Case4:12-cv-05636-CW Document1 Filed11/02/12 Page3 of...

Case4:12-cv-05636-CW Document1 Filed11/02/12 Page1 of 38

1 PILLSBURY WINTHROP SHAW PITTMAN LLP DAVID M. FURBUSH (SBN 83447)

2 [email protected] JAMES M. LIINDFELT (SBN 275352) [email protected] 2550 Hanover Street Palo Alto, CA 94304-1115

5 Telephone: (650) 233-4500 6 Facsimile: (650) 233-4545

Attorneys for Defendants ENVIVIO, INC., JULIEN SINGES, ERIK E. MILLER,

8 GIANLUCA U. RATTAZZI, KEVIN E. DILLON, CORENTIN du ROY de BLICQUY, R. DAVID SPRENG,

9 CLIFFORD B. MELTZER, MARCEL GANI, TERRY D. KRAMER and EDWARD A. GILHULY

cw UNITED STATES DISTRICT COURT

12 NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

14 MICHAEL TOTH, Individually and °' ) 12 5 03 6 Behalf of All Others Similarly Situated, ) CA NO. 15 )

Plaintiff, ) San Mateo Superior Court 16 vs. ) Case No. C1V517481

)

17 ENVIVIO,INC. ) JULIEN SINGES, 18 ) NOTICE OF REMOVAL OF STATE ERIK E. MILLER, ) COURT ACTION

19 GIANLUCA U. RATTAZZI, ) KEVIN E. DILLON, )

20 CORENT1N du ROY de BLICQUY, ) R. DAVID SPRENG,

21 CLIFFORD B. MELTZER, ) ,, MARCEL GANI, )

TERRY D. KRAMER, ) 73 EDWARD A. GILHULY, ) - GOLDMAN, SACHS & CO., 24 DEUTSCHE BANK SECURITIES INC., )

STIFEL, NICOLAUS & COMPANY, ) 25 INCORPORATED, ) 26 WILLIAM BLAIR & COMPANY, L.L.C. )

and ) 27 DOES 1-25, inclusive, )

) 28 Defendants.

703938055v3 NOTICE OF REMOVAL OF STATE COURT ACTION


1 Pursuant to 28 U.S.C. §§ 1331, 1441, and 1446, and 15 U.S.C. § 77v(a), defendants

2 Envivio, Inc., Julien Singès, Erik E. Miller, Gianluca U. Rattazzi, Kevin E. Dillon, corentin

3 du Roy de Blicquy, R. David Spreng, Clifford B. Meltzer, Marcel Gani, Terry D. Kramer

4 and Edward A. Gilhuly, (collectively, "Defendants") hereby remove this case, and all

5 claims and causes of action therein, from the Superior Court of the State of California for

6 the County of San Mateo to the United States District Court for the Northern District of

7 California. In support of this Notice of Removal, Defendants set forth the following

8 grounds for removal:

9 1. On or about October 19, 2012, Plaintiff Michael Toth commenced a civil

10 action in the Superior Court of the State of California for the County of San Mateo,

11 captioned Toth v. Envivio, Inc., et al., Case No. CIV-5 17481 (the "State Court Action")

12 A true and accurate copy of all process, pleadings, and orders in the State Court Action

13 known to the Defendants is attached as Exhibit A.

14 2. Defendants have not pled, answered, or otherwise appeared in the State

15 Court Action.

16 3. This Notice of Removal is being filed before the expiration of 30 days after

17 service of the Summons and Complaint, and is thus timely filed under 28 U.S.C. § 1446(b).

18 JURISDICTION

19 4. This action is within the original jurisdiction of this Court under 28 U.S.C. §

20 1331 and 15 U.S.C. § 77v(a). The State Court Action is a putative nationwide class action

21 brought against Envivio, certain officers and directors of Envivio, and certain underwriters

22 of Envivio's April 25, 2012 initial public offering ("IPO") on the NASDAQ stock

23 exchange. The State Court Action alleges violations of the Securities Act of 1933 (the

24 "Securities Act").

25 5. This case is removable under 28 U.S.C. § 1441. Under § 1441(a), "[e]xcept

26 as otherwise expressly provided by Act of Congress, any civil action brought in a State

27 court of which the district courts of the United States have original jurisdiction, may be

7039380550 -1- NOTICE OF REMOVAL OF STATE COURT ACTION

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1 removed ... to the district court of the United States ... embracing the place where such

2 action is pending."

NJ

INTRADISTRICT ASSIGNMENT

4 6. As a securities class action, pursuant to Civil Local Rule 3-2(c), this case

5 should be assigned on a district-wide basis.

6 A. Section 22(a) Provides Exclusive Federal Jurisdiction Over Securities Act Claims

7 Involving "Covered Class Actions."

8 Section 22(a) is the jurisdictional provision of the Securities Act. As

9 originally written, Section 22(a) provided for concurrent jurisdiction between state and

10 federal courts over Securities Act claims. 15 U.S.C. § 77v(a) (1933). The Securities

11 Litigation Uniform Standards Act of 1998 ("SLUSA"), 15 U.S.C. § 77p(c), amended

12 Section 22(a) to provide that state courts will no longer have concurrent jurisdiction over

13 some claims or cases brought under the Securities Act:

14 The district courts of the United States ... shall have jurisdiction of offenses

15 and violations under this subchapter and under the rules and regulations promulgated by the Commission in respect thereto, and, concurrent with

16 State and Territorial courts, except as provided in [Section 16] of this title with respect to covered class actions, of all suits in equity and actions at law

17 brought to enforce any liability or duty created by this subchapter.

18 15 U.S.C. § 77v(a) (emphasis added to SLUSA amendments). As amended, Section 22(a)

19 deprives state courts of concurrent jurisdiction over "covered class actions" that raise

20 Securities Act claims. See, Lapin v. Faceboo/c, Inc., 2012 U.S. Dist. LEXIS 119924 (N.D.

21 Cal. Aug. 23, 2012); Knox v. Agria Corp., 613 F. Supp. 2d 419, 425 (S.D.N.Y. 2009); see 22 also, In re Fannie Mae 2008 Sec. Litig., No. 08 Civ. 7831, 2009 WL 4067266, at *2

23 (S.D.N.Y. Nov. 24, 2009); Rovner v. Vonage Holdings Corp., No. 07-178, 2007 WL

24 446658, at *34 (D.N.J. Feb. 7, 2007).

25 8. Section 16(f) defines "covered class actions" as including

26 any single lawsuit in which ... one or more named parties seek to recover damages on a representative basis on behalf of themselves and other

27 unnamed parties similarly situated, and questions of law or fact common to

28 those persons or members of the prospective class predominate over any questions affecting only individual persons or members.

703938055v3 -2- NOTICE OF REMOVAL OF STATE COURT ACTION


1 15 U.S.C. § 77p(f)(2)(A)(i)(I1). Plaintiff is a named party seeking to recover damages on a

2 representative basis on behalf of himself and other unnamed parties similarly situated and

3 common questions of law or fact allegedly predominate over individual questions. (See

4 Exhibit A). Plaintiff also is bringing claims under the Securities Act. This action therefore

5 is a "covered class action" within the meaning of Section 16. Accordingly, state courts do

6 not have jurisdiction over Plaintiff's putative class action. Federal courts alone have

7 jurisdiction to hear Plaintiffs putative class action claims under the Securities Act. See, 8 Lapin, 2012 U.S. Dist. LEXIS 119924 at *22 ("federal courts alone have jurisdiction to

9 hear covered class actions raising 1933 Act claims"); Knox, 613 F. Supp. 2d at 425.

10

11 B. Section 22(a)'s Removal Ban Does Not Apply.

12 9.Section 22(a) of the Securities Act includes an anti-removal provision,

13 which originally prohibited the removal of any Securities Act cases that were brought in

14 state court. As amended by SLUSA, however, Section 22(a) now provides as follows:

15 "[e]xcept as provided in section [16(c)] of [the Securities Act], no case arising under [the

16 Securities Act] and brought in any State court ofcompetentjurjsdjcdon shall be removed

17 to any court of the United States." 15 U.S.C. § 77v(a) (emphasis added). This anti-removal

18 provision does not apply here for two independent reasons.

19 10. First, the anti-removal provision only prohibits the removal of cases brought

20 in a "State court of competent jurisdiction." 15 U.S.C. § 77v(a). As discussed above, state

21 courts no longer have jurisdiction to adjudicate a "covered class action" raising Securities

22 Act claims and are therefore no longer courts of competent jurisdiction with respect to such

23 claims. See, Lapin, 2012 U.S. Dist. LEXIS 119924 at *23 ; Knox, 613 F. Supp. 2d at 423.

