IN RE MERCURY INTERACTIVE SECURITIES LITIGATION

Filing 392

ORDER SETTING DATES TO PROVIDE ADDITIONAL NOTICE TO THE CLASS AND SET A HEARING REGARDING ATTORNEYS' FEES AND EXPENSES (granting 387 , approving 391 ). Motion Hearing set for 2/18/2011 at 9:00 AM in Courtroom 3, 5th Floor, San Jose. Signed by Judge Jeremy Fogel on 10/15/2010. (jflc2, COURT STAFF) (Filed on 10/19/2010)

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JOEL H. BERNSTEIN (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] Telecopier: [phone] LIONEL Z. GLANCY, #134180 PETER A. BINKOW, #173848 GLANCY BINKOW & GOLDBERG LLP 1801 Avenue of the Stars, Suite 311 Los Angeles, California 90067 Telephone: [phone] Telecopier: [phone] Co-Lead Counsel for Lead Plaintiff, Mercury Pension Fund Group and the Class JAMES M. WAGSTAFFE, #95535 DANIEL A. ZAHEER #237118 KERR & WAGSTAFFE LLP 100 Spear Street, Suite 1800 San Francisco, CA 94105-1528 Telephone: [phone] Telecopier: [phone] Counsel for Lead Plaintiff, Mercury Pension Fund Group and the Class

**E-Filed 10/19/2010**

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ) IN RE MERCURY INTERACTIVE CORP. ) ) SECURITIES LITIGATION ) ) ) This Document Relates To: ) ) ) ALL ACTIONS ) ) ) ) _____________________________________ ) Master File No. 5:05-CV-3395-JF (PVT) [PROPOSED] ------------------ REVISED ORDER SETTING DATES TO PROVIDE ADDITIONAL NOTICE TO THE CLASS AND SET A HEARING REGARDING ATTORNEYS' FEES AND EXPENSES Date: , 2010 Time: 9:00 a.m. Place: Courtroom 3 Before: Honorable Jeremy Fogel

[PROPOSED] ORDER SETTING DATES REGARDING FEES & EXPENSES - MASTER FILE NO. 5:05-CV-3395-JF (PVT)

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WHEREAS, a class action is pending before the Court entitled In re Mercury Interactive Corporation Securities Litigation, Master File No. 5:05-CV-3395-JF; WHEREAS, the parties entered into a Stipulation of Settlement dated as of October 31,

WHEREAS, by Order entered June 4, 2008, the Court granted preliminary approval to the Settlement and, therein, appointed the firm Complete Claims Solutions (later named "Rust Consulting") as claims administrator to mail the Hearing Notice to all previously identified recipients of the Notice of Pendency and Proposed Settlement of Class Action; WHEREAS, on September 25, 2008, the Court entered the Final Judgment and Order of Dismissal with Prejudice, wherein the Court certified the Settlement Class and finally approved the Settlement; WHEREAS, no Class Members appealed the Court's entry of Final Judgment and Order of Dismissal with Prejudice WHEREAS, the Court's approval of the Settlement is final; WHEREAS, in accordance with the guidance of the Court of Appeals for the Ninth Circuit's opinion in New York State Teachers' Retirement System v. Archdiocese of Milwaukee Supporting Fund, No. 08-17372 (August 18, 2010) ("Opinion") and Fed. R. Civ. P. 23(h), Lead Plaintiff Mercury Pension Fund Group (collectively referred to herein as the "Lead Plaintiff") have filed a Notice of Motion for an Order Setting Dates to Provide Additional Notice to Class Members and Set a Hearing Regarding Attorneys' Fees and Expenses ("Motion"); WHEREAS, Lead Plaintiff has determined that the notice program shall consist of the dissemination of the Proposed Notice of Fairness Hearing ("Hearing Notice"), annexed hereto as Exhibit A; WHEREAS, Lead Plaintiff has determined that the notice program is in accord with the Ninth Circuit's guidance as set forth in the Opinion; and WHEREAS, the Court has considered the Lead Plaintiff's submission; NOW, THEREFORE, IT IS HEREBY ORDERED:
[PROPOSED] ORDER SETTING DATES REGARDING FEES & EXPENSES MASTER FILE NO. 5:05-CV-3395-JF (PVT)

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1.

