Case 2:23-cv-00358-ART-BNW Document 23 Filed 04/21/23 Page 1 of 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 ERIC ATANASOFF, Derivatively on Behalf of Case No.: 2:23-cv-00358-ART-BNW 11 CLEANSPARK, INC., Plaintiff, (Removal from District Court, Clark County, 12 Nevada, Case No. A-23-866492-C) v. 13 14 ZACHARY K. BRADFORD, ORDER APPROVING S. MATTHEW SCHULTZ, ROGER P. 15 BEYNON, LARRY MCNEILL, and THOMAS STIPULATION TO SET BRIEFING L. WOOD, SCHEDULE FOR MOTION TO 16 DISMISS Defendants, 17 18 -and- 19 CLEANSPARK, INC., a Nevada Corporation, 20 Nominal Defendant. 21 Plaintiff Eric Atanasoff (“Plaintiff”), derivatively on behalf of Nominal Plaintiff 22 CleanSpark, Inc. (“CleanSpark”) and Defendants Zachary K. Bradford, S. Matthew Schultz, 23 Larry McNeill, Thomas L. Wood, Roger P. Beynon (the “Individual Defendants”), and Nominal 24 Defendant CleanSpark (together with the Individual Defendants, “Defendants”) (collectively, 25 with Plaintiff, the “Parties”), by and through their undersigned counsel, hereby enter into the 26 following stipulation and proposed order: 27 /// 28 /// 1 144760884.1 Case 2:23-cv-00358-ART-BNW Document 23 Filed 04/21/23 Page 2 of 6 1 The Six Derivative Actions 2 WHEREAS, on May 26, 2021, plaintiff Andrea Ciceri filed a shareholder derivative 3 action on behalf of nominal defendant CleanSpark in the United States District Court for the 4 District of Nevada, captioned Ciceri v. Bradford, et al., Case No. 2:21-cv-01004-GMN-BNW 5 (“Ciceri”). Ciceri was assigned to the Honorable Gloria M. Navarro; and 6 WHEREAS, on June 22, 2021, plaintiff Mark Perna filed a second shareholder 7 derivative action on behalf of nominal defendant CleanSpark in the United States District Court 8 for the District of Nevada, captioned Perna v. Bradford, et al., Case No. 2:21-cv-01181-GMN- 9 BNW (“Perna”). Perna was also assigned to the Honorable Gloria M. Navarro; and 10 WHEREAS, on June 29, 2021, Judge Navarro consolidated Ciceri and Perna into a 11 single consolidated action, captioned In re Cleanspark, Inc. Derivative Litigation, Case No. 12 2:21-cv-01004-GMN-BNW (the “Consolidated Action”) and designated the complaint filed in 13 Ciceri as the operative complaint pursuant to a Joint Stipulation and Order Consolidating Related 14 Actions and Appointing Co-Lead Counsel (the “Consolidation Order”); and 15 WHEREAS, on February 24, 2023, plaintiff Nicholas Iraci filed a third shareholder 16 derivative action on behalf of nominal defendant CleanSpark in the Eighth Judicial District Court 17 of the State of Nevada in and for Clark County, captioned Iraci v. Bradford, et al., Case No. A- 18 23-866172-C (“Iraci”); and 19 WHEREAS, on February 28, 2023, defendant S. Matthew Schultz (“Schultz”) filed a 20 Petition for Removal and Notice of Petition for Removal, removing Iraci to the United States 21 District Court for the District of Nevada. Iraci is now pending in the United States District Court 22 for the District of Nevada before the Honorable Jennifer A. Dorsey, captioned Iraci v. Bradford, 23 et al., Case No. 2:23-cv-00315-JAD-NJK. On March 6, 2023, defendant Schultz filed a Notice 24 of Related Case, requesting that Iraci be transferred to Judge Navarro and added to the 25 Consolidated Action; and 26 WHEREAS, on March 1, 2023, plaintiff Eric Atanasoff filed a fourth shareholder 27 derivative action on behalf of nominal defendant CleanSpark in the Eighth Judicial District Court 28 2 144760884.1 Case 2:23-cv-00358-ART-BNW Document 23 Filed 04/21/23 Page 3 of 6 1 of the State of Nevada in and for Clark County, captioned Atanasoff v. Bradford, et al., Case No. 2 A-23-866492-C (“Atanasoff”); and 3 WHEREAS, on March 7, 2023, defendant Schultz filed a Petition for Removal and 4 Notice of Petition for Removal, removing Atanasoff to the United States District Court for the 5 District of Nevada. Atanasoff is now pending in this Court. On March 9, 2023, defendant 6 Schultz filed a Notice of Related Case, requesting