24 Accordingly, Section 22(a)'s anti-removal provision does not apply to this action. See,

25 Knox at 425.

26 11. The Court need not reach the second reason why Section 22(a)'s anti-

27 removal provision does not apply, which is supplied by Section 16(c). Section 16(c) allows

28 the removal of"[a]ny covered class action brought in any State court involving a covered

7039380550 -3- NOTICE OF REMOVAL OF STATE COURT ACTION


1 security, as set forth in subsection (b)," 15 U.S.C. § 77p(c), which subsection "makes some

2 state-law claims nonactionable through the class-action device in federal as well as state

3 court." Kircher v. Putnam Funds Trust, 547 U.S. 633, 637, n.l (2006) (discussing Section

4 16(b), 15 U.S.C. § 77p(b)). District courts are divided on the question whether Section

16(c) provides a basis for removing covered class actions that raise only federal claims

6 under the Securities Act. Some courts have interpreted Section 16(c) to allow the removal

7 of "covered class actions" raising either state law claims or Securities Act claims. See, e.g.,

8 Rubin v. Pixelpius Co., No. 06 Civ. 2964, 2007 WL 778485, at *34 (E.D.N.Y. Mar. 13,

9 2007); Brody v. Homestore, Inc., 240 F. Supp. 2d 1122, 1123-24 (C.D. Cal. 2003). Other

10 courts, however, have interpreted Section 16(c) as permitting removal of "only those

11 'covered class actions' described in § 77p(b) alleging omission or deception based upon

12 state law ...." Young v. PacfIc Biosciences of Cal., Inc., No. 11-cv-5668, 2012 WL

13 851509, at *3.4 (N.D. Cal. Mar. 13, 2012)(emphasis in original); see also, West Virginia

14 Laborers Trust Fund v. STEC Inc., No. SACV 11-01171, 2011 WL 6156945, at *4 (C.D.

15 Cal. Oct. 7, 2011) (discussing the different interpretations and holding that "subsection (c)

16 only allows for removal of actions based on state law").'

17 12. In any event, the Court need not address this division of authority over the

scope of Section 16(c)'s exception to Section 22(a)'s anti-removal provision. That is

because the logically prior question - which Young did not address - is whether Section

22(a)'s anti-removal provision applies to this case in the first instance. It does not. As

Luther v. Countrywide Home Loans Servicing LP, 533 F.3d 1031, 1032 (9th Cir. 2008), is inapposite. In Luther, the Ninth Circuit held that "the Class Action Fairness Act of 2005, which permits in general the removal to federal court of high-dollar class actions involving diverse parties, does not supersede § 22(a)'s specific bar against removal of cases arising under the [Securities] Act." (Emphasis in original). The court did not address whether the SLUSA amendments to Section 22(a) strip state Courts of jurisdiction over class actions raising claims under the Securities Act. Nor did the court have occasion to address whether the SLUSA amendments to Section 22(a) create an exception to Section 22(a)'s anti-removal provision because the parties agreed that the mortgage pass-through certificates at issue were not "covered securities." Id. at 1033 n.l; cf Madden v. Cowen & Co., 576 F.3d 957, 965 (9th Cir. 2009) (observing in the context of a removed state-law action that "any suit removable under SLUSA's removal provision, §

(continued...)

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7039380550 4- NOTICE OF REMOVAL OF STATE COURT ACTION


1 As discussed supra, Section 22(a) prohibits removal only of cases over which the state

2 courts have "competent jurisdiction." Because the state court had no jurisdiction over

3 Plaintiff's "covered class action," as the result of SLUSA, Section 22(a)'s anti-removal

4 provision does not apply and does not prohibit removal of this case. Removal is thus

5 proper under 28 U.S.C. § 1441.

6 13. Defendants will promptly serve a copy of this Notice on counsel for Plaintiff

7 and will file a copy of this Notice with the Clerk of the Superior Court of the State of

8 California for the County of San Mateo, pursuant to 28 U.S.C. § 1446(d).

9 14. Undersigned counsel certifies that all of the defendants in this action consent

10 to removal.

11

CONCLUSION

12 15. WHEREFORE, pursuant to 28 U.S.C. §§ 1331, 1441, and 1446, and 15

13 U.S.C. § 77v(a), Defendants remove this action in its entirety from the Superior Court of

14 the State of California, County of San Mateo, to the United States District Court for the

15 Northern District of California, San Francisco Division.

16

17 Dated: November 2, 2012.

18 DAVID M. FURBUSH PILLSBURY WINTHROP SHAW PITTMAN LLP

19

By 20 David M. Furbush

21

Attorneys for Defendants ENVTVIO, INC., JULIEN SINGES, ERIK E.

22 MILLER, GIANLUCA U. RATTAZZI, KEVIN E. DILLON, CORENTIN du ROY de BLICQUY, R.

23 DAVID SPRENG, CLIFFORD B. MELTZER, MARCEL GANI, TERRY D. KRAMER

24 and EDWARD A. GILHULY

25

26

27 (...continued) 77p(c), is precluded under SLUSA's preclusion provision, § 77p(b), and any suit not

28 precluded is not removable").

703938055v3 -5- NOTICE OF REMOVAL OF STATE COURT ACTION


uIn,i1


SUMMONS (CITACION JUDICIAL)

NOTICE TO DEFENDANT: (AWSO AL DEMANDADO):

ENVIVIO, INC. [See Additional Parties Attachment]

YOU ARE BEING SUED BY PLAINTIFF: (LO ESTA DEMANDANDO EL DEMANOANTE):

MICHAEL TOTI-I, Individually and On Behalf of All Others Similarly Situated,

Fow cotmr use 450W OW USO Di LA CDiT

ENDORBIJ9 FILED SAN MATEQ COUNTY

OCT 1

Csrk *1 the $uperIDr Court By__fibecQp KtlII

ru i s..i Ton nave DSSfl 5050. ins mist may decide against you without your being heard unless you respond within 30 days. Read the infomiaflon below.

You have 30 CALENDAR DAYS alter this summons and legal papers are e.rved on you to as a wckVt response at this court and have, copy served on the plai*L A letter or phone cell vA not protest you. Your written response must be in proper legal fonri If you want the court to hear your case. 1-here may be court tam that you can use for yi*x response. You can NO theso mist forms arid more information at the California Courts Online Set-Help Canter (waw.co * cs.goWasmie yaw county law library, or the courthouse naweat you. If you cannot pay the Ming is., ask the court nut for a (as waiver forts. If you do not file your response on tints, you may loss to case by de6iit and your wages, money, and property may be taken without further Warning from the Court

There we other — requkurnents. You may want to cal an attorney right away. If you do not know an attorney, you may want to call an attorney referral service If you cannot afford at attorney, you may be eligible for he iegmi services from a nonprofit legal services progreni. You can locate these norpolit groops stifle CalfotVt Legal Services Web sits (eatw. cVtrVtosQ). the California Courts Online Self-Help Center (wwcot)fo.cs.gowuislp), or by contenting your local mist or county bar assoclalon. NOTE , The court hoe statutory lien for waived isee end costs on any teStament or erbllrstton award of $10,000 or more Ina dvii cain. The miata lien must be paid before the court will daiTWis the case. 1AVISOI Lu hart denwndado. SI no responds du*u do 30 dIes, is corts pusde der4otrpn ou contra sin eacucfiar so verVtn. Las Ia kfltymecl&, a conithuaddn.

