Kovtun v. Vivus, Inc. et al

Filing 43

STIPULATION AND ORDER SETTING SCHEDULE AND EXPANDING PAGE LIMITS FOR BRIEFING ON DEFENDANTS' MOTION TO DISMISS SECOND AMENDED COMPLAINT AS MODIFIED BY THE COURT re 42 Stipulation filed by Wesley W. Day, Leland F. Wilson, Vivus, Inc. Signed by Judge Phyllis J. Hamilton on 11/23/11. (nah, COURT STAFF) (Filed on 11/23/2011)

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NORMAN J. BLEARS (Bar No. 95600)
MICHAEL L. CHARLSON (Bar No. 122125)
HOGAN LOVELLS US LLP
525 University Avenue, 4th Floor
Palo Alto, California 94301
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
BENJAMIN T. DIGGS (Bar No. 245904)
HOGAN LOVELLS US LLP
Four Embarcadero Center, 22nd Floor
San Francisco, California 94111
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
Attorneys for Defendants
VIVUS, INC., LELAND F. WILSON and
WESLEY W. DAY, Ph.D.

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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MERLE KOVTUN, Individually and on
Behalf of Others Similarly Situated,,
Plaintiff,

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v.

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VIVUS, INC., LELAND F. WILSON, and
WESLEY W. DAY, PH.D.,

Case No. 4:10-cv-04957-PJH
STIPULATION AND [PROPOSED]
ORDER SETTING SCHEDULE AND
EXPANDING PAGE LIMITS FOR
BRIEFING ON DEFENDANTS’ MOTION
TO DISMISS SECOND AMENDED
COMPLAINT AS MODIFIED BY THE COURT
The Honorable Phyllis J. Hamilton

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Defendant.
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Pursuant to Local Rule 7-12, defendants VIVUS, Inc., Leland F. Wilson, and Wesley W.

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Day, Ph.D. (“Defendants”) and Lead Plaintiff John Ingram (collectively, the “Parties”), through

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their undersigned counsel, hereby stipulate to and seek the Court’s approval of an order

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establishing a schedule and expanding the page limits for briefing on Defendants’ anticipated

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motion to dismiss Lead Plaintiff’s Second Amended Complaint for Violations of Federal
Stip. and [Proposed] Order Re Schedule and
Page Limits for Def.'s Mtn to Dismiss Second
Amended Cmplt. Case No. 10-cv-4957-PJH
\\065714/000003 - 105200 v1

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Securities Laws (the “Second Amended Complaint”).

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RECITALS
WHEREAS, on October 12, 2011, the Court heard argument on and granted Defendants’
motion to dismiss Lead Plaintiff’s Amended Class Action Complaint for Violations of the Federal
Securities Laws with leave to amend within 28 days, which ruling was memorialized in an order
entered on October 13, 2011 (Dkt. 40) (the “October 13 Order”);
WHEREAS, on November 9, 2011, Lead Plaintiff filed his Second Amended Complaint
for Violations of Federal Securities Laws (Dkt. 41) (the “Second Amended Complaint”);
WHEREAS, the Court’s October 13 Order granted Defendants 28 days from filing of the
Second Amended Complaint within which to respond to the Second Amended Complaint;
WHEREAS, Defendants intend to move to dismiss the Second Amended Complaint,
which is 182 pages in length;
WHEREAS, Defendants believe that, because of the length of the Second Amended
Complaint and the upcoming holidays, Defendants will need some additional time and pages to
prepare their briefs so that their arguments are set forth in a manner fully responsive to the
allegations; and
WHEREAS, Lead Plaintiff believes that he will also need additional time and pages to
respond fully to Defendants’ motion to dismiss; and
WHEREAS, subject to the Court’s approval, the Parties do not oppose the others’
proposed timing and page limits for briefing of a motion to dismiss the Second Amended
Complaint as set forth below;

