Miller v. Wolfson et al

Filing 30

ORDER by Judge Haywood S. Gilliam, Jr. Granting 29 Second Stipulation Temporarily Deferring Prosecution of Derivative Action. (ndrS, COURT STAFF) (Filed on 2/3/2017)

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1 2 3 4 5 6 BOTTINI & BOTTINI, INC. Francis A. Bottini, Jr. (SBN 175783) Albert Y. Chang (SBN 296065) Yury A. Kolesnikov (SBN 271173) 7817 Ivanhoe Avenue, Suite 102 La Jolla, California 92037 Telephone: (858) 914-2001 Facsimile: (858) 914-2002 Email: fbottini@bottinilaw.com achang@bottinilaw.com ykolesnikov@bottinilaw.com 7 Counsel for Plaintiff Gregory M. Miller 8 [Additional counsel listed on signature page.] 9 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN FRANCISCO DIVISION 13 14 15 16 17 18 19 20 21 22 23 24 25 GREGORY M. MILLER, derivatively on behalf of SOLAZYME, INC., ) ) ) Plaintiff,) ) vs. ) ) JONATHAN S. WOLFSON, MICHAEL V. ) Case No. 15-cv-3880 HSG ARBIGE, IAN T. CLARK, JAMES R. ) CRAIGIE, JERRY FIDDLER, PETER ) Second Stipulation and Order Temporarily KOVACS, DAVID C. COLE, and TYLER W.) Deferring Prosecution of Derivative Action PAINTER, ) ) Defendants,) ) - and ) ) SOLAZYME, INC., a Delaware corporation, ) ) Nominal Defendant.) ) 26 27 28 Second Stipulation and [Proposed] Order Case No. 15-cv-3880 HSG In compliance with the Court’s January 25, 2017 order, the parties respectfully submit this 1 2 stipulation and proposed order and state as follows: 3 WHEREAS, on August 25, 2015, plaintiff Gregory M. Miller (“Plaintiff”) filed this 4 shareholder derivative action (the “Federal Derivative Action”) on behalf of nominal defendant 5 Solazyme, Inc., which is now named TerraVia, Inc. (“Solazyme”), and against defendants 6 Jonathan S. Wolfson, Michael V. Arbige, Ian T. Clark, James R. Craigie, Jerry Fiddler, Peter 7 Kovacs, David C. Cole, and Tyler W. Painter, (collectively with Solazyme, “Defendants”), 8 alleging claims for, among other things, breaches of fiduciary duties in connection with alleged 9 false and misleading statements regarding Solazyme’s financial condition and business prospects; 10 WHEREAS, related to the Federal Derivative Action is a purported shareholder derivative 11 action captioned, Bertonis v. Wolfson, No. CIV 534717 (Cal. Super. Ct., Cnty. of San Mateo) 12 (complaint filed July 16, 2015), which is currently pending in the Superior Court of California, 13 County of San Mateo (the “State Derivative Action”), asserting similar claims against nearly 14 identical defendants based on similar events and transactions alleged in the Federal Derivative 15 Action; 16 WHEREAS, both the Federal Derivative Action and the State Derivative Action involve 17 some of the same defendants and similar events and transactions alleged in a related securities- 18 fraud class action pending in this Court, Norfolk County Retirement System v. Solazyme, Inc., No. 19 15-cv-2938 HSG (N.D. Cal.) (complaint filed June 24, 2015) (the “Securities Class Action”); 20 WHEREAS, counsel for the parties in the Federal Derivative Action have been engaged in 21 discussions since the Federal Derivative Action was filed regarding next steps in light of the State 22 Derivative Action and Securities Class Action, and agreed to temporarily defer proceedings in the 23 Federal Derivative Action; 24 25 26 27 28 WHEREAS, the parties’ agreement to defer proceedings in the Federal Derivative Action was reflected in the Court’s March 29, 2016 order (Dkt. No. 26); WHEREAS, on December 29, 2016, the Court granted without prejudice defendants’ motion to dismiss the complaint in the Securities Class Action; 1 Second Stipulation and [Proposed] Order Case No. 15-cv-3880 HSG 1 WHEREAS, on January 20, 2017, the Court set a schedule in the Securities Class Action, 2 ordering that (a) plaintiffs file their amended complaint by February 15, 2017, and (b) any motion 3 to dismiss be filed by March 17, 2017; 4 WHEREAS, on January 18, 2017, pursuant to the March 29, 2016 order (Dkt. No. 26), 5 counsel for the parties in the Federal Derivative Action met and conferred, and agreed that this 6 Action should remain deferred until an answer or order of dismissal is filed in the Securities Class 7 Action, so long as motion practice and discovery in the State Derivative Action also remains 8 deferred; 9 WHEREAS, on January 23, 2017, the Superior Court stayed the State Derivative Action 10 until July 1, 2017 (while the anticipated motion to dismiss the Securities Class Action is pending) 11 and set the next status conference for August 7, 2017; 12 WHEREAS, based upon the overlapping parties and factual allegations contained in the 13 Federal Derivative Action and the Securities Class Action, and to avoid the unnecessary 14 expenditure of judicial resources before resolution of the anticipated motion to dismiss the 15 Securities Class Action, Plaintiff and Defendants agree, subject to this Court’s approval, to 16 temporarily defer prosecution, including motion practice and discovery, in the Federal Derivative 17 Action until such time as the Court issues an order ruling on the defendants’ motion to dismiss the 18 Securities Class Action; and 19 WHEREAS, the parties in the Federal Derivative Action agree that (a) at any time during 20 which the prosecution of this case is deferred pursuant to this stipulation and order, any party may 21 move the Court to modify the terms of the deferred-prosecution order, and (b) any party may 22 oppose such motion. 