CAULEY, GELLER, BOWMAN
& COATES, LLP
STEVEN E. CAULEY
11311 Arcade Drive, Suite 200
Little Rock, AR 72212
Telephone: 501/312-8500
501/312-8505 (fax)

BULL & LIFSHITZ, LLP
PETER D. BULL
JOSHUA M. LIFSHITZ
246 West 38th Street
New York, NY 10018
Telephone: 212-869-9449
212/869-5632 (fax)

 [Proposed] Co-Lead Counsel for Plaintiffs
 

I. INTRODUCTION

II. PROCEDURAL BACKGROUND

III. SUMMARY OF PENDING ACTIONS

IV. ARGUMENT

A. The Quintus Investors Should Be Appointed Lead Plaintiff

1. The Quintus Investors Believe They Have the Largest Financial Interest in the Relief Sought by the Class

2. The Quintus Investors Are Qualified Under Rule 23

a. The Quintus Investors' Claims Are Typical of the Claims of the Class

b. The Quintus Investors Will Fairly and Adequately Represent the Interests of the Class

B. This Court Should Approve the Quintus Investors' Choice of Counsel

A & J Deutscher Family Fund v. Bullard,
    [1986-1987 Transfer Binder] Fed. Sec. L. Rep. (CCH)
    ¶92,938 (C.D. Cal. 1986)

Blackie v. Barrack,
    524 F.2d 891 (9th Cir. 1975)

Haley v. Medtronic, Inc.,
    169 F.R.D. 643 (C.D. Cal. 1996)

Hanon v. Dataproducts Corp.,
    976 F.2d 497 (9th Cir. 1992)

In re Advanced Tissue Sciences Sec. Litig.,
    184 F.R.D. 346 (S.D. Cal. 1998)

In re Cirrus Logic Sec. Litig.,
    155 F.R.D. 654 (N.D. Cal. 1994)

In re United Energy Corp. Solar Power
Modules Tax Shelter Inv. Sec. Litig.,
    122 F.R.D. 251 (C.D. Cal. 1988)

Reiger v. Altris Software,
    Case No. 98cv0528J (JFS), 1998 U.S. Dist. LEXIS 14705
    (S.D. Cal. Sept. 14, 1998)

Schwartz v. Harp,
    108 F.R.D. 279 (C.D. Cal. 1985)
 

STATUTES, RULES AND REGULATIONS

15 U.S.C. §77
    §77k
 
15 U.S.C. §78
    §78u-4
    §78u-4(a)(3)(A)(i)
    §78u-4(a)(2)(A)(i)-(vi)
    §78u-4(a)(3)(A)(ii)
    §78u-4(a)(3)(B)
    §78u-4(a)(3)(B)(i)
    §78u-4(a)(3)(B)(iii)(I)(cc)

17 C.F.R. §240
    §240.10b-5

Federal Rules of Civil Procedure
    Rule 23
    Rule 23(a)
    Rule 23(a)(3)

TO: ALL PARTIES AND THEIR RESPECTIVE COUNSEL OF RECORD

PLEASE TAKE NOTICE that on February 23, 2001 at 10:30 a.m., or as soon thereafter as this matter may be heard in the Courtroom of the Honorable Vaughn R. Walker, located at the Phillip Burton Federal Building, 450 Golden Gate Avenue, 17th Floor, San Francisco, California 94102, Pat Mulcair, Gene Salkind, the Apodaca Investment Group and Colin Barry Hill (the "Quintus Investors")⁽¹⁾ will, and hereby do, move this Court under §21D(a)(3)(B) of the Securities Exchange Act of 1934 ("Exchange Act"), 15 U.S.C. §78u-4(a)(3)(B), for their appointment as lead plaintiff in this action and to approve lead plaintiff's selection of counsel.

This Motion is made on the grounds that the Quintus Investors are the most adequate plaintiffs, having suffered estimated losses of at least $4,222,615. In addition, the Quintus Investors meet the requirements of Rule 23 of the Federal Rules of Civil Procedure because their claims are typical of class members' claims, and the Quintus Investors will fairly and adequately represent the class. Finally, the Quintus Investors have selected and retained national law firms with substantial experience in prosecuting securities fraud class actions to serve as class counsel.

