Turberg v. Logan et al

Filing 14

STIPULATION AND ORDER TO CONTINUE CASE SCHEDULE re 13 Stipulation filed by Leland F. Wilson, Vivus, Inc., Linda M. Dairiki Shortliffe, Peter Y Tam, Mark B. Logan, Charles J Casamento. Signed by Judge Phyllis J. Hamilton on 11/17/11. (nah, COURT STAFF) (Filed on 11/17/2011)

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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 Nominal Defendant
VIVUS, INC. and for Defendants
MARK B. LOGAN; LELAND F. WILSON;
LINDA M. DAIRIKI SHORTLIFFE, M.D.;
PETER Y. TAM, and CHARLES J. CASAMENTO

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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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ELEANOR TURBERG, Derivatively on
Behalf of Nominal Defendant VIVUS,
INC.,
Plaintiff,

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Case No. 4:10-cv-05271 PJH
STIPULATION AND [PROPOSED]
ORDER TO CONTINUE CASE
SCHEDULE

v.
MARK B. LOGAN, LELAND F.
WILSON, LINDA M. DAIRIKI
SHORTLIFFE, M.D., PETER Y. TAM,
and CHARLES J. CASAMENTO

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Judge: Honorable Phyllis J. Hamilton
Courtroom: 3, 3rd Floor
Date Action Filed: November 19, 2010

Defendants,

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-and-

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VIVUS, INC., a Delaware Corporation,

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Nominal Defendant.

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H OGAN L OVEL LS US
LLP
ATT ORNE YS AT LA W
PALO AL TO

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STIPULATION AND [PROPOSED] ORDER TO CONTINUE CASE SCHEDULE;
CASE NO. 11-cv-05271-PJH

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Plaintiff Eleanor Turberg (“Plaintiff”) and Defendants Vivus, Inc., Leland F. Wilson,

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Mark B. Logan, Linda M. Dairiki Shortliffe, Peter Y. Tam, and Charles J. Casamento

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(collectively, the “Parties”), through their respective attorneys of record, herby stipulate to and

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seek the Court’s approval of an order revising and continuing the case schedule:

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RECITALS

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WHEREAS, on November 19, 2010, Plaintiff filed her shareholder derivative action (the

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“Derivative Action”) purportedly on behalf of Nominal Defendant VIVUS, Inc. (“VIVUS” or the

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“Company”) in this Court, naming certain officers and directors of the Company as Defendants;

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WHEREAS, also pending before this Court is a related case styled Kovtun v. VIVUS, Inc.,

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et al., Case No. 4:10-cv-04957 PJH, a purported securities class action originally filed November

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2, 2010 against VIVUS and many of the same individuals named as defendants in the Derivative

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Action (the “Securities Action”);

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WHEREAS, the Securities Action and the Derivative Action also concern substantially
the same events;

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WHEREAS, the Court on January 12, 2011 issued a Related Case Order, in which it

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found the Securities Action and the Derivative Action (together, the “Related Actions”) are

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related:

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WHEREAS, the Court entered a stipulated order on February 7, 2011, that established a

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schedule for Plaintiff’s filing of an amended complaint in this Derivative Action, and deferring

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Defendants’ and Nominal Defendant’s response to the amended complaint and staying discovery

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until after the Court resolved a then-anticipated motion to dismiss the Securities Action;

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WHEREAS, on June 3, 2011, Plaintiff filed her Verified Amended Shareholder

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Derivative Complaint (the “Amended Complaint”), which is the operative pleading in the

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Derivative Action;

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H OGAN L OVEL LS US
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WHEREAS, Defendants and Nominal Defendant in this Derivative Action believe they
have legal challenges to Plaintiff’s standing to assert her purported derivative claims;
WHEREAS, defendants in the Securities Action filed a motion to dismiss the complaint in
the Securities Action, which motion was heard by the Court on October 12, 2011;
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STIPULATION AND [PROPOSED] ORDER TO CONTINUE CASE SCHEDULE;
CASE NO. 11-cv-05271-PJH

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WHEREAS, by order entered October 13, 2011, the Court granted defendants’ motion to
dismiss the complaint in the Securities Action with 28 days leave to amend;
WHEREAS, plaintiff in the Securities Action filed his Second Amended Complaint on

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November 9, 2011 (the “Second Amended Complaint”); and defendants in the Securities Action

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anticipate bringing a further motion to dismiss that Second Amended Complaint;

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WHEREAS, the Parties have met and conferred and believe that the new allegations in the

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Second Amended Complaint in the Securities Action may well affect the allegations that Plaintiff

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wishes to put forward in this Derivative Action;

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WHEREAS, the Parties believe that the interests of conserving judicial resources and

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maximizing the coordination and efficient resolution of the Related Actions will be served by

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continuing the schedule and extending the stay of proceedings in place by virtue of the Court’s

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February 7, 2011 stipulated order until after the anticipated motions to dismiss the Second

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Amended Complaint in the Securities Action are resolved;

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WHEREAS, three now-consolidated purported shareholder derivative actions concerning

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the same parties and substantially the same events are pending in the Superior Court of

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California, County of Santa Clara, in a consolidated proceeding styled In re VIVUS, Inc.

