Joseph Tola v. UCP, Inc. et al

Filing 13

ORDER GRANTING STIPULATION AS MODIFIED by Hon. William Alsup granting 12 Stipulation.(whalc1S, COURT STAFF) (Filed on 7/20/2017)

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1 4 Rosemary M. Rivas (SBN 209147) rrivas@zlk.com LEVI & KORSINSKY LLP 44 Montgomery Street, Suite 650 San Francisco, CA 94104 Telephone: (415) 291-2420 Facsimile: (415) 484-1294 5 Attorneys for Plaintiff Joseph Tola 6 [Additional counsel on signature page] 2 3 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 12 JOSEPH TOLA, On Behalf of Himself and All Others Similarly Situated, Plaintiff, 13 14 v. 15 Case No. 3:17-cv-02713-WHA UCP, INC., MICHAEL C. CORTNEY, DUSTIN L. BOGUE, ERIC H. SPERON, PETER H. LORI, KATHLEEN R. WADE, MAXIM C.W. WEBB, CENTURY COMMUNITIES, INC., and CASA ACQUISITION CORP., 16 17 18 19 STIPULATION AND [PROPOSED] ORDER TO TEMPORARILY STAY AS MODIFIED Defendants. 20 WHEREAS, plaintiff Joseph Tola (“Plaintiff”) filed the above-captioned action (the “Action”) 21 challenging the disclosures made by UCP, Inc. (“UCP”) in connection with the proposed acquisition of 22 UCP by Century Communities, Inc. (“Parent”), and its wholly owned subsidiary, Casa Acquisition Corp. 23 (“Merger Sub”), pursuant to a definitive agreement and plan of merger filed with the United States 24 Securities and Exchange Commission (“SEC”) on or around April 11, 2017 (the “Transaction”); 25 WHEREAS, the Action asserts claims for violations of Sections 14(a) and 20(a) of the Securities 26 Exchange Act of 1934 by defendants in connection with UCP’s Form S-4 Registration Statement (the 27 “Registration Statement”) filed with the SEC on or around May 5, 2017; 28 30 31 1 STIPULATION AND [PROPOSED] ORDER TO TEMPORARILY STAY Case No. 3:17-cv-02713-WHA 1 WHEREAS, on June 21, 2017, UCP filed an amendment to the Registration Statement with the 2 SEC that included certain additional information relating to the Transaction that addressed and mooted 3 Plaintiff’s claims (the “Supplemental Disclosures”); 4 WHEREAS, the parties intend to enter into, and for Plaintiff to file, a stipulation of dismissal, 5 pursuant to which the Action will be dismissed with prejudice as to Plaintiff only, and without prejudice 6 as to the putative class (the “Stipulation of Dismissal”), after the Transaction closes, which defendants 7 currently expect to occur on August 4, 2017; 8 WHEREAS, Plaintiff’s counsel intend to assert a claim for a mootness fee and expenses in 9 connection with the mooted claims (the “Fee Application”), and seek Court intervention only if the 10 parties cannot resolve Plaintiff’s Fee Application; 11 WHEREAS, UCP’s deadline to move or answer Plaintiff’s complaint is July 17, 2017, and Casa 12 Acquisition Corp.’s and Century Communities Inc.’s deadline to move or answer Plaintiff’s complaint is 13 July 18, 2017; 14 15 WHEREAS, the parties seek to temporarily stay all deadlines in the Action, including defendants’ time to answer Plaintiff’s complaint; 16 WHEREAS, for the avoidance of doubt, no compensation in any form has passed directly or 17 indirectly to Plaintiff or his attorneys and no promise, understanding, or agreement to give any such 18 19 20 21 22 compensation has been made; WHEREAS, defendants have denied and continue to deny any wrongdoing and contend that no claim asserted in the Action was ever meritorious, and reserve all rights, arguments, and defenses, including the right to oppose any potential Fee Application; 23 WHEREAS, no class has been certified in the Action; 24 WHEREAS, the temporary stay would stay the deadlines fixed by this Court’s order, including 25 the August 17, 2017 deadline to file a Rule 26(f) Report, complete initial disclosures, and file a Case 26 Management Statement and the August 24, 2017 Initial Case Management Conference; 27 28 30 31 WHEREAS, Plaintiff’s potential Fee Application will comply with Local Rule 54-5; 2 STIPULATION AND [PROPOSED] ORDER TO TEMPORARILY STAY Case No. 3:17-cv-02713-WHA Case 3:17-cv-02713-WHA Document 12 Filed 07/19/17 Page 3 of 5 1 2 3 4 5 NOW, THEREFORE, IT IS HEREBY STIPULATED, upon consent of the parties and subject to the approval of the Court that: 1. The Action is stayed, and all deadlines in the Action are stayed, including the defendants’ time to answer the Complaint until August 16, 2017, or the date of the stipulated dismissal, whichever is earlier. 