Steamfitters Local 449 Pension Fund v. Safeway Inc. et al

Filing 50

ORDER GRANTING 49 STIPULATION Vacating Dates, Withdrawing Preliminary Injunction Motion, and Staying Action. Signed by Judge JEFFREY S. WHITE on 7/7/14. (jjoS, COURT STAFF) (Filed on 7/7/2014)

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1 ROBBINS ARROYO LLP
BRIAN J. ROBBINS (#190264)
2 [e-mail]
STEPHEN J. ODDO (#174828)
3 [e-mail]
EDWARD B. GERARD (#248053)
4 [e-mail]
JUSTIN D. RIEGER (#257321)
5 [e-mail]
600 B Street, Suite 1900
6 San Diego, CA 92101
Telephone: [phone]
7 Facsimile: [phone]
8 Attorneys for Plaintiff
9 [Additional counsel on signature page]
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

STEAMFITTERS LOCAL 449 PENSION
13 FUND, on Behalf of Itself and All Others
Similarly Situated,
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Plaintiff,
v.
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SAFEWAY INC., ROBERT L. EDWARDS,
16 T. GARY ROGERS, WILLIAM Y.
TAUSCHER, MOHAN GYANI, ARUN
17 SARIN, JANET E. GROVE, FRANK C.
HERRINGER, KENNETH W. ODER,
18 GEORGE J. MORROW, AB ACQUISITION
LLC, ALBERTSON'S HOLDINGS LLC,
19 ALBERTSON'S LLC, SATURN
ACQUISITION MERGER SUB, INC., AND
20 CERBERUS CAPITAL MANAGEMENT
L.P.,
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Defendants.
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Case No. 4:14-cv-01670-JSW
STIPULATION AND [PROPOSED] ORDER
VACATING DATES, WITHDRAWING
PRELIMINARY INJUNCTION MOTION,
AND STAYING ACTION

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STIPULATION AND PROPOSED ORDER
Case No. 4:14-cv-01670-JSW

Case4:14-cv-01670-JSW Document49 Filed07/03/14 Page2 of 7

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Plaintiff Steamfitters Local 449 Pension Fund ("Plaintiff") and defendants Safeway Inc.

2 ("Safeway"), Robert L. Edwards, T. Gary Rogers, William Y. Tauscher, Mohan Gyani, Arun Sarin,
3 Janet E. Grove, Frank C. Herringer, Kenneth W. Oder, George J. Morrow, AB Acquisition LLC,
4 Albertson's Holdings LLC, Albertson's LLC, Saturn Acquisition Merger Sub, Inc., and Cerberus
5 Capital Management L.P. (collectively, "Defendants"), through their respective counsel, hereby
6 stipulate as follows:
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WHEREAS, Plaintiff filed and served its Amended Class Action Complaint Based Upon

8 Violations of Federal Securities Laws, Self-Dealing, and for Breach of Fiduciary Duty (the
9 "Amended Complaint") on May 15, 2014 (Document No. 30);
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WHEREAS, pursuant to the Stipulation and Order for Additional Time to Answer or

11 Otherwise Respond to the Amended Complaint (Document No. 47), the deadline for Defendants to
12 answer, move to dismiss, or otherwise respond to the Amended Complaint is July 28, 2014;
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WHEREAS, Plaintiff's Notice of Motion and Motion for Preliminary Injunction (the "PI

14 Motion") was filed on June 6, 2014 (Document No. 39) seeking to enjoin Defendants from holding
15 a shareholder vote on the proposed acquisition of Safeway by Albertsons;
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WHEREAS, Defendants filed their oppositions to the PI Motion on June 20, 2014

17 (Document Nos. 41, 44, 45);
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WHEREAS, on June 24, 2014, the Court entered its Order to Show Cause Regarding

19 Colorado River Doctrine (the "Order") (Document No. 48) requiring the parties to this action to
20 state "in writing why this action should not be stayed or dismissed under the Colorado River
21 doctrine" (Order at 2-3);
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WHEREAS, also pursuant to the Order, the hearing on Plaintiff's PI Motion is currently

23 scheduled for July 25, 2014;
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WHEREAS there is an action currently pending before the Delaware Court of Chancery

