomas R. McDaniel, Pat Wood, III, 16 Dennis V. Arriola, Emmanuel T. Hernandez, Daniel S. Shugar, Douglas J. Richards, 17 Bruce R. Ledesma, Marty T. Reese, and nominal defendant SunPower Corporation 18 19 20 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. C 09-05731-HRL Honorable Howard R. Lloyd STIPULATION AND [PROPOSED] ORDER REGARDING CONSOLIDATING ACTIONS, APPOINTING LEAD PLAINTIFFS AND LEAD COUNSEL, SCHEDULING, AND RELATED MATTERS

21 RICHARD LOGAN, Derivatively on Behalf of SUNPOWER CORPORATION, 22 Plaintiff, 23 v. 24 THOMAS H. WERNER, DENNIS V. 25 ARRIOLA, EMMANUEL T. HERNANDEZ, W. STEVE ALBRECHT, 26 BETSY S. ATKINS, PAT WOOD, III, THOMAS R. MCDANIEL, THURMAN J. 27 RODGERS, and UWE-ERNST BUFE, 28 Defendants,

STIP. AND [PROPOSED] ORDER RE CONSOLIDATING ACTIONS, APPOINTING LEAD PLAINTIFFS AND LEAD COUNSEL, SCHEDULING, AND RELATED MATTERS; CASE NO. CV 09-05731 HRL

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v.

2 SUNPOWER CORPORATION, a Delaware corporation, 3 Nominal Defendant. 4 5 DAVID CLARKE, Derivatively on Behalf of SUNPOWER CORPORATION, 6 Plaintiff, 7 v. 8 THOMAS H. WERNER, T.J. RODGERS, 9 W. STEVE ALBRECHT, BETSY S. ATKINS, UWE-ERNST BUFE, THOMAS 10 R. MCDANIEL, PAT WOOD III, DENNIS V. ARRIOLA, EMMANUEL T. 11 HERNANDEZ, DANIEL S. SHUGAR, DOUGLAS J. RICHARDS, BRUCE R. 12 LEDESMA, MARTY T. REESE, AND DOES 1-20, 13 Defendants, 14 v. 15 SUNPOWER CORPORATION, a 16 Delaware corporation, 17 18 19 20 21 22 23 24 25 26 27 28 Nominal Defendant.

) ) ) ) ) ) ) ) ) Case No. C 09-05925-JSW ) ) Honorable Judge Jeffrey S. White ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

STIP. AND [PROPOSED] ORDER RE CONSOLIDATING ACTIONS, APPOINTING LEAD PLAINTIFFS AND LEAD COUNSEL, SCHEDULING, AND RELATED MATTERS; CASE NO. CV 09-05731 HRL

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WHEREAS, there are presently two related shareholder derivative actions against certain of

2 the officers and directors of SunPower Corporation ("SunPower ") on file in this Court; 3 WHEREAS, in an effort to assure consistent rulings and decisions and the avoidance of

4 unnecessary duplication of effort, all of the counsel for the parties in the related SunPower 5 shareholder derivative actions currently on file in this Court enter into this stipulation. The counsel 6 are: (1) Robbins Umeda LLP on behalf of plaintiff Richard Logan; (2) Johnson Bottini LLP on 7 behalf of plaintiff David Clarke; and (4) Morrison & Foerster LLP on behalf of nominal defendant 8 SunPower Corporation and individual defendants Thomas H. Werner, Thurman J. Rodgers, W. Steve 9 Albrecht, Betsy S. Atkins, Uwe-Ernst Bufe, Thomas R. McDaniel, Pat Wood, III, Dennis V. Arriola, 10 Emmanuel T. Hernandez, Daniel S. Shugar, Douglas J. Richards, Bruce R. Ledesma, and Marty T. 11 Reese; 12 WHEREAS, on November 16, 2009, SunPower issued a press release announcing an internal

13 investigation by its Audit Committee; and 14 WHEREAS, the parties agree that it would be duplicative and wasteful of the Court's

15 resources for defendants named in plaintiffs' shareholder derivative actions to have to respond to the 16 individual complaints prior to the agreed upon consolidation and filing of a consolidated complaint. 17 NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED by plaintiffs and

18 defendants, through their respective counsel of record, as follows: 19 1. The following actions are hereby related and consolidated for all purposes, including

