Donnelly v. Miller et al

Filing 8

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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JOHNSON & WEAVER, LLP
Frank J. Johnson (SBN 174882)
[e-mail]
Shawn E. Fields (SBN 255267)
[e-mail]
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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[Additional Counsel Listed on Signature Page]

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RALPH SARACENI, derivatively on
behalf of POLYCOM, INC.,

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Plaintiff,

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v.
ANDREW M. MILLER, BETSY S.
ATKINS, JOHN A. KELLEY, D. SCOTT
MERCER, WILLIAM A. OWENS, and
KEVIN T. PARKER,

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3:13-cv-03880-SC

STIPULATION AND [PROPOSED]
ORDER CONSOLIDATING ACTIONS
AND APPOINTING LEAD COUNSEL
Case Filed: August 21, 2013

Defendants,

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Case No.:

and
POLYCOM, INC.,
Nominal Defendant.

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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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JAMES DONNELLY, derivatively on
behalf of POLYCOM, INC.,

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Plaintiff,

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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,

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Case No.:

and
POLYCOM, INC.,
Nominal Defendant.

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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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WHEREAS, there are presently two shareholder derivative actions against certain

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current and former directors and officers of Polycom, Inc. “(“Polycom”): Saraceni v. Miller et

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al., Case No. 3:13-cv-03880-SC, currently pending before this Court (the “Saraceni Derivative

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Action”); and Donnelly v. Miller et al., Case No. 5:13-cv-04810-PSG, currently pending in the

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United States District Court for the Northern District of California, and initially/currently

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assigned to Magistrate Judge Paul Singh Grewal (the “Donnelly Derivative Action”)

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(collectively, “the Polycom Derivative Actions”);

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WHEREAS, pursuant to the Court’s September 13, 2013 Order (Document No. 18),

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the Saraceni Derivative Action has been related to a class action filed under the federal

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securities laws currently pending before this Court: Neal v. Polycom, Inc. et al., Case No.

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3:13-cv-03476-SC (the “Neal Class Action”);

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WHEREAS, Polycom, Eric Brown, and Sayed Darwish have filed an Administrative

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Motion to Relate the Donnelly Derivative Action to the Neal Class Action and the Saraceni

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Derivative Action, pursuant to which it has requested that the Donnelly Derivative Action be

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reassigned to The Honorable Samuel Conti;

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WHEREAS, in an effort to assure consistent rulings and decisions and the avoidance

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of unnecessary duplication of effort, the undersigned counsel for the parties in the Polycom

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Derivative Actions submit this stipulation consolidating actions; and

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WHEREAS, Johnson & Weaver, LLP seeks to be designated as Lead Counsel in the

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Polycom Derivative Actions, once consolidated, and Defendants take no position with respect

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to such designation.

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WHEREFORE, the parties, through their undersigned counsel, hereby agree,

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stipulate, and respectfully request that the Court enter an Order as follows:

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//

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//

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//

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//
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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1.

The following actions shall be consolidated for all purposes, including pre-trial

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proceedings and trial:1

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Case Name

Case No.

Filing Date

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Saraceni v. Miller et al.

3:13-cv-03880-SC

August 21, 2013

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Donnelly v. Miller et al.

5:13-cv-04810-PSG

October 16, 2013

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2.

Every pleading filed in these consolidated actions, or in any separate action

included herein, must bear the following caption:

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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IN RE POLYCOM, INC. DERIVATIVE
LITIGATION

Lead Case No.: 3:13-cv-03880-SC
(Derivative Action)

This Document Relates To:

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ALL ACTIONS.

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3.

Case No. 3:13-cv-03880-SC.

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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: [phone]
Facsimile: [phone]

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5.

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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

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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

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make all work assignments in such manner as to facilitate the orderly and efficient prosecution

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of this litigation and to avoid duplicative or unproductive effort.

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6.

