Riccardi v. Lynch et al

MOTION to Continue Administrative Motion Requesting Continuance of Dates in the May 28, 2013 Stay Stipulation and Order

N.D. Cal.August 23, 2013

Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ADMINISTRATIVE MOTION REQUESTING CONTINUANCE OF DATES Master File No. 3:12-cv-06003-CRB 29287\3831593.1 WACHTELL, LIPTON, ROSEN & KATZ MARC WOLINSKY (pro hac vice) GEORGE T. CONWAY III (pro hac vice) RACHELLE SILVERBERG (pro hac vice) VINCENT G. LEVY (pro hac vice) 51 West 52nd Street New York, NY 10019 Tel./Fax: 212.403.1000/2000 MWolinsky@wlrk.com GTConway@wlrk.com RSilverberg@wlrk.com VGLevy@wlrk.com FARELLA, BRAUN & MARTEL, LLP NEIL A. GOTEINER, State Bar No. 83524 THOMAS B. MAYHEW, State Bar No. 183539 CHRISTOPHER C. WHEELER, State Bar No. 224872 235 Montgomery Street, 17th Floor San Francisco, CA 94104 Tel./Fax: 415.954.4400/4480 NGoteiner@fbm.com TMayhew@fbm.com CWheeler@fbm.com Attorneys for Defendant HEWLETT-PACKARD COMPANY IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA IN RE HEWLETT-PACKARD COMPANY SHAREHOLDER DERIVATIVE LITIGATION, This Document Relates to: All Actions Master File No. 3:12-cv-6003-CRB ADMINISTRATIVE MOTION REQUESTING CONTINUANCE OF DATES IN THE MAY 28, 2013 STAY STIPULATION AND ORDER [Local Rule 7-11] Judge: Hon. Charles R. Breyer Case3:12-cv-06003-CRB Document119 Filed08/23/13 Page1 of 6 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ADMINISTRATIVE MOTION REQUESTING CONTINUANCE OF DATES Master File No. 3:12-cv-06003-CRB 29287\3831593.1 Pursuant to this Court’s Civil Standing Order and Civil Local Rule 7-11, the below Defendants move this Court for a continuance of certain dates in the Stipulation Of All Parties To Stay Case Through July 31, 2013, ordered by this Court on May 28, 2013 (“May 28 Stay Stipulation and Order”). Docket No. 87. Specifically, the below Defendants ask that the Court continue the time by which Defendants must respond to the Consolidated Complaint from September 10, 2013 to six weeks after the Court has ruled upon Defendants’ Motion to Stay. The hearing on the Motion to Stay is presently set for September 6. Good cause exists for this request. Given the September 6 hearing, unless the Court adjusts the September 10 filing date, Defendants will be required to spend their time and HP’s resources responding to the Consolidated Complaint pending the Court’s decision on the Motion to Stay. Such needless waste benefits no one. Moreover, Defendants’ responses to the Complaint may look very different depending on the results of the Court’s ruling on the Motion to Stay and the status and results of the work of the Demand Review Committee that is currently investigating Plaintiff’s claims, as well as the claims made by other HP shareholders in their demand letters. Plaintiff recognized that Defendants should not be responding to the Complaint while the Motion to Stay is pending, presumably also recognizing that Plaintiff is claiming to represent HP which would have to pay for all Defendants’ briefing when the case might be stayed. But at the end of the meet-and-confer process yesterday, Plaintiff rejected the request for six weeks, instead offering to extend the existing deadline by only four days after the Court rules on the Motion to Stay. Plaintiff thus vitiated his recognition that Defendants should not have to respond to the Complaint pending the Court’s ruling on Defendants’ requested stay. By way of summary, on July 30, 2013, HP filed its Motion to Stay, joined by other Defendants. (Docket Nos. 102 & 110). Defendants’ Motion to Stay is scheduled to be heard on September 6, 2013—two business days prior to the current due date for Defendants’ response to the 180-page Consolidated Shareholder Derivative Complaint. Under the current schedule, if the Court does not decide the Motion to Stay by September 10, Defendants will be compelled to file their responses that day not knowing whether the action is stayed. Were the Court to deny the Motion to Stay on September 6, Defendants would have only two business days to prepare and Case3:12-cv-06003-CRB Document119 Filed08/23/13 Page2 of 6 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ADMINISTRATIVE MOTION REQUESTING CONTINUANCE OF DATES Master File No. 3:12-cv-06003-CRB - 2 - 29287\3831593.1 file their responses. Given the unworkability of, and waste inherent in, the current schedule, for several weeks counsel for HP has requested to discuss with Plaintiff’s counsel an extension of the September 10 response deadline consistent with the schedule in the May 28 Stay Stipulation and Order—i.e., Defendants’ responses due six weeks following the Court’s ruling on the Motion to Stay. See Declaration of Neil Goteiner in Support of Defendants’ Administrative Motion Requesting Continuance Of Dates In May 28 Stay Stipulation And Order. Yesterday, Plaintiff’s counsel refused to grant the requested extension. Id. ¶7, Ex. D at 1. Instead, Plaintiff’s counsel offered only to extend the September 10 response date by “the time it takes to issue a ruling.” Id. Thus, if the Court on September 6 denied Defendants’ stay motion, Defendants’ responses would still be due on September 