Westley et al v. Oclaro, Inc. et al

Filing 43

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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1 2 3 4 5 6 7 8 9 10 11 12 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. 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 16 17 18 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 19 20 21 22 23 24 25 26 27 28 STIPULATION AND [PROPOSED] ORDER STAYING PROCEEDINGS CASE NO. 11-CV-03668-EMC 1 WHEREAS, between June 27, 2011 and July 7, 2011, three related shareholder derivative 2 actions, Guindani v. Couder, No. 3:11-cv-03176-PSG (N.D. Cal. filed June 27, 2011), Coney v. 3 Couder, No. 3:11-cv-03214-HRL (N.D. Cal. filed June 28, 2011), and Braman v. Couillaud, No. 4 3:11-cv-03322-RS (N.D. Cal. filed July 7, 2011) (collectively, the “Oclaro Derivative Litigation”), 5 were filed in this Court against nominal defendants Oclaro, Inc. (“Oclaro”) and certain of its officers 6 and directors (collectively, “defendants”); 7 WHEREAS, on July 20, 2011, the Court issued a separate order consolidating the Oclaro 8 Derivative Litigation under the caption In re Oclaro, Inc. Derivative Litigation, No. 11-cv-03176- 9 EMC; 10 WHEREAS, the Oclaro Derivative Litigation involved many of the same parties and events 11 as a putative class action that was filed in this Court on May 19, 2011, Westley v. Oclaro, Inc., No. 12 3:11-cv-02448-EMC (N.D. Cal.) (“Oclaro Securities Class Action”); 13 14 15 16 17 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 18 and the Oclaro Securities Class Action such that the resolution of the defendants’ motion to dismiss 19 in the Oclaro Securities Class Action may impact the Oclaro Derivative Litigation; 20 WHEREAS, based upon the circumstances unique to this action and in order to avoid the 21 unnecessary expenditure of judicial resources or effort by the parties in this action and the Court 22 prior to the resolution of the motion to dismiss in the Oclaro Securities Class Action, the parties to 23 the Oclaro Derivative Action have agreed, subject to this Court’s approval, to a stay of all 24 proceedings, including motions practice and discovery, in this action until such time as the Court has 25 issued an order ruling on the defendants’ motion to dismiss in the Oclaro Securities Class Action; 26 27 28 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 1 STIPULATION AND [PROPOSED] ORDER STAYING PROCEEDINGS CASE NO. 11-CV-03176-EMC 1 plaintiff in that case has similarly agreed to a stay of the proceedings pending the outcome of 2 defendants’ motion to dismiss in the Oclaro Securities Class Action; 3 WHEREAS, the parties agree that, at any time during which this case is stayed pursuant to 4 this Order, any party may file a motion with the Court seeking to lift the stay, which may be opposed 5 by any other party; and 6 WHEREAS, this Stipulation and Order is without prejudice to, or waiver of any rights, 7 arguments, or defenses otherwise available to the parties in this action, including, but not limited to, 8 the right to revisit the timing of the below-referenced pleadings and motions once the Court has 9 issued an order ruling on the defendants’ motion to dismiss in the Oclaro Securities Class Action. 10 11 12 NOW THEREFORE, the undersigned parties, by and through their counsel of record, hereby stipulate as follows: 1. All proceedings, including motions practice and discovery, in In re Oclaro, Inc. 13 Derivative Litigation, No. 03-cv-03176-EMC (N.D. Cal.) are hereby stayed until such time as (a) the 14 defendants file an answer to any complaint in the Oclaro Securities Class Action; or (b) the Oclaro 15 Securities Class Action is dismissed in its entirety with prejudice. 16 2. The Case Management Conference in the Oclaro Derivative Litigation, currently 17 scheduled for December 2, 2011, is hereby adjourned until such time as (a) thirty (30) days after the 18 Court issues an order denying in any part defendants’ motion to dismiss the Oclaro Securities Class 19 Action; (b) thirty (30) days after the Oclaro Securities Class Action is dismissed in its entirety with 20 prejudice; or (c) to such other date and time as the Court shall order. 21 3. The deadline for the Joint Case Management Conference Statement, currently set for 22 November 23, 2011, is hereby adjourned. The Joint Case Management Conference Statement shall 23 be due one week prior to the rescheduled Case Management Conference. 24 4. To facilitate coordination and to avoid duplicative discovery, subject to entry of an 25 appropriate protective order in the Oclaro Securities Class Action and plaintiff’s agreement to be 26 bound by the terms of such protective order, defendants will provide plaintiffs in the Oclaro 27 Derivative Action, concurrently with any production (formal or informal) in the Oclaro Securities 28 2 STIPULATION AND [PROPOSED] ORDER STAYING PROCEEDINGS CASE NO. 11-CV-03176-EMC 1 Class Action or State Court Derivative Action: (i) copies of all documents and written responses to 2 discovery requests produced to the Oclaro Securities Class Action plaintiffs or State Court 3 Derivative Action plaintiff in the form and manner in which such documents are produced to 4 plaintiffs in the Oclaro Securities Class Action or plaintiff in the State Court Derivative Action; (ii) 5 any written agreements regarding the scope of discovery in the Oclaro Securities Class Action or the 6 State Court Derivative Action; (iii) all deposition transcripts; and (iv) their consent to the plaintiffs 7 in the Oclaro Derivative Action attending any depositions conducted in the Oclaro Securities Class 8 Action or the State Court Derivative Action. The parties shall meet and confer in good faith 9 regarding any additional discovery they may wish to conduct in the Oclaro Derivative Action. 10 5. No information obtained exclusively by operation of this stipulation shall be included 11 by the plaintiffs in the Oclaro Derivative Action in any complaint or pleading, unless and until the 12 Court has ruled that they have adequately pled demand futility or entered an order permitting the use 13 of such information in the pleadings or permitting discovery to proceed prior to a finding of demand 14 futility. Plaintiffs expressly reserve their right to move for such an order and the defendants reserve 15 the right to oppose such motion. 16 6. At any time during which this case is stayed pursuant to Order, a party may file a 17 motion with the Court seeking to lift the stay, which may be opposed by any other party. 18 IT IS SO STIPULATED. 19 ALSTON & BIRD LLP 20 21 22 23 24 DATED: Menlo Park, California November 23, 2011 By: _s/ Gidon M. Caine___________ _ 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 25 26 27 28 and JESSICA P. CORLEY (pro hac vice) ELIZABETH P. SKOLA (pro hac vice) One Atlantic Center 3 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 1 2 3 4 Counsel for Nominal Defendant Oclaro, Inc. 5 JOHNSON & WEAVER, LLP 6 11 By: _s/ Frank J. Johnson___________ _ 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 12 Counsel for Lead Plaintiff 7 DATED: San Diego, California November 23, 2011 8 9 10 13 14 15 16 17 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 18 19 PURSUANT TO STIPULATION, IT IS SO ORDERED. 21 S ER N R NIA dward Judge E H 28 RT 27 NO 26 DERED SO OR ED IT IS DIFI AS MO n M. Che 4 FO 25 ___________ The Hon. Edward M. Chen United States District Judge LI 24 DATED: San Francisco, California __________ S DISTRICT TE _ C TA RT U O 23 UNIT ED 22 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. A 20 OF C STIPULATION AND [PROPOSED] ORDER STAYING PROCEEDINGS CASE NO. 11-CV-03176-EMC D IS T IC T R _

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