The motion is based on this notice of motion, the supporting memorandum of points and authorities, the Lawrence Declaration in support thereof, the pleadings and other files and records in each of these actions, and upon such other written or oral argument as may be presented to the Court.

I. INTRODUCTION

The Quintus Investors, who collectively suffered at least $4,222,615 in losses from purchases of Quintus securities, submit this memorandum of points and authorities in support of their motion, pursuant to §21D(a)(3)(B) of the Exchange Act, as amended by the PSLRA, for (1) appointment of lead plaintiff; and (2) approval of lead plaintiff's selection of counsel. The Quintus Investors are four class members, who together suffered at least $4,222,615 in losses and who seek appointment as lead plaintiff.

Section 21D of the Exchange Act, as amended by the PSLRA, establishes the procedure for the selection of lead plaintiff to oversee class actions brought under the federal securities laws.⁽²⁾ Specifically, §21D(a)(3)(A)(i) provides that, within 20 days after the date on which a class action is filed under the PSLRA,

the plaintiff or plaintiffs shall cause to be published, in a widely circulated national business-oriented publication or wire service, a notice advising members of the purported plaintiff class -

(I) of the pendency of the action, the claims asserted therein, and the purported class period; and

(II) that, not later than 60 days after the date on which the notice is published, any member of the purported class may move the court to serve as lead plaintiff of the purported class.

Additionally, §21D(a)(3)(B)(i) of the Exchange Act directs this Court to consider any motions brought by plaintiffs or purported class members to appoint lead plaintiffs filed in response to any such notice by not later than 90 days after the date of publication or as soon as practicable after this Court decides any pending motion to consolidate any actions asserting substantially the same claim or claims.⁽³⁾ Under this provision of the Exchange Act, this Court "shall" appoint the "most adequate plaintiff" to serve as lead plaintiff and shall presume that plaintiff is the person, or group of persons, who

(aa) has either filed the complaint or made a motion in response to a notice ...;

(bb) in the determination of the court, has the largest financial interest in the relief sought by the class; and

(cc) otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure.

The Quintus Investors have suffered losses of at least $4,222,615 as a result of their purchases of Quintus securities during the Class Period. Specifically, Pat Mulcair has sustained at least $1,186,049 in losses; Gene Salkind has sustained at least $1,113,974 in losses; the Apodaca Investment Group has sustained at least $1,026,289 in losses; and Colin Barry Hill has sustained at least $895,802 in losses. The Quintus Investors believe they have the largest financial interest in the relief sought by the class. See Lawrence Decl., Ex. B. The Quintus Investors also seek the Court's approval of their selection of counsel as provided by the statute.

II. PROCEDURAL BACKGROUND

Presently pending in this District are 23 related securities class action lawsuits:
 

Abbreviated Case Name	Case No.	Filing Date
Werner v. Quintus Corporation, et al.	C-00-4263-VRW	11/15/00
Weiss v. Quintus Corporation, et al.	C-00-4264-VRW	11/15/00
Lemieux, et al. v Quintus Corporation, et al.	C-00-4274-JCS	11/16/00
Civic v. Quintus Corporation, et al.	C-00-4276-VRW	11/16/00
Tuopshug v. Quintus Corporation, et al.	C-00-4294-BZ	11/16/00
Fershteyn, et al. v. Quintus Corporation, et al.	C-00-4300-VRW	11/16/00
Alves v. Quintus Corporation, et al.	C-00-4308-VRW	11/17/00
Kaplowitz v. Quintus Corporation, et al.	C-00-4313-BZ	11/17/00
Berdakina v. Quintus Corporation, et al.	C-00-21177-EAI	11/17/00
O'Neil v. Quintus Corporation, et al.	C-00-4343-VRW	11/20/00
Khalil v. Quintus Corporation, et al.	C-00-4346-VRW	11/20/00
Rost v. Quintus Corporation, et al.	C-00-21184-PVT	11/21/00
Tick v. Quintus Corporation, et al.	C-00-4381-VRW	11/22/00
Zanowiak, et al. v. Quintus Corporation, et al.	C-00-4390-VRW	11/22/00
Miller, et al. v. Quintus Corporation, et al.	C-00-4392-VRW	11/22/00
Tan v. Quintus Corporation, et al.	C-00-4504-VRW	12/01/00
Yu v. Quintus Corporation, et al.	C-00-4528-VRW	12/04/00
Jamison v. Quintus Corporation, et al.	C-00-12907-FMC	12/08/00
Magnan v. Quintus Corporation, et al.	C-00-4650-JCS	12/12/00
Dutt v. Quintus Corporation, et al.	C-00-4678-VRW	12/14/00
Klapper v. Quintus Corporation, et al.	C-00-4771-VRW	12/22/00
Rubel v. Quintus Corporation, et al.	C-01-0096-JL	01/09/01
Anderson v. Quintus Corporation, et. al.	C-00-0262-JL	01/12/01

