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Turberg v. Logan

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION
Nov 17, 2011
Case No. 4:10-cv-05271 PJH (N.D. Cal. Nov. 17, 2011)

Opinion

Case No. 4:10-cv-05271 PJH

11-17-2011

ELEANOR TURBERG, Derivatively on Behalf of Nominal Defendant VIVUS, INC., Plaintiff, v. MARK B. LOGAN, LELAND F. WILSON, LINDA M. DAIRIKI SHORTLIFFE, M.D., PETER Y. TAM, and CHARLES J. CASAMENTO Defendants, and VIVUS, INC., a Delaware Corporation, Nominal Defendant.

NORMAN J. BLEARS (Bar No. 95600) MICHAEL L. CHARLSON (Bar No. 122125) HOGAN LOVELLS US LLP BENJAMIN T. DIGGS (Bar No. 245904) HOGAN LOVELLS US LLP Attorneys for Nominal Defendant VTVUS, INC. and for Defendants MARK B. LOGAN; LELAND F. WILSON; LINDA M. DAIRIKI SHORTLIFFE, M.D.; PETER Y. TAM, and CHARLES J. CASAMENTO


NORMAN J. BLEARS (Bar No. 95600)

MICHAEL L. CHARLSON (Bar No. 122125)

HOGAN LOVELLS US LLP

BENJAMIN T. DIGGS (Bar No. 245904)

HOGAN LOVELLS US LLP

Attorneys for Nominal Defendant

VTVUS, INC. and for Defendants

MARK B. LOGAN; LELAND F. WILSON;

LINDA M. DAIRIKI SHORTLIFFE, M.D.;

PETER Y. TAM, and CHARLES J. CASAMENTO

STIPULATION AND [PROPOSED]

ORDER TO CONTINUE CASE

SCHEDULE


Judge: Honorablred Phyllis J. Hamilton

Courtroom: 3, 3rd Floor

Date Action Filed: November 19, 2010

Plaintiff Eleanor Turberg ("Plaintiff") and Defendants Vivus, Inc., Leland F. Wilson, Mark B. Logan, Linda M. Dairiki Shortliffe, Peter Y. Tam, and Charles J. Casamento (collectively, the "Parties"), through their respective attorneys of record, herby stipulate to and seek the Court's approval of an order revising and continuing the case schedule:

RECITALS

WHEREAS, on November 19, 2010, Plaintiff filed her shareholder derivative action (the "Derivative Action") purportedly on behalf of Nominal Defendant VIVUS, Inc. ("VIVUS" or the "Company") in this Court, naming certain officers and directors of the Company as Defendants;

WHEREAS, also pending before this Court is a related case styled Kovtun v. VIVUS, Inc., et al., Case No. 4:10-cv-04957 PJH, a purported securities class action originally filed November 2, 2010 against VIVUS and many of the same individuals named as defendants in the Derivative Action (the "Securities Action");

WHEREAS, the Securities Action and the Derivative Action also concern substantially the same events;

WHEREAS, the Court on January 12, 2011 issued a Related Case Order, in which it found the Securities Action and the Derivative Action (together, the "Related Actions") are related:

WHEREAS, the Court entered a stipulated order on February 7, 2011, that established a schedule for Plaintiff's filing of an amended complaint in this Derivative Action, and deferring Defendants' and Nominal Defendant's response to the amended complaint and staying discovery until after the Court resolved a then-anticipated motion to dismiss the Securities Action;

WHEREAS, on June 3, 2011, Plaintiff filed her Verified Amended Shareholder Derivative Complaint (the "Amended Complaint"), which is the operative pleading in the Derivative Action;

WHEREAS, Defendants and Nominal Defendant in this Derivative Action believe they have legal challenges to Plaintiff's standing to assert her purported derivative claims;

WHEREAS, defendants in the Securities Action filed a motion to dismiss the complaint in the Securities Action, which motion was heard by the Court on October 12, 2011;

WHEREAS, by order entered October 13, 2011, the Court granted defendants' motion to dismiss the complaint in the Securities Action with 28 days leave to amend;

WHEREAS, plaintiff in the Securities Action filed his Second Amended Complaint on November 9, 2011 (the "Second Amended Complaint"); and defendants in the Securities Action anticipate bringing a further motion to dismiss that Second Amended Complaint;

