MILBERG WEISS BERSHAD
HYNES & LERACH LLP
WILLIAM S. LERACH (68581)
DAVID R. BOYD (184614)
600 West Broadway, Suite 1800
San Diego, CA 92101
Telephone: 619/231-1058
- and -
REED R. KATHREIN (139304)
JOHN K. GRANT (169813)
222 Kearny Street, 10th Floor
San Francisco, CA 94108
Telephone: 415/288-4545
[Proposed] Lead Counsel for Plaintiffs
[Additional counsel appear on signature page.]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
JEFFREY M. BOREN, et al., On Behalf of Themselves
and All Others Similarly Situated,
Plaintiffs,
vs.
SMART MODULAR TECHNOLOGIES INC.,
Defendants.
___________________________________
No. C-98-20692-JW(PVT)
CLASS ACTION
DATE: October 5, 1998
TIME: 9:00 a.m.
CTRM: Honorable James Ware
NOTICE OF MOTION, MOTION AND
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
THE BOREN PLAINTIFF GROUP'S MOTION TO CONSOLIDATE
FOR ALL PURPOSES THE RELATED ACTIONS
AGAINST SMART MODULAR TECHNOLOGIES, INC.
I. INTRODUCTION
II. SUMMARY OF PENDING ACTIONS
III. THIS COURT SHOULD CONSOLIDATE THE ACTIONS FOR PURPOSES OF EFFICIENCY
IV. STATUTORY LAW REQUIRES THAT THE QUESTION OF CONSOLIDATION BE DECIDED PRIOR TO THE DETERMINATION OF THE APPOINTMENT OF LEAD PLAINTIFFS
V. CONCLUSION
TO: ALL PARTIES AND THEIR COUNSEL OF RECORD
PLEASE TAKE NOTICE that, on October 5, 1998 at 9:00 a.m., in the courtroom of the Honorable James Ware, United States District Court, 280 S. First Street, San Jose, CA 95113, the Boren Plaintiff Group(1) will hereby move, pursuant to Federal Rule of Civil Procedure 42(a), to consolidate for all purposes the actions identified below as well as any later filed cases and cases transferred from other districts.(2)
The Boren Plaintiff Group respectfully requests that the Court consolidate the related actions given that the actions are substantially identical, involve the same parties, and raise common questions of fact and law. This motion is based on this notice, the memorandum of points and authorities, the files and records in each of the cases identified below and such other matters or argument as the Court may consider at the hearing on this motion.
Six related securities fraud class actions are presently pending in this District. The pending cases are:(3)
Abbreviated Case Name Civil No. Date Filed
1. Boren, et al. v. Smart
Modular Technologies, Inc., et al. C98-20692JW 07/01/98
2. Woszczak v. Smart Modular
Technologies, Inc., et al. C98-20794JW 07/02/98
3. Bisson, et al. v. Smart
Modular Technologies, Inc., et al. C98-20714JW 07/08/98
4. D'Amato v. Smart Modular
Technologies, Inc., et al. C98-20793JW 07/16/98
5. Cha v. Smart Modular
Technologies, Inc., et al. C98-20795JW 07/17/98
6. Chang v. Smart Modular
Technologies, Inc., et al. C98-3151 08/13/98
The Boren Plaintiff Group moves this Court to consolidate the above-referenced actions pursuant to Federal Rule of Civil Procedure 42(a) because each action asserts substantially the same claims and raises the same questions of fact and law. Each of these cases alleges securities fraud claims on behalf of purchasers of Smart Modular Technologies, Inc. ("Smart Modular" or the "Company") stock from July 1, 1997 through May 21, 1998 (the "Class Period").(4) For the reasons set forth herein, consolidation of these actions is clearly appropriate.
Each of the above-listed class actions alleges conduct by the same defendants in violation of §§10(b) and 20(a) of the Securities Exchange Act of 1934 ("Exchange Act") and SEC Rule 10b-5. Each action alleges that defendants released false and misleading statements regarding Smart Modular, its business and prospects prior to, and after its September 1997 secondary offering, resulting in the artificial inflation of Smart Modular's stock.(5) Each of the complaints also alleges that the insiders sold Smart Modular shares in the secondary offering as well as in the open market thereafter while aware of Smart Modular's declining prospects.
Each of the complaints alleges that in mid-1997 Smart Modular's insiders realized that demand for its memory modules from its OEM and end-user customers was slowing, that the pricing environment was weakening and that Smart Modular's European expansion was costing more and would produce less revenue than originally planned. The complaints further allege that with this knowledge defendants decided to undertake a secondary offering in order to stabilize the price of Smart Modular stock, generate desperately needed company financing and allow insiders to sell substantial sums of their stock -- sales that would not be possible in the open market.
