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No. 14-cv-1581 LHK (HRL)
Plaintiffs’ Notice of Motion and Motion; Supporting Memorandum
BOTTINI & BOTTINI, INC.
Francis A. Bottini, Jr. (SBN 175783)
fbottini@bottinilaw.com
Yury A. Kolesnikov (SBN 271173)
ykolesnikov@bottinilaw.com
7817 Ivanhoe Avenue, Suite 102
La Jolla, California 92037
Telephone: (858) 914-2001
Facsimile: (858) 914-2002
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
LEE VOSS, on behalf of himself and all
others similarly situated and derivatively
on behalf of MARVELL TECHNOLOGY
GROUP, LTD.,
Plaintiff,
vs.
SEHAT SUTARDJA, JUERGEN
GROMER, JOHN G. KASSAKIAN,
ARTURO KRUEGER, RANDHIR
THAKUR, PANTAS SUTARDJA, WEILI
DAI, and DOES 1-20,
Defendants,
– and –
MARVELL TECHNOLOGY GROUP, LTD.,
Nominal Defendant.
Case No. 14-cv-1581 LHK (HRL)
Plaintiffs’ Notice of Motion and
Motion for:
(1) Consolidation of Related
Cases;
(2) Appointment of Plaintiffs’
Lead Counsel; and
(3) Setting a Deadline to
Respond
Supporting Memorandum of
Points and Authorities
(FED. R. CIV. P. 42)
Hearing Date:
Time:
Courtroom:
Judge:
September 25, 2014
1:30 p.m.
8 (San Jose Division)
Hon. Lucy H. Koh
[Additional caption on the next page]
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No. 14-cv-1581 LHK (HRL)
Plaintiffs’ Notice of Motion and Motion; Supporting Memorandum
SEBASTIANO D’ARRIGO, on behalf of
himself and all others similarly situated
and derivatively on behalf of Marvell
Technology Group, Ltd.,
Plaintiff,
vs.
SEHAT SUTARDJA, JUERGEN
GROMER, JOHN G. KASSAKIAN,
ARTURO KRUEGER, RANDHIR
THAKUR, PANTAS SUTARDJA, WEILI
DAI, and DOES 1-20,
Defendants,
- and -
MARVELL TECHNOLOGY GROUP, LTD.,
Nominal Defendant.
Case No. 14-cv-2523 PSG
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1 No. 14-cv-1581 LHK (HRL)
Plaintiffs’ Notice of Motion and Motion; Supporting Memorandum
NOTICE OF MOTION AND MOTION
TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
PLEASE TAKE NOTICE that, under Federal Rule of Civil Procedure 42, Plaintiff
Lee Voss and Plaintiff Sebastiano D’Arrigo will and hereby do move this Court on
September 25, 2014, at 1:30 p.m., or as soon thereafter as the matter may be heard before
the Honorable Lucy H. Koh, in Courtroom 8 of the United States District Court for the
Northern District of California, San Jose Division, located at 280 South 1st Street, San
Jose, California 95113, for an order:
consolidating the above-captioned actions;
appointing Bottini & Bottini, Inc. as plaintiffs’ lead counsel; and
setting a deadline for Defendants to answer or otherwise respond to the
complaints.1
The details of the relief sought are set forth below and in the accompanying
proposed order. Plaintiffs have discussed with Defendants regarding the relief sought in
this motion. Defendants are not expected to oppose this motion.
This motion is based on the following memorandum of points and authorities, the
accompanying Declaration of Francis A. Bottini, Jr. with Exhibit A, and all other papers
and proceedings in this action.
MEMORANDUM OF POINTS AND AUTHORITIES
I. Issues Presented
Issue 1: Rule 42(a) authorizes the Court to consolidate actions involving
common issues of law or fact. Voss and D’Arrigo involve the same Defendants, arise out
of the same transactions and events, and assert the same claims. Should the Court
consolidate these actions?
1 Defendants are Nominal Defendant Marvell Technology Group, Ltd. (“Marvell”)
and the Individual Defendants, including Sehat Sutardja, Juergen Gromer, John G.
Kassakian, Arturo Krueger, Randhir Thakur, Pantas Sutardja, and Weili Dai.
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2 No. 14-cv-1581 LHK (HRL)
Plaintiffs’ Notice of Motion and Motion; Supporting Memorandum
Issue 2: The Court has broad authority to appoint lead counsel to ensure
efficiency and orderly proceedings in complex actions. Counsel for both plaintiffs here,
Bottini & Bottini, Inc., has in-depth experience in shareholder derivative litigation and is
committed to devoting all necessary resources to vigorously prosecuting plaintiffs’ claims.
Should the Court appoint Bottini & Bottini, Inc. as lead counsel for plaintiffs?
