Free Status Report - District Court of Delaware - Delaware

Case 1 :04-cv-01522-GMS Document 104 Filed 05/1 1/2006 Page 1 of 4
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
VENTANA MEDICAL SYSTEMS, INC.,
Plaintiff,
v. CIVIL ACTION NO. 04-1522 (GMS)
DAKOCYTOMATION CALIFORNIA lNC.,
Defendant.
JOINT STATUS REPORT
Pursuant to the Cotut’s direction of April 27, 2006, the parties hereby submit this
Joint Status Report. The parties respectfully request that a teleconference be scheduled to
discuss scheduling issues, as described by the parties below. Based on a conversation
with chambers earlier today, the parties understand that previously—set deadlines are no
longer on the calendar.
Ventana’s Position: As the Court is aware, the parties have been engaged in
extensive settlement negotiations, with the assistance of Magistrate Judge Thynge, since
late March 2006. Several drafts containing the terms of a potential settlement have been
exchanged. The parties believed in good faith that a settlement would be reached, but
only yesterday, on May l0th, recognized that a settlement agreement could not be
finalized at this time.
Although drafts were exchanged by the parties, it was always understood that
entry into a definitive settlement agreement would require management approval.
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Case 1:04-cv—01522—G|\/IS Document 104 Filed 05/11/2006 Page 2 of 4
Management was consulted during the Settlement Conference and at various points
during the course of subsequent negotiations. From May 5th, in the days leading up to
the most recent version of the draft agreement, Ventana’s negotiators advised Dako that
management was unavailable due to travel commitments. Ventana’s negotiators worked
with Dako to crah what it believed was a promising draft that could be submitted for
management approval, but Ventana also advised Dako by May Sth that it was "still
waiting on getting final authorization" for that particular drah. Unfortunately, the terms
of the May Sth draft were not acceptable. Ventana is willing to continue further
negotiations with Dako, and believes that it still may be possible to utilize the current
draft as a framework for a potential settlement.
In view of the pa1ties’ belief that settlement was likely, several matters have been
deferred, including: (l) defendant’s reply brief in support of summary judgment, subject
to assent by all parties for defendant to file its reply brief out of time; (2) the exchange of
a draft pretrial order, subject to agreement by all parties to make such exchange in a
manner to timely meet the deadlines for submissions to the Court; and (3) the depositions
of expert witnesses that were previously noticed by the parties, subject to agreement by
all parties to schedule such depositions at a mutually agreed time prior to trial. Due to
these scheduling issues, the parties jointly request that the Court set a new trial date and
reset the corresponding deadlines leading up to trial.
Dako’s Position: Until yesterday, Dako understood that this case was settled
and that the parties would be advising the Court of a settlement today. However,
Ventana has inexplicably reneged on the deal.
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Case 1:04-cv—01522—G|\/IS Document 104 Filed 05/11/2006 Page 3 of 4
The parties not only began discussing settlement in March, but actually reached
agreement on all ofthe principal terms before the end of March. Since that time, they
have been discussing only ministerial issues, such as language for a press release. Within
the last past two weeks, they resolved the last of these issues, or at least Dako thought so.
In fact, Dako has been holding for some time its executed copy of the settlement
agreement. Dako was waiting for Ventana to execute the agreement (which Ventana’s
counsel predicted would happen by Tuesday or Wednesday of this week) so that the
parties could submit their joint stipulation of dismissal (which was already drafted —— by
Ventana) by May llth. Then yesterday afternoon, without warning, and without
explanation Ventana’s counsel announced that there would be no settlement at this time.
Ventana would not offer any reason for this announcement or any indication whether the
deal the parties negotiated would ultimately be acceptable. Ventana said only that certain
senior managers had expressed concems. None of these managers or their concerns ever
surfaced during the ongoing negotiations or the Court Ordered mediation, which required
the participants to have full settlement authority. (Docket Entry No. 34). This morning,
Dako consulted Judge Thygne for assistance in determining the status of settlement.
Judge Thygne reported to counsel for Dako that Ventana is in fact unwilling to settle
pursuant to the agreed upon terms and that Ventana now proposes major substantive
changes to the agreement.
Based on the imminent settlement, the parties agreed to defer certain dates. Dalco
would never have done that without the Court’s pemiission unless it was convinced that a
settlement was imminent. Indeed, the first date that was deferred was Ventana’s deadline
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Case 1:04-cv—01522—G|\/IS Document 104 Filed 05/11/2006 Page 4 of 4
to provide Dako with its draft ofthe pretrial order. Ventana’s willingness to forego this
deadline further led Dako to believe that the negotiated settlement was all but signed.
Notwithstanding these events, Dako remains willing to settle this case consistent
with the principal terms already deemed acceptable by the parties. Dako also remains
willing to litigate this case, through summary judgment, or if necessary through trial.
However, Dako has no intention of investing resources in both negotiating settlement
under these circumstances and litigating this case. Thus Dako requests that the Court
order Ventana to provide Dako with its settlement position including an explanation for
any substantive changes nom the negotiated deal in advance of the telephone conference
requested above.
Dako otherwise joins Ventana in the relief requested above.
Respectfully submitted,
YOUNG CONAWAY STARGATT & CONNOLLY BOVE LODGE & HUTZ
TAYLOR, LLP LLP
gf%—¤w//% @’t·r-»·· FT; Di Giovanni éz {/4 /77;t2F
Richard H. Morse (No. 531) Francis DiGiovanni (No. 3189)
The Brandywine Building, 17th Floor 1007 North Orange Street, 8m Floor
1000 West Street P.O. Box 2207
P.O. Box 391 Wilmington, Delaware 19899
Wilmington, Delaware 19899 (302) 658-9141
(302) 571-6651 orne for Defe dant
Attorneys for Plaintiff g1o3’anm@cbl]h . com
[email protected]
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