Schwartz v. Vasudevan et al

Filing 18

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)

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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] 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SHELDON SCHWARTZ Derivatively On Behalf of NIMBLE STORAGE 11 Plaintiff, 12 v. 13 14 15 16 17 18 19 20 21 ) ) ) ) ) ) ) ) SURESH VASUDEVAN, VARUN MEHTA, ) FRANK CALDERONI, JAMES J. GOETZ, ) WILLIAM D. JENKINS, JR., JERRY M. ) KENNELLY, PING LI, WILLIAM J. ) SCHROEDER, ANUP V. SINGH, DANIEL T. ) LEARY, UMESH MAHESHWARI, ) ) Defendants, ) ) -and) ) NIMBLE STORAGE, INC., a Delaware ) corporation, ) ) Nominal Defendant. ) ) 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 22 23 [Caption continued on next page.] 24 25 26 27 28 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., 2 Plaintiff, 3 v. 4 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, 8 Defendants, 9 -and10 NIMBLE STORAGE, INC., a Delaware 11 corporation, 12 Nominal Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 5:16-CV-02238-YGR Filed: April 26, 2016 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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”); 7 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”); 12 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); 15 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; 18 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; 21 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; 23 WHEREAS, defendants named in the Securities Class Action plan to file a motion to 24 dismiss the Securities Class Action; 25 26 1 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. 28 1 STIPULATION AND [PROPOSED] ORDER CONSOLIDATING DERIVATIVE ACTIONS, APPOINTING LEAD COUNSEL FOR PLAINTIFFS, AND STAYING PROCEEDINGS Case No. 5:16-CV-00892-YGR 1 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; 4 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 7 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. 13 WHEREFORE, the parties, through their undersigned counsel, hereby agree, stipulate, 14 and respectfully request that the Court enter an Order as follows: 15 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 17 Case Name Case No. Filing Date 18 Schwartz v. Vasudevan, et al. 5:16-CV-00892-YGR February 23, 2016 19 Goldstein v. Vasudevan, et al. 5:16-CV-02238-YGR April 26, 2016 20 21 2. Every pleading filed in the Consolidated Derivative Action, or in any separate 22 action included herein, must bear the following caption: 23 24 25 2 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. 28 2 STIPULATION AND [PROPOSED] ORDER CONSOLIDATING DERIVATIVE ACTIONS, APPOINTING LEAD COUNSEL FOR PLAINTIFFS, AND STAYING PROCEEDINGS Case No. 5:16-CV-00892-YGR 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 IN RE NIMBLE STORAGE, INC. DERIVATIVE LITIGATION, 4 Lead Case No.: 5:16-cv-00892-YGR (Derivative Action) 5 This Document Relates To: 6 ALL ACTIONS. 7 8 3. The files of the Consolidated Derivative Action will be maintained in one file 9 under Lead Case No.: 5:16-cv-00892-YGR. 10 4. Lead Counsel for plaintiffs for the conduct of the Consolidated Derivative Action 11 is designated as follows: 12 JOHNSON & WEAVER, LLP FRANK J. JOHNSON 600 West Broadway, Suite 1540 San Diego, CA 92101 Telephone: (619) 230-0063 Facsimile: (619) 255-1856 13 14 15 -and16 LIFSHITZ & MILLER JOSHUA M. LIFSHITZ 821 Franklin Ave., Suite 209 Garden City, NY 11530 Telephone: (516) 493-9780 Facsimile: (516) 280-7376 17 18 19 20 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. 24 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. 3 STIPULATION AND [PROPOSED] ORDER CONSOLIDATING DERIVATIVE ACTIONS, APPOINTING LEAD COUNSEL FOR PLAINTIFFS, AND STAYING PROCEEDINGS Case No. 5:16-CV-00892-YGR 1 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. 4 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. 7 9. 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. 11 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. 14 11. 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. 16 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. 21 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. 28 4 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. 5 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. 9 16. 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. 12 IT IS SO STIPULATED. 13 14 Dated: June 10, 2016 JOHNSON & WEAVER, LLP FRANK J. JOHNSON 15 16 17 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 18 19 20 Attorneys for Plaintiff Arthur Goldstein 21 22 23 24 25 26 27 28 5 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 2 3 By: /s/ Marc G. Reich MARC G. REICH 4 5 4675 MacArthur Court, Suite 550 Newport Beach, CA 92660 Phone: (949) 975-0512 Facsimile: (949) 208-2839 mgr@reichradcliffe.com adhoover@reichradcliffe.com 6 7 8 11 LIFSHITZ & MILLER JOSHUA M. LIFSHITZ 821 Franklin Ave., Suite 209 Garden City, NY 11530 Telephone: (516) 493-9780 Facsimile: (516) 280-7376 12 Attorneys for Plaintiff Sheldon Schwartz 13 Dated: June 10, 2016 FENWICK & WEST LLP FELIX S. LEE MICHAEL DAVIS-WILSON DEBORAH KANG 9 10 14 15 16 17 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 18 19 20 21 22 26 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 27 Attorneys for Defendants 23 24 25 28 6 STIPULATION AND [PROPOSED] ORDER CONSOLIDATING DERIVATIVE ACTIONS, APPOINTING LEAD COUNSEL FOR PLAINTIFFS, AND STAYING PROCEEDINGS Case No. 5:16-CV-00892-YGR 1 2 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 7 8 9 PURSUANT TO STIPULATION, IT IS SO ORDERED. 10 11 Dated: June 12 14 , 2016 HON. YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 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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