As explained below, the Court should answer both questions in the affirmative.
II. Voss and D’Arrigo Are Related
1. On April 7, 2014, Plaintiff Voss filed a derivative and class action complaint
on behalf of Marvell and its shareholders against the Individual Defendants. Voss has
been assigned to this Court. Based on the parties’ stipulation, Defendants’ response to
the Voss complaint is due July 23, 2014. Voss Dkt. No. 12.
2. On June 2, 2014, Plaintiff D’Arrigo filed a derivative and class action
complaint on behalf of Marvell and its shareholders against the same Individual
Defendants. D’Arrigo has been assigned to the Honorable Paul Singh Grewal.
3. Voss and D’Arrigo involve the same Defendants and arise out of the same
transactions and events. Plaintiffs allege that the Individual Defendants violated state
and federal law by willfully infringing patents held by Carnegie Mellon University, and
that, as a result of the Individual Defendants’ misconduct, a judgment in excess of $1.5
billion has been entered against Marvell in the United States District Court for the
Western District of Pennsylvania. Based on these allegations, Plaintiffs in both Voss and
D’Arrigo assert identical direct and derivative claims for breaches of fiduciary duties and
unjust enrichment on behalf of Marvell and its shareholders.
4. On June 25, 2014, Defendants’ moved for administrative relief under Civil
Local Rules 3-12 and 7-11 for a finding of relatedness and for reassignment of D’Arrigo to
this Court. See Dkt. No. 21. On June 26, 2014, plaintiffs submitted a statement of
support for Defendants’ motion for administrative relief, consenting to the reassignment
of D’Arrigo to this Court. That motion is pending.
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3 No. 14-cv-1581 LHK (HRL)
Plaintiffs’ Notice of Motion and Motion; Supporting Memorandum
III. Voss and D’Arrigo Should Be Consolidated
5. Rule 42 permits the Court to consolidate cases that involve a common
question of law or fact, for the purposes of “avoid[ing] unnecessary costs and delay.”
FED. R. CIV. P. 42(a). The Court has broad discretion to consolidate cases under Rule 42.
See In re Adams Apple, Inc., 829 F.2d 1484, 1487 (9th Cir. 1987). In determining
whether to consolidate cases, the court weighs the interest in judicial convenience against
the potential for delay, confusion, and prejudice caused by consolidation. See Huene v.
United States, 743 F.2d 703, 704 (9th Cir. 1984).
6. Here, Voss and D’Arrigo involve common issues of law and fact because
they are both shareholder derivative and class actions, involving the same Defendants,
arising out of the same transactions and events, and asserting the same claims.
Consolidation of Voss and D’Arrigo will promote judicial economy and will avoid delay
and confusion. See Miami Police Relief & Pension Fund v. Fusion-io, Inc., No. 14-cv-
0242-LHK, 2014 WL 2604991, at *3 (N.D. Cal. June 10, 2014) (Koh, J.) (consolidating
shareholder class actions because they “arise from the same conduct by Defendants, and
bring the same causes of action against the same Defendants”). Moreover, consolidation
will result in no prejudice to any party, as no opposition to consolidation is expected from
Defendants. See id. (granting motion to consolidate and noting the absence of
opposition).
7. Accordingly, the Court should therefore consolidate Voss and D’Arrigo for
all purposes, including trial. See Hacker v. Peterschmidt, No. C 06-3468, 2006 WL
2925683, at *3 (N.D. Cal. Oct. 12, 2006) (granting an unopposed motion to consolidate
related derivative actions); see also FED. R. CIV. P. 42(a). Upon consolidation, the
complaint in D’Arrigo should be designated as the operative complaint.
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4 No. 14-cv-1581 LHK (HRL)
Plaintiffs’ Notice of Motion and Motion; Supporting Memorandum
IV. Bottini & Bottini, Inc. Should Be Appointed as Lead Counsel
8. As the Ninth Circuit held in Vincent v. Hughes Air West, Inc., the Court has
the inherent power to appoint lead counsel to supervise and coordinate prosecution of a
case. See 557 F.2d 759, 774 (9th Cir. 1977). The “benefits achieved by consolidation
and the appointment of [lead] counsel” include “elimination of duplication and
repetition” by “channel[ling]” motion practice and discovery proceedings through a single
law firm. Id. (citing MacAlister v. Guterma, 263 F.2d 65 (2d Cir. 1958)).
9. Chief among the factors Courts consider for appointment of lead counsel is
proposed lead counsel’s capabilities and experience. See In re Oclaro, Inc. Derivative
Litig., No. C-11-3176 EMC, 2011 WL 4345099, at *2 (N.D. Cal. Sept. 14, 2011) (listing
factors for consideration).
