Debnath v. Rocket Fuel Inc. et al

Filing 8

STIPULATION AND ORDER re 7 Dismissing Action as Moot and Retaining Jurisdiction to Determine Plaintiff's Counsel's Potential Joint Application for Fees and Expenses. Signed by Judge Richard Seeborg on 9/14/17. (cl, COURT STAFF) (Filed on 9/14/2017)

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4 Rosemary M. Rivas (State Bar No. 209147) Email: rrivas@zlk.com LEVI & KORSINSKY, LLP 44 Montgomery Street, Suite 650 San Francisco, California 94104 Telephone: (415) 291-2420 Facsimile: (415) 484-1294 5 Counsel for Plaintiff ARNAB DEBNATH 1 2 3 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 12 ARNAB DEBNATH, on behalf of himself and all others similarly situated, CLASS ACTION Plaintiff, 13 14 15 16 17 18 Case No. 3:17-cv-04615-RS vs. ROCKET FUEL INC., E. RANDOLPH WOOTTON III, MONTE ZWEBEN, RICHARD A. FRANKEL, SUSAN L. BOSTROM, RONALD E. F. CODD, WILLIAM W. ERICSON, CLARK M. KOKICH, and JOHN J. LEWIS, STIPULATION AND [PROPOSED] ORDER DISMISSING ACTION AS MOOT AND RETAINING JURISDICTION TO DETERMINE PLAINTIFF’S COUNSEL’S POTENTIAL JOINT APPLICATION FOR FEES AND EXPENSES Defendants. 19 20 WHEREAS, on August 10, 2017, Plaintiff Arnab Debnath filed a putative Class Action 21 Complaint (the “Complaint”) in the captioned action (the “Action”) alleging violations of the Securities 22 Exchange Act of 1934 (the “Exchange Act”); 23 WHEREAS, Plaintiff alleged that Defendants violated Section 14(d) of the Exchange Act and 24 Rule 14d-9 promulgated thereunder by causing an allegedly materially incomplete and misleading 25 Recommendation Statement on Schedule 14D-9 (the “Recommendation Statement”) filed with the 26 Securities and Exchange Commission (the “SEC”) on August 2, 2017, which recommended that Rocket 27 Fuel Inc. (“Rocket Fuel”) stockholders tender their shares in favor of approving a transaction between 28 Rocket Fuel and Sizmek Inc. (the “Tender Offer”); 1 Case No. 3:17-cv-04615-RS STIPULATION AND [PROPOSED] ORDER DISMISSING ACTION AS MOOT AND RETAINING JURISDICTION TO DETERMINE PLAINTIFF’S COUNSEL’S POTENTIAL JOINT APPLICATION FOR FEES AND EXPENSES 1 WHEREAS, Plaintiff further alleged that Defendants violated Section 14(e) of the Exchange 2 Act by issuing the Recommendation Statement in which they made allegedly false and misleading 3 statements or allegedly omitted material facts; 4 5 6 7 WHEREAS, six similarly-styled class actions have been filed in this Court challenging the Tender Offer (together with the Action, the “Related Actions”); WHEREAS, subsequent to the filing of the Complaint, counsel for the parties engaged in arm’s-length negotiations in an effort to resolve Plaintiff’s claims; 8 WHEREAS, following these negotiations, on August 22, 2017, the parties to the Related Actions 9 entered a Memorandum of Understanding (“MOU”) pursuant to which Rocket Fuel agreed to make 10 certain supplemental disclosures; 11 WHEREAS, pursuant to the MOU, on August 23, 2017, Rocket Fuel filed a Schedule 14D-9/A 12 with the SEC, which contained certain supplemental disclosures related to the Proposed Transaction 13 (the “Supplemental Disclosures”), which Plaintiff believes addressed and mooted his claims regarding 14 the sufficiency of the disclosures in the Recommendation Statement; 15 WHEREAS, Plaintiff asserts that the prosecution of the Related Actions caused Rocket Fuel 16 to file the Supplemental Disclosures and that plaintiffs’ counsel have the right to seek and recover 17 attorneys’ fees and expenses in connection with a claimed common benefit provided to Rocket Fuel’s 18 shareholders as a result of the filing of the Supplemental Disclosures, and plaintiffs’ counsel in the 19 Related Actions have agreed that if their claim for fees and expenses cannot be resolved through 20 negotiations, a single application for fees and expenses will be jointly made by plaintiffs’ counsel and 21 filed in the action captioned Bushansky, et al. v. Rocket Fuel, Inc. et al., Case No. 3:17-cv-04454-JD 22 (the “Fee Application”); 23 WHEREAS, the Tender Offer closed on September 5, 2017; 24 WHEREAS, pursuant to the terms of the MOU, Plaintiff’s counsel wishes to dismiss the 25 Complaint with prejudice as to Plaintiff and without prejudice as to the unnamed members of the 26 putative class; 27 WHEREAS, the parties agree and respectfully request that this Court retain jurisdiction over 28 the Action for the sole purpose of considering any Fee Application in the event the parties are unable 2 Case No. 3:17-cv-04615-RS STIPULATION AND [PROPOSED] ORDER DISMISSING ACTION AS MOOT AND RETAINING JURISDICTION TO DETERMINE PLAINTIFF’S COUNSEL’S POTENTIAL JOINT APPLICATION FOR FEES AND EXPENSES 1 to reach an agreement concerning the amount of any attorneys’ fees and expenses to be paid to counsel 2 for plaintiffs in the Related Actions and such an application becomes necessary; 3 WHEREAS, for the avoidance of doubt, no compensation in any form has passed directly or 4 indirectly to Plaintiff or his attorneys, and no promise, understanding or agreement to give any such 5 compensation has been made; nor have the parties had any discussions concerning the amount of any 6 attorneys’ fees and expenses; 7 8 WHEREAS, Defendants have denied and continue to deny any wrongdoing and contend that no claim asserted in the Related Actions was ever meritorious; 9 10 WHEREAS, Defendants reserve the right to oppose, in whole or in part, any Fee Application; and 11 WHEREAS, no class has been certified in this Action. 12 NOW, THEREFORE, IT IS STIPULATED AND AGREED by the undersigned parties, 13 through their attorneys and subject to the Court’s approval, that: 14 1. 15 Notice is hereby given that pursuant to Rule 41(a)(l)(A) of the Federal Rules of Civil Procedure, Plaintiff voluntarily dismisses this Action as moot. 16 2. 17 The claims pleaded in the Complaint are dismissed with prejudice as to Plaintiff and without prejudice as to the unnamed members of the putative class. 18 3. 19 Because the dismissal is with prejudice as to the named Plaintiff only, and not on behalf of a putative class, and no class has been certified, notice of this dismissal is not required. 20 4. 21 This Court shall retain jurisdiction over the parties in the Action solely for the purpose of adjudicating the Fee Application, should such an application prove necessary. 22 23 24 25 26 27 /// 28 /// 3 Case No. 3:17-cv-04615-RS STIPULATION AND [PROPOSED] ORDER DISMISSING ACTION AS MOOT AND RETAINING JURISDICTION TO DETERMINE PLAINTIFF’S COUNSEL’S POTENTIAL JOINT APPLICATION FOR FEES AND EXPENSES 1 5. The parties to the Related Actions shall meet and confer concerning plaintiffs’ claim for 2 attorneys’ fees and expenses. To the extent that the parties are unable to reach an 3 agreement concerning plaintiffs’ claim for attorneys’ fees and expense, they will contact 4 the Court to set a stipulated briefing and hearing schedule with respect to the Fee 5 Application. If the parties reach an agreement concerning plaintiffs’ claim for attorneys’ 6 fees and expenses, they will notify the Court. 