Beebe v. Thomson et al

Filing 21

ORDER re (11 in 4:09-cv-05580-CW) GRANTING STIPULATION Consolidating Actions, Appointing Co-Lead Counsel, and Related Matters. Motion Hearing set for 4/29/2010 02:00 PM. CASE CONSOLIDATED WITH C-09-5639 CW AND C-09-5655 CW. ***FOR FURTHER DOCKET ENTRIES SEE LEAD CONSOLIDATED ACTION C-09-5580 CW***. Signed by Judge Claudia Wilken on 12/23/09. (scc, COURT STAFF) (Filed on 12/23/2009)

1 ROBBINS UMEDA LLP MARC M. UMEDA (197847) 2 [e-mail] KEVIN A. SEELY (199982) 3 [e-mail] DANIEL R. FORDE (248461) 4 [e-mail] 600 B Street, Suite 1900 5 San Diego, CA 92101 Telephone: [phone] Facsimile [phone] 7 Counsel for Plaintiff Thomas Beebe and Christopher Borrelli and [Proposed] Co-Lead 8 Counsel for Plaintiffs 9 10 11 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION Case No. C 09 05580 CW STIPULATION CONSOLIDATING ACTIONS, APPOINTING CO-LEAD COUNSEL, AND RELATED MATTERS AND ORDER THEREON

THOMAS BEEBE, Derivatively on Behalf of ) ) 12 ACCURAY INCORPORATED, ) ) Plaintiff, 13 ) ) vs. 14 ) EUAN S. THOMSON, WAYNE WU, LI YU, ) 15 ROBERT S. WEISS, ELIZABETH DAVILA, ) ) 16 JOHN P. WAREHAM, ROBERT E. MCNAMARA, TED. T.C. TU, and JOHN R. ) ) 17 ADLER, JR., ) ) Defendants, 18 ) ) and 19 ) ACCURAY INCORPORATED, a Delaware ) 20 ) corporation, ) 21 ) Nominal Defendant. ) 22 23 [Caption continued on following page] 24 25 26 27 28

STIPULATION CONSOLIDATING ACTIONS, APPOINTING CO-LEAD COUNSEL AND [PROPOSED] ORDER CASE NO. C 09 05580 CW

1 ERIC BACHINSKI, Derivatively on Behalf of ACCURAY INCORPORATED, 2 Plaintiff, 3 vs. 4 EUAN S. THOMSON, ROBERT E. 5 MCNAMARA, WADE B. HAMPTON, TED TU, WAYNE WU, JOHN R. ADLER, JR., 6 ROBERT S. WEISS, ELIZABETH DAVILA, LI YU, JOHN P. WAREHAM, LOUIS J. 7 LAVIGNE, JR., DENNIS L. WINGER, and DOES 1-25, inclusive, 8 Defendants, 9 -and10 ACCURAY INCORPORATED, a Delaware 11 corporation, 12 13 CHRISTOPHER BORRELLI, Derivatively on 14 Behalf of ACCURAY INCORPORATED, 15 16 vs. Plaintiff, Nominal Defendant.

17 EUAN S. THOMSON, WAYNE WU, LI YU, ROBERT S. WEISS, ELIZABETH DAVILA, 18 JOHN P. WAREHAM, ROBERT E. MCNAMARA, TED. T.C. TU, and JOHN R. 19 ADLER, JR., 20 21 and Defendants,

22 ACCURAY INCORPORATED, a Delaware corporation, 23 Nominal Defendant. 24 25 26 27 28

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. C 09 05639 CW

Case No. C 09 05655 CW

STIPULATION CONSOLIDATING ACTIONS, APPOINTING CO-LEAD COUNSEL AND [PROPOSED] ORDER CASE NO. C 09 05580 CW

1

WHEREAS, there are presently three related shareholder derivative actions against certain of

