MILBERG WEISS BERSHAD

HYNES & LERACH LLP

WILLIAM S. LERACH (68581)

PATRICK J. COUGHLIN (111070)

RANDI D. BANDMAN (145212)

HENRY ROSEN (156963)

600 West Broadway, Suite 1800

San Diego, CA 92101

Telephone: 619/231-1058

- and -

LENA C. CHANG (156280)

355 South Grand Avenue

Suite 4170

Los Angeles, CA 90071

Telephone: 213/617-9007



BERMAN, DeVALERIO, PEASE

& TABACCO

JOSEPH J. TABACCO, JR. (75484)

NICOLE LAVALLEE (165755)

425 California Street

Suite 2025

San Francisco, CA 94104

Telephone: 415/433-3200

Co-Lead Counsel for Plaintiffs

[Additional counsel appear on signature page.]





UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA





In re SYBASE INC. II SECURITIES LITIGATION

___________________________________

This Document Relates To:

ALL ACTIONS.

___________________________________

Master File No. C-98-0252-CAL

CLASS ACTION



DATE: October 23, 1998

TIME: 9:30 a.m.

COURTROOM: The Honorable

Charles A. Legge



NOTICE OF MOTION AND MOTION IN SUPPORT

OF CLASS CERTIFICATION AND

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF







TABLE OF CONTENTS


I. INTRODUCTION AND SUMMARY OF ARGUMENT

II. OVERVIEW OF ACTION

III. ARGUMENT

IV. CONCLUSION


TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD

PLEASE TAKE NOTICE that at 9:30 a.m. on October 23, 1998 in the courtroom of the Honorable Charles A. Legge, 450 Golden Gate Avenue, San Francisco, California, plaintiffs will move for an order pursuant to Fed. R. Civ. P. 23, certifying a plaintiff class (the "Class") consisting of all persons and entities who purchased or otherwise acquired Sybase, Inc. ("Sybase" or the "Company") securities between April 17, 1997 and January 21, 1998 inclusive (the "Class Period"), at artificially inflated prices.(1) Plaintiffs will also move the Court to appoint lead plaintiffs as representatives of the Class and their lead counsel and executive committee as counsel for the Class.(2)

This motion is based upon this Notice of Motion and Motion, the Memorandum of Points and Authorities in support thereof, the accompanying Declaration of Blair A. Nicholas in Support of Plaintiffs' Motion for Class Certification ("Nicholas Decl."), the pleadings and records on file in this case, and other such matters and argument as the Court may consider in the hearing of this motion.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION AND SUMMARY OF ARGUMENT

Plaintiffs allege that defendant Sybase, and certain of its officers and directors, pursued a common course of conduct to defraud the purchasers of Sybase securities by artificially inflating the price of Sybase's stock through the use of false and misleading statements about Sybase's business(3)

and its future prospects and through falsified financial statements that materially overstated Sybase's revenues and operating income in violation of §§10(b) and 20 of the Securities Exchange Act of 1934 ("Exchange Act"), 15 U.S.C. §§78j(b) and 78t, and SEC Rule 10b-5, 17 C.F.R. §240.10b-5, promulgated thereunder.(4) ¶¶111-119.

In a long and virtually unbroken line of cases, the Ninth Circuit and the district courts in California and elsewhere have endorsed the use of class action procedures in adjudicating claims under the federal securities laws:

In re Worlds of Wonder Sec. Litig., [1989-1990 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶95,004, at 95,626 (N.D. Cal. 1990) (citing Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913 (9th Cir. 1964)). Courts throughout the United States have consistently recognized the necessity for class actions as a means of enforcement of the federal securities laws. See, e.g., Basic Inc. v. Levinson, 485 U.S. 224 (1988); Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975). In recognition of their significant role in protecting investors, the courts liberally construe the requirements of Fed. R. Civ. P. Rule 23 in favor of class certification. "`[T]he ultimate effectiveness of [the anti-fraud provisions of the securities laws] may depend on the applicability of the class action device.'" Blackie, 524 F.2d at 903 (citation omitted). As will be demonstrated below, this action satisfies all the requisite elements of Fed. R. Civ. P. 23(a)(1)-(4) and (b)(3) and should be certified as a class action.

