Opinion
Lead Case No. 11-cv-03176-EMC
03-12-2013
IN RE OCLARO, INC. DERIVATIVE LITIGATION This Document Relates to: ALL ACTIONS
ALSTON & BIRD LLP GIDON M. CAINE (Cal. State Bar No. 188110) JESSICA P. CORLEY ( pro hac vice ) Counsel for Nominal Defendant Oclaro, Inc. JOHNSON & WEAVER, LLP FRANK J. JOHNSON (Cal. State Bar No. 174882) SHAWN E. FIELDS (Cal. State Bar No. 255267) Counsel for Lead Plaintiff
GIDON M. CAINE (Cal. State Bar No. 188110)
ALSTON & BIRD LLP
275 Middlefield Road
Suite 150
Menlo Park, California 94025-4008
Telephone: (650) 838-2000
Facsimile: (650) 838-2001
gidon.caine@alston.com
JESSICA P. CORLEY (admitted pro hac vice)
ALSTON & BIRD LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Telephone: (404) 881-7000
Facsimile: (404) 881-7777
jessica.corley@alston.com
Attorneys for Nominal Defendant
OCLARO, INC.
(Derivative Action)
STIPULATION AND [PROPOSED]
ORDER SCHEDULING FILING OF
AMENDED COMPLAINT AND
DEFENDANTS' RESPONSE TO
AMENDED COMPLAINT,
RESCHEDULING CASE
MANAGEMENT CONFERENCE, AND
PROVIDING FOR THE SHARING OF
CERTAIN DISCOVERY
WHEREAS, between June 27, 2011 and July 7, 2011, three related shareholder derivative actions (collectively, the "Oclaro Derivative Litigation") were filed in this Court by Plaintiffs against nominal defendants Oclaro, Inc. ("Oclaro") and certain of its officers and directors (collectively, "Defendants");
WHEREAS, on July 20, 2011, the Court issued a separate order consolidating the Oclaro Derivative Litigation under the caption In re Oclaro, Inc. Derivative Litigation, No. 11-cv-03176-EMC;
WHEREAS, the Oclaro Derivative Litigation involved many of the same parties and events as a putative class action that was filed in this Court on May 19, 2011, Westley v. Oclaro, Inc., No. 3:11-cv-02448-EMC (N.D. Cal.) ("Oclaro Securities Class Action");
WHEREAS, on November 29, 2011, the Court entered an order staying all proceedings in the Oclaro Derivative Litigation until such time as (a) the defendants file an answer to any complaint in the Oclaro Securities Class Action; or (b) the Oclaro Securities Class Action is dismissed in its entirety with prejudice;
WHEREAS, on March 27, 2012, the Court entered an order in the Oclaro Securities Class Action granting the defendants' motion to dismiss the plaintiffs' amended complaint without prejudice and allowing the plaintiffs thirty (30) days to file a second amended complaint in that action;
WHEREAS, on April 26, 2012, the plaintiffs in the Oclaro Securities Class Action filed a second amended complaint;
WHEREAS, on September 21, 2012, the Court entered an order in the Oclaro Securities Class Action granting the defendants' motion to dismiss the plaintiffs' second amended complaint without prejudice (the "September 21 Order");
WHEREAS, on October 4, 2012, the plaintiffs in the Oclaro Securities Class Action filed a motion for leave to seek reconsideration of the September 21 Order ("Motion for Leave");
WHEREAS, on January 9, 2013, the Court issued notice in the Oclaro Derivative Litigation rescheduling the Case Management Conference to March 21, 2013 and providing that a Case Management Statement be filed by March 14, 2013;
WHEREAS, on January 10, 2013, the Court entered an order in the Oclaro Securities Class Action granting in part and denying in part the plaintiffs' Motion for Leave, holding that the plaintiffs had adequately plead scienter as to statements made in May and June 2010, but not as to statements made in July and August 2010;
WHEREAS, on January 30, 2013, after conducting a case management conference, the Court ordered that: (i) the parties in the Oclaro Securities Class Action may proceed with focused discovery relating to scienter as to the May and June 2010 statements, to be completed within four months of the order; (ii) early motions for summary judgment shall be filed by June 13, 2013, and are noticed for hearing on July 18, 2013; and (iii) the plaintiffs' third amended complaint shall be filed no later than March 1, 2013;
WHEREAS, the defendants in the Oclaro Securities Class Action intend to move to dismiss the plaintiffs' third amended complaint;
WHEREAS, the defendants in the Oclaro Securities Class Action have yet to file an answer to any complaint;