A stable or rising stock price, however, was critical to Smart Modular's secondary offering. Each of the complaints alleges that defendants, acutely aware of Smart Modular's declining pricing, demand and profitability, disseminated false and misleading statements throughout the Class Period that Smart Modular: (1) expected continued strong European sales; (2) expected to expand its options program to other PC manufacturers and in Europe because of its tremendous success with its primary customer -- Compaq; (3) was enjoying strong OEM and end-user demand for standard and specialty memory modules; (4) was experiencing a favorable pricing environment for standard and specialty memory modules; (5) had a volume driven, not price driven, business model; and (6) would be unaffected by the price fluctuations since it minimized its inventory risk. The complaints allege that due to the above, as well as other false and misleading representations, defendants forecast 40% earnings growth in the near term and 20%-25% earnings growth in the longer term.
On May 20, 1998, however, defendants' misrepresentations were shown to be false when the Company disclosed that it expected declining earnings and revenues, despite its reassurances to the contrary following its secondary offering. Smart Modular admitted that the weak pricing environment did, in fact, hurt its business model, that it was experiencing weak demand and excessive inventory, and that its options program was suffering from substantial problems. Each of the complaints allege that defendants were well aware of these facts prior to, and during, the Class Period. Each action also alleges that defendants, while in possession of material information, sold their Smart Modular stock at artificially inflated prices for substantial personal gains.
Each of the class action lawsuits seeks to recover the losses sustained by the plaintiff class due to defendants' false and misleading representations regarding Smart Modular's business and expected performance. Accordingly, these actions are appropriate for consolidation in order to promote judicial economy and efficiency as they involve common questions of both law and fact.
Federal Rule of Civil Procedure 42(a) allows this Court to order consolidation of separate actions:
When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
Consolidation pursuant to Rule 42(a) is proper when actions involve common questions of law and fact, In re Equity Funding Corp. of Am. Sec. Litig., 416 F. Supp. 161, 175 (C.D. Cal. 1976), and this Court has broad discretion under the rule to consolidate cases pending within the district. Investors Research Co. v. United States Dist. Ct. for Cent. Dist., 877 F.2d 777 (9th Cir. 1989); Perez-Funez v. District Director, Immigration & Naturalization Serv., 611 F. Supp. 990, 994 (C.D. Cal. 1984) (Rafeedie, J.) ("A court has broad discretion in deciding whether or not to grant a motion for consolidation, although, typically, consolidation is favored.").
As discussed above, the pending actions present virtually identical factual and legal issues. Each action alleges violations of the same sections of the Exchange Act against the same defendants based on essentially identical facts during the Class Period. All the actions involve the same subject matter and the same discovery will be relevant to all lawsuits. Thus, consolidation is appropriate here.
Courts have recognized that class action shareholder suits, in particular, are ideally suited to consolidation pursuant to Rule 42(a) because their unification expedites pretrial proceedings, reduces case duplication, avoids the contacting of parties and witnesses for inquiries in multiple proceedings, and minimizes the expenditure of time and money by all persons concerned. See Equity Funding, 416 F. Supp. at 176. Consolidating multi-shareholder class action suits simplifies pretrial and discovery motions, class action issues, and clerical and administrative management duties. Consolidation, moreover, reduces the confusion and delay that may result from prosecuting related class action cases separately. See id.
The Private Securities Litigation Reform Act of 1995 ("PSLRA") provides for consolidation of substantially similar actions:
If more than one action on behalf of a class asserting substantially the same claim or claims arising under this title has been filed, and any party has sought to consolidate those actions for pretrial purposes or for trial, the court shall not make the determination [of appointment of lead plaintiff under §21D(a)(3)(B)] . . . until after the decision on the motion to consolidate is rendered. . . .
15 U.S.C. §78u-4(a)(3)(B)(ii). Thus, the PSLRA establishes a two-step process for resolving lead plaintiff and consolidation issues where more than one action on behalf of a class asserting substantially the same claims has been filed. The court "shall" first decide the consolidation issue and thereafter decide the lead plaintiff issue "[a]s soon as practicable" after the consolidation motion has been decided. Id.
The PSLRA contemplates a 90-day period from the early notice publication for the selection of lead plaintiffs. 15 U.S.C. §78u-4(a)(3)(B)(i). Given that the selection of lead plaintiffs and lead counsel is the next necessary step after consolidation to prosecute the actions, the Boren Plaintiff Group urges the Court to grant the consolidation motion as soon as practicable and consolidate these related actions under the lowest case number. A prompt determination is reasonable and warranted under Rule 42(a), given the common questions of fact and law presented by the actions now pending in this District.
For the above reasons, the Boren Plaintiff Group respectfully requests that the Court consolidate the related actions identified herein.