II. OVERVIEW OF ACTION

Plaintiffs allege, and Sybase has now admitted, that the Company falsely reported its financial results for each quarter of 1997. Specifically, Sybase improperly recognized revenue on millions of dollars of purported "sales" of the Company's products to customers in violation of Generally Accepted Accounting Principles ("GAAP"), including improper recognition of revenues on sales of products made through the Company's Japanese sales office. ¶¶3, 5, 79-80, 83-86. Indeed, as set forth hereafter, Sybase has now restated its results for the first three quarters of 1997, eliminating up to $43 million in previously reported revenues and reversing $26 million of revenues reported for the fourth quarter of 1997. ¶¶3, 83. Defendants have admitted that Sybase's financial results were restated because of certain accounting "irregularities" primarily resulting from "undisclosed agreements," "unrecorded transactions" and "lack of compliance with" established policies and controls. ¶85.

Beginning by at least April 1997, defendants initiated a scheme to falsely report millions of dollars of revenues in the Company's Intercontinental region, particularly in Japan. ¶¶6, 47. Defendants' accounting manipulations enabled Sybase to report strong revenue growth of 8.5% in the Intercontinental region for the first quarter 1997, pushing the price of Sybase stock up 30% to over $16 per share by the end of April 1997. ¶¶6, 47-56. Sybase insiders took full advantage of this artificial inflation by selling off hundreds of thousands of their Sybase stock holdings, pocketing over $3 million in insider trading proceeds. ¶¶6, 41(b)(i).

However, defendants' financial manipulations and issuance of false financial statements did not cease in April 1997. In July 1997 and October 1997, defendants' accounting manipulations enabled Sybase to report strong quarterly profit in both the second and third quarter of 1997 with revenues of $237.6 million and $244.2 million, respectively, with strong growth and revenues reported in the Intercontinental region. ¶¶7-8. The fraudulent scheme was successful. By the end of October, Sybase's stock price hit a high of $23-1/2 per share. Sybase insiders again took advantage of this artificial inflation and sold off another $2.4 million of their Sybase holdings. ¶8.

In addition to issuing false financial statements which overstated Sybase's reported results, defendants made positive statements about Sybase's on-going business, prospects and finances which were each false when made and operated to inflate the market price for Sybase stock. For example, defendants falsely reported Sybase's "profitable first quarter results" (¶47), that Sybase is "pleased to report profitable results for the fourth consecutive quarter" (¶57); that Sybase had achieved "sustainable profitability" (¶67); that the Company is "maintaining profit margins"(¶76); and that "product demand and outflow is strong in Asia, particularly in Japan" (¶76). As analysts reiterated defendants' favorable reports of the Company's financial performance, Sybase's stock price responded positively. See ¶13.

However, Sybase's financial statements in each of the quarters of 1997 were false and, contrary to defendants' reports, the Company did not (and could not) maintain and increase its revenues over its past financial performance. ¶¶83-103. During the Class Period, defendants filed with the SEC quarterly reports on Form 10-Q containing financial statements reporting millions of dollars in revenues and earnings that simply did not exist. Sybase reported materially overstated revenues, net income and earnings per share as set forth below:

¶3.

Sybase falsified its financial statements and reported phony revenue and net income by improperly recognizing revenue on Sybase's shipments and licensing of software to reseller/customers of the Company's Intercontinental region, including Sybase's Japanese sales office, Sybase K.K. ¶¶5, 83, 91, 100. For example, Sybase has now admitted that during the Class Period it entered into side agreements in violation of GAAP in which it promised customers significant concessions or the right to return or exchange products for which Sybase was reporting revenue. ¶5. The Company also recognized revenues on "sales" in violation of GAAP in which the Company did not have a firm commitment from customers to pay for the product and which were contingent upon the customer obtaining adequate financing. ¶91. Notwithstanding these contingencies, Sybase did not defer revenue recognition or reserve for potential cancellations or returns of software licenses to reflect the contingent nature of these "sales." ¶91.

