Opinion
3:20-cv-04737-RS
12-29-2021
SHEET METAL WORKERS' NATIONAL PENSION FUND and INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL NO. 710 PENSION FUND, individually and as Lead Plaintiffs on behalf of all others similarly situated, and INTERNATIONAL UNION OF OPERATING ENGINEERS PENSION FUND OF EASTERN PENNSYLVANIA AND DELAWARE, individually and as Named Plaintiff, on behalf of all others similarly situated, Plaintiffs, v. BAYER AKTIENGESELLSCHAFT, WERNER BAUMANN, WERNER WENNING, LIAM CONDON, JOHANNES DIETSCH, and WOLFGANG NICKL, Defendants.
BERMAN TABACCO Nicole Lavallee (SBN 165755) Jeffrey Miles (SBN 293869) Liaison Counsel Carol V. Gilden (admitted pro hac vice) COHEN MILSTEIN SELLERS & TOLL PLLC Steven J. Toll (admitted pro hac vice) Susan G. Taylor (SBN 190753) COHEN MILSTEIN SELLERS & TOLL PLLC Chris Lometti (pro hac vice forthcoming) Benjamin F. Jackson (admitted pro hac vice) Norhan Bassiouny (admitted pro hac vice) COHEN MILSTEIN SELLERS & TOLL PLLC Lead Counsel Attorneys for Lead Plaintiffs Sheet Metal Workers' National Pension Fund and International Brotherhood of Teamsters Local No. 710 Pension Fund, and Additional Named Plaintiff International Union of Operating Engineers Pension Fund of Eastern Pennsylvania And Delaware Local No. 542 MORRISON & FOERSTER LLP Jordan Eth (SBN 121617) Mark R.S. Foster (SBN 121617) William Savitt (admitted pro hac vice) John F. Lynch (admitted pro hac vice) Noah B. Yavitz (admitted pro hac vice) WACHTELL, LIPTON, ROSEN & KATZ Attorneys for Defendants Bayer Aktiengesellschaft, Werner Baumann, Werner Wenning, Liam Condon, Johannes Dietsch, and Wolfgang Nickl
CLASS ACTION
BERMAN TABACCO Nicole Lavallee (SBN 165755) Jeffrey Miles (SBN 293869) Liaison Counsel Carol V. Gilden (admitted pro hac vice) COHEN MILSTEIN SELLERS & TOLL PLLC Steven J. Toll (admitted pro hac vice) Susan G. Taylor (SBN 190753) COHEN MILSTEIN SELLERS & TOLL PLLC Chris Lometti (pro hac vice forthcoming) Benjamin F. Jackson (admitted pro hac vice) Norhan Bassiouny (admitted pro hac vice) COHEN MILSTEIN SELLERS & TOLL PLLC Lead Counsel Attorneys for Lead Plaintiffs Sheet Metal Workers' National Pension Fund and International Brotherhood of Teamsters Local No. 710 Pension Fund, and Additional Named Plaintiff International Union of Operating Engineers Pension Fund of Eastern Pennsylvania And Delaware Local No. 542
MORRISON & FOERSTER LLP Jordan Eth (SBN 121617) Mark R.S. Foster (SBN 121617) William Savitt (admitted pro hac vice) John F. Lynch (admitted pro hac vice) Noah B. Yavitz (admitted pro hac vice) WACHTELL, LIPTON, ROSEN & KATZ Attorneys for Defendants Bayer Aktiengesellschaft, Werner Baumann, Werner Wenning, Liam Condon, Johannes Dietsch, and Wolfgang Nickl
STIPULATION AND SCHEDULING ORDER
HONORABLE RICHARD SEEBORG UNITED STATES DISTRICT JUDGE 1
Pursuant to Local Rules 6-2 and 16-2(e), the Parties respectfully request the following:
WHEREAS, the above-captioned case is currently pending before this Court;
WHEREAS, Court-Appointed Lead Plaintiffs Sheet Metal Workers' National Pension Fund and International Brotherhood of Teamsters Local No. 710 Pension Fund (“Lead Plaintiffs”), along with additional named plaintiff International Union of Operating Engineers Pension Fund of Eastern Pennsylvania and Delaware (collectively, “Plaintiffs”) filed an Amended Class Action Complaint on January 19, 2021 (ECF No. 47);
WHEREAS, Defendant Bayer Aktiengesellschaft (“Bayer” or the “Company”) and Defendants Werner Baumann, Werner Wenning, Liam Condon, Johannes Dietsch, and Wolfgang Nickl (together, the “Individual Defendants, ” and collectively with Bayer, the “Defendants”) moved to dismiss the Amended Class Action Complaint on March 22, 2021 (ECF No. 61);