DATED: August 28, 1998
Respectfully submitted,
MILBERG WEISS BERSHAD
HYNES & LERACH LLP
WILLIAM S. LERACH
DAVID R. BOYD
600 West Broadway, Suite 1800
San Diego, CA 92101
Telephone: 619/231-1058
MILBERG WEISS BERSHAD
HYNES & LERACH LLP
REED R. KATHREIN
JOHN K. GRANT
______________________________
REED R. KATHREIN
222 Kearny Street, 10th Floor
San Francisco, CA 94108
Telephone: 415/288-4545
[Proposed] Lead Counsel for Plaintiffs
BARRACK, RODOS & BACINE
STEPHEN R. BASSER
600 West Broadway, Suite 1700
San Diego, CA 92101
Telephone: 619/230-0800
COHEN, MILSTEIN, HAUSFELD
& TOLL, P.L.L.C.
STEVEN J. TOLL
999 Third Avenue, Suite 3600
Seattle, WA 98104
Telephone: 206/521-0080
WOLF POPPER LLP
PAUL O. PARADIS
845 Third Avenue
New York, NY 10022
Telephone: 212/759-4600
CHITWOOD & HARLEY
MARTIN D. CHITWOOD
JOHN O'SHEA SULLIVAN
2900 Promenade II
1230 Peachtree Street, N.E.
Atlanta, GA 30309
Telephone: 404/873-3900
FINKELSTEIN & KRINSK
JEFFREY R. KRINSK
501 West Broadway, Suite 1250
San Diego, CA 92101
Telephone: 619/238-1333
SCOTT & SCOTT, LLC
NEIL ROTHSTEIN
1520 Spruce Street
Suite 308
Philadelphia, PA 19102
Telephone: 215/545-3226
RABIN & PECKEL LLP
I. STEPHEN RABIN
MARVIN L. FRANK
275 Madison Avenue
New York, NY 10016
Telephone: 212/682-1818
LAW OFFICES OF LEO W.
DESMOND
LEO W. DESMOND
2161 Palm Beach Lake Blvd.
Suite 204
Palm Beach, FL 33409
Telephone: 561/712-8000
GOLD BENNETT & CERA LLP
PAUL F. BENNETT
595 Market Street, Suite 2300
San Francisco, CA 94105
Telephone: 415/777-2230
Attorneys for Plaintiffs
SMARTMOD\SLK00385.BRF
DECLARATION OF SERVICE BY MAIL
PURSUANT TO NORTHERN DISTRICT LOCAL RULE 23-2(c)(2)
I, the undersigned, declare:
1. That declarant is and was, at all times herein mentioned, a citizen of the United States and a resident of the County of San Francisco, over the age of 18 years, and not a party to or interested in the within action; that declarant's business address is 222 Kearny Street, 10th Floor, San Francisco, California 94108.
2. That on August 28, 1998, declarant served the NOTICE OF MOTION, MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE BOREN PLAINTIFF GROUP'S MOTION TO CONSOLIDATE FOR ALL PURPOSES THE RELATED ACTIONS AGAINST SMART MODULAR TECHNOLOGIES, INC. by depositing a true copy thereof in a United States mailbox at San Francisco, California in a sealed envelope with postage thereon fully prepaid and addressed to the parties listed on the attached Service List and that this document was forwarded to the following designated Internet site at:
http://securities.milberg.com
3. That there is a regular communication by mail between the place of mailing and the places so addressed.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 28th day of August, 1998, at San Francisco, California.
______________________________
LISA NEWELL
1. The Boren Plaintiff Group consists of the named plaintiffs in the Boren, Woszczak, D'Amato, Cha and Chang securities class actions, plus 193 additional members of the proposed class. Each of the members of the Boren Plaintiff Group is identified in Exs. 1 and 2 attached to the Declaration of John K. Grant in Support of the Boren Plaintiff Group's Motion to be Appointed Lead Plaintiffs Pursuant to §21D(a)(3)(B) of the Securities Exchange Act of 1934 and for Appointment of Lead Counsel, filed concurrently herewith.
2. The Boren Plaintiff Group has also filed a motion for appointment of Lead Plaintiffs and Lead Counsel in this action. Pursuant to statute, the consolidation motion should be heard prior to the lead plaintiff motion. See 15 U.S.C. §78u-4(a)(3)(B)(ii).
3. By order dated August 13, 1998, this Court has already related the Boren, Bisson, Woszczak, D'Amato, and Cha actions pursuant to Local Rule 3-12(b). To movants' knowledge, the Chang action has not been related.
4. The Bisson and Chang class periods end on May 22, 1998; all of the other class periods end on May 21, 1998.
5. Smart Modular manufactures add-on components for PCs, including specialty and standard memory modules and PC cards, which permit PC manufacturers and assemblers of specialty computer equipment to customize the amount of memory in a computer.