Tlena 30 DM5 DE CAL9D.4 RIO depoués do qua is erUraguer, asta ridath!styp.peisslegalae pea pressnfar one respuasta poresa*o moats cods yhecer qua as erWegu. tate — at demendsnte. (Me carla 0 ON lemeda teIeM,ifca no Jo pinleqart. Suresptarala par asc,*o dens quo ester on fonnalo b9al am, acto elcbaea quo pronesan so ceat en is code. Es poVtb goo hays tat tamtVdo qua uafedpsmda user pars arm respuaste. Puedo enmr*weatoa tamdedse do is cortey mlii Wormaden an of Cenfro doA)ida do isa Codas do CalMonn (www.sumrte.cargov), an is bM,lioteca do lay.ff do au condoriso on Is cods qua 1 guide mile came. St no ptaedo pagans cue ft do pmaen4acMn pkis *1 sscrsiarb do is mite qua Is di on fomaliedo do exendon ao pago do oudea. SIne presents su ieapuaVt a Lisny,o puado perder at case porlicsanpThi*nto y Is cone is podili quftarau au.1do, c*wo yblenea Vt mds athsslancis,

Hay aires neqotetos isgsis& Es racom.ndant, qua Rants a tat .bogado him.d'mtam.nts. Sine conoce a tat sbogado, ponds Sarnara tat awvIctb do ,emIp a abcgac*tz Si no pueris pagan a tat abogado. H pOaibis Quo csaneis con las raqtlisloa pegs cótsnanssMclog isgelpi omamas do un pnoprasna do serv*as legatos Vt the do kts. Pu.da anmiteerasfos g114t0s Vt Ihe do ltR,m an at ai web do Caabmis Legal Services

wJ9w4ta4pcaIorn1so.J. anal Cenbo do Ayoda del" Cotta, do CaIAbmla. w.suoort..ca.govj 0 pontlindo.. en conlaclo con Is code oil coisgkt do ebogedos bcVts. A VISO' Porby, in earlt time derecho a mohaner' Its ,uotsaylas males exerftsparhrcnerun gravamen sobro coalquisr ,ecsperacót do $10,000 d nale do betaieca*is medsnue tat acusi'Vt eons canoasldn do srtflre en tat cass do doreoflo cM. lions qua pager at gravamen do is code anfas do quo is coils pieds desedwaf coso. — — -

The name and address of the Court Is:

(B nombra y direcomn do is cotta as): San Mateo Superior Court a

Southern Branch - Flail of Justice - 400 County Center, Redwood City, I California, 94063

The name, address, and telephone nixnber of plabttlfrs attorney, or plaintiff without an attorney, Is: (El nombre. Is dfteccldn y of miners do ta*bno del ebogedo del demandante, a del o'emandente quo no liens abogada, as): Casey E. Sadler, 1925 Century Park East, Suite 2100, Los Angeles, CA 90067, Telephone: (310)201-9150

JOHN C. Fnrrw

OCT 191 2012., Clett, by R. KRLL (Sacretedo) (Adjunto)

(For pmof of service Of this sumnions, use Proof of Service of Sumons (bin, POS-010).) (Pare pnioba do enhrege do esle c&#IM use at fomtulanlo Proof of Service of Sumnons, (POS-010

NOTICE TO ThE PERSON SERVED; You era served 1. [j as an Individual defendant. 2, as the person sued under the Ikitltkxss name of (edfy):

3, EJ on behalf of( Voc/W.

under CCP 416,10 (corporatIon) [J CCP 416,60 (minor) COP 41820 (defunct corporation) COP 416.70 (conservatee) CCP 416.40 (association or partnership) E] CCP 416.90 (authorized person)

LJ other (specify): 4. E] by personal delivery on (dete).

P5.5lOtl SUMMONS C4ftCfCkAPW06dWMj#41M4W AKIOW counts of CanU

suit-icc rtw. Jay 1. atcs


SHORT TITLE:

CASE NUMBER:

Toth v. Envivio, Inc., et al.

INSTRUCTIONS FOR USE 9 This form may be used as an attachment to any summons if space does not permit the listing of all parties on the summons. + If this attachment is used, Insert the following statement In the plaintiff or defendant box on the summons: "Additional Parties

Attachment form is attached."

List additional parties (Check only one box. Use a separate page for each type of party):

Plaintiff [] Defendant [] Cross-Complainant [J Cross-Defendant

JULIEN SIGNES, ERIK E. MILLER, GIANLUCA U. RArFAZZI, KEVIN E. DILLON, CORENTIN DU ROY DE BLICQUY, R. DAVID SPRENG, CLIFFORD B. MELTZER, MARCEL GANI, TERRY D. KRAMER, EDWARD GILHULY, GOLDMAN, SACHS & CO., DEUTSCHE BANK SECURITIES INC., STIFEL, NICOLAUS & COMPANY, INCORPORATED, and WILLIAM BLAIR & COMPANY, L.L.C.

0

Page of

Paa. I of I FoimAdop4.dorMandrmyUse

of CMa J4I2daf Cou,d ADDITIONAL PARTIES ATTACHMENT SIJM-200(A) 18ev. .iwuaiy 1 Attachment to Summons


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LIONEL Z. GLANCY (#134180) MICHAEL GOLDBERG (#188669) ROBERT V. PRONGAY (#270796) CASEY B. SADLER (#274241) GLANCY BINKOW & GOLDBERG LLP 1925 Century Park East, Suite 2100 Los Angeles, California 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 Email: info®glancylaw.com

Attorneys for PJaintMichae1 Toth

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO

' A MICHAEL TOTH, Individually and On Case No. ' ' 81 Behalf of All Others Similarly Situated,

Plaintiff, CLASS ACTION

V.

COMPLAINT

ENVIVIO, INC., JULIEN SIGNES, ERIK E. MILLER, GIANLUCA U. RATTAZZI, DEMAND FOR JURY TRIAL KEVIN B. DILLON, COREN TIN DU ROY DE BLICQUY, it DAVID SPRENG, CLIFFORD B. MELTZER., MARCEL GANI, TERRY D. KRAMER, EDWARD GILHIJLY, GOLDMAN, SACHS & CO.. DEUTSCHE BANK SECURITIES INC., STIFEL NICOLAUS & COMPANY, INCORPORATED, and WILLIAM BLAIR & COMPANY, L.L.C.,

Defendants.

ENDORSED FUSED SAN MATEO COUNTY

OCT 19 2012

Cis*ofthi eupIrorCosa!1 By

COMPLAINT

27

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1 Plaintiff Michael Toth ("Plaintiff"), by and through his attorneys, alleges the

2 upon information and belief, except as to those allegations concerning Plaintiff, which

3 alleged upon personal knowledge. Plaintiff's information and belief is based upon, am

4 other things, his counsel's investigation, which includes without limitation: (a) review

5

6 analysis of regulatory filings made by ENVIVIO, INC. ("Envivo" or the "Company") with

7 United States Securities and Exchange Commission ("SEC"); (b) review and analysis of p:

8 releases and media reports issued by and disseminated by Envivio; and (c) review of o

9 publicly available information concerning Envivio.

10 NATURE AND SUMMARY OF THE ACTION

11

12 1. This is a class action on behalf of persons and/or entities who purchased

13 otherwise acquired the common stock of Envivio pursuant and/or traceable to the Company'

14 initial public offering (the "IPO" or the "Offering").

15 2. Envivio provides Internet protocol ("IP") video processing and 16

solutions to mobile and broadband service providers, cable multiple system operators, and 17 18 broadcast satellite service providers and content providers.

19

3. The claims in this action arise from the materially false and/or mi

20 Registration Statement and Prospectus issued in connection with the Offering. In the IPO,

21 Company sold 6,500,000 shares of common stock at a price to the public of $9.00 per sin

22 23 Additionally, certain selling stockholders of the Company, including officers and directors

24 Envivio, sold 1,255,000 shares of common stock in the Offering. According to the Company, i

25 received $54.4 million in proceeds from the IPO, net of underwriters' discounts and

26 commissions, but before deducting offering-related expenses payable by the Company of $5.8

27 million.

28

COMPLAINT -1-


I 4. As detailed below, the Registration Statement and Prospectus contai

2 materially false and misleading statements and omitted material information in violation

3 Sections 11 and 15 of the Securities Act of 1933 (the "Securities Act"), 15 U.S.C. §§ 77k

4 770.

5 JURISDICTION AND VENUE

6

7 5. The claims asserted herein arise under and pursuant to Sections 11 and 15 of

8 Securities Act (15 U.S.C. §§ 77k and 77o). This Court has jurisdiction over the subject matter c

9 this action pursuant to Section 22 of the Securities Act, 15 U.S.C. § 77v, which explicitly state

10 that "[e]xcept as provided in section 16(c), no case arising under this title and brought in an 11

12 State court of competent jurisdiction shall be removed to any court in the United States.

13 Section 16(c) of the Securities Act refers to "covered class actions," which are defined a

14 lawsuits brought as class actions or brought on behalf of more than 50 persons asserting claim

15 under state or common law. This is an action asserting federal law claims. Thus, it does not fa 16

within the definition of a "covered class action" under §16(c) and therefore is not removable t 17

is federal court under the Securities Litigation Uniform Standards Act of 1998.

19

6. Each Defendant has sufficient contacts with California, or otherwise

20 avails itself of benefits from California or has property in California so as to render the

21 of jurisdiction over each by the California courts consistent with traditional notions of fair 22 23 and substantial justice.

24 7. The amount in controversy exceeds the jurisdictional minimum of this Court,

25 the total amount of damages sought exceeds $25,000.

26 8. Venue is proper in this Court pursuant to Section 22 of the Securities Act, I

27 U.S.C. § 77v. Defendant Envivio's principal executive offices are located within this County,

COMPLAINT -2-

28


I the individual defendants conduct business in this County, and many of the acts and traii

2 alleged herein, including the preparation and dissemination of materially false and/or mi

3 information, occurred in substantial part in this County.

