Opinion
CASE NO.: 09-CV-02136 SC
10-14-2011
TINA WALTER, CHRISTOPHER BAYLESS, and ERIC SCHUMACHER, individually and on behalf of all others similarly situated, Plaintiffs, v. HUGHES COMMUNICATIONS, INC. and HUGHES NETWORK SYSTEMS, LLC, Defendants.
Robert B. Hawk (SBN 118054) J. Christopher Mitchell (SBN 215639) HOGAN LOVELLS US LLP Attorneys for Defendants HUGHES COMMUNICATIONS, INC. and HUGHES NETWORK SYSTEMS, LLC
Robert B. Hawk (SBN 118054)
J. Christopher Mitchell (SBN 215639)
HOGAN LOVELLS US LLP
Attorneys for Defendants
HUGHES COMMUNICATIONS, INC.
and HUGHES NETWORK SYSTEMS, LLC
STIPULATION AND [PROPOSED] ORDER REGARDING WITHDRAWAL WITHOUT PREJUDICE OF DEFENDANTS' MOTION TO DISMISS
The Honorable Samuel Conti
WHEREAS, currently pending before the Court is Hughes Communications, Inc. and Hughes Network Systems LLC's (collectively, "Hughes") Motion to Dismiss Pursuant to the Federal Arbitration Act and Alternative Motion to Dismiss and Strike ETF Claims (the "Motion to Dismiss"), which has been fully briefed and submitted to the Court;
WHEREAS, Hughes and Plaintiffs Tina Walter, Christopher Bayless and Eric Schumacher ("Plaintiffs") (collectively, the "Parties") have continued to discuss a potential revised settlement following the Court's July 6, 2011 Order Denying Plaintiffs' Motion for Class Certification and Preliminary Approval of Settlement, with the express understanding and agreement that any and all actions by Hughes with respect to any revised settlement were subject to and without waiver of any of their respective rights to enforce the Parties' arbitration agreements, or Plaintiffs' rights to assert all applicable defenses to the aforementioned arbitration agreements, excluding any defense based in any way on the negotiation, drafting, execution, submission for Court approval or performance of such settlement, or on any other actions relating to the approval or implementation of such settlement;
WHEREAS, the Parties have reached an agreement in principle to settle their disputes, and, upon completion of the necessary settlement documentation, they desire to submit an Amended and Restated Stipulation of Settlement (the "Amended Settlement Agreement") to the Court for approval, subject to all of the terms and conditions of their agreement in principle;
WHEREAS, under the Parties' agreement in principle, as a condition of proceeding with any settlement, Plaintiffs have stipulated that the negotiation of and entry into an Amended Settlement Agreement, and the submission of an Amended Settlement Agreement to the Court, is without prejudice to any right Hughes may have to compel arbitration or otherwise enforce the Parties' arbitration agreements, and does not constitute a waiver or relinquishment of any arbitration rights, or a waiver of any applicable defenses to such rights that may be asserted by Plaintiffs, excluding any defense based in any way on the negotiation, drafting, execution, submission for Court approval or performance of Amended Settlement Agreement, or on any other actions relating to the approval or implementation of such Amended Settlement Agreement;
WHEREAS, the Parties have agreed that, subject to the foregoing preservation of rights, Hughes may withdraw the Motion to Dismiss without prejudice to its right to reassert the Motion and/or any arguments made as a part of the Motion at a later time.
IT IS HEREBY STIPULATED, by and between the Parties through their respective counsel, that:
1. Hughes hereby withdraws its Motion to Dismiss without prejudice to Hughes's right to later re-file that Motion and seek a ruling on that fully-briefed Motion, or to file a new motion to dismiss on the same or similar grounds as the pending Motion to Dismiss.
2. Consistent with the September 28, 2011 stipulation of the parties, neither the Amended Settlement Agreement nor any action taken by Hughes pursuant to or in furtherance of a revised settlement or the Amended Settlement Agreement, including its withdrawal of the Motion to Dismiss without prejudice, shall waive or otherwise adversely affect any right Hughes may have with respect to its position and arguments in the Motion to Dismiss;
3. Plaintiffs expect to file a Motion for Preliminary Approval of the Amended Settlement Agreement on or before November 21, 2011.
4. Hughes' time to move to dismiss, answer or otherwise respond to the Second Amended Complaint shall and hereby is extended until (a) November 25, 2011, or (b) if Plaintiffs file a Motion for Preliminary Approval of the Amended Settlement Agreement on or before November 21, 2011, twenty (20) days after the Court rules on such motion.
IT IS SO STIPULATED.
HOGAN LOVELLS US LLP
Robert B. Hawk
Attorneys for Defendants
HUGHES COMMUNICATIONS, INC. and
HUGHES NETWORK SYSTEMS LLC
AUDET & PARTNERS, LLP
Joshua C. Ezrin
Attorneys for Plaintiffs
IT IS SO ORDERED.
I, Robert B. Hawk, attest that Joshua C. Ezrin has read and approved the STIPULATION AND [PROPOSED] ORDER REGARDING WITHDRAWAL WITHOUT PREJUDICE OF DEFENDANTS' MOTION TO DISMISS and consents to its filing in this action.