After defendants sold their Sybase stock holdings for total proceeds of over $6.3 million, Sybase shocked investors by admitting that the first three quarters of fiscal year 1997's financial results were false and that the Company would have to restate those three quarters, as well as previously recognized revenue in the fourth quarter of 1997, totaling approximately $69 million of 1997 revenue. ¶79. On the same day, the President of Sybase's Japan subsidiary and four senior managers were immediately discharged from their duties. ¶80. Responding to these shocking announcements, in massive trading, the Company's stock plunged by nearly 32% to as low as $7-1/8 per share -- a decline of more than 65% from its Class Period high. ¶9.

III. ARGUMENT

The Ninth Circuit and its district courts have repeatedly endorsed the use of class action procedures to resolve claims under the federal securities laws. As one court has stated, "[t]he law in the Ninth Circuit is very well established that the requirements of Rule 23 should be liberally construed in favor of class action cases brought under the federal securities laws." Schneider v. Traweek, [1990 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶95,419, at 97,110 (C.D. Cal. 1990) (citing Blackie, 524 F.2d at 902). Courts have explicitly recognized that any doubt as to the propriety of certification should be resolved in favor of certifying the class because denying class certification will almost certainly terminate the action and be detrimental to the members of the class. Blackie, 524 F.2d at 901. "Accordingly, the Ninth Circuit and courts in this district hold a liberal view of class actions in securities litigation." In re Adobe Sys., Inc. Sec. Litig., 139 F.R.D. 150, 152-53 (N.D. Cal. 1991).(6)

The Supreme Court has long recognized -- and Congress recently affirmed -- that private actions are also an important enforcement mechanism to supplement governmental administrative regulation of the securities markets. "Private enforcement . . . provides a necessary supplement to [Securities and Exchange] Commission action," by both affording relief to those injured by violations of the securities laws and serving as a deterrent to future wrongdoing. J.I. Case Co. v. Borak, 377 U.S. 426, 432 (1964). See also Basic, 485 U.S. at 231 (private actions for violations of the Exchange Act "constitute[] an essential tool for enforcement of the 1934 Act's requirements").

In enacting the Private Securities Litigation Reform Act of 1995, Congress reaffirmed the importance of private enforcement of the securities laws:

H.R. Conf. Rep. No. 104-369, at 59 (November 28, 1995).

A review of the requirements of Rule 23 and the relevant case law demonstrates that this lawsuit should be certified as a class action.

Rule 23(a) enumerates the prerequisites of a class action:

Fed. R. Civ. P. 23(a)(1)-(4). Thus, before this case may proceed as a class action, plaintiffs must establish that their securities fraud claims satisfy the prerequisites of Rule 23(a)(1)-(4): numerosity, commonality, typicality and adequacy of representation. See Schaefer, 169 F.R.D. at 127; Hernandez v. Alexander, 152 F.R.D. 192, 193 (D. Nev. 1993); United Energy, 122 F.R.D. at 253. The proposed class in this case satisfies each of these prerequisites.

Rule 23(a)(1) requires that the class be so numerous that joinder of all class members is "impracticable." Mathematical precision at this stage of the case is clearly not required.(7) There is no fixed number of class members which either compels or precludes the certification of a class. Classes consisting of 25 members have been held large enough to justify certification. See In re Cirrus Logic Sec. Litig., 155 F.R.D. 654, 656 (N.D. Cal. 1994); Perez-Funez v. District Director, Immigration & Naturalization Serv., 611 F. Supp. 990, 995 (C.D. Cal. 1984). Additionally, the exact size of the class need not be known so long as general knowledge and common sense indicate that the class is large. Id.; see also Schwartz, 108 F.R.D. at 281-82 ("A failure to state the exact number in the proposed class does not defeat class certification, and plaintiff's allegations plainly suffice to meet the numerosity requirement of Rule 23.") (citations omitted).(8)

In this case, Sybase has more than 80 million shares of stock outstanding and millions of these shares were traded on the NASDAQ National Market System during the Class Period. ¶105. A class of this size is so numerous as to make individual joinder extremely impracticable, if not logistically impossible, especially where members of the class are located throughout the country. Clearly, the proposed Class satisfies the numerosity requirement of Rule 23(a). See Freedman v. Louisiana-Pacific Corp., 922 F. Supp. 377, 398 (D. Or. 1996); Wehner v. Syntex Corp., 117 F.R.D. 641, 643 (N.D. Cal. 1987); In re Seagate Techs. Sec. Litig., 115 F.R.D. 264, 267 (N.D. Cal. 1987); Weinberger v. Jackson, 102 F.R.D. 839, 844 (N.D. Cal. 1984).

