Westley et al v. Oclaro, Inc. et al
Filing
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STIPULATION AND ORDER STAYING PROCEEDINGS re (25 in 3:11-cv-03176-EMC) Stipulation filed by Oclaro, Inc. CMC reset to 3/23/12. Signed by Judge Edward M. Chen on 11/29/11. (bpf, COURT STAFF) (Filed on 11/29/2011)
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GIDON M. CAINE (Cal. State Bar No. 188110)
ALSTON & BIRD LLP
275 Middlefield Road
Suite 150
Menlo Park, California 94025-4008
Telephone: (650) 838-2000
Facsimile: (650) 838-2001
gidon.caine@alston.com
Jessica P. Corley (pro hac vice)
Elizabeth P. Skola (pro hac vice)
ALSTON & BIRD LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Telephone: (404) 881-7000
Facsimile: (404) 881-7777
jessica.corley@alston.com
elizabeth.skola@alston.com
Attorneys for Nominal Defendant
OCLARO, INC.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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IN RE OCLARO, INC. DERIVATIVE
LITIGATION
This Document Relates to:
ALL ACTIONS
Lead Case No. 11-cv-03176-EMC
(Derivative Action)
STIPULATION AND [PROPOSED]
ORDER STAYING PROCEEDINGS
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STIPULATION AND [PROPOSED] ORDER STAYING PROCEEDINGS
CASE NO. 11-CV-03668-EMC
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WHEREAS, between June 27, 2011 and July 7, 2011, three related shareholder derivative
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actions, Guindani v. Couder, No. 3:11-cv-03176-PSG (N.D. Cal. filed June 27, 2011), Coney v.
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Couder, No. 3:11-cv-03214-HRL (N.D. Cal. filed June 28, 2011), and Braman v. Couillaud, No.
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3:11-cv-03322-RS (N.D. Cal. filed July 7, 2011) (collectively, the “Oclaro Derivative Litigation”),
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were filed in this Court against nominal defendants Oclaro, Inc. (“Oclaro”) and certain of its officers
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and directors (collectively, “defendants”);
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WHEREAS, on July 20, 2011, the Court issued a separate order consolidating the Oclaro
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Derivative Litigation under the caption In re Oclaro, Inc. Derivative Litigation, No. 11-cv-03176-
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EMC;
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WHEREAS, the Oclaro Derivative Litigation involved many of the same parties and events
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as a putative class action that was filed in this Court on May 19, 2011, Westley v. Oclaro, Inc., No.
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3:11-cv-02448-EMC (N.D. Cal.) (“Oclaro Securities Class Action”);
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WHEREAS, lead plaintiff in the Oclaro Derivative Action intends to file a consolidated or
amended complaint in that action;
WHEREAS, the defendants intend to file a motion to dismiss the consolidated or amended
complaint in the Oclaro Derivative Action;
WHEREAS, there is an overlap in subject matter between the Oclaro Derivative Litigation
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and the Oclaro Securities Class Action such that the resolution of the defendants’ motion to dismiss
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in the Oclaro Securities Class Action may impact the Oclaro Derivative Litigation;
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WHEREAS, based upon the circumstances unique to this action and in order to avoid the
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unnecessary expenditure of judicial resources or effort by the parties in this action and the Court
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prior to the resolution of the motion to dismiss in the Oclaro Securities Class Action, the parties to
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the Oclaro Derivative Action have agreed, subject to this Court’s approval, to a stay of all
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proceedings, including motions practice and discovery, in this action until such time as the Court has
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issued an order ruling on the defendants’ motion to dismiss in the Oclaro Securities Class Action;
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WHEREAS, a related shareholder derivative action styled, Moskal v. Couder, et al., No. 111-cv-202880 (State Court Derivative Action) is pending in Santa Clara Superior Court and the
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STIPULATION AND [PROPOSED] ORDER STAYING PROCEEDINGS
CASE NO. 11-CV-03176-EMC
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plaintiff in that case has similarly agreed to a stay of the proceedings pending the outcome of
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defendants’ motion to dismiss in the Oclaro Securities Class Action;
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WHEREAS, the parties agree that, at any time during which this case is stayed pursuant to
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this Order, any party may file a motion with the Court seeking to lift the stay, which may be opposed
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by any other party; and
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WHEREAS, this Stipulation and Order is without prejudice to, or waiver of any rights,
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arguments, or defenses otherwise available to the parties in this action, including, but not limited to,
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the right to revisit the timing of the below-referenced pleadings and motions once the Court has
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issued an order ruling on the defendants’ motion to dismiss in the Oclaro Securities Class Action.
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NOW THEREFORE, the undersigned parties, by and through their counsel of record, hereby
stipulate as follows:
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All proceedings, including motions practice and discovery, in In re Oclaro, Inc.
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Derivative Litigation, No. 03-cv-03176-EMC (N.D. Cal.) are hereby stayed until such time as (a) the
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defendants file an answer to any complaint in the Oclaro Securities Class Action; or (b) the Oclaro
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Securities Class Action is dismissed in its entirety with prejudice.
