Steinberg et al-V-Leo Apotheker et al

Filing 10

STIPULATION AND ORDER Consolidating Shareholder Derivative Actions and Setting Schedule for Filing of a Consolidated Complaint and Further Proceedings. Signed by Judge Charles R. Breyer on 2/9/13. (mclS, COURT STAFF) (Filed on 6/6/2014)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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PHILIP RICCIARDI,

CASE NO. 12-CV-06003

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Plaintiff,
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v.
MICHAEL R. LYNCH, et al.

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Defendants,

STIPULATION AND ORDER
CONSOLIDATING SHAREHOLDER
DERIVATIVE ACTIONS AND SETTING
SCHEDULE FOR FILING OF A
CONSOLIDATED COMPLAINT AND
FURTHER PROCEEDINGS

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Judge:
Hon. Charles R. Breyer
Complaint Filed: November 26, 2012

-andHEWLETT-PACKARD COMPANY,
Nominal Defendant.

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[Caption continues on following page.]
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STIPULATION AND [PROPOSED] ORDER

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ERNESTO ESPINOZA,
Plaintiff,
v.

CASE NO. 12-CV-06025
Judge:
Hon. Charles R. Breyer
Complaint Filed: November 27, 2012

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MICHAEL R. LYNCH, et al.
Defendants,

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-andHEWLETT-PACKARD COMPANY,

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Nominal Defendant.

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ANDREA BASCHERI, et al,
Plaintiffs,
v.

CASE NO. 12-CV-06091
Judge:
Hon. Charles R. Breyer
Complaint Filed: November 30, 2012

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LEO APOTHEKER, et al.
Defendants,

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-andHEWLETT-PACKARD COMPANY,

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Nominal Defendant.

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MARTIN BERTISCH,
Plaintiff,

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v.

CASE NO. 12-CV-06123
Judge:
Hon. Charles R. Breyer
Complaint Filed: December 3, 2012

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LEO APOTHEKER, et al.
Defendants,

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-andHEWLETT-PACKARD COMPANY,

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Nominal Defendant.
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STIPULATION AND [PROPOSED] ORDER

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CITY OF BIRMINGHAM RETIREMENT
AND RELIEF SYSTEM,
Plaintiff,

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CASE NO. 12-CV-06416
Judge:
Hon. Charles R. Breyer
Complaint Filed: December 18, 2012

v.
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LEO APOTHEKER, et al.
Defendants,

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-andHEWLETT-PACKARD COMPANY,

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Nominal Defendant.
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JOSEPH TOLA,

CASE NO. 12-CV-06423
Plaintiff,

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v.

Judge:
Hon. Charles R. Breyer
Complaint Filed: December 18, 2012

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MICHAEL R. LYNCH, et al.
Defendants,

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-andHEWLETT-PACKARD COMPANY,

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Nominal Defendant.
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STIPULATION AND [PROPOSED] ORDER

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STANLEY MORRICAL,

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Plaintiff,
v.

CASE NO. 12-CV-06434
Judge:
Hon. Charles R. Breyer
Complaint Filed: December 19, 2012

MARGARET C. WHITMAN, et al.

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Defendants,

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-and7
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HEWLETT-PACKARD COMPANY,
Nominal Defendant.

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STIPULATION AND [PROPOSED] ORDER

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WHEREAS, the following seven actions are now pending in the Northern District of
California (collectively, the “HP Derivative Actions”):

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Philip Riccardi v. Michael R. Lynch et al., Case No. 12-cv-06003-CRB

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Ernesto Espinoza v. Michael R. Lynch et al., Case No. 12-cv-06025-CRB

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Andrea Bascheri et al. v. Leo Apotheker et al., Case No. 12-cv-06091-CRB
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Martin Bertisch v. Leo Apotheker et al., Case No. 12-cv-06123-CRB
City of Birmingham Retirement and Relief System v. Leo Apotheker et al.,
Case No. 12-cv-06416-CRB

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Joseph Tola v. Michael R. Lynch et al., Case No. 12-cv-06423-CRB

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Stanley Morrical v. Margaret C. Whitman et al., Case No. 12-cv-06434-CRB;