4 PARTIES

5

6 9. Plaintiff Michael Toth purchased Envivio securities pursuant and/or traceable

7 the Registration Statement issued in connection with the Company's IPO and has been

8 I thereby.

9 10. Defendant Envivio is a Delaware corporation with its principal executive offi

10 located at 400 Oyster Point Boulevard, Suite 325, South San Francisco, California 94080. 11

12 11. Defendant Julien Signès ("Signès") was, at all relevant times, President, Cl

13 Executive Officer ("CEO"), and a director of Envivio and signed or authorized the signing of

14 Company's Registration Statement filed with the SEC.

15 12. Defendant Erik E. Miller ("Miller") was, at all relevant times Chief Finam 16

Officer ("CFO") of Envivio and signed or authorized the signing of the Company's 17 18 I Statement filed with the SEC.

19

13. Defendant Gianluca U. Rattazzi ("Rattazzi") was, at all relevant times,

20 and a director of Envivio and signed or authorized the signing of the Company's R

21 I Statement filed with the SEC. 22

23 14. Defendant Kevin E. Dillon ('Dillon") was, at all relevant times, a director

24 Envivio and signed or authorized the signing of the Company's Registration Statement filed

25 the SEC.

26 15. Defendant Corentin du Roy de Blicquy ("Blicquy") was, at all relevant times,

27 director, of Envivio and signed or authorized the signing of the Company's Registrath 28

COMPLAINT -3-


1 I Statement filed with the SEC.

2

16. Defendant R. David Spreng ("Spreng") was, at all relevant times, a director ol

3 Envivio and signed or authorized the signing of the Company's Registration Statement filed with

4 I the SEC. 5

6 17. Defendant Clifford B. Meltzer ("Meltzer") was, at all relevant times, a director

7 Envivio and signed or authorized the signing of the Company's Registration Statement filed w

8 I the SEC.

9

18. Defendant Marcel Gani ("Gani") was, at all relevant times, a director of Envi

10 and signed or authorized the signing of the Company's Registration Statement filed with

11

12 I SEC.

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19. Defendant Terry D. Kramer ("Kramer") was, at all relevant times, a director

14 Envivio and signed or authorized the signing of the Company's Registration Statement filed

15 Ithe SEC. 16

20. Defendant Edward Gilhuly ("Gilhuly") was, at all relevant times, a director 17

18 Envivio and signed or authorized the signing of the Company's Registration Statement filed w

19 I the SEC.

20

21. Defendants Signès, Miller, Ratta.zzi, Dillon., Blicquy, Spreng, Meltzer, Ga

21 Kramer, and Gilhuly, are collectively referred to hereinafter as the "Individual Defendants." 22

23 22. Defendant Goldman, Sachs & Co. ("Goldman Sachs") served as an underwriter

24 Envivio in connection with the Offering.

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23. Defendant Deutsche Bank Securities Inc. ("Deutsche") served as an

26 Ito Envivio in connection with the Offering.

27 24. Defendant Stifel, Nicolaus & Company, Incorporated ("Stifel") served as

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COMPLAINT -4-


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underwriter to Envivio in connection with the Offering.

25. Defendant William Blair & Company, L.L.C. ("William Blair") served as

underwriter to Envivio in connection with the Offering.

26. Defendants Goldman Sachs, Deutsche, Stifel, and William Blair, are collective]

referred to hereinafter as the "Underwriter Defendants."

CLASS ACTION ALLEGATIONS

27. Plaintiff brings this action as a class action pursuant to California Code of Civ

Procedure Section 382 on behalf of a Class, consisting of all persons and/or entities wh

purchased or otherwise acquired the common stock of Envivio pursuant and/or traceable to th

Company's false and/or misleading Registration Statement and Prospectus issued in connectio:

with the Company's IPO, and who were damaged thereby (the "Class"). Excluded from th

Class are Defendants, the officers and directors of the Company, at all relevant times, member

of their immediate families and their legal representatives, heirs, successors or assigns and an'

entity in which Defendants have or had a controlling interest.

28. The members of the Class are so numerous that joinder of all members i

impracticable. During the relevant period, Envivio's securities were actively traded on th

NASDAQ Stock Exchange (the "NASDAQ"), While the exact number of Class members i.

unknown to Plaintiff at this time and can only be ascertained through appropriate discovery

Plaintiff believes that there are hundreds or thousands of members in the proposed Class. Mon

than seven million shares of common stock were offered to the public in the 1PO. Moreover,

record owners and other members of the Class may be identified from records maintained by

Envivio or its transfer agent and may be notified of the pendency of this action by mail, using the

form of notice similar to that customarily used in securities class actions.

COMPLAINT -5-


I 29. Plaintiffs claims are typical of the claims of the members of the Class as

2 members of the Class are similarly affected by Defendants' wrongful conduct in violation

3 federal law that is complained of herein.

4 30. Plaintiff will fairly and adequately protect the interests of the members of

5 6 Class and have retained counsel competent and experienced in class and securities litigation.

7 31. Common questions of law and fact exist as to all members of the Class

8 predominate over any questions solely affecting individual members of the Class. Among

9 questions of law and fact common to the Class are:

10 (a) whether the Securities Act was violated by Defendant? acts as

11 12 herein;

13 (b) whether statements made by Defendants to the investing public

14 connection with the Company's IPO omitted and/or misrepresented material facts about

15 business, operations, and prospects of Envivio; and 16

17 (c) to what extent the members of the Class have sustained damages and

18 proper measure of damages.

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32. A class action is superior to all other available methods for the fair and

20 adjudication of this controversy since joinder of all members is impracticable. Furthermore,

21 the damages suffered by individual Class members may be relatively small, the expense 22 23 burden of individual litigation make it impossible for members of the Class to individi

24 redress the wrongs done to them. There will be no difficulty in the management of this action

25 a class action.

26 BACKGROUND

27 33. Envivio provides IP video processing and distribution solutions to mobile

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COMPLAINT -6-


1 broadband service providers, cable multiple system operators, and direct broadcast

2 service providers and content providers.

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34. On or about April 15, 2011, Envivio filed a registration statement with the

4 on Form S- 1. Thereafter, the Company repeatedly amended the Form S- 1, including on or 5 6 April 24, 2012, when Envivio filed with the SEC the final Form S-i/A (collectively,

7 "Registration Statement") for the IPO.

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35. On or around April 25, 2012, the Company filed with the SEC its IPO

9 (the "Prospectus"), which forms part of the "Registration Statement" that was declared

10 on April 24, 2012. 11

12 36. In the IPO, the Company sold 6,500,000 shares of common stock at a price to

13 public of $9.00 per share. Additionally, certain selling stockholders of the Company, includ

14 officers and directors of Envivio, sold 1,255,000 shares of common stock in the Offeri

15 According to the Company, it received $54.4 million in proceeds from the IPO, net 16 17 underwriters' discounts and commissions, but before deducting offering-related expeii

18 payable by the Company of $5.8 million.

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ENVIVIO'S FALSE AND/OR MISLEADING REGISTRATION STATEMENT AND PROSPECTUS

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21 37. The Registration Statement and Prospectus were negligently prepared and, as

22 result, contained untrue statements of material facts or omitted to state other facts necessary

23 make the statements made not misleading and were not prepared in accordance with the

24 and regulations governing their preparation. 25

26 38. Under applicable SEC rules and regulations, the Registration Statement

27 required to disclose known trends, events or uncertainties that were having, and were

28 likely to have, an impact on the Company's continuing operations.

COMPLAINT -7-


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39. The Registration Statement and Prospectus represented the Company's

strategy, in relevant part, as follows:

Our Growth Strategy

Our objective is to become the leading multi-screen video delivery solution to service providers and content providers. The key elements of our growth strategy are:

Capitalize on our early commercial leadership - We intend to exploit our lead in commercialization of our video processing and distribution solutions to expand our footprint of customers across leading service providers and content providers.

Continued innovation of our software-based, multi-screen solution - We intend to leverage our core I? video technology strength to develop new products with enhanced software-based capabilities to further demonstrate the value of our solution and increase our long-term revenue opportunities.

• Increase our share of our customers' network footprint - We intend to expand our relationships with our customers by offering additional products, including the addition of mobile or IPTV capabilities or the extension of our services to new geographies or content offerings.

• Maximize our sales distribution capabilities to add new customers - We intend to further broaden our customer and geographic presence through expanded channel partnerships with new and existing partners. We also intend to further develop our direct sales capabilities to capitalize on the emerging and rapidly growing OTT market.

