Free Stipulation - District Court of Delaware - Delaware

Case 1:07-cv-00372-SLR

Document 62

Filed 07/10/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE IN RE COUNTRYWIDE FINANCIAL CORPORATION DERIVATIVE LITIGATION ______________________________________ THIS RELATES TO ALL ACTIONS

C.A. No. 1:07-00372 SLR (MPT) (Consolidated Action) Judge Sue L. Robinson

STIPULATED AMENDED ORDER THAT THE MOTION HEARING SCHEDULED FOR JULY 17, 2008 BE TAKEN OFF CALENDAR WHEREAS, pursuant to the Court's Order of January 31, 2008, D.I. 35, Plaintiffs filed their Consolidated, Amended, and Supplemental Verified Complaint, D.I. 37, on February 13, 2008; WHEREAS, on February 27, 2008, Defendants Angelo R. Mozilo, Henry G. Cisneros, Robert L. Donato, Harley W. Snyder, Jeffrey M. Cunningham, Martin R. Melone, Robert T. Parry, Oscar P. Robertson, Keith P. Russell (the "Directors") and nominal defendant Countrywide Financial Corporation ("CFC") (collectively, the "Countrywide Defendants") filed a motion to dismiss the Complaint in its entirety for, among other reasons, failing to make a presuit demand on CFC's Board of Directors, failing to adequately allege with particularity that demand on the Board would be futile, and failing to make any specific allegations suggesting that the Directors acted irrationally or disloyally when they approved the stock repurchase that is the subject of this lawsuit, D.I. 46, 47, 57, and a motion to transfer venue to the U.S. District Court for the Central District of California or, alternatively, to stay, D.I. 40, 41, 59; WHEREAS, on that same day, former outside directors Michael E. Dougherty and Kathleen Brown (the "Former Directors") also moved to dismiss Plaintiffs' Consolidated Amended Complaint for, among other reasons, failing to make a pre-suit demand on CFC's
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Case 1:07-cv-00372-SLR

Document 62

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Board of Directors, failing to adequately allege with particularity that demand on the Board would be futile, and failing to make any specific allegations suggesting that the Former Directors acted irrationally or disloyally when they approved the stock repurchase that is the subject of this lawsuit. D.I 39, 42, 56. WHEREAS, oral argument on these motions to dismiss for failure to make demand and failure to state a claim upon which relief may be granted and motion to transfer venue or in the alternative to stay is scheduled for July 17, 2008; WHEREAS, on June 25, 2008, CFC's shareholders voted to approve CFC's merger with a wholly owned subsidiary of Bank of America Corporation ("BAC"), and that merger closed on July 1, 2008; WHEREAS, the Countrywide Defendants have filed, concurrent with this Stipulated Amended Order, a motion to dismiss this case arguing that under Delaware law, as a result of the BAC-CFC merger, Plaintiffs are no longer shareholders of CFC and no longer have standing to pursue this shareholder derivative action; NOW THEREFORE, it is hereby stipulated and agreed by and between the parties, through their counsel and subject to the approval of the Court, that the Countrywide Defendants' motion to dismiss [D.I. No. 46], the Former Directors' motion to dismiss [D.I. No. 39], and the motion to transfer venue or, alternatively, to stay [D.I. No. 40] should be taken off calendar and that oral argument on those motions and on the concurrently-filed motion to dismiss for lack of standing should be rescheduled for the same day after the briefing is complete on the motion to dismiss for lack of standing.

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/s/ Steven J. Fineman Thomas A. Beck (# 2086) Steven J. Fineman (# 4025) Richards Layton & Finger, P.A. One Rodney Square P.O. Box 551 Wilmington DE 19801 302-651-7700 [email protected] [email protected] Attorneys for Defendants: Angelo R. Mozilo, Henry G. Cisneros, Robert L. Donato, Harley W. Snyder, Jeffrey M. Cunningham, Martin R. Melone, Robert T. Parry, Oscar P. Robertson, Keith P. Russell, and Nominal Defendant Countrywide Financial Corporation OF COUNSEL: Brian E. Pastuszenski Stuart M. Glass Goodwin Procter LLP 53 State Street Boston, Massachusetts 02109 (617) 570-1000

/s/Robert D. Goldberg Robert D. Goldberg (# 631) Biggs & Battaglia 921 N. Orange Street P.O. Box 1489 Wilmington De 19899-1489 302-655-9677 [email protected] Attorneys for Plaintiffs International Brotherhood of Electrical Workers and Adam Blumberg OF COUNSEL: Barrack, Rodos & Bacine Alexander Arnold Gershon Regina M. Calcaterra Gloria Kui 1350 Broadway, Suite 1001 New York, New York 10018 (212) 688-0782 Barrack, Rodos & Bacine Daniel E. Bacine Two Commerce Square 2001 Market Street B Suite 3300 Philadelphia, Pennsylvania (215) 963-0600

/s/ Edward P. Welch Edward P. Welch (# 671) Edward Micheletti (# 3794) Skadden, Arps, Slate, Meagher & Flom One Rodney Square P.O. Box 636 Wilmington DE 19899 302-651-3000 [email protected] [email protected] Attorneys for Defendants: Michael E. Dougherty, Kathleen Brown

SO ORDERED this _____ day of _________________________, 2008.

United States District Court Judge
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