ABBEY GARDY & SQUITIERI, LLP
JAMES JAY SEIRMARCO (194307)
595 Market Street, Suite 2500
San Francisco, CA 94105
Telephone: 415/538-3725
-and-
MARK C. GARDY
JAMES S. NOTIS
212 East 39th Street
New York, New York 10016
Telephone: 212/889-3700
Counsel for Movant HBO & Company Securities Act Group
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
-----------------------------------x
ANDREW ARONSON, on behalf of : No. C-99-20743 RMW
himself and all others :
similarly situated, : CLASS ACTION
:
Plaintiff, :
:
-against- : DATE: October 29, 1999
:
McKESSON HBOC, INC., MARK A. : TIME: 9:00 a.m.
PULIDO and CHARLES W. McCALL, :
: JUDGE: Honorable Ronald
Defendants. : M. Whyte
-----------------------------------x
HBO & COMPANY SECURITIES ACT GROUP'S OMNIBUS
MEMORANDUM OF LAW IN RESPONSE TO THE VARIOUS MOTIONS
FOR APPOINTMENT OF LEAD PLAINTIFF AND LEAD COUNSEL
I. INTRODUCTION
The HBO & Company Securities Act Group1 submits this
omnibus memorandum of law in response to the various other motions
for appointment of lead plaintiffs and lead counsel. The HBO &
Company Securities Act Group's motion seeks appointment of lead
plaintiff and lead counsel solely for the class of all HBO &
Company shareholders whose HBO & Company common stock was exchanged
for shares of McKesson Corporation common stock issued in
connection with the merger of those entities (the "Securities Act
Class").
Thirteen motions have been filed seeking appointment of
lead plaintiff and lead counsel on behalf of various classes or
subclasses of investors, including:
(1) claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 (the "Exchange
Act"), 15 U.S.C. §§78j(b), and 78t(a), and Rule
10b-5 thereunder, 17 C.F.R. §§240.10b-5, on behalf
of all open market purchasers of pre-merger HBO
securities, pre-merger McKesson securities, and
post-merger McKesson HBO securities during the
class period alleged;
(2) claims under Section 14(a) of the Exchange Act, 15
U.S.C. §78n(a), and Rule 14a-9 thereunder, 17
C.F.R. §240.14a-9, on behalf of all holders of pre-
merger McKesson securities who voted on the merger;
(3) claims under Sections 11, 12(a)(2) and 15 of the
Securities Act of 1933 (the "Securities Act"), 15
U.S.C. §§77k, 77l(a)(2) and 77o, on behalf of all
investors whose pre-merger HBO common stock was
exchanged for shares of McKesson common stock
issued in connection with the merger; and
(4) claims under Sections 11, 12(a)(2) and 15 of the
Securities Act, 15 U.S.C. §§77k, 77l(a)(2) and 77o,
on behalf of all investors who received pre-merger
HBO common stock when HBO completed the
acquisitions of US Servis, Inc., IMNET Systems,
Inc., and/or Access Health, Inc.
Consistent with the Supreme Court's decisions in Ortiz v,
Fibreboard Corp., 119 S.Ct. 2295, 2319-320 (1999), and Amchem
Prods. v. Windsor, 521 U.S. 591, 626-27, 117 S.Ct 2231, 2251
(1997), there must be separate representation for these classes.
One lead plaintiff or lead plaintiff group cannot fairly and
adequately represent the divergent interests of all these classes.
Accordingly, motions seeking appointment as lead plaintiff for a
single class that improperly amalgamate the divergent claims of the
various classes and subclasses into the single class must be
denied.2
Of the motions seeking lead plaintiff appointments for a
properly defined class, there is only one competing motion to the
HBO & Company Securities Act Group's motion for lead plaintiff of
the Securities Act Class. That motion is brought on behalf of
Stephen G. Sullivan. As explained below, Sullivan may be an
affiliate of the defendants3 who did not purchase stock in the open
market and cannot be considered as a typical and adequate
representative of the class.