23 24 25 NOW THEREFORE, Plaintiff and Defendants, by their undersigned counsel, stipulate as follows: 1. Except as noted in ¶¶ 4–6 below, all proceedings, including motions practice and 26 discovery, in the Federal Derivative Action are deferred until the earlier occurrence of: (a) an 27 order on the anticipated motion to dismiss in the Securities Class Action (currently scheduled to 28 2 Second Stipulation and [Proposed] Order Case No. 15-cv-3880 HSG 1 be filed on or before March 17, 2017) sustaining all or part of the anticipated amended complaint; 2 (b) issuance of a scheduling order in the State Derivative Action that requires defendants in that 3 action to respond to an operative complaint; (c) dismissal of the Securities Class Action in its 4 entirety with prejudice; (d) notification to the Court by counsel for Plaintiff or Defendants of a 5 settlement of the Securities Class Action, the State Derivative Action, or any subsequently filed or 6 threatened derivative actions that are based on the same or substantially similar allegations as 7 made in the Federal Derivative Action; (e) as otherwise ordered by the Court (including a further 8 deferral of these proceedings); or (f) January 1, 2018. 9 2. Within 20 days after the occurrence of any event listed in ¶ 1, the parties shall meet 10 and confer; and within 30 days of the occurrence of any event listed in ¶ 1, the parties shall 11 submit a proposed scheduling order governing further proceedings in the Federal Derivative 12 Action, including a proposed schedule regarding the designation or filing of an operative 13 complaint and Defendants’ responses thereto. 14 3. Plaintiff may file an amended complaint, but Defendants need not answer, move, 15 or otherwise respond to any complaint or amended complaint filed in the Federal Derivative 16 Action while the proceedings are deferred. None of the Defendants shall have to respond to any 17 complaint or amended complaint filed in the Federal Derivative Action until a response date is set 18 and/or approved by the Court. 19 4. In the event that, while proceedings in the Federal Derivative Action are deferred, 20 any discovery is provided or produced to plaintiff in the State Derivative Action, or any 21 subsequently filed or threatened derivative actions that are based on the same or substantially 22 similar allegations as made in the Federal Derivative Action, Defendants will provide copies of 23 that discovery to counsel for Plaintiff subject to the execution of an appropriate protective order. 24 5. Defendants shall invite counsel for Plaintiff, Bottini & Bottini, Inc., to participate 25 in any formal settlement meetings, mediations, or conferences that might be held in the State 26 Derivative Action, or any subsequently filed or threatened derivative actions that are based on the 27 28 3 Second Stipulation and [Proposed] Order Case No. 15-cv-3880 HSG 1 same or substantially similar allegations as made in the Federal Derivative Action while 2 proceedings in the Federal Derivative Action are deferred. 3 6. At any time during which the prosecution of this Federal Derivative Action is 4 deferred pursuant to this stipulation and order, a party may file a motion with the Court seeking to 5 modify the terms of the order, whether or not other parties object to such motion. 6 7 8 9 IT IS SO STIPULATED. Dated: January 27, 2017 Respectfully submitted, BOTTINI & BOTTINI, INC. Francis A. Bottini, Jr. (SBN 175783) Albert Y. Chang (SBN 296065) Yury A. Kolesnikov (SBN 271173) 10 s/ Francis A. Bottini, Jr. Francis A. Bottini, Jr. 11 15 7817 Ivanhoe Avenue, Suite 102 La Jolla, California 92037 Telephone: (858) 914-2001 Facsimile: (858) 914-2002 Email: fbottini@bottinilaw.com achang@bottinilaw.com ykolesnikov@bottinilaw.com 16 Counsel for Plaintiff 12 13 14 17 18 MORRISON & FOERSTER Jordan D. Eth (SBN 121617) Mark R.S. Foster (SBN 223682) s/ Mark R.S. Foster Mark R.S. Foster 19 20 23 425 Market Street San Francisco, CA 94105 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 Email: jeth@mofo.com mfoster@mofo.com 24 Counsel for Defendants 21 22 25 26 27 28 4 Second Stipulation and [Proposed] Order Case No. 15-cv-3880 HSG 1 ATTESTATION 2 3 In compliance with Local Rule 5-4.3.4(a)(2)(i), I, Francis A. Bottini, Jr., attest that all 4 other signatories listed, and on whose behalf the filing is submitted, concur in the filing’s content 5 and have authorized the filing. 6 s/ Francis A. Bottini, Jr. Francis A. Bottini, Jr. 7 8 * 9 12 * ORDER 10 11 * Pursuant to stipulation, it is so ordered. Dated: February 3, 2017 The Honorable Haywood S. Gilliam, Jr. United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Second Stipulation and [Proposed] Order Case No. 15-cv-3880 HSG

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