Hussey v. Ruckus Wireless, Inc. et al

Filing 41

STIPULATION AND ORDER re 40 For Administrative Relief from Page Limitations and Permission to File Consolidated Briefs on Defendants' Forthcoming Motions to Dismiss filed by Ruckus Wireless, Inc., Brocade Communications Systems, Inc. Signed by Judge Edward M. Chen on 12/6/16. (bpfS, COURT STAFF) (Filed on 12/6/2016)

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MORGAN, LEWIS & BOCKIUS LLP
Joseph E. Floren, Bar No. 168292
[e-mail]
Kevin M. Benedicto, Bar No. 305802
[e-mail]
One Market, Spear Street Tower
San Francisco, CA 94105-1596
Tel: [phone]
Fax: [phone]
Attorneys for Defendants
BROCADE COMMUNICATIONS SYSTEMS, INC.
and RUCKUS WIRELESS, INC.
SULLIVAN & CROMWELL LLP
Laura Kabler Oswell, Bar No. 241281
[e-mail]
1870 Embarcadero Road
Palo Alto, CA 94303
Tel: [phone]
Attorneys for Defendants
SELINA Y. LO, SEAMUS HENNESSY, GAURAV
GARG, MOHAN GYANI, GEORGES ANTOUN,
RICHARD LYNCH, STEWART GRIERSON, and
BARTON BURSTEIN
[Additional party and counsel on signature page]

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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MIGUEL HUSSEY, Individually and on
Behalf of All Others Similarly Situated,
Plaintiff,

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vs.
RUCKUS WIRELESS, INC., et al.,
Defendants.

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Case No. 3:16-cv-02991-EMC
STIPULATION AND [PROPOSED]
ORDER FOR ADMINISTRATIVE
RELIEF FROM PAGE LIMITATIONS
AND PERMISSION TO FILE
CONSOLIDATED BRIEFS ON
DEFENDANTS’ FORTHCOMING
MOTIONS TO DISMISS
[Civ. L.R. 7-11]

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

DB2/ 30883629.1

STIP. AND PROPOSED ORDER RE MTD
BRIEFING 3:16-CV-02991-EMC

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Lead Plaintiff City of Pontiac General Employees’ Retirement System (“Lead Plaintiff”)

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and Defendants Brocade Communications Systems, Inc. (“Brocade”), Ruckus Wireless, Inc.

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(“Ruckus”), Selina Y. Lo, Seamus Hennessy, Gaurav Garg, Mohan Gyani, Georges Antoun,

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Richard Lynch, Stewart Grierson, and Barton Burstein (the “Individual Defendants” and, together

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with Ruckus and Brocade, “Defendants”), by and through their undersigned counsel, hereby

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stipulate and agree, subject to Court approval, as follows:

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WHEREAS, this is a putative securities class action, subject to the Private Securities

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Litigation Reform Act of 1995 (“PSLRA”), on behalf of former shareholders of Ruckus, in which

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Lead Plaintiff challenges numerous aspects of the disclosures, process, solicitations, and

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agreements culminating in the Merger by which Ruckus (previously an independent public

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company) became a subsidiary of Brocade in May 2016,

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WHEREAS, the operative pleading in this action is Lead Plaintiff’s Amended Complaint

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for Violations of §§ 14 and 20(a) of the Securities Exchange Act of 1934 and for Breach of

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Fiduciary Duties (the “Amended Complaint,” Dkt. No. 39), filed on October 24, 2016,

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WHEREAS, the Amended Complaint asserts five claims for relief against Defendants,

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alleging that: (i) the seven Individual Defendants who were members of Ruckus’s Board of

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Directors breached their fiduciary duties to Ruckus’s shareholders in connection with their

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agreement to the Merger, the terms, conditions, and price provided in the Merger, and their

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disclosures about the Merger, among other things; (ii) the other Defendants aided and abetted

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such breaches of fiduciary duty; (iii) Ruckus, as well as all but one of the Individual Defendants,

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violated Section 14(e) of the Exchange Act by issuing a false and misleading Schedule 14D-9

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Solicitation/Recommendation Statement regarding the proposed Merger; (iv) Brocade’s

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subsidiary Stallion Merger Sub, Inc. violated Section 14(d)(7) of the Exchange Act and Rule 14d-

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10 thereunder through several agreements related to the Merger, which allegedly offered

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additional consideration to Ruckus management and members of its Board of Directors as part of

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the Exchange Offer, that was not offered or paid to other Ruckus shareholders; and (iv) other

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Defendants are liable as controlling persons under Exchange Act Section 20(a), and

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WHEREAS, by previous stipulation of the parties and order of the Court (Dkt. No. 38),

MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

DB2/ 30883629.1

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STIP. AND PROPOSED ORDER RE MTD
BRIEFING 3:16-CV-02991-EMC

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Defendants’ motions to dismiss and/or other motions in response to the Amended Complaint shall

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be filed by December 8, 2016, and

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WHEREAS, Defendants believe it would be most efficient and useful to the Court for

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them to file a single consolidated motion to dismiss in response to the Amended Complaint,

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rather than what would otherwise be three separate motions, as explained below, and

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WHEREAS, Defendants believe they could address all relevant issues in as concise a

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manner as reasonably possible within a single 45-page consolidated memorandum of points and

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authorities, rather than three separate motions that could total up to 75 pages in length, and

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WHEREAS, Defendants believe that fewer than 45 pages would be insufficient to allow a
full and fair discussion of the dispositive legal issues in a single brief, because:
(i)

the Amended Complaint alleges two separate and independent types of principal

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claims under the Exchange Act (one for false statements in a tender offer solicitation; the other

