The opinion of the court was delivered by: The Honorable Samuel Conti
Robert B. Hawk (SBN 118054) J. Christopher Mitchell (SBN 215639) HOGAN LOVELLS US LLP 525 University Avenue, 4th Floor Palo Alto, California 94301 Telephone: (650) 463-4000 4 Facsimile: (650) 463-4199 firstname.lastname@example.org email@example.com Attorneys for Defendants HUGHES COMMUNICATIONS, INC. 7 and HUGHES NETWORK SYSTEMS, LLC
STIPULATION AND [PROPOSED] ORDER REGARDING WITHDRAWAL WITHOUT PREJUDICE OF DEFENDANTS' MOTION TO DISMISS
WHEREAS, currently pending before the Court is Hughes Communications, Inc. and Hughes Network Systems LLC's (collectively, "Hughes") Motion to Dismiss Pursuant to the Federal Arbitration Act and Alternative Motion to Dismiss and Strike ETF Claims (the "Motion 4 to Dismiss"), which has been fully briefed and submitted to the Court; 5
WHEREAS, Hughes and Plaintiffs Tina Walter, Christopher Bayless and Eric Schumacher ("Plaintiffs") (collectively, the "Parties") have continued to discuss a potential 7 revised settlement following the Court's July 6, 2011 Order Denying Plaintiffs' Motion for Class Certification and Preliminary Approval of Settlement, with the express understanding and 9 agreement that any and all actions by Hughes with respect to any revised settlement were subject 10 to and without waiver of any of their respective rights to enforce the Parties' arbitration 11 agreements, or Plaintiffs' rights to assert all applicable defenses to the aforementioned arbitration 12 agreements, excluding any defense based in any way on the negotiation, drafting, execution, 13 submission for Court approval or performance of such settlement, or on any other actions relating 14 to the approval or implementation of such settlement; 15 and, upon completion of the necessary settlement documentation, they desire to submit an 17 Amended and Restated Stipulation of Settlement (the "Amended Settlement Agreement") to the 18 Court for approval, subject to all of the terms and conditions of their agreement in principle; 19 20 any settlement, Plaintiffs have stipulated that the negotiation of and entry into an Amended 21 Settlement Agreement, and the submission of an Amended Settlement Agreement to the Court, is 22 without prejudice to any right Hughes may have to compel arbitration or otherwise enforce the 23 Parties' arbitration agreements, and does not constitute a waiver or relinquishment of any 24 arbitration rights, or a waiver of any applicable defenses to such rights that may be asserted by Plaintiffs, excluding any defense based in any way on the negotiation, drafting, execution, 26 submission for Court approval or performance of Amended Settlement Agreement, or on any 27 other actions relating to the approval or implementation of such Amended Settlement Agreement;
WHEREAS, the Parties have reached an agreement in principle to settle their disputes,
WHEREAS, under the Parties' agreement in principle, as a condition of proceeding with
WHEREAS, the Parties have agreed that, subject to the foregoing preservation of rights, Hughes may withdraw the Motion to Dismiss without prejudice to its right to reassert the Motion 3 and/or any arguments made as a part of the Motion at a later time. 4
1. Hughes hereby withdraws its Motion to Dismiss without prejudice to Hughes's right to 7 later re-file that Motion and seek a ruling on that fully-briefed Motion, or to file a new motion to 8 dismiss on the same or similar grounds as the pending Motion to Dismiss. 9
IT IS HEREBY STIPULATED, by and between the Parties through their respective
2. Consistent with the September 28, 2011 stipulation of the parties, neither the Amended 10 Settlement Agreement nor any action taken by Hughes pursuant to or in furtherance of a revised 11 settlement or the Amended Settlement Agreement, including its withdrawal of the Motion to Dismiss without prejudice, shall waive or otherwise adversely affect any right Hughes may have 13 with respect to its position and arguments in the Motion to Dismiss; 14
3. Plaintiffs expect to file a Motion for Preliminary Approval of the Amended Settlement Agreement on or before November 21, 2011.
4. Hughes' time to move to dismiss, answer or otherwise respond to the Second Amended Complaint shall and hereby is extended until (a) November 25, 2011, or (b) if Plaintiffs file a 3 Motion for Preliminary Approval of the Amended Settlement Agreement on or before ...