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Derivative Litigation, Master File No. 11 0 CV 188439, with the initial case filed November 24,

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2010 (the “State Derivative Action”); and

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WHEREAS, the parties to the State Derivative Action have agreed upon a stipulation

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continuing the schedule in the State Derivative Action in a manner consistent with the schedule

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provided for in this Stipulation and [Proposed] Order:

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STIPULATION
IT IS HEREBY STIPULATED AND AGREED, by and between undersigned counsel,
subject to approval of this Court, that:
1. Defendants and Nominal Defendant shall not be required to answer, move or
otherwise respond to the Amended Complaint;
2. Plaintiff shall have 45 days after the entry of an Order by this Court ruling

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H OGAN L OVEL LS US
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ATT ORNE YS AT LA W
PALO AL TO

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STIPULATION AND [PROPOSED] ORDER TO CONTINUE CASE SCHEDULE;
CASE NO. 11-cv-05271-PJH

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on defendants’ anticipated motion to dismiss plaintiff’s Second Amended Complaint in the

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Securities Action to either file and serve a first amended complaint (the “First Amended

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Complaint”) or to inform Defendants and Nominal Defendant in writing that she is not going to

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do so;

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3. Following either the filing of a First Amended Complaint, or Plaintiffs’ written

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notice that no such First Amended Complaint will be filed, Defendants and/or Nominal

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Defendant shall have 60 days to answer, move, or otherwise respond to the First Amended

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Complaint (or the Amended Complaint in the event that a First Amended Complaint is not filed)

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in the Derivative Action. In the event that Defendants and/or Nominal Defendant files and serves

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any motions with respect to the First Amended Complaint, Plaintiff shall have 60 days to oppose

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such motions. Defendants and/or Nominal Defendants shall have 45 days to reply to any such

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oppositions. The hearing on any such motion will be set on the first available date on the Court’s

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calendar two weeks or more after the deadline by which the reply must be filed and served.

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4. In the event Nominal Defendant files a motion challenging Plaintiff’s standing to

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prosecute the Derivative Action, other defense motions (including without limitation motions

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under Fed. R. Civ. P. 12) directed to the First Amended Complaint (or the Amended Complaint in

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the event that a First Amended Complaint is not filed) may be deferred without prejudice until

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after the Court resolves any motion concerning Plaintiff’s standing.

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Dated: November 16, 2011

HOGAN LOVELLS US LLP
By:

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HOGAN LOVELLS US LLP
Norman J. Blears (Bar No. 95600)
Michael L. Charlson (Bar No. 122125)
525 University Avenue, 4th Floor
Palo Alto, California 94301
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]

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H OGAN L OVEL LS US
LLP
ATT ORNE YS AT LA W
PALO AL TO

/s/
Michael L. Charlson

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STIPULATION AND [PROPOSED] ORDER TO CONTINUE CASE SCHEDULE;
CASE NO. 11-cv-05271-PJH

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-and-

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HOGAN LOVELLS US LLP
Benjamin T. Diggs (Bar No. 245904)
4 Embarcadero Center, 22nd floor
San Francisco, California 94111
[e-mail]

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Attorneys for Nominal Defendant
VIVUS, Inc. and for Defendants

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Dated: November 16, 2011

FARUQI & FARUQI, LLP

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By:

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/s/
Vahn Alexander

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FARUQI & FARUQI, LLP
Vahn Alexander (Bar No. 167373)
1901 Avenue of the Stars, 2nd Floor
Los Angeles, CA 90067
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]

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-and-

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FARUQI & FARUQI, LLP
Nadeem Faruqi
Beth A. Keller
369 Lexington Avenue, 10th floor
[e-mail]
[e-mail]

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Attorneys for Plaintiff

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ORDER

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S
UNIT
ED

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PALO AL TO

FO

LI

ER

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A

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ATT ORNE YS AT LA W

_____________________________________
Honorable Phyllis J. Hamilton is J. Hamilton
hyll
Judge P
United States District Judge
RT

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H OGAN L OVEL LS US
LLP

November 17
Dated: ________________, 2011

ERED
O ORD
IT IS S

NO

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ISTRIC
ES D
TC
AT
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RT
U
O

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Pursuant to the above Stipulation, IT IS SO ORDERED

R NIA

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N

F
D IS T IC T O
R

C

STIPULATION AND [PROPOSED] ORDER TO CONTINUE CASE SCHEDULE;
CASE NO. 11-cv-05271-PJH

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I, Michael L. Charlson, attest that Vahn Alexander has read and approved the
STIPULATION AND [PROPOSED] ORDER TO CONTINUE CASE SCHEDULE and consents
to its filing in this action.

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H OGAN L OVEL LS US
LLP
ATT ORNE YS AT LA W
PALO AL TO

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STIPULATION AND [PROPOSED] ORDER TO CONTINUE CASE SCHEDULE;
CASE NO. 11-cv-05271-PJH