Saraceni v. Miller et al

Filing 27

STIPULATION AND ORDER Consolidating C13-3880 SC and C13-4810 SC and Appointing Lead Counsel. Signed by Judge Samuel Conti on 10/31/2013. (tmi, COURT STAFF) (Filed on 10/31/2013)

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5 JOHNSON & WEAVER, LLP Frank J. Johnson (SBN 174882) frankj@johnsonandweaver.com Shawn E. Fields (SBN 255267) shawnf@johnsonandweaver.com 110 West “A” Street, Suite 750 San Diego, CA 92101 Telephone: (619) 230-0063 Facsimile: (619) 255-1856 6 Attorneys for Plaintiffs 7 [Additional Counsel Listed on Signature Page] 1 2 3 4 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 RALPH SARACENI, derivatively on behalf of POLYCOM, INC., 12 Plaintiff, 13 14 15 16 v. ANDREW M. MILLER, BETSY S. ATKINS, JOHN A. KELLEY, D. SCOTT MERCER, WILLIAM A. OWENS, and KEVIN T. PARKER, 19 20 3:13-cv-03880-SC STIPULATION AND [PROPOSED] ORDER CONSOLIDATING ACTIONS AND APPOINTING LEAD COUNSEL Case Filed: August 21, 2013 Defendants, 17 18 Case No.: and POLYCOM, INC., Nominal Defendant. 21 22 23 24 25 26 27 28 STIPULATION AND [PROPOSED] ORDER CONSOLIDATING ACTIONS AND APPOINTING LEAD COUNSEL; CASE NOS. 3:13-cv-03880-SC, 5:13-cv-04810-PSG 1 JAMES DONNELLY, derivatively on behalf of POLYCOM, INC., 2 Plaintiff, 3 4 5 6 9 10 5:13-cv-04810-PSG Case Filed: October 16, 2013 v. ANDREW M. MILLER, BETSY S. ATKINS, JOHN A. KELLEY, D. SCOTT MERCER, WILLIAM A. OWENS, and KEVIN T. PARKER, Defendants, 7 8 Case No.: and POLYCOM, INC., Nominal Defendant. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATION AND [PROPOSED] ORDER CONSOLIDATING ACTIONS AND APPOINTING LEAD COUNSEL CASE NOS.; 3:13-cv-03880-SC, 5:13-cv-04810-PSG 1 WHEREAS, there are presently two shareholder derivative actions against certain 2 current and former directors and officers of Polycom, Inc. “(“Polycom”): Saraceni v. Miller et 3 al., Case No. 3:13-cv-03880-SC, currently pending before this Court (the “Saraceni Derivative 4 Action”); and Donnelly v. Miller et al., Case No. 5:13-cv-04810-PSG, currently pending in the 5 United States District Court for the Northern District of California, and initially/currently 6 assigned to Magistrate Judge Paul Singh Grewal (the “Donnelly Derivative Action”) 7 (collectively, “the Polycom Derivative Actions”); 8 WHEREAS, pursuant to the Court’s September 13, 2013 Order (Document No. 18), 9 the Saraceni Derivative Action has been related to a class action filed under the federal 10 securities laws currently pending before this Court: Neal v. Polycom, Inc. et al., Case No. 11 3:13-cv-03476-SC (the “Neal Class Action”); 12 WHEREAS, Polycom, Eric Brown, and Sayed Darwish have filed an Administrative 13 Motion to Relate the Donnelly Derivative Action to the Neal Class Action and the Saraceni 14 Derivative Action, pursuant to which it has requested that the Donnelly Derivative Action be 15 reassigned to The Honorable Samuel Conti; 16 WHEREAS, in an effort to assure consistent rulings and decisions and the avoidance 17 of unnecessary duplication of effort, the undersigned counsel for the parties in the Polycom 18 Derivative Actions submit this stipulation consolidating actions; and 19 WHEREAS, Johnson & Weaver, LLP seeks to be designated as Lead Counsel in the 20 Polycom Derivative Actions, once consolidated, and Defendants take no position with respect 21 to such designation. 