Burlingame v. Pacific Biosciences of California, Inc et al

Filing 21

ORDER by Judge Claudia Wilken Granting 20 Stipulation Regarding Briefing Schedule for Amended Complaint and Leadership Structure. (ndr, COURT STAFF) (Filed on 3/9/2012)

1 BRAMSON, PLUTZIK, MAHLER &
2 BIRKHAEUSER, LLP
Alan R. Plutzik (State Bar No. 77785)
3 MichaelS. Strimling (State Bar No. 96135)
2125 Oak Grove Road, Suite 120·
4 Walnut Creek, CA 94598
Telephone: [phone]
5 Facsimile: [phone]
6 Email: [e-mail]
Email: [e-mail]

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Attorneys for Plaintiff Robert Burlingame

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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ROBERT BURLINGAME, derivatively on behalf of
PACIFIC BIOSCIENCES OF CALIFORNIA, INC.,

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Plaintiff,

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v.
HUGH C. MARTIN, BROOK BYERS, WILLIAM
W. ERICSON, MICHAEL HUNKPILLER.,
RANDALL S. LIVINGSTON, SUSAN SIEGEL, and
DAVID SINGER,

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· Defendants,
-and-

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PACWIC BIOSCIENCES OF CALIFORNIA, INC.,
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Nominal Defendant.

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Case No. CV 4 :11-06703-CW

STIPULATION AND ORDER
REGARDING BRIEFING
SCHEDULE FOR AMENDED
COMPLAINT AND LEADERSHIP
STRUCTURE

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WHEREAS, plaintiff Robert Burlingame ("Plaintiff') filed his Verified Shareholder

2 Derivative Complaint on December 29, 2011 (the "Action");
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WHEREAS, Plaintiff intends to file an amended complaint;

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WHEREAS, the parties agree that filing an amended complaint and briefmg on any

5 corresponding motion to dismiss before the motion to dismiss is ruled upon in the related securities
6 class action Primo v. Pacific BioSciences of California, Inc., Case No. CV-11-6599 (N.D. Cal.) (the
7 "Primo Action") would create significant redm1dancies and inefficient use of resources of the
8 parties and the Court;
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WHEREAS, the parties met and conferred;
WHEREAS, the parties agree that the interests of judicial economy and the efficient

11 management of this litigation are best served by (i) awaiting the ruling on the motion to dismiss in
12 the related Primo Action before Plaintiff files an amended complaint and Defendants have an
13 opportunity to respond; and (ii) appointing Levi & Korsinsky, LLP, as Lead Com1sel, for purposes
14 of coordinating and directing the litigation of this matter and any related cases as may be filed in
15 this jurisdiction;
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NOW, THEREFORE, the parties hereby agree and stipulate as follows:

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1.

Plaintiffs amended complaint in this Action shall be filed after the final resolution of

18 the anticipated motion to dismiss the Primo Action. Therefore, Plaintiff will file an amended
19 complaint in this Action sixty (60) days after any of the following events:

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(i)

the Court enters an order denying in its entirety the anticipated motion

21 to dismiss the Primo Action (and the time to file an appeal has expired without the filing of any
22 such appeal); or
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(ii)

the Court enters an order granting in its entirety the anticipated

24 motion to dismiss the Primo Action with prejudice (and the time to file an appeal has expired
25 without the filing of any such appeal); or
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(iii)

the Court enters an order granting in part and denying in part the

27 anticipated motion to dismiss the Primo Action, and the time. has expired for the plaintiff in the

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1 Primo Action to amend, (and the time for the filing of an appeal has expired without the filing of

2 any such appeal).
3 For clarification, if the Court in the Primo Action grants the motion to dismiss with leave to amend,
4 Plaintiff will not file his amended complaint in this Action until the motion to dismiss the amended
5 complaint in the Primo Action is finally resolved.
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2.

Until such time as an amended complaint is filed in this Action, defendants are not

7 required to answer or otherwise respond to the complaint in the Action.
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3.

Upon ;filing of an amended complaint, defendants shall have forty-five (45) days to

9 answer or otherwise respond to the amended complaint. In the event that defendants move to

I 0 dismiss the amended complaint, any opposition to such motion shall be filed within forty-five (45)
II days of the filing of that motion. Any reply shall be filed within twenty-one (21) days of the filing

12 of Plaintiffs opposition.
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4.

The parties agree that initial disclosures under Rule 26(a) will be deferred until 30

14 days after the filing of an Amended Complaint in this Action.
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5.