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WHEREAS, the seven HP Derivative Actions are styled as shareholder derivative actions

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on behalf of Nominal Defendant Hewlett-Packard Company (“HP”), and each asserts claims that

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arise from or relate to HP’s acquisition of Autonomy Corporation PLC in 2011;

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WHEREAS, the Court determined by order entered January 3, 2013 in the earlier-filed

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action entitled Nicolow v. Hewlett-Packard Co., Case No. 12-cv-05980-CRB, that each of the

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seven HP Derivative Actions identified above are related pursuant to Local Rule 3-12(a), and all

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have been assigned to the Honorable Charles R. Breyer;1

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WHEREAS, the HP Derivative Actions identified above all arise out of the same

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transactions and occurrences and involve the same or substantially similar issues of law and

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facts, and, therefore, should be consolidated for all purposes under Fed. R. Civ. P. 42(a);

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The Court’s January 3, 2013 Order determined that ten pending actions are related
to the earliest-filed case, which is a putative securities class action captioned Nicolow v. HewlettPackard Co., Case No. 12-cv-05980-CRB (“Nicolow”). The pending actions related to Nicolow
consist of (i) the seven HP Derivative Actions that are the subject of this Stipulation; (ii) a
putative securities class action captioned Pokoik v. Hewlett-Packard Co., Case No. 12-cv-06074CRB (“Pokoik”); (iii) an ERISA action captioned Laffen v. Hewlett-Packard Co., Case No. 12cv-06199-CRB (“Laffen”); and (iv) an ERISA action captioned Lustig v. Whitman, Case No. 12cv-06410-CRB (“Lustig”). The Nicolow, Pokoik, Laffen, and Lustig actions are not styled as
shareholder derivative actions on behalf of HP and are not subject to this Stipulation.
STIPULATION AND [PROPOSED] ORDER

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WHEREAS, counsel for plaintiffs in the above referenced actions have met and

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conferred and have agreed to a schedule for filing a motion for lead plaintiff and lead counsel;

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WHEREAS, counsel for plaintiffs, nominal defendant HP, and the undersigned

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defendants have met and conferred and have agreed to a schedule for filing a consolidated

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complaint following the appointment of lead plaintiff and lead counsel;

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WHEREAS, counsel for plaintiffs, nominal defendant HP, and the undersigned

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defendants have met and conferred and have agreed that no answers, motions, or other responses

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to the complaints (“Responses”) need be filed in the HP Derivative Actions by HP or by any

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other defendant until after the appointment of lead plaintiff and lead counsel and the filing of a

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consolidated complaint or designation of an operative complaint, as provided below;

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WHEREAS, counsel for plaintiffs, nominal defendant HP, and the undersigned

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defendants have met and conferred and have agreed to a schedule setting a date for Responses to

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the consolidated complaint and a briefing schedule for any motions filed in response to the

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consolidated complaint unless otherwise ordered by the Court pursuant to motion or stipulation;

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WHEREAS, counsel for nominal defendant HP has raised with plaintiffs’ counsel issues

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regarding a potential stay pending determination of motions to dismiss in related class actions

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and staged briefing of motions in this action and will seek to meet and confer with the parties on

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these subjects regarding a potential stipulation and/or motion schedule following the

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appointment of lead plaintiff and lead counsel.
WHEREAS, the agreed-upon schedule is not for the purpose of delay, promotes judicial

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efficiency, and will not cause prejudice to any party,

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NOW, THEREFORE, IT IS STIPULATED AND AGREED by plaintiffs and all

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defendants who have appeared in the HP Derivative Action, by and through their undersigned

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respective counsel of record, as follows:

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I.

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CONSOLIDATION OF ACTIONS
1.

The seven HP Derivative Actions identified above are hereby consolidated for all

purposes, including pretrial proceedings, trial, and appeal.

STIPULATION AND [PROPOSED] ORDER

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2.

The caption of these consolidated actions shall be "In re Hewlett-Packard

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Company Shareholder Derivative Litigation" and the files of these consolidated actions shall be

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maintained in one master file to be set by the Court. Thereafter, all cases of the original HP

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Derivative Action case files shall be closed except for the Master Docket C-12-6003CRB.

