Congregation Beth Aaron et al v. Yang et al

Filing 30

STIPULATION AND ORDER 18 Setting Briefing Schedule and Hearing on Yahoo! Inc.'s Motion to Dismiss Congregation Beth Arron's Amended Verified Shareholder Derivative Complaint. Case Management Conference set for 6/5/2009 10:30 AM. Signed by Judge Ronald M. Whyte on 4/30/09. (jg, COURT STAFF) (Filed on 4/30/2009)

1 JAMES E. LYONS (STATE BAR NO. 112582) THOMAS V. CHRISTOPHER (STATE BAR NO. 185928) 2 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Embarcadero Center, Suite 3800 3 San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] 5 GARRETT J. WALTZER (STATE BAR NO. 130764) SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 6 525 Universit y Avenue, Suite 1100 Palo Alto, California 94301 7 Telephone: [phone] Facsimile: [phone] 8 Attorneys for Defendant 9 YAHOO! INC. 10 11 12 13 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 5:08-CV-05438-RMW STIPULATION AND [] ORDER SETTING BRIEFING SCHEDULE AND HEARING ON YAHOO! INC.'S MOTION TO DISMISS CONGREGATION BETH AARON'S AMENDED VERIFIED SHAREHOLDER DERIVATIVE COMPLAINT

*E-FILED - 4/30/09*

14 CONGREGATION BETH AARON, Derivat ively on behalf o f YAHOO! INC., 15 Plaint iff, 16 v. 17 JERRY YANG, RON BURKLE, ROBERT 18 KOTICK, GARY WILSON, MAGGIE WILDEROTTER, ROY BOSTOCK, ERIC 19 HIPPEAU, ARTHUR KERN, EDWARD KOZEL, and VYOMESH JOSHI, 20 Defendants, 21 And YAHOO! INC., 22 Nominal Defendant. 23 24 25 26 27 28
STIPULATION AN
E

BRIEFING SCHEDULE

CASE NO. : 5:08-CV-05438-RMW

1

WHEREAS, on December 3, 2008, plaint iff Congregation Beth Aaron filed a Verified

2 Shareho lder Derivat ive Co mplaint against defendants Jerry Yang, Ron Burkle, Robert Kotick, 3 Gary Wilso n, Maggie Wilderotter, Roy Bostock, Eric Hippeau, Arthur Kern, Edward Kozel, 4 Vyo mesh Joshi (the "Individual Defendants"), and nominal defendant Yahoo! Inc. ("Yahoo!") 5 (collect ively, the "Defendants"), in the San Jose Divisio n of the United States District Court for the 6 Northern District of California (the "Co mplaint"); 7 WHEREAS, on December 19, 2008, the parties submitted a written stipulat ion to the Court

8 extending Defendants' time to answer, move or otherwise respond to the Complaint unt il 9 February 3, 2009; 10 WHEREAS, on January 29, 2009, the parties submitted a written stipulat ion to the Court

11 extending Defendants' time to answer, move or otherwise respond to the Complaint unt il March 23, 12 2009; 13 WHEREAS, on February 20, 2009, Congregation Beth Aaron filed an Amended Verified

14 Shareho lder Derivat ive Co mplaint against the Individual Defendants and no minal defendant Yahoo! 15 (the "Amended Complaint "); 16 WHEREAS, there has been pending in the Delaware Court of Chancery since February

17 2008 five shareho lder act ions against Yahoo! and certain current and former officers and directors 18 of Yahoo!, including the Individual Defendants, that were conso lidated under the caption In re 19 Yahoo! Shareho lder Lit igat ion, Cons. C.A. No. 3561-CC (the "Delaware Action") and which 20 contain both class and derivat ive claims; 21 WHEREAS, on December 10, 2009, Yahoo!, the individual defendants in the Delaware

22 Act ion and plaint iffs in that action executed a Stipulat ion And Agreement Of Settlement (the 23 "Settlement Agreement") that releases, subject to approval of the Court of Chancery, all claims 24 asserted by plaint iffs in the Delaware Act ion or "that could have been asserted in any forum by 25 Plaint iffs or any Class Member, on behalf of themselves, the Class or Yahoo!, against [Yahoo! or 26 the individual defendants in the Delaware Act ion] which arise out of, relate to, or are based upon 27 alleged breaches of fiduciary dut y to Yahoo! and its shareho lders or other alleged vio lat ions o f law, 28
STIPULATION AND ORDER RE BRIEFING SCHEDULE

1

CASE NO. : 5:08-CV-05438-RMW

1 including the federal securit ies laws or other federal, state or local law, arising fro m or in 2 connection wit h Defendants' responses to Microsoft's proposal to acquire the Co mpany, [an 3 agreement between Yahoo! and Google Inc., the terms of which were disclo sed on June 13, 2008], 4 or the proxy contest with Carl Icahn, prior to the last day of the Class Period, including wit hout 5 limitation the matters alleged" in co mplaints submitted by plaint iff in the Delaware Action to the 6 Court of Chancery; 7 WHEREAS, on March 9, 2009, the Court of Chancery issued an order (the "Chancery

8 Court Order") certifying the Delaware Act ion as a class act ion and approving the Settlement 9 Agreement as "fair, reasonable and adequate and in the best interests of the Class, Yahoo! and its 10 stockholders..."; 11 WHEREAS, Yahoo! intends to file a motion to dismiss Congregation Beth Aaron's