2. The August 17, 2017 deadline to file a Rule 26(f) Report, complete initial disclosures or 6 state objections, and file a Case Management Statement and the August 24, 2017 Initial Case 7 Management Conference are taken off-calendar. 8 3. Within two (2) business days of the close of the Transaction, Plaintiff will file the 9 Stipulation of Dismissal, pursuant to which the Action will be dismissed with prejudice as to Plaintiff 10 only, and without prejudice as to the putative class. If the Transaction does not close by August 30, 11 2017, the parties will jointly inform the Court of the status of the case. 12 13 14 15 16 17 18 4. Plaintiff’s Fee Application, if filed, will comply with Local Rule 54-5. Dated: July 19, 2017 LEVI & KORSINSKY LLP By: OF COUNSEL: RIGRODSKY & LONG, P.A. Brian D. Long Gina M. Serra 2 Righter Parkway, Suite 120 Wilmington, DE 19803 (302) 294-5310 Local Counsel for Plaintiff Joseph Tola 19 20 21 22 23 24 25 26 /s/ Rosemary M. Rivas Rosemary M. Rivas 44 Montgomery Street, Suite 650 San Francisco, CA 94104 (415) 291-2420 JENNER & BLOCK LLP By: OF COUNSEL: PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Geoffrey Chepiga Arianna Markel 1285 Avenue of the Americas New York, NY 10019 Tel: (212) 373-3000 gchepiga@paulweiss.com /s/ Todd C. Toral Todd C. Toral 633 West 5th Street Suite 3600, Los Angeles, CA 90071-2054 (213) 239-2294 ttoral@jenner.com Attorneys for Defendants UCP, Inc., Michael C. Cortney, Dustin L. Bogue, Eric H. Speron, Peter H. Lori, Kathleen R. Wade, Maxim C.W. Webb 27 28 30 31 3 STIPULATION AND [PROPOSED] ORDER TO TEMPORARILY STAY Case No. 3:17-cv-02713-WHA Case 3:17-cv-02713-WHA Document 12 Filed 07/19/17 Page 4 of 5 1 GREENBERG TRAURIG, LLP 2 /s/ Daniel J. Tyukody Daniel J. Tyukody 1840 Century Park East, Suite 1900 Los Angeles, CA 90067 (310) 586-7700 3 4 5 6 Attorneys for Defendants Century Communities, Inc., and Casa Acquisition Corp. 7 8 9 10 11 12 FILER’S ATTESTATION Pursuant to Civil Local Rule 5-1 regarding signatures, I attest under penalty of perjury that the concurrence in the filing of this document has been obtained from all signatories. /s/ Rosemary M. Rivas Rosemary M. Rivas 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 4 STIPULATION AND [PROPOSED] ORDER TO TEMPORARILY STAY Case No. 3:17-cv-02713-WHA Case 3:17-cv-02713-WHA Document 12 Filed 07/19/17 Page 5 of 5 1 2 3 4 5 6 [PROPOSED] ORDER Based on the foregoing stipulation and good cause being shown, the Court hereby GRANTS the parties’ Stipulation. The Court hereby orders as follows: 1. The Action is stayed, and all deadlines in the Action are stayed, including the defendants’ time to answer the Complaint until August 16, 2017, or the date of the stipulated dismissal, whichever is earlier. 2. The August 17, 2017 deadline to file a Rule 26(f) Report, complete initial disclosures or 7 state objections, and file a Case Management Statement and the August 24, 2017 Initial Case 8 Management Conference are taken off-calendar. 9 3. Within two (2) business days of the close of the Transaction, Plaintiff will file the 10 Stipulation of Dismissal, pursuant to which the Action will be dismissed with prejudice as to Plaintiff 11 only, and without prejudice as to the putative class. If the Transaction does not close by August 30, 12 2017, the parties will jointly inform the Court of the status of the case. 13 4. If Plaintiff files a Fee Application, it will comply with Local Rule 54-5. 14 15 IT IS SO ORDERED. 16 July 20 _______________________, 2017. 17 18 HONORABLE WILLIAM ALSUP UNITED STATES DISTRICT COURT JUDGE 19 20 21 22 23 24 25 26 27 28 30 31 5 STIPULATION AND [PROPOSED] ORDER TO TEMPORARILY STAY Case No. 3:17-cv-02713-WHA

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