WHEREAS, in an effort to preserve the Court's and the parties' resources, the parties to this action have agreed that (i) all proceedings in this action shall remain stayed until such time as (a) the defendants file an answer to any complaint in the Oclaro Securities Class Action or (b) the Oclaro Securities Class Action is dismissed in its entirety with prejudice; except that, subject to entry of an appropriate protective order in the Oclaro Securities Class Action and Plaintiffs' agreement to be bound by the terms of such protective order, Defendants shall produce to Plaintiffs in this action certain documents produced to the plaintiffs in the Oclaro Securities Class Action and allow Plaintiffs to attend any deposition taken in the Oclaro Securities Class Action; (ii) Plaintiffs shall have thirty (30) days from the date the stay of proceedings in this action is lifted to file an amended complaint (the "Amended Complaint"); (iii) Defendants shall have thirty (30) days from the date that Plaintiffs file the Amended Complaint to file an answer or otherwise respond; and (iv) the case management conference in this action shall be continued until such time as (a) thirty (30) days after Defendants file an answer to the Amended Complaint; (b) thirty (30) days after this Court issues an order denying in any part Defendants' motion to dismiss the Amended Complaint; or (c) such other time as the Court shall order.
WHEREAS, this Stipulation and Order is without prejudice to, or waiver of any rights, arguments, or defenses otherwise available to the parties in this action.
NOW THEREFORE, the undersigned parties, by and through their counsel of record, hereby stipulate as follows:
1. All proceedings in this action shall remain stayed until such time as (a) the defendants file an answer to any complaint in the Oclaro Securities Class Action or (b) the Oclaro Securities Class Action is dismissed in its entirety with prejudice; except that, subject to entry of an appropriate protective order in the Oclaro Securities Class Action and Plaintiffs' agreement to be bound by the terms of such protective order, Defendants shall produce to Plaintiffs in this action certain documents produced to the plaintiffs in the Oclaro Securities Class Action and allow Plaintiffs to attend any deposition taken in the Oclaro Securities Class Action.
2. Plaintiffs shall have thirty (30) days from the date the stay of proceedings in this action is lifted to file the Amended Complaint.
3. Defendants shall have thirty (30) days from the date Plaintiffs file the Amended Complaint to file an answer or otherwise respond.
4. The case management conference in this action is hereby continued until such time as (a) thirty (30) days after Defendants file an Answer to the Amended Complaint; (b) thirty (30) days after this Court issues an order denying in any part Defendants' motion to dismiss the Amended Complaint; or (c) such other time as the Court shall order. A Case Management Statement shall be submitted seven (7) days prior to the scheduled Case Management Conference.
IT IS SO STIPULATED
DATED: Menlo Park, California
March [_], 2013
ALSTON & BIRD LLP
By: _____________
GIDON M. CAINE (Cal. State Bar No. 188110)
and
JESSICA P. CORLEY (pro hac vice)
Counsel for Nominal Defendant Oclaro, Inc.
DATED: San Diego, California
March [_], 2013
JOHNSON & WEAVER, LLP
By: _____________
FRANK J. JOHNSON (Cal. State Bar No.
174882)
SHAWN E. FIELDS (Cal. State Bar No. 255267)
Counsel for Lead Plaintiff
SIGNATURE ATTESTATION
I, Gidon M. Caine, am the ECF User whose ID and password are being used to file this STIPULATION AND [PROPOSED] ORDER SCHEDULING FILING OF AMENDED COMPLAINT AND DEFENDANTS' RESPONSE TO AMENDED COMPLAINT, RESCHEDULING CASE MANAGEMENT CONFERENCE, AND PROVIDING FOR THE SHARING OF CERTAIN DISCOVERY. In compliance with General Order No. 45, X(B) regarding signatures, I hereby attest that Frank J. Johnson has concurred in this filing.
_____________
GIDON M. CAINE (CAL. STATE BAR NO. 188110)
PURSUANT TO STIPULATION, IT IS SO ORDERED.
A Further CMC is set for 8/8/13 at 10:30 a.m. An updated joint CMC statement shall be filed by 8/1/13.
_____________
THE HON. EDWARD M. CHEN
United States District Court Judge