Csoka v. Varian et al

Filing 23

STIPULATION AND ORDER STAYING THE ACTION re 22 STIPULATION WITH PROPOSED ORDER Staying the Action filed by Joseph M. Limber, Paul D. Rubin, W. Denman Van Ness, Xoma Corporation, William K. Bowes, Jr, Peter Barton Hutt, Patrick J. Scannon, Timothy P. Wilbert, Jack L. Wyszomierski, John W. Varian. Signed by Judge Jon S. Tigar on May 19, 2016. (wsn, COURT STAFF) (Filed on 5/19/2016)

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COOLEY LLP
JOHN C. DWYER (136533) ([e-mail])
JESSICA VALENZUELA SANTAMARIA (220934) ([e-mail])
AMANDA A. MAIN (260814) ([e-mail])
BRETT H. DE JARNETTE (292919) ([e-mail])
3175 Hanover Street
Palo Alto, CA 94304-1130
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendants
JOHN VARIAN, PAUL D. RUBIN, PATRICK J. SCANNON,
WILLIAM K. BOWES, JR., PETER BARTON HUTT,
JOSEPH M. LIMBER, W. DENMAN VAN NESS,
TIMOTHY P. WALBERT, AND JACK L. WYSZOMIERSKI
and Nominal Defendant XOMA CORPORATION

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JEFFREY CSOKA, derivatively on
behalf of XOMA CORPORATION,

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Plaintiff,
v.

Case No. 3:15-CV-05429 JST
STIPULATION AND [PROPOSED]
ORDER STAYING THE ACTION
Judge:

Honorable Jon S. Tigar

JOHN VARIAN, PAUL D. RUBIN,
PATRICK J. SCANNON, WILLIAM K.
BOWES, JR., PETER BARTON HUTT,
JOSEPH M. LIMBER, W. DENMAN VAN
NESS, TIMOTHY P. WALBERT,
AND JACK L. WYSZOMIERSKI,

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Defendants,

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And

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XOMA CORPORATION,
Nominal Defendant.

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COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO

STIPULATION AND [PROPOSED] ORDER STAYING
THE ACTION - CASE NO. 3:15-CV-05429 JST

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Plaintiff Jeffrey Csoka ("Plaintiff"), nominal defendant XOMA Corporation ("XOMA"),

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and individual defendants Patrick J. Scannon, John W. Varian ("Varian"), Paul D. Rubin

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("Rubin"), William K. Bowes Jr., Peter Barton Hutt, Joseph M. Limber, W. Denman Van Ness,

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Timothy P. Walbert, Jack Wyszomierski, and Kelvin M. Neu (the "Individual Defendants," and

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together with XOMA, the “Defendants”), by and through their undersigned counsel, stipulate as

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follows:

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WHEREAS, on July 24, 2015, a securities class action (the "Securities Action") was filed

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in the U.S. District Court for the Northern District of California against XOMA and defendants

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Varian and Rubin, captioned Markette v. XOMA Corporation, et al., No. 3:15-cv-03425-HSG,

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and several motions for the appointment of lead plaintiff and lead counsel have been filed in the

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Securities Action;

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WHEREAS the factually related above-captioned shareholder derivative action (the

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"Derivative Action") alleges, among other things, breaches of fiduciary duties and violations of

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law by certain of the directors and officers of XOMA;

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WHEREAS, a factually related shareholder derivative complaint, captioned Silva v.

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Scannon, et al., Sup. Ct. Case No. RG15787990, was previously filed on October 1, 2015 and is

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pending before the Superior Court of the State of California, County of Alameda (the “State

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Derivative Action”);

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WHEREAS, Defendants intend to file a motion to dismiss in the Securities Action and, if

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any amended complaints are filed therein, Defendants intend to file motions to dismiss the

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amended complaints as well;

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WHEREAS, the State Derivative Action has been stayed pending further developments
in the Securities Action;
WHEREAS, Plaintiff and Defendants (collectively, the "Parties") in the Derivative
Action have met and conferred regarding the most efficient manner in which to proceed;
WHEREAS, the Parties agree that the ruling on any anticipated motions to dismiss in the
Securities Action may help inform the manner in which the Derivative Action proceeds; and

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COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO

2.

STIPULATION AND [PROPOSED] ORDER STAYING
THE ACTION - CASE NO. 3:15-CV-05429 JST

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WHEREAS, based upon the circumstances unique to the Derivative Action and in

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furtherance of the goal of judicial economy, the Parties agree that the interests of justice and

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efficient and effective case management would best be served by staying the Derivative Action

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pending a resolution of all motions to dismiss in the Securities Action;

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NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED by the Parties,
through their respective counsel of record, as follows:

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TEMPORARY STAY OF THE DERIVATIVE ACTION
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Subject to paragraph 2 below, all proceedings in the Derivative Action shall be

stayed until the resolution of all motions to dismiss the Securities Action.
2.