Each of these actions alleges claims for violation of federal securities laws, the Exchange Act and SEC Rule 10b-5 promulgated thereunder and the Securities Act of 1933 on behalf of investors who purchased or otherwise acquired Quintus securities during the Class Period.⁽⁴⁾ Concurrently with the filing of this motion, the Quintus Investors have also filed a motion to consolidate the above related class actions pending in this District.

The Exchange Act, as amended by the PSLRA, requires prompt publication of notice advising class members of their right to move within 60 days of publication to be appointed lead plaintiff. On November 15, 2000, pursuant to §21D(a)(3)(A)(i) of the Exchange Act, plaintiff in the Werner action published a notice of pendency of the action on Business Wire. Lawrence Decl., Ex. C. The notice advised class members of the existence of the lawsuit and described the claims asserted. This motion is timely filed within 60 days from the publication of that notice.⁽⁵⁾

III. SUMMARY OF PENDING ACTIONS

Quintus provides electronic-Customer Relationship Management ("eCRM") software. This software is designed to help manage customer interactions, such as customer orders, inquiries and service requests across the Internet, e-mail and the telephone. Anderson ¶22; Tick ¶20.⁽⁶⁾

On November 15, 1999, Quintus announced its initial public offering ("IPO"), 4,500,000 shares of Quintus stock at $18.00 per share, netting proceeds of $75,000,000. Werner ¶32; Tick ¶23; Anderson ¶28. In connection with this IPO, defendants disseminated a Registration Statement and Prospectus that included the following statement:

Audit Committee. The audit committee of the board of directors reviews and monitors our corporate financial reporting and our internal and external audits, including, among other things, our internal audit and control functions, the results and scope of the annual audit and other services provided by our independent auditors and our compliance with legal matters that have a significant impact on our financial reports. The audit committee also consults with our management and our independent auditors prior to the presentation of financial statements to stockholders and, as appropriate, initiates inquiries into aspects of our financial affairs.

* * *

Unaudited Interim Financial Information - The interim financial information for the six months ended September 30, 1998 and 1999 is unaudited and has been prepared on the same basis as the audited financial statements. In the opinion of management, such unaudited financial information includes all adjustments (consisting only of normal recurring adjustments) necessary for a fair presentation of the interim information.

On January 19, 2000, Quintus announced financial results for its third quarter ended December 31, 1999. Under the headline, "Quintus Announces Record Revenues for Third Quarter," the Company reported third quarter revenues of $13.5 million, a 127% increase over third quarter earnings from the previous fiscal year. Werner ¶39; Tick ¶26; Tan ¶27; Anderson ¶31. In the press release, defendant Alan Anderson was quoted as follows:

"We are very pleased with the results of this quarter. We recorded record revenues, managed our costs, completed the acquisition of Acuity, and continued to see validation of the industry embracing Quintus eContract ...."

On February 28, 2000, Quintus announced that it had entered an agreement to acquire Mustang.com in a stock merger "valued at approximately $290 million." Under the terms of the merger, Quintus was to exchange 0.793 share of Quintus common stock for each outstanding share of Mustang.com common stock. Werner ¶36; Tick ¶27; Anderson ¶32.

On April 19, 2000, Quintus issued a press release announcing its financial results for the fourth fiscal quarter ending March 31, 2000, and for fiscal year 2000. As to the quarterly results, the Company announced revenues of $16.1 million, a 90% increase over revenues in the fourth quarter of the previous fiscal year. Tick ¶28; Tan ¶29; Anderson ¶33. The press release quoted defendant Anderson as follows:

"This has been an exciting year for Quintus. We announced two strategic acquisitions - Mustang.com and Acuity Corporation, completed our initial public offering ... and we grew our revenues by over 70% year over year, exceeding $51 million for fiscal year 2000 ...."

