Olszewski et al v. Symyx Technologies, Inc. et al, No. 5:2008cv03657 - Document 49 (N.D. Cal. 2009)
Court Description: ORDER GRANTING 38 MOTION TO DISMISS by Magistrate Judge Howard R. Lloyd. (hrllc1, COURT STAFF) (Filed on 10/6/2009)
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Olszewski et al v. Symyx Technologies, Inc. et al Doc. 49 1 ** E-filed October 6, 2009 ** 2 3 4 5 6 For the Northern District of California United States District Court 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 ROBERT OLSZEWSKI, SARA BERTSCH, JACQUELINE MACIA, PHILIP McHALE, and RUSSELL BLACKADAR, individuals, No. C08-03657 HRL ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Plaintiffs, 13 v. [Re: Docket No. 38] 14 15 SYMYX TECHNOLOGIES, INC. and ELSEVIER, INC., corporations, 16 Defendants. ____________________________________/ 17 18 Defendant Symyx Technologies (“Symyx”) acquired MDL Information Systems (“MDL”) 19 from defendant Elsevier, Inc. (“Elsevier”) through a cash-for-stock transaction. Plaintiffs are former 20 MDL employees who were laid off the day after the Sale Agreement between Elsevier and Symyx 21 closed. As part of the layoff, Symyx offered plaintiffs severance benefits under its plan (the 22 “Symyx Plan”) that were less generous than those that had been available from Elsevier (the 23 “Elsevier Plan”). 24 Plaintiffs sued both Elsevier and Symyx on grounds that they improperly denied plaintiffs 25 benefits under the Elsevier Plan, claiming breach of fiduciary duty, breach of the implied covenant 26 of good faith and fair dealing, and promissory estoppel. One plaintiff also pled a federal age 27 discrimination claim. Plaintiffs did not serve the original complaint on defendants. Instead, five 28 months later, they amended it as a matter of course to add state age discrimination claims. Dockets.Justia.com 1 Defendants then filed nearly identical motions to dismiss the First Amended Complaint, which this 2 court granted with leave to amend. The Second Amended Complaint (“SAC”) eliminated the age 3 discrimination claims and repled plaintiffs’ three common law claims as claims under the Employee 4 Retirement Income Security Act (“ERISA”). Defendants now move to dismiss the SAC for failure 5 to state a claim, and they request that this time, the court dismiss the complaint with prejudice. 6 Plaintiffs oppose the motion.1 LEGAL STANDARD 7 On motion, a court may dismiss a complaint for failure to state a claim. Fed. R. Civ. P. 8 For the Northern District of California United States District Court 9 12(b)(6). The federal rules require that a complaint include a “short and plain statement” showing 10 plaintiff is entitled to relief. Fed. R. Civ. P. 8(a)(2). Yet a complaint that “do[es] not permit the 11 court to infer more than the mere possibility of misconduct” fails to show such entitlement. 12 Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1950 (2009). The complaint’s well-pled facts must 13 instead “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 14 U.S. 544, 555 (2007). Consequently, only plausible claims for relief will survive a motion to dismiss. Iqbal, 129 S. 15 16 Ct. at 1950. A claim is plausible if its factual content “allows the court to draw the reasonable 17 inference that the defendant is liable for the misconduct alleged.” Id. at 1949. A plaintiff does not 18 have to provide detailed facts, but the pleading must include “more than an unadorned, the- 19 defendant-unlawfully-harmed-me accusation.” Id. Indeed, allegations that are conclusory or that 20 contradict facts in documents attached to the complaint are “not entitled to be assumed true.” Id. at 21 1951; see also Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). DISCUSSION 22 23 A. Preliminary Matters 24 1. Exhaustion 25 The defendants assert that the complaint fails because the plaintiffs did not plead exhaustion 26 of their administrative remedies. The Symyx Plan includes a robust procedure for appealing 27 decisions concerning benefits, but the Elsevier Plan does not. The plaintiffs have chosen to assert 28 1 Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, all parties who have appeared have expressly consented that all proceedings in this matter may be heard and finally adjudicated by the undersigned. 