Upon expiration of the stay, the Parties in the Derivative Action will meet and

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confer in good faith to determine a schedule for the Derivative Action going forward, and will

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submit a proposed scheduling stipulation for this Court's review and approval.

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3.

Defendants shall not be obligated to respond to the complaint filed in the

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Derivative Action until a scheduling stipulation has been entered by the Court pursuant to

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paragraph 2 above after the stay has been lifted. Notwithstanding the stipulated stay, Plaintiff

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shall be permitted to file an amended complaint during the pendency of the stay, but Defendants

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shall be under no obligation to respond to any complaint while the stay is in effect. Defendants

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reserve all of their defenses to the claims asserted by Plaintiff and other rights, and the stay shall

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not be, and shall not be deemed, a waiver of any of Defendants' defenses or other rights.

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4.

The Parties agree that any challenges to Plaintiff's allegations that demand on the

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XOMA Board of Directors (the "Board") is or was futile will be determined based on the

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composition of the Board as of the time the first complaint in this action was filed.

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5.

This Stipulation shall not preclude or prevent the Parties from stipulating to, or

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moving for, a court order lifting, modifying or extending the terms of this Stipulation upon a

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showing of good cause.

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6.

By entering into this Stipulation, the Parties do not waive any rights not

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specifically addressed herein, including the right to file any motion any party deems appropriate

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once this case is no longer temporarily stayed.

COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO

3.

STIPULATION AND [PROPOSED] ORDER STAYING
THE ACTION - CASE NO. 3:15-CV-05429 JST

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IT IS SO STIPULATED.
Dated: May 18, 2016

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/s/ Jessica Valenzuela Santamaria
Jessica Valenzuela Santamaria (220934)

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Attorneys for Defendants JOHN VARIAN, PAUL D.
RUBIN, PATRICK J. SCANNON, WILLIAM K.
BOWES, JR., PETER BARTON HUTT, JOSEPH M.
LIMBER, W. DENMAN VAN NESS, TIMOTHY P.
WALBERT, AND JACK L. WYSZOMIERSKI and
Nominal Defendant XOMA CORPORATION

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COOLEY LLP
JESSICA VALENZUELA SANTAMARIA (220934)
JOHN C. DWYER (136533)
AMANDA A. MAIN (260814)
BRETT H. DE JARNETTE (292919)

Dated: May 18, 2016

LAW OFFICE OF ADAM R. BERNSTEIN
ADAM BERNSTEIN (132982)
/s/ Adam Bernstein
Adam Bernstein (132982)

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198 Coffeeberry Dr.
San Jose, CA, 95123
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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THE BROWN LAW FIRM, P.C.
TIMOTHY W. BROWN
127A Cove Road
Oyster Bay Cove, New York 11771
Telephone: [phone]
Email: [e-mail]

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Attorneys for Plaintiff JEFFREY CSOKA

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COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO

4.

STIPULATION AND [PROPOSED] ORDER STAYING
THE ACTION - CASE NO. 3:15-CV-05429 JST

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ATTESTATION OF CONCURRENCE IN FILING

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Pursuant to Local Rule 5-1 of The United States District Court for the Northern District of

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California, I, Jessica Valenzuela Santamaria, hereby attest that the concurrence to the filing of the

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foregoing document has been obtained from Adam Bernstein, who provided the conformed

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signature above.

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Dated: May 18, 2016

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COOLEY LLP
JESSICA VALENZUELA SANTAMARIA (220934)
JOHN C. DWYER (136533)
AMANDA A. MAIN (260814)
BRETT H. DE JARNETTE (292919)

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/s/ Jessica Valenzuela Santamaria
Jessica Valenzuela Santamaria (220934)
Attorneys for Defendants JOHN VARIAN, PAUL D.
RUBIN, PATRICK J. SCANNON,
WILLIAM K. BOWES, JR., PETER BARTON HUTT,
JOSEPH M. LIMBER, W. DENMAN VAN NESS,
TIMOTHY P. WALBERT, AND JACK L.
WYSZOMIERSKI and Nominal Defendant XOMA
CORPORATION

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COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO

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STIPULATION AND [PROPOSED] ORDER STAYING
THE ACTION - CASE NO. 3:15-CV-05429 JST

PURSUANT TO STIPULATION, IT IS SO ORDERED

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__________________________________________
Honorable Jon S. Tigar DERED
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United StatesS SO OJudge
IT I District

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UNIT
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May 19, 2016
DATED: _____________________

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COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO

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STIPULATION AND [PROPOSED] ORDER STAYING
THE ACTION - CASE NO. 3:15-CV-05429 JST