The parties agree that plaintiffs’ Lead Counsel will be responsible for

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coordinating all activities and appearances on behalf of plaintiffs and for the dissemination of

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notices and orders of this Court.

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discovery, or other pre-trial or trial proceedings will be initiated or filed by any plaintiffs

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except through plaintiffs’ Lead Counsel.

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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.
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This Order shall apply to each purported derivative action arising out of the

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same or substantially the same transactions or events as the Polycom Derivative Actions,

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which is subsequently filed in, removed to, or transferred to this Court.

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9.

When a case that properly belongs as part of In re Polycom, Inc. Derivative

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Litigation, Lead Case No. 3:13-cv-03880-SC, is hereafter filed in this Court or transferred here

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from another court, counsel shall promptly call to the attention of the Clerk of the Court the

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filing or transfer of any case that might properly be consolidated as part of In re Polycom, Inc.

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Derivative Litigation, Lead Case No. 3:13-cv-03880-SC.

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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

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into this action, or to the complaint in any action subsequently

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consolidated into this action, other than an amended or consolidated

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complaint (or complaint subsequently designated as the operative

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complaint);

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(b)

Within thirty (30) days of the entrance of an order consolidating the
Polycom Derivative Actions, plaintiffs in this action shall file an

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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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amended or consolidated complaint (or designate an operative

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complaint) in this action;

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(c)

Within ten (10) days of plaintiffs filing of an amended or consolidated

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complaint (or designation of an operative complaint) in this action,

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plaintiffs’ counsel and counsel for Defendants shall meet and confer

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regarding a mutually agreeable schedule and dates by which defendants

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must answer, move to dismiss, or otherwise respond to the amended or

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consolidated (or operative) complaint and file a stipulated briefing

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schedule with the Court for approval; and

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(d)

The Initial Case Management Conference in the Donnelly Derivative

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Action, currently scheduled for January 28, 2014, and the additional

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deadlines set forth in the Order Setting Initial Case Management

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Conference and ADR Deadlines (dated October 17, 2013), are hereby

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vacated, and the Initial Case Management Conference in the

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consolidated action shall instead be set for December 20, 2013, at 10:00

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a.m., the date and time of the currently scheduled Initial Case

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Management Conference in the Saraceni Derivative Action.

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IT IS SO STIPULATED.

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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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Dated: October 29, 2013

JOHNSON & WEAVER, LLP
FRANK J. JOHNSON
SHAWN E. FIELDS

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By:

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s/ Frank J. Johnson
FRANK J. JOHNSON
110 West “A” Street, Suite 750
San Diego, CA 92101
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

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Attorneys for Plaintiffs Ralph Saraceni and
James Donnelly

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Dated: October 29, 2013

WILSON SONSINI GOODRICH &
ROSATI, PC
KEITH E. EGGLETON
KELLEY M. KINNEY

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By:

s/ Kelley M. Kinney
KELLEY M. KINNEY
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
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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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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Dated: October 29, 2013

MORRISON & FOERSTER LLP
PAUL T. FRIEDMAN
PHILIP T. BESIROF

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s/ Philip T. Besirof
PHILIP T. BESIROF

By:

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

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Attorneys for Defendant Andrew M. Miller

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I am the ECF user whose identification and password are being used to file the

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foregoing Stipulation and [Proposed] Order Consolidating Actions and Appointing Lead

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Counsel. In compliance with Local Rule 5-1(i)(3), I hereby attest that concurrence in the

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filing of this document has been obtained.

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Dated: October 29, 2013

s/ Frank J. Johsnon
FRANK J. JOHNSON (SBN 174882)

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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onti

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Judge S

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NO

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HON. SAMUEL CONTI
UNITED STATES DISTRICT JUDGE

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UNIT
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10/31
Dated: ____________________, 2013

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STIPULATION AND [PROPOSED] ORDER CONSOLIDATING ACTIONS AND APPOINTING LEAD
COUNSEL CASE NOS.; 3:13-cv-03880-SC, 5:13-cv-04810-PSG