Opinion
Case No. C 13-00945 LHK
05-08-2013
POLICE AND FIRE RETIREMENT SYSTEM OF THE CITY OF DETROIT, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. ROSEMARY A. CRANE, PATRICK D. SPANGLER, PATRICK S. JONES, PETER C. BRANDT, PHILIPPE O. CHAMBON, DARREN W. COHEN, THOMAS L. HARRISON, GILBERT H. KLIMAN, JOHN E. VORIS, MARK A. WAN, JACOB J. WINEBAUM and EPOCRATES, INC., Defendants.
SCOTT+SCOTT, ATTORNEYS AT LAW, LLP Joseph P. Guglielmo (admitted pro hac vice) Donald A. Broggi (admitted pro hac vice) Joseph D. Cohen (#155601) GLANCY BINKOW & GOLDBERG LLP Lionel Z. Glancy Michael Goldberg Robert V. Prongay Casey E. Sadler Counsel for Plaintiff GOODWIN PROCTER LLP Teodora E. Manolova (# 233333) Deborah S. Birnbach (pro hac vice pending) Exchange Place Counsel for Defendants
JOSEPH P. GUGLIELMO (admitted pro hac vice)
DONALD A. BROGGI (admitted pro hac vice)
JOSEPH D. COHEN (#155601)
SCOTT+SCOTT, ATTORNEYS AT LAW, LLP
The Chrysler Building
405 Lexington Avenue 40th Floor
New York, NY 10174
Telephone: (212) 223-6444
Facsimile: (212) 223-6334
LIONEL Z. GLANCY (#134180)
MICHAEL GOLDBERG (#188669)
ROBERT V. PRONGAY (#270796)
CASEY E. SADLER (#274241)
GLANCY BINKOW & GOLDBERG LLP
1925 Century Park East, Suite 2100
Los Angeles, California 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: info@glancylaw.com
Attorneys for Plaintiff
CLASS ACTION
STIPULATION AND [PROPOSED]
ORDER TO CONTINUE THE INITIAL
CASE MANAGEMENT CONFERENCE,
RESET RELATED DEADLINES AND
EXTEND DEFENDANTS' TIME TO
ANSWER OR OTHERWISE RESPOND TO
THE COMPLAINT
[Civil L.R. 16-2, 7-12]
DATE: June 6, 2013
Honorable Lucy H. Koh
Pursuant to Civil Local Rules 16-2 and 7-12, Plaintiff Police and Fire Retirement System of the City of Detroit ("Plaintiff") and Defendants Epocrates, Inc., Rosemary A. Crane, Patrick D. Spangler, Patrick S. Jones, Peter C. Brandt, Philippe O. Chambon, Darren W. Cohen, Thomas L. Harrison, Gilbert H. Kliman, John E. Voris, Mark A. Wan, and Jacob J. Winebaum (collectively, "Defendants") (collectively, the "Parties") hereby agree and stipulate that good cause exists to request an order from the Court rescheduling the Initial Case Management Conference currently set for June 6, 2013 (pursuant to this Court's March 1, 2013 Order Setting Initial Case Management Conference and ADR Deadlines (DE 2) (the "March 1, 2013 Order")), adjusting accordingly the related deadlines set forth therein, and adjourning Defendants' time to answer, move or otherwise respond to the Complaint as set forth herein.
RECITALS
WHEREAS, Plaintiff filed a complaint on March 1, 2013 (the "Complaint"), that asserts claims under the Securities Act of 1933 (the "Securities Act") and the Securities Exchange Act of 1934 (the "Exchange Act") on behalf of a purported class against Defendants;
WHEREAS, the Private Securities Litigation Reform Act of 1995 (the "PSLRA") sets forth mandatory, comprehensive and specific procedures governing the selection of a lead plaintiff to oversee class actions brought under the federal securities laws. 15 U.S.C. §78u-4, et seq.;
WHEREAS, the PSLRA requires that notice of the commencement of an action be given to permit other putative class members (who may seek to serve as lead plaintiff on behalf of the class) the opportunity to file motions: (a) to be appointed lead plaintiff, to oversee and direct the prosecution of the action; and (b) to consolidate other complaints which may be filed arising from the same nexus of operative facts. See 15 U.S.C. §78u-4(a)(3)(A)&(B). This notice must be given within 20 days after the filing of the securities fraud class action. 15 U.S.C. §78u-4(a)(3)(A)(i). Prospective lead plaintiffs are given sixty (60) days from the publication of notice to move for appointment as lead plaintiff, 15 U.S.C. §78u-4(a)(3)(A)(i)(II), with the Court to rule upon the competing motions - applying the rules laid out in 15 U.S.C. §78u-4(a)(3)(B)(iii)(I) - thereafter.
