Free Case Management Statement - District Court of California - California

Case 4:07-cv-05101-SBA

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KEITH E. EGGLETON, State Bar No. 159842 RODNEY G. STRICKLAND, State Bar No. 161934 JONI OSTLER, State Bar No. 230009 FREEDA Y. LUGO, State Bar No. 244913 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 E-mail: [email protected] E-mail: [email protected] E-mail: [email protected] E-mail: [email protected] Attorneys for Defendants BigBand Networks, Inc., Amir Bassan-Eskenazi, Ran Oz, Frederick A. Ball, Gal Israely, Dean Gilbert, Kenneth E. Goldman, Lloyd Carney, Bruce I. Sachs, Robert J. Sachs, and Geoffrey Y. Yang UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION BIKASH MOHAN MOHANTY, On Behalf of Himself and All Others Similarly Situated, Plaintiff, v. BIGBAND NETWORKS, INC., AMIR BASSAN-ESKENAZI, RAN OZ, FREDERICK BALL, GAL ISRAELY, DEAN GILBERT, KEN GOLDMAN, LLOYD CARNEY, BRUCE SACHS, ROBERT SACHS, GEOFFREY YANG, MORGAN STANLEY & CO., INC., MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., JEFFERIES & CO., INC., COWEN AND CO., INC., AND THINKEQUITY PARTNERS LLC, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 4:07-CV-05101-SBA DEFENDANTS' STATEMENT REGARDING CASE MANAGEMENT CONFERENCE Date: Time: Place: Before: February 5, 2008 1:00 p.m. Courtroom 3, 3rd Floor Hon. Saundra B. Armstrong

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DEFENDANTS' STATEMENT RE CASE MANAGEMENT CONFERENCE CASE NO. 3:07-CV-05101-SBA

Case 4:07-cv-05101-SBA

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Defendants BigBand Networks, Inc., Amir Bassan-Eskenazi, Frederick Ball, Ran Oz, Lloyd Carney, Dean Gilbert, Kenneth Goldman, Gal Israely, Bruce Sachs, Robert Sachs and Geoffrey Yang (collectively, the "BigBand Defendants"), and Morgan Stanley & Co. Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Jefferies & Company, Inc., Cowen and Company, LLC, and ThinkEquity Partners LLC (collectively with the BigBand Defendants, "Defendants"), respectfully submit this Statement Regarding Case Management Conference, in lieu of a Joint Case Management Statement, in connection with the Case Management Conference scheduled for February 5, 2008. PROCEDURAL BACKGROUND This is the first of eight securities class action lawsuits that were filed against BigBand Networks, Inc., certain of its present and former officers and directors, and the underwriters of its initial public offering. The following other substantially similar class actions are also pending in the Northern District of California: Koesterer v. BigBand Networks, Inc., et al., No. C 07-5168-MMC, filed 10/09/07; Winston v. BigBand Networks, Inc., et al., No. C 07-5327-MMC, filed 10/18/07; Smith v. BigBand Networks, Inc., et al., No. C 07-5361-SI, filed 10/19/07; Luzon v. BigBand Networks, Inc., et al., No. C 07-5637-WHA, filed 11/6/07; Bernstein v. BigBand Networks, Inc., et al., No. C 07-05819-CRB, filed 11/15/07; Hammer v. BigBand Networks, Inc., et al., No. C 07-5825-SI, filed 11/16/07; and Wiltjer v. BigBand Networks, Inc., et al., No. C 08-22-CRB, removed on 1/2/08. On November 21, 2007, all parties (with the exception of the plaintiff in the Wiltjer matter, which had not yet been filed) signed a Stipulation and [Proposed] Order Regarding Consolidation and Scheduling (Docket No. 11), in which they agreed that the cases should be consolidated, and that Defendants are not obligated to respond to any of the pending complaints until this Court appoints a lead plaintiff and a consolidated complaint is filed by the appointed lead plaintiff. On December 3, 2007, two motions to consolidate the above-referenced actions and for appointment as Lead Plaintiff were filed pursuant to the lead plaintiff provisions of the Private
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Securities Litigation Reform Act ("Reform Act"). See Docket Nos. 12, 15. The motions have now been fully briefed and are scheduled to be heard on February 5, 2008. Also on December 3, 2007, another federal securities class action titled Wiltjer v. BigBand Networks, Inc., et al., was filed in the Superior Court for the State of California, County of San Francisco, against the Defendants. The Wiltjer case asserts only federal claims for violations of the Securities Act of 1933. On January 2, 2008, Defendants jointly removed the Wiltjer action. On January 3, 2008, the BigBand Defendants filed a Motion for Administrative Relief to Consider Whether Cases Should Be Related to relate the Wiltjer case to this first-filed action. See Docket No. 24. The Wiltjer plaintiff filed a Motion to Remand on January 18, 2008. That motion is currently set for hearing before the Honorable Charles R. Breyer on February 22, 2008 at 10:00 a.m.1 DEFENDANTS' CASE MANAGEMENT STATEMENT Given that the eight cases have not yet been consolidated, the lead plaintiff and lead plaintiff counsel have not yet been selected, and no consolidated complaint has been filed, the Defendants respectfully submit that a Case Management Statement, a Case Management Conference and a Case Management Order in the purported class action is premature at this time. Nonetheless, the Defendants submit the following: 1. Jurisdiction and Service.