The "commonality" requirement of Rule 23(a)(2) demands that the allegations of the complaint involve common questions of law and fact. The Complaint here describes a "common course of conduct" which is the hallmark of securities fraud class actions brought and certified as class actions under Rule 23. As the Ninth Circuit stated in Blackie:

524 F.2d at 902. See also Harris, 329 F.2d at 914 ("substantial" common questions found where complaint alleged a "common course of conduct over the entire period, directed against all investors, generally relied upon, and violating common statutory provisions"); accord Shields v. Smith, [1992 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶97,001, at 94,376 (N.D. Cal. 1992); Freedman, 922 F. Supp. at 398.(9)

Here, the nature and existence of material omissions and misrepresentations detailed in the Complaint -- the most crucial issues in a securities fraud case -- present questions of fact and law common to all members of the Class. Defendants' omissions and misrepresentations about Sybase's earnings and prospects were uniformly made in a finite number of documents that were disseminated to the investing public, not the least of which was the Company's financial statements. As a result, class certification is appropriate because the claims against defendants "arise out of the same set of operative facts and are based on common legal theories." Schneider, ¶95,419, at 97,111.(10)

Securities fraud cases containing common questions -- such as those enumerated in ¶109 of the Complaint(11) -- repeatedly have been held to be prime candidates for class certification. See, e.g., Blackie, 524 F.2d at 902-05; Freedman, 922 F. Supp. at 398-99; Schaefer, 169 F.R.D. at 128; Cirrus Logic, 155 F.R.D. at 657; Schneider, ¶95,419, at 97,111; United Energy, 122 F.R.D. at 254. As the Ninth Circuit recently emphasized in a securities fraud case, "[t]his case fits the requirements of both Rule 23(a) and Rule 23(b)(3) like a glove" because "[t]he questions of Matsushita's liability are the same for each of the 7,000 shareholders who tendered their MCA shares . . . . The claims of every tendering shareholder turn on identical facts and law -- regardless of the identity or circumstances of the particular shareholder." Epstein, 50 F.3d at 668. Plaintiffs allege that defendants made false and misleading representations to the investing public in public filings, press releases, and communications to securities analysts concerning Sybase's financial condition and business, thereby deceiving each purchaser of Sybase's common stock throughout the Class Period. These allegations are more than sufficient for the Court to find that the commonality requirement has been satisfied. Because the same omissions and misrepresentations were disseminated to the market, and thus to all Class members, through the same reports and other public statements, the existence and materiality of these alleged omissions and misrepresentations are common, Class-wide issues.

Plaintiffs' claims will also satisfy the typicality requirement of Rule 23(a)(3) if they arise from the same event or course of conduct that gives rise to claims of other Class members and the claims asserted are based on the same legal theory:

Schneider, ¶95,419, at 97,111; see also Schaefer, 169 F.R.D. at 128-29; Freedman, 922 F. Supp. at 399; In re American Continental Corp./Lincoln Sav. & Loan Sec. Litig., 140 F.R.D. 425, 430 (D. Ariz. 1992); United Energy, 122 F.R.D. at 255-56. Moreover, the Supreme Court has noted that the "commonality and typicality requirements of Rule 23(a) tend to merge." General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n.13 (1982).

The purpose of the "typicality" requirement is to assure that the named representatives' interests "align" with those of the class. Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992); Jordan v. County of Los Angeles, 669 F.2d 1311, 1321 (9th Cir.), vacated on other grounds, 459 U.S. 810 (1982). The test generally is "whether other members have the same or similar injury, whether the action is based on conduct that is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct." A & J Deutscher Family Fund v. Bullard, [1986-1987 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶92,938, at 94,584 (C.D. Cal. 1986) (citing Schwartz, 108 F.R.D. at 282); see also Schaefer, 169 F.R.D. at 128-29; Cirrus Logic, 155 F.R.D. at 657.

