On August 3, 2006, the Court entered the certified copy of the Mandate from the U.S. Court of Appeals. According to the Mandate, in the appeals, USCA Case Number 05-3430-cv, 05-4759-cv, 05-4760-cv, it is ordered, adjudged, and decreed that the judgment of the District Court is affirmed.
On June 10, 2004, the Court entered the Second Amended Opinion and Order #90122 granting the Plaintiffs' motion for leave to amend their complaint with respect to all claims except those arising from transactions in Lante and New Focus stock. Further, the Plaintiffs' motion to add Robert W. Tenney as lead plaintiff was granted. On July 12, 2004, the Court entered the Order appointing John Watts, of the firm Yearout & Traylor, P.C., as lead counsel. On July 16m 2994, a Revised Second Amended Complaint was filed. On August 9, 2004, the Court entered and Order of Dismissal of Lloyd Hinn. On September 30, 2004, a Third Amended Complaint was filed, and the defendants responded by filing various motions to dismiss. On April 4, 2005, the Court entered the Memorandum and Opinion # 91449, dismissing the plaintiffs' third amended complaint with prejudice. The plaintiffs filed a motion to alter, amend, or vacate the Memorandum and Opinion. On May 17, 2005, the Court entered the Opinion and Order #91628 granting in part the plaintiffs’ motion to reconsider. According to the Opinion, the discussion contained in this Opinion supplements the 4/1/05 Opinion with respect to its discussion of transaction causation and loss causation. For the reasons stated in the Opinion and my April 1 Opinion, plaintiffs' Third Amended Complaint is dismissed. Several Notice of Appeals were filed by defendants and plaintiffs in the U.S. Court of Appeals for the Second Circuit.
On June 19, 2003, an Amended Complaint was filed. On July 2, 2003, the Court entered a Final Order of Dismissal and the case was closed. On July 18, 2003, the case was reopened. On July 22 and 20, 2003, notices of dismissal were filed dismissing certain defendants from the action. On August 27, 2003, the Court entered the Order transferring the action to the Southern District of New York, under MDL # 1554 for consolidated pretrial proceedings.
According to a Press Release dated March 7, 2003, the complaint alleges that defendants violated federal and state securities, committed common law fraud, and made negligent misrepresentations by the following:
Specifically the complaint alleges that Credit Suisse First Boston Corporation and its employees (collectively hereinafter, "CSFBC") allegedly pursued a conspiracy and acted in concert with each of the Companies and their above listed employees (collectively, the "Company Defendants"), in furtherance of a common plan, scheme, or design to manipulate each Company's stock price, so that, inter alia, they could each profit from the manipulations. CSFBC was the nexus and central actor in the conspiracy, allegedly engaged in this fraudulent scheme as part of its regular course of business, and separately involved each of the Company Defendants in the alleged unlawful practices.
The press release says that the alleged fraud, in its essence, has two components: First, CSFBC and each Company Defendant effectuated an initial public offering ("IPO") for each Company at a per-share offering price that was knowingly inaccurate. In addition, the sales staff of Credit Suisse First Boston and/or Credit Suisse First Boston Corporation made disclosures of the fact of the inaccuracy of the IPO pricing to only selected members of the investing public. Second, CSFBC and each Company Defendant allegedly knowingly disseminated false expectations about the Company's prospective financial performance, including false reports of the Company's expected revenues and earnings.
The fraudulent statements arose in several instances, but principally in each Company's IPO prospectus and in the research reports published by CSFBC about that Company during the class period indicated above for each Company. Each Company's IPO prospectus contained statements listing principal factors considered in determining the public offering price. These statements omitted to state the material facts of the inaccurate pricing and the sales staff disclosures indicated above.
CSFBC published research reports for each Company that contained statements discussing the forecasted revenues and earnings for that Company, including a projected income statement for that Company. These statements failed to reveal, however, the material fact that the forecasted quarterly and annual revenues were set by the Company Defendants and CSFBC with the end of creating the appearance of unpredictable revenue growth. Those statements were misleading since they purported to accurately present the objective beliefs of their authors.
The class consists of shareholders who purchased or otherwise acquired the common stock (but excluding purchasers of each company's initial public offering) of any of the following companies during the following time periods:
Accelerated Networks, Inc.,
Airspan Networks, Inc.,
Commerce One, Inc.,
Digital Impact, Inc.,
e Machines, Inc.,
Efficient Networks, Inc.,
Evolve Software, Inc.,
InterNAP Network Services Corp.,
VA Linux Systems,
Lightspan Partnership Inc.,
MultiLink Technology Corp.,
New Focus Inc.,
Novatel Wireless Inc.,
Onyx Software Corp.,
Simplex Solutions Inc.,
Tanning Technology Corp,
Tumbleweed Communications Corp,
Triton Network Systems,
Vitria Technology Inc.,