WHEREAS, the Court denied Defendants' motion to dismiss on October 19, 2021, but held that “unless and until Plaintiffs successfully amend the Complaint” certain “theories are foreclosed as the case moves forward” (ECF No. 90);
WHEREAS, on December 17, 2021, Plaintiffs filed a motion for leave to file a Second Amended Class Action Complaint (ECF No. 102) (the “Motion for Leave to Amend”);
WHEREAS, Defendants do not intend to oppose the Motion for Leave to Amend, and have consented to the filing of the Second Amended Class Action Complaint subject to a reservation of their right to move for its dismissal;
WHEREAS, there is currently a hearing on the Motion for Leave to Amend scheduled for January 20, 2022;
WHEREAS, Defendants intend to move to dismiss the Second Amended Class Action Complaint;
WHEREAS, the full scope of discovery in this litigation cannot be determined until the Court rules on Defendants' anticipated motion to dismiss, but the parties are currently scheduled to submit a joint case management report addressing the discovery plan and schedule for this action by January 20, 2022, and to appear for an initial case management conference on January 27, 2022; and
WHEREAS, Plaintiffs conferred via email with Defendants and the parties mutually agreed that as a matter of efficiency for both the parties and the Court, it would be beneficial to (1) adjourn 2 the hearing on the Motion for Leave to Amend; (2) temporarily adjourn and postpone the initial case management conference and related deadlines until after the Court has ruled on Defendants' motion to dismiss the Second Amended Class Action Complaint; and (3) set a briefing schedule for Defendants' motion to dismiss the Second Amended Class Action Complaint.
THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and among the Parties, that:
1. Defendants consent to the filing of the Second Amended Class Action Complaint, while reserving their right to seek dismissal pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure, as well as the Private Securities Litigation Reform Act of 1995. Plaintiffs shall file the Second Amended Class Action Complaint within two (2) business days after the Court issues an order granting this stipulation.
2. The motion hearing currently scheduled for January 20, 2022 shall be adjourned as moot.
3. Defendants shall answer or move to dismiss the Second Amended Class Action Complaint no later than January 31, 2022.
4. If Defendants move to dismiss the Second Amended Class Action Complaint, Plaintiffs shall file opposition papers no later than thirty (30) days after the filing of Defendants' motion to dismiss.
5. Defendants' reply in support of any motion to dismiss the Second Amended Class Action Complaint shall be filed no later than fourteen (14) days after the filing of Plaintiffs' opposition to Defendants' motion to dismiss.
6. Subject to the Court's convenience and schedule, the initial case management conference currently scheduled for January 27, 2022 shall be continued until thirty (30) days after the Court has ruled on Defendants' motion to dismiss the Second Amended Class Action Complaint.
7. Without limiting the Parties' ability to seek to lift the stay of discovery in accordance with 15 U.S.C. § 78u-4(b)(3)(B), the Parties' obligations under subparts (a) and (f) of Rule 26 of the Federal Rules of Civil Procedure, Rule 16-9 of the Civil Local Rules, and Rule 3-5 of the ADR Local Rules shall currently be suspended until after the Court3
has ruled on Defendants' motion to dismiss the Second Amended Class Action Complaint.
IT IS SO STIPULATED. 4