Free Order Staying Case - District Court of California - California

Case 5:08-cv-03123-JF

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Patrice L. Bishop (182256) [email protected] STULL, STULL & BRODY 10940 Wilshire Boulevard Suite 2300 Los Angeles, CA 90024 Tel: (310) 209-2468 Fax: (310) 209-2087 Howard T. Longman [email protected] STULL, STULL & BRODY 6 East 45th Street New York, NY 10017 Tel: (212) 687-7230 Fax: (212) 490-2022 Gary S. Graifman [email protected] KANTROWITZ, GOLDHAMER & GRAIFMAN 747 Chestnut Ridge Road Chestnut Ridge, New York 10977 Tel: (845) 356-2570 Fax: (845) 356-4335 Attorneys for Plaintiffs

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. APPLE, INC., STEVEN P. JOBS, FRED ANDERSON, NANCY HEINEN, WILLIAM V. CAMPBELL, MILLARD S. DREXLER, ARTHUR D. LEVINSON, and JEROME P. YORK, Defendants. 1
STIPULATION AND [PROPOSED] ORDER STAYING ACTION CASE NO.: 08-cv-03123-JF

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

MARTIN VOGEL and KENNETH MAHONEY, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs,

CASE NO.: C08-03123-JF CLASS ACTION -------------STIPULATION AND [PROPOSED] ORDER STAYING ACTION Judge: Hon. Jeremy Fogel Department: Ctrm. 3, 5th Floor

Case 5:08-cv-03123-JF

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Plaintiffs Martin Vogel and Kenneth Mahoney ("Plaintiffs") and Defendants Apple Inc. ("Apple"), Fred D. Anderson, Nancy R. Heinen, Steven P. Jobs, William V. Campbell, Millard S. Drexler, Arthur D. Levinson, and Jerome B. York (collectively, the "Defendants") hereby stipulate as follows: WHEREAS, on August 24, 2006, Plaintiffs filed a class action complaint before this Court alleging that certain defendants violated the Securities Exchange Act of 1934 (the "Exchange Act"), including § 10(b) and Rule 10b-5 thereunder, and § 20(a). That action was entitled Martin Vogel and Kenneth Mahoney v. Steven Jobs, et al., Case No. 5:06-cv-05208-JF (N.D. Cal.) (the "Apple Backdating Action No. 1"), and concerning alleged practice of issuing backdating stock options; WHEREAS, on October 24, 2006, New York City Employees' Retirement System ("NYCERS") moved for their appointment as Lead Plaintiff of the Apple Backdating Action No. 1 pursuant to 15 U.S.C. § 78u-4; WHEREAS, on January 19, 2007, this Court appointed NYCERS as Lead Plaintiff of that litigation; WHEREAS, on March 23, 2007, NYCERS filed, as Lead Plaintiff, its Consolidated Complaint and asserted claims under §§ 14(a) and 20(a) of the Exchange Act and the common law duty of disclosure. The Consolidated Complaint did not assert any claims for Defendants' alleged violations of §10(b) of the Exchange Act; WHEREAS, on November 14, 2007, this Court granted Defendants' motion to dismiss the Consolidated Complaint on the ground, inter alia, that NYCERS failed to plead standing to bring a direct claim ("Dismissal Order"); WHEREAS, this Court granted NYCERS leave to amend its complaint but held that NYCERS could only amend for the purpose of attempting to plead a derivative claim, not a direct class action claim; WHEREAS, on December 14, 2007, NYCERS filed a motion for leave to file a First Amended Consolidated Class Action Complaint that contained direct class action claims for alleged violations of § 10(b) of the Exchange Act; 2
STIPULATION AND [PROPOSED] ORDER STAYING ACTION CASE NO.: 08-cv-03123-JF

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WHEREAS, on May 14, 2008, this Court denied NYCERS's motion for leave to file an amended complaint ("Denial Order"); WHEREAS, on June 12, 2008, this Court entered Judgment for defendants ("Judgment"); WHEREAS, on June 17, 2008, NYCERS filed its Notice of Appeal of the Dismissal Order, the Denial Order and subsequent Judgment ("NYCERS's Appeal"); WHEREAS, Plaintiffs filed this action ("Apple Backdating Action No. 2") on June 27, 2008, alleging that Defendants violated § 10(b) of the Exchange Act and Rule 10b-5 thereunder and § 20(a) of the Exchange Act by, inter alia, issuing backdated stock options to themselves and other Apple employees; WHEREAS, Plaintiffs and Defendants agree that if this litigation were to go forward prior to resolution of NYCERS's appeal(s) of the Apple Backdating Action No. 1, there is a risk of duplicative litigation regarding Defendants' alleged backdating and alleged violations of the Exchange Act, and that this risk could result in a waste of judicial resources. NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED: 1. This action shall be stayed pending the resolution of NYCERS's Appeal (the "Resolution"); 2. "Resolution" means the date upon which NYCERS's Appeal is finally resolved meaning either the Judgment has become final and is no longer subject to appeal, or the case has been remanded to this Court and the remand order has become final and is no longer subject to appeal; 3. As part of this stay, all of Plaintiffs' remaining obligations under the Private Securities Litigation Reform Act ("PSLRA"), 15 U.S.C. § 78u-4, will also be stayed pending the Resolution of NYCERS's Appeal; 4. All applicable time periods and deadlines from date of the entry of this Order to the time when the stay is lifted will toll. 5. By agreeing to this stipulation, Defendants expressly reserve and do not waive any defenses, arguments and motions as to all claims alleged in Apple Backdating Action No. 2. IT IS SO STIPULATED. 3