25 entitled In re Safeway Inc. Stockholders Litigation, Consolidated C.A. No. 9445-VCL (the
26 "Delaware Action");
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-1STIPULATION AND PROPOSED ORDER
Case No. 4:14-cv-01670-JSW

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WHEREAS, the parties to the Delaware Action have reached an agreement in principle to

2 resolve the Delaware Action and signed a Memorandum of Understanding on June 13, 2014 (the
3 "Delaware Settlement");
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WHEREAS, Plaintiff has reviewed the terms of the Delaware Settlement and agrees that the

5 results obtained are beneficial to the proposed class of Safeway shareholders;
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WHEREAS, Plaintiff has reached an agreement with the plaintiffs in Delaware whereby

7 Plaintiff will participate in the Delaware Settlement and submit the question of the fees to which
8 they may be entitled to the exclusive jurisdiction of the Delaware Chancery Court, under the
9 Stipulation of Settlement submitted therein, and whereby this action will be stayed pending the
10 entry of an order granting final approval of the Delaware Settlement;
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WHEREAS, in light of this agreement, Plaintiff is withdrawing its PI Motion, and the

12 parties agree that all briefing and hearing dates and deadlines currently pending in this action should
13 be vacated and this action should be stayed in its entirety pending final resolution of the Delaware
14 Action; and
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WHEREAS, the parties agree that should the Court decide not to enter an order consistent

16 with this stipulation, each party will not assert that the other has failed to timely file to the extent
17 each party is acting in reliance on this stipulation.
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NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the

19 undersigned counsel, subject to approval of the Court, as follows:
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1.

All briefing deadlines and/or hearing dates set by the Court and currently pending in

21 this action are vacated;
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2.

Plaintiff's PI Motion is withdrawn;

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3.

This action is stayed in its entirety pending final resolution of the Delaware Action;

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-2STIPULATION AND PROPOSED ORDER
Case No. 4:14-cv-01670-JSW

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4.

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IT IS SO STIPULATED.

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The parties will promptly notify the Court of the resolution of the Delaware Action.

Dated: July 3, 2014

ROBBINS ARROYO LLP
BRIAN J. ROBBINS
STEPHEN J. ODDO
EDWARD B. GERARD
JUSTIN D. RIEGER

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/s/ Stephen J. Oddo
STEPHEN J. ODDO

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600 B Street, Suite 1900
San Diego, CA 92101
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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MORGAN & MORGAN, P.C.
DOMENICO MINERVA
PETER SAFIRSTEIN
28 West 44th Street, Suite 2001
New York, NY 100136
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

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Counsel for Plaintiff

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Dated: July 3, 2014

LATHAM & WATIKINS, LLP
PATRICK E. GIBBS
ALLISON S. DAVIDSON
CARA A. GRAY

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/s/ Allison S. Davidson
ALLISON S. DAVIDSON

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140 Scott Drive
Menlo Park, CA 94025
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

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Counsel for defendants Safeway Inc., Robert L.
-3STIPULATION AND PROPOSED ORDER
Case No. 4:14-cv-01670-JSW

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Edwards, T. Gary Rogers, William Y.
Tauscher, Mohan Gyani, Arun Sarin, Janet E.
Grove, Frank C. Herringer, Kenneth W. Oder,
and George J. Morrow

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Dated: July 3, 2014

DECHERT LLP
MATTHEW L. LARRABEE
JOSHUA D. N. HESS
MARK P. DIPERNA
BRIAN C. RAPHEL

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/s/ Matthew L. Larrabee
MATTHEW L. LARRABEE

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One Bush Street, Suite 1600
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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Counsel for defendants AB Acquisition LLC,
Albertson's Holdings LLC, Albertson's LLC,
and Saturn Acquisition Merger Sub, Inc.

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Dated: July 3, 2014

FOLGER LEVIN LLP
ROGER B. MEAD

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/s/ Roger B. Mead
ROGER B. MEAD

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199 Fremont Street, 20th Floor
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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Counsel for defendant Cerberus Capital
Management L.P.

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-4STIPULATION AND PROPOSED ORDER
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ORDER

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The above Stipulation having been considered, and good cause appearing therefore,
The Clerk may terminate the motion filed at Docket No. 39.
IT IS SO ORDERED.

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July 7, 2014
DATED: _______________________________
HONORABLE JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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-5STIPULATION AND PROPOSED ORDER
Case No. 4:14-cv-01670-JSW