WHEREAS, Plaintiff asserts that the notice of the commencement of this action was published on the Globe Newswire on March 8, 2013, advising all putative class members that they have until May 7, 2013 to move for appointment as lead plaintiff. See Docket Entry No. 6;
WHEREAS, Plaintiff anticipates that after the appointment of the lead plaintiff, lead plaintiff will file an amended complaint;
WHEREAS, in effect, this action cannot be prosecuted against any defendant until this Court first selects a lead plaintiff and lead counsel to represent the putative class;
WHEREAS, it would be more efficient to extend the time for Defendants to answer or otherwise respond to the Complaint in the action until after the Court's appointment of a lead plaintiff and lead plaintiff's designation of an operative complaint or filing of an amended complaint;
WHEREAS, the March 1, 2013 Order directed the parties to meet, confer and complete initial disclosures no later than May 15, 2013 in advance of the initial case management conference currently set for June 5, 2013; and
WHEREAS, the parties believe that, because the PSLRA stays all discovery, including initial disclosures, pending the disposition of motions to dismiss in securities actions such as this one, it is appropriate to defer the initial case management conference and the completion of initial disclosures until the lead plaintiff has been appointed, the lead plaintiff's selection of lead counsel has been approved, the lead plaintiff has filed a consolidated amended complaint, Defendants have had the opportunity to file any motion to dismiss, and the Court has ruled on Defendants' anticipated motion to dismiss. See, e.g., Medhekar v. United States Dist. Court, 99 F.3d 325, 328-29 (9th Cir. 1996) (holding F.R.C.P. 26(a)'s initial disclosure requirements are disclosures or other proceedings for purposes of PSLRA's stay provision, and must be stayed pending disposition of motion to dismiss).
THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the parties through their undersigned counsel, that:
1. Defendants need not answer, move or otherwise respond to the Complaint in this action until a date to be set following the appointment of a lead plaintiff pursuant to 15 U.S.C. §78u-4(a)(3)(B) and the filing by such lead plaintiff of an amended complaint.
2. Upon the Court's appointment of a lead plaintiff, the lead plaintiff will have sixty (60) days to designate an operative complaint or file an amended complaint.
3. Upon the designation of an operative complaint or the filing of an amended complaint, Defendants will have sixty (60) days to answer, move against, or otherwise respond to the Complaint; the lead plaintiff will have forty-five (45) days to file opposition(s) to any motion(s) to dismiss filed by Defendants; and Defendants will have thirty (30) days to file replies to lead plaintiff's opposition(s).
4. The Initial Case Management Conference shall be held thirty (30) days after an order directing Defendants to file an answer (if any), or as soon as possible thereafter consistent with the Court's schedule.
5. This Stipulation is entered into without prejudice to any party seeking any interim relief.
6. Nothing in this Stipulation shall be construed as a waiver of any of Defendants' rights or positions in law or equity, or as a waiver of any defenses that Defendants would otherwise have, including, without limitation, jurisdictional defenses.
7. The Parties have not sought any other extensions of time in this action.
8. The Parties do not seek to reset these dates for the purpose of delay, and the proposed new dates will not have an effect on any pre-trial and trial dates as the Court has yet to schedule these dates.
WHEREFORE, the Parties respectfully request that this Court issue an order granting the Parties' request to reset the Initial Case Management Conference and related deadlines as set forth herein.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
SCOTT+SCOTT, ATTORNEYS AT LAW, LLP
By: _________________
Joseph P. Guglielmo (admitted pro hac vice)
Donald A. Broggi (admitted pro hac vice)
Joseph D. Cohen (#155601)
GLANCY BINKOW & GOLDBERG LLP
Lionel Z. Glancy
Michael Goldberg
Robert V. Prongay
Casey E. Sadler
Counsel for Plaintiff
GOODWIN PROCTER LLP
By: _________________
Teodora E. Manolova (# 233333)
Deborah S. Birnbach (pro hac vice pending)
Exchange Place
Counsel for Defendants
ORDER
The stipulation set forth above is GRANTED with the exception of Paragraph 4. The initial Case Management Conference scheduled for May 15, 2013 shall be CONTINUED to September 18, 2013, at 1:30 p.m. If the parties wish to continue the Case Management Conference again at that time, the parties may file a stipulation requesting a continuance.
________________
Hon. Lucy H. Koh
United States District Judge