Saraceni v. Miller et al

Filing 46

STIPULATION AND ORDER Regarding Plaintiffs' Filing of An Amended Complaint and Setting Briefing Schedule for Defendants' Response Thereto. Motions terminated: 37 MOTION to Dismiss Verified Shareholder Derivative Complai nt; Memorandum of Points and Authorities in Support, 40 MOTION to Dismiss Plaintiffs' Verified Shareholder Derivative Complaint; Memorandum of Points and Authorities in Support Thereof. Case Management Conference set for 8/22/2014 10:00 AM in Courtroom 1, 17th Floor, San Francisco. Signed by Judge Samuel Conti on 03/27/2014. (tmi, COURT STAFF) (Filed on 3/27/2014)

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KEITH E. EGGLETON, State Bar No. 159842
Email: [e-mail]
RODNEY G. STRICKLAND, State Bar No. 161934
Email: [e-mail]
KELLEY M. KINNEY, State Bar No. 216823
Email: [e-mail]
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendants
Betsy S. Atkins, John A. Kelley, D. Scott Mercer,
William A. Owens, Kevin T. Parker
and Nominal Defendant Polycom, Inc.

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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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IN RE POLYCOM, INC. DERIVATIVE
LITIGATION,
This Document Relates To:
ALL ACTIONS

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STIPULATION AND [PROPOSED] ORDER RE:
FILING OF AMENDED COMPLAINT & BRIEFING
SCHEDULE IN RESPONSE THERETO
LEAD CASE NO.: 3:13-CV-3880-SC

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Lead Case No.: 3:13-cv-3880-SC
(Derivative Action)
STIPULATION AND [PROPOSED]
ORDER REGARDING
PLAINTIFFS’ FILING OF AN
AMENDED COMPLAINT AND
SETTING BRIEFING SCHEDULE
FOR DEFENDANTS’ RESPONSE
THERETO

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Pursuant to Rule 15 of the Federal Rules of Civil Procedure and N.D. Cal. Civil Local

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Rules 6-2 and 7-12, the parties submit the following Stipulation and [Proposed] Order through

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their respective counsel of record.

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WHEREAS, plaintiff Ralph Saraceni filed a shareholder derivative complaint against

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defendants Andrew M. Miller, Betsy S. Atkins, John A. Kelley, D. Scott Mercer,

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William A. Owens, and Kevin T. Parker, as well as nominal defendant Polycom, Inc.

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(collectively, “Defendants”) for violation of various state laws on August 21, 2013 (“Saraceni

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Derivative Action”) (Case No. 3:13-cv-03880-SC, ECF No. 1);

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WHEREAS, plaintiff James Donnelly filed a shareholder derivative complaint against

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Defendants for violation of various state laws on October 16, 2013 (“Donnelly Derivative

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Action”) (Case No. 3:13-cv-04810-SC, ECF No. 1);

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WHEREAS, on October 31, 2013, the Court entered an order (the “Consolidation Order”)

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which: (1) consolidated the Saraceni Derivative Action and the Donnelly Derivative Action into

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the above-captioned action (the “Consolidated Derivative Action”); (2) required plaintiffs

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Saraceni and Donnelly (together, “Plaintiffs”) to file or designate an operative complaint in the

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Consolidated Derivative Action within 30 days of the Consolidation Order; and (3) within 10

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days of such filing or designation of an operative complaint, required the parties to meet and

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confer regarding and file a mutually agreeable schedule and dates by which Defendants must

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answer, move to dismiss, or otherwise respond to the operative complaint and file a stipulated

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briefing schedule with the Court for approval (ECF No. 27);

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WHEREAS, Plaintiffs filed a notice designating the complaint filed in the Donnelly

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Derivative Action (the “Operative Complaint”) as operative in the Consolidated Derivative

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Action on November 27, 2013 (ECF No. 28);

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WHEREAS, on December 10, 2013, pursuant to the parties’ stipulation, the Court

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entered an order (the “Order Directing Briefing Schedule”) requiring Defendants to file their

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motion(s) to dismiss the Operative Complaint no later than February 7, 2014; Plaintiffs to file

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their opposition to Defendants’ motion(s) to dismiss no later than March 14, 2014; and

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Defendants to file their reply brief(s) in support of their motion(s) to dismiss no later than
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STIPULATION AND [PROPOSED] ORDER RE:
FILING OF AMENDED COMPLAINT & BRIEFING
SCHEDULE IN RESPONSE THERETO
LEAD CASE NO.: 3:13-CV-3880-SC

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March 28, 2014; and setting a hearing date on Defendants’ motion(s) to dismiss for April 18,

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2014 at 10:00 a.m. (ECF No. 36);

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WHEREAS, Defendants filed motions to dismiss the Operative Complaint on February 7,
2014 (ECF Nos. 37, 40);
WHEREAS, Plaintiffs did not file an opposition to Defendants’ motions to dismiss, but

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instead, on March 17, 2014, filed a Verified Consolidated Shareholder Derivative Complaint (the

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“Consolidated Complaint”) (ECF No. 44);

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WHEREAS, the parties have met and conferred regarding the timing of the Consolidated

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Complaint, and the claims and allegations therein, including the basis for Plaintiffs’ new Section

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14(a) and corporate waste claims relating to the Polycom director’s compensation and Polycom’s

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2012 Proxy disclosures related thereto (the “2012 Proxy-Related Allegations”);

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WHEREAS, following such discussions, Plaintiffs have agreed to withdraw the

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Consolidated Complaint, and instead file an amended complaint that shall serve as the new

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operative complaint in this action, and which shall omit the 2012 Proxy-Related Allegations;

