IN RE MERCURY INTERACTIVE SECURITIES LITIGATION

Filing 384

STIPULATION AND ORDER re 383 Allowing Expense Reimbursement from Settlement Fund. Signed by Judge Jeremy Fogel on 11/13/08. (dlm, COURT STAFF) (Filed on 11/14/2008)

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PETER A. BINKOW #173848 MARC L. GODINO #182689 GLANCY BINKOW & GOLDBERG LLP 1801 Avenue of the Stars, Suite 311 Los Angeles, California 90067 Telephone: [phone] Facsimile: [phone] Email: [e-mail] JOEL H. BERNSTEIN (admitted pro hac vice) CHRISTOPHER J. KELLER (admitted pro hac vice) LOUIS GOTTLIEB (admitted pro hac vice) MICHAEL H. ROGERS (admitted pro hac vice) LABATON SUCHAROW LLP 140 Broadway New York, New York 10005 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Co-Lead Counsel for Lead Plaintiff Mercury Pension Fund Group and the Class UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION IN RE MERCURY INTERACTIVE CORP. SECURITIES LITIGATION; This Document Relates To: ALL ACTIONS ) ) ) ) ) ) ) ) ) ) ) ) ) LEAD CASE NO. 05-3395 JF (PVT)

STIPULATION AND [PROPOSED] -----------------ORDER ALLOW ING EXPENSE REIMBURSEMENT FROM SETTLEMENT FUND

STIPULATION AND [PROPOSED] ORDER ALLOWING EXPENSE REIMBURSEMENT FROM SETTLEMENT FUND CASE NO. 05-3395 JF (PVT)

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WHEREAS, on May 16, 2008 the parties filed with this Court the Stipulation of Settlement; WHEREAS, Paragraph 9(b) of the Stipulation of Settlement provides as follows: Mercury will produce to Lead Counsel documents necessary for Lead Counsel to conduct confirmatory discovery not less than 30 days prior to the Settlement Fairness Hearing consisting of documents collected by O'Melveny & Myers (including e-mail messages and the contents of hard drives and/or back-up tapes with respect to 35 individual witnesses referenced on page 13 of the Report of the Special Litigation Committee of the Board of Directors of Mercury dated June 7, 2006) and retrieved based upon a search using key words to identify documents related to back-dating of options, subject to limitations of relevance or materials protected by trade secret(s). To the extent that any databases are required to be restored, Lead Counsel will bear the cost of such restoration, which cost will not exceed $150,000. Lead Counsel will have the right to obtain reimbursement of all such costs out of the Gross Settlement Fund. Confirmatory discovery will be produced pursuant to a separate Confidentiality Stipulation and Order to be agreed upon by the parties. WHEREAS, on September 18, 2008, Lead Plaintiffs' Counsel filed its motion with this Court for approval of attorneys' fees and reimbursement of expenses; WHEREAS, on September 26, 2008 this Court entered an Order granting Lead Counsel's motion for attorneys' fees and reimbursement of expenses; WHEREAS, on or around October 23, 2008, counsel for Defendant Mercury Interactive Corporation ("Mercury") notified Lead Counsel that Defendants' discovery vendor, Strategic Discovery, restored a document database on behalf of Mercury and Hewlett-Packard Co. ("HP") produced documents from that database to Lead Counsel and that the cost to restore the database cost was $55,819.25;

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STIPULATION AND [PROPOSED] ORDER ALLOWING EXPENSE REIMBURSEMENT FROM SETTLEMENT FUND CASE NOS. 05-3395 JF (PVT)

