Bel Conor International, LTD. v. Solta Medical, Inc., No. 3:2009cv04391 - Document 34 (N.D. Cal. 2010)
Court Description: ORDER GRANTING 33 Request to Continue Case Management Conference. Case Management Statement due by 11/24/2010. Case Management Conference set for 12/3/2010 01:30 PM in Courtroom 11, 19th Floor, San Francisco.. Signed by Judge Jeffrey S. White on 8/31/10. (jjoS, COURT STAFF) (Filed on 8/31/2010)
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Bel Conor International, LTD. v. Solta Medical, Inc. Doc. 34 Case3:09-cv-04391-JSW Document33 1 2 3 4 5 6 7 8 9 10 SONNENSCHEIN NATH & ROSENTHAL LLP 525 MARKET STREET, 26TH FLOOR SAN FRANCISCO, CALIFORNIA 94105-2708 (415) 882-5000 11 12 13 14 15 16 17 Filed08/30/10 Page1 of 9 MICHAEL BARNES (State Bar No. 121314) IAN R. BARKER (State Bar No. 240223) SONNENSCHEIN NATH & ROSENTHAL LLP 525 Market Street, 26th Floor San Francisco, CA 94105-2708 Telephone: (415) 882-5000 Facsimile: (415) 882-0300 Emails: mbarnes@sonnenschein.com ibarker@sonnenschein.com ROBERT W. HAYES (admitted pro hac vice) COZEN O’CONNOR 1900 Market Street Philadelphia, PA 19107 Telephone: (215) 665-2000 Facsimile: (215) 665-2013 Email: rhayes@cozen.com Attorneys for Plaintiff BEL CONOR INTERNATIONAL, LTD. TOD L. GAMLEN (State Bar No. 83458) KEITH L. WURSTER (State Bar No. 198918) BAKER & McKENZIE LLP 660 Hansen Way Palo Alto, CA 94304-1044 Telephone: (650) 856-2400 Facsimile: (650) 856-9299 Emails: tod.l.gamlen@bakernet.com keith.l.wurster@bakernet.com jerry.m.salcido@bakernet.com Attorneys for Defendant SOLTA MEDICAL, INC. 18 UNITED STATES DISTRICT COURT 19 NORTHERN DISTRICT OF CALIFORNIA 20 21 22 23 24 25 26 27 SAN FRANCISCO DIVISION BEL CONOR INTERNATIONAL, LTD., a Case No. CV 09-4391-JSW foreign corporation incorporated in Hong Kong, JOINT CASE MANAGEMENT CONFERENCE STATEMENT Plaintiff, Date: September 10, 2010 vs. Time: 1:30 p.m. Place 9th Floor, Courtroom 11 SOLTA MEDICAL, INC., a Delaware Before: Hon. Jeffrey S. White Corporation, AND ORDER CONTINUING CASE MANAGEMENT CONFERENCE Defendant. 28 No. CV 09-4391-JSW JOINT CASE MANAGEMENT STATEMENT Dockets.Justia.com Case3:09-cv-04391-JSW Document33 1 Filed08/30/10 Page2 of 9 Pursuant to Federal Rule of Civil Procedure 26(f) and Civil L.R. 16-9(a), the parties 2 submit this Joint Case Management Statement with respect to the Case Management Conference 3 set for September 10, 2010, and request that the Court adopt it as the Case Management Order. 4 1. 5 This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332 Jurisdiction and Service: 6 because Plaintiff Bel Conor International, Ltd. (“Bel Conor”) is a citizen and resident of a 7 foreign country and Defendant Solta Medical, Inc. (“Solta”) is a citizen and resident of the 8 United States, and the amount in controversy exceeds $75,000, exclusive of interest and costs. 9 Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) in that Solta resides in this District 10 and regularly conducts business in this District. SONNENSCHEIN NATH & ROSENTHAL LLP 525 MARKET STREET, 26TH FLOOR SAN FRANCISCO, CALIFORNIA 94105-2708 (415) 882-5000 11 All parties have been served with process. 12 2. Facts: On September 17, 2009, Bel Conor filed a Complaint and Motion for a 13 Preliminary Injunction against Solta, arising out of a dispute concerning the parties’ 14 International Distribution Agreement (“Agreement”). Bel Conor sought to obtain preliminary 15 injunctive relief prohibiting Solta from interfering with its asserted rights under the Agreement 16 to exclusively distribute the ThermaCool System in China, granting any other party distribution 17 rights to the ThermaCool System in the territory and increasing the price of the ThermaCool 18 System pending the resolution of an arbitration between the parties. In accordance with the 19 arbitration clause in the Agreement, Bel Conor filed a Statement of Claim with the American 20 Arbitration Association on or about September 23, 2009, seeking specific performance of the 21 Agreement and damages. 