20 pre-trial proceedings and trial: 21 22 23 24 25 2. Every pleading filed in the consolidated action, or in any separate action included Case Name Logan v. Werner, et al. Clarke v. Werner, et al. Case Number No. C 09-05731-HRL No. C 09-05925-JSW Date Filed December 4, 2009 December 17, 2009

26 herein, shall bear the following caption: 27 28 -1STIP. AND [PROPOSED] ORDER RE CONSOLIDATING ACTIONS, APPOINTING LEAD PLAINTIFFS AND LEAD COUNSEL, SCHEDULING, AND RELATED MATTERS; CASE NO. CV 09-05731 HRL

1 2 3 4 5 6 7 8 3.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA IN RE SUNPOWER CORPORATION SHAREHOLDER DERIVATIVE LITIGATION This Document Relates To: ALL ACTIONS ) Master File No. C 09-05731-HRL ) ) ) ) ) ) )

The files of the consolidated action shall be maintained in one file under Master File

9 No. C 09-05731-HRL. 10 4. Counsel for plaintiffs and defendants agree to meet and confer in good faith to

11 arrange a schedule for the designation of an operative complaint or the filing of a Consolidated 12 Derivative Complaint ("Consolidated Complaint") and a briefing schedule concerning any 13 responsive pleading to the Consolidated Complaint within ten (10) days after the public 14 announcement of the results and completion of the internal investigation. If the parties cannot agree 15 to a schedule, plaintiff shall either designate a complaint as operative or file a Consolidated 16 Derivative Complaint within thirty (30) days after the public announcement of the results and 17 completion of the internal investigation, and defendants shall respond to the complaint within thirty 18 (30) days. 19 5. If any defendant challenges plaintiffs' standing to maintain this derivative action on

20 demand futility grounds ­ i.e., that plaintiffs failed to satisfy the requirements of Federal Rules of 21 Civil Procedure 23.1 or Delaware Chancery Court Rule 23.1 by failing to plead facts sufficient to 22 raise a reasonable doubt that a pre-litigation demand on SunPower 's Board of Directors would have 23 been futile, it is Lead Plaintiffs' position that demand futility should be determined as it relates to the 24 designated complaint or Consolidated Complaint based on the membership of the Board on the date 25 plaintiff Logan filed his original complaint (December 4, 2009). By agreeing to this stipulation, 26 defendants do not waive any argument they may have that demand futility should be determined 27 28 -2STIP. AND [PROPOSED] ORDER RE CONSOLIDATING ACTIONS, APPOINTING LEAD PLAINTIFFS AND LEAD COUNSEL, SCHEDULING, AND RELATED MATTERS; CASE NO. CV 09-05731 HRL

1 based on the membership of the Board on the date of the filing of any amended complaint or at any 2 other point in time. 3 4 Clarke. 5 6 7 8 9 10 11 12 13 14 15 16 17 8. Plaintiffs' Co-Lead Counsel shall have sole authority to speak for plaintiffs in matters JOHNSON BOTTINI, LLP FRANK J. JOHNSON FRANCIS A. BOTTINI, JR. BRETT M. WEAVER 501 West Broadway, Suite 1720 San Diego, CA 92101 Telephone: [phone] Facsimile: [phone] 7. The Co-Lead Counsel for plaintiffs for the conduct of these consolidated actions are: ROBBINS UMEDA LLP MARC M UMEDA KEVIN A. SEELY DANIEL R. FORDE 600 B Street, Suite 1900 San Diego, CA 92101 Telephone: [phone] Facsimile: [phone] and 6. The Lead Plaintiffs for these consolidated actions are Richard Logan and David

18 regarding pre-trial procedure, trial and settlement and shall make all work assignments in such 19 manner as to facilitate the orderly and efficient prosecution of this litigation and to avoid duplicative 20 or unproductive effort. 21 9. Plaintiffs' Co-Lead Counsel shall be responsible for coordinating all activities and

22 appearances on behalf of plaintiffs. No motion, request for discovery or other pre-trial or trial 23 proceedings shall be initiated or filed by any plaintiff except through plaintiffs' Co-Lead Counsel. 24 10. Plaintiffs' Co-Lead Counsel shall be available and responsible for communications to

25 and from this Court, including distributing orders and other directions from the Court to counsel. 26 Plaintiffs' Co-Lead Counsel shall be responsible for creating and maintaining a master service list of 27 all parties and their respective counsel. 28 -3STIP. AND [PROPOSED] ORDER RE CONSOLIDATING ACTIONS, APPOINTING LEAD PLAINTIFFS AND LEAD COUNSEL, SCHEDULING, AND RELATED MATTERS; CASE NO. CV 09-05731 HRL

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11.