• Extend our solution through complementary products - We intend to develop new products and features for our customers through internal development, potential acquisitions and partnerships.

40. The Registration Statement and Prospectus represented that decreases or delays

capital spending was a risk factor, and made the following representation:

Risks Related to Our Business

We depend On the capital spending of telecommunkations gable ad satellite service providers, as well as broadcast, media and Internet content providers for a substantial majority of our revenue and any material decrease or delay in capital spending in these industries would negatively impact our operating results, financial condition and cash flows.

COMPLAINT -8-


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A substantial majority of our historical revenue has been derived from sales to telecommunications, cable and satellite service providers, as well as, more recently, the emerging broadcast, media and Internet content providers. We expect that revenue from all of these markets will constitute a substantial majority of our revenue for the foreseeable future. Because many of our customers in these markets purchase our products in connection with constructing and upgrading their architecture and systems, demand for our products will depend on the magnitude and timing of capital spending by our customers.

Our customers' capital spending patterns are dependent on a variety of factors, including:

S

the impact of industry consolidation;

overall demand for communications services and consumer acceptance of new video and data services;

competitive pressures, including pricing pressures;

access to financing;

• general economic conditions;

• annual capital spending budget cycles of each of the industries that our customers serve;

federal, local and foreign government regulation of telecommunications and television broadcasting;

evolving industry standards and network architectures; and

discretionary consumer spending patterns.

In the past, specific factors contributing to reduced capital spending by our customers have included:

• uncertainty related to the development of digital video industry standards;

• delays in the evaluation of new. services, standards and system architectures by many operators;

• emphasis by operators on generating revenue from existing customers, rather than from new customers through new construction or network

- upgrades;

•

•

COMPLAINT -9-


a reduction in the amount of capital available to finance projects;

proposed and completed business combinations and divestitures by our customers and the length of regulatory review thereof; and

bankruptcies and financial restructuring of customers.

* * *

As a result of these capital spending issues, we may not be able to maintain or increase our revenue in the future, and our operating results, financial condition and cash flows could be materially and adversely affected.

41. However, the Registration Statement and Prospectus were materially false

misleading and/or omitted to state the following: (1) that due to budgetary constraints

significant number of the Company's customers were already delaying capital spending in t

multi-screen video industry; and (2) that the sales cycle for new business was lengthening I

Envivio since it was taking significantly more time for it to complete business transactions.

42. On August 13, 2012, the Company issued a press release entitled, "Envi

Provides Preliminary Revenue Results for Second Quarter Fiscal 2013." Therein, the Company

in relevant part, stated:

Envivio (NASDAQ: ENVI), a leading provider of live and on-demand multi-screen IP video processing and delivery solutions, today announced that it expects revenue for the quarter ending July 31, 2012 to be in the range of $10 million to $11 million, as compared to its previous guidance of $17 million to $18 million.

"Our preliminary revenue results reflect a general slowdown in spending by our service provider customers, in particular in North America and Western Europe, Which have been two key growth areas of the Company in the last two years," said Julien Signès, president and CEO, Envivio. "During the second quarter, we did not see any changes to our competitive positioning, and our win/loss ratio in the multi-screen market remains consistent with prior experience. Despite this, we experienced a slowdown of major project implementations and a lengthening of sales cycles ;, which we attribute to the. current global economic environment. We are disappointed in these results and are conducting a full review of our operations. We will provide a further update in our full earnings release and related earnings call, scheduled for September 6, 2012."

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COMPLAINT -10-


43. On this news, shares of the Company's stock declined $3.22 per share, or 56.

Ilto close at $2.48 per share on August 14, 2012.

44. After the close of the market on September 6,2012, the Company issued a

release entitled, "Envivio Reports Second Quarter Fiscal 2013 Financial Results." Therein,

Company, in relevant part, stated:

Envivio (NASDAQ: ENVI), a leading provider of live and on-demand multi-screen 1P video processing and delivery solutions, today announced financial results for the second quarter of fiscal 2013 ended July 31, 2012.

Financial Highlights

• Revenue for the second quarter of fiscal 2013 was $10.8 million, compared to $11.5 million in the second quarter of fiscal 2012.

• GAAP net loss for the quarter was $4.3 million, or $0.16 per share, compared to net income of $55,000, or $0.00 per share, in the second quarter of fiscal 2012.

• Non-GAAP net loss for the quarter was $3.5 million or $0.13 per share, compared to net income of $425,000 or $0.03 per share in the second quarter of fiscal 2012. A reconciliation of the difference between these non-GAAP financial measures with the most directly comparable GAAP measures, as well as a description of the items excluded from the non-GAAP measures, is included in the financial statements portion of this press release.

"Our results for the second quarter reflect project delays by our service provider customers and the impact of the macroeconomic environment. We are disappointed in our quarterly performance and have taken actions to reduce our cost structure," said Julien Signès, president and CEO, Envivio. "However, we do not view the revenue shortfall as indicative of the market backing away from multi-screen deployments. Our win rates have remained consistent and recent advances in our 4Caster and Muse encoding products as well as new features in our Halo network media processor strengthen our solution portfolio."

45. Additionally, also on September 6, 2012, the Company held a conference

with investors, analysts, and other market participants, to discuss the Company's financial re

for the 2013 fiscal third quarter. Defendants Signès and Miller were present. Therein, Signès,

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COMPLAINT -11-


relevant part, stated:

Consistent with our announcement on August 13, our revenue for the second fiscal quarter was $10.8 million, which was down 6% year-over-year and down 20% sequentially and significantly below our guidance. Let me review what happened in the quarter.

As we stated in our earlier announcement, the shortfall was primarily due to a general slowdown in spending by our service provider customers. This slowdown in spending materialized late in the quarter, particularly in North America and Europe regions which comprised of approximately 75% of revenue in the second quarter.

In the second quarter we experienced a significant number of project delays to later quarters with our existing customers. While we always anticipate some project delays in our forecast, the number of delays related to our closed business was significantly higher than in past quarters. The majority of those delays were due to longer budget cycles, which resulted from the weakening global economic environment. In one example, a large existing customer in Western Europe had a 300,000 project schedule to ship in fiscal Q2 that is now scheduled to ship in Q4.

In addition, with existing customer projects that were not delayed we saw smaller-than-expected orders due to budgetary restrictions. For example, one of our North American Tier 1 operator had a $1.5 million project forecasted for the 2Q, which resulted in a $500,000 partial rollout and the remaining order is now scheduled to be rolled out over the next several quarters.

In addition, customer caution resulted in longer sales cycles for new projects. While historically the RFP process has been in a three to six months range we are seeing new RFPs expected to take as long as six to 12 months to be completed. For instance, we expected to close a $2 million project with a North American telco in Q2, but the RFP process has been lengthened and we are now forecasting this to be awarded in Q4.

46. On this news, shares of the Company's stock declined $0.46 per share, or 17.1

Ito close at $2.22 per share on September 7, 20122. This closing price of Envivio common

represented a cumulative loss of $6.78, more than 75%, of the value of the Company's shares

the time of its IPO just months earlier.

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COMPLAINT -12-

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1

FIRST CLAIM Violation of Section 11 of The Securities Act

- 2

(Against All Defendants)

3

47. Plaintiff repeats and realleges each and every allegation contained above, excep

4 any allegation of fraud, recklessness or intentional misconduct. 5

6 48. This Count is brought pursuant to Section 11 of the Securities Act, 15 U.S.0

7 §77k, on behalf of the Class, against all Defendants.

8

49. The Registration Statement for the IPO was inaccurate and misleading,

9 untrue statements of material facts, omitted to state other facts necessary to make the statem 10 ii made not misleading, and omitted to state material facts required to be stated therein.

12 SO. Envivio is the registrant for the IPO. The Defendants named herein v

13 responsible for the contents and dissemination of the Registration Statement.

14

51. As issuer of the shares, Envivio is strictly liable to Plaintiff and the Class for

15 misstatements and omissions. 16

17 52. None of the Defendants named herein made a reasonable investigation

18 possessed reasonable grounds for the belief that the statements contained in the Regi

19 Statement were true and without omissions of any material facts and were not misleading.

20

53. By reasons of the conduct herein alleged, each Defendant violated,

21 controlled a person who violated Section 11 of the Securities Act. 22

23 54. Plaintiff acquired Envivio shares pursuant and/or traceable to the

24 I Statement for the IPO.

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55. Plaintiff and the Class have sustained damages. The value of Envivio

26 stock has declined substantially subsequent to and due to Defendants' violations. 27

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COMPLAINT -13-


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SECOND CLAIM Violation of Section 15 of The Securities Act

(Against the Individual Defendants)

56. Plaintiff repeats and realleges each and every allegation contained above,

any allegation of fraud, recklessness or intentional misconduct.