2 For the Northern District of California United States District Court 1 claims only as to the Elsevier Plan, and as such, a failure to plead exhaustion—when there are no 2 procedures to exhaust—does not bar plaintiffs’ claim. Diaz v. United Agr. Employee Welfare 3 Benefit Plan & Trust, 50 F.3d 1478, 1484 (9th Cir. 1995) (“Inadequacy of remedy is an exception to 4 the exhaustion requirement.”). 5 2. Judicial Notice 6 The defendants request that the court take judicial notice of the contents of Symyx’s 2007 7 10-K Annual Report as filed with the United States Securities and Exchange Commission (“SEC”). 8 Although the Ninth Circuit has found that SEC filings are subject to judicial notice, it has done so in 9 securities fraud actions. Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1064 n.7 10 (9th Cir. 2008). As this matter is instead an ERISA action, the court denies defendants’ request. 11 3. Documents Incorporated by Reference 12 Finally, the defendants ask that the court consider the written Symyx and Elsevier Plan 13 descriptions as part of this motion. In a motion to dismiss, a court typically considers “only 14 allegations contained in the pleadings, exhibits attached to the complaint, and matters properly 15 subject to judicial notice.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). However, “a 16 court may consider a writing referenced in a complaint but not explicitly incorporated therein if the 17 complaint relies on the document and its authenticity is unquestioned.” Id. Plaintiffs did not attach 18 either plan’s description to the SAC, but the SAC refers to both plans and relies on the provisions 19 described within these documents. Plaintiffs do not dispute the authenticity of the documents and 20 agreed at the motion hearing that the court may review them. The court therefore grants defendants’ 21 request to incorporate these documents to the SAC by reference. 22 B. 23 Claim 1: Recovery of Benefits Due, 29 USC § 1132(a)(1)(B) A “participant or beneficiary” in an ERISA plan may file suit “to recover benefits due to him 24 under the terms of his plan.” 29 U.S.C. § 1132(a)(1)(B). Plaintiffs’ first claim is thus against only 25 defendant Elsevier to recover benefits under the Elsevier Plan. Because severance benefits do not 26 vest until termination and plaintiffs were terminated after Symyx purchased MDL, they must plead 27 facts raising a plausible claim that the Elsevier Plan still applied to them when they were terminated. 28 See Grosz-Salomon v. Paul Revere Life Ins. Co., 237 F.3d 1154, 1160 (noting that “an employee’s 3 1 rights under an ERISA welfare benefit plan do not vest unless and until the employer says they do”). 2 Plaintiffs initially argued that the Elsevier plan applied to them because they never became 3 Symyx employees. (SAC ¶¶ 6,16; Opp’n 13.) At the hearing, however, they reversed course and 4 asserted that the main issue was instead whether the Elsevier Plan applied to them when they were 5 laid off, regardless of who employed them at the time. Elsevier argues that plaintiffs were always 6 MDL employees, and that in any case, benefits under the Elsevier Plan were discretionary and not 7 guaranteed post-sale. No discovery is necessary for this court to determine that the Elsevier Plan is discretionary, For the Northern District of California United States District Court 8 9 and the parties do not dispute this characterization.2 The “case-by-case” language in the Elsevier 10 Plan indicates discretion, and it is sufficient that it only states that “the company” will exercise the 11 discretion. Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 79–80 (1995). Plaintiffs assert 12 that nevertheless, discovery is required because this court must review Elsevier’s application of 13 discretion de novo. This is an inaccurate statement of the case law. A court will review denial of 14 benefit decisions de novo only when the plan does not provide discretion. Firestone Tire & Rubber 15 Co. v. Bruch, 489 U.S. 101, 115 (1989) (“[A] denial of benefits challenged under § 1132(a)(1)(B) is 16 to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary 17 discretionary authority to determine eligibility for benefits or to construe the terms of the plan.”). However, plaintiffs argue that they also need discovery to learn whether Elsevier’s