Vogel et al v. Apple, Inc. et al

Filing 13

STIPULATION AND ORDER CONTINUING CASE MANAGEMENT CONFERENCE (approving 12 ). The Case Management Conference set for 1/8/2010 is CONTINUED to 4/9/2010 at 10:30 AM in Courtroom 3, 5th Floor, San Jose. Signed by Judge Jeremy Fogel on 1/4/2010. (jflc2, COURT STAFF) (Filed on 1/6/2010)

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

Patrice L. Bishop (182256) [e-mail] STULL, STULL & BRODY 10940 Wilshire Boulevard Suite 2300 Los Angeles, CA 90024 Tel: [phone] Fax: [phone] Howard T. Longman [e-mail] STULL, STULL & BRODY 6 East 45th Street New York, NY 10017 Tel: [phone] Fax: [phone] Gary S. Graifman [e-mail] KANTROWITZ, GOLDHAMER & GRAIFMAN 747 Chestnut Ridge Road Chestnut Ridge, New York 10977 Tel: [phone] Fax: [phone] Attorneys for Plaintiffs

**E-Filed 1/6/2010**

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

MARTIN VOGEL and KENNETH MAHONEY, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. APPLE, INC., STEVEN P. JOBS, FRED ANDERSON, NANCY HEINEN, WILLIAM V. CAMPBELL, MILLARD S. DREXLER, ARTHUR D. LEVINSON, and JEROME P. YORK, Defendants.

CASE NO.: C08-03123-JF CLASS ACTION ----------------STIPULATION AND [PROPOSED] ORDER CONTINUING CASE MANAGEMENT CONFERENCE Date: January 8, 2010 Time: 10:30 a.m. Judge: Hon. Jeremy Fogel Dept: Ctrm. 3, 5th Floor

STIPULATION AND [PROPOSED] ORDER CONTINUING CMC, CASE NO.: 08-cv-03123-JF

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

Plaintiffs Martin Vogel and Kenneth Mahoney ("Plaintiffs") and Defendants Apple Inc. ("Apple"), Fred D. Anderson, Nancy R. Heinen, Steven P. Jobs, William V. Campbell, Millard S. Drexler, Arthur D. Levinson, and Jerome B. York (collectively, the "Defendants") hereby stipulate as follows: WHEREAS, on August 24, 2006, Plaintiffs filed a class action complaint before this Court alleging that certain defendants violated the Securities Exchange Act of 1934 (the "Exchange Act"), including § 10(b) and Rule 10b-5 thereunder, and § 20(a). That action was entitled Martin Vogel and Kenneth Mahoney v. Steven Jobs, et al., Case No. 5:06-cv-05208-JF (N.D. Cal.) (the "Apple Backdating Action No. 1"), and concerning alleged practice of issuing backdating stock options; WHEREAS, on October 24, 2006, New York City Employees' Retirement System ("NYCERS") moved for their appointment as Lead Plaintiff of the Apple Backdating Action No. 1 pursuant to 15 U.S.C. § 78u-4; WHEREAS, on January 19, 2007, this Court appointed NYCERS as Lead Plaintiff of that litigation; WHEREAS, on March 23, 2007, NYCERS filed, as Lead Plaintiff, its Consolidated Complaint and asserted claims under §§ 14(a) and 20(a) of the Exchange Act and the common law duty of disclosure. The Consolidated Complaint did not assert any claims for Defendants' alleged violations of §10(b) of the Exchange Act; WHEREAS, on November 14, 2007, this Court granted Defendants' motion to dismiss the Consolidated Complaint on the ground, inter alia, that NYCERS failed to plead standing to bring a direct claim ("Dismissal Order"); WHEREAS, this Court granted NYCERS leave to amend its complaint but held that NYCERS could only amend for the purpose of attempting to plead a derivative claim, not a direct class action claim; WHEREAS, on December 14, 2007, NYCERS filed a motion for leave to file a First Amended Consolidated Class Action Complaint that contained direct class action claims for alleged violations of § 10(b) of the Exchange Act;
STIPULATION AND [PROPOSED] ORDER CONTINUING CMC, CASE NO.: 08-cv-03123-JF

-1-

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

WHEREAS, on May 14, 2008, this Court denied NYCERS's motion for leave to file an amended complaint ("Denial Order"); WHEREAS, on June 12, 2008, this Court entered Judgment for defendants ("Judgment"); WHEREAS, on June 17, 2008, NYCERS filed its Notice of Appeal of the Dismissal Order, the Denial Order and subsequent Judgment ("NYCERS's Appeal"); WHEREAS, Plaintiffs filed this action ("Apple Backdating Action No. 2") on June 27, 2008, alleging that Defendants violated § 10(b) of the Exchange Act and Rule 10b-5 thereunder and § 20(a) of the Exchange Act by, inter alia, issuing backdated stock options to themselves and other Apple employees; WHEREAS, Plaintiffs and Defendants agreed that if this litigation were to go forward prior to resolution of NYCERS's appeal(s) of the Apple Backdating Action No. 1, there was a risk of duplicative litigation regarding Defendants' alleged backdating and alleged violations of the Exchange Act, and that this risk could result in a waste of judicial resources; WHEREAS, pursuant to the parties' stipulation, on July 22, 2008, this Court entered an Order staying this action pending the resolution of NYCERS's Appeal; WHEREAS, on March 10, 2009, this Court continued the Case Management Conference set for March 6, 2009, to September 4, 2009, at 10:30 a.m.; WHEREAS, on September 3, 2009, this Court continued the Case Management Conference set for September 4, 2009, to January 8, 2010, at 10:30 a.m.; WHEREAS, the Ninth Circuit heard oral argument in NYCERS's Appeal on October 7, 2009, and took the matter under submission; WHEREAS, the Ninth Circuit has not yet issued a ruling on NYCERS's Appeal; WHEREAS, Plaintiffs and Defendants agree that it would be premature and a waste of judicial resources to hold the status conference prior to the Ninth Circuit's ruling on NYCERS's Appeal; // // //
STIPULATION AND [PROPOSED] ORDER CONTINUING CMC, CASE NO.: 08-cv-03123-JF

