The class action lawsuit that was brought against Sirius by Brockwell and Johnson, I find problematic in many ways:
1. These two shareholders were "extremely concerned" that the Board of Sirius breached their fiduciary responsibility in regards to the merger. So strong was their concern that they filed class action lawsuits.
2. The plaintiffs, as a result, got an additional 8k filed prior to the shareholder vote. While the plaintiffs attorney calls the 8K an immediate and substantial result, I do not agree.
A. The additional information provided seems to have erased the "concerns" of Brockwell and Johnson, who now appear to be satisfied that Sirius has acted with fiduciary responsibility with regards to the merger.
B. The additional information provided was in my opinion not at all substantial, and in fact, seems paltry when compared to the "grave concerns" that would have brought about the effort to bring a class action suit in the first place.
C. Did the little bit of information provided calm the nerves of the plaintiffs? If so, I would call into question their initial investment into this equity. I would also question whether or not they should be invested in any equity. The additional information equated to nothing more than a pat on the back.
3. Because this case sought, and was granted "Class Status", the plaintiffs are now toying with the rights of all shareholders. The broad based nature of the suit in effect now removes the ability of the entire class to take any action should something be found in the future that indeed warrants shareholder concern as a class.
4. This suit sells out all of the classes rights in exchange for a few paragraphs of added analysis with regard to the merger.
A. The settlement releases virtually all claims made by the plaintiff, both known and unknown. This means that the class is releasing any claim regarding the merger tied to the fiduciary responsibility of the BOD and management.
5. Who was the real winner here? The plaintiff or Sirius? Given that the plaintiff succeeded in getting a few paragraphs of information vs. relinquishing all rights going forward, I would say that Sirius management and the BOD won. It could even be insinuated that the Plaintiffs attorney and the plaintiffs have made a bigger dis-service to all shareholders that that which the BOD and management had been accused of by Brockwell and Johnson in the start. In fact, I could pretty easilly argue that Brockwell and Johnson breached shareholder responsibilityfar more that they ever accused Sirius of doing.
In conclusion, I happen to believe in this merger, and even feel that the price of the merger is fair. I believe that there is information that we as shareholders do not have access to, and understand that as a shareholder a certain amount of faith needs to be placed in these companies. I understand that I may not get everything I want. As a shareholder I feel 1000 times more slighted by the plaintiff than I do by the initial and final disclosures surrounding the merger.
My position is that I intend to opt out of this suit. It gained me nothing, and takes away far more than it gains. In fact, it can now be argued that the BOD has more carte blanche than they ever did before. This means that my trust level in the BOD and management now has to be deeper than ever before.
Bravo to you Tyler.
P.O. Box 7078
Laguna Niguel, CA 92607
March 17, 2008 SENT VIA UPS and E-mail
Attn: William M. Regan Attn: Jeffrey P. Fink
Simpson, Thacher & Bartlett, LLP Robins, Umeda & Fink, LLP
425 Lexington Avenue 610 West Ash Street, Ste. 1800
New York, NY 10017 San Diego, CA 92101
RE: Greg Brockwell et al v Sirius Satellite Radio, Inc. et al
Index No: 600819/07
Dear Mr. Regan and Mr. Fink:
As a member of the Class who will be filing an objection to the proposed settlement, and as per my telephone conversation with Mr. Fink on this day, this letter is respectfully submitted as a formal request for:
Transcript of the deposition of Mel Karmazin
All documents provided to plaintiff’s counsel regarding Morgan Stanley’s financial analysis of the merger. All interrogatories, questions and answers. Agreements between Morgan Stanley and Sirius Satellite Radio. All documents provided to plaintiff’s counsel regarding the additional fees of up to $7.5 million and documents and/or internal memos detailing the parameters and/or reasoning to determine whether or not to pay these proposed additional fees.
I am advised by Mr. Fink that the aforementioned information is under a confidentiality agreement and/or a protective order between the parties at the request of defendants and their counsel. This information is material to my filing of the Opposition to the Proposed Settlement and is warranted to a member of the Class, as my interests (as well as the rest of the Class) are not being represented in a satisfactory manner. Other members of the Class will be joining me in the Opposition of the Proposed Settlement and/or opting out of this Class. One has to wonder why plaintiff’s counsel would allow defendants and their counsel to obfuscate this case and shroud it in a cloak of secrecy when the plaintiff’s counsel is supposed to be providing clarity and complete disclosure of all material facts to the Class and its members.
