Melvin Gross v. Brocade Communications Systems, Inc. et al

Filing 15

STIPULATION AND ORDER re 14 STIPULATION WITH PROPOSED ORDER re 1 Complaint, Re Dismissal of Case with court to retain jurisdiction filed by Melvin Gross. Signed by Judge Edward M. Chen on 2/15/17. (bpfS, COURT STAFF) (Filed on 2/15/2017)

1 David E. Bower
MONTEVERDE & ASSOCIATES PC
2 600 Corporate Pointe, Suite 1170
Culver City, CA 90230
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Tel: [phone]
4 Fax: [phone]
5 Counsel for Plaintiff
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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MEL GROSS, Individually and on Behalf of
9 All Others Similarly Situated,
Plaintiff,

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Civil Action No. 5:16-cv-07173-EMC

v.

12 BROCADE COMMUNICATIONS
SYSTEMS, INC., LLOYD A. CARNEY,
13 JUDY BRUNER, RENATO A.
DIPENTIMA, ALAN L. EARHART, JOHN
14 W. GERDELMAN, KIM C. GOODMAN,
DAVID L. HOUSE, L. WILLIAM
15 KRAUSE, DAVID E. ROBERSON, and
SANJAY VASWANI,
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Defendants.
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STIPULATION AND [PROPOSED] ORDER CONCERNING PLAINTIFF’S
VOLUNTARY DISMISSAL OF THE ABOVE ACTION WITHOUT PREJUDICE AND
PLAINTIFF’S COUNSEL’S ANTICIPATED APPLICATION FOR AN AWARD OF
ATTORNEYS’ FEES AND EXPENSES
WHEREAS, on November 2, 2016, Brocade Communications Systems, Inc. (“Brocade”

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or the “Company”) announced that it had entered into a definitive merger agreement (the

25 “Merger Agreement”), pursuant to which a wholly owned subsidiary of Broadcom will merge
26 with and into Brocade (the “Proposed Transaction”);
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STIPULATION TO DISMISS

WHEREAS, on December 6, 2016, Brocade filed a preliminary proxy statement (the

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2 “Preliminary Proxy”) with the Securities and Exchange Commission (“SEC”) in support of the
3 Proposed Transaction;
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WHEREAS, on December 14, 2016, Plaintiff Melvin Gross (“Plaintiff”), a shareholder of

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Brocade, filed a Class Action Complaint in the above captioned action (the “Action”) alleging

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Defendants violated Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 and Rule

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14a-9 promulgated thereunder (the "Exchange Act'') by causing the allegedly materially
incomplete and misleading Proxy to be filed;
WHEREAS, on December 20, 2016, Brocade filed a definitive proxy statement (the

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11 “Definitive Proxy”) with the SEC setting a shareholder meeting on January 26, 2017;
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WHEREAS, on December 23, 2016, Plaintiff sent a formal demand letter to Defendants
stating that the Definitive Proxy had failed to address his alleged disclosure violations and

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providing legal authority in support of the alleged disclosure violations in his Class Action
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Complaint;
WHEREAS, on January 18, 2017, Brocade filed an amended proxy containing

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18 supplemental disclosures addressing certain disclosure allegations in the Action (the
19 “Supplemental Disclosures”);
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WHEREAS, Plaintiff contends that the prosecution of the Action was a cause of the
decision to make the Supplemental Disclosures, and Defendants dispute that contention;

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WHEREAS, the Supplemental Disclosures moot the disclosure claims asserted in the
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Action;
NOW THEREFORE, pursuant to the stipulations of the parties, IT IS HEREBY

26 ORDERED AND ADJUDGED THAT:
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STIPULATION TO DISMISS

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to Plaintiff;

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Plaintiff hereby agrees to voluntarily dismiss the Action, without prejudice

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Plaintiff contends that the Supplemental Disclosures were issued by
Defendants in response to this Action and the efforts of Plaintiff’s counsel

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to prosecute disclosure claims, and Plaintiff therefore asserts that his

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counsel is entitled to a fee and expense award;

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are entitled to a fee and expense award; and

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Defendants dispute Plaintiff’s contention and deny that Plaintiff’s counsel

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This Court retains continuing jurisdiction over the parties in the Action

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solely for purposes of further proceedings related to the adjudication of

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Plaintiff’s anticipated application for an award of attorneys’ fees and

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expenses.

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Respectfully submitted,

DATED: February 6, 2017

By:/s/ David E. Bower
David E. Bower SBN 119546
MONTEVERDE & ASSOCIATES PC
600 Corporate Pointe, Suite 1170
Culver City, CA 90230
Tel: [phone]
Fax: [phone]
Email: [e-mail]

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OF COUNSEL

21 MONTEVERDE & ASSOCIATES PC
Juan E. Monteverde
22 The Empire State Building
350 Fifth Avenue, 59th Floor
23 New York, NY 10118
24 Tel: [phone]
E-mail: [e-mail]
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Counsel for Plaintiff

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STIPULATION TO DISMISS

GAINEY McKENNA & EGLESTON
1 Thomas J. McKenna
2 Gregory M. Egleston
440 Park Avenue South, 5th Floor
3 New York, NY 10016
Telephone: [phone]
4 Facsimile: [phone]
Email: [e-mail]
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Email: [e-mail]
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Counsel for Plaintiff
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WILSON SONSINI GOODRICH &
ROSATI
Professional Corporation

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By: /s/ Boris Feldman
Boris Feldman
650 Page Mill Road
Palo Alto, CA 94304
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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Attorneys for Defendants Brocade
Communications Systems, Inc., Lloyd A.
Carney, Judy Bruner, Renato A. DiPentima,
Alan L. Earhart, John W. Gerdelman, Kim
C. Goodman, David L. House, L. William
Krause, David E. Roberson, and Sanjay
Vaswani

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RT

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. Chen

dward M

Judge E

ER

A

H

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R NIA

NO

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ERED
O ORD D
IT IS S
DIFIE
AS MO

FO

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RT
U
O

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LI

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Because this case has been related to an earlier-filed case (C-16-7081 EMC) as well as
several other cases, the Court expects Plaintiff in the instant case to meet and confer
with plaintiffs' counsel in the other cases as to the appropriate timing of any fee
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motion.
DISTR
E Judge ICT
United States District Court S
C
AT
T

S

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IT IS SO ORDERED.

UNIT
ED

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F
D IS T IC T O
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STIPULATION TO DISMISS