-2-

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

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED: 1. The Case Management Conference should be continued, if this Court is so

amenable, for approximately 90 days from Friday, January 8, 2010, to Friday, April 9, 2010, or a later date as ordered by the Court. 2. Plaintiffs and Defendants promptly shall notify this Court after the Ninth

Circuit issues a ruling on NYCERS's Appeal. IT IS SO STIPULATED. Dated: December 29, 2009 Patrice L. Bishop STULL, STULL & BRODY By: /s/ Patrice L. Bishop Patrice L. Bishop 10940 Wilshire Boulevard Suite 2300 Los Angeles, CA 90024 Tel: [phone] Fax: [phone] Howard T. Longman STULL, STULL & BRODY 6 East 45th Street New York, NY 10017 Tel: [phone] Fax: [phone] Gary S. Graifman KANTROWITZ, GOLDHAMER & GRAIFMAN 747 Chestnut Ridge Road Chestnut Ridge, New York 10977 Tel: [phone] Fax: [phone] Attorneys for Plaintiffs

STIPULATION AND [PROPOSED] ORDER CONTINUING CMC, CASE NO.: 08-cv-03123-JF

-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

Dated: December 29, 2009

George A. Riley Luann L. Simmons Robert D. Tronnes O'MELVENY & MYERS LLP By: /s/ Robert D. Tronnes Robert D. Tronnes Two Embarcadero Center, 28th Floor San Francisco, CA 94111 Tel: [phone] Fax: [phone] Attorneys for Defendant Apple Inc.

Dated: December 29, 2009

Douglas R. Young C. Brandon Wisoff Grace K. Won Stephanie Skaff Sebastian A. Jerez FARELLA, BRAUN + MARTEL LLP By: /s/ Douglas R. Young Douglas R. Young 235 Montgomery Street 17th Floor San Francisco, CA 94104 Tel: [phone] Fax: [phone] Attorneys for Defendants Steven Jobs, William V. Campbell, Millard S. Drexler, Arthur D. Levinson, and Jerome P. York

Dated: December 29, 2009

Jerome C. Roth Yohance C. Edwards Genevieve A. Cox MUNGER, TOLLES & OLSON LLP

By: /s/ Yohance C. Edwards Yohance C. Edwards 560 Mission Street 27th Floor San Francisco, CA 94105 Tel: [phone] Fax: [phone] Attorneys for Defendant Fred D. Anderson

STIPULATION AND [PROPOSED] ORDER CONTINUING CMC, CASE NO.: 08-cv-03123-JF

-4-

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

Dated: December 29, 2009

Sarah A. Good Jin H. Kim HOWARD RICE NEMEROVSKI CANADY FALK & RABKIN PC

By: /s/ Sarah A. Good Sarah A. Good Three Embarcadero Center Seventh Floor San Francisco, CA 94111 Tel: [phone] Fax: [phone] Attorneys for Defendant Nancy R. Heinen

I, Robert D. Tronnes, am the ECF User whose ID and password are being used to file this Stipulation and [Proposed] Order Continuing Case Management Conference. In compliance with General Order 45, X.B., I hereby attest that Patrice L. Bishop, Douglas R. Young, Yohance C. Edwards, and Sarah A. Good have concurred in this filing. By: /s/ Robert D. Tronnes _____________ Robert D. Tronnes

STIPULATION AND [PROPOSED] ORDER CONTINUING CMC, CASE NO.: 08-cv-03123-JF

-5-

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
MP1:1187463.1

------------------- ORDER [PROPOSED] Pursuant to the stipulation of the parties, and for good cause shown, IT IS HEREBY ORDERED THAT: 1. The Case Management Conference scheduled for Friday, January 8, 2010, at

10:30 a.m. is hereby continued to Friday, April 9, 2010, at 10:30 a.m. 2. Plaintiffs and Defendants promptly shall notify this Court after the Ninth

Circuit issues a ruling on NYCERS's Appeal.

1/4/2010 Dated: ______________________

____________________________________ Honorable Jeremy Fogel United States District Court Judge

STIPULATION AND [PROPOSED] ORDER CONTINUING CMC, CASE NO.: 08-cv-03123-JF

-6-