7 8 Respectfully submitted, Dated: September 13, 2017 9 LEVI & KORSINSKY, LLP By: /s/ Rosemary M. Rivas Rosemary M. Rivas 44 Montgomery Street, Suite 650 San Francisco, CA 94104 Telephone: (415) 291-2420 Facsimile: (415) 484-1294 10 11 12 17 Donald J. Enright (to be admitted pro hac vice) Elizabeth K. Tripodi (to be admitted pro hac vice) LEVI & KORSINSKY, LLP 1101 30th Street NW, Suite 115 Washington, DC 20007 Tel: (202) 524-4290 Fax: (202) 337-1567 Email: denright@zlk.com 18 Counsel for Plaintiff Arnab Debnath 13 14 15 16 19 20 21 22 23 Dated: September 13, 2017 WILSON SONSINI GOODRICH & ROSATI, PROFESSIONAL CORPORATION By: /s/ Steven Guggenheim Steven Guggenheim 650 Page Mill Road Palo Alto, California 94304-1050 Telephone: 650/565-3751 24 25 26 27 Attorneys for Defendants Rocket Fuel Inc., Randolph Wootton III, Monte Zweben, Richard A. Frankel, Susan L. Bostrom, Ronald E. F. Codd, William W. Ericson, Clark M. Kokich, and John J. Lewis 28 4 Case No. 3:17-cv-04615-RS STIPULATION AND [PROPOSED] ORDER DISMISSING ACTION AS MOOT AND RETAINING JURISDICTION TO DETERMINE PLAINTIFF’S COUNSEL’S POTENTIAL JOINT APPLICATION FOR FEES AND EXPENSES 1 2 3 4 Dated: September 13, 2017 KIRKLAND & ELLIS LLP By: /s/ Matthew Solum Matthew Solum 601 Lexington Avenue New York, NY 10022 Telephone: 212/446-4688 5 6 Attorneys for Defendants Sizmek inc., Fuel Acquisition Co., and Vector Capital 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 5 Case No. 3:17-cv-04615-RS STIPULATION AND [PROPOSED] ORDER DISMISSING ACTION AS MOOT AND RETAINING JURISDICTION TO DETERMINE PLAINTIFF’S COUNSEL’S POTENTIAL JOINT APPLICATION FOR FEES AND EXPENSES 1 2 3 [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: 4 1. Plaintiff voluntarily dismisses this action as moot. 5 2. The claims pleaded in the Complaint are dismissed with prejudice as to Plaintiff and 6 7 without prejudice as to the unnamed members of the putative class. 3. 8 9 of adjudicating the Fee Application, should such an application prove necessary. 4. 10 11 This Court shall retain jurisdiction over the parties in the Action solely for the purpose Because the dismissal is with prejudice as to the named Plaintiff only, and not on behalf of a putative class, and no class has been certified, notice of this dismissal is not required. 5. The parties to the Related Actions shall meet and confer concerning Plaintiffs’ claim for 12 attorneys’ fees and expenses. To the extent that the parties are unable to reach an 13 agreement concerning Plaintiffs’ claim for attorneys’ fees and expense, they will contact 14 the Court to set a stipulated briefing and hearing schedule with respect to the Fee 15 Application. If the parties reach an agreement concerning Plaintiffs’ claim for attorneys’ 16 fees and expenses, they will notify the Court. 17 18 September, SO ORDERED this ___________________ day of ______, 2017. 14th 19 20 21 By: 22 HONORABLE RICHARD SEEBORG UNITED STATES DISTRICT COURT JUDGE 23 24 25 26 27 28 6 Case No. 3:17-cv-04615-RS STIPULATION AND [PROPOSED] ORDER DISMISSING ACTION AS MOOT AND RETAINING JURISDICTION TO DETERMINE PLAINTIFF’S COUNSEL’S POTENTIAL JOINT APPLICATION FOR FEES AND EXPENSES

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