2 the officers and directors of Accuray, Inc. ("Accuray") on file in this Court; 3 WHEREAS, in an effort to assure consistent rulings and decisions and the avoidance of

4 unnecessary duplication of effort, all of the counsel for the parties in the related Accuray shareholder 5 derivative actions currently on file in this Court enter into this stipulation. The counsel are: (1) 6 Robbins Umeda LLP on behalf of plaintiff Thomas Beebe; (2) Robbins Umeda LLP and The 7 Kendall Law Group LLP on behalf of plaintiff Christopher Borrelli; (3) Johnson Bottini LLP on 8 behalf of plaintiff Eric Bachinski; and (4) Wilson Sonsini Goodrich & Rosati P.C. on behalf of 9 nominal defendant Accuray, Inc. and individual defendants Euan S. Thomson, Wayne Wu, Li Yu, 10 Robert S. Weiss, Elizabeth Davila, John P. Wareham, Robert E. McNamara, John R. Adler, Jr., 11 Wade B. Hampton, Louis J. Lavigne, Jr., and Dennis L. Winger; 12 WHEREAS, the parties agree that it would be duplicative and wasteful of the Court's

13 resources for defendants named in plaintiffs' shareholder derivative actions to have to respond to the 14 individual complaints prior to the agreed upon consolidation. 15 NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED by plaintiffs and

16 defendants, through their respective counsel of record, as follows: 17 1. The following actions are hereby related and consolidated for all purposes, including

18 pre-trial proceedings and trial: 19 20 21 22 23 24 25 26 27 28 -1STIPULATION CONSOLIDATING ACTIONS, APPOINTING CO-LEAD COUNSEL AND [PROPOSED] ORDER CASE NO. C 09 05580 CW

Case Name Beebe v. Thomson, et al. Bachinski v. Thomson, et al. Borrelli v. Thomson, et al.

Case Number No. C 09 05580 CW No. C 09 05639 BZ No. C 09 05655 JF

Date Filed November 24, 2009 November 30, 2009 December 1, 2009

2.

Every pleading filed in the consolidated action, or in any separate action included

herein, shall bear the following caption:

1 2 3 4 5 6 7 8

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION IN RE ACCURAY, INC. SHAREHOLDER ) Lead Case No. C 09 05580 CW ) DERIVATIVE LITIGATION ) ) This Document Relates To: ) ) ALL ACTIONS ) ) 3. The files of the consolidated action shall be maintained in one file under Master File

9 No. C 09 05580 CW. 10 4. The fact that these cases have been consolidated shall not be advanced or used as a

11 factor in the Court's consideration of defendants' motion to stay the action in light of the state 12 derivative action. 13 5. The dates set forth in this Court's Order dated December 16, 2009, in Beebe v.

14 Thomson, et al., Case No. 4:09-cv-05580-CW, shall be amended as set forth in this paragraph. 15 Plaintiffs shall either designate a complaint as operative or file a Consolidated Derivative Complaint 16 ("Consolidated Complaint") by December 24, 2009. If filed, the Consolidated Complaint shall be 17 the operative complaint and shall supersede all complaints filed in any of the actions consolidated 18 herein. Defendants shall file an answer or a responsive motion and their motion to stay by January 19 14, 2010. In the event that defendants file any motions directed at the operative complaint or 20 Consolidated Complaint, plaintiffs shall file their opposition by January 28, 2010. If defendants file 21 a reply to plaintiffs' opposition, they will do so by February 4, 2010. The Court will hear the 22 motions on April 29, 2010, at 2:00 p.m 23 6. Should any defendant challenge plaintiffs' standing to maintain this derivative action

24 on the grounds that plaintiffs failed to satisfy the requirements of Cal. Corp. Code §800 and/or 25 Delaware Chancery Court Rule 23.1 by failing to plead facts sufficient to raise a reasonable doubt 26 that a pre-litigation demand on Accuray's Board of Directors would have been futile, the Court will 27 determine this issue as it relates to the designated complaint or Consolidated Complaint based on the 28 -2STIPULATION CONSOLIDATING ACTIONS, APPOINTING CO-LEAD COUNSEL AND [PROPOSED] ORDER CASE NO. C 09 05580 CW

