City of Lakeland Employees Pension Plan v. Baxter International Inc. et al

MOTION

N.D. Ill.November 23, 2010

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION CITY OF LAKELAND EMPLOYEES PENSION PLAN, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. BAXTER INTERNATIONAL INC., ROBERT L. PARKINSON JR., ROBERT M. DAVIS and NORBERT G. RIEDEL, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 10-cv-6016 Hon. Sharon Johnson Coleman Hon. Sidney I. Schenkier DEFENDANTS’ MOTION FOR REASSIGNMENT BASED ON RELATEDNESS Pursuant to Local Rule 40.4, defendants respectfully move the Court to reassign a related case to this Court’s docket. In support of this motion, defendants state as follows: 1. The above-captioned action, filed on September 21, 2010, is a putative securities fraud class action purportedly brought on behalf of purchasers of the common stock of Baxter International Inc. (“Baxter”). The complaint names as defendants Baxter, Baxter’s CEO Robert L. Parkinson, Jr., Baxter’s former CFO Robert M. Davis, and Baxter’s Chief Scientific Officer Norbert G. Riedel, 2. On November 5, 2010, a different plaintiff filed a substantially identical securities fraud class action against Baxter, and Messrs. Parkinson and Davis, captioned Gregory v. Baxter International Inc., et al., No. 10-cv-7149. The Gregory case was assigned to the Honorable Elaine E. Bucklo. A copy of the Gregory complaint is attached hereto as Exhibit A. 3. The instant action and the Gregory action are related cases within the meaning of Local Rule 40.4(a), in that: 2 (a) both actions are putative class actions purportedly brought on behalf of a class of all persons who purchased Baxter common stock during the period from September 16, 2009 (in the case of Gregory) or September 17, 2009 (in this case), through and including May 3, 2010; (b) defendants in both actions are identical (except that this action names one additional defendant, Norbert G. Riedel); (c) plaintiffs in both actions allege that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by making false and misleading statements about: (1) Baxter’s plasma-derived products business; and (2) Baxter’s efforts to correct problems with its Colleague Infusion Pumps; and (d) plaintiffs in both actions seek damages on behalf of the purported class. 4. In addition, each of the four conditions for reassignment set forth in Local Rule 40.4(b) are met, in that: (a) both actions are pending in this district; (b) the handling of both actions by one judge is likely to result in a substantial saving of judicial time and effort, since the two complaints are virtually identical; (c) the only proceedings that have taken place in either court are that: (1) on November 3, 2010, plaintiffs in a pending shareholder derivative suit in this district captioned North Miami Beach General Employees Retirement Fund v. Robert L. Parkinson, Jr., et al., No. 10-cv-6514, moved for reassignment of that case to this Court’s docket, and on November 22, 2010, defendants filed an opposition to the motion on the ground that a shareholder derivative suit and a securities fraud class action do not meet the criteria of Local Rule 40.4(b) for reassignment; and (2) on November 23, 2010, plaintiffs in another pending shareholder derivative suit in this district captioned Louisiana Municipal Police Employees’ Retirement 3 System v. Robert L. Parkinson, Jr., et al., No. 10-cv-7317, filed a motion to reassign that case to this Court’s docket, which motion defendants intend to oppose; and (d) this action and the Gregory securities fraud class action are capable of disposition in a single proceeding because the cases are identical in all material respects and, on November 22, 2010, plaintiffs in this action filed a motion (albeit premature) to consolidate this action and the Gregory action and to appoint lead counsel. WHEREFORE, defendants respectfully request that the Court reassign the Gregory action to this Court’s docket pursuant to Local Rule 40.4. Dated: November 23, 2010 Respectfully submitted, /s/Matthew R. Kipp Matthew R. Kipp Donna L. McDevitt Andrew J. Fuchs SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 155 North Wacker Drive Chicago, Illinois 60606 (312) 407-0700 Counsel for Defendants CERTIFICATE OF SERVICE Matthew R. Kipp, an attorney, hereby certifies that on November 22, 2010, he caused true and correct copies of the foregoing Defendants’ Opposition to Motion for Reassignment to be served via the Court’s electronic filing system on the following attorneys of record in this action: Marvin A. Miller, Esq. Matthew E. Van Tine, Esq. Lori A. Fanning, Esq. MILLER LAW LLC 115 S. LaSalle Street, Suite 2910 Chicago, IL 60603 Darren J. Robbins, Esq. David C. Walton, Esq. Catherine J. Kowalewski, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 David J. George, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 120 East Palmetto Park Road, Suite 500 Boca Raton, FL 33432 Robert Sugarman, Esq. SUGARMAN & SUSSKIND 100 Miracle Mile, Suite 300 Coral Gables, FL 33134 and U.S. mail on the following counsel for plaintiffs in Gregory v. Baxter International Inc., et al., No. 10-cv-7149: Gary L. Specks, Esq. KAPLAN FOX & KILSHEIMER LLP 423 Sumac Road Highland Park, IL 60035 5 Frederic S. Fox, Esq. Donald R. Hall, Esq. Jeffrey P. Campisi, Esq. KAPLAN FOX & KILSHEIMER LLP 850 Third Avenue New York, NY 10022 /s/Matthew R. Kipp Matthew R. Kipp