WHEREAS, the Parties have met and conferred and believe that the new allegations in the Second Amended Complaint in the Securities Action may well affect the allegations that Plaintiff wishes to put forward in this Derivative Action;

WHEREAS, the Parties believe that the interests of conserving judicial resources and maximizing the coordination and efficient resolution of the Related Actions will be served by continuing the schedule and extending the stay of proceedings in place by virtue of the Court's February 7, 2011 stipulated order until after the anticipated motions to dismiss the Second Amended Complaint in the Securities Action are resolved;

WHEREAS, three now-consolidated purported shareholder derivative actions concerning the same parties and substantially the same events are pending in the Superior Court of California, County of Santa Clara, in a consolidated proceeding styled In re VIVUS, Inc. Derivative Litigation, Master File No. 110 CV 188439, with the initial case filed November 24, 2010 (the "State Derivative Action"); and

WHEREAS, the parties to the State Derivative Action have agreed upon a stipulation continuing the schedule in the State Derivative Action in a manner consistent with the schedule provided for in this Stipulation and [Proposed] Order:

STIPULATION

IT IS HEREBY STIPULATED AND AGREED, by and between undersigned counsel, subject to approval of this Court, that:

1. Defendants and Nominal Defendant shall not be required to answer, move or otherwise respond to the Amended Complaint;

2. Plaintiff shall have 45 days after the entry of an Order by this Court ruling on defendants' anticipated motion to dismiss plaintiff's Second Amended Complaint in the Securities Action to either file and serve a first amended complaint (the "First Amended Complaint") or to inform Defendants and Nominal Defendant in writing that she is not going to do so;

3. Following either the filing of a First Amended Complaint, or Plaintiffs' written notice that no such First Amended Complaint will be filed, Defendants and/or Nominal Defendant shall have 60 days to answer, move, or otherwise respond to the First Amended Complaint (or the Amended Complaint in the event that a First Amended Complaint is not filed) in the Derivative Action. In the event that Defendants and/or Nominal Defendant files and serves any motions with respect to the First Amended Complaint, Plaintiff shall have 60 days to oppose such motions. Defendants and/or Nominal Defendants shall have 45 days to reply to any such oppositions. The hearing on any such motion will be set on the first available date on the Court's calendar two weeks or more after the deadline by which the reply must be filed and served.

4. In the event Nominal Defendant files a motion challenging Plaintiff's standing to prosecute the Derivative Action, other defense motions (including without limitation motions under Fed. R. Civ. P. 12) directed to the First Amended Complaint (or the Amended Complaint in the event that a First Amended Complaint is not filed) may be deferred without prejudice until after the Court resolves any motion concerning Plaintiff's standing.

HOGAN LOVELLS US LLP

By _______________

Michael L. Charlson

HOGAN LOVELLS US LLP

Norman J. Blears (Bar No. 95600)

Michael L. Charlson (Bar No. 122125)
and

HOGAN LOVELLS US LLP

Benjamin T. Diggs (Bar No. 245904)

Attorneys for Nominal Defendant

VIVUS, Inc. and for Defendants

FARUQI & FARUQI, LLP

By _______________

Vahn Alexander

FARUQI & FARUQI, LLP Vahn Alexander (Bar No. 167373)

and

FARUQI & FARUQI, LLP

Nadeem Faruqi

Beth A. Keller

Attorneys for Plaintiff

ORDER

Pursuant to the above Stipulation, IT IS SO ORDERED

Honorable Phyllis J. Hamilton

United States District judge

I, Michael L. Charlson, attest that Vahn Alexander has read and approved the STIPULATION AND [PROPOSED] ORDER TO CONTINUE CASE SCHEDULE and consents to its filing in this action.


Summaries of

Turberg v. Logan

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION
Nov 17, 2011
Case No. 4:10-cv-05271 PJH (N.D. Cal. Nov. 17, 2011)
Case details for

Turberg v. Logan

Case Details

Full title:ELEANOR TURBERG, Derivatively on Behalf of Nominal Defendant VIVUS, INC.…

Court:UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

Date published: Nov 17, 2011

Citations

Case No. 4:10-cv-05271 PJH (N.D. Cal. Nov. 17, 2011)