March 17, 2008
In speaking with Ms. Schmachtenburg today, she informed me the preliminary hearing is scheduled for March 31, 2008. I advised her I would be filing an opposition to the proposed settlement on my behalf and on behalf of all others similarly situated. I also informed her I was having difficulty obtaining the necessary discovery from counsel and that I would be seeking the Court’s assistance.
Please provide me with the requested information as soon as possible as time is of the essence.
Cc: Honorable Richard B Lowe III
c/o Miss Schmachtenburg
P.O. Box 7078
Laguna Niguel, CA 92617
November 4, 2007
Honorable Richard B. Lowe III
Supreme Court of the State of New York
60 Centre Street
New York, N.Y
Re: Greg Brockwell et al v Sirius Satellite Radio, Inc. et al
Dear Honorable Judge Lowe:
It is with great respect that I seek your consideration and assistance in regard to the foregoing case.
As a shareholder of Sirius Satellite Radio I am compelled to protect my interest to the fullest extent possible. For approximately two years, I have sought answers to questions from Sirius and XM executives as well as the FCC involving the FCC Interoperability Mandate and licensing requirements for both satellite licensees. I have also pursued details contained in a settlement stipulation (Sirius v XM) where the two companies agreed to develop and deploy a unified standard for satellite radio; thereby giving consumers access to a ubiquitous receiver capable of receiving services from either satellite radio company. This issue is at the heart of the FCC Licensee Transfer Request and pending merger in the form of a Petition for Declaratory Ruling which I filed (copy attached).
After hundreds of hours of research, it is my opinion that the two companies have been less than forthright with consumers and their shareholders and have done their best to confuse the issues with qualifying and misleading statements. I have confirmed information that leads me to believe many of the satellite radios in the marketplace today are indeed capable of allowing the end user to access services from either company; if the companies were to enable the interoperability function of these receivers. Therefore, it could be possible for millions of satellite radio subscribers to switch services from one company to the other, thereby having tremendous impact on current valuations and share price. It has been my intent to disseminate this information prior to the shareholder vote. I had hoped that the aforementioned case would be the avenue that would lead to full disclosure but in speaking with counsel from both parties, there appears to be a resolution to this case without benefit to its class members and without the disclosure this suit requested. Even more troubling is the Motion to have the records sealed. As I am sure your Honor can understand, sealing the record on a case to provide full and complete disclosure leaves one to wonder what this case was all about.
I have been an outspoken advocate for and consumer of Sirius Satellite Radio and their services. It pains me to consider taking legal action against the company and its management. They have a fiduciary responsibility to disclose all relevant and material facts to their shareholders. My concerns are that if they continue with the shareholder vote without complete transparency and disclosing all material facts, they will expose their shareholders (ie: “the class”) to lengthy and costly litigation thereby damaging the class even further. One could argue that soliciting a shareholder vote prior to knowing the Regulators’ restrictions and conditions on said merger is irresponsible and could lead to many shareholders wishing they could change their vote and feeling disenfranchised; such was the case in the recent AT&T Bellsouth Merger where AT&T was forced into agreeing to many new conditions and concessions in the eleventh hour in order to consummate the deal. I believe if the Company continues with the shareholder vote without full disclosure, they will be doing so with malice per the information I have provided them over the past 18 months, as well as this suit, suggests.
I am filing the attached Order To Show Cause in an attempt to intervene as time is of the essence: shareholder vote scheduled for November 13, 2007.
I am further and further confused by what it is this guy is posting. Now you are cutting and pasting documents from word and randomly posting them into threads where people are trying to open up a line of discussion? Why not at least preface your book before you post the whole thing in the forum? No one knows what the hell you are posting about.
The issues surrounding all of this have various levels of depth. Keeping things in their most basic form, it is my opinion that the "benefits" delivered because of this suit are of little value when compared to the rights shareholders will lose going forward.
Basically, the class brought a suit regarding the fiduciary responsibility of the board in respect to the merger. The settlement states that so long as the additional disclosures were made that the BOD acted correctly in the merger. This absolves the ability of the class to bring suit on the basis of fiduciary responsibility going forward because once accepted, the class will acknowledge that everything was fine.
