UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DEVEN SHAH,

Plaintiff,

v.

APPLIED MICRO CIRCUITS 

CORPORATION, et al.,

Defendants.

Case No. 17-cv-00151-VC 

ORDER DENYING MOTION TO 

WITHDRAW STIPULATION, 

GRANTING STIPULATED DISMISSAL

Re: Dkt. Nos. 11, 19, 39, 47, 49, 50

Shah's request to withdraw the stipulation of dismissal is denied. See Dkt. No. 19. The 

stipulation represents a bargained settlement between the parties – an agreement – according to 

which Shah obtained supplemental disclosures in exchange for dismissal of the action. See Dkt. 

No. 11 at 3-4; see also Los Angeles City Sch. Dist. of Los Angeles County v. Landier Mgmt. Co., 

177 Cal. App. 2d 744, 750 (1960). Shah cannot withdraw consent to this agreement at will. He 

might invoke an ordinary contract defense to defeat the agreement or avoid the obligations it 

imposes. See Reply (Dkt. No. 26) at 6-7. But he hasn't identified a contract defense applicable 

to this situation. See id. at 6 n.2; Hedging Concepts, Inc. v. First All. Mortg. Co., 41 Cal. App. 

4th 1410, 1421 & n.9 (1996), as modified on denial of reh'g (Feb. 22, 1996). Shah might invoke 

agency principles to argue that his counsel lacked the authority to stipulate to dismissal on his 

behalf. But the evidence Shah has submitted reveals, at best, only that Shah's current counsel has 

revived his belief in the merits of his claims. That's not enough to create a factual dispute 

regarding the former counsel's "specific authorization" to settle. Zamora v. Clayborn 

Contracting Grp., Inc., 28 Cal. 4th 249, 260 (2002); see also In re Clawson, 434 B.R. 556, 570-

71 (N.D. Cal. 2010). While it's true that Shah's specific authorization was memorialized in a 
2

"scripted," after-the-fact statement, Shah hasn't directly challenged that statement's accuracy or 

authenticity. See Reply (Dkt. No. 47-5) at 2; Gallagher Decl., Ex. A (Dkt. No. 39-6) at 

DS00037-38. Instead, he challenges the accuracy of the advice his former counsel gave him. 

See Holleman Decl., Ex. 2 (Dkt. No. 47-6) at DS00093; Shah Decl. (Dkt. No. 26-1) at ¶¶ 6-7. 

That sort of argument – dealing with the adequacy of representation and alleged ethical 

impropriety – belongs in a direct action against the former counsel. See, e.g., Fair v. Bakhtiari, 

195 Cal. App. 4th 1135, 1153-54 (2011).

The stipulation of dismissal is granted. See Dkt. Nos. 11, 20. This case is dismissed with 

prejudice as to Shah and without prejudice as to the remaining class members. The administrative 

motions to seal are denied because Shah's reply declaration waived the attorney-client privilege as 

to the circumstances surrounding the stipulation. See Shah Decl. at ¶¶ 6-7; Hernandez v. 

Tanninen, 604 F.3d 1095, 1100 (9th Cir. 2010). The parties must refile the provisionally sealed 

material in unredacted form within 7 days of this Order. See Civil L.R. 79-5(f). Brower Piven's

request for unsealed copies of the parties' supplemental papers is denied as moot.

If the parties anticipate a motion for attorneys' fees in this case, they should confer on a 

briefing schedule and submit a proposal within 7 days of this Order.

The Clerk of Court will close the case.

IT IS SO ORDERED.

Dated: June 23, 2017

______________________________________

VINCE CHHABRIA

United States District Judge