Defendants' counsel may rely upon all agreements made with plaintiffs' Co-Lead

2 Counsel, or other duly authorized representative of plaintiffs' Co-Lead Counsel, and such 3 agreements shall be binding on all plaintiffs. 4 12. Defendants take no position as to the appointment of Lead Plaintiffs or Co-Lead

5 Counsel. 6 13. This Order shall apply to each case, arising out of the same or substantially the same

7 transactions or events as these cases, which is subsequently filed in, remanded to or transferred to 8 this Court. 9 14. When a derivative case that properly belongs as part of the In re SunPower

10 Corporation Shareholder Derivative Litigation, Lead Case No. C 09-05731-HRL, is hereafter filed 11 in the Court or transferred here from another court, this Court requests the assistance of counsel in 12 calling to the attention of the clerk of the Court the filing or transfer of any case which might 13 properly be consolidated as part of the In re SunPower Corporation Shareholder Derivative 14 Litigation, Lead Case No. C 09-05731-HRL, and counsel are to assist in assuring that counsel in 15 subsequent actions receive notice of this Order. 16 15. By agreeing to this stipulation, the parties do not consent to the jurisdiction of the

17 magistrate judge. 18 16. Defendants' counsel shall appear for and accept service on behalf of all defendants

19 not already served. 20 DATED: December 30, 2009 21 22 23 24 25 26 27 28 ROBBINS UMEDA LLP MARC M. UMEDA GEORGE C. AGUILAR ARSHAN AMIRI DAVID L. MARTIN s/ Marc M. Umeda MARC M. UMEDA 600 B Street, Suite 1900 San Diego, CA 92101 Telephone: [phone] Facsimile: [phone] [Proposed] Co-Lead Counsel and Counsel for Plaintiff Richard Logan -4STIP. AND [PROPOSED] ORDER RE CONSOLIDATING ACTIONS, APPOINTING LEAD PLAINTIFFS AND LEAD COUNSEL, SCHEDULING, AND RELATED MATTERS; CASE NO. CV 09-05731 HRL

1 DATED: December 30, 2009 2 3 4 5 6 7 8 9 DATED: December 30, 2009 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

JOHNSON BOTTINI, LLP FRANK JOHNSON FRANCIS A. BOTTINI, JR. BRETT M. WEAVER s/ Frank Johnson FRANK JOHNSON 501 W. Broadway, Suite 1720 San Diego, CA 92101 Telephone: [phone] Facsimile: [phone] [Proposed] Co-Lead Counsel and Counsel for Plaintiff David Clarke MORRISON & FOERSTER LLP JORDAN ETH JUDSON E. LOBDELL s/ Jordan Eth JORDAN ETH 425 Market Street San Francisco, CA 94105-2482 Telephone: [phone] Facsimile: [phone] Counsel for defendants Thomas H. Werner, Thurman J. Rodgers, W. Steve Albrecht, Betsy S. Atkins, Uwe-Ernst Bufe, Thomas R. McDaniel, Pat Wood, III, Dennis V. Arriola, Emmanuel T. Hernandez, Daniel S. Shugar, Douglas J. Richards, Bruce R. Ledesma, Marty T. Reese, and nominal defendant SunPower Corporation *** ORDER

PURSUANT TO STIPULATION, IT IS SO ORDERED.

January 4, 2010 DATED
450960_3

HONORABLE HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE

-5STIP. AND [PROPOSED] ORDER RE CONSOLIDATING ACTIONS, APPOINTING LEAD PLAINTIFFS AND LEAD COUNSEL, SCHEDULING, AND RELATED MATTERS; CASE NO. CV 09-05731 HRL

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I, Jordan Eth, am the ECF User whose ID and password are being used to file this

2 Stipulation and [Proposed] Order Regarding Consolidating Actions, Appointing Lead Plaintiffs 3 and Lead Counsel, Scheduling, and Related Matters. In compliance with General Order No. 45, 4 X.B., I hereby attest that Frank Johnson and Mark M. Umeda have concurred in this filing. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6STIP. AND [PROPOSED] ORDER RE CONSOLIDATING ACTIONS, APPOINTING LEAD PLAINTIFFS AND LEAD COUNSEL, SCHEDULING, AND RELATED MATTERS; CASE NO. CV 09-05731 HRL

/s/ Jordan Eth JORDAN ETH