past 18 19 practice might show they were entitled to benefits under the Elsevier Plan, and cite to Donovan v. 20 Dillingham, 688 F.2d 1367 (11th Cir. 1982), in support. Yet contrary to plaintiffs’ assertion, 21 Donovan does not speak to determining the “reality” of a plan “[w]here the written document for an 22 ERISA plan fails to meet the statutory requirements.” (Opp’n 15:1–2.) Instead, Donovan merely 23 provided a test for determining whether an ERISA plan is “established,” and went no further. Id. at 24 1373, 1375 n.14, 1376 (declining to determine whether plans were “maintained” because the lower 25 court had dismissed the case for lack of subject-matter jurisdiction on grounds that there was no 26 plan). Donovan even noted that a written plan was not necessary to establish an ERISA plan. Id. at 27 1372. As there is no dispute in the instant case that the Elsevier Plan is an ERISA plan, plaintiffs’ 28 2 At the outset of the motion hearing, plaintiffs were seemingly unwilling to concede this point— one that they had already acknowledged in their motion papers. (See Opp’n 15:5–7.) However, by the end of the hearing, plaintiffs again agreed that the Elsevier Plan was discretionary. 4 1 For the Northern District of California United States District Court 2 reliance on Donovan is unavailing. The other cases upon which plaintiffs rely also do not support their claims. Plaintiffs 3 primarily cite to cases that are distinguishable as they involve obligatory severance plans or do not 4 involve stock acquisitions. See, e.g., Bedinghaus v. Modern Graphic Arts, 15 F.3d 1027 (11th Cir. 5 1994) (asset acquisition and obligatory plan); Bellino v. Schlumberger Techs., Inc., 944 F.2d 26 (1st 6 Cir. 1991) (no discretionary authority). Plaintiffs also rely extensively on Algie v. RCA Global 7 Commc’ns, Inc., 891 F. Supp. 839 (S.D.N.Y. 1994); aff’d, 60 F.3d 956 (2d Cir. 1995). In Algie, the 8 plaintiffs were employees of a subsidiary that was purchased through a stock acquisition. After 9 closing, the new parent company transferred the subsidiary’s employees to a second subsidiary. 10 Algie, 891 F. Supp. at 843–46. The plaintiffs, who were laid off during this process, successfully 11 argued that they qualified for severance benefits under the original subsidiary’s plan. Id. 12 However, plaintiffs’ reliance on Algie in this case is misplaced as it necessarily ignores 13 several distinguishing facts. First, unlike the Elsevier Plan, it appears that the severance plan at 14 issue in Algie was not discretionary. Algie, 891 F. Supp. at 844 (noting that the plan stated benefits 15 “would” be paid in certain situations). Second, the plan in Algie was sponsored by the purchased 16 subsidiary—i.e., the equivalent of MDL—not the former parent corporation. Algie, 60 F.3d at 961. 17 In contrast, the Elsevier Plan was sponsored by MDL’s old parent company, Elsevier. (SAC ¶ 4 18 (“Elsevier paid the severance benefits out of its own general funds and administered the plan 19 directly.”).) Third, the decision in Algie was premised on a jury finding that the plaintiffs were still 20 employed with the company that sponsored the severance plan at the time of their termination. Id. 21 In the instant case, plaintiffs have raised no plausible argument that as MDL employees, they were 22 still covered by Elsevier’s plan following Symyx’s acquisition of MDL. It is undisputed that 23 Symyx’s acquisition of MDL was a cash-for-stock transaction. (Sale Agreement §§ 1.1–1.2; SAC ¶ 24 1.) Plaintiffs acknowledge that Symyx acquired 100% of MDL stock and even that Elsevier is the 25 “former owner of MDL.” (SAC ¶¶ 1, 10.) The Second Circuit noted that in other cases, “the sale of 26 the operating unit for which the employees worked ended their coverage under severance benefit 27 plans sponsored by the old parent corporation.” Algie, 60 F.3d at 961. Algie thus does not support 28 plaintiffs’ claim that the Elsevier Plan still applied to them at termination. 5 The plain language of the Sale Agreement further encumbers plaintiffs’ attempt to raise a 1 2 more than speculative claim that the Elsevier Plan applied to them at termination. The Sale 3 Agreement states that “effective as of the Closing Date, the participation of each Employee . . . 