that Atanasoff be transferred to Judge Navarro 7 and added to the Consolidated Action; and 8 WHEREAS, on February 21, 2013, plaintiff Brandon Smith filed a fifth shareholder 9 derivative action on behalf of nominal defendant CleanSpark in the Eighth Judicial District Court 10 of the State of Nevada in and for Clark County, captioned Smith v. Bradford, et al., Case No. A- 11 23-866051-C (“Smith”); and 12 WHEREAS, on March 23, 2023, Defendants filed a Petition for Removal and Notice of 13 Removal, removing Smith to the United States District Court for the District of Nevada. Smith is 14 now pending in the United States District Court for the District of Nevada before Judge Navarro, 15 captioned Smith v. Bradford, et al., Case No. 2:23-cv-00445-GMN-BNW. On March 24, 2023, 16 Defendants filed a Notice of Related Case, requesting that Smith be added to the Consolidated 17 Action; and 18 WHEREAS, on March 8, 2023, plaintiff Travis France filed a sixth shareholder 19 derivative action on behalf of nominal defendant CleanSpark in the Eighth Judicial District Court 20 of the State of Nevada in and for Clark County, captioned France v. Bradford, et al., Case No. 21 A-23-866925-C (“France” and together with the Iraci, Atanasoff, Smith, and the Consolidated 22 Action, the “Six Derivative Actions”); and 23 WHEREAS, on March 23, 2023, Defendants filed a Petition for Removal and Notice of 24 Removal, removing France to the United States District Court for the District of Nevada. 25 France is also now pending in the United States District Court for the District of Nevada before 26 Judge Navarro, captioned France v. Bradford, et al., Case No. 2:23-cv-00444-GMN-NJK. On 27 March 24, 2023, Defendants filed a Notice of Related Case, requesting that France be added to 28 the Consolidated Action; and 3 144760884.1 Case 2:23-cv-00358-ART-BNW Document 23 Filed 04/21/23 Page 4 of 6 1 WHEREAS, on March 24, 2023, Defendants filed a Motion to Consolidate in the 2 Consolidated Action, with notifications for Iraci, Atanasoff, Smith, and France, requesting that 3 those cases be consolidated with the Consolidated Action before Judge Navarro; and 4 WHEREAS, between March 30, 2023 and April 6, 2023, plaintiffs in Iraci, Atanasoff, 5 Smith, and France all filed motions to remand those actions back to state court; and 6 WHEREAS, the parties in Six Derivative Actions have the following briefing deadlines: 7 Date Case Task 8 3/24/2023 Atanasoff Defendants' Motion to Consolidate Cases 9 3/24/2023 France Defendants' Motion to Consolidate Cases 3/24/2023 Iraci Defendants' Motion to Consolidate Cases 10 3/24/2023 Smith Defendants' Motion to Consolidate Cases 11 3/30/2023 Iraci Plaintiff's Motion to Remand to State Court 3/31/2023 France Plaintiff's Motion to Remand to State Court 12 4/4/2023 Atanasoff Plaintiff's Motion to Remand to State Court 13 4/6/2023 Smith Plaintiff's Motion to Remand to State Court 4/7/2023 France Plaintiff's Response to Motion to Consolidate 14 4/7/2023 Atanasoff Plaintiff's Opposition to Motion to Consolidate 15 4/11/2023 France Defendants' Motion to Dismiss 4/13/2023 Iraci Defendants' Opposition to Motion to Remand 16 4/14/2023 France Defendants' Reply to Plaintiff’s Opposition to Motion to Consolidate 4/14/2023 Atanasoff Defendants' Reply to Plaintiff’s Opposition to Motion to Consolidate 17 4/14/2023 France Defendants' Opposition to Motion to Remand 18 4/17/2023 Iraci Plaintiff's Opposition to Motion to Consolidate 4/17/2023 Smith Plaintiff's Opposition to Motion to Consolidate 19 4/18/2023 Atanasoff Defendants' Opposition to Motion to Remand 20 4/20/2023 Smith Defendants' Opposition to Motion to Remand to State Court 4/20/2023 Iraci Plaintiff's Reply to Defendant’s Opposition to Motion to Remand 21 4/21/2023 France Plaintiff's Reply to Defendant’s Opposition to Motion to Remand 22 4/24/2023 Smith Defendants' Reply to Plaintiff’s Opposition to Motion to Consolidate 4/24/2023 Iraci Defendants' Reply to Plaintiff’s Opposition