Porter v. Costolo et al

Filing 21

STIPULATION AND ORDER re (20 in 3:16-cv-06136-JST) STIPULATION WITH PROPOSED ORDER to Consolidate Derivative Actions, Appoint Co-Lead Counsel for Plaintiffs, and Reset Initial Case Management Conference and Related Dates. filed by Jim Porter. Signed by Judge Jon S. Tigar on January 20, 2017. (wsn, COURT STAFF) (Filed on 1/20/2017)

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JOHNSON & WEAVER, LLP
FRANK J. JOHNSON (174882)
[e-mail]
PHONG L. TRAN (204961)
[e-mail]
600 West Broadway, Suite 1540
San Diego, CA 92101
Telephone: [phone]
Facsimile: [phone]

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-and-

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ROBBINS ARROYO LLP
BRIAN J. ROBBINS (190264)
[e-mail]
FELIPE J. ARROYO (163803)
[e-mail]
SHANE P. SANDERS (237146)
[e-mail]
600 B Street, Suite 1900
San Diego, CA 92101
Telephone: [phone]
Facsimile: [phone]

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[Proposed] Co-Lead Counsel for Plaintiffs

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
JIM PORTER, derivatively on behalf of
TWITTER, INC.,

)
)
)
Plaintiff,
)
)
v.
)
)
RICHARD COSTOLO, ANTHONY NOTO, )
JACK DORSEY, PETER FENTON,
)
MARTHA LANE FOX, HUGH F.
)
JOHNSTON, OMID KORDESTANI, DEBRA )
L. LEE, DAVID ROSENBLATT, MARJORIE )
SCARDINO, BRET TAYLOR, and EVAN
)
WILLIAMS,
)
)
Defendants,
)
)
)
-and)
)
TWITTER, INC., a Delaware corporation,
)
)
Nominal Defendant.
)
)
[Caption continued on next page.]

Case No.: 3:16-cv-06136-JST
STIPULATION AND [PROPOSED]
ORDER TO CONSOLIDATE
DERIVATIVE ACTIONS, APPOINT
CO-LEAD COUNSEL FOR
PLAINTIFFS, AND RESET INITIAL
CASE MANAGEMENT
CONFERENCE AND RELATED
DATES
Judge: Honorable Jon S. Tigar
Courtroom: 9
Date Action Filed: October 24, 2016

STIP AND [PROPOSED] ORDER TO CONSOLIDATE, APPOINT COLEAD COUNSEL, AND RESET INITIAL CMC AND RELATED DATES

Case No. 3:16-cv-06136-JST

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ERNESTO ESPINOZA, Derivatively on
Behalf of TWITTER, INC.,

)
)
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Plaintiff,
)
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v.
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JACK DORSEY, ANTHONY NOTO,
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PETER FENTON, DAVID ROSENBLATT, )
MARJORIE SCARDINO, EVAN
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WILLIAMS, RICHARD COSTOLO,
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PETER CHERNIN, and PETER CURRIE,
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Defendants,
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-and)
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TWITTER, INC., a Delaware corporation,
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Nominal Defendant.
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FRANCIS FLEMING, derivatively on behalf )
of TWITTER, INC.,
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Plaintiff,
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v.
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RICHARD COSTOLO, ANTHONY NOTO, )
JACK DORSEY, PETER FENTON, DAVID )
ROSENBLATT, MARJORIE SCARDINO,
)
and EVAN WILLIAMS,
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Defendants,
)
)
)
-and)
)
TWITTER, INC., a Delaware corporation,
)
)
Nominal Defendant.
)
)

Case No.: 3:16-cv-06457-JST
Judge: Honorable Jon S. Tigar
Courtroom: 9
Date Action Filed: November 4, 2016

Case No.: 4:16-cv-06492-JST
Judge: Honorable Jon S. Tigar
Courtroom: 9
Date Action Filed: November 8, 2016

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STIP AND [PROPOSED] ORDER TO CONSOLIDATE, APPOINT COLEAD COUNSEL, AND RESET INITIAL CMC AND RELATED DATES

Case No. 3:16-cv-06136-JST

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WHEREAS, there are presently three related stockholder derivative actions currently

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pending before the Court against Richard Costolo, Anthony Noto, Jack Dorsey, Peter Fenton,

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David Rosenblatt, Marjorie Scardino, Evan Williams, Peter Chernin, and/or Peter Currie (the

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“Individual Defendants”)1, who are certain current and former directors and officers of