Typicality does not require the representatives' claims to be identical to those of the class members:

Weinberger, 102 F.R.D. at 844 (quoting 5 Herbert B. Newberg & Alba Conte, Newberg on Class Actions §8816, at 850 (1977)); accord Schaefer, 169 F.R.D. at 128-29.

In this case, the named plaintiffs, like absent class members, purchased Sybase common stock during the Class Period, without knowledge of material adverse facts known to and concealed by defendants, at prices artificially inflated by defendants' materially false and misleading statements and omissions. All Class members were victims of the same common course of conduct and suffered damages as a result of that conduct. As a result, the claims of the named plaintiffs are typical of those of the other Class members.

Pursuant to Rule 23(a)(4), plaintiffs must also "fairly and adequately protect the interests of the class." Courts have established a two-pronged test for this requirement: first, counsel for the class representative must be competent to undertake the particular litigation at hand; second, there can be no antagonism or disabling conflict between the interests of the named class representatives and the other members of the class. See, e.g., Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978); Schaefer, 169 F.R.D. at 130; United Energy, 122 F.R.D. at 257. A classic formulation of these elements was set forth in Eisen:

Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968). "The burden is on the defendants to prove that the representation will be inadequate." Epitope, Inc., Sec. Litig., [1992-1993 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶97,272, at 95,267 (D. Or. 1992).

Both prongs of the "adequacy" test have been met here. As demonstrated by the firm resumes of Co-Lead Counsel and the Executive Committee attached to the Nicholas Decl., plaintiffs have retained counsel who are experienced and well-qualified to conduct the proposed litigation. Co-Lead counsel and the Executive Committee have extensive experience in class action litigation and have successfully prosecuted class actions in this District and throughout the country.

The second requirement is also satisfied here because there is no antagonism between the representative plaintiffs and the absent Class members. Lubin v. Sybedon Corp., 688 F. Supp. 1425, 1461 (S.D. Cal. 1988); Weinberger, 102 F.R.D. at 844-45. The representative plaintiffs' interests and those of the Class are complementary and the representative plaintiffs will vigorously prosecute this action on behalf of the Class.

In addition to meeting the prerequisites of Rule 23(a), the present action also satisfies the requirements of Rule 23(b)(3), which requires that the proposed class representatives establish that common questions of law or fact predominate over individual questions and that a class action is superior to other available methods of adjudication. See Hernandez, 152 F.R.D. at 193-94. As discussed above, common questions of law and fact predominate in this case and a class action is the superior (if not the only) method available to fairly and efficiently litigate this securities action. See Epstein, 50 F.3d at 668-69; Schaefer, 169 F.R.D. at 130-31.

Where a complaint alleges a "common course of conduct" of misrepresentations, omissions and other wrongdoings that affect all members of the class in the same manner, common questions predominate. Blackie, 524 F.2d at 905-08; In re Computer Memories Sec. Litig., 111 F.R.D. 675, 684 (N.D. Cal. 1986). In determining whether common questions predominate, the court's inquiry should be directed primarily toward the issue of liability. See Blackie, 524 F.2d at 902; In re Memorex Sec. Cases, 61 F.R.D. 88, 103 (N.D. Cal. 1973). As discussed above, there are a host of common questions of law and fact as to the members of the Class which plaintiffs seek to represent. Plaintiffs' allegations of a course of conduct of issuing false financial statements and other material misrepresentations which artificially inflated the price of Sybase common stock are sufficient to establish that common issues predominate. Plaintiffs are unable to discern any liability issues in this case that are not common to all members of the Class. See, e.g., Freedman, 922 F. Supp. at 399-400; Schaefer, 169 F.R.D. at 130-31; United Energy, 122 F.R.D. at 256; Unioil, 107 F.R.D. at 622 ("As plaintiffs' claim is based on a common nucleus of misrepresentations, material omissions and market manipulations, the common questions predominate over any differences between individual class members with respect to damages, causation or reliance."). The critical issues of fact and law raised in this action are common to all members of the Class and they will predominate in this case. Once these common questions are resolved, all that should remain is the purely mechanical act of computing the amount of damages suffered by each Class member.

