Oracle America, Inc. v. Myriad Group AG
Filing
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ORDER by Judge Saundra Brown Armstrong Granting 134 Stipulation. (ndr, COURT STAFF) (Filed on 4/1/2014)
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JEFFREY M. SHOHET, Bar No. 067529
jeffrey.shohet@dlapiper.com
BROOKE KILLIAN KIM, Bar No. 239298
brooke.kim@dlapiper.com
AMANDA FITZSIMMONS, Bar No. 258888
amanda.fitzsimmons@dlapiper.com
DLA PIPER LLP (US)
401 B Street, Suite 1700
San Diego, CA 92101-4297
Tel: 619.699.2700
Fax: 619.699.2701
GEOFFREY M. EZGAR, Bar No. 184243
gezgar@kslaw.com
KING & SPALDING LLP
101 Second Street
Suite 2300
San Francisco, CA 94105
Telephone: 415.318.1200
Facsimile: 415.318.1300
LESLEY E. KOTHE, Bar No. 209512
lesley.kothe@oracle.com
ORACLE AMERICA, INC.
500 Oracle Parkway
Redwood City, CA 94065
Tel: 650.506.5200
Fax: 650.506.7114
[Additional Counsel Appear on Signature Pages]
Attorneys for Defendant
Myriad Group AG
Attorneys for Plaintiff
Oracle America, Inc.
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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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ORACLE AMERICA, INC.,
CASE NO. 10-CV-5604-SBA
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Plaintiff,
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STIPULATION AND REQUEST FOR
ORDER
v.
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MYRIAD GROUP AG,
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Defendant.
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STIPULATION AND REQUEST FOR ORDER (10-CV-5604-SBA)
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WHEREAS, on December 10, 2010, Oracle America, Inc. (“Oracle”) filed the instant
action against Myriad Group AG (“Myriad”);
WHEREAS, on January 3, 2011, Myriad moved to compel arbitration of all claims
pending in this action;
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WHEREAS, on August 15, 2011, Myriad commenced an arbitration against Oracle (the
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“Arbitration”), and the Arbitration is captioned In the Matter of the Arbitration Act 1996 In the
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matter of an Arbitration in London, England Under the UNCITRAL Arbitration Rules
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Administered by the American Arbitration Association’s International Centre for Dispute
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Resolution Between Myriad Group AG and Oracle America, Inc., (ICDR Case No. 50 117 T
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00545 11);
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WHEREAS, on September 1, 2011, the Court issued an order “grant[ing] Myriad’s
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motion to compel arbitration with respect to Oracle’s claim for breach of contract, and den[ying]
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the motion as to Oracle’s remaining claims,” and ordering the parties to “immediately commence
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arbitration proceedings with respect to Oracle’s contract claim” following a court-ordered
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settlement conference; (the “Order”) (Dkt. 42);
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WHEREAS, on January 17, 2012, this Court entered an injunction relating to the
Arbitration (Dkt. 69);
WHEREAS, on February 6, 2012, the Court entered an order pursuant to a stipulation of
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the parties that the Arbitration and this litigation be stayed pending Myriad’s appeal of the portion
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of the Order that denied Myriad’s motion to compel arbitration (the “Stay” (Dkt. 73);
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WHEREAS, pursuant to this Court’s order of February 6, 2012, the stay of the arbitration
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and the litigation was lifted on August 31, 2013, and either party was at that point “free to pursue
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all appropriate courses of action, subject to further orders of the respective courts or arbitrator.”
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WHEREAS, on July 26, 2013, the Ninth Circuit reversed the portion of the Order denying
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the motion to compel arbitration on the grounds that Myriad and Oracle’s “[i]ncorporation of the
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UNCITRAL arbitration rules into the parties’ commercial contract constitutes clear and
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unmistakable evidence that the parties agreed to arbitrate arbitrability” and remanded to this
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Court for “proceedings consistent with [the] opinion.” (Dkt. 81);
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STIPULATION AND REQUEST FOR ORDER (10-CV-5604-SBA)
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WHEREAS, the Arbitration is under the administration of the American Arbitration
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Association’s International Centre for Dispute Resolution, and the Sole Arbitrator presiding over
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the Arbitration has entered orders concerning the timetable and procedures for the conduct of
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certain aspects of the Arbitration;
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WHEREAS, the parties have filed briefs with this Court concerning the implementation of
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the Ninth Circuit’s mandate in which each party disputes the other party’s position, including but
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not limited to the following:
Oracle has requested the Court to find that Myriad has waived its right to arbitrate
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by litigation conduct;1
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Myriad has moved to compel arbitration of the claims as to which arbitration was
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denied in the September 1, 2011 Order; and
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Both parties have requested the Court to enter an order on the Ninth Circuit’s
mandate.