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nominal defendant Twitter, Inc. (“Twitter”) (Twitter, together with the Individual Defendants,

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being collectively referred to herein as “Defendants”): Porter v. Costolo, et al., Case No. 3:16-

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cv-06136-JST (“Porter”); Espinoza v. Dorsey, et al., Case No. 3:16-cv-06457-JST

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(“Espinoza”); and Fleming v. Costolo, et al., Case No. 4:16-cv-06492-JST (“Fleming”)

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(together, the “Related Derivative Actions”);

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WHEREAS, under Fed. R. Civ. P. 42(a), when actions involve “a common question of

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law or fact,” the Court may “(1) join for hearing or trial any or all matters at issue in the

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actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or

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delay”;

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WHEREAS, the Related Derivative Actions challenge similar alleged misconduct by
Twitter’s directors and executive officers and involve common questions of law and fact;

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WHEREAS, on November 30, 2016, plaintiffs in the Related Derivative Actions filed

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with this Court a Stipulation and [Proposed] Order Consolidating Derivative Actions, and

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Appointing Co-Lead Counsel for Plaintiffs (“Stipulation Regarding Consolidation and

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Appointment of Co-Lead Counsel”) (ECF No. 18), which sought consolidation of the Related

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Derivative Actions into a single consolidated action (hereinafter referred to as the

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“Consolidated Derivative Action”) to avoid potentially duplicative actions and to prevent any

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waste of the Court’s resources;

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WHEREAS, on December 2, 2016, the Court issued an Order indicating its receipt of

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the Stipulation Regarding Consolidation and Appointment of Co-Lead Counsel, but deferring

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consideration of the Stipulation until the parties filed an administrative motion to relate the

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Omid Kordestani, Martha Lane Fox, Hugh F. Johnston, Debra L. Lee, and Bret Taylor were
inadvertently included in the caption of the Porter action. They are not intended to be
defendants.
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STIP AND [PROPOSED] ORDER TO CONSOLIDATE, APPOINT COLEAD COUNSEL, AND RESET INITIAL CMC AND RELATED DATES

Case No. 3:16-cv-06136-JST

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two derivative actions (Espinoza and Fleming) that at the time were not pending before the

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Court (ECF No. 19);

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WHEREAS, pursuant to the Court’s directive, plaintiffs in the Espinoza and Fleming

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derivative actions each filed administrative motions to relate their respective cases to the

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actions before the Court;

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WHEREAS, on December 7, 2016, the Court entered an order relating the three
derivative actions;

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WHEREAS, the Court has set the following case management conference dates for the

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Related Derivative Actions: Porter—February 15, 2017, and Espinoza and Fleming—

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February 22, 2017;

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WHEREAS, counsel for plaintiffs in the Related Derivative Actions have been

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advised by counsel for Defendants that the parties in the related securities fraud class action

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(Shenwick v. Twitter, Inc., et al., Case No. 3:16-cv-05314-JST) have requested that their case

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management conference be set for April 19, 2017;

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WHEREAS, to avoid potential duplication of efforts and to prevent any waste of the

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Court’s resources, the parties propose that the current case management conference dates for

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the Related Derivative Actions be vacated and that the Court set a single case management

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conference date for the Related Derivative Actions to occur on the same day as the case

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management conference for the related securities fraud class action.

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WHEREAS, Johnson & Weaver, LLP, and Robbins Arroyo LLP seek to be designated

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as Co-Lead Counsel in the Consolidated Derivative Action, and Defendants take no position

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with respect to such designation or with respect to paragraphs 7 and 8 below; and

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WHEREFORE, the parties, through their undersigned counsel, hereby agree,
stipulate, and respectfully request that the Court enter an Order as follows:
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Defendants hereby acknowledge service of the summonses and complaints in

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the Related Derivative Actions. Aside from defenses and objections related to the absence of a

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summons or of service, Defendants expressly reserve all defenses and objections to the

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complaints filed in the Related Derivative Actions and any complaints filed in the
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STIP AND [PROPOSED] ORDER TO CONSOLIDATE, APPOINT COLEAD COUNSEL, AND RESET INITIAL CMC AND RELATED DATES

Case No. 3:16-cv-06136-JST

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Consolidated Derivative Action, including but not limited to defenses based on lack of

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personal jurisdiction and improper venue.

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2.

Defendants need not answer, move or otherwise respond to any of the

complaints currently filed in the Related Derivative Actions.
3.