22 Solta responded by filing an opposition to Bel Conor’s Motion for Preliminary 23 Injunction and a Motion to Dismiss the Complaint, disputing, among other things, Bel Conor’s 24 asserted right to exclusively distribute the “ThermaCool System” in China, the issuance of an 25 injunction to enforce an exclusive distribution agreement under California law, as well as the 26 general scope and character of the rights asserted by Bel Conor in the Complaint, Motion for 27 Preliminary Injunction and notice of arbitration. 28 No. CV 09-4391-JSW - 1 - JOINT CASE MANAGEMENT STATEMENT Case3:09-cv-04391-JSW Document33 1 Filed08/30/10 Page3 of 9 Thereafter, the parties reached an interim agreement that while in place, and is adhered 2 to, eliminates the need for Bel Conor to obtain injunctive relief. This interim agreement was 3 memorialized in a joint Stipulation which was filed with this Court on October 16, 2009. 4 [Docket 28]. By way of this Stipulation, the parties agreed that Bel Conor’s Motion for 5 Preliminary Injunction and Solta’s Motion to Dismiss will be taken off the Court’s calendar, and 6 this action stayed pending the resolution of the parties’ arbitration proceedings. The Stipulation 7 further provided, among other things, that: (a) Solta and Bel Conor would immediately reinstate 8 the Agreement from October 14, 2009 through the date that the parties reach a negotiated 9 agreement concerning the present dispute, or the date that the parties resolve their current dispute in arbitration, which ever date shall come first (hereinafter referred to as the 11 SONNENSCHEIN NATH & ROSENTHAL LLP 525 MARKET STREET, 26TH FLOOR SAN FRANCISCO, CALIFORNIA 94105-2708 (415) 882-5000 10 “Reinstatement Period”); and, (b) that the Solta and Bel Conor will notify the Court after the 12 Reinstatement Period has ended as to whether any further proceedings are necessary in this 13 action and/or this action shall be dismissed. 14 On October 19, 2009, the Court approved and entered the parties’ Stipulation, which 15 resulted in the stay of this action pending the resolution of the parties’ arbitration proceedings or 16 further order of the Court. [Docket 29]. Thereafter, the Court ordered that the parties’ Initial 17 Case Management Conference set for January 15, 2010 be continued to March 12, 2010, and 18 that the parties submit a Joint Case Management Conference Statement by March 5, 2010. 19 [Docket 30]. 20 On March 5, 2010, the parties filed a Joint Case Management Conference Statement 21 informing the Court that there were currently no legal issues before the Court since this matter 22 was stayed pursuant to the parties’ joint Stipulation for interim relief and the arbitration 23 proceedings remained pending. [Docket 31]. Consequently, on March 8, 2010, the Court 24 ordered that the parties’ Initial Case Management Conference set for March 12, 2010 be 25 continued to September 10, 2010, and that the parties submit a Joint Case Management 26 Conference Statement on or before September 3, 2010. [Docket 32]. 27 28 No. CV 09-4391-JSW - 2 - JOINT CASE MANAGEMENT STATEMENT Case3:09-cv-04391-JSW Document33 1 Filed08/30/10 Page4 of 9 The parties’ arbitration proceedings remain pending. Solta has filed its Statement of 2 Defense to Bel Conor’s Arbitration Complaint and asserted counterclaims, to which Bel Conor 3 has responded. 4 The parties have reached agreement as to the material terms of a settlement, which is in 5 the process of being finalized and executed. The parties therefore stipulate and agree that this 6 action shall remain open, but stayed, until the parties have finalized the form of the settlement 7 agreement, and Arbitration is closed. The parties expect that a settlement agreement will be 8 finalized within the next sixty (60) days and, accordingly, request that this action remain stayed, 9 and the parties’ Initial Case Management Conference currently scheduled for September 10, 10 2010 be continued for approximately sixty (60) days. SONNENSCHEIN NATH & ROSENTHAL LLP 525 MARKET STREET, 26TH FLOOR SAN FRANCISCO, CALIFORNIA 94105-2708 (415) 882-5000 11 3. 12 Because this matter is stayed pursuant to the parties’ joint Stipulation for interim relief, 13 Legal Issues: there are currently no legal issues before this Court. 14 4. 