57. This count is asserted against the Individual Defendants and is based upon

15 of the Securities Act.

58. Individual Defendants, by virtue of their offices, directorship and specific

were, at the time of the wrongs alleged herein and as set forth herein, controlling persons

Envivio within the meaning of Section 15 of the Securities Act. The Individual Defendants

the power and influence and exercised the same to cause Envivio to engage in the acts

herein.

59. Individual Defendants' positions made them privy to and provided them

actual knowledge of the material facts concealed from Plaintiff and the Class.

60. By virtue of the conduct alleged herein, the Individual Defendants are liable

the aforesaid wrongful conduct and are liable to Plaintiff and the Class for damages suffered.

WHEREFORE, Plaintiff prays for relief and judgment, as follows:

(a) Determining that this action is a proper class action under California Code

Civil Procedure Section 382;

(b) Awarding compensatory damages in favor of Plaintiff and the other Cl

members against all Defendants, jointly and severally, for all damages sustained as a result

Defendants' wrongdoing, in an amount to be proven at trial, including interest thereon,

(c) Awarding Plaintiff and the Class their reasonable costs and expenses incurred in

this action, including counsel fees and expert fees;

COMPLAINT -14-

28


(d) Awarding rescission or a rescissory measure of damages; and

(e) Such other and further relief as the Court may deem just and proper.

JURY TRIAL DEMANDED

Plaintiff hereby demands a trial by jury.

IDated: October 19, 2012

GOLDBERG LLP

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Lo Lionel Z. Glancy Michael Goldberg Robert V. Prongay 1925 Century Park East, Suite 2100 Los Angeles, California 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160

Attorneys for Plaintiff Michael Toth

COMPLAINT -15-


a - Glancy nkow & Ooldberg LLP 1925 Century Pak East, Suite 2100 Los Angeles, CA 90067

(310) 201 -9150 FAX WO, (310)201-9160 Plaintiff Michael Toth

jmmmcouFrroFc^Lwo#**A,coumycw San Mateo STREET AOE$t 400 County Center vs&aao°nssn 400 County Center

oncoce Redwood City, 94063 Southern Branch

CASE NAME

FOR COUQ.TU*1 OaLV

RE VED OCT 1 2012

-

Michael 1OW V. 1nvivio1jnc., et CIVIL CASE COVER SHEET

[I] Unlimited [J Limited (Amount (Amount demanded demanded I, exceeds $25,000) $25,000 or 10

complex Gee. DesIgnation

cJ Flied vAh fksl appearance by doMndint

(Cal. Rdes of Coast rule 3.402) oT

1. Check one box below for the case type thai Auto Tort

Auto (22)

:3 U Unlnsswad moiolst (48)

Other PVPDJWD (Personal hijuryiPropsity DamageMrongtul Death) Ted

g El Asbestos (04)

o El Product lisblty (24) UA El Medical malpractIce (46)

U. z El oilier pupcwo (23) D l4on-PIIPD1WD (Other) Tort

El Busines, tortlun(aM business practice (07) civil Vft (00 ) El

El Defamation (13)

El Fraud(16)

El Intellectual property (19)

El Professional neglgence (25) El

other OOnPVPD/WD tort (35)

Wrongful terminatIon (36)

rest describes this me.; Contract

El Breesh of WntwW,,mty (06) El Rule 3.740 collection, (09)

R Other cotIedicn. (09)

tnsursnc* coverage (18)

El oeier asisct (37) Reel Properly

El EmMeotdomatMn, condemnation (14)

El WmgM eviction33)

El Other teal properly (26)

Uni I D.t.tr..r Commercial (31)

R.atdent!al (32)

El Drugs (38) Judicial Review

El A..Ma (05)

El Petilon is: arbitration award (11)

[writ of mandate (02)

Provisionally Complex Clvi Utigatlon (Cal. Rule. of Court. rule. 3400..3 403)

El AnfiIrusVTmd. rsjla,n (03)

R Con.tructlondeiec$(10)

Mass tort (40)

Securities lilgetion (28) EnvrnnientsitToxlc but (30)

El

WWI. *raQe dekns arising han the above fisted provisionally complex case types (41)

Enforcement of Judgment

El Enforcement o(idgmen1 (20)

MIsesllan.ou. CivIl Complaint

El RICO (21) El Other complaint (not specified above) (42)

Mh*caIlsn.ous Civil Petition El Partnerahlp and corporate governance (21)

El Other petition (not specated above) (43)

2. This case LU is U Is not complex under rule 3.400 of the California Rule, of Court. If the case Is complex, mark the factors requiring exceptional judicial management

a. El Large number of separately represented perties d. El Large number of witnesses

b. [2] Extensive motion practice raieing difficult or novel a. El Coor5nalion with related actions pending in one or more courts

Issues that will be lime-consuming to resolve in other counties, states, or countries, or in a federal court

c. [I] Substantial amount of documentary evidence 1. M Substf

r

Judicial isbn

3. Remedies sought (check all that appr): a.[Z] monetary b.l:z] nonmon r Inju relief C. Punitive 4. Nuniberofcausesofadlon(spoctI): 2-Violations of Section 11 an uri' Act;

5. ThIs case is El Is not a class action suit8. If there are any known related cases, file and serva a notice of related cas

Date: October 19, 2012 Casey B. Sadler ____________________

rRE OR Pn,(T suer, or on rrorev FOR PA" NOTICE

• Plaintiff must bile this cover sheet with the first paper filed in the action or (except email claims cases or cases Sled under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result in sanctions.

• File this coversheet in addition to any cover sheet required by local court nile, • If this case Is complex under rule 3.400 at seq. of the California Rules of Court, you must serve a copy of this cover sheet on sO

other parties to the action or proceeding. • Unless this Ina collections case under rule 3.740 or a complex caee this cover sheet will be used for statistical purposes only.

raral of

FmnMSd fW l*idairiy Uw CIVIL CASE COVER SHEET cy ftWs 01 Coill, nw i3). 323), 3.400-3403, 3740 J*l Coi,,J of ciiw car at AXkW AJ,..JL4.., .01. 3.10 ciroic Rae. .My 1, 3)O7


cc -J

.q u u.O >- _J

D

Attorney or Party without Attorney (NameiAddress) FOR COURT USE ONLY Casey E. Sadler (S EN 274241) Glancy Binkow & Goldberg LLP 1925 Century Park East,#2100,Loa Angeles,CA Telephone: (310) 201-9150

ENDORSED FILE! StateBarNo.: 274241 Aflomeyfor SAN Michael Toth lEO COUNT SUPERIOR COURT OF CALIFORNIA COUNTY P SAN MATEO OCT 1 9 400 COUNTY CENTER

B REDWOOD CITY, CA 94063 C.d of Courl Plaintiff Michael Toth

Y__R

Defendant Envivio, Inc., et al.

Case Number Certificate Re Complex Case Designation CIV J 1 74 81

This certificate must be completed and filed with your Civil Can Cover Sheet if you have checked a Complex Case designation or Counter-Designation

1.

In the attached Civil Case Cover Sheet, this case is being designated or counter-designated as a complex case (or as not a complex case] because at least one or more of the following boxes has been checked:

Box i — Case type that is best described as being [or not being] provisionally complex civil litigation (i.e., antitrust or trade regulation claims, construction defect claims involving many parties or structures, securities claims or investment losses involving many parties, environmental or toxic tort claims involving many parties, claims involving mass torts, or insurance coverage claims arising out of any of the foregoing claims). Box 2 - Complex [or not complex] due to factors requiring exceptional judicial management Box 5—Is [or is not] a class action suit.

2. This case is being so designated based upon the following supporting information [including, without limitation, a brief description of the following factors as they pertain to this particular case: (1) management of a large number of separately represented parties; (2) complexity of anticipated factual and/or legal issues; (3) numerous pretrial motions that will be time-consuming to resolve; (4) management of a large number of witnesses or a substantial amount of documentary evidence; (5) coordination with related actions

iA

Ell

CV-59 [Rev. 1/061 www.ssnmateocourtOrg


pending in one or more courts in other counties, states or countries or in a federal court; (6) whether or not certification of a putative class action will in fact be pursued; and (7) substantial post-judgment judicial supervision]:

This is a putative class action brought by Plaintiff on behalf of

nurchasers of the common stock of Envjyip, Inc.. in connection

with the company's Initial Public Offering. Plaintiff alleges that

the offering materials issued in connection with the -.2f fering

were materially false and misleading and/or ommitted material

facts required to be stated therein. [See additional attached page]

(attach additional pages if necessary)

Based on the above-stated supporting information, there is a reasonable basis for the complex ease designation or counter-designation [or noncomplex case counter-designation] being made in the attached Civil Case Cover Sheet.

