IN RE BROCADE COMMUNICATIONS SYSTEMS, INC. DERIVATIVE LITIGATION, No. 3:2005cv02233 - Document 462 (N.D. Cal. 2009)
Court Description: ORDER AND ENTRY OF FINAL JUDGMENT re Dismissal of Remaining Claims against Neal Dempsey and Seth Neiman and their prospective counterclaimes re 460 Stipulation, filed by Brocade Communications Systems, Inc. Signed by Judge Charles R. Breyer on 10/29/09. (be, COURT STAFF) (Filed on 10/30/2009) Modified on 11/2/2009 (mcl, COURT STAFF).
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IN RE BROCADE COMMUNICATIONS SYSTEMS, INC. DERIVATIVE LITIGATION 1 2 3 4 5 6 7 8 9 10 11 Doc. 462 DEWEY & LEBOEUF LLP Barbara A. Caulfield (bcaulfield@dl.com) SBN 108999 Peter E. Root (proot@dl.com) SBN 142348 1950 University Avenue, Suite 500 East Palo Alto, California 94303 Telephone: (650) 845-7000 Facsimile: (650) 845-7333 DEWEY & LEBOEUF LLP 1101 New York Avenue, N.W., Suite 1100 Washington, DC 20005 Telephone: (202) 346-8000 Facsimile: (202) 346-8102 DEWEY & LEBOEUF LLP 1301 Avenue of the Americas New York, New York 10019 Telephone: (212) 259-8000 Facsimile: (212) 259-6333 Attorneys for Plaintiff Brocade Communications Systems, Inc. 12 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN FRANCISCO DIVISION 16 17 18 19 20 21 22 IN RE BROCADE COMMUNICATIONS SYSTEMS, INC. DERIVATIVE LITIGATION This Document Relates to: ALL ACTIONS Case No. C 05-02233 CRB STIPULATION AND [PROPOSED] ORDER AND ENTRY OF FINAL JUDGMENT UNDER FED. R. CIV. P. 54(b) RE: DISMISSAL OF REMAINING CLAIMS AGAINST DEFENDANTS NEAL DEMPSEY AND SETH D. NEIMAN AND THEIR RESPECTIVE COUNTERCLAIMS PURSUANT TO SETTLEMENTS 23 24 25 26 27 28 STIPULATION AND PROPOSED ORDER RE: DISMISSAL OF CLAIMS AS TO DEMPSEY AND NEIMAN CASE NO.: C-05-02233 CRB Dockets.Justia.com 1 2 3 This Stipulation is made by and between plaintiff Brocade Communications Systems, Inc. 4 (“Brocade”), through the Special Litigation Committee of its Board of Directors (the “SLC”), and 5 defendants Neal Dempsey (“Dempsey”) and Seth D. Neiman (“Neiman”). 6 RECITALS 7 WHEREAS, beginning in June 2005, certain shareholder derivative actions were commenced 8 in the United States District Court for the Northern District of California asserting a variety of claims 9 arising from Brocade’s historical equity options compensation practices and related matters, which 10 actions were assigned to this Court and consolidated as In re Brocade Communications Systems, Inc. 11 Derivative Litigation, No. 05-cv-2233-CRB (the “Consolidated Federal Derivative Action”); 12 WHEREAS the SLC, acting on behalf of Brocade, filed a Second Amended Complaint in the 13 Consolidated Federal Derivative Action on August 1, 2008, asserting claims on behalf of Brocade 14 against ten defendants, including Dempsey and Neiman; 15 16 17 WHEREAS, on October 6, 2008, Dempsey and Neiman and the other eight defendants each filed a motion to dismiss the Second Amended Complaint; WHEREAS, on December 12, 2008, this Court issued an Order, supplemented by an opinion 18 issued January 6, 2009, in which the Court dismissed all claims against Dempsey and Neiman with 19 the exception of the Fifth, Seventh, and Eighth, and Causes of Action alleging various breaches of 20 fiduciary duty; 21 WHEREAS, on January 23, 2009, Dempsey filed an answer to the Second Amended 22 Complaint and asserted Counterclaims against Brocade for breach of contract (Count I), negligent 23 misrepresentation (Count II), declaratory judgment (Counts III and IV), and specific performance 24 (Counts V and VI); 25 WHEREAS, on January 23, 2009, Neiman filed an answer to the Second Amended 26 Complaint and asserted Counterclaims against Brocade for breach of contract (Count I), negligent 27 28 -1STIPULATION AND PROPOSED ORDER RE: DISMISSAL OF CLAIMS AS TO DEMPSEY AND NEIMAN CASE NO.: C-05-02233 CRB 1 misrepresentation (Count II), declaratory judgment (Count III), and specific performance (Count 2 IV); 3 WHEREAS Brocade and Dempsey entered into a settlement agreement on May 14, 2009 (the 4 “Dempsey Settlement Agreement”), and Brocade and Neiman entered into a settlement agreement 5 on May 18, 2009 (the “Neiman Settlement Agreement”) (collectively, the “Settlement 6 Agreements”); 7 WHEREAS, on June 25, 2009, Brocade submitted a copy of the Settlement Agreements to 8 this Court, and filed a motion for approval of these settlements and entry of a Complete Bar Order 9 barring contribution claims as to each of Dempsey and Neiman; 10 11 12 WHEREAS, on July 17, 2009, this Court entered an Order Approving Settlement And Entry Of Complete Bar Order as to each of Dempsey and Neiman (the “Complete Bar Orders”); WHEREAS the Complete Bar Orders provide