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WHEREAS, Defendants have therefore agreed to withdraw their currently pending

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motions to dismiss the Operative Complaint as moot in light of Plaintiffs’ intent to file an

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amended complaint;

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WHEREAS, the parties have agreed to a schedule as follows:
(1)

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Allegations, no later than April 4, 2014;
(2)

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Defendants shall move to dismiss the amended complaint no later than May 23,
2014;

(3)

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Plaintiffs shall file an amended complaint, which omits the 2012 Proxy-Related

Plaintiffs shall file their opposition(s) to Defendants’ motion(s) to dismiss the
amended complaint no later than July 11, 2014;

(4)

Defendants shall file their reply brief(s) in support of their motion(s) to dismiss the
amended complaint no later than August 8, 2014; and

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STIPULATION AND [PROPOSED] ORDER RE: FILING
OF AMENDED COMPLAINT & BRIEFING SCHEDULE
IN RESPONSE THERETO
LEAD CASE NO.: 3:13-CV-3880-SC

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(5)

The hearing date for Defendants’ motion(s) to dismiss the amended complaint

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shall be set for August 22, 2014 at 10:00 a.m., or the soonest date thereafter on

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which the Court is available to hear the motion(s);

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WHEREAS, the Order Directing Briefing Schedule also set an Initial Case Management

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Conference in the Consolidated Derivative Action for April 18, 2014 at 10:00 a.m. (ECF No. 36);

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and

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WHEREAS, subject to the Court’s approval, the parties agree that the Initial Case

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Management Conference should be continued until after Defendants respond to the amended

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complaint.

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NOW, THEREFORE, subject to the Court’s approval, the parties hereby stipulate and
agree as follows:
(1)

The deadline set forth in the Order Directing Briefing Schedule requiring

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Defendants’ to file reply brief(s) in support of their motion(s) to dismiss the

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Operative Complaint by March 28, 2014 shall be vacated;

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(2)

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scheduled for April 18, 2014 at 10:00 a.m. shall be taken off calendar;
(3)

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(4)

(5)

Plaintiffs shall file their opposition(s) to Defendants’ motion(s) to dismiss the
amended complaint no later than July 11, 2014;

(6)

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Defendants shall move to dismiss the amended complaint no later than May 23,
2014;

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Plaintiffs shall file an amended complaint in the Consolidated Derivative Action,
which omits the 2012 Proxy-Related Allegations, no later than April 4, 2014;

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The hearing on Defendants’ motions to dismiss the Operative Complaint currently

Defendants shall file their reply brief(s) in support of their motion(s) to dismiss the
amended complaint no later than August 8, 2014;

(7)

The hearing date for Defendants’ motion(s) to dismiss the amended complaint will

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be set for August 22, 2014 at 10:00 a.m., or the soonest date thereafter on which

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the Court is available to hear the motion(s); and

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STIPULATION AND [PROPOSED] ORDER RE: FILING
OF AMENDED COMPLAINT & BRIEFING SCHEDULE
IN RESPONSE THERETO
LEAD CASE NO.: 3:13-CV-3880-SC

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(8)

The Initial Case Management Conference in the Consolidated Derivative Action

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currently scheduled for April 18, 2014 at 10:00 a.m. is hereby vacated, and the

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Initial Case Management Conference in the Consolidated Derivative Action shall

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instead be set for August 22, 2014 at 10:00 a.m., or to such other date and time as

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this Court may order.

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IT IS SO STIPULATED.
Dated: March 27, 2013

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Respectfully submitted,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: [phone]
Facsimile: [phone]

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By: /s/ Keith E. Eggleton
Keith E. Eggleton
[e-mail]

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Attorneys for Defendants Betsy S. Atkins, John A.
Kelley, D. Scott Mercer, William A. Owens, Kevin
T. Parker, and Nominal Defendant Polycom, Inc.

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Dated: March 27, 2013

By:

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/s/ Paul T. Friedman
Paul T. Friedman
[e-mail]

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MORRISON FOERSTER
PAUL T. FRIEDMAN
PHILIP T. BESIROF
425 Market Street
San Francisco, CA 94105-2482
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant Andrew M. Miller

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STIPULATION AND [PROPOSED] ORDER RE: FILING
OF AMENDED COMPLAINT & BRIEFING SCHEDULE
IN RESPONSE THERETO
LEAD CASE NO.: 3:13-CV-3880-SC

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Dated: March 27, 2013

By: /s/ Shawn E. Fields
Shawn E. Fields
[e-mail]

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JOHNSON & WEAVER, LLP
FRANK J. JOHNSON
SHAWN E. FIELDS
NATHAN R. HAMLER
110 West A Street, Suite 750
San Diego, CA 92101
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiffs

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I, Keith E. Eggleton, am the ECF user whose ID and password are being used to file this
Stipulation and [Proposed] Regarding Briefing Plaintiffs’ Filing of An Amended Complaint and
Setting Briefing Schedule for Defendants’ Response Thereto. In compliance with Civil Local
Rule 5-1(i)(3), I hereby attest that Paul T. Friedman, and Shawn E. Fields have concurred in
this filing.

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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S

03/27
Dated: ________, 2014

RT
U
O

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NO

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onti

amuel C

Judge S

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STIPULATION AND [PROPOSED] ORDER RE: FILING
OF AMENDED COMPLAINT & BRIEFING SCHEDULE
IN RESPONSE THERETO
LEAD CASE NO.: 3:13-CV-3880-SC

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H

ER

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FO

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R NIA

THE HONORABLE SAMUEL CONTI
United States District Judge
UNIT
ED

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ISTRIC
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[PROPOSED] ORDER

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