Sullivan was a high level employee and President of a
wholly-owned subsidiary of US Servis Inc., a publicly-held company
acquired by HBO during the class period on October 1, 1998. As
such, Sullivan may not even be a member of the class he seeks to
represent because many actions exclude employees and affiliates
from the class, and at least four of the related actions assert
claims on behalf of former US Servis shareholders.4 Moreover,
unlike the members of the HBO & Company Securities Act Group,
Sullivan did not purchase HBO shares in the open market or
otherwise pay cash for his stock. Rather, Sullivan's shares were
issued to him when the predecessor of US Servis bought his business
in 1991. These facts, among others discussed below, establish that
Sullivan is not typical or adequate under Rule 23, and subject to
numerous unique defenses. Absent members of the class should not
be burdened by having this litigation focus on Sullivan's
atypicality and the unique defenses to his claims, particularly
where other members of the class who do not suffer from those
disabilities are ready, willing and able to represent the class.
Accordingly, Sullivan should not be appointed as lead plaintiff.5
Other than Sullivan, the HBO & Company Securities Act
Group is the only person or group that has come forward seeking
representation for Securities Act claims asserted on behalf of pre-
merger HBO investors whose stock was exchanged for McKesson stock.
Accordingly, the Court should appoint the HBO & Company Securities
Act Group as lead plaintiffs for that class because they are the
only typical and adequate proposed lead plaintiffs for that class.
II. LEGAL ARGUMENT
A. There Must Be Separate Representation For HBO
& Company Investors
Consistent with the Supreme Court's decisions in
Ortiz v, Fibreboard Corp., 119 S.Ct. 2295, 2319-20 (1999) and
Amchem Prods. v. Windsor, 521 U.S. 591, 626-27, 117 S.Ct. 2231,
2251 (1997), the HBO & Company Securities Act Group is seeking to
exclusively represent the class of all per-merger HBO shareholders
whose HBO common stock was exchanged for shares of McKesson common
stock issued in connection with the merger.
Separate representation is required to protect the
divergent interests of the Securities Act Class. See In re Cendant
Corp. Litig., 182 F.R.D. 144, 149 (D.N.J. 1998); Chill v. Green
Tree Fin. Corp., 181 F.R.D. 398, 402 (D. Minn. 1998).
Securities Act claims differ significantly from Exchange
Act purchaser claims and proxy claims, involving different
defendants, different pleading standards, different levels of proof
and different legal theories. For instance, while Section 11 of
the Securities Act provides for strict liability for all
signatories of a defective registration statement (15 U.S.C.
§77K(a)(1)), all directors of the issuing corporation (15 U.S.C.
§77K(a)(2)), all directors of the post-merger corporation (15
U.S.C. §77K(a)(3)) and the company's accountants and financial
advisors (15 U.S.C. §77K(a)(4)), purchaser claimants under Section
10(b) of the Exchange Act will be forced to overcome the difficult
burden of pleading each defendant's required state of mind.
Under the Ninth Circuit's recent decision in In re
Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 974 (9th Cir.
1999), these claimants "must plead, in great detail, facts that
constitute strong circumstantial evidence of deliberately reckless
or conscious misconduct." Thus, while pleading simple negligence,
gross negligence or severe recklessness will suffice for Section 11
claims -- even for secondary actors such as accountants and
financial advisors -- Exchange Act purchaser claimants face a
significantly greater challenge.6 Similarly, Securities Act
claimants seek rescissory damages unavailable to Exchange Act
purchaser claimants. The Securities Act Class' claims are also in
conflict with Exchange Act proxy claimants who seek equitable
relief to unwind the merger and restore McKesson to its pre-merger
status. Under these circumstances, appointing separate lead
plaintiffs and lead counsel to look out for the interests of the
Securities Act Class is necessary to ensure that that class is
properly and adequately represented in this litigation, and not
lost in the shuffle of the 10(b) and 14(a) cases. Because separate
representation is required, none of the 13 other lead plaintiff
motions may be granted as to Securities Act claims brought of
behalf HBO investors.
