Sabbag v. Cinnamon et al

Filing 76

ORDER RE VOLUNTARY DISMISSAL OF COMPLAINT (FRCP 23.1(c), 41(a)(1)). Signed by Judge Maxine M. Chesney on February 23, 2012. (mmclc2, COURT STAFF) (Filed on 2/23/2012)

1 BRIAN J. ROBBINS
[e-mail]
2 GEORGE C. AGUILAR
[e-mail]
3 ASHLEY R. PALMER
[e-mail]
4 ROBBINS UMEDA LLP
600 B Street, Suite 1900
5 San Diego, California 92101
Telephone: [phone]
6 Facsimile: 619.525.3991
7 MICHAEL GOLDBERG
[e-mail]
8 GLANCY BINKOW & GOLDBERG LLP
1925 Century Park East, Suite 2100
9 Los Angeles, California 90067
10 Attorneys for Plaintiffs
Evelyn Sabbag, Vincent Cilurzo, Audrey Cilurzo,
11 Donald Triskett, Daniel Jaquez, and John R. Klein
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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EVELYN SABBAG, derivatively on Behalf of
AKEENA SOLAR, INC.

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Plaintiff,
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v.

Lead Case No.: 10-cv-002735-MMC
STIPULATION AND [PROPOSED]
ORDER RE VOLUNTARY DISMISSAL
OF COMPLAINT (FRCP 23.1(c),
41(a)(1))

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BARRY CINNAMON, GARY EFFREN,
EDWARD ROFFMAN, JON WITKIN,
GEORGE LAURO, PRADEEP JOTWANI, and
DAVID WALLACE

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Defendants,

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and

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AKEENA SOLAR, INC., a Delaware
corporation,

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Nominal Defendant.
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JOINT STIPULATION AND [PROPOSED] ORDER RE VOLUNTARY DISMISSAL
CASE NO. 5:10-CV-02735-MMC

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Plaintiffs Evelyn Sabbag, Vincent and Audrey Cilurzo, Donald Triskett, Daniel Jaquez, and

2 John R. Klein (collectively, "Plaintiffs"), Nominal Defendant Akeena Solar, Inc. ("Akeena"), and
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Defendants Barry Cinnamon, Gary Effren, Edward Roffman, Jon Witkin, George Lauro, Pradeep
Jotwani, and David Wallace, by and through their undersigned counsel, hereby stipulate as follows:

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WHEREAS, on June 22, 2010, Plaintiff Sabbag filed a shareholder derivative complaint
alleging claims for breach of fiduciary duty, abuse of control, mismanagement, waste of corporate

8 assets, unjust enrichment, and impermissible insider trading. Similar shareholder derivative complaints
9 were subsequently filed in the same court under the captions: Cilurzo v. Cinnamon, et al., Case No.
10 5:10-CV-02806-JF; Triskett v. Cinnamon, et al., Case No. 5:10-CV-02992-JF; Jaquez v. Cinnamon, et
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al., 5:10-CV-03020-JF; and Klein v. Cinnamon, et al., Case No. 5:10-CV-03387-JF;

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WHEREAS, in an Order dated August 25, 2010, the Court consolidated the Sabbag, Cilurzo,
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Triskett, Jaquez, and Klein actions for all purposes under File No. 5:10-CV-02735-JF (HRL)

15 ("Consolidated Action");
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WHEREAS, a shareholder derivative action captioned Dulgarian v. Cinnamon, et al., Case No.

17 1-10-CV-173351 ("State Derivative Action"), was filed in California Superior Court for the County of
18 Santa Clara ("State Court") on May 28, 2010, arising out of the same facts and asserting substantially
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the same allegations as the Consolidated Action;

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WHEREAS, on September 10, 2010, Plaintiffs in the Consolidated Action filed a Verified
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Consolidated Shareholder Derivative Complaint asserting State causes of action for breach of fiduciary

23 duty, unjust enrichment, and waste of corporate assets, and a federal claim against the director
24 Defendants for violation of Section 14(a) of the Securities Exchange Act of 1934;
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WHEREAS, on September 17, 2010, Defendants moved to dismiss the federal securities claim
as time-barred. Defendants also moved to dismiss, or in the alternative to stay, the State law causes of
action in light of the pending State Derivative Action;

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-1JOINT STIPULATION AND [PROPOSED] ORDER RE VOLUNTARY DISMISSAL
CASE NO. 5:10-CV-02735-MMC

WHEREAS, on October 7, 2010, the Court entered an Order appointing Robbins Umeda LLP

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2 and Glancy Binkow & Goldberg LLP as co-lead counsel;
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WHEREAS, on December 10, 2010, the Court entered an Order dismissing Plaintiffs' Section
14(a) claim as time-barred and staying the Consolidated Action in light of the pending State Derivative

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Action;
WHEREAS, the parties in the State Derivative Action reached an agreement to settle the action

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8 on behalf of all Akeena shareholders, including Plaintiffs in the Consolidated Action, and to seek
9 approval for the settlement in the State Court. In connection with this settlement, Akeena has agreed to
10 implement and maintain certain corporate governance measures;
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WHEREAS, on September 20, 2011, plaintiffs in the State Derivative Action filed an unopposed

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motion seeking: (1) preliminary approval of the terms of the proposed settlement; (2) approval of the
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form and manner of providing notice to Akeena shareholders (the "Notice"); and (3) a hearing for the