15 On September 22, 2009, Bel Conor filed a Motion for a Preliminary Injunction. On Motions: 16 October 8, 2009, Solta filed a Motion to Dismiss the action. The Stipulation and Order entered 17 by the Court on October 19, 2009 stayed the case and vacated the hearing dates for both 18 motions. The case remains stayed pending completion of the arbitration proceedings as set forth 19 in the Stipulation. The parties do not anticipate filing any additional motions in the near future. 20 5. 21 The parties do not anticipate amending the pleadings at this time. 22 6. 23 The parties have taken appropriate steps to ensure the preservation of evidence. 24 7. 25 The parties agree that a deadline to exchange initial disclosures should not be set while 26 Amendment of Pleadings: Evidence Preservation: Disclosures: the case is stayed. 27 28 No. CV 09-4391-JSW - 3 - JOINT CASE MANAGEMENT STATEMENT Case3:09-cv-04391-JSW Document33 Filed08/30/10 Page5 of 9 1 8. 2 No discovery has been conducted in this matter. The parties agree that, given the stay of 3 this litigation during the pending arbitration proceedings, it would not be fruitful to set discovery 4 deadlines. The parties do not believe any modification to the Federal Rules is necessary at this 5 time. Discovery: 9. 7 There are no currently pending related cases, apart from the parties’ arbitration. 8 10. Relief: 9 To the extent the Stipulation and Order is violated by Solta, Bel Conor reserves its right 10 to ask this Court to grant a preliminary injunction: (1) sufficient to prevent Solta from granting 11 SONNENSCHEIN NATH & ROSENTHAL LLP 525 MARKET STREET, 26TH FLOOR SAN FRANCISCO, CALIFORNIA 94105-2708 (415) 882-5000 6 distribution rights in the Thermage product line in China to anyone other than Bel Conor during 12 the pendency of the arbitration proceedings; (2) sufficient to prevent Solta from interfering in 13 any way with Bel Conor’s exclusive distribution rights in the Thermage product line in China 14 during the pendency of the Arbitration; and (3) enjoining Solta from raising its distributor prices 15 for the ThermaCool TC System above the existing levels provided by the Agreement for any 16 purchases made by Bel Conor during the pendency of the Arbitration. Bel Conor also reserves 17 the right to seek an award of any other appropriate legal and equitable relief. Related Cases: 18 11. Settlement and ADR: 19 The parties have agreed to mediate the matter through the mediation procedures available 20 in the arbitration process. Prior to mediation the parties reached agreement as to the material 21 terms of a settlement, which is in the process of being finalized and executed. 22 12. Consent to Magistrate: 23 The parties do not consent to have a Magistrate Judge conduct all further proceedings. 24 13. Other References: 25 None. 26 14. Narrowing of Issues: 27 The issues have been sufficiently narrowed by the parties’ joint Stipulation and Order. 28 No. CV 09-4391-JSW - 4 - JOINT CASE MANAGEMENT STATEMENT Case3:09-cv-04391-JSW Document33 Filed08/30/10 Page6 of 9 1 15. Scheduling: 2 The parties do not believe this case should be handled on an expedited basis. 3 Given the current stay of this action and the pending arbitration proceedings and the 4 pending settlement, the parties agree that the Case Management Conference should be continued 5 for sixty (60) days, and that proposing dates for designation of experts, discovery, dispositive 6 motions, pretrial conference, and trial is premature. 7 16. Trial: 8 Given the current stay of this action and the pending arbitration proceedings, the parties 9 agree that proposing a date for trial would be premature. 17. Disclosure of Non-Party Interested Entities or Persons: 11 SONNENSCHEIN NATH & ROSENTHAL LLP 525 MARKET STREET, 26TH FLOOR SAN FRANCISCO, CALIFORNIA 94105-2708 (415) 882-5000 10 The parties have each filed a “Certification of Interested Entities or Persons” as required 12 13 by Northern District Local Rule 3-16. Bel Conor certifies that the following listed persons, associations of persons, firms, 14 partnerships, corporations (including parent corporations) or other entities (i) have a financial 15 interest in the subject matter in controversy or in a party to the proceeding, or (ii) have a non- 16 financial interest in that subject matter or in a party that could be substantially affected by the 17 outcome of this proceeding: 18 a. Sharper Limited; 19 b. Top Beat Consultants Limited; and 20 c. Main Focus Holding. 