Schwartz v. Vasudevan et al
Filing
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STIPULATION AND ORDER CONSOLIDATING DERIVATIVE ACTIONS, APPOINTING LEAD COUNSEL FOR PLAINTIFFS, AND STAYING PROCEEDINGS; Consolidating 4:16-cv-0892-YGR and 4:16-CV-2238-YGR. Files of the Consolidated Derivative Action will be maintained in one file under Lead case number 4:16-cv-0892-YGR. Signed by Judge Yvonne Gonzalez Rogers on 6/14/16. (fs, COURT STAFF) (Filed on 6/14/2016)
1 JOHNSON & WEAVER, LLP
FRANK J. JOHNSON (174882)
2 frankj@johnsonandweaver.com
600 West Broadway, Suite 1540
3 San Diego, CA 92101
Telephone: (619) 230-0063
4 Facsimile: (619) 255-1856
5 Attorneys for Plaintiff Arthur Goldstein
6 [Additional counsel appear on signature page]
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
10 SHELDON SCHWARTZ Derivatively On
Behalf of NIMBLE STORAGE
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Plaintiff,
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v.
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SURESH VASUDEVAN, VARUN MEHTA, )
FRANK CALDERONI, JAMES J. GOETZ, )
WILLIAM D. JENKINS, JR., JERRY M.
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KENNELLY, PING LI, WILLIAM J.
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SCHROEDER, ANUP V. SINGH, DANIEL T. )
LEARY, UMESH MAHESHWARI,
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Defendants,
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NIMBLE STORAGE, INC., a Delaware
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corporation,
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Nominal Defendant.
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Case No. 5:16-CV-00892-YGR
STIPULATION AND [PROPOSED]
ORDER CONSOLIDATING
DERIVATIVE ACTIONS, APPOINTING
LEAD COUNSEL FOR PLAINTIFFS,
AND STAYING PROCEEDINGS
Filed: February 23, 2016
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STIPULATION AND [PROPOSED] ORDER CONSOLIDATING
DERIVATIVE ACTIONS, APPOINTING LEAD COUNSEL FOR
PLAINTIFFS, AND STAYING PROCEEDINGS
Case No. 5:16-CV-00892-YGR
1 ARTHUR GOLDSTEIN, derivatively and on
behalf of NIMBLE STORAGE, INC.,
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Plaintiff,
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v.
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SURESH VASUDEVAN, ANUP V. SINGH,
5 FRANK CALDERONI, JAMES J. GOETZ,
WILLIAM D. JENKINS, JR., JERRY M.
6 KENNELLY, PING LI, VARUN MEHTA,
WILLIAM J. SCHROEDER, DANIEL T.
7 LEARY and UMESH MAHESHWARI,
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Defendants,
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-and10
NIMBLE STORAGE, INC., a Delaware
11 corporation,
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Nominal Defendant.
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Case No. 5:16-CV-02238-YGR
Filed: April 26, 2016
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STIPULATION AND [PROPOSED] ORDER CONSOLIDATING
DERIVATIVE ACTIONS, APPOINTING LEAD COUNSEL FOR
PLAINTIFFS, AND STAYING PROCEEDINGS
Case No. 5:16-CV-00892-YGR
1
WHEREAS, there are presently two shareholder derivative actions currently pending in
2 this district against the Individual Defendants,1 who are certain current and former directors and
3 officers of nominal defendant Nimble Storage, Inc. (“Nimble”) (Nimble, together with the
