Filed: Dec. 30, 2019
Latest Update: Dec. 30, 2019
Summary: CLASS ACTION STIPULATION AND ORDER REGARDING HEARING ON LEAD PLAINTIFF'S CONFIDENTIALITY MOTION AND DEFENDANTS' RESPONSE TO THE AMENDED COMPLAINT (modified) HAYWOOD S. GILLIAM, JR. , District Judge . Pursuant to Civil Local Rule 7-12, this stipulation and proposed order is submitted by • Lead Plaintiff James Everett Hunt (Lead Plaintiff), • Defendants Bloom Energy Corporation, KR Sridhar, Randy Furr, L. John Doerr, Colin L. Powell, Scott Sandell, Peter Teti, Eddy Zervigon, Mary K. Bush,
Summary: CLASS ACTION STIPULATION AND ORDER REGARDING HEARING ON LEAD PLAINTIFF'S CONFIDENTIALITY MOTION AND DEFENDANTS' RESPONSE TO THE AMENDED COMPLAINT (modified) HAYWOOD S. GILLIAM, JR. , District Judge . Pursuant to Civil Local Rule 7-12, this stipulation and proposed order is submitted by • Lead Plaintiff James Everett Hunt (Lead Plaintiff), • Defendants Bloom Energy Corporation, KR Sridhar, Randy Furr, L. John Doerr, Colin L. Powell, Scott Sandell, Peter Teti, Eddy Zervigon, Mary K. Bush, K..
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CLASS ACTION
STIPULATION AND ORDER REGARDING HEARING ON LEAD PLAINTIFF'S CONFIDENTIALITY MOTION AND DEFENDANTS' RESPONSE TO THE AMENDED COMPLAINT (modified)
HAYWOOD S. GILLIAM, JR., District Judge.
Pursuant to Civil Local Rule 7-12, this stipulation and proposed order is submitted by
• Lead Plaintiff James Everett Hunt (Lead Plaintiff),
• Defendants Bloom Energy Corporation, KR Sridhar, Randy Furr, L. John Doerr, Colin L. Powell, Scott Sandell, Peter Teti, Eddy Zervigon, Mary K. Bush, Kelly A. Ayotte (the Bloom Energy Defendants), and
• J.P. Morgan Securities, LLC, Morgan Stanley & Co. LLC, Credit Suisse Securities (USA) LLC, KeyBanc Capital Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Cowen & Company, LLC, HSBC Securities (USA) Inc., Oppenheimer & Co. Inc., Raymond James & Associates, Inc., and Robert W. Baird & Co. Incorporated (the Underwriter Defendants, and together with the Bloom Energy Defendants, Defendants).
WHEREAS:
1. On May 28, 2019, Elissa M. Roberts filed a federal securities class action in the above-captioned matter in the United States District Court, Northern District of California against the Bloom Energy Defendants.
The Confidentiality Motion
2. On September 3, 2019, following the briefing of lead plaintiff motions, this Court appointed James Everett Hunt as Lead Plaintiff and Levi & Korsinsky, LLP as Lead Counsel (ECF No. 39).
3. On November 1, 2019, Lead Plaintiff filed a Motion to Limit Scope of Confidentiality Agreement (the Confidentiality Motion).
4. The briefing on the Confidentiality Motion is now complete. Oral argument on the Confidentiality Motion was scheduled before Judge Orrick for December 17, 2019.
5. On December 13, 2019, this case was reassigned to Judge Gilliam and all hearing dates, including the December 17, 2019 hearing date for the Confidentiality Motion, were vacated.
6. Lead Plaintiff and the Bloom Energy Defendants have met and conferred regarding a hearing on the Confidentiality Motion and are available for oral argument on this Court's February 6, 2020 calendar.
Motion to Consolidate
7. While this action was still assigned to Judge Orrick, Lead Plaintiff filed a motion to consolidate this action with a second action, Bolouri v. Bloom Energy Corp. et. al., Case No. 3:19-cv-07259. Oral argument on the motion to consolidate was also scheduled for December 17, 2019. That argument date was vacated when the case was reassigned to Judge Gilliam.
8. Lead Plaintiff believes that there is no need to reschedule argument on his motion to consolidate because the motion is now moot. On December 11, 2019, the Bolouri action was voluntarily dismissed.
Response to the Amended Complaint
9. On November 4, 2019, Lead Plaintiff filed an Amended Complaint in this action. The Underwriter Defendants were named for the first time in the Amended Complaint.
10. The Bloom Energy Defendants' current deadline to respond to the Amended Complaint, pursuant to a stipulated order entered by Judge Orrick on September 30, 2019, is January 10, 2020. The same stipulated order provides that if the Bloom Energy Defendants respond by moving to dismiss, the opposition to and reply in support of the motion will be due on March 10, 2020 and April 24, 2020 respectively.
