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Arostegui v. Dynavax Technologies Corporation

United States District Court, Ninth Circuit

August 22, 2013

TODD AROSTEGUI, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
v.
DYNAVAX TECHNOLOGIES CORPORATION, DINO DINA and J. TYLER MARTIN, Defendants. JOHN WEBB, Individually and on Behalf of All Others Similarly Situated, Plaintiff, DYNAVAX TECHNOLOGIES CORPORATION, DINO DINA and J. TYLER MARTIN, Defendants.

COOLEY LLP, JOHN C. DWYER (136533), JEFFREY M. KABAN (235743), Palo Alto, CA,

COOLEY LLP, RYAN E. BLAIR (246724), San Diego, CA, COOLEY LLP, KATHLYN A. QUERUBIN (275085), San Francisco, CA, Attorneys for Defendants, Dynavax Technologies Corporation, Dino Dina and J. Tyler Martin.

ROBBINS GELLER RUDMAN & DOWD LLP, Shawn A. Williams, San Francisco, CA, Darren J. Robbins, David C. Walton, Catherine J. Kowalewski, San Diego, CA, Counsel for Plaintiff Todd Arostegui,

GLANCY BINKOW & GOLDBERG LLP, Casey E. Sadler, Lionel Z. Glancy, Michael Goldberg, Robert V. Prongay, Casey E. Sadler, Los Angeles, CA, LAW OFFICES OF HOWARD G. SMITH, Howard G. Smith, Bensalem, PA, Counsel for Plaintiff John Webb,

COOLEY LLP, Jeffrey M. Kaban, John C. Dwyer, Jeffrey M. Kaban, Palo Alto, CA COOLEY LLP, Ryan E. Blair, San Diego, CA, COOLEY LLP, Kathlyn A. Querubin, San Francisco, CA, Counsel for Defendants, Dynavax Technologies Corporation, Dino Dina and J. Tyler Martin.

STIPULATION AND ORDER CONSOLIDATING CASES AND SETTING SCHEDULE FOR DEFENDANTS' RESPONSE TO COMPLAINT

CHARLES R. BREYER, District Judge.

WHEREAS, on June 18, 2013, Plaintiff Todd Arostegui filed a putative class action complaint (the "Complaint") in the above-captioned action against defendants Dynavax Technologies Corporation, Dino Dina and J. Tyler Martin, for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934;

WHEREAS, on June 26, 2013, a similar putative class action complaint was filed in this Court asserting the same or substantially similar claims against defendants, captioned Webb v. Dynavax Technologies Corporation, et al., Case No CV-13-2947-EJD (the "Webb Action");

WHEREAS, the parties agree that the instant action and the Webb Action (collectively, the "Dynavax Actions") are substantially identical because each alleges claims for violations of §§10(b) and 20(a) of the Securities Exchange Act of 1934 ("Exchange Act"), 15 U.S.C. §§78j(b) and 78t(a), and Securities and Exchange Commission Rule 10b-5 promulgated thereunder, 17 C.F.R. §240.10b-5, and are based upon similar factual allegations against similar defendants, and accordingly the parties filed a Stipulation and [Proposed] Order to Relate Cases ( see Dkt. Entry Nos. 7-8);

WHEREAS, the Court granted the parties' Administrative Motion to Relate the Webb Action to the instant action on August 15, 2013 (Dkt. No. 10);

WHEREAS, pursuant to 15 U.S.C. §78u-4(a)(3)(B) the Court must appoint a lead plaintiff;

WHEREAS, the time period in which class members may move to be appointed lead plaintiff herein under 15 U.S.C. §78u-4(a)(3)(A) and (B) expires on August 19, 2013;

WHEREAS, it is anticipated that the Court-appointed lead plaintiff will file a consolidated complaint superseding previously filed complaints, including the complaints filed in the Dynavax Actions;

WHEREAS, the parties agree that judicial efficiency dictates that responding to any complaint should be deferred until after the appointment of lead plaintiff and the filing of the consolidated complaint; and

WHEREAS, because no scheduling order has been entered, the extension of time stipulated to herein will not affect any other scheduled dates.