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2.
The Case Management Conference in the Oclaro Derivative Litigation, currently
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scheduled for December 2, 2011, is hereby adjourned until such time as (a) thirty (30) days after the
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Court issues an order denying in any part defendants’ motion to dismiss the Oclaro Securities Class
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Action; (b) thirty (30) days after the Oclaro Securities Class Action is dismissed in its entirety with
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prejudice; or (c) to such other date and time as the Court shall order.
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3.
The deadline for the Joint Case Management Conference Statement, currently set for
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November 23, 2011, is hereby adjourned. The Joint Case Management Conference Statement shall
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be due one week prior to the rescheduled Case Management Conference.
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4.
To facilitate coordination and to avoid duplicative discovery, subject to entry of an
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appropriate protective order in the Oclaro Securities Class Action and plaintiff’s agreement to be
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bound by the terms of such protective order, defendants will provide plaintiffs in the Oclaro
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Derivative Action, concurrently with any production (formal or informal) in the Oclaro Securities
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STIPULATION AND [PROPOSED] ORDER STAYING PROCEEDINGS
CASE NO. 11-CV-03176-EMC
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Class Action or State Court Derivative Action: (i) copies of all documents and written responses to
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discovery requests produced to the Oclaro Securities Class Action plaintiffs or State Court
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Derivative Action plaintiff in the form and manner in which such documents are produced to
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plaintiffs in the Oclaro Securities Class Action or plaintiff in the State Court Derivative Action; (ii)
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any written agreements regarding the scope of discovery in the Oclaro Securities Class Action or the
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State Court Derivative Action; (iii) all deposition transcripts; and (iv) their consent to the plaintiffs
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in the Oclaro Derivative Action attending any depositions conducted in the Oclaro Securities Class
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Action or the State Court Derivative Action. The parties shall meet and confer in good faith
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regarding any additional discovery they may wish to conduct in the Oclaro Derivative Action.
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No information obtained exclusively by operation of this stipulation shall be included
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by the plaintiffs in the Oclaro Derivative Action in any complaint or pleading, unless and until the
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Court has ruled that they have adequately pled demand futility or entered an order permitting the use
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of such information in the pleadings or permitting discovery to proceed prior to a finding of demand
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futility. Plaintiffs expressly reserve their right to move for such an order and the defendants reserve
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the right to oppose such motion.
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6.
At any time during which this case is stayed pursuant to Order, a party may file a
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motion with the Court seeking to lift the stay, which may be opposed by any other party.
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IT IS SO STIPULATED.
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ALSTON & BIRD LLP
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DATED: Menlo Park, California
November 23, 2011
By: _s/ Gidon M. Caine___________
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GIDON M. CAINE (Cal. State Bar No. 188110)
275 Middlefield Road
Suite 150
Menlo Park, California 94025-4008
Telephone: (650) 838-2000
Facsimile: (650) 838-2001
gidon.caine@alston.com
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and
JESSICA P. CORLEY (pro hac vice)
ELIZABETH P. SKOLA (pro hac vice)
One Atlantic Center
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STIPULATION AND [PROPOSED] ORDER STAYING PROCEEDINGS
CASE NO. 11-CV-03176-EMC
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Telephone: (404) 881-7000
Facsimile: (404) 881-7777
jessica.corley@alston.com
elizabeth.skola@alston.com
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Counsel for Nominal Defendant Oclaro, Inc.
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JOHNSON & WEAVER, LLP
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By: _s/ Frank J. Johnson___________
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FRANK J. JOHNSON (Cal. State Bar No.
174882)
KEITH M. COCHRAN (Cal. State Bar No.
254346)
110 West A Street
Suite 750
San Diego, California 92101
Telephone: (619) 230-0063
Facsimile: (619) 255-1856
frankj@johnsonandweaver.com
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Counsel for Lead Plaintiff
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DATED: San Diego, California
November 23, 2011
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SIGNATURE ATTESTAION
I, Gidon M. Caine, am the ECF User whose ID and password are being used to file this
Stipulation and Proposed Order Staying Proceedings. In compliance with General Order No. 45,
X(B) regarding signatures, I hereby attest that Frank J. Johnson has concurred in this filing.
s/ Gidon M. Caine
GIDON M. CAINE
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PURSUANT TO STIPULATION, IT IS SO ORDERED.
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S
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dward
Judge E
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NO
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DERED
SO OR ED
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___________
The Hon. Edward M. Chen
United States District Judge
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DATED: San Francisco, California
__________
S DISTRICT
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UNIT
ED
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The 12/2/11 CMC is reset to 3/23/12
at 9:00 a.m. A joint CMC
Statement shall be filed by 3/16/12.
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OF
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STIPULATION AND [PROPOSED] ORDER STAYING PROCEEDINGS
CASE NO. 11-CV-03176-EMC
D IS T IC T
R
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