Yingling et al v. eBay, Inc.

Filing 196

STIPULATION AND ORDER AS MODIFIED BY THE COURT GRANTING STIPULATION to Stay Litigation; Setting Status Heairng re 195 Stipulation. Joint Status Statement due by 11/5/2010. Status Conference set for 11/15/2010 10:00 AM in Courtroom 8, 4th Floor, San Jose. Signed by Judge James Ware on 9/2/2010. (ecg, COURT STAFF) (Filed on 9/2/2010)

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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 COOLEY LLP A T T O R N E Y S A T LAW S A N FR A N C I S C O COOLEY LLP MICHAEL G. RHODES (116127) (rhodesmg@cooley.com) WHITTY SOMVICHIAN (194463) (wsomvician@cooley.com) JAMES M. PENNING (229727) (jpenning@cooley.com) BENJAMIN F. CHAPMAN (234436) (bchapman@cooley.com) 101 California Street, 5th Floor San Francisco, CA 94111-5800 Telephone: (415) 693-2000 Facsimile: (415) 693-2222 Attorneys for Defendant eBay Inc. Figari & Davenport, LLP KEITH R. VERGES RAYMOND E. WALKER 901 Main St., Suite 3400 Dallas, Texas 75202 Telephone: (214) 939-2000 Facsimile: (214) 939-2090 (ADMITTED PRO HAC VICE) Law Office of Shawn T. Leuthold SHAWN T. LEUTHOLD 1671 The Alameda #303 San Jose, California 95126 Telephone: (408) 924-0132 Facsimile: (408) 924-0134 Attorneys for Plaintiffs Brice Yingling d/b/a Alamo Autosports and Andy Scott UNIT ED S S DISTRICT TE C TA ER A N D IS T IC T R OF C UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION BRICE YINGLING D/B/A ALAMO AUTOSPORTS AND ANDY SCOTT, Plaintiffs, v. EBAY INC., Defendant. Case No. C 09 01733 JW (PVT) RENEWED STIPULATION AND [PROPOSED] ORDER FOR STAY IN LITIGATION Judge: Hon. James Ware Trial Date: Not yet set 1. RENEWED STIP. AND [PROPOSED] ORDER FOR STAY IN LITIGATION CASE NO. C 09 01733 JW (PVT) LI 9/2/2010 FO m Judge Ja es Ware R NIA DERED SO OR ED IT IS DIFI AS MO RT U O NO RT H 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 COOLEY LLP A T T O R N E Y S A T LAW S A N FR A N C I S C O Plaintiffs Brice Yingling and Andy Scott ("Plaintiffs") and Defendant eBay Inc. ("eBay"), by and through their respective counsel herein, hereby stipulate and agree as follows: RECITALS WHEREAS, on July 16, 2010, the Court ordered that a class be certified in this matter; WHEREAS, on July 30, 2010, eBay filed a petition under Federal Rule of Civil Procedure 23(f) requesting that the Ninth Circuit Court of Appeals accept an interlocutory appeal of the Court's class certification decision; WHEREAS, eBay's Rule 23(f) petition is currently pending before the United States Court of Appeals for the Ninth Circuit and has not yet been ruled upon; WHEREAS, Plaintiffs and eBay have agreed to participate in a mediation of this litigation; WHEREAS, on August 20, 2010, the Court denied the parties' prior stipulation and proposed order for stay in litigation without prejudice to renew, provided the renewed stipulation clearly sets forth sufficient information regarding the mediation, including, among other things, who will be mediating the litigation and when the mediation is scheduled; WHEREAS, the parties have engaged the Hon. Layn R. Phillips with Irell & Manella LLP as their mediator; WHEREAS, the mediation is scheduled to take place on November 1, 2010, the first available date, and the parties are engaged in good faith efforts to set an appropriate briefing schedule; WHEREAS, Plaintiffs and eBay further agree that both parties would incur needless burden and expense by proceeding with this litigation prior to the resolution of the pending Rule 23(f) petition and the mediation; WHEREAS, Plaintiff and Defendant have agreed to a temporary stay of proceedings in light of the foregoing. STIPULATION IT IS HEREBY STIPULATED AND AGREED, by and between the parties that the preparation and distribution of any class notice shall be temporarily stayed until the later of (a) 2. RENEWED STIP. AND [PROPOSED] ORDER FOR STAY IN LITIGATION CASE NO. C 09 01733 JW (PVT) 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 COOLEY LLP A T T O R N E Y S A T LAW S A N FR A N C I S C O the Ninth Circuit's order on eBay's Rule 23(f) petition, and, if granted, completion of proceedings related to the appeal; and (b) completion of the mediation between the parties. The parties further agree to stay discovery until the completion of mediation between the parties. This Stipulation does not preclude limited discovery as needed for the specific purposes of the parties' mediation, to be further negotiated and agreed among the parties in good faith. Dated: August 27, 2010 FIGARI & DAVENPORT, LLP KEITH R. VERGES RAYMOND E. WALKER /s/ Keith Verges Attorneys for Plaintiffs Brice Yingling and Andy Scott Dated: August 27, 2010 COOLEY LLP MICHAEL G. RHODES (116127) WHITTY SOMVICHIAN (194463) /s/ Whitty Somvichian Attorneys for Defendant eBay Inc. FILER'S ATTESTATION Filer's Attestation: Pursuant to General Order No. 45, Section X(B) regarding signatures, Whitty Somvichian hereby attests that concurrence in the filing of this document has been obtained. 3. RENEWED STIP. AND [PROPOSED] ORDER FOR STAY IN LITIGATION CASE NO. C 09 01733 JW (PVT) 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 COOLEY LLP A T T O R N E Y S A T LAW S A N FR A N C I S C O ORDER IT IS HEREBY ORDERED that the parties need not submit a proposal regarding class notice until the later of (a) the Ninth Circuit's order on eBay's Rule 23(f) petition, and, if granted, completion of the Rule 23(f) appeal proceedings; and (b) completion of mediation between the parties. It is further ORDERED that discovery is stayed until the completion of mediation between the parties. This order is without prejudice to any party's right to seek relief from the court should the parties be unable to reach agreement regarding the scope of discovery needed for mediation or the need for a further stay of discovery pending completion of any Rule 23(f) appeal proceedings. The parties shall appear for a status conference on November 15, 2010 at 10:00 AM. On Date: or before November 5, 2010, the parties shallHonorable James statement informing the Court file a joint status Ware United States District Judge on the status of their settlement efforts. 879413 v1/HN Dated: September 2, 2010 _____________________________ United States District Court 4. RENEWED STIP. AND [PROPOSED] ORDER FOR STAY IN LITIGATION CASE NO. C 09 01733 JW (PVT)

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