Beebe v. Thomson et al

Filing 31

ORDER re 29 granting as modified STIPULATION Regarding FIling of Consolidated Complaint and Briefing Schedule Further Case Management Conference set for 7/1/2010 02:00 PM. Motion Hearing set for 7/1/2010 02:00 PM.. Signed by Judge Claudia Wilken on 03/19/2010. (scc, COURT STAFF) (Filed on 3/19/2010)

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 Co-Lead Counsel for Plaintiffs 8 [Additional counsel appear on signature page] 9 10 11 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ) ) ) ) ) ) ) ) ) ) Lead Case No. C 09 05580 CW STIPULATION AND ORDER REGARDING FILING OF CONSOLIDATED COMPLAINT AND BRIEFING SCHEDULE AS MODIFIED

IN RE ACCURAY, INC. SHAREHOLDER 12 DERIVATIVE LITIGATION 13 This Document Relates To: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ALL ACTIONS

STIPULATION AND [PROPOSED] ORDER REGARDING FILING OF CONSOLIDATED COMPLAINT AND BRIEFING SCHEDULE LEAD CASE NO. C 09 05580 CW

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WHEREAS, on February 5, 2010, defendants filed a motion to stay and to dismiss this

2 consolidated federal derivative action (the "Action"), wherein they sought a limited stay of this 3 Action and raised arguments regarding continuous ownership, demand futility, and failure to state a 4 claim with regard to each count in the Consolidated Verified Shareholder Derivative Complaint (the 5 "Complaint"); 6 WHEREAS, on March 8, 2010, the defendants filed notice that they have withdrawn their

7 request for a limited stay of this Action because the earlier filed state court action, Israni v. 8 Thomson, et al., Case No. 1-09-CV-149157 (Santa Clara County Superior Court), has been 9 voluntarily dismissed; 10 WHEREAS, the hearing on the defendants' pending motion to dismiss the Complaint is

11 scheduled to be heard on April 29, 2010; 12 WHEREAS, on March 16, 2010, the plaintiff in the above-referenced state court action,

13 Sanjay Israni, filed a shareholder derivative complaint ("Israni Complaint") in this District Court, 14 captioned Israni v. Thomson, et al., No. C 10-01117 WHA. The Israni Complaint contains 15 allegations arising out of the same or substantially the same transactions or events as this Action; 16 WHEREAS, it is anticipated by the parties that the Israni Complaint will be consolidated

17 with this Action pursuant to paragraphs 14 and 15 of the December 23, 2009 Stipulation 18 Consolidating Actions, Appointing Co-Lead Counsel, and Related Matters and Order Thereon; 19 WHEREAS, the Israni Complaint is substantively different from the operative Complaint in

20 this Action in the following ways, among others: (i) plaintiff Israni's pleading regarding continuous 21 ownership of Accuray, Inc. ("Accuray") stock is different; and (ii) plaintiff Israni asserts additional 22 causes of action related to insider selling, which allegations are not in the operative Complaint for 23 this Action; 24 WHEREAS, the parties agree that the Israni Complaint and consolidation into this Action

25 will affect defendants' pending motion to dismiss; and 26 27 28 -1STIPULATION AND [PROPOSED] ORDER REGARDING FILING OF CONSOLIDATED COMPLAINT AND BRIEFING SCHEDULE LEAD CASE NO. C 09 05580 CW

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WHEREAS, the parties agree that in order to conserve resources and minimize duplication,

2 the parties need time to address the issues raised by the anticipated filing and consolidation of the 3 Israni Complaint; 4 NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED by plaintiffs and

5 defendants, through their respective counsel of record, as follows: 6 1. Plaintiffs shall file an amended consolidated complaint within 20 days of entry of the

7 order on this stipulation; 8 2. If defendants respond by motion, they shall file a single consolidated motion within

9 30 days of the filing of an amended consolidated complaint; 10 3. Plaintiffs shall file a single consolidated opposition within 30 days of the filing of the

11 motion; 12 4. Defendants shall file a single consolidated reply within 20 days of the filing of the

13 opposition; 14 5. The April 29, 2010 hearing on the motion to dismiss shall be taken off calendar and

15 continued to a date convenient for the Court, consistent with the above proposed briefing schedule; 16 and 17 6. Should any defendant challenge plaintiffs' standing to maintain this derivative action

18 on the grounds that plaintiffs failed to satisfy the requirements of Federal Rule of Civil Procedure 19 23.1 and/or Delaware Chancery Court Rule 23.1, by failing to plead facts sufficient to raise a 20 reasonable doubt that a pre-litigation demand on Accuray's Board would have been futile, the Court 21 will determine this issue as it relates to the amended consolidated complaint based on the 22 membership of the Board on the date the Israni Complaint was filed (March 16, 2010). 23 24 25 26 27 28
STIPULATION AND [PROPOSED] ORDER REGARDING FILING OF CONSOLIDATED COMPLAINT AND BRIEFING SCHEDULE LEAD CASE NO. C 09 05580 CW

DATED: March 17, 2010

ROBBINS UMEDA LLP MARC M UMEDA KEVIN A. SEELY DANIEL R. FORDE s/Kevin A. Seely KEVIN A. SEELY 600 B Street, Suite 1900 -2-

1 2 3 4 5 6 7 8 9 10 11 12 DATED: March 17, 2010 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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] KENDALL LAW GROUP, LLP HAMILTON P. LINDLEY 3232 McKinney, Ste. 700 Dallas, TX 75204 Telephone: [phone] Facsimile: [phone] Co-Lead Counsel for Plaintiffs WILSON SONSINI GOODRICH & ROSATI, P.C. BORIS FELDMAN IGNACIO E. SALCEDA s/Ignacio E. Salceda IGNACIO E. SALCEDA 650 Page Mill Road Palo Alto, CA 94304 Telephone: [phone] Facsimile: [phone] Counsel for Nominal Defendant Accuray, Inc. and individual defendants Euan S. Thomson, Wayne Wu, Li Yu, Robert S. Weiss, Elizabeth Davila, John P. Wareham, Robert E. McNamara, and John R. Adler, Jr. I, Kevin A. Seely, am the ECF User whose ID and password are being used to file this Stipulation and [Proposed] Order Regarding Filing of Consolidated Complaint and Briefing Schedule. In compliance with General Order No. 45, X.B., I hereby attest that Ignacio E. Salceda has concurred in this filing. s/ Kevin A. Seely KEVIN A. SEELY -3STIPULATION AND [PROPOSED] ORDER REGARDING FILING OF CONSOLIDATED COMPLAINT AND BRIEFING SCHEDULE LEAD CASE NO. C 09 05580 CW

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ORDER PURSUANT TO STIPULATION, IT IS SO ORDERED. A HEARING ON A MOTION TO DISMISS WILL BE HELD ON JULY 1, 2010 AT 2:00 P.M. IF NO MOTION IS FILED, A CASE MANAGEMENT CONFERENCE WILL BE HELD ON THAT DATE.

3/19/2010 DATED

HONORABLE CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE

-4STIPULATION AND [PROPOSED] ORDER REGARDING FILING OF CONSOLIDATED COMPLAINT AND BRIEFING SCHEDULE LEAD CASE NO. C 09 05580 CW