Burlingame v. Pacific Biosciences of California, Inc et al

Filing 40

Order Granting 39 STIPULATION WITH PROPOSED ORDER FOR VOLUNTARY DISMISSAL WITHOUT PREJUDICE OF PLAINTIFF'S VERIFIED SHAREHOLDER DERIVATIVE COMPLAINT. Signed by Judge Claudia Wilken on 4/12/2013. (ndr, COURT STAFF) (Filed on 4/12/2013)

Case4:11-cv-06703-CW Document39 Filed04/11/13 Page1 of 4

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NINA F. LOCKER, State Bar No. 123838
CATHERINE E. MORENO, State Bar No. 264517
BENJAMIN M. CROSSON, State Bar No. 247560
CRYSTAL M. GAUDETTE, State Bar No. 247712
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Attorneys for Defendants Hugh C. Martin,
Brook Byers, William C. Ericson, Michael
Hunkapiller, Randall S. Livingston, Susan
Siegel, David Singer and Nominal Defendant
Pacific Biosciences of California, Inc.

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IN THE UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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ROBERT BURLINGAME, Derivatively on
Behalf of PACIFIC BIOSCIENCES OF
CALIFORNIA, INC.,

)
)
)
)
)
Plaintiff,
)
)
v.
)
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HUGH C. MARTIN, BROOK BYERS,
)
WILLIAM W. ERICSON, MICHAEL
)
HUNKAPILLER, RANDALL S. LIVINGSTON, )
SUSAN SIEGEL, and DAVID SINGER,
)
)
Defendants,
)
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and
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PACIFIC BIOSCIENCES OF CALIFORNIA,
)
)
INC.,
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Nominal Defendant.
)

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STIP. AND [PROPOSED] ORDER DISMISSING COMPL.
CASE NO. 4:11-CV-6703 (CW)

CASE NO.: 4:11-CV-6703 (CW)
STIPULATION AND [PROPOSED]
ORDER FOR VOLUNTARY
DISMISSAL WITHOUT PREJUDICE
OF PLAINTIFF’S VERIFIED
SHAREHOLDER DERIVATIVE
COMPLAINT

Case4:11-cv-06703-CW Document39 Filed04/11/13 Page2 of 4

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Defendants Hugh C. Martin, Brook Byers, William C. Ericson, Michael Hunkapiller,

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Randal S. Livingston, Susan Siegel, and David Singer, along with Nominal Defendant Pacific

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Biosciences of California, Inc. (“PacBio”) (collectively, the “Defendants”), and Plaintiff Robert

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Burlingame (“Plaintiff”) (together, the “Parties”) hereby stipulate and agree as follows:

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WHEREAS, purportedly acting on behalf of Nominal Defendant PacBio, Plaintiff filed his

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Verified Shareholder Derivative Complaint (Dkt. No. 1) on December 29, 2011, (the “Action”)

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against certain current and former PacBio officers and directors, asserting, among other things,

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breach of fiduciary duty, waste of corporate assets, and unjust enrichment;

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WHEREAS, on March 9, 2012, the Court approved the Parties’ stipulation that Defendants

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shall not be required to respond to Plaintiff’s allegations unless and until Plaintiff files an amended

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complaint following the resolution of all motions to dismiss in a related putative securities class

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action, captioned Primo v. Pacific Biosciences of California, Inc., et al., Case No. 4:11-CV-6599

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(N.D. Cal.), which has not yet occurred;

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WHEREAS, Plaintiff and Plaintiff’s counsel have considered the relevant case law and

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the potential hurdles to successfully proceeding with this Action derivatively, and believe that

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given the unique facts and circumstances particular to this Action, the litigation risks of

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proceeding with this Action outweigh the potential benefit to Nominal Defendant PacBio and its

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shareholders. Accordingly, the Parties have conferred and agreed that, in the interests of PacBio

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and its shareholders, as well as efficiency and conservation of judicial resources, Plaintiff shall

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voluntarily dismiss this Action without prejudice;

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WHEREAS, none of the Defendants in this action has entered into a settlement with

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Plaintiff in connection with this voluntary dismissal and neither Plaintiff nor his counsel have

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received or will receive any form of consideration from any of the Defendants in exchange for

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dismissing this Action;

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NOW, THEREFORE, the Parties, by and through their undersigned counsel, hereby

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stipulate and agree, pursuant to Federal Rules of Civil Procedure 23.1(c) and 41(a), subject to the

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Court’s approval, as follows:

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1.

This Action shall be dismissed without prejudice;

STIP. AND [PROPOSED] ORDER DISMISSING COMPL.
CASE NO. 4:11-CV-6703 (CW)

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Case4:11-cv-06703-CW Document39 Filed04/11/13 Page3 of 4

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Each party shall bear its own costs, expenses, and attorneys’ fees.

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Because the Action is in its preliminary stages, it is respectfully submitted that no notice is

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required under Federal Rule of Civil Procedure 23.1 and that Nominal Defendant PacBio and its

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shareholders will not be prejudiced by this dismissal.

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Dated: April 11, 2013

WILSON SONSINI GOODRICH & ROSATI
Professional Corporation

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By:
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s/ Catherine E. Moreno
CATHERINE E. MORENO
650 Page Mill Road
Palo Alto, CA 94304
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendants Hugh C. Martin,
Brook Byers, William C. Ericson, Michael
Hunkapiller, Randall S. Livingston, Susan
Siegel, David Singer and Nominal Defendant
Pacific Biosciences of California, Inc.

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Dated: April 11, 2013

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BRAMSON PLUTZIK MAHLER &
BIRKHAEUSER, LLP

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By:

s/ Michael S. Strimling
MICHAEL S. STRIMLING

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2125 Oak Grove Road, Suite 120
Walnut Creek, CA 94598
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff Robert Burlingame

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[PROPOSED] ORDER

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Pursuant to the foregoing stipulation of counsel for the respective parties hereto, and
good cause appearing, IT IS SO ORDERED.

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April12
12, 2013
Dated: April __, 2013

By:
The Honorable Claudia Wilken
United States District Judge

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STIP. AND [PROPOSED] ORDER DISMISSING COMPL.
CASE NO. 4:11-CV-6703 (CW)

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