Kishtagari v. Geron Corporation et al

Filing 88

ORDER re (17 in 3:15-cv-02989-CRB) STIPULATION WITH PROPOSED ORDER Regarding Consolidation and Stay of Related Derivative Action filed by Geron Corporation, el al. The DiLaura Action (C-15-2989CRB) and the Haddock Action (C-15-30 07CRB) shall be consolidated in a single Derivative action (the Consolidated Federal Derivative Action). Plaintiff and Ms. Haddock shall be appointed Lead Plaintiffs in the Consolidated Federal Derivative Action and The Shuman Law Firm shall serve as Lead Counsel. The consolidated federal derivative action shall be stayed for 150 days (1/15/2016). Signed by Judge Charles R. Breyer on 8/14/2015. (beS, COURT STAFF) (Filed on 8/17/2015)

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COOLEY LLP
JOHN C. DWYER (136533) ([e-mail])
BRETT DE JARNETTE (292919) ([e-mail])
3175 Hanover Street
Palo Alto, CA 94304
Telephone:
[phone]
Facsimile:
[phone]
COOLEY LLP
RYAN E. BLAIR (246724) ([e-mail])
4401 Eastgate Mall
San Diego, CA 92121
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendants
JOHN A. SCARLETT, DANIEL M. RADBURY,
KARIN EASTHAM, V. BRYAN LAWLIS, HOYOUNG HUH,
SUSAN M. MOLINEAUX, ROBERT J. SPIEGEL, and
Nominal Defendant GERON CORPORATION

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[Additional counsel on signature page]
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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RICHARD DILAURA derivatively on
behalf of GERON CORPORATION,
Plaintiff,

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STIPULATION AND ORDER REGARDING
CONSOLIDATION AND STAY OF RELATED
DERIVATIVE ACTIONS

v.
JOHN A. SCARLETT, DANIEL M.
BRADBURY, KARIN EASTHAM, V.
BRYAN LAWLIS, HOYOUNG HUH,
SUSAN M. MOLINEAUX, ROBERT J.
SPIEGEL,
Defendants,

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Case No. 4:15-cv-02989-CRB

– and –
GERON CORPORATION,
Nominal Defendant.

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COOLEY LLP
ATTO RNEY S AT LAW
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STIPULATION AND [PROPOSED] ORDER RE
CONSOL. AND STAY OF DERIV. ACTIONS
CASE NO. 4:15-CV-02989-CRB

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Plaintiff Richard DiLaura (“Plaintiff”), defendants John A. Scarlett, Daniel M. Radbury,

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Karin Eastham, V. Bryan Lawlis, Hoyoung Huh, Susan M. Molineaux, and Robert J. Spiegel (the

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“Individual Defendants”), and nominal defendant Geron Corporation (“Geron” or the

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“Company,” and together with the Individual Defendants and Plaintiff, the “Parties”), by and

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through their respective counsel, hereby stipulate and agree as follows:

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WHEREAS, on June 26, 2015, Plaintiff filed a derivative complaint, captioned DiLaura v.

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Scarlett, et al., N.D. Cal. Case No. 3:15-cv-02989-DMR (the “DiLaura Action”), for breach of

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fiduciary duty and unjust enrichment, asserting claims derivatively on behalf of Geron against the

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Individual Defendants;

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WHEREAS, on June 29, 2015, Adrianne Haddock filed a second derivative complaint,

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captioned Haddock v. Scarlett, et al., N.D. Cal. Case No. 3:15-cv-03007-JCS (the “Haddock

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Action”), asserting claims identical to those in the DiLaura Action derivatively on behalf of

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Geron against the Individual Defendants;

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WHEREAS, Plaintiff in the DiLaura Action and Ms. Haddock in the Haddock Action are
represented by the same counsel;
WHEREAS, on August 11, 2015, the DiLaura Action and the Haddock Action were
reassigned to this Court;

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WHEREAS, a related shareholder derivative complaint, captioned Oriente v. Scarlett, et

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al., Sup. Ct. Case No. CIV528121, was previously filed on April 21, 2014 and is pending before

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the Superior Court of the State of California, County of San Mateo (the “State Derivative

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Action”);

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WHEREAS two factually related federal securities class actions were filed in this Court

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against Geron and certain of the Individual Defendants and have been consolidated into one

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action captioned In re Geron Corporation Securities Litigation, N.D. Cal. Case No. 3:14-CV-

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01224-CRB (the "Federal Securities Class Action");

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WHEREAS, the State Derivative Action has been stayed pending further developments in
the Federal Securities Class Action;

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STIPULATION AND [PROPOSED] ORDER RE
CONSOL. AND STAY OF DERIV. ACTIONS
CASE NO. 4:15-CV-02989-CRB

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WHEREAS, subsequent to (1) the Court’s April 10, 2015 ruling on the motion to dismiss

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in the Federal Securities Class Action, and (2) Defendants’ filing of a motion for leave to file a

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motion for reconsideration of the Court’s ruling on the motion to dismiss (“Motion for Leave”),

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which remains pending, the parties in the Federal Securities Class Action have agreed to mediate

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the Federal Securities Class Action before the Honorable Layn Phillips on November 2, 2015

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(the “Mediation”);

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WHEREAS the Parties have met and conferred concerning the most efficient manner in
which to litigate the derivative claims brought on Geron's behalf;

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WHEREAS the Parties agree that the interests of efficient and effective case management

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would best be served by consolidating the DiLaura Action and the Haddock Action and staying

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all proceedings and continuing all response dates in both actions for one hundred fifty (150) days

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to allow for further developments in the Federal Securities Class Action including, but not limited

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to, the Mediation and the Court’s ruling on the Motion for Leave, and by sharing discovery

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generated in the Federal Securities Class Action, if any, with Plaintiff and Ms. Haddock;

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NOW, THEREFORE, it is hereby stipulated and agreed by and between the Parties,
through their respective counsel of record, that:
1.