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STIPULATION
IT IS THEREFORE STIPULATED AND AGREED by the Parties, through their
respective counsel of record, subject to the Court’s approval, that the following schedule and page
limits for the briefing of Defendants’ anticipated motion to dismiss the Second Amended
Complaint will be as follows:
(a) Defendants’ opening brief in support of the motion to dismiss shall be filed on or

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Stip. and [Proposed] Order Re Schedule and
Page Limits for Def.'s Mtn to Dismiss Second
Amended Cmplt. Case No. 10-cv-4957-PJH

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before December 30, 2011 and shall be no longer than 35 pages;
(b) Lead Plaintiff’s opposition to Defendants’ motion to dismiss shall be filed on or before
February 22, 2012 and shall be no longer than 40 pages;
(c) Defendants reply brief in support of the motion to dismiss shall be filed on or before
March 30, 2012 and shall be no longer than 25 pages; and
(d) Defendants’ motion to dismiss shall be noticed for hearing on the Court’s regular civil
law and motion calendar for April 18, 2012.
IT IS SO STIPULATED.

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DATED: November 22, 2011

HOGAN LOVELLS US LLP
By

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/s/ Michael L. Charlson
MICHAEL L. CHARLSON

Attorneys for Defendants
VIVUS, INC., LELAND F. WILSON and
WESLEY W. DAY, Ph.D.

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DATED: November 22, 2011

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JEFF S. WESTERMAN (Bar No. 94559)
NICOLE M. DUCKETT (Bar No. 198168)
MILBERG LLP
One California Plaza
300 South Grand Avenue, Suite 3900
Los Angeles, California 90071
Telephone: [phone]
Facsimile: [phone]

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By

/s/ David A.P. Brower

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BROWER PIVEN
DAVID A.P. BROWER (Admitted Pro Hac Vice)
488 Madison Avenue
Eighth Floor
New York, New York 10022
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Lead Plaintiff

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Stip. and [Proposed] Order Re Schedule and
Page Limits for Def.'s Mtn to Dismiss Second
Amended Cmplt. Case No. 10-cv-4957-PJH

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I, Michael L. Charlson, am the ECF User whose ID and password are being used to file
this Stipulation And [Proposed] Order Setting Schedule and Expanding Page Limits For Briefing
on Defendants’ Motion To Dismiss Plaintiff’s Second Amended Complaint. In compliance with
General Order 45, X.B., I hereby attest that David A.P. Brower has concurred in this filing.

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/s/Michael L. Charlson
MICHAEL L. CHARLSON

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***
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Stip. and [Proposed] Order Re Schedule and
Page Limits for Def.'s Mtn to Dismiss Second
Amended Cmplt. Case No. 10-cv-4957-PJH

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ORDER
PURSUANT TO STIPULATION, and good cause appearing, the schedule and page limits
applicable to briefing on Defendants’ anticipated motion to dismiss Lead Plaintiff Second
Amended Complaint will be as follows:
(a) Defendants’ opening brief in support of the motion to dismiss shall be filed on or
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before December 30, 2011 and shall be no longer than 35 pages;
(b) Lead Plaintiff’s opposition to Defendants’ motion to dismiss shall be filed on or before
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February 22, 2012 and shall be no longer than 40 pages;
(c) Defendants reply brief in support of the motion to dismiss shall be filed on or before
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March 30, 2012 and shall be no longer than 25 pages; and
(d) Defendants’ motion to dismiss shall be noticed for hearing on the Court’s regular civil
law and motion calendar for April 18, 2012.
IT IS SO ORDERED.

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Judge P

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Stip. and [Proposed] Order Re Schedule and
Page Limits for Def.'s Mtn to Dismiss Second
Amended Cmplt. Case No. 10-cv-4957-PJH

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Hamilto

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____________________________________________
HONORABLE PHYLLISD HAMILTON
DERE J.
SO OR
IT ISDistrict Judge
United States

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11/23/11
DATED: ____________________

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