On July 20, 2000, Quintus issued a press release announcing its financial results for the first fiscal quarter ending June 30, 2000. The Company reported "record revenues" of $18.5 million, an 80% increase over the first quarter of fiscal 2000. Werner ¶43; Tick ¶29; Tan ¶31; Anderson ¶34.

On October 17, 2000, Quintus issued a press release announcing "record revenues" for the second fiscal quarter ended September 30, 2000. The Company announced that revenues for the quarter were $21.4 million, an 81% increase over revenues from the second quarter of the prior year. Werner ¶45; Tan ¶33; Anderson ¶36.

In this October 17, 2000 press release, Quintus listed in its "Key highlights" the following statement: "Subsequent to the end of the quarter, collected the outstanding receivable from a large outsourcing company and thereby reduced Days Sales Outstanding (DSO) to 104 days." Werner ¶46; Tan ¶34; Anderson ¶38. As the market learned less than a month later, each of the foregoing statements were false and misleading.

On November 15, 2000, Quintus shocked the investment community when it announced that it would delay filing its Form 10-Q for the quarter ended September 30, 2000, pending completion of an "investigation of revenue and accounts receivable for that period." Werner ¶47; Tick ¶33; Tan ¶36; Anderson ¶41.

The Company also announced that it had placed Chief Executive Officer and Chairman of the Board of Directors Alan Anderson on administrative leave and had hired PricewaterhouseCoopers LLP to investigate these financial reporting incidents. Werner ¶49; Tick ¶33; Tan ¶36; Anderson ¶41. The press release explained,

Among the issues under review is Quintus' statement, on October 17, 2000, that it had collected a receivable from an outsourcing company. Subsequent to that announcement, it has become unclear whether funds received by Quintus, apparently in satisfaction of that receivable, were in fact paid by or on behalf of the outsourcing company.

Following these announcements, Quintus' common stock dropped by more than 50%, from a closing price of $6 per share on November 14, 2000, to a low of $2-7/8 before trading was suspended at 12:38 p.m. Eastern Time. Tick ¶¶34-35; Tan ¶37; Anderson ¶¶42-43.

On November 22, 2000, with trading in Quintus' common stock still suspended, Quintus announced "Findings to Date of Audit Committee's Investigation and Termination of Chief Executive Officer." Tan ¶38; Anderson ¶44. Among other things, the press release stated the following:

The Audit Committee has concluded that revenue was improperly recognized for three transactions with respect to which the company relied on falsified documentation. As a result:

o Revenues of approximately $4.5 million, reported and recognized in Q3 FY2000 as part of an agreement with a large outsourcing company, will be removed from Quintus' financial statements. The investigation found the revenue and corresponding receivable were based on falsified documentation.

o Revenues of approximately $2 million from an end-user license, reported and recognized in Q1 FY 2001, were inappropriately recognized based on falsified documentation. While there was a valid order, certain performance obligations required for revenue recognition have yet to be satisfied.

o Revenues of approximately $7 million, included in the earnings release of October 17, 2000, were inappropriately recognized based on falsified documentation ....

Based on these findings, the company's previously issued financial statements for the year ended March 31, 2000, and the auditors' report thereon should not be relied upon. In addition, the company's unaudited financial statements for the quarter ended June 30, 2000, should not be relied upon. Further, the company's earnings release of October 17, 2000, will be revised. Quintus will restate these previously issued financial statements and results.

The November 22, 2000 press release also announced that the Board had terminated Chairman and CEO Alan Anderson "for cause" and that "Sue Salvesen has relinquished her responsibilities as chief financial officer." Tan ¶39; Anderson ¶45. Thereafter, scores of Quintus shareholders filed suit seeking relief from defendants' illegal acts.

IV. ARGUMENT

A. The Quintus Investors Should Be Appointed Lead Plaintiff

1. The Quintus Investors Believe They Have the Largest Financial Interest in the Relief Sought by the Class

shall appoint as lead plaintiff the member or members of the purported plaintiff class that the court determines to be most capable of adequately representing the interests of class members (hereafter in this paragraph referred to as the "most adequate plaintiff") in accordance with this subparagraph.