STIPULATION AND [PROPOSED] ORDER STAYING ACTION CASE NO.: 08-cv-03123-JF

Case 5:08-cv-03123-JF

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Dated: July 17, 2008

Patrice L. Bishop STULL, STULL & BRODY

By: /s/ Patrice L. Bishop Patrice L. Bishop 10940 Wilshire Boulevard Suite 2300 Los Angeles, CA 90024 Tel: (310) 209-2468 Fax: (310) 209-2087 Howard T. Longman STULL, STULL & BRODY 6 East 45th Street New York, NY 10017 Tel: (212) 687-7230 Fax: (212) 490-2022 Gary S. Graifman KANTROWITZ, GOLDHAMER & GRAIFMAN 747 Chestnut Ridge Road Chestnut Ridge, New York 10977 Tel: (845) 356-2570 Fax: (845) 356-4335 Attorneys for Plaintiffs

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STIPULATION AND [PROPOSED] ORDER STAYING ACTION CASE NO.: 08-cv-03123-JF

I, Patrice L. Bishop, am the ECF User whose ID and password are being used to file this Stipulation and [Proposed] Order Staying Action. In compliance with General Order 45, X.B., I hereby attest that the signatory below has concurred in this filing.

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Dated: July 17, 2008

George A. Riley Luann L. Simmons Robert D. Tronnes O'MELVENY & MYERS LLP By: /s/ Robert D. Tronnes Robert D. Tronnes Embarcadero Center West 275 Battery Street San Francisco, CA 94111 Tel: (415) 984-8700 Fax: (415) 984-8701 Attorneys for Defendant Apple Inc.

Dated: July 17, 2008

Douglas R. Young C. Brandon Wisoff Grace K. Won Stephanie Skaff Sebastian A. Jerez FARELLA, BRAUN + MARTEL LLP By: /s/ Douglas R. Young Douglas R. Young 235 Montgomery Street 17th Floor San Francisco, CA 94104 Tel: (415) 954-4400 Fax: (415) 954-4480 Attorneys for Defendants Steven Jobs, William V. Campbell, Millard S. Drexler, Arthur D. Levinson, and Jerome P. York

Dated: July 17, 2008

Jerome C. Roth Yohance C. Edwards Genevieve A. Cox MUNGER, TOLLES & OLSON LLP

By: /s/ Yohance C. Edwards Yohance C. Edwards 560 Mission Street 27th Floor San Francisco, CA 94105 Tel: (415) 512-4000 Fax: (415) 512-4077 Attorneys for Defendant Fred D. Anderson 5
STIPULATION AND [PROPOSED] ORDER STAYING ACTION CASE NO.: 08-cv-03123-JF

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Dated: July 17, 2008

Sarah A. Good Jin H. Kim Jason M. Habermeyer HOWARD RICE NEMEROVSKI CANADY FALK & RABKIN

By: /s/ Jin H. Kim Jin H. Kim Three Embarcadero Center Seventh Floor San Francisco, CA 94111 Tel: (415) 434-1600 Fax: (415) 217-5910 Attorneys for Defendant Nancy R. Heinen

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STIPULATION AND [PROPOSED] ORDER STAYING ACTION CASE NO.: 08-cv-03123-JF

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-------------[PROPOSED] ORDER Pursuant to the stipulation of the parties, and for good cause shown, IT IS HEREBY ORDERED THAT: 1. This action shall be stayed pending the resolution of NYCERS's Appeal ("NYCERS's Appeal") of the Dismissal Order, the Denial Order and subsequent Judgment evidenced by the Notice of Appeal filed on June 17, 2008; 2. "Resolution" means the date upon which NYCERS's Appeal is finally resolved meaning either the Judgment has become final and is no longer subject to appeal, or the case has been remanded to this Court and the remand order has become final and is no longer subject to appeal; 3. As part of this stay, all of Plaintiffs' remaining obligations under the Private Securities Litigation Reform Act ("PSLRA"), 15 U.S.C. § 78u-4, will also be stayed pending the Resolution of NYCERS's Appeal; 4. All applicable time periods and deadlines from date of the entry of this Order to the time when the stay is lifted will toll.

____________________________________ Honorable Jeremy Fogel United States District Court Judge

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STIPULATION AND [PROPOSED] ORDER STAYING ACTION CASE NO.: 08-cv-03123-JF

Case 5:08-cv-03123-JF

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