11. Pursuant to an agreement among the parties, the Underwriter Defendants' current deadline to respond to the Amended Complaint is January 10, 2020.
12. Lead Plaintiff and the Bloom Energy Defendants have met and conferred and have agreed that the most efficient course of proceeding for the parties and the Court is to reset the Defendants' obligation to respond to the Amended Complaint at such time as Lead Plaintiff determines whether it will seek to file a Second Amended Complaint. Lead Plaintiff's determination depends on this Court's ruling on the pending Confidentiality Motion.
13. Lead Plaintiff and Defendants have further agreed that the best way to foster efficiency — but at the same time keep the case moving forward — is by adopting the following deadlines:
a. Within 14 days of the Court's ruling on the Confidentiality Order, Lead Plaintiff will advise Defendants whether he intends to seek to file a Second Amended Complaint or to stand on the current Amended Complaint.
b. If Lead Plaintiff advises Defendants that he intends to stand on the Amended Complaint, Defendants shall respond to the Amended Complaint within 45 days of the date on which Lead Plaintiff so advises Defendants. If Defendants' response is a motion to dismiss, then the opposition will due 60 days from the filing of the motion to dismiss and the reply will be due 35 days from the date of the filing of the opposition.
c. If Lead Plaintiff advises Defendants that he intends to seek leave to file a Second Amended Complaint, Lead Plaintiff will file that (proposed) complaint within 30 days of the Court's ruling on the Confidentiality Motion.
d. Assuming Lead Plaintiff is granted leave to file his Second Amended Complaint, Defendants' response will be due within 45 days of the filing of the Second Amended Complaint. If Defendants' response is a motion to dismiss, then the opposition will be due 60 days from the filing of the motion to dismiss and the reply will be due 35 days from the date of the filing of the opposition.
IT IS THEREFORE STIPULATED AND AGREED by Lead Plaintiff and Defendants that, subject to the Court's approval:
1. Oral argument on the Confidentiality Motion will be heard on the Court's February 6, 2020 calendar.
2. Following the Court's ruling on Lead Plaintiffs' motion to dismiss, the schedule set forth in paragraph 13, above, will govern Defendants' responses to the Amended Complaint or Second Amended Complaint.
IT IS SO STIPULATED.
Date: December 27, 2019 By: /s/ Adam C. McCall
Adam C. McCall (SBN 302130)
Adam M. Apton (SBN 316506)
Email: amccall@zlk.com
Email: aapton@zlk.com
LEVI & KORSINSKY, LLP
44 Montgomery Street, Suite 650
San Francisco, CA 94104
Telephone: 415-373-1671
Attorneys for Lead Plaintiff
Date: December 27, 2019 By: /s/ Sara B. Brody
Sara B. Brody (SBN 130222)
sbrody@sidley.com
SIDLEY AUSTIN LLP
555 California Street, Suite 2000
San Francisco, CA 94104
Telephone: 415-772-1279
Matthew J. Dolan (SBN 291150)
mdolan@sidley.com
SIDLEY AUSTIN LLP
1001 Page Mill Road, Building 1
Palo Alto, CA 94304
Telephone: 650-565-7106
Robin Wechkin (pro hac vice pending)
rwechkin@sidley.com
SIDLEY AUSTIN LLP
1420 Fifth Avenue, Suite 1400
Seattle, WA 98101
Telephone: 415-439-1799
Attorneys for the Bloom Energy Defendants
Date: December 27, 2019 By: /s/ Charlene S. Shimada
Charlene S. Shimada
charlene.shimada@morganlewis.com
Morgan Lewis & Bockius, LLP
One Market, Spear Street Tower
San Francisco, California 94105
Telephone: 415-442-1475
Attorneys for the Underwriter Defendants
J.P. Morgan Securities, LLC, Morgan
Stanley & Co. LLC, Credit Suisse Securities
(USA) LLC, KeyBanc Capital Markets Inc.,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Cowen & Company, LLC,
HSBC Securities (USA) Inc., Oppenheimer
& Co. Inc., Raymond James & Associates,
Inc., and Robert W. Baird & Co.
Incorporated
ORDER
Pursuant to the parties' stipulation, and for good cause shown, IT IS SO ORDERED that:
1. Oral argument on the Confidentiality Motion will be heard on the Court's February 13, 2020 calendar at 2:00 p.m.
2. Following the Court's ruling on Lead Plaintiffs' motion to dismiss, the schedule set forth in paragraph 13 of the stipulation above will govern all Defendants' responses to the Amended Complaint or Second Amended Complaint.