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WHEREAS, the invoice for restoring the document database was not provided to Lead Counsel or to counsel for Defendant Mercury and HP prior to this Court's September 26, 2008 Order granting Lead Counsel's motion for attorneys' fees and reimbursement of expenses; WHEREAS, the restoration of the document database benefited the Class in that it provided Lead Counsel the opportunity to conduct confirmatory discovery to substantiate Lead Plaintiffs' claims; and WHEREAS, Lead Counsel now seeks the cost of restoring the database in the amount of $55,819.25 out of the Gross Settlement Fund. IT IS HEREBY STIPULATED AND AGREED BY AND AMONG THE UNDERSIGNED, ON BEHALF OF THEIR RESPECTIVE CLIENTS THAT: The cost of restoring the database in the amount of $55,819.25 should be reimbursed out of the Gross Settlement Fund. DATED: November __, 2008 GLANCY BINKOW & GOLDBERG LLP

__s/Marc L. Godino___ PETER A. BINKOW MARC L. GODINO 1801 Avenue of the Stars, Suite 311 Los Angeles, California 90067 Telephone: [phone] Facsimile: [phone]

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STIPULATION AND [PROPOSED] ORDER ALLOWING EXPENSE REIMBURSEMENT FROM SETTLEMENT FUND CASE NOS. 05-3395 JF (PVT)

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LABATON SUCHAROW LLP Joel H. Bernstein Christopher J. Keller Louis Gottlieb Michael Rogers 140 Broadway New York, New York 10005 Telephone: [phone] Facsimile: [phone] Co-Lead Counsel for Plaintiff the Mercury Pension Fund Group and the Class LAW OFFICE OF PETER G. ANGELOS, P.C. H. Russell Smouse Glenn E. Mintzer One Charles Center 100 N. Charles Street Baltimore, Maryland 21201 Telephone: [phone] Facsimile: [phone] MILLER LAW FIRM PC E. Powell Miller Jayson Blake 950 West University Drive, Suite 300 Rochester, Michigan 48307 Telephone: [phone] Facsimile: [phone] VANOVERBEKE MICHAUD & TIMMONY, P.C. Michael VanOverbeke 79 Alfred Street Detroit, Michigan 48201 Telephone: [phone] Facsimile: [phone] Counsel for the Mercury Pension Fund Group

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STIPULATION AND [PROPOSED] ORDER ALLOWING EXPENSE REIMBURSEMENT FROM SETTLEMENT FUND CASE NOS. 05-3395 JF (PVT)

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DATED: November __, 2008

Morgan, Lewis & Bockius LLP

___s/Kim Alexander Kane_________________ Kim Alexander Kane One Market Spear Street Tower San Francisco, CA 94105 Telephone: [phone] Facsimile: [phone] Counsel for Defendant Mercury Interactive Corp. SO ORDERED: Dated: November 13 2008 , By: _______________________ The Honorable Jeremy Fogel United States District Judge

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STIPULATION AND [PROPOSED] ORDER ALLOWING EXPENSE REIMBURSEMENT FROM SETTLEMENT FUND CASE NOS. 05-3395 JF (PVT)

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PROOF OF SERVICE BY ELECTRONIC POSTING PURSUANT TO NORTHERN DISTRICT OF CALIFORNIA LOCAL RULES AND ECF GENERAL ORDER NO. 45 AND BY MAIL ON ALL KNOWN NON-REGISTERED PARTIES I, the undersigned, say: I am a citizen of the United States and am employed in the office of a member of the Bar of this Court. I am over the age of 18 and not a party to the within action. My business address is 1801 Avenue of the Stars, Suite 311, Los Angeles, California 90067. On November 10, 2008, I served the following by posting such documents electronically to the ECF website of the United States District Court for the Northern District of California: 1. STIPULATION AND [PROPOSED] ORDER ALLOWING EXPENSE REIMBURSEMENT FROM SETTLEMENT FUND

on all ECF-registered parties in the action and, upon all others not so-registered but instead listed below, by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in the United States mail at Los Angeles, California. They are: SEE SERVICE LIST I certify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on November 10, 2008, at Los Angeles, California. S/ Daniel C. Rann Daniel C. Rann

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SERVICE LIST Electronically To All ECF-Registered Entities and By U.S. Mail To All Known NonECF-Registered Entities Public Employees' Retirement System of Mississippi c/o Schubert & Reed LLP, Three Embarcadero Center, Suite 1650 San Francisco, CA 94111

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