De Angelis v. ShoreTel, Inc. et al

Filing 9

ORDER VOLUNTARILY DISMISSING ACTION AS MOOT. Signed by Judge William H. Orrick on 09/22/2017. (jmdS, COURT STAFF) (Filed on 9/22/2017)

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1 2 3 4 5 6 7 8 9 10 LAW AT SAN FRA NCI S CO 12 ATTO RNEY S F ENWICK & W ES T 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 GIANFRANCA DE ANGELIS, Individually and on Behalf of All Others Similarly Situated, 18 Plaintiff, 19 v. Case No.: 17-cv-5091-WHO STIPULATION AND ORDER VOLUNTARILY DISMISSING ACTION AS MOOT PURSUANT TO FED. R. CIV. P. 41(a)(1)(A)(ii) 20 21 22 SHORETEL, INC., SHANE ROBISON, DON JOOS, MARJORIE BOWEN, MARK BREGMAN, KENNETH DENMAN, CHARLES KISSNER, CONSTANCE SKIDMORE, and JOSEF VEJVODA, 23 Defendants. 24 25 26 27 28 STIP. AND ORDER RE DISMISSAL Case No. 17-cv-05091-WHO 1 2 STIPULATION OF DISMISSAL WHEREAS, on August 31, 2017, Plaintiff Gianfranca De Angelis filed the above- 3 captioned action (the “De Angelis 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-YGR (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”), Simonson v. ShoreTel, 8 Inc., et al., Case No. 3:17-cv-04931-WHA (the “Simonson Action”) and Herrera v. ShoreTel, 9 Inc., et al., Case No. 3:17-cv-04988-WHO (the “Herrera Action”), all of which are collectively 10 referred to with the De Angelis Action as the “Actions”; WHEREAS, the Actions challenged disclosures made in connection with the proposed LAW AT SAN FRA NCI S CO 12 acquisition of ShoreTel, Inc. (“ShoreTel”), by Mitel Networks Corporation and its subsidiaries ATTO RNEY S F ENWICK & W ES T 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 De Angelis’s counsel believes they may assert a claim for a fee in 28 connection with the prosecution of the DeAngelis Action and the issuance of the Supplemental STIP. AND ORDER RE DISMISSAL 1 Case No. 17-cv-05091-WHO 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 LAW AT SAN FRA NCI S CO 12 or indirectly to Plaintiff De Angelis or her attorneys and no promise, understanding, or agreement ATTO RNEY S F ENWICK & W ES T LLP 10 13 to give any such compensation has been made, nor have the parties had any discussions 14 concerning 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 De Angelis 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 De Angelis’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-05091-WHO 1 Dated: September 21, 2017 WEISSLAW LLP 2 3 By /s/ Joel E. Elkins Joel E. Elkins 4 Attorneys for Plaintiff Gianfranca De Angelis 5 6 7 Dated: September 21, 2017 FENWICK & WEST LLP 8 By /s/ Kevin P. Muck Kevin P. Muck 9 10 Attorneys for Defendants ShoreTel, Inc., Shane Robison, Don Joos, Marjorie Bowen, Mark Bregman, Kenneth Denman, Charles Kissner, Constance Skidmore and Josef Vejvoda LAW AT SAN FRA NCI S CO 12 ATTO RNEY S F ENWICK & W ES T LLP 11 13 * 14 15 * * Pursuant to Civil Local Rule 5-1(i)(3), all signatories concur in the filing of this 16 stipulation. 17 Dated: September 21, 2017 18 19 /s/ Kevin P. Muck Kevin P. Muck 20 21 22 23 24 25 26 27 28 STIP. AND ORDER RE DISMISSAL 3 Case No. 17-cv-05091-WHO 1 ORDER 2 Pursuant to the foregoing stipulation, IT IS HEREBY ORDERED that: 3 1. The De Angelis 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 De Angelis’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, LAW AT SAN FRA NCI S CO 12 ATTO RNEY S F ENWICK & W ES T 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 Dated: _September 22, 2017___________ 17 ______________________________________ The Honorable William H. Orrick 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-05091-WHO

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