Service or waivers of service have been effectuated as to all defendants in this case. At this time, there are no factual issues as to personal jurisdiction that remain unresolved. As mentioned above, the plaintiff in the Wiltjer matter has filed a motion to remand that case to the Superior Court for the State of California, County of San Francisco. 2. Facts. The current complaints allege that the Defendants violated Sections 11,

12(a)(2) and 15 of the Securities Act of 1933 and/or Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by selling or assisting in the sale of securities pursuant to a false and

The pending motion will be heard by this Court if the Wiltjer case is related to and/or consolidated with this action, as the parties have requested.
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misleading registration statement and prospectus in connection with BigBand's initial public offering, and/or by making false or misleading statements or omissions to investors after the initial public offering. 3. Motions. There are currently two pending motions for appointment as lead

plaintiff and lead counsel. The BigBand Defendants' Motion for Administrative Relief to relate the Wiltjer case is pending. The plaintiff's motion to remand is pending in the Wiltjer matter before Judge Breyer. The Defendants also anticipate that they will file a motion to dismiss the consolidated amended complaint once that complaint is filed by a court-appointed lead plaintiff. 4. Amendment of Pleadings. The Defendants anticipate that the appointed lead

plaintiff will file a consolidated complaint. 5. Evidence Preservation. The Defendants have taken reasonable steps to preserve

evidence relevant to the issues reasonably evident in this action. 6. Disclosures & Discovery. The discovery stay provisions of the Private Securities

Litigation Reform Act are applicable here. Thus, all discovery is stayed pending a determination of the sufficiency of the complaint. Once a consolidated complaint is filed, the Defendants intend to challenge the sufficiency of the allegations. 7. Related Cases. As discussed above, there are seven other substantially similar

purported class actions proceeding in the Northern District of California. Pursuant to the Stipulation and [Proposed] Order Regarding Consolidation and Scheduling (Docket No. 11), the parties all stipulated and agreed that this case and the following additional cases should all be deemed related and consolidated: Koesterer v. BigBand Netorks, Inc., et al., No. C 07-5168MMC; Winston v. BigBand Networks, Inc., et al., No. C 07-5327-MMC; Smith v. BigBand Networks, Inc., et al., No. C 07-5361-SI; Luzon v. BigBand Networks, Inc., et al., No. C 075637-WHA; Bernstein v. BigBand Networks, Inc., et al., No. C 07-05819-CRB; and Hammer v. BigBand Networks, Inc., et al., No. C 07-5825-SI. In addition, Wiltjer v. BigBand Networks, Inc., et al., No. C 08-22-CRB, should be deemed related to this action and consolidated with the others. See Docket No. 24.

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The pending lead plaintiff motions also request consolidation of these actions. The BigBand Defendants have joined in those requests. See BigBand Defendants' Response to Motions for Consolidation, Appointment as Lead Plaintiff, and Approval of Selection of Lead Counsel, Docket No. 33. * * *

The Defendants respectfully submit that the remaining topics normally covered in a Joint Case Management Statement (e.g., Settlement and ADR, Consent to Magistrate Judge Assignment, and Scheduling) are premature at this time.

Dated: January 25, 2008

WILSON SONSINI GOODRICH & ROSATI Professional Corporation

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DEFENDANTS' STATEMENT RE CASE MANAGEMENT CONFERENCE CASE NO. 3:07-CV-05101-SBA

/s/ Rodney G. Strickland, Jr. Rodney G. Strickland, Jr.

Keith E. Eggleton Joni Ostler 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 E-mail: [email protected] Attorneys for Defendants BigBand Networks, Inc., Amir Bassan-Eskenazi, Ran Oz, Frederick A. Ball, Gal Israely, Dean Gilbert, Kenneth E. Goldman, Lloyd Carney, Bruce I. Sachs, Robert J. Sachs, and Geoffrey Y. Yang Dated: January 25, 2008 ORRICK HERRINGTON & SUTCLIFFE LLP /s/ Michael C. Tu Michael C. Tu 777 South Figueroa Street Suite 3200 Los Angeles, CA 90017-5855 Tel.: (213) 629-2020 Fax: (213) 612-2499 Email: [email protected]

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Case 4:07-cv-05101-SBA

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DEFENDANTS' STATEMENT RE CASE MANAGEMENT CONFERENCE CASE NO. 3:07-CV-05101-SBA

Robert P. Varian ORRICK HERRINGTON & SUTCLIFFE LLP 405 Howard Street San Francisco, CA 94105-2669 Tel.: (415) 773-5934 Fax: (415) 773-5759 Email: [email protected] Counsel for Defendants Morgan Stanley & Co. Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Jefferies & Company, Inc., Cowen and Company, LLC and ThinkEquity Partners LLC

VERIFICATION I, Joni Ostler, am the ECF user whose identification and password are being used to file the DEFENDANTS' STATEMENT REGARDING CASE MANAGEMENT CONFERENCE. In compliance with General Order 45.X.B, I hereby attest that Rodney G. Strickland, Jr. and Michael C. Tu have concurred in this filing. Dated: January 25, 2008 WILSON SONSINI GOODRICH & ROSATI Professional Corporation By: /s/ Joni Ostler Joni Ostler

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