Merola v. Affymetrix, Inc. et al

Filing 18

ORDER TO STAY PROCEEDINGS. Signed by Judge William H. Orrick on 07/20/2016. (jmdS, COURT STAFF) (Filed on 7/20/2016)

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Barbara A. Rohr SBN 273353
Benjamin Heikali SBN 307466
FARUQI & FARUQI, LLP
10866 Wilshire Boulevard, Suite 1470
Los Angeles, CA 90024
Telephone: [phone]
Facsimile: 424-256-2885
E-mail: [e-mail]
[e-mail]

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Counsel for Plaintiff

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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10 GERALD DOUGLAS, Individually and On
11 Behalf of All Others Similarly Situated,
Plaintiff,

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v.
FRANK WITNEY, NELSON CHAN, GARY
GUTHART, JAMI NACHTSHEIM,
RICCARDO PIGLIUCCI, MERILEE RAINES,
ROBERT TRICE, and AFFYMETRIX, INC.

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Defendants.

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Lead Case No. 16-cv-921-WHO
(Related Cases: 4:16-cv-01237-WHO and
3:16-cv-1253-WHO)
JOINT STIPULATION AND ORDER TO
STAY PROCEEDINGS
Judge: Honorable William H. Orrick

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STIPULATION AND ORDER

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IT IS HEREBY STIPULATED by and between PLAINTIFF GERALD DOUGLAS

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(“Plaintiff”) and DEFENDANTS FRANK WITNEY, NELSON CHAN, GARY GUTHART,

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JAMI NACHTSHEIM, RICCARDO PIGLIUCCI, MERILEE RAINES, ROBERT TRICE, and

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AFFYMETRIX, INC. (collectively, the “Defendants”), (Plaintiff and Defendants are to be

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collectively referred to as the “Parties”), by and through their attorneys of record, that good cause

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exists for the Court to stay the proceedings in the above-captioned cases based on the following:

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STIPULATION AND ORDER TO STAY PROCEEDINGS
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WHEREAS, on February 24, 2016, Plaintiff Gerald Douglas filed a putative class action

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(“Douglas action”) in this Court against Affymetrix, Inc. (“Affymetrix”) and members of the

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board of Affymetrix (the “Board” or the “Individual Defendants”) alleging violations of Section

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14(a) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. §§

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78n(a), 78t(a), and SEC Rule 14a-9, 17 C.F.R. 240.14a-9, and breaches of fiduciary duties in

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connection with the proposed merger between Affymetrix and Thermo Fisher Scientific Inc.

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(“Thermo Fisher”). Douglas Docket No. 1, ¶ 1.

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WHEREAS, on March 14, 2016, Plaintiff Steven Merola filed a putative class action

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(“Merola action”), Case No. 16-cv-01237-WHO in this Court, against Affymetrix and the Board

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for violations of Section 14(a) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange

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Act”), 15 U.S.C. §§ 78n(a), 78t(a), and SEC Rule 14a-9, 17 C.F.R. 240.14a-9, and breaches of

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fiduciary duties in connection with the proposed merger between Affymetrix and Thermo

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Fisher. Merola Docket No. 1, ¶ 1.

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WHEREAS, also on March 14, 2016, Plaintiff Jeffrey S.L. Cheah filed a putative class

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action (“Cheah action”), Case No. 16-cv-01253-WHO in this Court, against Affymetrix and the

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Board for violations of Section 14(a) and 20(a) of the Exchange Act, 15 U.S.C. §§78n, 78t(a),

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and SEC Rule 14a-9, 17 C.F.R. 240.14a-9, in connection with the Board’s agreement to sell

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Affymetrix to Thermo Fisher (the “Proposed Transaction”). Plaintiff Cheah also brought this

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action against the Board for breaches of fiduciary duties owed to Affymetrix’s stockholders, as

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well as against Affymetrix, Thermo Fisher and White Birch Merger Co. for aiding and abetting

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such breaches by Affymetrix’s directors, in connection with the Proposed Transaction. Cheah

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Docket No. 1, ¶ 1.

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WHEREAS, on May 4, 2016, the Court adjourned the Initial Case Management

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Conference in the Douglas action until July 19, 2016 and adjourned indefinitely the Defendants’

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deadline to answer, move to dismiss, or otherwise respond to the Complaint, pursuant to the

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parties’ stipulation;

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3:16-cv-00921-WHO
STIPULATION AND ORDER TO STAY PROCEEDINGS

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WHEREAS, on June 29, 2016, the Parties informed the Court that they had reached a

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tentative settlement in the Douglas action and Related Cases (defined below) and concluded

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conducting confirmatory discovery, which included three depositions;

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WHEREAS, on June 29, 2016, counsel for Plaintiff Douglas also informed the Court that

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the parties expect to be able to present the stipulation of settlement and motion for preliminary

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approval within 30 days and requested that all deadlines be vacated;

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WHEREAS, on July 8, 2016, Plaintiff Douglas filed an administrative motion to relate the
Merola action and the Cheah action (the “Related Cases”) to the Douglas action;

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WHEREAS, on July 13, 2016, the Court further adjourned the Initial Case Management
Conference in the Douglas action until August 9, 2016, pursuant to the Parties’ stipulation;

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WHEREAS, on July 14, 2016, the Court issued an Order relating the above-captioned
cases;

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WHEREAS, in view of the foregoing, and in particular the Parties’ agreement to settle

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these actions subject to further documentation and the Court’s approval, the Parties respectfully

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request that this Court stay all proceedings in the Douglas action pending submission of a

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stipulation of settlement and motion for preliminary approval to this Court. The parties anticipate

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filing similar stipulations in the Merola and Cheah actions in the near future.

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Stipulated by and between the following:
DATED: July 15, 2016

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FARUQI & FARUQI, LLP

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By: /s/ Barbara A. Rohr
Barbara A. Rohr (SBN 273353)
Benjamin Heikali (SBN 307466)
FARUQI & FARUQI, LLP
10866 Wilshire Boulevard, Suite 1470
Los Angeles, CA 90024
Telephone: [phone]
Facsimile: 424-256-2885
E-mail: [e-mail]
[e-mail]

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Counsel for Plaintiff

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3:16-cv-00921-WHO
STIPULATION AND ORDER TO STAY PROCEEDINGS

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DATED: July 15, 2016

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DAVIS POLK & WARDWELL, LLP

By: /s/ Neal A. Potischman
Neal A. Potischman (SBN 254862)
Andrew David Yaphe (SBN 274172)
Jayeeta Kundu (SBN 291599)
Micah Galvin Block (SBN 270712)
1600 El Camino Real
Menlo Park, California 94025
Telephone: [phone]
Facsimile: [phone]

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Counsel for Defendants Affymetrix, Inc. and
Individual Defendants

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ORDER
IT IS HEREBY ORDERED that:
All proceedings in Douglas v. Witney, et al., Case No. 16-cv-921-WHO, are stayed.

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DATED: July 20, 2016

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Honorable William H. Orrick
United States District Judge

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CERTIFICATE OF SERVICE

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I hereby certify that on July 15, 2016, I electronically filed the foregoing with the Clerk of

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the Court using the CM/ECF system, which will send notification of such filing to the e-mail

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addresses denoted on the Electronic Mail Notice List.

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Dated: July 15, 2016

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By: /s/ Barbara A. Rohr
Barbara A. Rohr

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