In contrast, there are no significant (let alone predominant) individual issues even with respect to issues such as reliance. Plaintiffs' claims arise under §10(b) of the Exchange Act and Rule 10b-5, and thus require no proof of individual reliance because plaintiffs are entitled to a presumption of reliance when they have alleged that defendants artificially inflated the price of the stock in question by issuing false and misleading statements and by failing to disclose material facts which defendants had a duty to disclose. Basic, 485 U.S. at 247; see also Cameron v. E. M. Adams & Co., 547 F.2d 473, 477 (9th Cir. 1976); Blackie, 524 F.2d at 905; Schaefer, 169 F.R.D. at 128; Seagate Tech. II, 843 F. Supp. at 1356-57.

Moreover, the fact that class members may not be identically situated is not critical. As the Ninth Circuit held in Harris, the fact that different members of the class may have invested at different times and may have been exposed to different misrepresentations and/or omissions committed by defendants does not preclude a finding that common issues predominate because a continuous course of conduct has been alleged:

Harris, 329 F.2d at 914-15 (citation and footnote omitted). The Ninth Circuit's landmark decision in Blackie endorsed the approach previously taken in Harris.

In sum, where a complaint alleges a continuous course of conduct committed by defendants and directed against the members of the class, the issues of law and fact which flow from that wrongful activity clearly predominate over any individual issues.

Rule 23(b)(3) also requires the court to determine that "a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Virtually all of the previously cited authorities have recognized that the class action device is superior to other available methods for the fair and efficient adjudication of controversies involving a large number of purchasers of securities injured by violations of the securities laws. Class actions are a "particularly appropriate and desirable" way of resolving securities fraud claims. Eisenberg v. Gagnon, 766 F.2d 770, 785 (3d Cir. 1985); accord Freedman, 922 F. Supp. at 400. Here, class certification is both useful and necessary and the class action device offers judicial efficiencies because it permits common claims and issues to be tried only once, with binding effect on all parties. Class representation is the only way to afford relief to those whose claims are too small to permit them to bring individual suits. To deny class certification would be to "clos[e] the door of justice to all small claimants. This is what we think the class suit practice was to prevent." Weeks v. Bareco Oil Co., 125 F.2d 84, 90 (7th Cir. 1941).

To determine the issue of "superiority," Rule 23(b)(3) enumerates the following facts for the court to consider:

Fed. R. Civ. P. 23(b)(3). First, the number of Class members is far too numerous and the typical claim is too small for each individual Class member to maintain a separate action. The class action device is the only viable vehicle by which persons injured by defendants' wrongful conduct may obtain a remedy. Any notion that such claims could be litigated individually is wholly unrealistic and is also contrary to the philosophy of Rule 23. As the Ninth Circuit recently stated in Epstein, "it is difficult to imagine a case where class certification would be more appropriate. Without it, thousands of identical complaints by former MCA shareholders would have to be filed -- the very result the class action mechanism was designed to avoid." 50 F.3d at 668. See also Freedman, 922 F. Supp. at 400-01; Weinberger v. Thornton, 114 F.R.D. 599, 605 (S.D. Cal. 1986); Unioil, 107 F.R.D. at 622. Second, plaintiffs are not aware of any individual actions concerning this dispute that have been commenced by other Class members. Third, the presumed nationwide geographical dispersion of the Class members -- based upon the sale of the stock on a national exchange -- makes it desirable that litigation of the claims involved be concentrated in this forum.

Finally, plaintiffs can foresee no management difficulties which would preclude this action from being maintained as a class action and are confident that any potential management problems can be addressed and resolved by the parties or by this Court. Certainly, possible management problems are not, standing alone, grounds for denying this motion. In In re Sugar Indus. Antitrust Litig., 1977-1 Trade Cas. (CCH) ¶61,373 (N.D. Cal. 1976), the court stated:

Id. at 71,340; accord Yaffe v. Powers, 454 F.2d 1362, 1365 (1st Cir. 1972).