12 Amended Co mplaint based on the Settlement Agreement and the Chancery Court Order (the 13 "Motion") in which the Individual Defendants are expected to join; 14 WHEREAS, Defendants and Congregat ion Beth Aaron believe that the Motion raises a

15 thresho ld issue regarding the effect of the Settleme nt Agreement and the Chancery Court Order on 16 this act ion and further believe that the interests of judicial efficiency and the conservat ion of 17 judicial and private resources would be best served if the Motion is decided prior to the Court's 18 consideration of any other arguments Defendants may wish to present in favor of dismissal of the 19 Amended Co mplaint ; 20 WHEREAS, the parties agree that all discovery and other proceedings shall be stayed

21 during the pendency of the Motion; 22 WHEREAS, Defendants and Congregat ion Beth Aaron wish to set a briefing schedule and

23 hearing date for the Motion while preserving Yahoo! and the Individual Defendants' rights to move 24 to dismiss the Amended Co mplaint based on grounds not asserted in the Motion if the Court denies 25 the Motion in who le or in part; 26 Now, therefore, the Defendants and Congregat ion Beth Aaron hereby st ipulate and agree as

27 fo llo ws: 28
STIPULATION AN O
E

BRIEFING SCHEDULE

2

CASE NO. : 5:08-CV-05438-RMW

1

1.

Yahoo! shall file the Motion and the Individual Defendants shall jo in in the Motion

2 by March 30, 2009; 3 4 5 6 2. 3. 4. 5. Congregation Beth Aaron shall file its opposit ion to the Motion by May 1, 2009; Any reply to Congregation Beth Aaron's opposition shall be filed by May 15, 2009; The hearing on the Motion shall be held on June 5, 2009; If the Court denies the Motion in who le or in part, Defendants shall have 30 days

7 fro m issuance of the Court's order denying the Motion in who le or in part to move to dismiss the 8 Amended Co mplaint based on any grounds other than those set forth in the Motion. 9 IT IS SO STIPULATED Wo lf, Haldenstein, Adler, Freeman & Herz LLP By: /s/ Betsy C. Manifo ld Betsy C. Manifo ld Attorneys for Plaint iff Congregation Beth Aaron

10 DATED: March 16, 2009 11 12 13 14 15 DATED: March 16, 2009 16 17 18 19 20 21 22 23 24 25 26 27 28
STIPULATION AND O
E

Munger, Tolles & Olson LLP By: /s/ Robert L. Dell Angelo Robert L. Dell Angelo Attorneys for Defendants Jerry Yang, Roy J. Bostock, Ronald W. Burkle, Eric Hippeau, Vyo mesh Joshi, Arthur H. Kern, Robert A. Kotick, Edward R. Kozel, Gary L. Wilson and Maggie Wilderotter

DATED: March 16, 2009

Skadden, Arps, Slate, Meagher & Flo m LLP By: /s/ James E. Lyons James E. Lyons Attorneys for Nominal Defendant Yahoo! Inc.

BRIEFING SCHEDULE

3

CASE NO. : 5:08-CV-05438-RMW

1 2 3

[] For good cause shown, the briefing and hearing schedule on the Motion is set as fo llows: 1. Yahoo! shall file the Motion and the Individual Defendants shall jo in in the Motion

4 by March 30, 2009; 5 6 7 8 2. 3. 4. 5. Congregation Beth Aaron shall file its opposit ion to the Motion by May 1, 2009; Any reply to Congregation Beth Aaron's opposition shall be filed by May 15, 2009; The hearing on the Motion shall be held on June 5, 2009 at 9:00 a.m.; If the Court denies the Motion in who le or in part, Defendants shall have 30 days

9 fro m issuance of the Court's order denying the Motion in who le or in part to move to dismiss the 10 Amended Co mplaint based on any grounds other than those set forth in the Motion. 11 IT IS SO ORDERED . The Court hereby continues the Case Management Conference 12 13 14 Dated: 4/30/09 15 16 17 Respect fully submitted, 18 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP James E. Lyons 19 Garret J. Waltzer 20 Thomas V. Christopher 21 By: ___ 22 23 24 25 26 27 28
STIPULATION AND O
E

set for May 8, 2009 to June 5, 2009 @ 10:30 a.m. (jg)

__________________________ The Honorable Ronald M. Whyte UNITED STATES DISTRICT JUDGE

/s/ James E. Lyons_______ James E. Lyons Attorneys for Defendant YAHOO! INC

BRIEFING SCHEDULE

4

CASE NO. : 5:08-CV-05438-RMW

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
STIPULATION AND PD

ATTESTATION PURSUANT TO GENERAL ORDER 45 I, James E. Lyons, am the ECF User whose ID and password are being used to file this Stipulat ion and [Proposed] Order Setting a Briefing Schedule and Hearing on Motion to Dismiss Congregat ion Beth Aaron's Amended Verified Shareho lder Derivat ive Co mplaint. In compliance wit h General Order 45.X.B., I hereby attest that concurrence in the filing o f this document has been obtained from each of the other signatories. I declare under penalt y of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 16th day o f March 2009, at Palo Alto, California. /s/ James E. Lyons James E. Lyons

ORDER RE BRIEFING SCHEDULE

212616-San Franci sco Se rve r 1A - MSW

5

CASE NO. : 5:08-CV-05438-RMW