10. If the Court denied Defendants’ motion on September 9, Defendants’ response would be due on September 13. In short, since Defendants obviously cannot risk leaving themselves four days to prepare and file a response to the Consolidated Complaint, Plaintiff’s offer would still require Defendants to prepare their responses to the Consolidated Complaint without knowing whether the action will be stayed. The result would be a needless waste of HP’s resources in the event the Motion for a Stay is granted. The only countervailing consideration is that Defendants’ responses would be served six weeks, rather than four days, after the Court rules, which is to say no real prejudice at all. Defendants have acted expeditiously, filing this Motion one day after Plaintiff refused to grant the requested extension. Defendants therefore respectfully request that the Court modify the schedule as set forth in the May 28 Stay Stipulation and Order, ¶2, by continuing those deadlines to the new dates set forth below: 1. If Defendants’ Motion to Stay is denied, Defendants’ answers, motions, or other papers in response to the Consolidated Complaint shall be filed no later than 42 days (six weeks) following issuance of the Court’s Order denying Defendants’ Motion. 2. If Defendants’ Motion to Stay is granted, Defendants’ answers, motions, or other Case3:12-cv-06003-CRB Document119 Filed08/23/13 Page3 of 6 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ADMINISTRATIVE MOTION REQUESTING CONTINUANCE OF DATES Master File No. 3:12-cv-06003-CRB - 3 - 29287\3831593.1 papers in response to the Consolidated Complaint shall be filed no later than 42 days (six weeks) following the expiration of the stay, or such other time as the Court may direct at that time. 3. In the event Defendants file any motion(s) directed at the Consolidated Complaint, Plaintiff’s opposition brief(s) shall be filed no later than 56 days (eight weeks) after the filing of Defendants’ motion(s). 4. Reply brief(s) on such motion(s) shall be filed no later than 28 days (four weeks) after the filing of Plaintiff’s opposition(s). Dated: August 23, 2013. FARELLA, BRAUN & MARTEL, LLP By: /s/ Neil A. Goteiner Attorneys for Defendant Hewlett-Packard Company Dated: August 23, 2013. DEBEVOISE AND PLIMPTON LLP By: /s/ Ada Fernandez Johnson Attorneys for Defendant Léo Apotheker Dated: August 23, 2013. COOLEY LLP By: /s/ Jeffrey M. Kaban Attorneys for Defendant Margaret C. Whitman Dated: August 23, 2013. O’MELVENY & MYERS LLP By: /s/ Daniel H. Bookin Attorneys for Defendant Shane V. Robinson Case3:12-cv-06003-CRB Document119 Filed08/23/13 Page4 of 6 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ADMINISTRATIVE MOTION REQUESTING CONTINUANCE OF DATES Master File No. 3:12-cv-06003-CRB - 4 - 29287\3831593.1 Dated: August 23, 2013. SHEARMAN & STERLING LLP By: /s/ Sara Ricciardi Attorneys for Defendant Perella Weinberg Partners LP Dated: August 23, 2013. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP By: /s/ Timothy A. Miller Attorneys for Specially Appearing Defendants Raymond J. Lane, Marc L. Andreessen, Shumeet Banerji, Rajiv L. Gupta, John H. Hammergren, Ann M. Livermore, Gary M. Reiner, Patricia F. Russo, G. Kennedy Thompson, Ralph V. Whitworth, Lawrence T. Babbio, Jr., Sari M. Baldauf, and Dominique Senequier ATTESTATION OF CONCURRENCE IN FILING In accordance with the Northern District of California’s General Order No. 45, Section X(B), I hereby attest that I have obtained the concurrence of all other signatories in the filing of this document. Dated: August 23, 2013. FARELLA, BRAUN & MARTEL, LLP By: /s/ Neil A. Goteiner Attorneys for Defendant Hewlett-Packard Company Case3:12-cv-06003-CRB Document119 Filed08/23/13 Page5 of 6 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ADMINISTRATIVE MOTION REQUESTING CONTINUANCE OF DATES Master File No. 3:12-cv-06003-CRB - 5 - 29287\3831593.1 [PROPOSED] ORDER IT IS HEREBY ORDERED THAT good cause exists to support the granting of the Administrative Motion Request Continuance Of Dates In The May 28 Stay Stipulation And Order. Accordingly, the Motion is GRANTED. The Court hereby enters the following revised scheduling Order: 1. If Defendants’ Motion to Stay is denied, Defendants’ answers, motions, or other papers in response to the Consolidated Complaint shall be filed no later than 42 days (six weeks) following issuance of the Court’s Order denying Defendants’ Motion. 2. If Defendants’ Motion to Stay is granted, Defendants’ answers, motions, or other papers in response to the Consolidated Complaint shall be filed no later than 42 days (six weeks) following the expiration of the stay, or such other time as the Court may direct at that time. 3. In the event Defendants file any motion(s) directed at the Consolidated Complaint, Plaintiff’s opposition brief(s) shall be filed no later than 56 days (eight weeks) after the filing of Defendants’ motion(s). 4. Reply brief(s) on such motion(s) shall be filed no later than 28 days (four weeks) after the filing of Plaintiff’s opposition(s). IT IS SO ORDERED. HON. CHARLES R. BREYER UNITED STATES DISTRICT JUDGE Case3:12-cv-06003-CRB Document119 Filed08/23/13 Page6 of 6