Simonson v. ShoreTel, Inc. et al

Filing 9

ORDER GRANTING STIPULATION AND DISMISSING ACTION AS MOOT by Judge William Alsup granting 8 Stipulation.(whalc1, COURT STAFF) (Filed on 10/3/2017)

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SAN FRANCISCO

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ATTORNEYS AT LAW

F ENWICK & W EST LLP

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KEVIN P. MUCK (CSB No. 120918)
[e-mail]
MARIE C. BAFUS (CSB No. 258417)
[e-mail]
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone:
415.875.2300
Facsimile:
415.281.1350
FELIX S. LEE (CSB No. 197084)
[e-mail]
FENWICK & WEST LLP
801 California Street
Mountain View, CA 94041
Telephone:
650.988.8500
Facsimile:
650.938.5200
Attorneys for Defendants
ShoreTel, Inc., Shane Robison, Don Joos,
Marjorie Bowen, Mark Bregman, Kenneth
Denman, Charles Kissner, Constance Skidmore
and Josef Vejvoda

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID H. SIMONSON, Individually and on
Behalf of All Others Similarly Situated,
Plaintiff,
v.

Case No.: 17-cv-4931-WHA
STIPULATION AND [PROPOSED]
ORDER VOLUNTARILY DISMISSING
ACTION AS MOOT PURSUANT TO
FED. R. CIV. P. 41(a)(1)(A)(ii)

SHORETEL, INC., SHANE ROBISON, DON
JOOS, MARJORIE BOWEN, MARK
BREGMAN, KENNETH DENMAN,
CHARLES KISSNER, CONSTANCE
SKIDMORE, JOSEF VEJVODA, MITEL US
HOLDINGS, INC., SHELBY ACQUISITION
CORPORATION, and MITEL NETWORKS
CORPORATION,
Defendants.

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STIP. AND ORDER RE DISMISSAL

Case No. 17-cv-04931-WHA

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STIPULATION OF DISMISSAL
WHEREAS, on August 27, 2017, Plaintiff David H. Simonson filed the above-captioned

3 action (the “Simonson Action”);
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WHEREAS, five other substantially similar actions have been filed in this Court, styled

5 Scarantino v. ShoreTel, Inc., et al., Case No. 4:17-cv-04857-YRG (the “Scarantino Action”),
6 Frydman v. ShoreTel, Inc., et al., Case No. 4:17-cv-04865-BLF (the “Frydman Action”), Mozee v.
7 ShoreTel, Inc., et al., Case No. 4:17-cv-04888-HSG (the “Mozee Action”), Herrera v. ShoreTel,
8 Inc., et al., Case No. 3:17-cv-04988-WHO (the “Herrera Action”), and De Angelis v. ShoreTel,
9 Inc., et al., Case No. 3:17-cv-05091-WHO (the “De Angelis Action”), all of which are collectively
10 referred to with the Simonson Action as the “Actions”;
WHEREAS, the Actions challenged disclosures made in connection with the proposed

SAN FRANCISCO

12 acquisition of ShoreTel, Inc. (“ShoreTel”), by Mitel Networks Corporation and its subsidiaries
ATTORNEYS AT LAW

F ENWICK & W EST LLP

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13 (collectively, “Mitel”), pursuant to a definitive agreement and plan of merger filed with the United
14 States Securities and Exchange Commission (“SEC”) on or around July 26, 2017 (the
15 “Transaction”);
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WHEREAS, the Actions asserted claims for, inter alia, Defendants’ alleged violations of

17 Sections 14 and 20(a) of the Securities Exchange Act of 1934 in ShoreTel’s Solicitation/
18 Recommendation Statement (the “Solicitation Statement”), filed with the SEC on or around
19 August 17, 2017;
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WHEREAS, Defendants deny that Plaintiffs have asserted any meritorious claim, deny that

21 the Solicitation Statement contained any misstatement or omission, and deny that any further
22 information is required under any federal or state law;
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WHEREAS, on September 8, 2017, ShoreTel filed an amendment to the Solicitation

24 Statement that included certain additional information relating to the Transaction that addressed
25 and mooted claims regarding the sufficiency of the disclosures in the Solicitation Statement as
26 alleged in the Actions (the “Supplemental Disclosures”);
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WHEREAS, Plaintiff Simonson’s counsel believes they may assert a claim for a fee in

28 connection with the prosecution of the Simonson Action and the issuance of the Supplemental
STIP. AND ORDER RE DISMISSAL