10. As demonstrated in the Declaration of Francis A. Bottini, Jr. and Exhibit A,
Bottini & Bottini, Inc., counsel for Plaintiff Voss and Plaintiff D’Arrigo, has in-depth
experience in litigating shareholder derivative actions. The attorneys at Bottini &
Bottini, Inc. have served as lead counsel in numerous shareholder derivative actions in
state and federal courts in California and beyond. See Bottini Decl. ¶ 4; Ex. A.
Moreover, Bottini & Bottini, Inc. is committed to devoting all necessary resources to
vigorously prosecuting these derivative actions. Bottini Decl. ¶ 5.
11. It is anticipated that Defendants will take no position with respect to
appointment of Lead Counsel.
12. Accordingly, the Court should appoint Bottini & Bottini, Inc. as Lead
Counsel for Plaintiffs.
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5 No. 14-cv-1581 LHK (HRL)
Plaintiffs’ Notice of Motion and Motion; Supporting Memorandum
V. The Court Should Issue an Order Granting the Following Relief
13. Based on the foregoing, plaintiffs respectfully request that the Court grant
this motion and enter the accompanying proposed order as follows:
(a) The Voss and D’Arrigo actions shall be consolidated under Federal
Rule of Civil Procedure 42(a) for all purposes, including trial, under Lead Case No.
14-cv-1581 LHK (HRL), and shall bear the following caption:
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
IN RE MARVELL TECHNOLOGY
GROUP, LTD. SHAREHOLDER
LITIGATION
)
)
)
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No. 14-cv-1581 LHK (HRL)
This document relates to:
ALL ACTIONS.
)
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(b) The complaint in D’Arrigo shall be designated as the operative
complaint in the consolidated action.
(c) Bottini & Bottini, Inc. shall serve as Lead Counsel for plaintiffs in the
consolidated action.
(d) Plaintiffs’ Lead Counsel shall have the sole authority to speak for
plaintiffs in all matters regarding pre-trial procedure, trial, and settlement
negotiations and shall make all work assignments in such a manner as to facilitate
the orderly and efficient prosecution of this litigation and to avoid duplicative or
unproductive effort.
(e) Plaintiffs’ Lead Counsel will be responsible for coordinating all
activities and appearances on behalf of plaintiffs. No motion, request for
discovery, or other pre-trial or trial proceedings will be initiated or filed by any
plaintiffs except through plaintiffs’ Lead Counsel.
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6 No. 14-cv-1581 LHK (HRL)
Plaintiffs’ Notice of Motion and Motion; Supporting Memorandum
(f) Plaintiffs’ Lead Counsel shall be available and responsible for
communication to and from this Court, including distributing orders and other
directions from the Court to counsel. Plaintiffs’ Lead Counsel shall also be
responsible for creating and maintaining a master service list of all parties and
their respective counsel.
(g) Defendants’ counsel may rely upon all agreements made with
plaintiffs’ Lead Counsel, or other duly authorized representative of plaintiffs’ Lead
Counsel, and such agreements shall be binding on all plaintiffs.
(h) Defendants shall respond to the operative complaint in the
consolidated action on or before August 6, 2014, or ten days following the entry of
the order deciding this motion, whichever date is later.
(i) The order for consolidation and appointment of Lead Counsel shall
apply to each case arising out of the same, or substantially the same, transactions
or events as these cases, which is subsequently filed in, remanded to, reassigned to,
or transferred to this Court. When a case, which properly belongs as part of In re
Marvell Technology Group, Ltd. Shareholder Litigation, Lead Case No. 14-cv-1581
LHK (HRL), is hereafter filed in this District, reassigned to the Court, or
transferred here from another court, the Court requests the assistance of counsel
in calling to the attention of the Clerk of the Court the filing, reassignment, or
transfer of such a case. Counsel are to assist in assuring that counsel in
subsequent actions receive notice of the order for consolidation and for
appointment of Lead Counsel.
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7 No. 14-cv-1581 LHK (HRL)
Plaintiffs’ Notice of Motion and Motion; Supporting Memorandum
Dated: June 26, 2014
Respectfully submitted,
BOTTINI & BOTTINI, INC.
Francis A. Bottini, Jr. (SBN 175783)
Yury A. Kolesnikov (SBN 271173)
s/ Francis A. Bottini, Jr.
Francis A. Bottini, Jr.
7817 Ivanhoe Avenue, Suite 102
La Jolla, California 92037
Telephone: (858) 914-2001
Facsimile: (858) 914-2002
Attorneys for Plaintiffs
Lee Voss and Sebastiano D’Arrigo
Case5:14-cv-01581-LHK Document23 Filed06/26/14 Page9 of 9
