Porter v. Costolo et al

Filing 38

STIPULATION AND ORDER re 37 STIPULATION WITH PROPOSED ORDER filed by Francis Fleming, Ernesto Espinoza, Jim Porter. Signed by Judge Jon S. Tigar on December 15, 2017. (wsn, COURT STAFF) (Filed on 12/15/2017)

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

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-and-

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

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Co-Lead Counsel for Plaintiffs

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[Additional Counsel on Signature Page]

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
IN RE TWITTER, INC. SHAREHOLDER
DERIVATIVE LITIGATION,

(Consolidated with Nos. 3:16-cv-06457-JST and
4:16-cv-06492-JST)

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

This Document Relates To:
STIPULATION AND [PROPOSED] ORDER
ALL ACTIONS.
(Derivative Action)

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

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STIPULATION AND [PROPOSED] ORDER

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

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Plaintiffs Jim Porter, Ernesto Espinoza, and Francis Fleming (“Plaintiffs”), individual

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defendants Richard Costolo, Anthony Noto, Jack Dorsey, Peter Fenton, David Rosenblatt,

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Marjorie Scardino, Evan Williams, Peter Chernin, Peter Currie, and nominal defendant

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Twitter, Inc. (“Twitter” and, together with the individual defendants, the “Defendants”), through

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their respective counsel, hereby stipulate as follows:

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WHEREAS, pursuant to the Court’s November 16, 2017 Order, the parties in this

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consolidated derivative action (the “Derivative Action”) are to submit a proposed scheduling

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stipulation to the Court by December 15, 2017;

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WHEREAS, the parties have met and conferred regarding the forum selection clause

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contained in Twitter’s corporate bylaws and its potential impact on the Derivative Action, and

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submit this stipulation in connection therewith;

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WHEREAS, the parties agree that by entering into this stipulation, Defendants expressly

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reserve and do not waive their defenses and objections in this Derivative Action, including

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defenses and objections to jurisdiction, forum, and venue;

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WHEREAS, the parties also agree that Plaintiffs expressly reserve and do not waive their

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right to challenge the validity of Twitter’s corporate bylaws, or the application of the bylaws to

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the Derivative Action; and

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WHEREAS, the parties further agree that this stipulation shall have no bearing on whether
or not the Derivative Action should be stayed pending resolution of the Securities Action;
NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between
the parties, through their undersigned counsel, subject to the approval of the Court, as follows:
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The parties acknowledge that Twitter’s forum selection clause, which is contained

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in its corporate bylaws and which was in place before the commencement of this Derivative

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Action, states that “any derivative action or proceeding brought on behalf of [Twitter]” must be

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litigated exclusively in a “state or federal court located within the state of Delaware.”

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2.

The parties are in the process of drafting a stipulation, which they will present to

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the Court for its approval by no later than December 31, 2017, that the Derivative Action should

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be transferred to the United States District Court for the District of Delaware.
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STIPULATION AND [PROPOSED] ORDER

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

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3.

In entering this stipulation and agreement, Defendants expressly reserve and do not

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waive their defenses and objections in this Derivative Action, including defenses and objections

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to jurisdiction, forum, and venue.

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4.

Plaintiffs also expressly reserve and do not waive their right to challenge the

validity of Twitter’s corporate bylaws or the application of the bylaws to the Derivative Action.
IT IS SO STIPULATED.
Dated: December 15, 2017

JOHNSON FISTEL, LLP
FRANK J. JOHNSON
PHONG L. TRAN

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By: /s/ Phong L. Tran
PHONG L. TRAN

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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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Co-Lead Counsel for Plaintiffs
Dated: December 15, 2017

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

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By: /s/ Shane P. Sanders
SHANE P. SANDERS

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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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Co-Lead Counsel for Plaintiffs
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STIPULATION AND [PROPOSED] ORDER

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

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Dated: December 15, 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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SIGNATURE ATTESTATION

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

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Stipulation and [Proposed Order]. In compliance with Local Rule 5-1(i)(3), I hereby attest that

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concurrence in the filing of this document has been obtained.

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Dated: December 15, 2017

/s/ Phong L. Tran
PHONG L. TRAN

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***

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ORDER

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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Dated: December 15, 2017
HONORABLE JON S. TIGAR
UNITED STATES DISTRICT JUDGE

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STIPULATION AND [PROPOSED] ORDER

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