October 31, 2013
RALPH SARACENI, derivatively on behalf of POLYCOM, INC., Plaintiff,
ANDREW M. MILLER, BETSY S. ATKINS, JOHN A. KELLEY, D. SCOTT MERCER, WILLIAM A. OWENS, and KEVIN T. PARKER, Defendants, POLYCOM, INC., Nominal Defendant. JAMES DONNELLY, derivatively on behalf of POLYCOM, INC., Plaintiff,
ANDREW M. MILLER, BETSY S. ATKINS, JOHN A. KELLEY, D. SCOTT MERCER, WILLIAM A. OWENS, and KEVIN T. PARKER, Defendants, and POLYCOM, INC., Nominal Defendant.
JOHNSON & WEAVER, LLP Frank J. Johnson (SBN 174882) Shawn E. Fields (SBN 255267) San Diego, CA, Attorneys for Plaintiffs.
WILSON SONSINI GOODRICH & ROSATI, PC KEITH E. EGGLETON KELLEY M. KINNEY, Palo Alto, CA, Attorneys for Defendants Betsy S. Atkins, John A. Kelley, D. Scott Mercer, William A. Owens, Kevin T. Parker, and Nominal Defendant Polycom, Inc.
MORRISON & FOERSTER LLP PAUL T. FRIEDMAN PHILIP T. BESIROF, San Francisco, CA, Attorneys for Defendant Andrew M. Miller.
STIPULATION AND [PROPOSED] ORDER CONSOLIDATING ACTIONS AND APPOINTING LEAD COUNSEL
SAMUEL CONTI, District Judge.
WHEREAS, there are presently two shareholder derivative actions against certain current and former directors and officers of Polycom, Inc. "("Polycom"): Saraceni v. Miller et al., Case No. 3:13-cv-03880-SC, currently pending before this Court (the " Saraceni Derivative Action"); and Donnelly v. Miller et al., Case No. 5:13-cv-04810-PSG, currently pending in the United States District Court for the Northern District of California, and initially/currently assigned to Magistrate Judge Paul Singh Grewal (the " Donnelly Derivative Action") (collectively, "the Polycom Derivative Actions");
WHEREAS, pursuant to the Court's September 13, 2013 Order (Document No. 18), the Saraceni Derivative Action has been related to a class action filed under the federal securities laws currently pending before this Court: Neal v. Polycom, Inc. et al., Case No. 3:13-cv-03476-SC (the " Neal Class Action");
WHEREAS, Polycom, Eric Brown, and Sayed Darwish have filed an Administrative Motion to Relate the Donnelly Derivative Action to the Neal Class Action and the Saraceni Derivative Action, pursuant to which it has requested that the Donnelly Derivative Action be reassigned to The Honorable Samuel Conti;
WHEREAS, in an effort to assure consistent rulings and decisions and the avoidance of unnecessary duplication of effort, the undersigned counsel for the parties in the Polycom Derivative Actions submit this stipulation consolidating actions; and
WHEREAS, Johnson & Weaver, LLP seeks to be designated as Lead Counsel in the Polycom Derivative Actions, once consolidated, and Defendants take no position with respect to such designation.
WHEREFORE, the parties, through their undersigned counsel, hereby agree, stipulate, and respectfully request that the Court enter an Order as follows:
1. The following actions shall be consolidated for all purposes, including pre-trial proceedings and trial:
Case Name Case No. Filing Date Saraceni v. Miller et al. 3:13-cv-03880-SC August 21, 2013 Donnelly v. Miller et al. 5:13-cv-04810-PSG October 16, 2013
2. Every pleading filed in these consolidated actions, or in any separate action included herein, must bear the following caption:
3. The files of these consolidated actions will be maintained in one file under Lead Case No. 3:13-cv-03880-SC.
4. Lead Counsel for plaintiffs for the conduct of In re Polycom, Inc. Derivative Litigation, Lead Case No. 3:13-cv-03880-SC, is designated as follows:
5. The parties agree that plaintiffs' Lead Counsel has authority to speak for plaintiffs in matters regarding pre-trial procedure, trial, and settlement negotiations and shall make all work assignments in such manner as to facilitate the orderly and efficient prosecution of this litigation and to avoid duplicative or unproductive effort.
6. The parties agree that plaintiffs' Lead Counsel will be responsible for coordinating all activities and appearances on behalf of plaintiffs and for the dissemination of notices and orders of this Court. The parties further agree that no motion, request for discovery, or other pre-trial or trial proceedings will be initiated or filed by any plaintiffs except through plaintiffs' Lead Counsel.
7. The parties agree that defendants' counsel may rely upon all agreements made with plaintiffs' Lead Counsel, or other duly authorized representative of plaintiffs' Lead Counsel, and such agreements will be binding on plaintiffs.
8. This Order shall apply to each purported derivative action arising out of the same or substantially the same transactions or events as the Polycom Derivative Actions, which is subsequently filed in, removed to, or transferred to this Court.
9. When a case that properly belongs as part of In re Polycom, Inc. Derivative Litigation, Lead Case No. 3:13-cv-03880-SC, is hereafter filed in this Court or transferred here from another court, counsel shall promptly call to the attention of the Clerk of the Court the filing or transfer of any case that might properly be consolidated as part of In re Polycom, Inc. Derivative Litigation, Lead Case No. 3:13-cv-03880-SC.
10. In the interest of efficiency and avoidance of unnecessary duplication of effort or judicial resources by the Court or the parties, it is further Ordered as follows:
(a) Defendants are not required to respond to either complaint consolidated into this action, or to the complaint in any action subsequently consolidated into this action, other than an amended or consolidated complaint (or complaint subsequently designated as the operative complaint);
(b) Within thirty (30) days of the entrance of an order consolidating the Polycom Derivative Actions, plaintiffs in this action shall file an amended or consolidated complaint (or designate an operative complaint) in this action;
(c) Within ten (10) days of plaintiffs filing of an amended or consolidated complaint (or designation of an operative complaint) in this action, plaintiffs' counsel and counsel for Defendants shall meet and confer regarding a mutually agreeable schedule and dates by which defendants must answer, move to dismiss, or otherwise respond to the amended or consolidated (or operative) complaint and file a stipulated briefing schedule with the Court for approval; and
(d) The Initial Case Management Conference in the Donnelly Derivative Action, currently scheduled for January 28, 2014, and the additional deadlines set forth in the Order Setting Initial Case Management Conference and ADR Deadlines (dated October 17, 2013), are hereby vacated, and the Initial Case Management Conference in the consolidated action shall instead be set for December 20, 2013, at 10:00 a.m., the date and time of the currently scheduled Initial Case Management Conference in the Saraceni Derivative Action.
IT IS SO STIPULATED.
PURSUANT TO STIPULATION, IT IS SO ORDERED.