4 Individual Defendants, being collectively referred to herein as “Defendants”): Schwartz v.
5 Vasudevan, et al., Case No. 5:16-cv-00892-YGR; and Goldstein v. Vasudevan, et al., Case
6 No. 5:16-CV-02238-YGR (together, the “Derivative Actions”);
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WHEREAS, three putative class actions alleging violations of the federal securities laws
8 filed against Nimble and certain Nimble officers were also filed and are pending in this district:
9 Vikramkumar v. Nimble Storage, Inc., et al., Case No. 4:15-cv-05803-YGR; Guardino v. Nimble
10 Storage, Inc., et al, Case No. 3:15-cv-05991-YGR; and Madhani v. Nimble Storage, Inc., et al.,
11 Case No. 4:16-cv-00629-YGR (collectively, “the Securities Class Action”);
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WHEREAS, on March 28, 2016, the Court entered an “Order Granting Arkansas Teacher
13 Retirement System’s Motion for Consolidation, Appointment as Lead Plaintiff, and Approval of
14 Selection of Counsel” (Doc. No. 69);
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WHEREAS, on May 12, 2016, the Court entered a Related Case Order in the Securities
16 Class Action (Doc. No. 84), relating and reassigning the Schwartz Action and the Securities Class
17 Action to this Court;
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WHEREAS, on May 16, 2016, the Court entered a Related Case Order in the Securities
19 Class Action (Doc. No. 88), relating and reassigning the Goldstein Action and the Securities Class
20 Action to this Court;
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WHEREAS, while the Derivative Actions assert different claims for liability, they
22 involve some of the same parties and factual allegations as the Securities Class Action;
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WHEREAS, defendants named in the Securities Class Action plan to file a motion to
24 dismiss the Securities Class Action;
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The “Individual Defendants” include Suresh Vasudevan, Varun Mehta, Frank Calderoni,
27 James J. Goetz, William D. Jenkins, Jr., Jerry M. Kennelly, Ping Li, William J. Schroeder,
Anup V. Singh, Daniel T. Leary, and Umesh Maheshwari.
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1
STIPULATION AND [PROPOSED] ORDER CONSOLIDATING
DERIVATIVE ACTIONS, APPOINTING LEAD COUNSEL FOR
PLAINTIFFS, AND STAYING PROCEEDINGS
Case No. 5:16-CV-00892-YGR
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WHEREAS, in an effort to assure consistent rulings and decisions and the avoidance of
2 unnecessary duplication of effort, the undersigned counsel for the parties submit this renewed
3 stipulation to consolidate the Derivative Actions;
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WHEREAS, Johnson & Weaver, LLP and Lifshitz & Miller seek to be designated as
5 Lead Counsel in the Derivative Actions, once consolidated, and Defendants take no position with
6 respect to such designation; and
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WHEREAS, based upon the circumstances unique to this case, and to avoid the
8 unnecessary expenditure of judicial resources before resolution of the anticipated motion to
9 dismiss the Securities Class Action, the parties to this action have further agreed, subject to this
10 Court’s approval, to stay the consolidated action, including motions practice and discovery, in a
11 manner substantially similar to the Order Regarding Response to Complaint and Stay of
12 Litigation entered in the Schwartz Action on April 20, 2016.
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WHEREFORE, the parties, through their undersigned counsel, hereby agree, stipulate,
14 and respectfully request that the Court enter an Order as follows:
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1.
The following actions shall be consolidated for all purposes, including pre-trial
16 proceedings and trial, into one action (the “Consolidated Derivative Action”):2
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Case Name
Case No.
Filing Date
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Schwartz v. Vasudevan, et al.
5:16-CV-00892-YGR
February 23, 2016
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Goldstein v. Vasudevan, et al.
5:16-CV-02238-YGR
April 26, 2016
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2.
Every pleading filed in the Consolidated Derivative Action, or in any separate
22 action included herein, must bear the following caption:
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For clarity, the Securities Class Action should not be consolidated with the Derivative Actions.
26 While the actions are related under Civil Local Rule 3-12, they are not suitable for consolidation
because, among other reasons, the Securities Class Action alleges violations of the federal
27 securities laws against Nimble, whereas the Derivative Actions bring claims purportedly on
behalf of Nimble.
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STIPULATION AND [PROPOSED] ORDER CONSOLIDATING
DERIVATIVE ACTIONS, APPOINTING LEAD COUNSEL FOR
PLAINTIFFS, AND STAYING PROCEEDINGS
Case No. 5:16-CV-00892-YGR
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
3 IN RE NIMBLE STORAGE, INC.
DERIVATIVE LITIGATION,
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Lead Case No.: 5:16-cv-00892-YGR
(Derivative Action)
5 This Document Relates To:
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ALL ACTIONS.