[T]he most adequate plaintiff in any private action arising under this title is the person or group of persons that -

* * *

(bb) in the determination of the court, has the largest financial interest in the relief sought by the class.

Thus, the statutory language explicitly provides that a "member or members" of the class, or a "'person or group of persons,'" may combine to constitute "'the largest financial interest'" entitled to presumptive appointment as lead plaintiff. See Reiger v. Altris Software, Case No. 98cv0528J (JFS), 1998 U.S. Dist. LEXIS 14705, at *13-*14 (S.D. Cal. Sept. 14, 1998); In re Advanced Tissue Sciences Sec. Litig., 184 F.R.D. 346, 350 (S.D. Cal. 1998).

During the Class Period, the Quintus Investors purchased Quintus securities at prices inflated by defendants' false statements and collectively suffered losses of at least $4,222,615. See Chart of Movants' Purchases, Sales and Losses (Lawrence Decl., Ex. B). The Quintus Investors believe they have the largest financial interest in the outcome of this litigation and, therefore, are presumptively entitled to appointment as lead plaintiff. 15 U.S.C. §78u-4(a)(3)(B)(iii)(I)(bb).

2. The Quintus Investors Are Qualified Under Rule 23

a. The Quintus Investors' Claims Are Typical of the Claims of the Class

(a) Whether the federal securities laws were violated by defendants' acts as alleged herein;

(b) Whether Quintus issued false and misleading statements during the Class Period;

(c) Whether defendants caused Quintus to issue false and misleading statements during the Class Period;

(d) Whether defendants acted knowingly or recklessly in issuing false and misleading financial statements;

(e) Whether the market prices of Quintus securities were artificially inflated during the Class Period because of defendants' conduct complained of herein; and

(f) Whether the members of the class have sustained damages and, if so, what is the proper measure of damages.

As a result, there is a well-defined community of interest in the questions of law and fact involved in this case, and the claims asserted by the Quintus Investors are typical of the claims of the members of the proposed class. The Quintus Investors and members of the class allege that defendants violated the Exchange Act by publicly disseminating materially false and misleading statements about Quintus during the Class Period. The Quintus Investors and members of the class further allege that Quintus, the Individual Defendants and the Underwriter defendant, Donaldson, Lufkin & Jenrette Securities Corporation, violated the Securities Act by failing to make a reasonable and diligent investigation of the statements contained in Quintus' Registration Statement and Prospectus at the time it became effective to ensure that said statements were true and that there were no material omissions contained therein. The Quintus Investors, as did all of the members of the proposed class, acquired Quintus securities at prices artificially inflated by defendants' false and misleading misrepresentations and omissions and were damaged thereby. Because the claims asserted by the Quintus Investors are based on the same legal theories and arise "from the same event or course of conduct giving rise to the claims of other class members," typicality is satisfied. In re United Energy Corp. Solar Power Modules Tax Shelter Inv. Sec. Litig., 122 F.R.D. 251, 256 (C.D. Cal. 1988); accord Blackie v. Barrack, 524 F.2d 891, 902-03 & n.19 (9th Cir. 1975).

b. The Quintus Investors Will Fairly and Adequately Represent the Interests of the Class

Therefore, the Quintus Investors satisfy the requirements of Rule 23 and all of the PSLRA's prerequisites for appointment as lead plaintiff in this action and should be appointed lead plaintiff pursuant to 15 U.S.C. §78u-4(a)(3)(B).

B. This Court Should Approve the Quintus Investors' Choice of Counsel

V. CONCLUSION

For the foregoing reasons, the Quintus Investors respectfully request that this Court (1) appoint Pat Mulcair, Gene Salkind, the Apodaca Investment Group and Colin Barry Hill as lead plaintiff pursuant to §21D(a)(3)(B); and (2) approve the Quintus Investors' selection of Milberg Weiss Bershad Hynes & Lerach LLP; Cauley, Geller, Bowman & Coates, LLP; and Bull & Lifshitz, LLP as Co-Lead Counsel for the class.
 

