Marimba, Inc. - Securities Class Action

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_______________
Copyright (c) 2001
Stanford Law School

Marimba, Inc. Conclusion: In December 2006, the appellate court overturned the certification of classes in six test cases that were selected by the underwriter defendants and plaintiffs in the coordinated proceedings. Because class certification was a condition of the settlement, it was unlikely that the settlement would receive final Court approval. On June 25, 2007, the Court entered an order terminating the proposed settlement based upon a stipulation among the parties to the settlement.

In June 2004, a stipulation of settlement and release of claims against the issuer defendants, including the Company, was submitted to the court for approval. The terms of the settlement if approved, would dismiss and release all claims against the participating defendants (including the Company). In exchange for this dismissal, D&O insurance carriers would agree to guarantee a recovery by the plaintiffs from the underwriter defendants of at least $1 billion, and the issuer defendants would agree to an assignment or surrender to the plaintiffs of certain claims the issuer defendants may have against the underwriters. On August 31, 2005, the court confirmed preliminary approval of the settlement.

According to the Company’s Form 10-Q for the quarterly period ended March 31, 2004, beginning in April 2001, a number of substantially identical class action complaints alleging violations of the federal securities laws were filed in the United States District Court for the Southern District of New York naming Marimba, Inc., certain of its officers and directors, and certain underwriters of the company’s initial public offering (Morgan Stanley & Co., Inc., Credit Suisse First Boston Corp. and Bear Stearns & Co., Inc.) as defendants. The complaints have since been consolidated into a single action, and a consolidated amended complaint was filed in April 2002. Similar complaints have been filed against over 300 other issuers that had initial public offerings since 1998 and all such actions have been included in a single coordinated proceeding. In July 2002, the defendants in the consolidated actions filed motions to dismiss all of the cases in the litigation (including the case involving Marimba). On February 19, 2003, the court ruled on the motions and granted Marimba’s motion to dismiss the claims against it under Section 10(b) and Rule 10b-5. The motions to dismiss the claims under Section 11 were denied as to virtually all of the defendants in the consolidated cases, including Marimba. In addition, the Marimba individual defendants in the litigation each signed a tolling agreement and were dismissed from the action without prejudice on October 9, 2002. On June 30, 2003, a special committee of our Board of Directors conditionally approved a proposed partial settlement with the plaintiffs in this matter. The settlement would provide, among other things, a release of Marimba and Marimba’s individual defendants for the conduct alleged in the action to be wrongful. Marimba would agree to undertake other responsibilities under the partial settlement, including agreeing to assign away, not assert and release certain potential claims Marimba may have against its underwriters. Any direct financial impact of the proposed settlement is expected to be borne by Marimba’s insurers. The special committee agreed to approve the settlement subject to a number of conditions, including the participation of a substantial number of other issuer defendants in the proposed settlement, the consent of Marimba’s insurers to the settlement, and the completion of acceptable final settlement documentation. Furthermore, the settlement is subject to a hearing on fairness and approval by the court overseeing the litigation.

The complaint was filed alleging violations of Sections 11, 12(a) (2) and 15 of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. The complaint further alleges that the Prospectus was materially false and misleading because it failed to disclose, among other things, that (i) Morgan Stanley, Credit Suisse and Bear Stearns had solicited and received excessive and undisclosed commissions from certain investors in exchange for which Morgan Stanley, Credit Suisse, and Bear Stearns allocated to those investors material portions of the restricted number of Marimba shares issued in connection with the Marimba IPO; and (ii) Morgan Stanley, Credit Suisse and Bear Stearns had entered into agreements with customers whereby Morgan Stanley, Credit Suisse and Bear Stearns agreed to allocated Marimba shares to those customers in the Marimba IPO in exchange for which the customers agreed to purchase additional Marimba shares in the aftermarket at pre-determined prices. As alleged in the complaint, the SEC is investigating underwriting practices in connection with several other initial public offerings.