22 WHEREFORE, the parties, through their undersigned counsel, hereby agree, 23 stipulate, and respectfully request that the Court enter an Order as follows: 24 // 25 // 26 // 27 // 28 // STIPULATION AND [PROPOSED] ORDER CONSOLIDATING ACTIONS AND APPOINTING LEAD COUNSEL; CASE NOS.; 3:13-cv-03880-SC, 5:13-cv-04810-PSG 1 1. The following actions shall be consolidated for all purposes, including pre-trial 2 proceedings and trial:1 3 Case Name Case No. Filing Date 4 Saraceni v. Miller et al. 3:13-cv-03880-SC August 21, 2013 5 Donnelly v. Miller et al. 5:13-cv-04810-PSG October 16, 2013 6 7 2. Every pleading filed in these consolidated actions, or in any separate action included herein, must bear the following caption: 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 12 IN RE POLYCOM, INC. DERIVATIVE LITIGATION Lead Case No.: 3:13-cv-03880-SC (Derivative Action) This Document Relates To: 13 ALL ACTIONS. 14 15 16 3. Case No. 3:13-cv-03880-SC. 17 18 4. Lead Counsel for plaintiffs for the conduct of In re Polycom, Inc. Derivative Litigation, Lead Case No. 3:13-cv-03880-SC, is designated as follows: JOHNSON & WEAVER, LLP FRANK J. JOHNSON SHAWN E. FIELDS 110 West “A” Street, Suite 750 San Diego, CA 92101 Telephone: (619) 230-0063 Facsimile: (619) 255-1856 19 20 21 22 5. 23 24 The files of these consolidated actions will be maintained in one file under Lead The parties agree that plaintiffs’ Lead Counsel has authority to speak for plaintiffs in matters regarding pre-trial procedure, trial, and settlement negotiations and shall 25 26 27 28 1 For clarity, the Neal Class Action should not be consolidated with the Saraceni Derivative Action and/or the Donnelly Derivative Action. While the actions are related under Civil Local Rule 3-12, they are not suitable for consolidation because the Neal Class Action alleges violations of the federal securities laws against Polycom, whereas the Polycom Derivative Actions bring claims purportedly on behalf of Polycom. STIPULATION AND [PROPOSED] ORDER CONSOLIDATING ACTIONS AND APPOINTING LEAD COUNSEL CASE NOS.; 3:13-cv-03880-SC, 5:13-cv-04810-PSG 1 make all work assignments in such manner as to facilitate the orderly and efficient prosecution 2 of this litigation and to avoid duplicative or unproductive effort. 3 6. The parties agree that plaintiffs’ Lead Counsel will be responsible for 4 coordinating all activities and appearances on behalf of plaintiffs and for the dissemination of 5 notices and orders of this Court. 6 discovery, or other pre-trial or trial proceedings will be initiated or filed by any plaintiffs 7 except through plaintiffs’ Lead Counsel. 8 9 10 11 7. The parties further agree that no motion, request for The parties agree that defendants’ counsel may rely upon all agreements made with plaintiffs’ Lead Counsel, or other duly authorized representative of plaintiffs’ Lead Counsel, and such agreements will be binding on plaintiffs. 8. This Order shall apply to each purported derivative action arising out of the 12 same or substantially the same transactions or events as the Polycom Derivative Actions, 13 which is subsequently filed in, removed to, or transferred to this Court. 14 9. When a case that properly belongs as part of In re Polycom, Inc. Derivative 15 Litigation, Lead Case No. 3:13-cv-03880-SC, is hereafter filed in this Court or transferred here 16 from another court, counsel shall promptly call to the attention of the Clerk of the Court the 17 filing or transfer of any case that might properly be consolidated as part of In re Polycom, Inc. 18 Derivative Litigation, Lead Case No. 3:13-cv-03880-SC. 19 20 21 10. In the interest of efficiency and avoidance of unnecessary duplication of effort or judicial resources by the Court or the parties, it is further Ordered as follows: (a) Defendants are not required to respond to either complaint consolidated 22 into this action, or to the complaint in any action subsequently 23 consolidated into this action, other than an amended or consolidated 24 complaint (or complaint