My issue is that we do not know if everything is fine. We have no way to know this, and the additional disclosures do not demonstrate this. Investing requires a certain amount of faith. To give carte blanche is, in my opinion, asking shareholders to have "TOTAL FAITH". I for one do not want to give "TOTAL FAITH" in exchange for a few paragraphs of information that offered no real additional insight into the merger.
Mr. Hartleib is going into additional detail surrounding some additional issues. In my opinion, his stances rely more deeply on the valuation issues, as well as interoperability and how that ties to the established share ratio in this merger. Mr. Hartleibs stance relies on research that he and others have done, but also needs to carry certain assumptions.
My opinion is that regardless of the depth that one may take exception to this suit, or the merger itself, it is better to opt out. On the most simple issue, it is my opinion that as a shareholder, I am uncomfortable with what Johnson and Brockwell did, and feel that their efforts take away far more than they gained.
Some ague that Sirius should have paid 4 to 1. Some argue that XM should have gotten 5 to 1. Some feel that one company or the other can wait out the process, and pick up the other at a far lower price. These issues all have various theories behind them. I am of the school of thought that the ratio is fair, and that neither company walked away from the merger negotiation declaring a sweeping victory.
Debate surrounding theories and hypotheticals will go on forever. The fact that I am dealing with is the suit proper, what the settlement is, and whether it is good for me as a shareholder.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
GREG BROCKWELL, Individually and On :
Behalf of All Other Similarly Situated, :
: Case No.: 600819/07
SIRIUS SATELLITE RADIO, INC., JOSEPH :
P. CLAYTON, MEL KARMAZIN, LEON D. :
BLACK, JAMES R. MOONEY, MICHAEL J. :
MCGUINESS, WARREN N. LIEBERFARB, :
JAMES P. HOLDEN and LAWRENCE F. :
SHAREHOLDER MICHAEL HARTLEIB‘S MOTION AND MEMORANDUM
OF LAW IN OPPOSITION TO THE COURT GRANTING
PRELIMINARY APPROVAL OF THE SETTLEMENT
G. Richard Malgran, Esquire on behalf of shareholder and class member, Michael Hartleib, respectfully submits this Motion and Memorandum of Law in Opposition to this Court’s Preliminary Approval of the Settlement.
Michael Hartleib is a member of the class in that he has been a shareholder of Sirius since October of 2003. Mr. Hartleib currently owns 151,000 shares of Sirius Satellite Radio, Inc. (See Copy of Mr. Hartleib’s Ameritrade Account Statement attached herein as Exhibit “A”).
On February 19, 2007, Sirius Satellite Radio, Inc. (“Sirius”) and XM Satellite Radio, Inc. (“XM”) jointly announced that Sirius had agreed to merge with XM. The merger was supposed to be a $13 billion merger of equals. As a result of the merger, Greg Brockwell, commenced a class action lawsuit against Sirius and the individual defendants herein on or about March 13, 2007.
The basis of the lawsuit was that the defendants breached their fiduciary duties to the company and that the defendants failed to disclose material information regarding the merger. As a result of the lack of adequate disclosures the shareholders did not possess material information critically needed to vote for the merger or reject it. The attorneys for the plaintiff and putative class made some really strong allegations against the defendants pertaining to the merger agreement. More specifically, the plaintiff alleged that defendants purposefully withheld crucial information. (See Amended Complaint on page 11). The proxy had numerous material deficiencies; the most glaring one was the Board’s failure to inquire about any other strategic alternatives to the merger. (See Amended Complaint at ¶44 on page 11). Plaintiff in the action claims that the shareholders cannot adequately vote on the deal until the company discloses the revenue and cost per subscriber. (See Amended Complaint at ¶50 on page 13).
The complaint alleges that Sirius must pay a termination fee in the amount of $175 million for cause if the deal is not consummated and the merger agreement contains a clause which precludes solicitation. Plaintiff alleges that these factors seriously restrict the actions of Sirius. As a result of the alleged breaches of fiduciary duties, the plaintiff maintains that the Court must enjoin the merger or the alleged breaches by the defendants will continue. (See Amended Complaint at ¶83 on page 19).