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3.
The files of the Consolidated Derivative Action will be maintained in one file
9 under Lead Case No.: 5:16-cv-00892-YGR.
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4.
Lead Counsel for plaintiffs for the conduct of the Consolidated Derivative Action
11 is designated as follows:
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JOHNSON & WEAVER, LLP
FRANK J. JOHNSON
600 West Broadway, Suite 1540
San Diego, CA 92101
Telephone: (619) 230-0063
Facsimile: (619) 255-1856
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LIFSHITZ & MILLER
JOSHUA M. LIFSHITZ
821 Franklin Ave., Suite 209
Garden City, NY 11530
Telephone: (516) 493-9780
Facsimile: (516) 280-7376
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5.
The parties agree that plaintiffs’ Lead Counsel has authority to speak for plaintiffs
21 in matters regarding pre-trial procedure, trial, and settlement negotiations and shall make all work
22 assignments in such manner as to facilitate the orderly and efficient prosecution of this litigation
23 and to avoid duplicative or unproductive effort.
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6.
The parties agree that plaintiffs’ Lead Counsel will be responsible for coordinating
25 all activities and appearances on behalf of plaintiffs and for the dissemination of notices and
26 orders of this Court. The parties further agree that no motion, request for discovery, or other pre27 trial or trial proceedings will be initiated or filed by any plaintiffs except through plaintiffs’ Lead
28 Counsel.
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STIPULATION AND [PROPOSED] ORDER CONSOLIDATING
DERIVATIVE ACTIONS, APPOINTING LEAD COUNSEL FOR
PLAINTIFFS, AND STAYING PROCEEDINGS
Case No. 5:16-CV-00892-YGR
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7.
The parties agree that Defendants’ counsel may rely upon all agreements made
2 with plaintiffs’ Lead Counsel, or other duly authorized representative of plaintiffs’ Lead Counsel,
3 and such agreements will be binding on plaintiffs.
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8.
This Order shall apply to each purported derivative action arising out of the same
5 or substantially the same transactions or events as the Nimble Derivative Actions, which is
6 subsequently filed in, removed to, or transferred to this Court.
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When a case that properly belongs as part of the Consolidated Derivative Action is
8 hereafter filed in this Court or transferred here from another court, counsel shall promptly call to
9 the attention of the Clerk of the Court the filing or transfer of any case that might properly be
10 consolidated as part of the Consolidated Derivative Action.
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10.
The parties agree to stay the Consolidated Derivative Action until the earlier of
12 either of the following events: (i) the Securities Class Action is dismissed with prejudice; or
13 (ii) Defendants file an answer in the Securities Class Action.
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Defendants shall have no obligation to respond to the complaints filed in either of
15 the Derivative Actions so long as the case remains stayed.
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12.
In the event that any discovery is provided or produced by Defendants to plaintiffs
17 in any related derivative action purportedly brought on behalf of Nimble arising from similar facts
18 as the instant action, Defendants will at or about the same time notice plaintiffs and provide
19 copies of that discovery to plaintiffs in the Consolidated Derivative Action, provided that the
20 parties have executed and the Court has entered a protective order.
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13.
Plaintiffs will have thirty (30) days from when the Securities Class Action is
22 dismissed with prejudice or Defendants file an answer in the Securities Class Action to enter into
23 a stipulation with Defendants and/or seek leave to file an amended derivative complaint or, in the
24 alternative, designate an operative complaint.
Defendants will answer, move against, or
25 otherwise respond to the amended derivative complaint or the designated operative complaint as
26 the case may be within forty-five (45) days after plaintiffs file an amended derivative complaint
27 or designate an operative complaint.
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STIPULATION AND [PROPOSED] ORDER CONSOLIDATING
DERIVATIVE ACTIONS, APPOINTING LEAD COUNSEL FOR
PLAINTIFFS, AND STAYING PROCEEDINGS
Case No. 5:16-CV-00892-YGR
1
14.