1, the undersigned counsel or self-represented party, hereby certify that the above is true and correct and that I make this certification subject to the applicable provisions of California Code of Civil Procedure, Section 128.7 and/or California Rules of Professional Conduct, Rule 5-200 (B) and San Mateo County Superior Court Local Rules, Local Rule 2,30. /

Dated: October 19, 2012

Casey E. Sadler [Type or Print Name] [Tgnatuep1'ty or Attorney For Party]

CV-59 [Rev. 1/06] Www.samnatcocourt.org


Li

ATTACHMENT TO CERTIFICATE RE COMPLEX DESIGNATION

Resolution of the claims will undoubtedly present challenging and complex legal and factual

issues and would be handled most efficiently and effectively by the Complex Litigation

Department.


Superior Court of California County of San Mateo

Civil Department 400 County Center

Redwood City, CA 94063-1655 (650)363-4599

www.sanmateocourt.org

MICHAEL TOTh I Notice of Complex Case Status Conference Plaintiff(s)

VS. I Case No.: CIV 517481 Date: 12/18/12 ENVIVIO INC Defendant(s) Time: 9:00 AM

Dept. 3

Title: MICHAEL 10TH VS ENVIVI0 INC ETAL

You are hereby given notice of your Complex Case Status Conference. The date, time and department have been written above. At this conference, the Presiding Judge will decide whether this action is a complex case within the meaning of California Rules of Court ("CRC"), Rule 3.400, subdivision (a) and whether it should be assigned to a single judge for all purposes.

1. In accordance with applicable San Mateo County Local Rule 2.30, you are hereby ordered to: a. Serve copies of this notice, your Civil Case Cover Sheet, and your Certificate Re: Complex

Case Designation on all named parties in this action no later than service of your first appearance pleadings.

b. Give reasonable notice of the Complex Case Status Conference to all named parties in this action, even if they have not yet made a first appearance or been formally served with the documents listed in subdivision (a). Such notice shall be given in the same manner as required for an ex parte application pursuant to CRC 3.1203.

2. If you fail to follow the orders above, you are ordered to show cause why you should not be sanctioned. The Order To Show Cause hearing will be at the same time as the Complex Case Status Conference. Sanctions may include monetary, evidentiary or issue sanctions as well as striking pleadings and/or dismissal.

3. An action is provisionally a complex case if it involves one or more of the following types of claims: (1) antitrust or trade regulation claims; (2) construction defect claims involving many parties or structures; (3) securities claims or investment losses involving many parties; (4) environmental or toxic tort claims involving many parties; (5) claims involving massive torts; (6) claims involving class actions; or (7) insurance coverage claims arising out of any of the claims listed in subdivisions (1) through (6). The Court shall treat a provisionally complex action as a complex case until the Presiding Judge has the opportunity to decide whether the action meets the definition in CRC 3.400(a).

4. Any party who files either a Civil Case Cover Sheet (pursuant to CRC 3.401) or a counter or joinder Civil Case Cover Sheet (pursuant to CRC 3.402, subdivision (b) or (c)), designating an action as a complex case in Items 1,2 and/or 5, must also file an accompanying Certificate Re: Complex Case Designation in the form prescribed by the Court. The certificate must include supporting information showing a reasonable basis for the complex case designation being sought. Such supporting information may include, without limitation, a brief description of the following factors as they pertain to the particular action: (1) management of a large number of

Form: CCSC


separately represented parties; (2) complexity of anticipated factual and/or legal issues; (3) numerous pretrial motions that will be time-consuming to resolve; (4) management of a large number of witnesses or a substantial amount of documentary evidence; (5) coordination with related actions pending in one or more courts in other counties, states or countries or in a federal court; (6) whether or not certification of a putative class action will in fact be pursued; and (7) substantial post-judgment judicial supervision.

For further information regarding case management policies and procedures, see the court website at www.sanmateoeourt.org

* Telephonic appearances at Complex Case Status Conference are available by contacting CourtCall, LLC, an independent vendor, at least 5 business days prior to the scheduled conference.

CLERK'S CERTIFICATE OF MAILING

I hereby certify that I am the clerk of this Court, not a party to this cause; that I served a copy of this notice on the below date, by placing a copy thereof in separate sealed envelopes addressed to the address shown by the records of this Court, and by then sealing said envelopes and depositing same, with postage fully pre-paid thereon, in the United States Mail at Redwood City, California.

Date: 10/19/12

John C. Fitton, Court Executive Officer/Clerk

By: REBECCA KRILL Deputy Clerk

Copies mailed to:

CASEY E SADLER 1925 CENTURY PARK EAST SUITE 2100 LOS ANGELES CA 90067

Form: CCSC


NOTICE OF CASE MANAGEMENT CONFERENCE

74 j .7 A&OL Case No.

Date: 3 e g VS. tkt*4 : 9:00 a.m.

t 4 .1,9 " '*~7 - on Tuesday & Thursday

—J Dept. on Wednesday

You are hereby given notice of your Case Management above.

time and department have been written

In accordance with applicable California Rules of Court and Local Rules 2.3(d)1-4 and 2.3(m),-you are hereby ordered to:

a. Serve all named defendants and file proofs of service on those defendants with the court within 60 days of filing the complaint (CRC 201.7).

b. Serve a copy of this notice, Case Management Statement and ADR Information Sheet on all named parties in this action.

c. File and serve a completed Case Management Statement at least 15 days before the Case Management Conference [CRC 212(g)]. Failure to do so may result in monetary sanctions.

d. Meet and confer, in person or by telephone, to consider each of the issues identified in CRC 212(f) no later than 30 days before the date set for the Case Management Conference.

2. If you fail to follow the orders above, you are ordered to show cause why you should not be sanctioned. The Order To Show Cause hearing will be at the same time as the Case Management Conference hearing. Sanctions may include monetary, evidentiary or issue sanctions as well as striking pleadings and/or dismissal.

3. Continuances of case management conferences are highly disfavored unless good cause is shown. 4. Parties may proceed to an appropriate dispute resolution process ("ADR") by filing a Stipulation To ADR

and Proposed Order (see attached form.). If plaintiff files a Stipulation To ADR and Proposed Order electing to proceed to judicial arbitration, the Case Management Conference will be taken off the court calendar and the case will be referred to the Arbitration Administrator. If plaintiffs and defendants file a completed stipulation to another ADR process (e.g., mediation) 10 days prior to the first scheduled case management conference, the case management conference will be continued for 90 days to allow parties time to complete their ADR session. The court will noti fy parties of their new case management conference date.

5 If you have filed a default or a judgment has been entered, your case is not automatically taken off the Case Management Conference Calendar. If "Does", "Roes", etc. are named in your complaint, they must be dismissed in order to close the case. If any party is in bankruptcy, the case is stayed only as to that named party.

6. You are further ordered to appear in person* (or through your attorney of record) at the Case Management Conference noticed above. You must be thoroughly familiar with the case and fully authorized to proceed.

7. The Case Management judge will issue orders at the conclusion of the conference that may include: a. Referring parties to voluntary ADR and setting an ADR completion date; b. Dismissing or severing claims or parties; c. Setting a trial date.

8. The Case Management judge may be the trial judge in this case.

For further information regarding case management policies and procedures, see the court's website at www .sanmateocouitor.

T.elephonicpperaces a; case management conferences are available by contacting.CourtCall, LLC, an independent vendor, at least 5 business days prior to the scheduled conference (see attached CourtCall information).


CM-IllS

ATTORNEY OR PARTY WITHOUT ATTORNEY (Name. State Bw nvmbe, and address). FOR COURT USE ONLY Christopher P. Seefer Robbins Geller Rudman & Dowd LLP One Montgomery Center, Suite 1800 San Francisco, CA 94104

TELEPHONE NO 415/288-4545 FAX NO (Optiona)

E-MAIL ADDRESS (OpfionaQ

ATTORNEY FOR (Name): Plaintiff Joe M. Wiley

SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Mateo STREET ADDRESS: 400 County Center MAILING ADDRESS.

CI1YANOZIPCODE: Redwood City, CA 94063 BRANCH NAME: Hall of Justice and Records

PLAINTIFF/PETITIONER: Michael Toth CASE NUMBER

CIV5 17481 DEFENDANT/RESPONDENT: Envivio, Inc., et al. JUOKIALOfFICER:

DEPT.:

NOTICE OF RELATED CASE

Identify, in chronological order according to date of filing, all cases related to the case referenced above.