The prayer for relief requested by the plaintiffs is that the court enjoin the merger agreement because the defendants breached their fiduciary duties to the company.
BACKGROUND OF THE SETTLEMENT
After continued litigation, the parties entered into a Settlement Agreement in which Sirius and the defendants would cause the company to disseminate additional information or further disclosures regarding the merger. The defendants are also responsible to pay attorneys’ fees and reimbursement of costs. The parties claim that the settlement was a result of protracted and intensive arms-length negotiations between the parties and that it constitutes an excellent resolution of a case of substantial complexity. Moreover, plaintiff claims that the settlement is eminently fair, adequate, reasonable and in the best interest of Sirius shareholders.(See Plaintiffs Motion to Preliminarily Approve the Settlement on page 1).
Michael Hartleib maintains that this proposed settlement is not in the best interest of the Sirius shareholders. The parties agreed to settle the case by agreeing to circulate additional information that defendants admit is meaningless. Accordingly, the settlement should not be preliminarily approved.
I. THIS HONORABLE COURT SHOULD NOT PRELIMINARILY APPROVE THE SETTLEMENT BECAUSE IT IS NOT IN THE BEST INTEREST OF THE SHAREHOLDERS
Michael Hartleib does agree with the law cited in Plaintiff’s Motion for Preliminary Approval of the Settlement herein. However, the following factors of the Settlement make the settlement, as a whole, one which this Court should not approve: the release is too broad; the Notice is inadequate; class counsel has extensive problems; plaintiff, Greg Brockwell has not proved he has standing; the exact amount of attorneys’ fees and reimbursement of expenses must be disclosed; and the class will receive no consideration as part of this settlement.
A. The Release Is Too Broad
This Court must not approve the Stipulation of Settlement because the Release is overly broad. Section 1.15 of the Stipulation of Settlement defines the released claims. The “Released Claims” means any statutory or common law claims, rights, demands, suits, matters, or causes of action under federal, state, local, foreign law, or any other law, rule or regulation that were, could have been or might have been asserted against Defendants and their Related Persons by Plaintiffs or any other Class member in any court of competent jurisdiction or other adjudicatory tribunal, in connection with, arising out of, related to, based upon, in whole or in part, directly or indirectly, in any way, the Merger, the Merger Agreement, Defendants’ public filings and statements relating to the Merger and Merger Agreement, the Individual Defendants’ fiduciary and disclosure obligations relating to the merger and the Merger Agreement, and any other facts, transactions, events, occurrences, acts, disclosures, oral or written statements, representations, filings, publications, disseminations, press releases, presentations, accounting practices or procedures, omissions or failures to act which were or which could have been alleged in this Action. The “Released Claims” include but are not limited to, any and all claims for damages, penalties, disgorgement, restitution, interest, attorneys’ fees, expert or consulting fees, and any and all other costs, expenses or liability whatsoever, whether based on federal, state, local, foreign, statutory, common law or any other law, rule or regulation, whether fixed or contingent, accrued or unaccrued, liquidated or unliquidated, at law or in equity, matured or unmatured, including both known claims and unknown claims that were, could have been, or might have been alleged in the Action.
Many courts have not approved class action settlements where it was determined that the language in the Release is too broad. See UniSuper Ltd. V. News Corporation, 2006 WL 1550809 (Del. Ch. May 31, 2006). In UniSuper Ltd, the Chancery Court required the plaintiffs to modify a release that was too broad in connection with the settlement of a class action. The Chancery Court held the following: that the release extended to claims not part of the operative core facts; the release purported to extend to future claims; the plaintiffs should be judicially estopped from asserting that the operative facts of the case include the merits of the decision to extend the poison pill because the plaintiffs have expressly stated otherwise; the release bound non-voting shareholders forcing them to give up claims in return for benefits they do not share. The Court reasoned that the Release was overly broad and ran aground of the standard set forth by the Delaware Supreme Court.
Here, plaintiff alleged in his complaint extremely specific counts for breaches of fiduciary duties on the part of the defendants. The proposed release grants the defendants too much relief in relation to the allegations of the Complaint. If the Court approves this Release as defined in Section 1.15 of the Stipulation of Settlement, the shareholders will forever release the defendants for any potential claim, in particular, those claims that fall outside the scope of plaintiffs’ complaints. Accordingly, this Honorable Court cannot approve the released claims as currently set forth in the Stipulation of Settlement.