The Court hereby approves the Hearing Notice substantially in the form annexed

hereto as Exhibit A. The form and content of the notice program described herein, and the method set forth herein for notifying class members, meets the requirements of Rules 23 of the Federal Rules of Civil Procedure, Section 21D(a)(7) of the Securities Exchange Act of 1934, 15 U.S.C. §78u-4(a)(7), as amended by the Private Securities Litigation Reform Act of 1995, and due process, and constitutes the best notice practicable under the circumstances, and shall constitute due and sufficient notice to all persons and entities entitled thereto. 2. Within 30 calendar days of the entry of this order, Lead Counsel shall utilize Rust

Consulting, Inc., the previously approved claims administrator, to disseminate the Hearing Notice to class members. 3. Lead Counsel shall file with the Court a renewed Motion for Approval of an

Award of Attorneys' Fees and Expenses ("Fee Motion") within 30 calendar days of the entry of this order. 4. Lead Counsel shall also make available on the claims administrator's website

(www.mercuryinteractivesecuritiessettlement.com) a copy of any and all papers filed in connection with the Fee Motion no later than three business days after the filing of such papers with this Court. 5. Any Claimant may appear and show cause, and any other Member of the Class

who can show an interest in the issue of attorneys' fees may appear and show cause, if he, she or it has any reason, why attorneys' fees and expenses should or should not be awarded to counsel for the plaintiffs, or why the expenses of the Lead Plaintiffs should or should not be awarded; provided, however, that no Class Member or any other Person shall be heard or entitled to contest such matters, unless that Class Member has delivered by hand or sent by first-class mail written objections and copies of any papers and briefs such that they are received by hand or postmarked on or before 90 calendar days from the date of this order, by Labaton Sucharow LLP, Attn: Michael H. Rogers, 140 Broadway, New York, NY 10005; Glancy Binkow & Goldberg, Attn: Peter Binkow, 1801 Avenue of the Stars, Suite 311, Los Angeles, CA 90067, and filed with the Clerk of the United States District Court for the Northern District of
[PROPOSED] ORDER SETTING DATES REGARDING FEES & EXPENSES MASTER FILE NO..5:05-CV-3395-JF (PVT) 3

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California. Any Member of the Class who does not make his, her or its objection in the manner provided shall be deemed to have waived such objection and shall forever be foreclosed from making any objection to the award of attorneys fees and expenses to counsel for the plaintiffs or expenses of the Lead Plaintiffs, unless otherwise ordered by the Court. 6. Any Member of the Class may enter an appearance in the Litigation, at their own

expense, individually or through counsel of their own choice, in which case such counsel must file with the Clerk of the Court and deliver to Plaintiffs' Lead Counsel and Mercury Counsel a notice of such appearance. Class Members who do not enter an appearance, will be represented by Plaintiffs' Lead Counsel. 7. Lead Counsel shall have the opportunity to file a reply brief in support of the Fee

Motion, which shall be filed with the Court on or before 105 calendar days from the date of this order. 8. A hearing is hereby scheduled before this Court on February 18, 2011 at 9:00 a.m.

The Court reserves the right to adjourn the date of the hearing without further notice to the Members of the Class. October 15 Dated:______________, 2010

_______________________________ The Honorable Jeremy Fogel United States District Court for the Northern District of California

[PROPOSED] ORDER SETTING DATES REGARDING FEES & EXPENSES MASTER FILE NO..5:05-CV-3395-JF (PVT) 4

EXHIBIT A

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION In re MERCURY INTERACTIVE CORP. SECURITIES LITIGATION