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3.

Any other actions or claims filed in or removed or transferred to this Court after

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the date of this Stipulation that (i) are styled as shareholder derivative actions or claims brought

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on behalf of nominal defendant HP; and (ii) assert claims that arise from or relate to HP’s

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acquisition of Autonomy Corporation PLC in 2011; and (iii) arise out of the same transactions

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and occurrences and involve the same or substantially similar issues of law and facts as the HP

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Derivative Actions, shall automatically be consolidated for all purposes, if and when they are

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brought to the Court's attention, together with In re Hewlett-Packard Company Shareholder

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Derivative Litigation, and the clerk shall close the file for any such later-filed actions.

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4.

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

included herein, shall bear the following caption:

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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__________________________________________
IN RE HEWLETT-PACKARD COMPANY

MASTER DOCKET

SHAREHOLDER DERIVATIVE LITIGATION

NO. C-12-6003 CRB

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___________________________________________
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THIS DOCUMENT RELATES TO:
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___________________________________________
5.

When a pleading or other filing is intended to be applicable to all actions, the

words “All Actions” shall appear immediately after or below the words “THIS DOCUMENT
RELATES TO:” in the caption set forth above. When a pleading or other filing is intended to be
applicable to less than all actions, the separate caption and docket number for each individual
action to which the pleading is intended to be applicable shall appear immediately after or below
the words “THIS DOCUMENT RELATES TO:” in the caption described above.
STIPULATION AND [PROPOSED] ORDER

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6.

When a case or claim that properly belongs as part of In re Hewlett-Packard

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Company Shareholder Derivative Litigation is filed in this Court or transferred or removed to

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this Court from another court and assigned to Judge Breyer, then following the filing of notice by

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any party to such action or by a party to In re Hewlett-Packard Company Shareholder Derivative

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Litigation in such other action and this consolidated action, and service of such notice upon all

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parties that have appeared in the affected actions, the clerk of this Court shall:

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(a)

Place a copy of this Order in the separate file for such action;

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(b)

Mail to the attorneys for the plaintiff(s) in the newly filed or transferred case a

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copy of this Order and direct that this Order be served upon or mailed to any new defendant(s) or
their counsel in the newly filed or transferred case;
(c)

Make an appropriate entry on the Master Docket. Counsel recognizes that this

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Court requests the assistance of counsel in calling to the attention of the clerk of this Court the

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filing or transfer of any case which properly might be consolidated as part of In re Hewlett-

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Packard Company Shareholder Derivative Litigation; and

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(d)

Close the separate file for such action.

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7.

Counsel for the Defendants signing this Stipulation hereby certify that: (i) service

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of process has previously been effected or waived with respect to their clients as identified on

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their signature lines below; or (ii) to the extent their clients have not otherwise been served with

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process or appeared, counsel for the Defendants signing this Stipulation are authorized to and

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hereby do waive service of process on behalf of their clients identified below, provided that such

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waiver of service and the entry into this Stipulation shall not be deemed a waiver of any rights or

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defenses of any kind, including but not limited to the ability to assert the defense of lack of

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personal jurisdiction, all of which rights and defenses are expressly reserved.

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8.

Filing of documents via the Court’s ECF system shall be deemed to satisfy the

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service requirement as to all parties who have appeared in the action and whose counsel receive

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ECF notices electronically.

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Shareholder Derivative Litigation must register for ECF and must file an appearance through the

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ECF system. Any attorneys who have been admitted pro hac vice in any of the HP Derivative

All attorneys of record in In re Hewlett-Packard Company

STIPULATION AND [PROPOSED] ORDER

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Actions shall also be deemed admitted in In re Hewlett-Packard Company Shareholder

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Derivative Litigation pursuant to the same conditions and requirements. No separate service of

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documents is required on any party who has appeared in the action but is not registered for ECF.
9.

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The terms of this Order shall not have the effect of making any person or entity a

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party to any action in which he, she, or it has not been named and properly served in accordance

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with the Federal Rules of Civil Procedure. The terms of this Order and the consolidation and

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coordination ordered herein shall not constitute a waiver by any party of any claims in or

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defenses to any of the actions.