INDUSTRY CLASSIFICATION:
SIC Code: 7372
Sector: Technology
Industry: Software & Programming

COMPANY/ISSUER NAME:	Marimba, Inc.
COMPANY/ISSUER TICKER:	MRBA
COMPANY WEBSITE:	http://www.marimba.com

FIRST IDENTIFIED COMPLAINT IN THE DATABASE

Vernon Easley, et al. v. Marimba, Inc., et al.

COURT: S.D. New York	DOCKET NUMBER: 01-CV-3483
JUDGE NAME: Hon. Robert W. Sweet
DATE FILED: 04/24/2001	SOURCE: Business Wires
CLASS PERIOD START: 04/30/1999	CLASS PERIOD END: 03/27/2000
TYPE OF COMPLAINT: Unamended/Unconsolidated
PLAINTIFF FIRMS IN THIS OR SIMILAR CASE:
Bernstein Liebhard & Lifshitz LLP (New York, NY) 10 E. 40th Street, 22nd Floor, New York, NY, 10016 (voice) 800.217.1522, (fax) , info@bernlieb.com Cauley, Geller, Bowman, Coates & Rudman LLP (San Diego, CA) 225 Broadway, Suite 1900, San Diego, CA, 92010 (voice) 619.702.7350, (fax) 619.702.7351, Milberg Weiss Bershad Hynes & Lerach LLP (San Diego, CA) 600 West Broadway, 1800 One America Plaza, San Diego, CA, 92101 (voice) 800.449.4900, (fax) , support@milberg.com _____________________________________________ TOTAL NUMBER OF PLAINTIFF FIRMS: 3

DOCUMENTS FOR THE FIRST IDENTIFIED COMPLAINT
Complaint for Violations of the Federal Securities Laws
Type: Complaint		Date on the document: 04/24/2001

REFERENCE COMPLAINT

In Re Marimba, Inc. Initial Public Offering Securities Litigation

COURT: S.D. New York	DOCKET NUMBER: 01-CV-3483
JUDGE NAME: Hon. Shira A. Scheindlin
DATE FILED: 04/19/2002	SOURCE: Business Wires
CLASS PERIOD START: 04/29/1999	CLASS PERIOD END: 12/06/2000
TYPE OF COMPLAINT: Consolidated and/or Amended
PLAINTIFF FIRMS NAMED IN COMPLAINT:
Bernstein Liebhard & Lifshitz LLP (New York, NY) 10 E. 40th Street, 22nd Floor, New York, NY, 10016 (voice) 800.217.1522, (fax) , info@bernlieb.com Milberg Weiss Bershad & Schulman LLP (New York) One Pennsylvania Plaza, 49th Floor, New York, NY, 10119 (voice) 212.594.5300, (fax) 212.868.1229, info@milbergweiss.com Milberg Weiss Bershad Hynes & Lerach LLP (New York, NY) One Pennsylvania Plaza, New York, NY, 10119-1065 (voice) 212.594.5300, (fax) , Schiffrin & Barroway LLP 3 Bala Plaza E, Bala Cynwyd, PA, 19004 (voice) 610.667.7706, (fax) 610.667.7056, info@sbclasslaw.com Sirota & Sirota LLP 110 Wall Street 21st Floor, New York, NY, 10005 (voice) 888.759.2990, (fax) 212.425.9093, Info@SirotaLaw.com Stull, Stull & Brody (New York) 6 East 45th Street, New York, NY, 10017 (voice) 310.209.2468, (fax) 310.209.2087, SSBNY@aol.com Wolf Haldenstein Adler Freeman & Herz LLP 270 Madison Avenue, New York, NY, 10016 (voice) 212.545.4600, (fax) 212.686.0114, newyork@whafh.com _____________________________________________ TOTAL NUMBER OF PLAINTIFF FIRMS: 7

DOCUMENTS FOR THE REFERENCE COMPLAINT
Consolidated Amended Class Action Complaint For Violations Of The Federal Securities Laws
Type: Complaint		Date on the document: 04/19/2002
U.S. District Court Civil Docket
Type: Docket		Date on the document: 09/30/2004
U.S. District Court Civil Docket
Type: Docket		Date on the document: 06/28/2007

OTHER DOCUMENTS

Case Name and/or Number:
Type:		Date on the document:

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