15 State Court to consider final approval of the settlement;
WHEREAS, a copy of the Stipulation of Settlement ("Stipulation") is attached hereto as Exhibit

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WHEREAS, on October 7, 2011, the State Court granted preliminary approval of the settlement
in the State Derivative Action;

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WHEREAS, in accordance with the Stipulation and preliminary approval order, Akeena caused
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the Notice to be published in the Investor's Business Daily national financial newspaper and also filed a

23 copy of the Notice with the U.S. Securities and Exchange Commission;
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WHEREAS, Plaintiffs in the Consolidated Action did not object to the settlement in the State

25 Derivative Action or to the Notice;
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-2JOINT STIPULATION AND [PROPOSED] ORDER RE VOLUNTARY DISMISSAL
CASE NO. 5:10-CV-02735-MMC

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WHEREAS, on January 27, 2012, the State Court granted final approval to the settlement and

2 entered an order of dismissal on the merits and with prejudice, captioned Final Judgment and Order of
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Dismissal with Prejudice ("Final Judgment");
WHEREAS, a copy of the Final Judgment is attached hereto as Exhibit 2;

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WHEREAS, the parties agree that during the course of the litigation of the Consolidated Action,
including all actions that comprise the Consolidated Action, the parties and their respective counsel

8 acted in good faith and abided by and fulfilled their obligations under Rule 11 of the Federal Rules of
9 Civil Procedure; and
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WHEREAS, the parties agree that it is in the best interests of Akeena and its shareholders to
seek dismissal of the Consolidated Action.

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THEREFORE, IT IS HEREBY STIPULATED AND REQUESTED by the parties, by and
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through their undersigned attorneys of record, as follows:
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Pursuant to Federal Rules of Civil Procedure sections 23.1(c) and 41(a)(1), the parties

16 respectfully request that the Court enter the attached Order dismissing the Consolidated Action.
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2.

The parties agree that each side shall bear its own attorneys' fees, costs, and expenses.

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3.

No notice of this dismissal shall be required to be given to Akeena shareholders.

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DATED: February 17, 2012

ROBBINS UMEDA LLP
BRIAN J. ROBBINS
GEORGE C. AGUILAR
ASHLEY R. PALMER
s/ George C. Aguilar
GEORGE C. AGUILAR
600 B Street, Suite 1900
San Diego, CA 92101
Telephone: [phone]
Facsimile: [phone]
GLANCY BINKOW & GOLDBERG LLP
MICHAEL GOLDBERG
MARC GODINO
1925 Century Park East, Suite 2100
-3-

JOINT STIPULATION AND [PROPOSED] ORDER RE VOLUNTARY DISMISSAL
CASE NO. 5:10-CV-02735-MMC

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Los Angeles, CA 90067
Telephone: [phone]
Facsimile: [phone]

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Co-Lead Counsel for Plaintiffs

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DATED: February 17, 2012

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MORRISON & FOERSTER LLP
JORDAN ETH
JUDSON E. LOBDELL
CRYSTAL MCKELLAR

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s/ Judson E. Lobdell
JUDSON E. LOBDELL

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425 Market Street
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendants Barry Cinnamon, Gary
Effren, Edward Roffman, Jon Witkin, George
Lauro, David Wallace, Pradeep Jotwani, and
Akeena Solar, Inc.

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E-filing attestation: I, George C. Aguilar, am the ECF User whose ID and password are being

14 used to file this Stipulation and [Proposed] Order Re Voluntary Dismissal of Complaint (FRCP 23.1(c),
15 41(a)(1). In compliance with General Order 45, X.B., I hereby attest that Judson E. Lobdell has
16 concurred in this filing.
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Dated: February 17, 2012

____s/ George C. Aguilar_______
GEORGE C. AGUILAR

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701743_2

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-4JOINT STIPULATION AND [PROPOSED] ORDER RE VOLUNTARY DISMISSAL
CASE NO. 5:10-CV-02735-MMC

ORDER

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The Court, having considered the above stipulation of the parties and the exhibits thereto, and
good cause appearing therefore, HEREBY ORDERS THAT:
The Court hereby directs the Clerk of the Court to enter the dismissal of the above-captioned

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Consolidated Action pursuant to Federal Rule of Civil Procedure 41(a). The parties shall bear their own
attorneys' fees, costs, and expenses incurred in connection with this action. No notice of the dismissal

8 shall be required to be given to Akeena's shareholders.
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The Court finds the Notice of Settlement filed in Santa Clara Superior Court Case No. 10-CV-

10 173351, which Notice informed the shareholders of Akeena Solar, Inc. of the terms of the proposed
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settlement of that action, and which settlement expressly included the voluntary dismissal of the above-

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titled federal action, constitutes sufficient notice under Rule 23.1(c) of the Federal Rules of Civil
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Procedure and, accordingly, no further notice of this dismissal need be given.
IT IS SO ORDERED.

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February 23, 2012
17 Dated: _________________
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HONORABLE MAXINE M. CHESNEY
UNITED STATES DISTRICT COURT JUDGE

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-5JOINT STIPULATION AND [PROPOSED] ORDER RE VOLUNTARY DISMISSAL
CASE NO. 5:10-CV-02735-MMC