Defendants shall notify Lead Counsel for plaintiffs in the Consolidated Derivative
2 Action of any formal settlement meetings, mediations, or settlement conferences that might be
3 held in any currently filed, subsequently filed, or threatened derivative actions that are based on
4 the same or substantially similar allegations as made in the Consolidated Derivative Action.
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15.
By entering into this stipulation, the parties do not waive any rights or defenses,
6 procedural or otherwise, not specifically addressed herein, and reserve their respective rights to
7 file any application, request or motion with the Court they deem appropriate once this case is no
8 longer deferred.
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At any time during which the prosecution of this Consolidated Derivative Action is
10 stayed pursuant to the Order, any party may file a motion with the Court seeking to modify the
11 terms of the Order, which may be opposed by any other party.
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IT IS SO STIPULATED.
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14 Dated: June 10, 2016
JOHNSON & WEAVER, LLP
FRANK J. JOHNSON
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By: /s/Frank J. Johnson
FRANK J. JOHNSON
600 West Broadway, Suite 1540
San Diego, CA 92101
Telephone: (619) 230-0063
Facsimile: (619) 255-1856
frankj@johnsonandweaver.com
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Attorneys for Plaintiff Arthur Goldstein
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STIPULATION AND [PROPOSED] ORDER CONSOLIDATING
DERIVATIVE ACTIONS, APPOINTING LEAD COUNSEL FOR
PLAINTIFFS, AND STAYING PROCEEDINGS
Case No. 5:16-CV-00892-YGR
1 Dated: June 10, 2016
REICH RADCLIFFE & KUTTLER LLP
MARC G. REICH
ADAM T. HOOVER
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By: /s/ Marc G. Reich
MARC G. REICH
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4675 MacArthur Court, Suite 550
Newport Beach, CA 92660
Phone: (949) 975-0512
Facsimile: (949) 208-2839
mgr@reichradcliffe.com
adhoover@reichradcliffe.com
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LIFSHITZ & MILLER
JOSHUA M. LIFSHITZ
821 Franklin Ave., Suite 209
Garden City, NY 11530
Telephone: (516) 493-9780
Facsimile: (516) 280-7376
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Attorneys for Plaintiff Sheldon Schwartz
13 Dated: June 10, 2016
FENWICK & WEST LLP
FELIX S. LEE
MICHAEL DAVIS-WILSON
DEBORAH KANG
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By: /s/ Felix S. Lee
FELIX S. LEE
Silicon Valley Center
801 California Street
Mountain View, CA 94041
Telephone: (650) 988-8500
Facsimile: (650) 938-5200
flee@fenwick.com
mdaviswilson@fenwick.com
dkang@fenwick.com
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FENWICK & WEST
SUSAN S. MUCK
MICHAEL S. DICKE
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: (415) 875-2300
Facsimile: (415) 281-1350
smuck@fenwick.com
mdicke@fenwick.com
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Attorneys for Defendants
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STIPULATION AND [PROPOSED] ORDER CONSOLIDATING
DERIVATIVE ACTIONS, APPOINTING LEAD COUNSEL FOR
PLAINTIFFS, AND STAYING PROCEEDINGS
Case No. 5:16-CV-00892-YGR
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SIGNATURE ATTESTATION
I am the ECF user whose identification and password are being used to file the foregoing
3 Joint Stipulation and Proposed Order Temporarily Deferring Prosecution of Derivative Action. In
4 compliance with Local Rule 5-1(i)(3), I hereby attest that concurrence in the filing of this
5 document has been obtained.
6 Dated: June 10, 2016
/s/ Frank J. Johnson
Frank J. Johnson
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9 PURSUANT TO STIPULATION, IT IS SO ORDERED.
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11 Dated: June
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, 2016
HON. YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT JUDGE
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STIPULATION AND [PROPOSED] ORDER CONSOLIDATING
DERIVATIVE ACTIONS, APPOINTING LEAD COUNSEL FOR
PLAINTIFFS, AND STAYING PROCEEDINGS
Case No. 5:16-CV-00892-YGR
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