DATED: January 16, 2001

Respectfully submitted,  MILBERG WEISS BERSHAD HYNES & LERACH LLP PATRICK J. COUGHLIN JEFFREY W. LAWRENCE         ___________________________ JEFFREY W. LAWRENCE 100 Pine Street, Suite 2600 San Francisco, CA 94111 Telephone: 415/288-4545 415/288-4534 (fax) MILBERG WEISS BERSHAD HYNES & LERACH LLP WILLIAM S. LERACH 600 West Broadway, Suite 1800 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) CAULEY, GELLER, BOWMAN & COATES, LLP STEVEN E. CAULEY 11311 Arcade Drive, Suite 200 Little Rock, AR 72212 Telephone: 501/312-8500 501/312-8505 (fax) BULL & LIFSHITZ, LLP PETER D. BULL JOSHUA M. LIFSHITZ 246 West 38th Street New York, NY 10018 Telephone: 212-869-9449 212/869-5632 (fax) [Proposed] Co-Lead Counsel for Plaintiffs

 

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 100 Pine Street, 26th Floor, San Francisco, California 94111.

2. That on January 16, 2001, declarant served the NOTICE OF MOTION, MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO APPOINT PAT MULCAIR, GENE SALKIND, THE APODACA INVESTMENT GROUP AND COLIN BARRY HILL AS LEAD PLAINTIFF PURSUANT TO SECTION 21D(a)(3)(B) OF THE SECURITIES EXCHANGE ACT OF 1934 AND TO APPROVE LEAD PLAINTIFF'S CHOICE OF COUNSEL 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 16th day of January, 2001, at San Francisco, California.
 

______________________________
DEBORAH R. DASH

1. The Quintus Investors consist of four investors who purchased Quintus Corporation ("Quintus" or the "Company") common stock between November 15, 1999 and November 15, 2000 (the "Class Period"). The Quintus Investors are Pat Mulcair, Gene Salkind, the Apodaca Investment Group and Colin Barry Hill. The Quintus Investors have submitted the signed certifications required by §21D(a)(2)(A)(i)-(vi) of the Private Securities Litigation Reform Act of 1995 ("PSLRA"), which are attached as Exhibit A to the Declaration of Jeffrey W. Lawrence in Support of Motion to Appoint Pat Mulcair, Gene Salkind, the Apodaca Investment Group and Colin Barry Hill as Lead Plaintiff Pursuant to Section 21D(a)(3)(B) of the Securities Exchange Act of 1934 ("Exchange Act") and to Approve Lead Plaintiff's Choice of Counsel ("Lawrence Decl."), filed concurrently with this motion. The PSLRA specifically authorizes class members, regardless of whether they have filed a complaint, to move for appointment of lead plaintiff. See 15 U.S.C. §78u-4(a)(3)(B). The Quintus Investors are identified in the chart entitled "Movants' Purchases, Sales and Losses." Lawrence Decl., Ex. B.

2. In December 1995, Congress amended the Exchange Act by enactment of the PSLRA. These amendments are contained in §21D of the Exchange Act, 15 U.S.C. §78u-4.

3. Concurrently with the filing of this motion, the Quintus Investors have also filed a motion to consolidate the 23 related class actions pending in this District. Each of these actions generally alleges the same violative conduct by substantially the same defendants to artificially inflate the price of Quintus' securities by making false and misleading statements about Quintus' business and failure to abide by proper accounting and auditing procedures to avoid such conduct.

4. The Lemieux, Tuopshug, Kaplowitz, Berdakina, Rost, Jamison, Magnan, Rubel and Anderson complaints have not yet been related, but all of the actions make substantially the same allegations. Each of the complaints except the Weiss, Lemieux, Civic, Tuopshug, Berdakina, Tan and Magnan complaints includes allegations of violations of §11 of the Securities Act. Additionally, the Jamison complaint includes only allegations of the Securities Act. Each of the 23 actions currently pending names substantially the same defendants and seeks liability for substantially the same course of conduct. Following consolidation, a consolidated complaint will be filed by the lead plaintiff appointed by the Court that will resolve any differences among the complaints.

5. Section 21D(a)(3)(A)(ii), 15 U.S.C. §78u-4(a)(3)(A)(ii), provides that if more than one action is filed on behalf of a class asserting substantially the same claims, only plaintiffs in the first-filed action are required to publish the notice.

6. All paragraph references ("¶") are to the Werner complaint (11/15/00), the Tan complaint (12/01/00), the Tick complaint (11/22/00) and/or the Anderson complaint (1/12/00).