The parties also agree that no discovery will be commenced until after the filing of

16 an Amended Complaint in this Action.
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6.

Every pleading filed in the Action, or in any separate action included herein, must

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

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In re PACIFIC BIOSCIENCES OF CALIFORNIA,
INC. DERIVATIVE LITIGATION
This Document Relates To:
ALL ACTIONS.

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Lead Case No. CV 5:11-06703-PSG

The files of the Action will be maintained in one file under Lead Case No. CV 5: I 1-

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8.

Lead Counsel for the conduct of the Lead Case and subsequently filed related actions

is:
LEVI & KORSINSKY LLP
Eric Andersen
30 Broad Street, 15th Floor
New York, NY I 0004
Telephone: [phone]
Facsimile: [phone]

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9.

Lead Counsel shall have sole authority to speak for Plaintiff in matters regarding pre-

9 trial procedure, trial, and settlement negotiations so as to facilitate the orderly and efficient
10 prosecution of this litigation and to avoid duplicative or unproductive effort.
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Lead Counsel shall be responsible for coordinating all activities and appearances on

12 behalf of Plaintiff. No motion, request for discovery, or other pre-trial or trial proceedings will be
13 initiated or filed by any plaintiff except through or at the direction of Plaintiffs Lead Counsel.
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BRAMSON, PLUTZIK, MAHLER & BIRKHAEUSER, LLP
Alan R. Plutzik
MichaelS. Strimling
2125 Oak Grove Road, Suite 120
Walnut Creek, CA 94598
Telephone: [phone]
Facsimile: [phone]

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Liaison Counsel for Plaintiff for the conduct of the Action is:

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Plaintiffs Liaison Counsel will be available and responsible for communications to

and from this Court, including distributing orders and other directions from the Court to counsel.

21 Plaintiffs Liaison Counsel will be responsible for creating and maintaining a master service list of
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all parties and their respective counsel.
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Defendants' counsel may rely upon all agreements made with Plaintiffs Lead

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Counsel, or other duly authorized representative of Plaintiffs Lead Counsel, and such agreements

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will be binding on Plaintiff.

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14.

This Order shall apply to each case, arising out of the same or substantially the same

2 transactions or events as these cases, which is subsequently filed in, remanded to, or transferred to
3 this Court.
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When a case which properly belongs as part of the In re Pacific Biosciences of

5 California, Inc., Derivative Litigation, Lead Case No. CV 11-06703-CW, is hereafter filed in the
6 Court or transferred here from another court, this Court requests the assistance of counsel in calling
7 to the attention of the clerk of the Court the filing or transfer of any case which might properly be
8 consolidated as part of the In re Pacific Biosciences of California, Inc. Derivative Litigation, Lead
9 Case No. CV 11-06703-CW, and counsel are to assist in assuring that counsel in subsequent actions
10 receive notice of this Order.

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DATED: March"!_, 2012
BRAMSON, PLUTZIK, MAHLER &

B];: IU '-·

-V'-'-=::.....,_

haelS.

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Alan R. Plutzik (State Bar No. 77785)
MichaelS. Strimling (State Bar No. 96135)
2125 Oak Grove Road, Suite 120
Walnut Creek, CA 94598
Telephone: {925) 945-0200
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]

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Attorneys for Plaintiff Robert Burlingame

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WILSON SONSIN!GOODRICH &
ROSATI, P.C.

ir.l(
Nina Locker, (State Bar No. 123838)
Catherine E. Moreno (State Bar No. 264517)
Benjamin M. Crossen (State Bar No. 247560)
650 Page Mill Road
Palo Alto, CA 94304-1050

Attorneys for Defendants Pacific Biosciences
of California, Inc., Hugh C. Martin, Brooks
Byers, William C. Ericson, Michael
Hunkapiller, Randal S. Livingston, Susan
Siegal and David Singer

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13 IT IS SO ORDERED, except that the case will be heard in Oakland, and the
14 correct case number and caption are as follows: C 4:11-6703 CW,
Robert Burlingame, a derivatively on behalf of PACIFIC BIOSCIENCE OF
15 CALIFORNIA, INC., vs. HUGH C. MARTIN; BRROK BYERS; WILLIAM W. ERICSON;
16 MICHAEL HUNKPILLER; RANDALL S. LIVINGSTON; SUSAN SIEGEL; and DAVID SINGER
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Claudia Wilken
United States District Judge