1. a. Title: Wiley v. Envivio, Inc., et al. b. Case number: C1V517185 c. Court: L same as above

other state or federal court (name and address):

d Department:

e. Case type: Lilill limited civil LIZI unlimited civil = probate [El family law [] other (specify):

f. Filing date: October 5, 2012 g. Has this case been designated or determined as complex?" Li Yes Li No

h. Relationship of this case to the case referenced above (check all that apply):

involves the same parties and is based on the same or similar claims.

LU arises from the same or substantially identical transactions, incidents, or events requiring the determination of

the same or substantially identical questions of law or fact.

Li involves claims against, title to, possession of, or damages to the same property.

L12J is likely for other reasons to require substantial duplication of judicial resources if heard by different judges.

EZ:J Additional explanation is attached in attachment I h

i. Status of case:

111211 pending [E dismissed [E with Lillil without prejudice

[E disposed of by judgment

2. a. Title:

b. Case number:

c. Court: [111111] same as above

Li other state or federal court (name and address):

Cl. Department:

Pa.1 of 3 Form Approved fof Optional Use Cal Rije NOTICE OF RELATED CASE uof Court, rule 3.300

CM-015 tRee. July 1, 20071


CM-015

PLAINTIFF/PETITIONER: Michael Toth

CASE NUMBER

DEFENDANT/RESPONDENT: Envivio, Inc., et al. CIV5 17481

2. (continued)

e. Case type: Ei limited civil Eli] unlimited civil TJ probate EIJ family law Eli other (specify):

1. Filing date:

g. Has this case been designated or determined as "complex? LIII Yes [Ill] No


EIIl involves the same parties and is based on the same or similar claims.

L.J arises from the same or substantially identical transactions, incidents, or events requiring the determination of


LIII involves claims against, title to, possession of, or damages to the same property.

E1IIi] is likely for other reasons to require substantial duplication of judicial resources if heard by different judges.

Eli Additional explanation is attached in attachment 2h

i. Status of case:

pending

Eli dismissed = with [III] without prejudice

LJ disposed of by judgment

3. a. Title:

b. Case number:

c. Court: [1111] same as above

LIII other state or federal court (name and address):

d. Department:

e. Case type: El limited civil El unlimited civil = probate El family law [Ti] other (specify):

f. Filing date:

g. Has this case been designated or determined as 'complex?' Eli Yes EEJ No


El involves the same parties and is based on the same or similar claims.

L..J arises from the same or substantially identical transactions, incidents, or events requiring the determination of


involves claims against, title to, possession of, or damages to the same property.

is likely for other reasons to require substantial duplication of judicial resources if heard by different judges.

Liii] Additional explanation is attached in attachment 3h

i. Status of case:

LJ pending

dismissed = with = without prejudice

disposed of by judgment

4. = Additional related cases are described in Attachment 4. Number of pages attached:

Date: October 26, 2012

Christopher P. Seefer (TYPE OR PRINT NAME OF PARTY OR ATTORNEY)

(SIGNATURE OF PARTY OR

CM-015 (Rev. July 1, 2007)


Page 2 of 3


CM-015 PLAINTIFF/PETITIONER - Michael Toth

CASE NUMBER

DEFENDANT/RESPONDENT: Envivio, Inc., et al. CIV5 17481

PROOF OF SERVICE BY FIRST-CLASS MAIL


(NOTE: You cannot serve the Notice of Related Case if you are a party in the action. The person who served the notice must complete this proof of service. The notice must be served on all known parties in each related action or proceeding.)

I am at least 18 years old and not a party to this action. I am a resident of or employed in the county where the mailing took place, and my residence or business address is (specify):

2. I served a copy of the Notice of Related Case by enclosing it in a sealed envelope with first-class postage fully prepaid and (check one):

a. LI) deposited the sealed envelope with the United States Postal Service.

b. [ZI placed the sealed envelope for collection and processing for mailing, following this business's usual practices,

with which I am readily familiar. On the same day correspondence is placed for collection and maing, it is

deposited in the ordinary course of business with the United States Postal Service.

1 The Notice of Related Case was mailed:

a. on (date): October 26, 2012 b. from (city and state): San Francisco, California

4. The envelope was addressed and mailed as follows:

a, Name of person served:

Lrivivio, inc. Street address: 400 Oyster Point Blvd. City: South San Francisco State and zip code: California 94080

b. Name of person served:

Goldman, Sachs & Co., Inc. Street address: 2711 Centerville Rd., Ste 400 City: Wilmington State and zip code: Delaware 19808

c. Name of person served

Deutsche Bank Securities Inc. Street address: 1209 Orange Street City: Wilmington State and zip code: Delaware 19801

d. Name of person served:

Stifel, Nicolaus & Co., Inc. Street address: 1209 Orange Street City: Wilmington State and zip code: Delaware 19801

ETI Names and addresses of additional persons served are attached, (You may use form POS-030(P).)

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Date: October 26, 2012

Pierre R. Tiffith - (TYPE OR PRINT NAME OF DECLARANT) (SIGNATURE OF(4RANT)

CM015[Rev NOTICE OF RELATED CASE Page 3uf3


POS-030(P) SHORT TITLE: Toth v. Envivio, Inc., et al. CASE NUMBER:

CIV5 17481

ATTACHMENT TO PROOF OF SERVICE BY FIRST-CLASS MAIL—CIVIL (PERSONS SERVED)

(This Attachment is for use with form POS-030)

NAME AND ADDRESS OF EACH PERSON SERVED BY MAIL:

Address (number, street, city, and zip code)

222 West Adams Street Chicago IL 60606

347 Clipper Street San Francisco, CA 94114

844 Vinci Way Livermore, CA 94550

105 Via De Tesoros Los Gatos, CA 95032

2335 Oakdale Road Hillsborough, CA 94010

125 Sierra Azule Los Gatos, CA 95032

142 Almenclral Avenue Atherton, CA 94027

45 Glen Alpine Road Piedmont, CA 94611

76 Mountain Home Court Voodside, CA 94062

Atlantic Bridge, 33 St. Jame's Square London SWIY 4JS, United Kingdom

arbourvest Partners, Berkeley Square House, 8th Floor erkeley Square, London W1J 613B, United Kingdom

Name of Person Served

William Blair & Co., L.L.C.

Julien Signes

Erik E. Miller

Gianluca U. Rattazzi II R. David Spreng

Clifford B. Meltzer

Marcel Gani

Terry D. Kramer

Edward A. Gilhuly

Kevin E. Dillon

Corentin du Roy de Blicquy

Form Ad for OpbonaUse ATTACHMENT TO PROOF OF SERVICE BY FIRST-CLASS MAIL—CIVIL Page of Judicia' Co,s,c of Cahfom,a POS-MP) (PERSONS SERVED)

(Proof of Service)


ATTACHMENT 1H

In accordance with Civil Rule 3.300, plaintiff Joe M. Wiley hereby provides notice of the

following related cases:

1. .Joe M. Wiley v. Envivio, et al., Case No. Civ. 517185, filed on October 5,2012 in San

Mateo County Superior Court (the "Wiley" action); and

2. !vlichael Toth v. Envivio, etal., Case No. Civ. 517481, filed on October 19, 2012 in

San Mateo County Superior Court (the "Toth" action).

Civil Rule 3.300(a) states that a pending civil case is related to another pending civil case if

the cases (1) involve the same parties and are based on the same or similar claims; (2) arise from the

same or substantially identical transactions, incidents, or events requiring the determination of the

same or substantially identical questions of law or fact; (3) involve claims against, title to, possession

of, or damages to the same property; or (4) they are likely for other reasons to require substantial

duplication of judicial resources if heard by different judges. Civil Rule 3.300(a).

Here, the Wiley and Toth actions are class actions that allege violations of1 I and 15 of the

Securities Act of 1933 against the same defendants. Both actions arise out of the same transaction as

both allege defendants issued a materially false or misleading Registration Statement and Prospectus

on April 24, 2012. Both actions seek certification of the action as a class action, damages and

reasonable costs and expenses incurred. As a result, there will likely be a substantial duplication of

judicial resources if the cases are not related and heard by different judges.

In fact, duplication of judicial resources will occur if the cases are not related because the

courts in both actions have set Complex Case Status Conferences to determine whether the actions

will be deemed complex actions and subsequent Case Management Conferences. The Complex

Case Status Conference in Wiley is on December 14,2012, and the Complex Case Status Conference

782788_I


in Toth is on December 18, 2012. The subsequent Case Management Conferences are scheduled for

March 15, 2013 in the Wiley action and on March 29, 2013 in the Toth action.

In accordance with Civil Rule 3.300(d), this Notice has also been filed in the Wiley action.

-2- 782788_I

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