The Supreme Court has endorsed the superiority of the class action device for resolving securities claims:

Deposit Guaranty Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980). Here too, judicial economy and the best interests of the Class members favor class certification. For the reasons enumerated above, the proposed Class satisfies the requirements of Rule 23(b)(3).

IV. CONCLUSION

For all of the foregoing reasons, plaintiffs request that this Court enter an order in the form filed herewith declaring that this action shall be maintained as a class action pursuant to Fed. R. Civ. P. 23, and Co-Lead Counsel and the Executive Committee shall be appointed counsel for the Class.

DATED: July 16, 1998

Respectfully submitted,



MILBERG WEISS BERSHAD

HYNES & LERACH LLP

WILLIAM S. LERACH

PATRICK J. COUGHLIN

RANDI D. BANDMAN

HENRY ROSEN







______________________________

RANDI D. BANDMAN



600 West Broadway, Suite 1800

San Diego, CA 92101

Telephone: 619/231-1058



MILBERG WEISS BERSHAD

HYNES & LERACH LLP

LENA C. CHANG

355 South Grand Avenue

Suite 4170

Los Angeles, CA 90071

Telephone: 213/617-9007



BERMAN, DeVALERIO, PEASE

& TABACCO

JOSEPH J. TABACCO, JR.

NICOLE LAVALLEE







______________________________

NICOLE LAVALLEE



425 California Street

Suite 2025

San Francisco, CA 94104

Telephone: 415/433-3200



Co-Lead Counsel for Plaintiffs



BARRACK, RODOS & BACINE

STEPHEN R. BASSER

BLAIR A. NICHOLAS

600 West Broadway, Suite 1700

San Diego, CA 92101

Telephone: 619/230-0800



BERNSTEIN LITOWITZ BERGER &

GROSSMANN LLP

JEFFREY A. KLAFTER

ROCHELLE FEDER HANSEN

1285 Avenue of the Americas

33rd Floor

New York, NY 10019

Telephone: 212/554-1400



KAUFMAN, MALCHMAN, KIRBY

& SQUIRE, LLP

JEFFREY H. SQUIRE

919 Third Avenue, 11th Floor

New York, NY 10022

Telephone: 212/371-6600





BERGER & MONTAGUE, P.C.

STANLEY R. WOLFE

ROBIN B. SHORE

1622 Locust Street

Philadelphia, PA 19103

Telephone: 215/875-3000



Executive Committee for Plaintiffs



SYBASE2\RK03631.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 Diego, over the age of 18 years, and not a party to or interested in the within action; that declarant's business address is 600 West Broadway, Suite 1800, San Diego, California 92101.

2. That on July 16, 1998, declarant served the NOTICE OF MOTION AND MOTION IN SUPPORT OF CLASS CERTIFICATION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF by depositing a true copy thereof in a United States mailbox at San Diego, 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 16th day of July, 1998, at San Diego, California.



______________________________

PILAR COLINA

1. Excluded from the Class are defendants herein, members of the immediate family of each of the Individual Defendants, and affiliates of the Individual and Corporate Defendants.

2. By Order dated May 22, 1998, the Court appointed plaintiffs Bob Williams, Shabbir Abid, Ali Esmaili, Michael Dupree, Anthony D'Amato, Joseph Ledford, Evan and Donna Adelglass, Leon Viaclovsky, Douglas Hough, James Endlich, Dr. Gerald Green and Max Silberman as lead plaintiffs. The Court also appointed the law firms of Milberg Weiss Bershad Hynes & Lerach LLP and Berman, DeValerio, Pease & Tabacco as co-lead counsel, and appointed Barrack, Rodos & Bacine, Bernstein Litowitz Berger & Grossman LLP, Kaufman Malchman, Kirby & Squire LLP and Berger & Montague, P.C. as Plaintiffs' Executive Committee.

3. Sybase designs and develops software products for open, distributed, high-performance, end-to-end solutions and also offers consulting, education and technical support services for the implementation of its software products by the customer.

