Ross v. Fogarty et al

Filing 37

ORDER REGARDING DISMISSAL. Signed by Judge Jon S. Tigar on April 14, 2022. (mll, COURT STAFF) (Filed on 4/14/2022)

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Michael A. Mugmon (SBN 251958)
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
One Front Street, Suite 3500
San Francisco, CA 94111
Telephone: [phone]

Benjamin Heikali (SBN 307466)
[e-mail]
FARUQI & FARUQI, LLP
10866 Wilshire Boulevard, Suite 1470
Los Angeles, CA 90024
Telephone: [phone]
Facsimile: [phone]

Counsel for Nominal Defendant and
Individual Defendants

Counsel for Plaintiff

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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GERALD ROSS, Derivatively and on Behalf of
ASSERTIO THERAPEUTICS, INC.,
Plaintiff,

JOINT STIPULATION AND
[PROPOSED] ORDER REGARDING
DISMISSAL

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Case No. 17-cv-06592-JST

vs.
JAMES P. FOGARTY, KAREN A. DAWES,
ARTHUR J. HIGGINS, LOUIS J. LAVIGNE, JR.,
WILLIAM T. MCKEE, GAVIN T. MOLINELLI,
ROBERT G. SAVAGE, PETER D. STAPLE,
JAMES L. TYREE, SAMUEL R. SAKS, M.D.,
JAMES A. SCHOENECK, DAVID B. ZENOFF,
SRINIVAS G. RAO, M.D., PH.D. and R. SCOTT
SHIVELY,

Hearing Date: N/A
Courtroom 6, 2nd Floor
Hon. Jon S. Tigar

Defendants, and

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ASSERTIO THERAPEUTICS, INC., F/K/A
DEPOMED, INC.,

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Nominal Defendant.

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JOINT STIPULATION & [PROPOSED] ORDER REGARDING DISMISSAL
Case No. 17-cv-06592-JST

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Plaintiff Gerald Ross (“Plaintiff”), individual defendants James P. Fogarty, Karen A. Dawes,

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Arthur J. Higgins, Louis J. Lavigne, Jr., William T. McKee, Gavin T. Molinelli, Robert G. Savage,

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Peter D. Staple, James L. Tyree, Samuel R. Saks, M.D., James A. Schoeneck, David B. Zenoff,

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Srinivas G. Rao, M.D., PH.D. and R. Scott Shively, and nominal defendant Assertio Therapeutics,

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Inc., f/k/a Depomed, Inc. (“Assertio”) hereby stipulate and agree as follows:

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WHEREAS, the above-captioned shareholder derivative action (the “Action”), brought on
behalf and for the benefit of Assertio, was commenced on November 15, 2017 (ECF No. 1);
WHEREAS, other related shareholder derivative actions were brought on behalf of Assertio,

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including (i) a consolidated shareholder derivative action styled as In re Depomed, Inc. Derivative

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Litigation, Master File No.: RG17877280, pending in the Superior Court of the State of California

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for the County of Alameda (the “State Court Action”) and (ii) a shareholder derivative action styled

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as Lutz v. Higgins, et al., Case No. 1:18-cv-02044-CFC, pending in the United States District Court

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for the District of Delaware (the “Lutz Action”);

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WHEREAS, on July 30, 2021, the parties to this Action, the State Court Action and the Lutz

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Action executed a Stipulation of Settlement and Release Agreement (the “Settlement Stipulation”)

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providing, among other things, for the release of certain claims, including all those asserted against

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the defendants in this Action, and the parties’ stipulation to the dismissal of this Action, with prejudice,

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following the date on which the Settlement Stipulation shall have become final and effective;

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WHEREAS, on August 6, 2021, plaintiffs in the State Court Action filed an Unopposed Motion
for Preliminary Approval of Derivative Settlement (the “Derivative Settlement”);

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WHEREAS, on October 28, 2021, Judge Brad Seligman entered an order preliminarily

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approving the Derivative Settlement and ordering that notice of the Derivative Settlement be provided

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to Assertio stockholders;

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WHEREAS, notice of the Derivative Settlement was provided to Assertio stockholders in
accordance with the preliminary approval order;

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WHEREAS, on December 14, 2021, following a settlement fairness hearing, Judge Seligman

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entered an Order and Final Judgment (the “Judgment,” attached hereto as Exhibit A), granting final

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-1JOINT STIPULATION & [PROPOSED] ORDER REGARDING DISMISSAL
Case No. 17-cv-06592-JST

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approval of the Derivative Settlement and finding that the Derivative Settlement was fair,

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reasonable, and adequate;

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WHEREAS, pursuant to the terms of the Settlement Stipulation, Plaintiff shall dismiss this
Action with prejudice.
THEREFORE, THE PARTIES HEREBY STIPULATE AND AGREE, through their
undersigned counsel, subject to the approval of the Court, as follows:

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1.

The Action is dismissed with prejudice; and

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2.

The parties agree that except as otherwise set forth in the Settlement Stipulation and/or

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ordered by the court in the State Court Action, each side shall bear his, her, or its own fees, costs,

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and expenses.

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IT IS SO STIPULATED.

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Dated: December 20, 2021

/s/ Benjamin Heikali

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Benjamin Heikali (SBN 307466)
[e-mail]
FARUQI & FARUQI, LLP
10866 Wilshire Boulevard, Suite 1470
Los Angeles, CA 90024
Telephone: [phone]
Facsimile: [phone]

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Counsel for Plaintiff

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Dated: December 20, 2021

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/s/ Michael A. Mugmon

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Michael A. Mugmon (SBN 251958)
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
One Front Street, Suite 3500
San Francisco, CA 94111
Telephone: [phone]

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Counsel for Nominal Defendant and Individual
Defendants

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-2JOINT STIPULATION & [PROPOSED] ORDER REGARDING DISMISSAL
Case No. 17-cv-06592-JST

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[PROPOSED] ORDER

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Based upon the above stipulation of the parties and for good cause appearing:

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The Action is dismissed with prejudice.

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The parties shall bear his, her, or its own fees, costs, and expenses except as otherwise set

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forth in the Settlement Stipulation and/or ordered by the court in the State Court Action.

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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Dated:

April 14, 2022
_________________

____________________________________
The Honorable Jon S. Tigar
United States District Judge

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-3JOINT STIPULATION & [PROPOSED] ORDER REGARDING DISMISSAL
Case No. 17-cv-06592-JST