B. The Notice Is Inadequate
The parties agreed to have the Notice published only one (1) day in the Wall Street Journal. Michael Hartleib maintains that publishing the Notice of the Settlement for one day in the Wall Street Journal is inadequate notice. Many shareholders of Sirius are most likely not subscribers and/or readers of the Wall Street Journal. Sirius has the names and addresses of all of its shareholders. The company recently sent out proxy statements for the vote. Accordingly, the best practicable notice procedure would be for the company to send the Notice directly to its shareholders. In the Electronic Data Systems derivative lawsuit in which Robbins, Umeda & Fink was one of the co-lead counsel, the Notice of Settlement was mailed to all of the shareholders. Moore v. Brown, et al., USDC EDTX C.A. 6:04-CV-77. (See “Exhibit B“ which is a true and correct copy of the Notice in Electronic Data Systems). Moreover, another case which involved similar issues in which Robbins, Umeda & Fink was lead counsel was In re: Sirna Therapeutics, Inc. In that case the Notice was mailed to shareholders as well. (See “Exhibit C” which is a true and correct copy of the Notice in Sirna Therapeutics, Inc.).
The proposed Notice does not include any information as to how much the attorneys will be receiving in fees and reimbursement of expenses. The class is entitled to know this information. Michael Hartleib maintains that the Notice must be amended to include this information. Robbins, Umeda & Fink have filed similar cases in In re: Direct General Derivative Litigation and Cardinal Health, Inc. Derivative Litigation. In the Notice of the Settlement, the amount of the Attorneys’ Fees and Reimbursement of Expenses is included in the Notice. (See the Direct General Derivative Litigation and Cardinal Health, Inc. Derivative Litigation Notices attached hereto as “Exhibit D” and “Exhibit E”).
Moreover, Robbins, Umeda & Fink had petitioned the Court to issue a Protective Order in an effort to hide important factors of the settlement such as attorney’s fees and the number of shareholders who voted in favor of the deal.
The Notice should also include a provision in the Stipulation of Settlement in which the defendants state that the Supplemental Disclosures that are the basis of the settlement are not material or otherwise required by law.
C. Class Counsel Is Not Adequate
Robbins, Umeda & Fink has had extensive problems in litigating similar type cases throughout the country.
In the Red Hat Derivative Lawsuit, Robbins, Umeda & Fink, particularly Jeffrey P. Fink, had a significant problem before the Honorable Ben F. Tennille in Andrew Egelhof v. Szulik, State of North Carolina, Superior Court Division, County of Wake File No. 04 CVS 11746. (See Order of the Honorable Ben F. Tennille attached hereto as “Exhibit F”). Judge Tennille prohibited Jeffrey Fink and Robbins, Umeda & Fink from practicing law in the state of North Carolina for a period of five (5) years. Judge Tennille banned Jeff Fink and his firm from practicing because they never communicated with the firm’s client in the case. If they had done so, they would have learned that the client had sold the shares of the Red Hat stock. The firm never informed the Court that they could not get in contact with their client. Moreover, Mr. Fink and his partner, Mr. Robbins, failed to be properly admitted to the Court.
Mr. Fink and one of the associates at Robbins, Umeda & Fink had a significant problem before the Honorable Robert B. Kugler in the Commerce Derivative Lawsuit captioned Pearl E. Lucas, et al. v. Vernon W. Hill, et al., USDC New Jersey C.A. No. 07-349. The lawyers from Robbins, Umeda & Fink intervened in the action and claimed that the lawyers in the case engaged in collusion. Judge Kugler asked the attorney at Robbins, Umeda & Fink the names of individuals who participated in the secret agreement to deprive. Judge Kugler admonished the lawyers at Robbins, Umeda & Fink stating that they were making terrible allegations against the lawyers, alleging that they are involved in a willful fraud.
Judge Kugler stated that the Robbins, Umeda & Fink firm seems to enjoy the scorched earth type of litigation. As a result of the firm’s action, Jeffery Fink was denied admission pro hac vice to the Court. He concluded that the Robbins, Umeda & Fink firm do not have a good grasp on securities law. Judge Kugler further declared that he was surprised that the lawyers at Robbins, Umeda & Fink had not found a cure for cancer among all of the other great things they had done. (See Transcript of Lucas et al. v. Hill et al., before Judge Kugler attached hereto as “Exhibit G”).