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Case No. 17-cv-04931-WHA

1 Disclosures, and have informed Defendants of their intention to petition the Court for such a fee if
2 their claim cannot be resolved through negotiations between counsel for Plaintiffs in the Actions
3 and Defendants (the “Fee Application”);
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WHEREAS, for the sake of judicial economy and the convenience of all parties, counsel

5 for plaintiffs in all of the Actions have coordinated their efforts and intend to file any Fee
6 Application jointly in the Scarantino Action, which was the first-filed of the Actions;
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WHEREAS, all of the Defendants in the Actions reserve all rights, arguments and

8 defenses, including the right to oppose any potential Fee Application and the right to dispute
9 which Court should address any Fee Application;
WHEREAS, no class has been certified in the Actions;

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WHEREAS, for the avoidance of doubt, no compensation in any form has passed directly

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12 or indirectly to Plaintiff Simonson or his attorneys and no promise, understanding, or agreement to
ATTORNEYS AT LAW

F ENWICK & W EST LLP

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13 give any such compensation has been made, nor have the parties had any discussions concerning
14 the amount of any mootness fee application;
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NOW, THEREFORE, subject to the approval of the Court, the parties stipulate and agree
as follows:
1.

The Simonson Action is dismissed, all claims asserted therein are dismissed with

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prejudice as to Plaintiff only, and all claims on behalf of the putative class are dismissed without

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prejudice.

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2.

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Because the dismissal is with prejudice as to Plaintiff only, and not on behalf of a

putative class, notice of this dismissal is not required.
3.

If a Fee Application becomes necessary, Plaintiff Simonson’s counsel may seek a

23 fee by joining in the Fee Application to be filed in the Scarantino Action where the Court will
24 retain jurisdiction, as appropriate, for the Fee Application.
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4.

This Stipulation, and any Order thereon, are made without prejudice to any right,

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position, claim or defense any party may assert with respect to the Fee Application, which

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includes the Defendants’ right to oppose the Fee Application and the right to dispute which Court

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should address any Fee Application.
STIP. AND ORDER RE DISMISSAL

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Case No. 17-cv-04931-WHA

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Dated: September 22, 2017

LEVI & KORSINSKY, LLP

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By

/s/ Rosemary M. Rivas
Rosemary M. Rivas

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Attorneys for Plaintiff David H. Simonson

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Dated: September 22, 2017

FENWICK & WEST LLP

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By

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Attorneys for Defendants ShoreTel, Inc., Shane
Robison, Don Joos, Marjorie Bowen, Mark
Bregman, Kenneth Denman, Charles Kissner,
Constance Skidmore and Josef Vejvoda

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SAN FRANCISCO

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ATTORNEYS AT LAW

F ENWICK & W EST LLP

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/s/ Kevin P. Muck
Kevin P. Muck

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Dated: September 22, 2017

PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP

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By

/s/ Andrew Gordon
Andrew Gordon

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Attorneys for Defendants Mitel US Holdings, Inc.,
Shelby Acquisition Corporation and Mitel Networks
Corporation

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*

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*

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Pursuant to Civil Local Rule 5-1(i)(3), all signatories concur in the filing of this
stipulation.
Dated: September 22, 2017

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/s/ Kevin P. Muck
Kevin P. Muck

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STIP. AND ORDER RE DISMISSAL

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Case No. 17-cv-04931-WHA

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[PROPOSED] ORDER

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Pursuant to the foregoing stipulation, IT IS HEREBY ORDERED that:

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1.

The Simonson Action is dismissed, all claims asserted therein are dismissed with

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prejudice as to Plaintiff only, and all claims on behalf of the putative class are dismissed without

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prejudice.

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2.

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putative class, notice of this dismissal is not required.
3.

If a Fee Application becomes necessary, Plaintiff Simonson’s counsel may seek a

fee by joining in the Fee Application to be filed in the Scarantino Action, where the Court will
retain jurisdiction, as appropriate, for the Fee Application.
4.

This Stipulation, and any Order thereon, are made without prejudice to any right,

SAN FRANCISCO

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ATTORNEYS AT LAW

F ENWICK & W EST LLP

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Because the dismissal is with prejudice as to Plaintiff only, and not on behalf of a

position, claim or defense any party may assert with respect to the Fee Application, which

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includes the Defendants’ right to oppose the Fee Application and the right to dispute which Court

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should address any Fee Application.

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September 22, 2017.
Dated: _____________________

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______________________________________
The Honorable William H. Alsup
United States District Judge

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STIP. AND ORDER RE DISMISSAL

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Case No. 17-cv-04931-WHA