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, and respectfully requested, by and among the respective parties hereto, through their undersigned counsel of record, in the interests of judicial economy, the Court order as follows:

CONSOLIDATION OF CASES

1. The following actions are related cases within the meaning of Civil Local Rule 3-12:

Abbreviated Case Name Case Number Date Filed Arostegui v. Dynavax, et al. Case No. 3:13-cv-02796-CRB June 18, 2013 Webb v. Dynavax, et al. Case No. 5:13-cv-02947-EJD June 26, 2013

2. Pursuant to Federal Rule of Civil Procedure 42(a), these cases are hereby consolidated into Civil Action No. 3:13-cv-02796-CRB for pretrial proceedings before this Court. The consolidated action shall be captioned: "In re Dynavax Securities Litigation."

3. All related actions that are subsequently filed in, or transferred to, this District shall be consolidated into this action for pretrial purposes. This Order shall apply to every such related action, absent order of the Court. A party that objects to such consolidation, or to any other provision of this Order, must file an application for relief from this Order within thirty (30) days after the date on which a copy of this Order is mailed to the party's counsel.

4. This Order is entered without prejudice to the rights of any party to apply for severance of any claim or action, for good cause shown.

MASTER DOCKET AND CAPTION

5. The docket in Civil Action No. 3:13-cv-02796-CRB shall constitute the Master Docket for this action.

6. Every pleading filed in the consolidated action shall bear the following caption:

7. The file in Civil Action No. 3:13-cv-02796-CRB shall constitute a Master File for every action in the consolidated action. When the document being filed pertains to all actions, the phrase "All Actions" shall appear immediately after the phrase "This Documents Relates To:". When a pleading applies only to some, not all, of the actions, the document shall list, immediately after the phrase "This Documents Relates To:", the docket number for each individual action to which the document applies, along with the last name of the first-listed plaintiff in said action ( e.g., "No. 3:13-cv-02796-CRB ( Webb )").

8. The parties shall file an Administrative Motion to Consider Whether Cases Should Be Related pursuant to Civil Local Rule 3-12(b) whenever a case that should be consolidated into this action is filed in, or transferred to, this District. If the Court determines that the case is related, the clerk shall:

(a) place a copy of this Order in the separate file for such action;
(b) serve on plaintiff's counsel in the new case a copy of this Order;
(c) direct that this Order be served upon defendants in the new case; and
(d) make the appropriate entry in the Master Docket.

PLEADINGS

9. Defendants shall not be required to move or otherwise respond to the complaints filed in the related Dynavax Actions until after the appointment of a lead plaintiff pursuant to 15 U.S.C. §78u-4(a)(3)(B) and after the filing by such lead plaintiff of a Consolidated Complaint. Pursuant to Local Rule 6-1(a), this paragraph shall be effective upon the filing of this Stipulation with the Court;

10. Within forty-five (45) days after the Court's order appointing Lead Plaintiff and approving the selection of Lead Counsel, Lead Plaintiff shall file and serve an Consolidated Complaint or a notice stating that Lead Plaintiff elects to proceed on the originally filed Complaint.

11. Within forty-five (45) days after the filing and service of Lead Plaintiff's Consolidated Complaint or notice of intention to proceed on the originally filed Complaint, defendants shall file and serve their answers, Motions, or other responses to the Consolidated Complaint or the Complaint.

12. Lead Plaintiff shall file and serve its papers in opposition to defendants' Motions within forty-five (45) days after the filing of defendants' Motions.

13. Defendants shall file and serve their reply briefs in connection with their Motions within twenty (20) days after the filing of Lead Plaintiff's opposition briefs.

14. No party is waiving any rights, claims, or defenses of any kind except as expressly stated herein, and the parties reserve the right to seek further extensions of time as circumstances may warrant.

IT IS SO STIPULATED.

ATTESTATION (CIVIL LOCAL RULE 5-1(i)(3))

In accordance with Civil Local Rule 5-1(i)(3), I attest that concurrence in the filing of this document has been obtained from the signatories.

PURSUANT TO STIPULATION, IT IS SO ORDERED.


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