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for payment of differential compensation in a tender offer), each of which involves mostly

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different underlying facts and elements and thus must be addressed separately;

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(ii)

briefing the elements and specifics of the Exchange Act claims under applicable

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principles, including the PSLRA, requires a high level of detail, such that a single brief

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addressing all of the issues under the three federal securities claims would need to be

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approximately 25 pages in length;

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(iii)

the claim for breach of fiduciary duty against seven of the Individual Defendants

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alleges multiple breaches of the fiduciary duties of care, loyalty, and disclosure based on

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numerous alleged acts of misconduct, many of which are distinct from the disclosures challenged

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by the federal securities claims, and, due to the manifold nature of the claims, requires detailed

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briefing regarding the applicable duties, standards governing each, and case law addressing

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similar claims;

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(iv)

Defendants are also moving to dismiss on forum non conveniens grounds, based

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on the claim for breach of fiduciary duty and an exclusive forum selection provision in favor of

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Delaware Chancery Court that Defendants believe is binding, and wish to include this forum non

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conveniens motion to dismiss in a single brief along with their Rule 12(b)(6) motions; and

MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

DB2/ 30883629.1

2

STIP. AND PROPOSED ORDER RE MTD
BRIEFING 3:16-CV-02991-EMC

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(v)

Absent a consolidated brief and the requested page limit relief, Brocade and

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Ruckus would file a motion to dismiss the federal securities claims; the Individual Defendants

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would file a motion to dismiss the breach of fiduciary duty and aiding and abetting claims; and all

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Defendants would a motion to dismiss for forum non conveniens (which is not governed by Fed.

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R. Civ. Proc. 12(b)) as well as joinders in each others’ motions, and

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WHEREAS, Lead Plaintiff does not object to Defendants’ requests for consolidated

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briefing and extended page limits, provided Plaintiff is permitted the same maximum number of

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pages for a consolidated opposition, and

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WHEREAS, Defendants agree that a consolidated opposition of equal maximum length is
appropriate, and the parties have agreed to a consolidated reply as set forth below, and,
WHEREAS, the parties agree that the briefing and hearing schedule shall otherwise
remain as previously specified by the Court,
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between
the undersigned counsel for all parties, subject to Court approval, as follows:
1.

Defendants may file a single consolidated motion to dismiss setting forth all of

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their arguments for dismissal of the Amended Complaint, the memorandum of points and

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authorities of which shall not exceed 45 pages in length.

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2.

Lead Plaintiff may file a single consolidated opposition to Defendants’

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consolidated motion to dismiss, the memorandum of points and authorities of which shall not

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exceed 45 pages in length.

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3.

Defendants may file a single consolidated reply brief in further support of their

consolidated motion to dismiss, which shall not exceed 25 pages in length.
IT IS SO STIPULATED.

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

DB2/ 30883629.1

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STIP. AND PROPOSED ORDER RE MTD
BRIEFING 3:16-CV-02991-EMC

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Dated: December 5, 2016

Respectfully submitted,

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MORGAN, LEWIS & BOCKIUS LLP

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By

s/ Joseph E. Floren
Joseph E. Floren
Attorneys for Defendants
BROCADE COMMUNICATIONS
SYSTEMS, INC. and RUCKUS WIRELESS,
INC.

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Dated: December 5, 2016

SULLIVAN & CROMWELL LLP

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By

s/ Laura Kabler Oswell
Laura Kabler Oswell
Attorneys for Defendants
SELINA Y. LO, SEAMUS HENNESSY,
GAURAV GARG, MOHAN GYANI,
GEORGES ANTOUN, RICHARD LYNCH,
STEWART GRIERSON, and BARTON
BURSTEIN

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Dated: December 5, 2016

ROBBINS GELLER RUDMAN & DOWD
LLP

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By

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s/ David T. Wissbroecker
David T. Wissbroecker

655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: [phone]
619/231-7423 (fax)

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Attorneys for Lead Plaintiff
CITY OF PONTIAC GENERAL
EMPLOYEES’ RETIREMENT SYSTEM

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CERTIFICATE OF CONCURRENCE IN FILING (Civ. L.R. 5-1(i)(3))
I, Joseph E. Floren, am the ECF User whose identification and password are being used to
file this Stipulation and [Proposed] Order for Administrative Relief. In compliance with Local
Rule 5-1(i)(3), I hereby attest that Laura Kabler Oswell and David T. Wissbroecker have
concurred in this filing.
Dated: December 5, 2016
s/ Joseph E. Floren
JOSEPH E. FLOREN

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

DB2/ 30883629.1

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STIP. AND PROPOSED ORDER RE MTD
BRIEFING 3:16-CV-02991-EMC

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O R D E R

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PURSUANT TO STIPULATION, AND GOOD CAUSE APPEARING, THE

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dismiss, the memorandum of points and authorities of which shall not exceed 45 pages in length.
2.

Lead Plaintiff will file a consolidated brief in opposition to Defendants’ motion to

dismiss, the memorandum of points and authorities of which shall not exceed 45 pages in length.
3.

Defendants will file a single consolidated reply brief in further support of their

consolidated motion to dismiss, which shall not exceed 25 pages in length.

UNIT
ED

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Dated: December __, 2016

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Hon. ORDERED
Edward M. Chen
S SO States District Judge
I
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dward
Judge E

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Defendants will file a single consolidated brief in support of their motions to

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COURT ORDERS:

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OF

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

DB2/ 30883629.1

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STIP. AND PROPOSED ORDER RE MTD
BRIEFING 3:16-CV-02991-EMC