Opinion
STIPULATION AND [PROPOSED] ORDER REGARDING SCHEDULING AND RELATED MATTERS
JEREMY FOGEL, District Judge.
WHEREAS, on August 24, 2006, plaintiffs Vogel and Mahoney filed a class action complaint in this Court alleging that certain defendants violated the Securities Exchange Act of 1934 (the "Exchange Act"), including § 10(b) and Rule 10b-5 thereunder, and § 20(a). That action is styled as Martin Vogel and Kenneth Mahoney v. Steven Jobs, et al. , Case No. 5:06-cv-05208-JF (N.D. Cal.) (" Vogel I ");
WHEREAS, on January 19, 2007, this Court appointed the New York City Employees' Retirement System ("NYCERS") as Lead Plaintiff in Vogel I and Grant & Eisenhofer P.A. as Lead Counsel in Vogel I ;
WHEREAS, on March 23, 2007, NYCERS filed, as Lead Plaintiff, the Consolidated Complaint and asserted claims under §§ 14(a) and 20(a) of the Exchange Act and for the alleged breach of the common law duty of disclosure. The Consolidated Complaint did not assert any claims for alleged violations of § 10(b) of the Exchange Act or Rule 10b-5 thereunder;
WHEREAS, on November 14, 2007, this Court granted the defendants' motion to dismiss the Consolidated Complaint ("Dismissal Order");
WHEREAS, on December 14, 2007, NYCERS filed a motion for leave to file a First Amended Consolidated Class Action Complaint to assert claims for alleged violations of § 10(b) of the Exchange Act and Rule 10b-5 thereunder;
WHEREAS, on May 14, 2008, this Court denied NYCERS's motion for leave to file a First Amended Consolidated Class Action Complaint ("Denial Order");
JAY W. EISENHOFER (admitted pro hac vice), MICHAEL J. BARRY (admitted pro hac vice), Grant & Eisenhofer P.A., Wilmington, Delaware, Attorneys for Plaintiffs.
GEORGE A. RILEY (S.B. #118304), O'MELVENY & MYERS LLP, San Francisco, California, Attorneys for Defendant APPLE INC.
DOUGLAS R. YOUNG (S.B. #73248), FARELLA BRAUN & MARTEL LLP, San Francisco, CA, Attorneys for Defendants STEVEN P. JOBS, WILLIAM V., CAMPBELL, MILLARD S. DREXLER, ARTHUR D. LEVINSON and JEROME B. YORK.
JEROME C. ROTH (S.B. #159483), YOHANCE C. EDWARDS (S.B. #237244), MUNGER, TOLLES & OLSON LLP, San Francisco, California, Attorneys for Defendants FRED D. ANDERSON and NANCY R. HEINEN.
JAY W. EISENHOFER (admitted pro hac vice), MICHAEL J. BARRY (admitted pro hac vice), GRANT & EISENHOFER P.A., Wilmington, Delaware, MERRILL GLEN EMERICK (SB# 117248), ANDERLINI & EMERICK LLP, San Mateo, California, Attorneys for Lead Plaintiff THE NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM.
PATRICE L. BISHOP (S.B. #182256), STULL, STULL & BRODY, Howard T. Longman, STULL, STULL & BRODY, New York, NY, Gary S. Graifman, KANTROWITZ, GOLDHAMER & GRAIFMAN, Chestnut Ridge, New York, Attorneys for Plaintiffs MARTIN VOGEL and KENNETH MAHONEY.
WHEREAS, on June 12, 2008, this Court entered Judgment for the defendants ("Judgment");
WHEREAS, on June 17, 2008, NYCERS filed its Notice of Appeal of the Dismissal Order, the Denial Order, and the Judgment ("NYCERS's Appeal");
WHEREAS, on June 27, 2008, plaintiffs Vogel and Mahoney filed a new class action complaint in this Court alleging that certain defendants violated the Exchange Act, including § 10(b) and Rule 10b-5 thereunder, and § 20(a). That action is styled Martin Vogel and Kenneth Mahoney v. Apple Inc., et al. , Case No. 5:08-cv-03123-JF (N.D. Cal.) (" Vogel II ");
WHEREAS, pursuant to the parties' stipulation, on July 22, 2008, this Court entered an Order staying Vogel II pending resolution of NYCERS's Appeal;
WHEREAS, on January 28, 2010, the Ninth Circuit Court of Appeals issued a ruling in NYCERS's Appeal affirming the Dismissal Order and reversing the Denial Order;
WHEREAS, on February 19, 2010, the Ninth Circuit issued a mandate in NYCERS's Appeal;
WHEREAS, on March 22, 2010, NYCERS filed a First Amended Consolidated Class Action Complaint in Vogel I captioned In Re Apple Inc. PSLRA Backdating Litigation ("First Amended Complaint");
WHEREAS, the Court has scheduled a Case Management Conference in Vogel I on April 30, 2010, at 10:30 a.m.;
WHEREAS, the Court has scheduled a Case Management Conference in Vogel II on April 9, 2010, at 10:30 a.m.;
WHEREAS, the parties believe that Vogel I and Vogel II concern substantially the same parties, transactions or events and involve common questions of law or fact, and should be deemed related pursuant to Civil Local Rule 3-12 and consolidated pursuant to Rule 42 of the Federal Rules of Civil Procedure to avoid unnecessary cost or delay;
NOW, THEREFORE, THE PARTIES STIPULATE, AND THE COURT HEREBY ORDERS, THAT:
1. Vogel I and Vogel II shall be deemed related pursuant to Civil Local Rule 3-12 and Vogel II shall be consolidated with Vogel I pursuant to Rule 42 of the Federal Rules of Civil Procedure and 15 U.S.C. § 78u-4(a)(3)(B). NYCERS shall be Lead Plaintiff and Grant & Eisenhofer P.A. shall be Lead Counsel with respect to the consolidated action.
2. The docket in Vogel I (Case No. 5:06-cv-05208-JF) shall constitute the Master Docket for this proceeding.
3. Every pleading in this proceeding shall bear the following caption:
4. When a pleading is intended to be applicable to all actions to which this Order is applicable, the phrase "All Actions" shall appear immediately after the words "This Document Relates To:" in the caption set out above. When a pleading is intended to be applicable only to some, but not all, of such actions, the document shall list, immediately after the phrase "This Document 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 any such action.
5. The Case Management Conference set for April 9, 2010, at 10:30 a.m. in Vogel II shall be vacated.
6. The Case Management Conference set for April 30, 2010, at 10:30 a.m. in Vogel I shall remain on calendar.
7. The First Amended Complaint filed in Vogel I shall be the operative complaint for the consolidated action. Plaintiffs shall re-file the First Amended Complaint with a corrected caption page to reflect the caption for the consolidated action. This consolidation does not affect any separate right or defense asserted in any of the consolidated actions.
8. Defendants shall file their responses to the First Amended Complaint by June 25, 2010.
9. In the event that Defendants respond to the First Amended Complaint by filing motions, the briefing and hearing schedule for Defendants' motions will be:
10. Defendants shall not be required to file any responsive pleading to the pending complaint in Vogel II.
I, George A. Riley, am the ECF User whose ID and password are being used to file this Stipulation and [Proposed] Order Regarding Scheduling and Related Matters. In compliance with General Order 45, X.B., I hereby attest that Douglas R. Young, Yohance C. Edwards, Michael J. Barry, and Patrice L. Bishop have concurred in this filing.
ORDER
PURSUANT TO THE PARTIES' STIPULATION, IT IS SO ORDERED.