Master File No. 5:05-CV-3395-JF (PVT) CLASS ACTION NOTICE OF FAIRNESS HEARING EXHIBIT A

ALL PERSONS WHO PURCHASED MERCURY INTERACTIVE CORPORATION ("MERCURY") SECURITIES (INCLUDING COMMON STOCK, OPTIONS, OTHER EQUITY SECURITIES, AND DEBT SECURITIES) DURING THE PERIOD BEGINNING SEPTEMBER 8, 2001 THROUGH JULY 3, 2006 You were previously mailed a copy of the Notice of Pendency and Proposed Settlement

of Class Action ("Notice") in this case. YOU ARE HEREBY NOTIFIED that a hearing will be held at the United States District Court for the Northern District of California (the "District Court") on February 18, 2011, at 9:00 a.m., before the Honorable Jeremy Fogel at the United States Courthouse, 280 South First Street, San Jose, California, solely for the purpose of determining whether the application of Plaintiffs' Lead Counsel for the payment of attorneys' fees and reimbursement of expenses and the Lead Plaintiffs' expenses incurred in connection with the prosecution and Settlement of the above-captioned action (the "Litigation") should be approved. Notice of the $117,500,00 Settlement of this Litigation and the awarding of legal fees was mailed in mid-2008. The Notice provided that Plaintiffs' Lead Counsel would apply to the Court for attorneys' fees in the amount of 25% of the Settlement Fund and reimbursement of out-of-pocket expenses not to exceed $975,000 to be paid from the Settlement Fund. The Notice also provided that the deadline for objections to the Settlement, the Plan of Allocation or the

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application for attorneys' fees and expenses ("Fee Motion") was September 4, 2008 and that a Fairness Hearing, in which the District Court would decide whether to approve the Settlement, Plan of Allocation and Fee Motion, would be held on September 25, 2008. In response to the Notice the New York State Teachers' Retirement System ("NY Teachers") filed an objection to the request for attorneys' fees. On September 26, 2008 the District Court approved the Settlement and Fee Motion. NY Teachers appealed the award of attorneys' fees to the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"). On August 18, 2010, the Ninth Circuit vacated and remanded the attorneys' fee award to the District Court for further proceedings because it found the procedure inadequate whereby class members were required to object prior to the date the Fee Motion was filed. A Fee Motion has been filed with the District Court by Plaintiffs' Lead Counsel. Counsel is seeking the amount of attorneys' fees and expenses previously applied for. If the amount requested is approved by the Court, the average cost per share will be $0.35. If you are a Member of the Class and wish to object to this Fee Motion, or comment upon the Ninth Circuit Fee Award1, you must file a written objection with the District Court by [___], 2011. The objection must contain a statement of the reasons for objection. Any Class Member who timely and validly submits a written objection may appear and be heard at the hearing on February 18, 2011. To object to the Fee Motion, your objection must be received by the following, or postmarked, on or before [___], 2011:

On October 1, 2010, the Ninth Circuit awarded attorneys' fees of $171,490.00 to the lawyers who represented NY Teachers in their appeal (the "Ninth Circuit Fee Award"). At the _________, 2011 hearing, the District Court will also determine whether the Ninth Circuit Fee Award will come out of or be awarded in addition to Lead Counsel's Fee Award.
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CLERK OF THE COURT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 280 South First Street San Jose, CA 95113 Lead Counsel for Plaintiffs: LABATON SUCHAROW LLP ATTN: MICHAEL H. ROGERS 140 Broadway New York, NY 10005 GLANCY BINKOW & GOLDBERG LLP ATTN: PETER A. BINKOW 1801 Avenue of the Stars, Suite 311 Los Angeles, CA 90067

You may obtain a copy of the Fee Motion and the Notice by writing to Mercury Interactive Securities Litigation, c/o Rust Consulting, Inc., [P.O. Box 24715, West Palm Beach, FL 33416], or may download a copy from the internet at www.MercuryInteractiveSecuritiesSettlement.com. Please refer to the Notice for further information on the Settlement and attorneys' fees. SPECIAL NOTICE TO NOMINEES If you held any Mercury securities purchased during the Class Period as nominee for a beneficial owner, then, within ten (10) days after you receive this Notice, you must either: (1) send a statement to the Claims Administrator confirming that you have the authority to object on behalf of the beneficial owner or (2) if you do not have authority to object, then you must either send a copy of this Notice by first class mail to all such Persons; or provide a list of the names and addresses of such Persons you filed on behalf of to the Claims Administrator at: Mercury Interactive Securities Litigation Claims Administrator c/o Rust Consulting, Inc. [P.O. Box 24715 West Palm Beach, FL 33416] PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING THIS NOTICE. If you have any questions about the settlement, you may contact Plaintiffs' Lead Counsel at the address listed above. 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DATED: _____________ BY ORDER OF THE COURT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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PROOF OF SERVICE VIA ELECTRONIC POSTING PURSUANT TO NORTHEN DISTRICT OF CALIFORNIA LOCAL RULES AND ECF GENERAL ORDER NO. 45 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 October 14, 2010, I caused to be served the following document: [PROPOSED] REVISED ORDER SETTING DATES TO PROVIDE ADDITIONAL NOTICE TO THE CLASS AND SET A HEARING REGARDING ATTORNEYS' FEES AND EXPENSES NOTICE OF FAIRNESS HEARING By posting this document to the ECF Website of the United States District Court for the Northern District of California, for receipt electronically by the parties as reflected on the attached Court's 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 October 14, 2010, at Los Angeles, California. s/ Peter A. Binkow Peter A. Binkow