The following actions shall be consolidated for all purposes, including pre-trial

proceedings and trial, into the Consolidated Derivative Action:

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Case Name

Case No.

Filing Date

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Porter v. Costolo, et al.

3:16-cv-06136-JST

October 24, 2016

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Espinoza v. Dorsey, et al,

3:16-cv-06457-JST

November 4, 2016

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Fleming v. Costolo, et al.

4:16-cv-06492-JST

November 8, 2016

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4.

Every pleading filed in the Consolidated Derivative Action, or in any separate

action included herein, must bear the following caption:

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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IN RE TWITTER, INC. SHAREHOLDER
DERIVATIVE LITIGATION,

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Lead Case No.: 3:16-cv-06136-JST
(Consolidated with Nos. 3:16-cv-06457-JST
and 4:16-cv-06492-JST)

This Document Relates To:
(Derivative Action)

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ALL ACTIONS.
Judge: Honorable Jon S. Tigar
Courtroom: 9
Date Action Filed: October 24, 2016

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5.

The files of the Consolidated Derivative Action will be maintained in one file

under Lead Case No. 3:16-cv-06136-JST.

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STIP AND [PROPOSED] ORDER TO CONSOLIDATE, APPOINT COLEAD COUNSEL, AND RESET INITIAL CMC AND RELATED DATES

Case No. 3:16-cv-06136-JST

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6.

Co-Lead Counsel for plaintiffs for the conduct of In re Twitter, Inc.

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Shareholder Derivative Litigation, Lead Case No. 3:16-cv-06136-JST, is designated as

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follows:

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JOHNSON & WEAVER, LLP
FRANK J. JOHNSON
PHONG L. TRAN
600 West Broadway, Suite 1540
San Diego, CA 92101
Telephone: [phone]
Facsimile: [phone]

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-and-

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ROBBINS ARROYO LLP
BRIAN J. ROBBINS
FELIPE J. ARROYO
SHANE P. SANDERS
600 B Street, Suite 1900
San Diego, CA 92101
Telephone: [phone]
Facsimile: [phone]

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7.

Plaintiffs’ Co-Lead Counsel have the sole authority to speak for plaintiffs in

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matters regarding pre-trial procedure, trial, and settlement negotiations and shall make all work

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assignments in such manner as to facilitate the orderly and efficient prosecution of this

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litigation and to avoid duplicative or unproductive effort.

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8.

Plaintiffs’ Co-Lead Counsel will be responsible for coordinating all activities

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and appearances on behalf of plaintiffs and for the dissemination of notices and orders of this

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Court. No motion, request for discovery, or other pre-trial or trial proceedings will be initiated

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or filed by any plaintiffs except through plaintiffs’ Co-Lead Counsel.

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9.

Defendants’ counsel may rely upon all agreements made with any of plaintiffs’

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Co-Lead Counsel, or other duly authorized representative of plaintiffs’ Co-Lead Counsel, and

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such agreements will be binding on plaintiffs.

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10.

This Order shall apply to each purported derivative action arising out of the

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same or substantially the same transactions or events as the Related Derivative Actions that is

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subsequently filed in, removed to, or transferred to this Court.

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STIP AND [PROPOSED] ORDER TO CONSOLIDATE, APPOINT COLEAD COUNSEL, AND RESET INITIAL CMC AND RELATED DATES

Case No. 3:16-cv-06136-JST

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11.

If a case that properly belongs as part of In re Twitter, Inc. Shareholder

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Derivative Litigation, Lead Case No. 3:16-cv-06136-JST, is hereafter filed in this Court or

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transferred here from another court, counsel shall promptly call to the attention of the Clerk of

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the Court the filing or transfer of any case that might properly be consolidated as part of In re

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Twitter, Inc. Shareholder Derivative Litigation, Lead Case No. 3:16-cv-06136-JST.

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12.

In the interest of efficiency and avoidance of unnecessary duplication of effort

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or judicial resources by the Court or the parties, it is further Ordered that within sixty (60) days

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of the entry of an order consolidating the Related Derivative Actions, plaintiffs’ Co-Lead

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Counsel and counsel for Defendants shall meet and confer regarding further proceedings in the

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Consolidated Derivative Action and shall thereafter submit a stipulation and proposed order

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regarding further proceedings with the Court or, in the event counsel for the parties are unable

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to agree on a proposed schedule for the conduct of further proceedings, shall submit a joint

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status report setting forth their respective views regarding further proceedings in the

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Consolidated Derivative Action.