that, upon entry of the Complete Bar Orders, 13 Brocade, Dempsey and Neiman will file a stipulation and proposed order for dismissal with 14 prejudice of Brocade’s remaining claims against Dempsey and Neiman, and Dempsey’s and 15 Neiman’s respective Counterclaims against Brocade, in the Consolidated Federal Derivative Action; 16 WHEREAS the Settlement Agreements provide that parties thereto will request the Court to 17 retain continuing and exclusive jurisdiction to enforce the Complete Bar Orders and the terms of the 18 Settlement Agreements; 19 WHEREAS Brocade, Dempsey, and Neiman request that the Court enter Final Judgment in 20 accordance with the Settlement Agreements, the Complete Bar Orders and this [Proposed] Order 21 pursuant to Federal Rule of Civil Procedure 54(b); 22 WHEREAS Brocade, Dempsey, and Neiman request that the Court retain exclusive 23 jurisdiction to construe or enforce the terms of the Settlement Agreements, the Complete Bar Orders, 24 and this [Proposed] Order and Final Judgment under the authority of Kokkonen v. Guardian Life 25 Insurance Co. of America, 511 U.S. 375, 381-82 (1994). 26 27 28 NOW, THEREFORE, Brocade, Dempsey, and Neiman, through their respective undersigned -2STIPULATION AND PROPOSED ORDER RE: DISMISSAL OF CLAIMS AS TO DEMPSEY AND NEIMAN CASE NO.: C-05-02233 CRB 1 2 counsel, hereby stipulate, and the Court now orders, as follows: 1. All remaining claims against Dempsey and Neiman in the Consolidated Federal 3 Derivative Action, i.e., the Fifth, Seventh, and Eighth Causes of Action of the Second Amended 4 Complaint, shall be and hereby are dismissed with prejudice. 5 2. All Counterclaims against Brocade asserted by Dempsey (i.e., Counts I, II, III, IV, V, 6 and VI) and all Counterclaims against Brocade asserted by Neiman (i.e., Counts I, II, III, and IV) 7 shall be and hereby are dismissed with prejudice. 8 9 10 11 12 13 3. Brocade and Dempsey shall comply with the terms of the Dempsey Settlement Agreement, and Brocade and Neiman shall comply with the terms of the Neiman Settlement Agreement. 4. The Court shall retain exclusive jurisdiction for purposes of construing or enforcing the terms of the Settlement Agreements, the Complete Bar Orders, and this [Proposed] Order. 5. There being no just reason for delay, the Court hereby orders the Clerk to enter Final 14 Judgment under Fed. R. Civ. P. 54(b) as to Dempsey and Neiman in accordance with the Settlement 15 Agreements, the Complete Bar Order, and this [Proposed] Order. 16 17 18 Dated: October 28, 2009 DEWEY & LEBOEUF LLP 19 20 By: /s/ Peter E. Root Peter E. Root 21 Attorneys For Plaintiff Brocade Communications Systems, Inc. 22 23 24 Dated: October 28, 2009 K&L GATES LLP 25 26 27 28 By: /s/ Jeffrey L. Bornstein Jeffrey L. Bornstein -3STIPULATION AND PROPOSED ORDER RE: DISMISSAL OF CLAIMS AS TO DEMPSEY AND NEIMAN CASE NO.: C-05-02233 CRB 1 2 3 Dated: October 28, 2009 Attorneys For Defendant Neal Dempsey WILMER CUTLER PICKERING HALE & DORR LLP 4 5 By: /s/ Jonathan A. Shapiro Jonathan A. Shapiro 6 Attorneys For Defendant Seth D. Neiman 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4STIPULATION AND PROPOSED ORDER RE: DISMISSAL OF CLAIMS AS TO DEMPSEY AND NEIMAN CASE NO.: C-05-02233 CRB 1 2 3 ATTESTATION PURSUANT TO GENERAL ORDER 45 I, Peter E. Root, am the ECF User whose ID and password are being used to file this 4 Stipulation and [Proposed] Order and Entry of Final Judgment Under Fed. R. Civ. P. 54(b) Re: 5 Dismissal of Remaining Claims Against Defendants Neal Dempsey and Seth D. Neiman And Their 6 Counterclaims Pursuant to Settlements. In compliance with General Order 45.X.B, I hereby attest 7 that concurrence in the filing of this document has been obtained from each of the other signatories. 8 I declare under penalty of perjury under the laws of the United States of America that the foregoing 9 is true and correct. Executed this 28th day of October 2009, at East Palo Alto, California. 10 11 /s/ Peter E. Root Peter E. Root 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5STIPULATION AND PROPOSED ORDER RE: DISMISSAL OF CLAIMS AS TO DEMPSEY AND NEIMAN CASE NO.: C-05-02233 CRB ORDER 1 PURSUANT TO STIPULATION, IT IS SO ORDERED. 3 UNIT ED Oct. 29, 2009 Dated: _____________ 7 RT J ER H 9 10 11 . Breyer arles R udge Ch NO 8 FO 6 R NIA ______________________________ Charles R. Breyer DERED O OR UnitedIStates District Judge IT S S LI 5 RT U O S 4 S DISTRICT TE C TA A 2 N F D IS T IC T O R C 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6STIPULATION AND PROPOSED ORDER RE: DISMISSAL OF CLAIMS AS TO DEMPSEY AND NEIMAN CASE NO.: C-05-02233 CRB
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