St. Louis Police Retirement Systems v. Severson et al

Filing 85

ORDER RE: FURTHER BRIEFING AND RESCHEDULING HEARING ON MOTIONS TO DISMISS. Set/Reset Deadlines as to 56 MOTION to Dismiss the Complaint Pursuant to F.R.C.P. 12(b)(1), 12(b)(6), 62 MOTION to Dismiss Count IV of the Complaint Pursu ant to F.R.C.P. 12(b)(1), 12(b)(6). Plaintiff brief filed 4/16/2013; Defendants briefs filed 4/23/2013. Motion Hearing set for 4/9/2013 is CONTINUED to 5/7/2013 02:00 PM before Hon. Yvonne Gonzalez Rogers. Signed by Judge Yvonne Gonzalez Rogers on 4/5/2013. (fs, COURT STAFF) (Filed on 4/5/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ST. LOUIS POLICE RETIREMENT SYSTEM, on behalf
of itself and All Others Similarly Situated and
Derivatively on behalf of Nominal Defendant
ABAXIS, INC.,

United States District Court
Northern District of California

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ORDER RE: FURTHER BRIEFING AND
RESCHEDULING HEARING ON MOTIONS TO
DISMISS

Plaintiff,

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Case No.: 12-CV-5086 YGR

vs.
CLINTON H. SEVERSON, et al.,
Defendants,
ABAXIS, INC.,
Nominal Defendant.
Currently pending before the Court are: (1) the Motion of Director Defendants Severson,

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Bastiani, Casey, Evenhuis, Singh Altman And Tucker And Nominal And Company Defendant

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Abaxis, Inc. To Dismiss the Complaint Pursuant To F.R.C.P 12(B)(1), 12(B)(6), and (2) the

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Motion of Officer Defendants Severson, Santa Ines, Aron, Ostoich, Wood And Mulroy To Dismiss

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Count IV of the Complaint Pursuant To F.R.C.P. 12(B)(1), 12(B)(6).

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As part of their reply briefing, the Director Defendants submitted a Declaration of Alberto

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Santa Ines describing, and attaching minutes of, an October 24, 2012 meeting of the Board of

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Directors (the "Board") and Compensation Committee of the Board (the "Compensation

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Committee") of Abaxis, Inc. The declaration and minutes indicate that the Board and the

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Compensation Committee retroactively ratified and approved all Restricted Stock Units (“RSUs”)

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issued in excess of the previous limits under its 2005 Equity Incentive Plan. Board and

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Compensation Committee further resolved that the “the monetary value of the RSU Share

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Consideration for each RSU Share is equal to the closing price of the Company's Common Stock

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on the date of issuance of such RSU Share.”
The Court seeks further briefing as to the effect of this action of the Board and

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Compensation Committee on Plaintiff’s claims of damages to the Company (Claims 1, 2 and 3),

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and the claim for unjust enrichment/restitution from the Officer Defendants (Claim 4).
Plaintiff shall file a further brief of no more than 10 pages by April 16, 2013. Defendants

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shall file further briefs in response to the points raised therein, of no more than 6 pages each, by

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April 23, 2013. The hearing currently set for April 9, 2013 is CONTINUED to May 7, 2013, at 2:00

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p.m..

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IT IS SO ORDERED.

United States District Court
Northern District of California

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Date: April 5, 2013

_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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