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II.

SCHEDULE

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A.

Motions for Lead Plaintiff and Lead Counsel

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10.

The following dates shall be in effect for motions for lead plaintiff/counsel in the

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consolidated action:

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January 25, 2013:

Last Day to File Motions For Lead Plaintiff and Lead Counsel

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February 8, 2013:

Last Day to File Oppositions to Motions For Lead
Plaintiff and Lead Counsel

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February 15, 2013:

Last Day to File Replies To Any Opposition to Motions
For Lead Plaintiff and Lead Counsel

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March 1, 2013:

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B.

Existing Complaints

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11.

The parties named as defendants in the pending complaints in the HP Derivative

Hearing on Motions for Lead Plaintiff and Lead Counsel

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Actions, including HP (collectively, “Defendants”), shall not be required to answer, file motions,

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or otherwise take any action in response to any of the complaints currently on file in any of the

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HP Derivative Actions. The time for such Defendants’ answers, motions, or other responses

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shall be determined as specified in Paragraph 14 below, following the filing of a consolidated

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complaint or designation of an operative complaint, or as the Court hereafter may order. In the

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event additional actions are subsequently consolidated into In re Hewlett-Packard Company

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Shareholder Derivative Litigation, the parties named as defendants in the complaints in such

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additional actions shall not be required to answer, file motions, or otherwise take any action in
STIPULATION AND [PROPOSED] ORDER

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response to such complaints until the time specified in Paragraph 14 or as otherwise specified by

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the Court. No Defendant shall be deemed to have submitted to the jurisdiction of this Court or to

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have waived or otherwise relinquished any rights, arguments, or defenses of any kind by not

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filing an answer, motion or other response to any complaint in the consolidated action prior to

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the date specified in Paragraph 14 below or other order of the Court. Pursuant to Local Rule 6-

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1(a), this paragraph of this Stipulation shall be effective upon its filing with the Court.

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C.

Filing of a Consolidated Complaint

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12.

Lead plaintiff shall, within sixty (60) days following the entry and filing of the

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Court’s order selecting a lead plaintiff and lead counsel, serve and file a consolidated amended

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complaint or designate a previously-filed complaint as the operative complaint (the

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“Consolidated Complaint”), which will supersede all existing complaints filed in the HP

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Derivative Actions and any other action that may be consolidated herewith. To the extent any

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defendant now named in any of the HP Derivative Actions is not named in the Consolidated

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Complaint, the claims against such defendant shall be deemed dismissed without prejudice.

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Service shall be effected with respect to any named defendant by serving the Consolidated

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Complaint on that defendant’s counsel, unless such defendant has not previously been served or

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appeared, in which case service shall be affected according to the Federal Rules of Civil

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Procedure.

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13.

After the appointment of lead plaintiff and lead counsel, the parties shall submit to

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the Court any stipulations that may be reached relating to HP’s suggestions of a stay and/or the

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staging of responses to the Consolidated Complaint within ten (10) days after the filing of the

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Consolidated Complaint. If the parties do not otherwise stipulate and any party seeks to alter or

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modify the schedule for Responses established in Paragraph 14, such party shall file an

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appropriate motion with the Court seeking such relief.

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14.

Unless the Court otherwise orders pursuant to stipulation, motion, or for any other

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reason, Defendants shall file their Responses to the Consolidated Complaint within sixty (60)

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days following the filing of the Consolidated Complaint (provided, however, that the time

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prescribed by the Federal Rules of Civil Procedure shall control to the extent those Rules provide
STIPULATION AND [PROPOSED] ORDER

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for a later response date as to any Defendant who has not been served, waived service, or

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appeared in the action at the time of this Stipulation). In the event that Defendants file any

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motions directed at the Consolidated Complaint, the opposition brief shall be filed within sixty

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(60) days of the motions and the reply briefs shall be filed within thirty (30) days thereafter.

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This stipulation is without prejudice to any party’s right to move to continue any response(s) to

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the Consolidated Complaint pursuant to the federal and local rules.