The DiLaura Action and the Haddock Action shall be consolidated in a single

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consolidated derivative action (the “Consolidated Federal Derivative Action”), and any

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subsequent shareholder derivative actions filed in or transferred to this Court that involve

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questions of law or fact similar to those contained in these actions shall be automatically

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consolidated with the Consolidated Federal Derivative Action and the instant Order shall apply.

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2.

Plaintiff and Ms. Haddock shall be appointed Lead Plaintiffs in the Consolidated

Federal Derivative Action and The Shuman Law Firm shall serve as Lead Counsel;
3.

The Consolidated Federal Derivative Action shall be stayed for one hundred fifty

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(150) days upon entry of the Order granting this stipulation. Upon expiration of the stay, the

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Individual Defendants and/or Geron need not respond to the complaint or any amended complaint

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until a new response date is set and/or approved by the Court.

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COOLEY LLP
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STIPULATION AND [PROPOSED] ORDER RE
CONSOL. AND STAY OF DERIV. ACTIONS
CASE NO. 4:15-CV-02989-CRB

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Notwithstanding the stay, Lead Plaintiffs may file an amended complaint, but the

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Individual Defendants and/or Geron need not answer, move or otherwise respond to any such

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amended complaint during the pendency of the stay.

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5.

Should discovery proceed in the Federal Securities Class Action, subject to entry

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of an appropriate confidentiality protective order, the Individual Defendants and/or Geron will

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provide Lead Plaintiffs, concurrently with any production (formal or informal) in the Federal

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Securities Class Action: (i) copies of all documents and written responses to discovery requests

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produced to the Federal Securities Class Action plaintiff in the form and manner in which such

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documents are produced to plaintiffs in the Federal Securities Class Action; (ii) any written

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agreements among the parties in the Federal Securities Class Action regarding the scope of

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discovery; and (iii) transcripts of all depositions taken in the Federal Securities Class Action.

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This stipulation is intended to facilitate coordination and to avoid, to the extent practicable,

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duplicative discovery.

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6.

Prior to a judicial determination that Lead Plaintiffs have adequately pleaded

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demand futility under Delaware law and Federal Rule of Civil Procedure 23.1, the Parties agree

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that, absent a court order, documents and information obtained pursuant to this stipulation shall

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not be used to amend Lead Plaintiffs’ complaint and shall be protected pursuant to Federal Rule

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of Evidence 408.

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COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO

4.

STIPULATION AND [PROPOSED] ORDER RE
CONSOL. AND STAY OF DERIV. ACTIONS
CASE NO. 4:15-CV-02989-CRB

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The stay of this action may be lifted upon motion of any party or by stipulation of

the Parties, or as otherwise ordered by this Court.
IT IS SO STIPULATED.
Dated: August 13, 2015

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COOLEY LLP
JOHN C. DWYER (136533)
RYAN E. BLAIR (246724)
BRETT H. DE JARNETTE (292919)

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/s/ Ryan E. Blair
Ryan E. Blair (246724)

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Attorneys for Defendants JOHN A. SCARLETT,
DANIEL M. RADBURY, KARIN EASTHAM,
V. BRYAN LAWLIS, HOYOUNG HUH,
SUSAN M. MOLINEAUX, ROBERT J.
SPIEGEL, and Nominal Defendant GERON
CORPORATION

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Dated: August 13, 2015

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SPARER LAW GROUP
ALAN W. SPARER (No. 104921)
MARC HABER (No. 192981)
100 Pine Street, 33rd Floor
San Francisco, California 94111-5128
Telephone:
[phone]
Facsimile:
[phone]
Email:
[e-mail]
[e-mail]
THE SHUMAN LAW FIRM
KIP B. SHUMAN (No. 145842)
885 Arapahoe Avenue
Boulder, CO 80302
Telephone:
[phone]
Facsimile:
[phone]
Email:
[e-mail]

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/s/ Kip B. Shuman
Kip B. Shuman (145842)

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Attorneys for Plaintiffs RICHARD DILAURA and
ADRIANNE HADDOCK

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IT IS SO ORDERED.
Dated: August 14, 2015

__________________________________
Honorable Charles R. Breyer
United States District Court Judge

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COOLEY LLP
ATTO RNEY S AT LAW
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STIPULATION AND [PROPOSED] ORDER RE
CONSOL. AND STAY OF DERIV. ACTIONS
CASE NO. 4:15-CV-02989-CRB