to Motion to Consolidate 23 4/24/2023 Iraci Defendants' Motion to Dismiss 24 4/25/2023 Atanasoff Plaintiff's Reply to Defendant’s Opposition to Motion to Remand Plaintiff's Reply to Defendant's Opposition to Motion to Remand to State 25 4/27/2023 Smith Court 5/5/2023 Atanasoff Defendants' Motion to Dismiss 26 5/11/2023 France Plaintiff's Opposition to Motion to Dismiss (pending court approval) 27 5/24/2023 Iraci Plaintiff's Opposition to Motion to Dismiss Defendants' Reply to Plaintiff's Opposition to Motion to Dismiss (pending 28 6/1/2023 France court approval) 4 144760884.1 Case 2:23-cv-00358-ART-BNW Document 23 Filed 04/21/23 Page 5 of 6 1 6/5/2023 Atanasoff Plaintiff's Opposition to Motion to Dismiss (pending court approval) 6/14/2023 Iraci Defendants' Reply to Plaintiff’s Opposition to Motion to Dismiss 2 Defendants' Reply to Plaintiff's Opposition to Motion to Dismiss (pending 3 6/26/2023 Atanasoff court approval) 4 This Action 5 WHEREAS, on April 5, 2023, after meeting and conferring extensively, the Parties 6 submitted a joint Stipulation and [proposed] Order Extending Time to Respond to Complaint 7 (the “Stipulation”), agreeing, subject to the Court’s approval, to extend: (i) Defendants’ time to 8 respond to the Complaint until May 5, 2023, (ii) Plaintiff’s time to oppose any motion to dismiss 9 the Complaint that Defendants file until on or before June 5, 2023, and (iii) Defendants’ time to 10 reply in support of any motion to dismiss the Complaint that Defendants file until on or before 11 June 26, 2023; and 12 WHEREAS, on April 6, 2023, Magistrate Brenda Weksler granted the Stipulation in part 13 and denied it in part, extending Defendants’ time to respond to the Complaint until May 5, 2023, 14 but instructing the Parties to make a separate filing setting forth their proposed briefing schedule 15 for any motion to dismiss that Defendants file pursuant to LR IC 2-2(b); and 16 WHEREAS, Defendants intend to move to dismiss the Complaint in this Action on or 17 before May 5, 2023; and 18 WHEREAS, given the crowded briefing schedules in the Six Derivative Actions, the 19 Parties agree to extend the deadline for Plaintiff to oppose any motion to dismiss the Complaint 20 that Defendants file until on or before June 5, 2023; and 21 WHEREAS, given the crowded briefing schedules in the Six Derivative Actions, the 22 Parties agree to extend the deadline for Defendants to reply in support of any motion to dismiss 23 the Complaint until on or before June 26, 2023. 24 NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by the Parties 25 hereto, through their undersigned counsel, subject to the approval of the Court, as follows: 26 1. Plaintiff’s deadline to oppose any motion to dismiss the Complaint that 27 Defendants file is extended until on or before June 5, 2023. 28 2. Defendants’ deadline to reply in support of any motion to dismiss the Complaint 5 144760884.1 Case 2:23-cv-00358-ART-BNW Document 23 Filed 04/21/23 Page 6 of 6 1 that Defendants file is extended until on or before June 26, 2023. 2 3. Other than as agreed herein, the Parties reserve all rights. 3 DATED: April 17, 2023 DATED: April 17, 2023 4 FOX ROTHSCHILD LLP ALDRICH LAW FIRM, LTD. 5 /s/ Colleen E. McCarty /s/ John P. Aldrich 6 MARK J. CONNOT (10010) JOHN P. ALDRICH (6877) COLLEEN E. MCCARTY (13186) CATHERINE HERNANDEZ (8410) 7 1980 Festival Plaza Drive, Ste. 700 7866 West Sahara Avenue 8 Las Vegas, NV 89135 Las Vegas, Nevada 89117 mconnot@foxrothschild.com jaldrich@johnaldrichlawfirm.com 9 cmccarty@foxrothschild.com chernandez@johnaldrichlawfirm.com Counsel for Defendants 10 DATED: April 17, 2023 11 12 THE WEISER LAW FIRM, P.C. 13 /s/ James M. Ficaro JAMES M. FICARO 14 200 Barr Harbor Drive West Conshohocken, PA 19428 15 16 Counsel for Plaintiff Eric Atanasoff 17 18 IT IS SO ORDERED. 19 20 _____________________________________ 21 Anne R. Traum United States District Court Judge 22 DATED: April 21, 2023. 23 24 25 26 27 28 6 144760884.1