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IT IS SO STIPULATED.

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DATED: February 14, 2013
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COTCHETT, PITRE & McCARTHY, LLP
By:

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/s/ Matthew K. Edling
MATTHEW K. EDLING

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JOSEPH W. COTCHETT (Cal. SBN 36324)
MARK C. MOLUMPHY (Cal. SBN 168009)
NANCI E. NISHIMURA (Cal. SBN 152621)
ARON K. LIANG (Cal. SBN 228936)
MATTHEW K. EDLING (Cal. SBN: 250940)
San Francisco Airport Office Center
840 Malcolm Road, Suite 200
Burlingame, CA 94010
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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Attorneys for Plaintiff Stanley Morrical

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STIPULATION AND [PROPOSED] ORDER

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DATED: February 14, 2013

BOTTINI & BOTTINI, INC.

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By:
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/s/ Francis A. Bottini, Jr.
FRANCIS A. BOTTINI, JR.

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7817 Ivanhoe Avenue, Suite 102
La Jolla, CA 92037
Tel: [phone]
Fax: [phone]
[e-mail]

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Attorneys for Plaintiff Andrea Bascheri and Jim Chung

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STIPULATION AND [PROPOSED] ORDER

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DATED: February 14, 2013

FINKELSTEIN THOMPSON LLP

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By:
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/s/ Rosemary M. Rivas
ROSEMARY M. RIVAS

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505 Montgomery Street, Suite 300
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
[e-mail]

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CAFFERTY CLOBES MERIWETHER &
SPRENGEL LLP
Bryan L. Clobes
1101 Market Street, Suite 2650
Philadelphia, PA 19107
Tel: [phone]
Fax: [phone]
[e-mail]

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Anthony F. Fata
30 N. LaSalle Street, Suite 3200
Chicago, Illinois 60606
Tel: [phone]
Fax: [phone]
[e-mail]

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Attorneys for Plaintiff Joseph Tola

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STIPULATION AND [PROPOSED] ORDER

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DATED: February 14, 2013

JOHNSON & WEAVER, LLP

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By:
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/s/ Brett M. Weaver
BRETT M. WEAVER

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Brett M. Weaver
110 West “A” Street, Suite 750
San Diego, CA 92101
Tel: [phone]
Fax: [phone]
[e-mail]
Attorneys for Plaintiff Martin Bertisch

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STIPULATION AND [PROPOSED] ORDER

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DATED: February 14, 2013

ROBBINS ARROYO LLP

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By:
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/s/ Shane P. Sanders
SHANE P. SANDERS

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Brian J. Robbins
Felipe J. Arroyo
Shane P. Sanders
Kevin S. Kim
600 B Street
San Diego, CA 92101
Tel: [phone]
Fax: [phone]
[e-mail]
farroyo@ robbinsarroyo.com
ssanders@ robbinsarroyo.com
kkim@ robbinsarroyo.com

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Attorneys for Plaintiff Philip Riccardi, Ernesto Espinoza,
and the City of Birmingham Retirement and Relief System

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SAXENA WHITE P.A.
Joseph E. White, III
Lester R. Hooker
2424 North Federal Highway, Suite 257
Boca Raton, FL 33431
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

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Attorneys for Plaintiff City of Birmingham Retirement and
Relief System

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STIPULATION AND [PROPOSED] ORDER

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DATED: February 14, 2013

MORGAN, LEWIS & BOCKIUS LLP
By:

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/s/ Joseph E. Floren
JOSEPH E. FLOREN

JOSEPH E. FLOREN, State Bar No. 168292
CHRISTOPHER J. BANKS, State Bar No. 218779
KIM ALEXANDER KANE, State Bar No. 226896
MATTHEW S. WEILER, State Bar No. 236052
One Market Street, Spear Street Tower
San Francisco, CA 94105-1126
Tel: [phone] / Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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MARC J. SONNENFELD (adm. pro hac vice)
KAREN PIESLAK POHLMANN (adm. pro hac vice)
1701 Market Street
Philadelphia, PA 19103-2921
Tel: [phone] / Fax: [phone]
[e-mail]
[e-mail]

