This action arises as a result of the issuance by the defendants of shares in the Fund, and concerns material misstatements and omissions by defendants in the Prospectus, relating to defendants' conflicts of interest, which include but are not limited to the following: (1) defendants failed to disclose and omitted material information that MSDW had had investment banking relationships with, including having brought public, certain of the companies whose securities were part of the Fund's portfolio. Defendants disclosed neither this general fact nor the identities of the particular companies with which it had investment banking relationships; (2) defendants failed to disclose and omitted material information concerning that MSDW was continuing to seek investment banking relationships with many of the companies whose securities were part of the Fund's portfolio; and (3) defendants failed to disclose and omitted material information concerning that a material part of the total compensation paid to MSDW research analysts was based upon obtaining investment banking business for MSDW and not upon the accuracy of their research about a given company. Hence, MSDW and its affiliated companies including the Fund recommended investments in and/or invested in companies in order to enhance MSDW's opportunity to obtain investment banking business from those companies (without regard to whether they were good investments for the investors including plaintiffs and the Class).
The defendants were: (1) the underwriters for the common stock of certain of the companies in the Technology Fund's portfolio; (2) the investment bankers and corporate finance specialists for certain of the companies whose securities are in the Fund's portfolio; (3) seeking to obtain additional investment banking business from these present and former clients and from other companies whose shares also were/are in the Fund's portfolio; (4) the issuers of the shares in the Fund; (5) preparing and publicly disseminating research reports and recommendations on many of the companies whose shares were in the Fund's portfolio; and (6) the broker for certain members of the Class.
On September 12, 2002, an Amended Complaint was filed. On April 22, 2003, the Court entered the Order signed by U.S. District Judge Barbara S. Jones consolidating several actions, and establishing 02 civ. 6153 as the Master File. Movant James Barenboim, movant Sol Poller, movant John C. Armstrong and movant Nina H. Armstrong were appointed to serve as Lead Plaintiffs, and Wolf Haldenstein Adler Freeman & Herz LLP was appointed as Lead Counsel. On June 30, 2003, an Amended Complaint was filed. On September 5, 2003, the Court entered the Order staying the action until thirty days after the Second Circuit renders its decision on the appeal of the dismissal of the Merrill Lynch Action.
On December 27, 2006, the Court entered a Stipulation and Order signed by U.S. District Judge Barbara S. Jones. According to the Order, the order entered on September 5, 2003, which stayed the Above-Captioned Actions pending the appeal of the Merrill Lynch decisions, is superseded in whole by this Stipulation and Order, and the Order entered on September 5, 2003 is no longer in effect. The stay of the Above-Captioned Actions is hereby lifted. No later than thirty (30) days after the District Court in the Merrill Lynch Actions enters and order granted final approval of the settlement in the Merrill Lynch Actions, plaintiffs shall serve upon defendants' counsel (and promptly thereafter file) a Second Consolidated Amended Complaint (each an "SCAC") in each of the Above-Captioned Actions.
On March 5, 2007, the plaintiffs filed a Second Consolidated Amended Complaint. The defendants responded by filing a motion for an order to dismiss with prejudice, all claims against the defendants in all counts of the Second Consolidated Amended Complaint. On February 3, 2009, Judge Barbara S. Jones signed the Opinion and Order #97025 granting the defendants’ motion to dismiss. Judgment was entered the next day and the case was closed. On February 27, 2009, the plaintiffs filed a Notice of Appeal.
On February 22, 2010, the Court entered the certified copy of the Mandate from the U.S. Court of Appeals. According to the Mandate, the judgment of the District Court is affirmed.