CERTIFICATE OF SERVICE

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Mailing Information for a Case 5:05-cv-03395-JF
Electronic Mail Notice List
The following are those who are currently on the list to receive e-mail notices for this case. Joel H. Bernstein [e-mail],[e-mail] Asim M. Bhansali [e-mail],[e-mail],[e-mail],[e-mail],[e-mail] Peter Arthur Binkow [e-mail],[e-mail] Jayson E. Blake [e-mail],[e-mail] Norman J. Blears [e-mail],[e-mail],[e-mail],[e-mail],[e-mail],maren.clouse@hoganlovel [e-mail],[e-mail] Sara B. Brody [e-mail],[e-mail],[e-mail] Howard S. Caro [e-mail],[e-mail],[e-mail],[e-mail] Michael Cecchini [e-mail],[e-mail] Cecilia Y. Chan [e-mail],[e-mail] John D. Cline [e-mail] Erica L. Craven-Green [e-mail] Conor R. Crowley [e-mail] Aaron H. Darsky [e-mail] Jonathan DeGooyer [e-mail],[e-mail] Donald Delaney [e-mail] Alan I. Ellman [e-mail],[e-mail],[e-mail] Jeffrey S. Facter [e-mail],[e-mail] Scott A. Fink [e-mail],[e-mail] Joseph Edward Floren [e-mail],[e-mail],[e-mail] Michael M. Goldberg [e-mail] Louis J Gottlieb [e-mail] Azadeh Gowharrizi [e-mail] Alicia G. Huffman [e-mail],[e-mail] Benedict Y Hur [e-mail],[e-mail],[e-mail] Willem F. Jonckheer [e-mail],[e-mail] Nicole Acton Jones [e-mail],[e-mail] Christopher J. Keller [e-mail],[e-mail],[e-mail],[e-mail]

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Jan Nielsen Little [e-mail],[e-mail],[e-mail] K.C. Maxwell , Esq [e-mail] E. Powell Miller [e-mail],[e-mail] Glenn E. Mintzer [e-mail] Lucy B. Ricca [e-mail] Patrick David Robbins [e-mail],[e-mail] Michael H. Rogers [e-mail],[e-mail],[e-mail],[e-mail] Adam Richard Sand , Esq [e-mail] John F. Schultz [e-mail],[e-mail] Michael Adam Schwartz , Esq [e-mail] David R. Scott [e-mail] Michael Todd Scott [e-mail],[e-mail] Benjamin Gross Shatz [e-mail] Arthur L. Shingler , III [e-mail],[e-mail] Andrew T. Solomon [e-mail] Franklin B. Velie [e-mail] James Matthew Wagstaffe [e-mail],[e-mail] Robin Eve Wechkin [e-mail],[e-mail],[e-mail] Carl Brandon Wisoff [e-mail],[e-mail],[e-mail] Daniel Amon Zaheer [e-mail],[e-mail]

Manual Notice List
The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing). You may wish to use your mouse to select and copy this list into your word processing program in order to create notices or labels for these recipients.
Russel N. Jacobson , Lead Plaintiffs , Public Employees' Retirement System of Mississippi c/o Schubert & Reed LLP,Three Embarcadero Center, Suite 1650 San Francisco, CA 94111

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