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Attorneys for Nominal Defendant
Hewlett-Packard Company

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STIPULATION AND [PROPOSED] ORDER

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DATED: February 14, 2013

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SKADDEN ARPS SLATE MEAGHER & FLOM LLP
By:

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/s/ Timothy A. Miller
TIMOTHY A. MILLER

Allen J. Ruby
Timothy A. Miller
Richard S. Horvath, Jr.
525 University Avenue, Suite 1400
Palo Alto, CA 94301
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

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Attorneys for Defendants Marc L. Andreessen, Lawrence
T. Babbio, Jr., Sari M. Baldauf, Shumeet Banerji, Rajiv L.
Gupta, John H. Hammergren, Raymond J. Lane, Ann M.
Livermore, Gary M. Reiner Patricia F. Russo, Dominique
Senequier, G. Kennedy Thompson, and Ralph V.
Whitworth

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DATED: February 14, 2013

WILSON SONSINI GOODRICH & ROSATI, P.C.
BY:

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/s/ Steven M. Schatz
STEVEN M. SCHATZ

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Katherine L. Henderson
Bryan J. Kertroser
Brian Danitz
650 Page Mill Road
Palo Alto, CA 94304-1050
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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Attorneys for Defendant Catherine A. Lesjak

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STIPULATION AND [PROPOSED] ORDER

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DATED: January 14, 2013

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FENWICK & WEST LLP
BY:

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Marie C. Bafus
Tahir I. Golden
555 California Street, 12th Floor
San Francisco, CA 94104
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

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/s/ Kevin P. Muck
KEVIN P. MUCK

Attorneys for Defendant James T. Murrin
DATED: February 14, 2013

COOLEY LLP
BY:

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/s/ John C. Dwyer
JOHN C. DWYER

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STEPHEN C. NEAL (SBN 170085)
JOHN C. DWYER (SBN 136533)
JEFFREY M. KABAN (SBN 235743)
JEFFREY M. WALKER (SBN 280505)
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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Attorneys For Defendant Margaret C. Whitman

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LAW OFFICES
COTCHETT, PITRE
& MCCARTHY, LLP

STIPULATION AND [PROPOSED] ORDER

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1
2

DATED: February 14, 2013

SHEARMAN & STERLING LLP
BY:

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/s/ Patrick D. Robbins
PATRICK D. ROBBINS

Patrick D. Robbins
Audrey A. Barron
Four Embarcadero Center, Suite 3800
San Francisco, CA 94111-5994
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

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Alan Goudiss
Sara Ricciardi
599 Lexington Avenue
New York, NY 10022-6069
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant Perella Weinberg Partners LP
and Perella Weinberg Partners UK LLP

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LAW OFFICES
COTCHETT, PITRE
& MCCARTHY, LLP

STIPULATION AND [PROPOSED] ORDER

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DATED: February 14, 2013

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WILLIAMS & CONNOLLY LLP
BY:

/s/ Steven M. Farina
STEVEN M. FARINA

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Steven M. Farina
Sarah Lynn Lochner
725 12th Street, N.W.
Washington, D.C. 20005
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

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Attorneys for Defendant KPMG LLP

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I, Joseph E. Floren, am the ECF User whose ID and password are being used to file this
Stipulation And [Proposed] Order. In compliance with Local Rule 5-1(i)(3), I hereby attest that
each of the signatories identified above has concurred in this filing.
Executed this 14th day of February 2013 at San Francisco, California.

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/s/ Joseph E. Floren
JOSEPH E. FLOREN

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ORDER
Based on the foregoing stipulation of the parties, and good cause appearing,

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IT IS SO ORDERED.

DB1/ 73146223.1

RT

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LAW OFFICES
COTCHETT, PITRE
& MCCARTHY, LLP

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STIPULATION AND [PROPOSED] ORDER

R NIA

. Breyer

arles R
udge Ch

NO

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FO

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THE HONORABLEORDERED BREYER
CHARLES R.
JUDGE OF THE O
T IS SUNITED STATES DISTRICT COURT
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LI

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UNIT
ED

DATED: February 19, 2013

S DISTRICT
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