4 under the Employee Benefit Plans . . . shall cease.” (Sale Agreement § 4.4(b).) It further states that 5 “none of the Employee Benefit Plans will be transferred by [Elsevier] . . . or made available to the 6 employees of the MDL Group Companies by [Elsevier] . . . from and after the Closing.” (Sale 7 Agreement § 4.4(b).) Plaintiffs have therefore failed to state a plausible claim for relief under 29 8 U.S.C. § 1132(a)(1)(B). 9 C. ERISA provides that “[i]t shall be unlawful for any person to discharge . . . or discriminate 10 For the Northern District of California United States District Court Claim 2: Interference with Protected Rights, 29 U.S.C. § 1140 11 against a participant . . . for the purpose of interfering with the attainment of any right to which such 12 participant may become entitled under the plan.” 29 U.S.C. § 1140. Plaintiffs allege that as part of 13 Symyx’s acquisition of MDL, both defendants “jointly engaged” in the disclosure of information 14 about MDL employees, including lengths of service and the benefits available under the Elsevier 15 Plan. (SAC ¶ 3.) They say that once defendants identified the MDL employees with the longest 16 tenure, they “jointly and cooperatively determined to terminate a disproportionate number of such 17 employees . . . for the purpose of sharply reducing the severance benefits . . . due to such employees 18 under the Elsevier severance plan.” (SAC ¶¶ 3–4.) Plaintiffs argue that this conduct, along with 19 defendants’ attempt to “subject them to the less generous Symyx severance plan,”3 interfered with 20 their rights to Elsevier Plan benefits in violation of ERISA. (SAC ¶ 4, 20.) Defendants assert that the information they disclosed about employees “is common in all 21 22 acquisitions” and does not suggest any improper intent. (Mot. 16.) They claim that offering 23 plaintiffs severance under the Symyx Plan was not discriminatory as it applied to all MDL 24 employees—not just those with the longest tenure. They also argue that plaintiffs are engaged in a 25 “[v]ain effort to create ‘factual issues’ where none exist.” (Reply 1.) A review of the Sale Agreement indicates that it required the very disclosures that plaintiffs 26 27 allege were inappropriate. The Sale Agreement called for a list of all MDL employees that included 28 3 The Elsevier Plan permitted two weeks of pay for each year of service, up to fifty-two weeks. (SAC ¶ 2; Elsevier Plan 20.) The Symyx Plan provided twenty-four weeks for Director-level positions and above and sixteen weeks for other positions. (SAC ¶ 7; Symyx Plan App’x B.) 6 1 the “employee’s job title [and] current salary and bonus amounts.” (Sale Agreement § 4.4(a).) 2 Another provision required disclosure of each employee benefit plan, including severance plans, for 3 the benefit of MDL employees. (Sale Agreement § 2.8(a).) Together, these provisions reflect not a 4 conspiracy to deny plaintiffs benefits under the Elsevier Plan, but rather a desire to collect standard 5 employment information about MDL employees as part of the acquisition. For the Northern District of California United States District Court 6 Furthermore, the terms of the Symyx Plan do not support plaintiffs’ claim that defendants 7 conspired to apply it only to long-term MDL employees in order to save money. Plaintiffs say that 8 the “far less generous Symyx severance plan” covered “only those MDL employees, like plaintiffs, 9 who had accrued such lengthy service under the Elsevier severance plan and were to be terminated 10 immediately upon the closing of the acquisition.” (SAC ¶ 4; see also SAC ¶ 7 (Symyx Plan was 11 “produced solely to apply to the former Elsevier employees”); SAC ¶ 16 (describing the Symyx 12 Plan as a “secretly developed Symyx severance program, just for them” and “the new Symyx 13 custom plan for instantly terminated MDL employees”).) However, the Symyx Plan specifically 14 states that it applied to other subsidiaries in addition to MDL. (Symyx Plan App’x B.) As a result, 15 just as with their First Amended Complaint, plaintiffs fail to assert facts “to raise a reasonable 16 expectation that discovery will reveal evidence of illegal agreement” between the defendants. Bell 17 Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007). 