1 membership of the Board on the date plaintiff Beebe filed his original complaint (November 24, 2 2009). 3 7. The Lead Plaintiffs for these consolidated actions are Thomas Beebe, Eric Bachinski,

4 and Christopher Borrelli. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3STIPULATION CONSOLIDATING ACTIONS, APPOINTING CO-LEAD COUNSEL AND [PROPOSED] ORDER CASE NO. C 09 05580 CW

8.

The Co-Lead Counsel for plaintiffs for the conduct of these consolidated actions are: ROBBINS UMEDA LLP MARC M UMEDA KEVIN A. SEELY DANIEL R. FORDE 600 B Street, Suite 1900 San Diego, CA 92101 Telephone: [phone] Facsimile: [phone] JOHNSON BOTTINI, LLP FRANK J. JOHNSON FRANCIS A. BOTTINI, JR. DEREK J. WILSON 501 West Broadway, Suite 1720 San Diego, CA 92101 Telephone: [phone] Facsimile: [phone] and KENDALL LAW GROUP, LLP HAMILTON P. LINDLEY 3232 McKinney, Suite. 700 Dallas, TX 75204 Telephone: [phone] Facsimile: [phone]

9.

Plaintiffs' Co-Lead Counsel shall have sole authority to speak for plaintiffs in matters

regarding pre-trial procedure, trial and settlement and shall make all work assignments in such manner as to facilitate the orderly and efficient prosecution of this litigation and to avoid duplicative or unproductive effort. 10. Plaintiffs' Co-Lead Counsel shall be responsible for coordinating all activities and

appearances on behalf of plaintiffs. No motion, request for discovery or other pre-trial or trial proceedings shall be initiated or filed by any plaintiff except through plaintiffs' Co-Lead Counsel.

1

11.

Plaintiffs' Co-Lead Counsel shall be available and responsible for communications to

2 and from this Court, including distributing orders and other directions from the Court to counsel. 3 Plaintiffs' Co-Lead Counsel shall be responsible for creating and maintaining a master service list of 4 all parties and their respective counsel. 5 12. Defendants' counsel may rely upon all agreements made with plaintiffs' Co-Lead

6 Counsel, or other duly authorized representative of plaintiffs' Co-Lead Counsel, and such agreements 7 shall be binding on all plaintiffs. 8 13. Defendants take no position as to the appointment of Lead Plaintiffs or Co-Lead

9 Counsel. 10 14. This Order shall apply to each case, arising out of the same or substantially the same

11 transactions or events as these cases, which is subsequently filed in, remanded to or transferred to 12 this Court. 13 15. When a case which properly belongs as part of the In re Accuray, Inc. Shareholder

14 Derivative Litigation, Lead Case No. C 09 05580 CW, is hereafter filed in the Court or transferred 15 here from another court, this Court requests the assistance of counsel in calling to the attention of the 16 clerk of the Court the filing or transfer of any case which might properly be consolidated as part of 17 the In re Accuray, Inc. Shareholder Derivative Litigation, Lead Case No. C 09 05580 CW, and 18 counsel are to assist in assuring that counsel in subsequent actions receive notice of this Order. 19 16. Defendants are not required to respond to the complaint in any action consolidated

20 into this action, other than a consolidated complaint or a complaint designated as the operative 21 complaint. 22 17. Defendants' counsel shall appear for and accept service on behalf of all defendants

23 not already served, with the exception of defendant Ted T.C. Tu. 24 DATED: December 17, 2009 25 26 27 28 -4STIPULATION CONSOLIDATING ACTIONS, APPOINTING CO-LEAD COUNSEL AND [PROPOSED] ORDER CASE NO. C 09 05580 CW