Of the remaining twelve lead plaintiff motions, two
motions purport to seek appointment of lead plaintiffs and lead
counsel under both the Exchange Act and the Securities Act:
* The New York State Pension Fund Group; and
* The New York City Pension Funds.
These motions cannot be granted because these groups cannot singly
represent both the Exchange Act claims of open market purchasers of
McKesson stock and Securities Act claims of pre-merger HBO
investors whose HBO common stock was exchange for shares of
McKesson common stock in the merger.
Similarly, six lead plaintiff motions seek to assert
Exchange Act purchaser claims only, and cannot be granted as to
Securities Act claims brought of behalf HBO investors:
* The McKesson Nationwide Group;
* Senvest International LLC and Senvest Master Fund
L.P.;
* The Kentucky Teachers Group;
* The McKesson HBOC Lead Plaintiff Group;
* The Utah State Retirement Board, Teachers'
Retirement System of Alabama, Judicial Retirement
Fund of Alabama and Public Employees' Retirement
Association of Colorado; and
* James T. Flanagan;
These proposed lead plaintiffs seek appointment for purchaser
claims under Section 10(b), without regard to the Securities Act
Class' Section 11 and 12(a)(2) claims. The efforts of certain of
these lead plaintiffs groups to shoehorn Securities Act claims as
purchaser claims under Exchange Act is unavailing. As explained
herein, there are material conflicts between the claims such that
separate representation is required. The fact that certain lead
plaintiff groups have attempted to dilute strict liability
Securities Act claims into more burdensome purchaser claims is
indicative of the fact that Securities Act claims will not be
fairly and adequately represented by these proposed lead
plaintiffs.
Three other lead plaintiff motions specifically disclaim
representation for HBO investors' Securities Act claims:
* The "Rappaport Plaintiffs" seek appointment under
the Exchange Act only for McKesson holder claims
under Section 14(a) only;
* The "McKesson Proxy Group" seeks appointment under
the Exchange Act only for McKesson purchaser claims
under Section 10(b) and holder claims under Section
14(a);
* The "UHL Plaintiff Group" seeks appointment under
the Securities Act solely for claims brought on
behalf of Access Health shareholders who were
issued pre-merger HBO stock in connection with the
merger of those entities on November 6, 1998.
The remaining competing lead plaintiff motion is brought
by Sullivan. Sullivan's motion must be denied for several reasons.
First, Sullivan seeks to represent US Servis, IMNET and Access
Health investors whose stock was exchanged for pre-merger HBO stock
when HBO acquired those entities.7 Sullivan also seeks to
represent HBO shareholders whose stock was exchanged for McKesson
stock. Thus, Sullivan's motion must be denied because he seeks
single representation for multiple classes. Second, Sullivan's
motion must also be denied because he was an employee of US Servis
(which merged into HBO) who did not purchase any HBO shares in the
open market. As explained below, Sullivan's status and unique
knowledge as an employee of US Servis, coupled with the atypical
economics of his "acquisition" of HBO stock prevent him from fairly
and adequately representing the class.
B. The Competing Proposed Lead Plaintiff for the
"HBO & Company Investors Class," Stephen G.
Sullivan, Is an Atypical Representative Who
Cannot Fairly and Adequately Represent HBO &
Company Investors
The Securities Act, as amended by the Private Securities
Litigation Reform Act ("PSLRA"), provides that the person or
persons seeking appointment as lead plaintiffs must "otherwise
satisfy the requirements of Rule 23 of the Federal Rule of Civil
Procedure." 15 U.S.C. §77z-1(a)(3)(B)(iii)(I)(cc). While the
presumptively "most adequate plaintiff" is the person or persons
with the largest financial interest in the relief sought, the PSLRA
provides that the presumption may be rebutted if the proposed lead
plaintiff:
(aa) will not fairly and adequately protect
the interests of the class; or
(bb) is subject to unique defenses that render
such plaintiff incapable of adequately
representing the class.
15 U.S.C.77z-1(a)(3)(B)(iii)(II).
As explained below, Sullivan is highly susceptible to
attack by the defendants on both adequacy and typicality grounds
and the existence of unique defenses. If Sullivan were to be
appointed lead plaintiff, these issues would become central to the
litigation and impair the prosecution of the case to the severe
detriment of absent class members.