18 Yet plaintiffs insist that because their claim is not “fantastic,” it should survive this motion 19 to dismiss. (Opp’n 18.) To support this argument, plaintiffs willfully ignore recent Supreme Court 20 precedent and cite outdated law more favorable to them. In Twombly, the Supreme Court rejected 21 the “no set of facts” standard from Conley v. Gibson upon which plaintiffs rely. Twombly, 550 U.S. 22 at 562–64 (2007). The Court reiterated this abrogation in Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 23 1937, 1944 (2009) (noting that Twombly “retired” Conley’s test). Plaintiffs’ insistence on including 24 lengthy citations to Conley is simply an attempt to avoid the law as it is now. To be clear, the 25 standard is no longer whether any facts whatsoever might support plaintiffs’ claim, but whether the 26 facts as pled show a plausible claim. Plaintiffs’ assertions of a conspiracy between Symyx and 27 Elsevier are conclusory and are contradicted by documents upon which their complaint relies. 28 Consequently, plaintiffs do not raise a plausible claim for relief under 29 U.S.C. § 1140. 7 1 2 For the Northern District of California Claim 3: Fiduciary Breach/Misrepresentation & Nondisclosure, 29 USC § 1132(a)(3) Plaintiffs’ third and final claim is for denied benefits against only defendant Elsevier. 3 Section 1132(a)(3) of ERISA allows “a participant, beneficiary, or fiduciary . . . to obtain other 4 appropriate equitable relief (i) to redress . . . violations or (ii) to enforce any provisions of this 5 subchapter or the terms of the plan.” 29 U.S.C. § 1132(a)(3). This is a “catchall provision” that 6 offers relief that § 1132 “does not elsewhere adequately remedy.” Great-West Life & Annuity Ins. 7 Co. v. Knudson, 534 U.S. 204, 221 n.5 (2002). In the Ninth Circuit, a remedy under this section is 8 not available if the plaintiffs also assert specific claims under § 1132(a)(1)(B). Ford v. MCI 9 Commc’ns Corp. Health & Welfare Plan, 399 F.3d 1076, 1083 (9th Cir. 2005). 10 United States District Court D. Elsevier argues that plaintiffs are barred from asserting a claim under this provision because 11 they already asked for benefits under § 1132(a)(1)(B). Plaintiffs counter that they may plead 12 alternative mechanisms for relief, and the mere fact that they are asking for money does not bar their 13 claim. The Supreme Court has noted that claims asking for a monetary payment “almost 14 invariably” involve money damages, which is “the classic form of legal relief.” Great-West, 543 15 U.S. at 209–10 (citations omitted). Whether a requested remedy is equitable or legal, however, 16 depends on the basis of the claim and the nature of the remedy. Id. at 213. Plaintiffs style their 17 remedy here as “restitution,” but request that restitution “in the amount of the severance benefits 18 denied each plaintiff.” (SAC 13.) The basis of the claim is that plaintiffs did not receive benefits 19 under the Elsevier Plan, and the nature of their proposed remedy is for Elsevier to pay them those 20 benefits in cash. As pled, this is not an equitable remedy. A § 1132(a)(3) claim is therefore 21 unavailable to plaintiffs as they have already requested the same relief under § 1132(a)(1)(B). 22 Even if plaintiffs’ proposed remedy were equitable, § 1132(a)(3) would still only apply to 23 Elsevier’s actions as “an ERISA fiduciary acting in its fiduciary capacity.” Ford, 399 F.3d at 24 1082–83 (quoting Mathews v. Chevron Corp., 362 F.3d 1172, 1178 (9th Cir. 2004)); see also 25 Pegram v. Herdrich, 530 U.S. 211, 226 (2000) (holding that “the threshold question” in a claim for 26 breach of fiduciary duty is whether the party “was performing a fiduciary function[] when taking the 27 action subject to complaint”). A party is a fiduciary “with respect to an ERISA-qualified plan to the 28 extent he ‘exercises any authority or control respecting management or disposition of its assets.’ ” 8 1 Trs. of S. Cal. Bakery Drivers Sec. Fund v. Middleton, 474 F.3d 642, 645 (9th Cir. 2007) (quoting 2 29 U.S.C. § 1002(21)(A)). Plaintiffs allege that Elsevier failed to inform them of their rights and benefits under the 3 4 Elsevier Plan and misrepresented the plan’s benefits. (SAC ¶ 23.) They do not attack the Elsevier 5 Plan directly—indeed, the Plan’s written description states that severance benefits were not 6 guaranteed in the event that a business entity such as MDL was sold. (Elsevier Plan 19–20.) 