subsequently designated as the operative 25 complaint); 26 27 (b) Within thirty (30) days of the entrance of an order consolidating the Polycom Derivative Actions, plaintiffs in this action shall file an 28 STIPULATION AND [PROPOSED] ORDER CONSOLIDATING ACTIONS AND APPOINTING LEAD COUNSEL CASE NOS.; 3:13-cv-03880-SC, 5:13-cv-04810-PSG 1 amended or consolidated complaint (or designate an operative 2 complaint) in this action; 3 (c) Within ten (10) days of plaintiffs filing of an amended or consolidated 4 complaint (or designation of an operative complaint) in this action, 5 plaintiffs’ counsel and counsel for Defendants shall meet and confer 6 regarding a mutually agreeable schedule and dates by which defendants 7 must answer, move to dismiss, or otherwise respond to the amended or 8 consolidated (or operative) complaint and file a stipulated briefing 9 schedule with the Court for approval; and 10 (d) The Initial Case Management Conference in the Donnelly Derivative 11 Action, currently scheduled for January 28, 2014, and the additional 12 deadlines set forth in the Order Setting Initial Case Management 13 Conference and ADR Deadlines (dated October 17, 2013), are hereby 14 vacated, and the Initial Case Management Conference in the 15 consolidated action shall instead be set for December 20, 2013, at 10:00 16 a.m., the date and time of the currently scheduled Initial Case 17 Management Conference in the Saraceni Derivative Action. 18 IT IS SO STIPULATED. 19 20 21 22 23 24 25 26 27 28 STIPULATION AND [PROPOSED] ORDER CONSOLIDATING ACTIONS AND APPOINTING LEAD COUNSEL CASE NOS.; 3:13-cv-03880-SC, 5:13-cv-04810-PSG 1 Dated: October 29, 2013 JOHNSON & WEAVER, LLP FRANK J. JOHNSON SHAWN E. FIELDS 2 3 By: 4 5 s/ Frank J. Johnson FRANK J. JOHNSON 110 West “A” Street, Suite 750 San Diego, CA 92101 Telephone: (619) 230-0063 Facsimile: (619) 255-1856 frankj@johnsonandweaver.com shawnf@johnsonandweaver.com 6 7 8 Attorneys for Plaintiffs Ralph Saraceni and James Donnelly 9 10 11 Dated: October 29, 2013 WILSON SONSINI GOODRICH & ROSATI, PC KEITH E. EGGLETON KELLEY M. KINNEY 12 13 14 15 16 17 18 19 20 21 22 By: s/ Kelley M. Kinney KELLEY M. KINNEY 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 keggleton@wsgr.com kkinney@wsgr.com Attorneys for Defendants Betsy S. Atkins, John A. Kelley, D. Scott Mercer, William A. Owens, Kevin T. Parker, and Nominal Defendant Polycom, Inc. 23 24 25 26 27 28 STIPULATION AND [PROPOSED] ORDER CONSOLIDATING ACTIONS AND APPOINTING LEAD COUNSEL CASE NOS.; 3:13-cv-03880-SC, 5:13-cv-04810-PSG 1 Dated: October 29, 2013 MORRISON & FOERSTER LLP PAUL T. FRIEDMAN PHILIP T. BESIROF 2 3 s/ Philip T. Besirof PHILIP T. BESIROF By: 4 5 7 425 Market Street San Francisco, CA 94105 Telephone: (415) 268-7444 Facsimile: (415) 268-7522 PFriedman@mofo.com 8 Attorneys for Defendant Andrew M. Miller 6 9 10 I am the ECF user whose identification and password are being used to file the 11 foregoing Stipulation and [Proposed] Order Consolidating Actions and Appointing Lead 12 Counsel. In compliance with Local Rule 5-1(i)(3), I hereby attest that concurrence in the 13 filing of this document has been obtained. 14 15 Dated: October 29, 2013 s/ Frank J. Johsnon FRANK J. JOHNSON (SBN 174882) 16 17 18 19 20 PURSUANT TO STIPULATION, IT IS SO ORDERED. ER H 28 R NIA onti FO amuel C Judge S RT 27 NO 26 HON. SAMUEL CONTI UNITED STATES DISTRICT JUDGE LI 25 UNIT ED 24 10/31 Dated: ____________________, 2013 ISTRIC ES D TC AT T RT U O 23 S 22 A 21 N F D IS T IC T O R C STIPULATION AND [PROPOSED] ORDER CONSOLIDATING ACTIONS AND APPOINTING LEAD COUNSEL CASE NOS.; 3:13-cv-03880-SC, 5:13-cv-04810-PSG

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