First, Sullivan's situation is materially different from
other HBO investors because Sullivan did not purchase pre-merger
HBO stock, nor did he purchase stock in any predecessor of HBO.
Instead, Sullivan was issued stock and options in connection with
the acquisition of his business by the predecessor of US Servis in
1991. The economics of Sullivan's stock acquisition cannot be
ignored. While other investors parted with hard cash, Sullivan
received stock in exchange for selling his business, as well as the
ability to continue as an employee of the acquired business
entitled to salary and stock options. As such, Sullivan is not
typical of other investors.
Second, Sullivan was likely privy to the due diligence
investigation conducted by and on behalf of US Servis in connection
with its merger with HBO, through his position as an employee of US
Servis (and President of its wholly-owned subsidiary) and through
his option agreement between Sullivan and HBO.8 Access to material
non-public information relating to HBO's business and operations
or, at the very least, information different than that available to
public investors, would put Sullivan in a materially different
position than typical investors. See, e.g., Grace v. Perception
Tech. Corp., 128 F.R.D. 165, 168 (D. Mass. 1989); Landry v. Price
Waterhouse Chartered Accountants, 123 F.R.D. 474, 475 (S.D.N.Y.
1989). The fact that Sullivan was party to an option agreement
with the defendants during the class period further demonstrates
his atypicality. See Zandman v. Joseph, 102 F.R.D. 924 (N.D. Ind.
1984) (personal contact with corporate officers and special
meetings at company will render plaintiff atypical to represent the
class). Moreover, the class should not be burdened by having the
litigation focused on the atypicality of a proposed class
representative, when other class members who do not suffer from
these disabilities are willing and able to represent the class.
Ultimately, these issues, as well as numerous other
issues that would likely be raised by defendants, establish that
Sullivan is subject to many unique defenses that would create
material issues in the litigation. Accordingly, Sullivan should
not be appointed lead plaintiff.
III. CONCLUSION
For the foregoing reasons, the HBO & Company Securities
Act Group respectfully requests that this Court deny any competing
motions for lead plaintiff as to representation of Securities Act
claims asserted by HBO & Company shareholders, and grant the HBO &
Company Securities Act Group's motion for lead plaintiffs and lead
counsel.
Dated: October 8, 1999 Respectfully submitted,
ABBEY, GARDY & SQUITIERI, LLP
By:________________________________
James Jay Seirmarco (194307)
595 Market Street, Suite 2500
San Francisco, CA 94105
Telephone: 415/538-3725
-and-
Mark C. Gardy
James S. Notis
212 East 39th Street
New York, NY 10016
Telephone: 212/889-3700
Proposed Lead Counsel for the
HBO & Company Securities Act Group
1 The name of each individual and entity that comprise the HBO
& Company Securities Act Group is listed in a summary chart
annexed as Exhibit A to the previously-submitted Declaration
of James Jay Seirmarco, dated June 25, 1999.
2 Certain of the lead plaintiff motions explicitly or
implicitly acknowledge that conflicts of interest exist
among the various classes of investors such that separate
representation is required, and thus seek appointment for
only one of the classes or subclasses outlined above.
3 Sullivan was a party to an option agreement filed with the
SEC during the class period on October 2, 1998 as part of a
Form S-8 Registration Statement, signed by, among others,
defendant Charles W. McCall (President and CEO of pre-merger
HBO).
4 Complaints filed in Fink, et al. v. McKesson HBOC, Inc., et.
al., No. C-99-20765 RMW, Pollock v. McKesson HBOC, Inc., et.
al., No. C-99-20747 RMW, Berman v. McKesson HBOC, Inc., et.
al., No. C-99-20768 RMW and Liberatore, et al. v. McKesson
HBOC, Inc., et. al., No. C-99-20781 RMW, purport to assert
claims on behalf of US Servis shareholders whose stock was
exchanged for pre-merger HBO stock.