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13.

Pursuant to Fed. R. Civ. P. 5(b)(2)(E), all parties consent to service by e-mail of

any document required to be served in the Consolidated Derivative Action.

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///

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///
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STIP AND [PROPOSED] ORDER TO CONSOLIDATE, APPOINT COLEAD COUNSEL, AND RESET INITIAL CMC AND RELATED DATES

Case No. 3:16-cv-06136-JST

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14.

The case management conference and related dates for the Related Derivative

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Actions shall be vacated. A case management conference for the Related Derivative Actions

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will be held on April 19, 2017, or an alternative date convenient to the Court on which the case

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management conference in the related securities action is also held.

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Management Conference Statement shall be due seven court days prior to the conference.

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IT IS SO STIPULATED.
Dated: January 18, 2017

JOHNSON & WEAVER, LLP
FRANK J. JOHNSON
PHONG L. TRAN

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By: /s/ Frank J. Johnson
FRANK J. JOHNSON

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600 West Broadway, Suite 1540
San Diego, CA 92101
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

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Attorneys for Plaintiff Jim Porter and
[Proposed] Co-Lead Counsel for Plaintiffs

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Dated: January 18, 2017

ROBBINS ARROYO LLP
BRIAN J. ROBBINS
FELIPE J. ARROYO
SHANE P. SANDERS

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The Joint Case

By: /s/ Brian J. Robbins
BRIAN J. ROBBINS

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600 B Street, Suite 1900
San Diego, CA 92101
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

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Attorneys for Plaintiff Ernesto Espinoza and
[Proposed] Co-Lead Counsel for Plaintiffs

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STIP AND [PROPOSED] ORDER TO CONSOLIDATE, APPOINT COLEAD COUNSEL, AND RESET INITIAL CMC AND RELATED DATES

Case No. 3:16-cv-06136-JST

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Dated: January 18, 2017

PROFY PROMISLOFF & CIARLANTO, P.C.
JOSEPH M. PROFY
JEFFREY J. CIARLANTO
DAVID M. PROMISLOFF

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By: /s/ Joseph M. Profy
JOSEPH M. PROFY

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100 N. 22nd Street, Unit 105
Philadelphia, PA 19103
Telephone: [phone]
Facsimile: [phone]

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BRODSKY & SMITH, LLC
EVAN J. SMITH
9595 Wilshire Blvd.
Beverly Hills, CA 90212
Telephone: [phone]
Facsimile: [phone]

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LAW OFFICE OF ALFRED G. YATES, JR.,
P.C.
ALFRED G. YATES, JR.
GERALD L. RUTLEDGE
519 Allegheny Building
429 Forbes Avenue
Pittsburgh, PA 15219
Phone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff Francis Fleming

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Dated: January 18, 2017

SIMPSON THACHER & BARTLETT LLP
SIMONA G. STRAUSS

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By: /s/ Simona G. Strauss
SIMONA G. STRAUSS

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2475 Hanover Street
Palo Alto, CA 94304
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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Attorneys for Defendants Richard Costolo,
Anthony Noto, Jack Dorsey, Peter Fenton,
David Rosenblatt, Marjorie Scardino, Evan
Williams, Peter Chernin, Peter Currie, and
Nominal Defendant Twitter, Inc.

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STIP AND [PROPOSED] ORDER TO CONSOLIDATE, APPOINT COLEAD COUNSEL, AND RESET INITIAL CMC AND RELATED DATES

Case No. 3:16-cv-06136-JST

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SIGNATURE ATTESTATION

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I am the ECF user whose identification and password are being used to file the

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foregoing Stipulation and [Proposed] Order to Consolidate Derivative Actions, Appoint Co-

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Lead Counsel for Plaintiffs, and Reset Initial Case Management Conference and Related

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Dates. In compliance with Local Rule 5-1(i)(3), I hereby attest that concurrence in the filing

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of this document has been obtained.

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Dated: January 18, 2017

/s/ Frank J. Johnson
Frank J. Johnson

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****

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ORDER

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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January 20
Dated: _____________, 2017
HON. JON S. TIGAR
UNITED STATES DISTRICT JUDGE

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STIP AND [PROPOSED] ORDER TO CONSOLIDATE, APPOINT COLEAD COUNSEL, AND RESET INITIAL CMC AND RELATED DATES

Case No. 3:16-cv-06136-JST