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WHEREAS, Myriad has asked the Sole Arbitrator to rule on Oracle’s argument
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concerning waiver by litigation conduct and Oracle has objected, on the basis that the Sole
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Arbitrator has no jurisdiction to do so;
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WHEREAS, the Sole Arbitrator has indicated that shortly after May 7, 2014, he will
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communicate to the parties whether he takes the view that he has, or does not have, prima facie
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jurisdiction to rule on Oracle’s arguments concerning waiver by litigation conduct; and
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WHEREAS, the parties have made an agreement by which they have (amongst other
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things) agreed, and the Sole Arbitrator has accordingly entered an order with the consent of both
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parties requiring, that the parties will file the following joint stipulation and to request that the
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Court enter an order as follows:
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THE PARTIES HEREBY STIPULATE as follows:
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1. The parties jointly request that, pending the dates set out in paragraph (2) below,
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the Court refrain, for now, from (i) ruling upon Oracle's arguments regarding
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Myriad maintains that, in its Briefs on Open Case Management Issues dated February 12, 2014, and February 26,
2014 (Dkts. 116 and 120), Oracle sought a further injunction relating to the Arbitration. Oracle maintains that it did
not seek such a further injunction. In any event, Oracle confirms that it is not presently seeking any such injunction.
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waiver by litigation conduct; (ii) ruling upon Myriad's motion to compel
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arbitration; and (iii) entering an order upon the mandate of the Ninth Circuit Court
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of Appeals, on the grounds that the parties dispute whether the arbitral tribunal or
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the Court has jurisdiction to resolve the issue of waiver by litigation conduct, the
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parties are in the process of briefing this issue to the tribunal, and the tribunal has
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indicated that it will promptly consider this question.
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2. The dates pending which the parties request the Court refrain from ruling and
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entering an order as aforesaid are as follows:
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a. if the Sole Arbitrator takes the view that he does not have prima facie
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jurisdiction to determine Oracle's arguments concerning waiver by
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litigation conduct, a date falling 14 days after he communicates such view
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to the parties;
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b. if the Sole Arbitrator takes the view that he does have prima facie
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jurisdiction to determine Oracle's arguments regarding waiver by litigation
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conduct, a date falling 44 days after his award or decision upon the hearing
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to determine his jurisdiction (insofar as it can be determined as a
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preliminary issue), currently scheduled to take place in July 2014; or
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c. the date of any indication, direction, Order or award of the Sole Arbitrator
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in the meantime to the effect that Oracle may or should be released from
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the agreement.
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STIPULATION AND REQUEST FOR ORDER (10-CV-5604-SBA)
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Dated: March 28, 2014
Dated: March 28, 2014
DLA PIPER LLP (US)
KING & SPALDING LLP
By:
By: /s/ Brian A. White
GEOFFREY M. EZGAR
SCOTT T. WEINGAERTNER
BRIAN A. WHITE
TIMOTHY J. SULLIVAN
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/s/ Jeffrey M. Shohet
JEFFREY M. SHOHET
BROOKE KILLIAN KIM
AMANDA FITZSIMMONS
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Attorneys for Plaintiff
Oracle America, Inc.
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Attorneys for Defendant
Myriad Group AG
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ORDER
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PURSUANT TO STIPULATION,*
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IT IS SO ORDERED.
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Date: 4/1/2014
Hon. Saundra Brown Armstrong
U.S. District Court
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Upon the occurrence of any of the events specific in ¶ 2 above, the parties shall jointly
notify the Court forthwith and specify the judicial action requested.
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