5 In addition to representation of the HBO & Company
Securities Act Class, Sullivan's recently amended motion
also seeks representation of US Servis, IMNET and Access
Health investors whose stock was exchanged for pre-merger
HBO stock when HBO acquired those entities (despite the fact
that Sullivan was never a IMNET or Access Health
shareholder). Thus, Sullivan's motion is additionally
flawed because it seeks single representation for multiple
classes.
6 Exchange Act claimants will also be forced to comply with
the pleading requirements of Rule 9(b).
7 As an initial matter, Sullivan's attempt to represent IMNET
and Access Health shareholders must be rejected because he
did not own IMNET stock or Access Health stock.
8 Moreover, claims asserted on behalf of US Servis
shareholders in connection with the merger with HBO will
likely exclude certain employees and affiliates of US
Servis.
PROOF OF SERVICE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I am employed in the county of New York, State of New
York, I am over the age of 18 and not a party to the within action;
my business address is 212 East 39th Street, New York, New York
10016.
On October 8, 1999, I served the documents described as
HBO & COMPANY SECURITIES ACT GROUP'S OMNIBUS MEMORANDUM OF LAW IN
OPPOSITION TO THE VARIOUS MOTIONS FOR APPOINTMENT OF LEAD
PLAINTIFFFS AND LEAD COUNSEL by placing a true copy thereof
enclosed in a sealed envelope(s) addressed as follows:
SEE ATTACHED SERVICE LIST
I served the above document as follows:
___ BY OVERNIGHT DELIVERY via Federal Express. I am familiar with
the practice at my place of business for collection and
processing of correspondence for overnight delivery by Federal
Express. Such correspondence will be deposited with a
facility regularly maintained by Federal Express for receipt
on the same day in the ordinary course of business. I placed
the envelope(s) for collection and delivery by Federal Express
with delivery fees paid or provided for in accordance with
ordinary business practices.
___ BY FACSIMILE TRANSMISSION at approximately ____________
a.m./p.m. I caused a facsimile machine transmission from
facsimile machine telephone number (212) 684-5191 to facsimile
machine telephone number(s): .
___ Upon completion of said facsimile machine transmission(s), the
transmitting machine issued a transmission report(s) showing
the transmission(s) was/were complete and without error.
X BY MAIL as indicated below. I deposited such envelope(s) in
the mail at New York, New York. The envelope was mailed with
postage thereon fully prepaid. I am familiar with the firm's
practice of collection and processing correspondence for
mailing. Under that practice it would be deposited with U.S.
postal service on that same day with postage thereon fully
prepaid at New York, New York in the ordinary course of
business. I am aware that on motion of the party served,
service is presumed invalid if postal cancellation date or
postage meter date is more than one day after date of deposit
for mailing in an affidavit.
I declare that I am employed in the office of a member of the
bar of this Court at whose direction the service was made.
Dated: New York, New York
October 8, 1999
_____________________________________
JOANN SORRENTO
McKesson HBOC, Inc. Sec. Litig.
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110 East 59th Street, 29th Floor
New York, NY 10022
Harold B. Obstfeld
LAW OFFICES OF HAROLD B. OBSTFELD
260 Madison Avenue, 19th Floor
New York, NY 10016
James M. Orm N, P.C.
325 Chestnut Street, Suite 700
Philadelphia, PA 19106-2614
Andrew L. Barroway
Marc A. Topaz
SCHIFFRIN & BARROWAY, LLP
Three Bala Plaza East, Suite 400
Bala Cynwyd, PA 19004-3481
Samuel S. Sporn
Jay P. Saltzman
Christopher Lometti
SCHOENGOLD & SPORN, P.C.
233 Broadway
New York, NY 10279
Robert C. Shubert
SCHUBERT & REED LLP
Two Embarcadero Center, Suite 1050
San Francisco, CA 94111
David R. Scott
Neil Rothstein
SCOTT & SCOTT, L.L.C.
108 Norwich Avenue
P.O. Box 192
Colchester, CT 06415
Jonathan Shub
SHELLER, LUDWIG & BADLEY, P.C.
