The opinion of the court was delivered by: Hon. Claudia Wilken United States District Judge
STIPULATION AND [PROPOSED] ORDER TO DISMISS DEFENDANTS BANK OF AMERICA, N.A. AND BANK OF AMERICA CORPORATION
WHEREAS, Plaintiff JOHN ROBERT LABRIOLA ("Plaintiff") filed a Complaint on December 2, 2011 in the San Francisco County Superior Court (the "State Court"), Case No. CGC-11-516307 therein (the "State Court Action") against Defendant Bank of America, N.A. ("BANA"); and WHEREAS, Plaintiff personally served BANA with a Summons and Complaint in the State Court Action on December 5, 2011; and WHEREAS, BANA removed the State Court Action to this Court on January 5, 2012; and WHEREAS, on January 13, 2012, Plaintiff filed a First Amended Complaint ("FAC") [Dkt. #7] to add Bank of America Corporation ("BAC") and Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") as Defendants in this action; and WHEREAS, counsel for Defendants has advised counsel for Plaintiff that Merrill Lynch was at all times the sole employer of Plaintiff and the putative class members that Plaintiff seeks to represent in this action as alleged in the FAC; and
WHEREAS, Defendants acknowledge that any alleged wrongdoing on behalf of BANA or 21 BAC relating to the timely payment of final commissions to Plaintiff and any other financial 22 adviser who left the employment of Merrill Lynch between December 31, 2008 and the present as 23 alleged in the FAC, which alleged wrongdoing is expressly denied and disputed, is the sole 24 responsibility of Merrill Lynch; and
WHEREAS, Merrill Lynch does not contend and will not contend in this litigation that any other entity is or was responsible or liable for the timely payment of final commissions to Plaintiff or any other financial advisers who left the employment of Merrill Lynch between December 31, 2008 and the present, which liability is expressly denied and disputed; and WHEREAS, after engaging in their own due diligence, counsel for Plaintiff are satisfied that Merrill Lynch is adequately capitalized to satisfy any judgment that might be entered in this case; and WHEREAS, the parties, through their respective counsel, have conferred and are stipulating herein for purposes of this action, and without admission of any liability by any defendant, that any purported liability for the alleged conduct underlying the claims in Plaintiff's FAC is the sole responsibility of Defendant Merrill Lynch, and that Defendants BANA and BAC are not responsible in any capacity for the alleged wrongdoing in the
FAC. STIPULATION NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between Plaintiff and Defendants through their respective undersigned counsel that:
1. For purposes of this action, and without admission of any liability, any purported liability for the alleged conduct underlying the claims in Plaintiff's FAC is the sole responsibility of Defendant Merrill Lynch as Plaintiff's sole employer; 2. Defendants BANA and BAC are not responsible in any capacity for the alleged wrongdoing in the FAC; 3. Defendant Merrill Lynch, Pierce, Fenner & Smith Incorporated will be solely responsible for any judgment that might be entered in this case; 4. Defendants BANA and BAC shall be dismissed from this action, with prejudice, pursuant to FED. R. CIV. PROC. 41(a)(1)(A)(ii).
5. Except as otherwise stated in this Stipulation, by entering into this Stipulation, Defendants do not waive and expressly reserve all defenses and challenges in the action.
DATED: February 23, 2012 CALVO FISHER & JACOB LLP By: /s/ William N. Herbert William N. Hebert, Esq. Attorneys for Plaintiff JOHN ROBERT LABRIOLA DATED: February 23, 2012 MCGUIREWOODS LLP By: /s/ Michael D. Mandel Matthew C. Kane, Esq. Michael D. Mandel, Esq. Sylvia J. Kim, Esq. Attorneys for Defendants BANK OF AMERICA, N.A., BANK OF AMERICA CORPORATION, AND MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
PURSUANT TO STIPULATION, IT IS SO ORDERED.
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