4. Unless otherwise noted, paragraph references ("¶___" and "¶¶___") are to the Consolidated Amended Class Action Complaint for Violation of the Federal Securities Laws ("Complaint"), filed on June 12, 1998.

5. For purposes of deciding plaintiffs' Motion for Class Certification, the allegations of the Complaint must be taken as true. Arthur Young & Co. v. United States Dist. Court, 549 F.2d 686, 688 n.3 (9th Cir. 1977); Blackie, 524 F.2d at 900 n.17; Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). The Court should not consider the merits of the underlying controversy in determining the appropriateness of class certification. Id.; Schwartz v. Harp, 108 F.R.D. 279 (C.D. Cal. 1985).

6. Similar sentiments have been repeatedly expressed by the Ninth Circuit, see, e.g., Epstein v. MCA, Inc., 50 F.3d 644, 668 (9th Cir. 1995), rev'd on other grounds sub nom. Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367 (1996); Arthur Young, 549 F.2d 686; Blackie, 524 F.2d at 902; Harris, 329 F.2d at 913; and district courts, see, e.g., Schaefer v. Overland Express Family of Funds, 169 F.R.D. 124, 130 (S.D. Cal. 1996)("Courts have generally found that actions for securities fraud actions [sic] are usually best maintained as class actions."); In re Seagate Tech. II Sec. Litig., 843 F. Supp. 1341, 1350 (N.D. Cal. 1994) (finding that doubts should be resolved in favor of class certification); In re United Energy Corp. Solar Power Modules Tax Shelter Inv. Sec. Litig., 122 F.R.D. 251, 253 (C.D. Cal. 1988) ("In a securities case, the requirements of Rule 23 should be liberally construed in favor of class actions."); Schwartz, 108 F.R.D. at 281 ("Rule 23 should be liberally construed . . . based upon the belief that class actions are particularly suited to serving as private policing weapons against corporate wrongdoing.").

7. The Ninth Circuit has stated that "`impractibility' does not mean 'impossibility,' but only the difficulty or inconvenience of joining all members of the class." Harris, 329 F.2d at 913-14 (citation omitted); accord In re First Capital Holdings Corp. Fin. Prods. Sec. Litig., [1992-1993 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶97,403, at 96,198 (C.D. Cal. 1993).

8. Accord Sherman v. Griepentrog, 775 F. Supp. 1383, 1389 (D. Nev. 1991) ("`It is not necessary that the members of the class be so clearly identified that any member can be presently ascertained.' The court may draw a reasonable inference of the size of the class from the facts before it.") (quoting Carpenter v. Davis, 424 F.2d 257, 260 (5th Cir. 1970)).

9. In Blackie, the class was composed of purchasers of Ampex Corporation stock over a two-year period. Plaintiffs alleged that they purchased at an artificially inflated price due to defendants' misrepresentations of Ampex's financial status. The Ninth Circuit reasoned that although the alleged misrepresentations were contained in 45 different documents issued over a two-year period and each purchaser relied on "a different set of accounting facts," defendants consistently misrepresented the adequacy of reserves, thereby creating a source of price inflation common to each purchaser. 524 F.2d at 904-05. The court found that plaintiffs alleged a common course of conduct by defendants that presented common questions of law and fact. Id. at 902-04.

10. Accord In re MDC Holdings Sec. Litig., 754 F. Supp. 785, 801 (S.D. Cal. 1990) ("[T]he existence, nature, and significance of material omissions and misrepresentations are issues common to all class members."); United Energy, 122 F.R.D. at 254; Schwartz, 108 F.R.D. at 282; In re Unioil Sec. Litig., 107 F.R.D. 615, 618-19 (C.D. Cal. 1985); In re Jackpot Enters. Sec. Litig., [1991 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶96,092, at 90,481 (D. Nev. 1991) ("The main issue in dispute here will be whether the defendants engaged in a pattern of activities and omissions which violated their duties under the relevant statutes to honestly disclose all material information concerning the securities in question. This issue is common to all of the named plaintiffs, and will be necessarily decided in satisfying the claims of all potential plaintiffs within the proposed class.").

11. The claims against defendants arise from the same set of operative facts and common legal theories which include, inter alia:

¶109.