7 Instead, plaintiffs claim that Elsevier published a Sale Agreement that misrepresented what would 8 happen after closing and that Elsevier failed to tell them that Symyx planned to terminate their 9 employment and offer less severance immediately following closing. The plaintiffs’ argument relies For the Northern District of California United States District Court 10 on section 4.4(a) of the Sale Agreement, which reads: On the closing date, Buyer agrees to cause the MDL Group Companies to employ all Employees employed by an MDL Group Company . . . with salaries, annual target bonus amounts and benefits that are substantially comparable in the aggregate to the compensation and benefits available to such Employees as of the date [of this agreement]. 11 12 13 14 (Sale Agreement § 4.4(a).) Yet this provision is not inapposite to what actually took place— 15 plaintiffs were employed by MDL on the closing date. Furthermore, this section does not speak to 16 what was to occur following acquisition.4 A later section in the Sale Agreement even raises the 17 possibility of layoffs. (Sale Agreement § 4.4(d) (“Following the Closing Date, Buyer shall cause 18 the MDL Group Companies to assume and discharge all liabilities and obligations for the provision 19 of notice or payment in lieu of notice . . . under the WARN Act . . . arising as a result of the 20 transactions contemplated by this Agreement.”).) In any event, these provisions do not implicate Elsevier as an ERISA fiduciary. Neither 21 22 Elsevier’s knowledge about a third party’s employment decisions nor the publication of the Sale 23 Agreement involve its fiduciary duties in administering the Elsevier Plan. The primary purpose of 24 the Sale Agreement was not to communicate information about benefit plans, but rather to secure 25 the sale of MDL stock. Contra Varity Corp. v. Howe, 516 U.S. 489; Mathews v. Chevron, 362 F.3d 26 1172 (9th Cir. 2004) (both finding that the primary purpose of the communication at issue was plan- 27 related). What Symyx did after it became the owner of MDL—even if Elsevier was aware of it in 28 4 Plaintiffs frequently misstate this provision, claiming that the Sale Agreement “in fact” states that Symyx would employ all MDL employees “following the acquisition.” (Opp’n 6.) 9 1 advance—has no bearing on the administration of the Elsevier Plan. In addition, the provisions of a 2 separate company’s ERISA plan, over which Elsevier had no authority or control, do not involve 3 Elsevier’s fiduciary functions under its own plan. Consequently, the plaintiffs’ allegations in their 4 § 1132(a)(3) claim do not implicate Elsevier’s ERISA fiduciary functions. CONCLUSION 5 For the Northern District of California United States District Court 6 Plaintiffs insist that they must have discovery in this case. But a court will not “unlock the 7 doors of discovery for a plaintiff armed with nothing more than conclusions.” Ashcroft v. Iqbal, --- 8 U.S. ----,129 S. Ct. 1937, 1950 (2009). Plaintiffs here have only raised speculative conclusions that 9 are not plausible given the facts pled and the documents upon which they rely. 10 Plaintiffs amended their complaint once as a matter of course, and this court granted them 11 the opportunity to amend their complaint a second time to address deficiencies that, nevertheless, 12 still persist in the SAC. The court does not believe that allowing the plaintiffs a chance to amend 13 the complaint for a third time would make their claims any more plausible. Consequently, the court 14 GRANTS defendants’ motion to dismiss WITH PREJUDICE. Judgment will be entered for 15 defendants. 16 17 IT IS SO ORDERED. 18 Dated: October 6, 2009 19 HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 10 1 C08-03657 Notice will be electronically mailed to: 2 Benjamin Hansel Kleine Laura Ann Terlouw Richard E. Levine Steven L. Friedlander 3 bkleine@cooley.com, kdavis@cooley.com lterlouw@cooley.com rlevine@levinebakerlaw.com friedlanders@cooley.com, keudaley@cooley.com 4 5 Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court’s CM/ECF program. 6 7 8 9 For the Northern District of California United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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