21 Solta certifies that the following listed persons, associations of persons, firms, 22 partnerships, corporations (including parent corporations) or other entities (i) have a financial 23 interest in the subject matter in controversy or in a party to the proceeding, or (ii) have a non- 24 financial interest in that subject matter or in a party that could be substantially affected by the 25 outcome of this proceeding: 26 a. Three Arch Partners; 27 b. Meritech Capital Partners; 28 c. Delphi Ventures, Inc. No. CV 09-4391-JSW - 5 - JOINT CASE MANAGEMENT STATEMENT Case3:09-cv-04391-JSW Document33 Filed08/30/10 Page7 of 9 1 d. Paradigm Capital Management, Inc. 2 e. Institutional Venture Partners 3 f. Essex Woodlands Health Ventures, Inc. 4 g. M&M Consortium Holding LTD Partnership 5 h. Royce & Associates LLC 6 i. Technology Partners 7 j. Columbia Partners LLC Investment MGMT 8 k. Morgenthaler Venture Partners LP 9 l. E-Planet Ventures L.P. m. Wasatch Advisors, Inc. 11 SONNENSCHEIN NATH & ROSENTHAL LLP 525 MARKET STREET, 26TH FLOOR SAN FRANCISCO, CALIFORNIA 94105-2708 (415) 882-5000 10 n. Renaissance Technologies LLC 12 o. Pinnacle Ventures Equity Fund 13 p. The California Public Employees Ret. Sys. 14 q. Needham Investment Management LLC 15 r. Crown Capital Management 16 s. Broadwood Capital 17 t. GRT Capital Partners LLC 18 u. T. Rowe Price Associates, Inc. 19 v. Barclays Global Investors NA (California) 20 w. The Gramercy Fund 21 x. Northern Trust Investments 22 y. UBS Global Asset Management 23 z. Federated Investment Management Co. 24 aa. Wells Fargo Advisors LLC 25 bb. Dimensional Fund Advisors, Inc. 26 cc. Bank of New York Mellon Asset Management 27 dd. Geode Capital Management LLC 28 ee. RBC Capital Markets Equity Research No. CV 09-4391-JSW - 6 - JOINT CASE MANAGEMENT STATEMENT Case3:09-cv-04391-JSW Document33 Filed08/30/10 Page8 of 9 1 ff. D.E. Shaw & Co., Inc. 2 gg. Numeric Investors LP 3 hh. Regents of the University of California 4 ii. Menta Capital LLC 5 jj. Lotsoff Capital Management 6 kk. Barclays Capital, Inc. 7 ll. Technical Financial Services LLC 8 mm. Diamondback Capital Management LLC 9 10 Dated: August 30, 2010 SONNENSCHEIN NATH & ROSENTHAL LLP 11 SONNENSCHEIN NATH & ROSENTHAL LLP 525 MARKET STREET, 26TH FLOOR SAN FRANCISCO, CALIFORNIA 94105-2708 (415) 882-5000 Respectfully submitted, 12 By_______/s/ Ian Barker______ IAN BARKER 13 14 Attorneys for Plaintiff BEL CONOR INTERNATIONAL, LTD. 15 16 Dated: August 30, 2010 BAKER & McKENZIE 17 18 By__________/s/ Keith L. Wurster______ KEITH L. WURSTER 19 20 Attorneys for Defendant SOLTA MEDICAL, INC. 21 22 23 24 25 26 27 28 No. CV 09-4391-JSW - 7 - JOINT CASE MANAGEMENT STATEMENT Case3:09-cv-04391-JSW Document33 Filed08/30/10 Page9 of 9 1 [PROPOSED] CASE MANAGEMENT ORDER 2 The Case Management Statement is hereby adopted by the Court as the Case Management 3 Order for the case and the matter will remain open, but stayed pending resolution of the parties’ 4 5 6 7 8 9 10 arbitration proceedings and further Order of this Court. The case management conference is CONTINUED to December 3, 2010 at 1:30 p.m. If there will be further proceedings in this case, the parties shall submit a further case management conference statement by no later than November 24, 2010. If, however, the parties jointly request a further continuance and stay, they need only submit a stipulation and proposed order to that effect by November 24, 2010. If a dismissal is filed prior to November 24, 2010, the case management conference shall be vacated. Dated: _______________ __________________________________ Hon. Jeffrey S. White August 31, 2010 27342655 SONNENSCHEIN NATH & ROSENTHAL LLP 525 MARKET STREET, 26TH FLOOR SAN FRANCISCO, CALIFORNIA 94105-2708 (415) 882-5000 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No. CV 09-4391-JSW - 8 - JOINT CASE MANAGEMENT STATEMENT
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