ROBBINS UMEDA LLP MARC M UMEDA KEVIN A. SEELY DANIEL R. FORDE s/Marc M. Umeda MARC M. UMEDA

1 2 3 4 5 6 7 8 9 10 11 DATED: December 17, 2009 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: December 17, 2009

600 B Street, Suite 1900 San Diego, CA 92101 Telephone: [phone] Facsimile: [phone] Counsel for Plaintiff Thomas Beebe and Christopher Borrelli and [Proposed] Co-Lead Counsel for Plaintiffs KENDALL LAW GROUP, LLP HAMILTON P. LINDLEY 3232 McKinney, Ste. 700 Dallas, TX 75204 Telephone: [phone] Facsimile: [phone] Counsel for Plaintiff Christopher Borrelli and [Proposed] Co-Lead Counsel for Plaintiffs JOHNSON BOTTINI, LLP FRANK J. JOHNSON FRANCIS A. BOTTINI, JR. DEREK J. WILSON s/Frank J. Johnson FRANK J. JOHNSON 501 West Broadway, Suite 1720 San Diego, CA 92101 Telephone: [phone] Facsimile: [phone] Counsel for Plaintiff Bachinski and [Proposed] Co-Lead Counsel for Plaintiffs WILSON SONSINI GOODRICH & ROSATI, P.C. IGNACIO SALCEDA s/Ignacio E. Saleda IGNACIO E. SALCEDA 650 Page Mill Road Palo Alto, CA 94304 Telephone: [phone] Facsimile: [phone] Counsel for nominal defendant Accuray, Inc. -5STIPULATION CONSOLIDATING ACTIONS, APPOINTING CO-LEAD COUNSEL AND [PROPOSED] ORDER CASE NO. C 09 05580 CW

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12/23/09 DATED

and individual defendants Euan S. Thomson, Wayne Wu, Li Yu, Robert S. Weiss, Elizabeth Davila, John P. Wareham, Robert E. McNamara, John R. Adler, Jr., Wade B. Hampton, Louis J. Lavigne, Jr., Dennis L. Winger

I, Marc M. Umeda, am the ECF User whose ID and password are being used to file this Stipulation Consolidating Actions, Appointing Co-Lead Counsel, and Related Matters and [Proposed] Order Thereon. In compliance with General Order No. 45, X.B., I hereby attest that Frank J. Johnson and Ignacio E. Salceda have concurred in this filing. s/ Marc M. Umeda MARC M. UMEDA

ORDER PURSUANT TO STIPULATION, IT IS SO ORDERED.

HONORABLE CLAUDIA WILKEN UNITED STATES MAGISTRATE JUDGE

-6STIPULATION CONSOLIDATING ACTIONS, APPOINTING CO-LEAD COUNSEL AND [PROPOSED] ORDER CASE NO. C 09 05580 CW

1 2

CERTIFICATE OF SERVICE I hereby certify that on December 23, 2009, I electronically filed the foregoing with the Clerk

3 of Court using the CM/ECF system which will send notification of such filing to the e-mail 4 addresses on the Electronic Mail Notice List. I hereby certify that I have sent notification and served 5 a copy of the filing via U.S. mail to the following parties listed below. 6 7 8 9 10 11 12 I certify under penalty of perjury under the laws of the United States of America that the VIA U.S. MAIL KENDALL LAW GROUP, LLP HAMILTON P. LINDLEY 3232 McKinney, Ste. 700 Dallas, TX 75204 JOHNSON BOTTINI, LLP FRANK J. JOHNSON 501 West Broadway, Suite 1720 San Diego, CA 92101

13 foregoing is true and correct. Executed on December 17, 2009. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7STIPULATION CONSOLIDATING ACTIONS, APPOINTING CO-LEAD COUNSEL AND [PROPOSED] ORDER CASE NO. C 09 05580 CW

s/ Marc M. Umeda MARC M. UMEDA