1528 Walnut Street, 3rd Floor
Philadelphia, PA 19102
Paul J. Geller
SHEPHERD & GELLER, LLC
7200 West Camino Real, Suite 203
Boca Raton, FL 33433
Wallace A. Showman
LAW OFFICE OF WALLACE A. SHOWMAN
1995 Broadway, Suite 1201
New York, NY 10023
Ellen Gusikoff Stewart
SPECTOR & ROSEMAN, P.C.
600 West Broadway, Suite 1600
San Diego, CA 92101-5050
Michael D. Braun
Timothy J. Burke
STULL, STULL & BRODY
10940 Wilshire Boulevard, Suite 2300
Los Angeles, CA 90024
Jules Brody
Aaron Brody
STULL, STULL & BRODY
6 East 45th Street, 5th Floor
New York, NY 10017
Gregory S. Tolson
J. Edward Kerley
THORTON, TAYLOR, DOWNS, BECKER,
TOLSON & DOHERTY
505 Sansome Street, Suite 1600
San Francisco, CA 94111
Curtis V. Trinko
LAW OFFICES OF CURTIS V. TRINKO, LLP
16 West 46th Street, 7th Floor
New York, NY 10036
Ronald J. Uitz
UITZ & ASSOCIATES
1730 K Street, N.W., Suite 304
Washington, D.C. 20006
Samuel K. Rosen
WECHSLER HARWOOD
HALEBIAN & FEFFER LLP
488 Madison Avenue, 8th Floor
New York, NY 10022
McKesson HBOC, Inc. Sec. Litig.
N.D. Cal.
Abbey, Gardy & Squitieri, LLP Service List (Page -- )
COUNSEL FOR PLAINTIFF(S):
Mark S. Goldman
WEINSTEIN, KITCHENOFF,
SCARLATO & GOLDMAN LTD.
1608 Walnut Street, Suite 1400
Philadelphia, PA 19103
Kevin J. Yourman
Vahn Alexander
Behram V. Parekh
WEISS & YOURMAN
10940 Wilshire Boulevard, 24th Floor
Los Angeles, CA 90024
Joseph H. Weiss
WEISS & YOURMAN
551 Fifth Avenue, Suite 1600
New York, NY 10017
John G. Emerson, Jr.
WHITTINGTON, von STEINBERG,
EMERSIN & WILSHER, L.L.P.
2600 South Gessner, Suite 600
Houston, TX 77063
Fred Taylor Isquith
Gregory M. Nespole
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
270 Madison Avenue
New York, NY 10016
Francis M. Gregorek
Betsy C. Manifold
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
750 B Street, Suite 2770
San Diego, CA 92101
Lester L. Levy
Paul O. Paradis
WOLF POPPER LLP
845 Third Avenue
New York, NY 10022-6689
Alfred G. Yates, Jr.
LAW OFFICES OF ALFRED G. YATES, JR.
519 Allegheny Building
429 Forbes Avenue
Pittsburgh, PA 15219-1649
James S. Youngblood
LAW OFFICES OF JAMES S. YOUNGBLOOD
Towers Place -- Suite 455
3330 Peachtree Road, N.E.
Atlanta, GA 30326
COUNSEL FOR DEFENDANT(S):
James E. Lyons
SKADDEN, ARPS, SLATE
MEAGHER & FLOM LLP
4 Embarcadero Center, Suite 3800
San Francisco, CA 94111
Mark J. Stein
FRIED, FRANK, HARRIS,
SHRIVER & JACOBSON
One New York Plaza
New York, NY 10004-1980
Moses Silverman
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON
1285 Avenue of the Americas
New York, NY 10019-6064
Michael J. Shepard
HELLER, EHRMAN, WHITE & MCAULIFFE
333 Bush Street, Suite 3400
San Francisco, CA 94104
Louisa G. Weix
PAUL, HASTINGS, JANOFSKY & WALKER LLP
345 California Street
San Francisco, CA 94101-2635
James T. Fousekis
STEINHART & FALCONER, LLP
333 Market Street, 32nd Floor
San Francisco, CA 94105-2150
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