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)

Download PDF
1 2 3 4 5 6 7 8 9 10 SAN FRANCISCO 12 ATTORNEYS AT LAW F ENWICK & W EST LLP 11 KEVIN P. MUCK (CSB No. 120918) kmuck@fenwick.com MARIE C. BAFUS (CSB No. 258417) mbafus@fenwick.com 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) flee@fenwick.com 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 13 14 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 17 18 19 20 21 22 23 24 25 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. 26 27 28 STIP. AND ORDER RE DISMISSAL Case No. 17-cv-04931-WHA 1 2 STIPULATION OF DISMISSAL WHEREAS, on August 27, 2017, Plaintiff David H. Simonson filed the above-captioned 3 action (the “Simonson Action”); 4 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 11 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”); 16 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; 20 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; 23 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”); 27 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 1 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”); 4 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; 7 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; 11 WHEREAS, for the avoidance of doubt, no compensation in any form has passed directly SAN FRANCISCO 12 or indirectly to Plaintiff Simonson or his attorneys and no promise, understanding, or agreement to ATTORNEYS AT LAW F ENWICK & W EST LLP 10 13 give any such compensation has been made, nor have the parties had any discussions concerning 14 the amount of any mootness fee application; 15 16 17 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 18 prejudice as to Plaintiff only, and all claims on behalf of the putative class are dismissed without 19 prejudice. 20 2. 21 22 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. 25 4. This Stipulation, and any Order thereon, are made without prejudice to any right, 26 position, claim or defense any party may assert with respect to the Fee Application, which 27 includes the Defendants’ right to oppose the Fee Application and the right to dispute which Court 28 should address any Fee Application. STIP. AND ORDER RE DISMISSAL 2 Case No. 17-cv-04931-WHA 1 Dated: September 22, 2017 LEVI & KORSINSKY, LLP 2 3 By /s/ Rosemary M. Rivas Rosemary M. Rivas 4 Attorneys for Plaintiff David H. Simonson 5 6 Dated: September 22, 2017 FENWICK & WEST LLP 7 8 By 9 Attorneys for Defendants ShoreTel, Inc., Shane Robison, Don Joos, Marjorie Bowen, Mark Bregman, Kenneth Denman, Charles Kissner, Constance Skidmore and Josef Vejvoda 10 SAN FRANCISCO 12 ATTORNEYS AT LAW F ENWICK & W EST LLP 11 /s/ Kevin P. Muck Kevin P. Muck 13 Dated: September 22, 2017 PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 14 15 By /s/ Andrew Gordon Andrew Gordon 16 Attorneys for Defendants Mitel US Holdings, Inc., Shelby Acquisition Corporation and Mitel Networks Corporation 17 18 19 * 20 21 22 23 24 * * Pursuant to Civil Local Rule 5-1(i)(3), all signatories concur in the filing of this stipulation. Dated: September 22, 2017 25 /s/ Kevin P. Muck Kevin P. Muck 26 27 28 STIP. AND ORDER RE DISMISSAL 3 Case No. 17-cv-04931-WHA 1 [PROPOSED] ORDER 2 Pursuant to the foregoing stipulation, IT IS HEREBY ORDERED that: 3 1. The Simonson Action is dismissed, all claims asserted therein are dismissed with 4 prejudice as to Plaintiff only, and all claims on behalf of the putative class are dismissed without 5 prejudice. 6 2. 7 8 9 10 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 12 ATTORNEYS AT LAW F ENWICK & W EST LLP 11 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 13 includes the Defendants’ right to oppose the Fee Application and the right to dispute which Court 14 should address any Fee Application. 15 16 September 22, 2017. Dated: _____________________ 17 ______________________________________ The Honorable William H. Alsup United States District Judge 18 19 20 21 22 23 24 25 26 27 28 STIP. AND ORDER RE DISMISSAL 4 Case No. 17-cv-04931-WHA

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?