These examples demonstrate the antics of the lawyers at Robbins, Umeda & Fink which should give this Court some concern regarding this Settlement.
D. Plaintiff Must Demonstrate He Is a Shareholder
Greg Brockwell is the plaintiff in this matter. In order to be a plaintiff, Mr. Brockwell has to demonstrate that he is a current shareholder of Sirius. Due to past instances in which Robbins, Umeda & Fink had a client who was not a shareholder, Michael Hartleib demands that Greg Brockwell prove that he is a current shareholder of Sirius. Moreover, he should disclose the amount of shares he is holding. In the past, Robbins, Umeda & Fink has failed to disclose that its client was not a current shareholder. (See Egelhof attached hereto as “Exhibit F”).
Michael Hartleib is ready, willing to serve as plaintiff in this matter. Robbins, Umeda & Fink has not demonstrated that Greg Brockwell had any involvement in the settlement negotiations.
E. The Settlement Provides No Consideration
As part of the Settlement, defendants agreed to make supplemental disclosures. The Stipulation of Settlement, Section 2.1 deal with the supplemental disclosures. The Section states the following:
Plaintiffs’ Counsel and Defendants’ Counsel conferred on disclosures supplemental to those contained in the Proxy Statement and Defendants agree to make certain supplemental disclosures relating to the Merger and the Merger Agreement. Following negotiations with Plaintiffs’ Counsel, on November 5, 2007, Defendants caused Sirius to issue and publicly file with the U.S. Securities and Exchange Commission a Current Report on Form 8-K containing additional disclosures relating to the Merger and the Merger Agreement . . . Defendants make no admission that the Supplemental Public Disclosure is material or otherwise required by law. (See Stipulation of Settlement Paragraph 2.1).
As part of the Stipulation of Settlement, the defendants made no admission that the Supplemental disclosures are material. In other words, the defendants believe that the supplemental disclosures which is the basis of the settlement added nothing of value to the initially disclosed information by the company.
If you look closely at the information included in the supplemental disclosure, no real information is revealed. (See “Exhibit H” attached hereto which is a true and correct copy of the Supplemental Disclosure). Accordingly, the plaintiff has resolved this litigation for no real consideration.
II. THE ATTORNEYS REQUEST FOR REIMBURSEMENT OF EXPENSES
SHOULD BE ACTIVELY SCRUTINIZED BY THIS COURT
It has long been customary in class actions for the courts to reimburse the attorneys for the costs incurred in prosecuting the litigation. Here, the attorneys have not revealed their cost, but they will do so in the future. Attorneys may be compensated for reasonable out-of-pocket expenses incurred and customarily charged to their clients, as long as they were incidental and necessary to the representation of those clients. Miltalnd Raleigh-Durham v. Myers, 840 F. Supp. 235, 239 (S.D.N.Y. 1993).
The photocopying cost should be limited to $0.10 per copy and not $0.25 because it could not cost $0.25 to make a copy. This Honorable Court should scrutinize the submission of counsel with regard to the costs in this matter.
Further, this Court should actively scrutinize the costs submitted by the firms to ensure that paralegal services are not being billed as costs in this matter. Often in these type of matters firms will include time of non-attorneys in the costs of the case.
For all of the reasons set forth herein and in the testimony to be submitted at the Preliminary Approval hearing, Michael Hartleib respectfully submits that the Settlement Agreement should not be Approved by this Honorable Court and if the Court does Preliminarily Approve the Settlement, the Notice must be amended.
G. Richard Malgran, Esquire
571 Milford-Warren Glen Road
Milford, NJ 08848
Attorney for Michael Hartleib
Dated: March 14, 2008
If anyone here knows what the hell this guy keeps slapping into this thread please speak now as I am beginning to think I am retarded.
Is it spam? Tyler, can you ban this guy?
Clueless you are about to give up all of your rights if you are long Sirius!
I am going to prevent this from taking place. If you would like me to explain this to you via phone , feel free to call me at 1714-910-7528
SHAREHOLDER MICHAEL HARTLEIB‘S MOTION AND MEMORANDUM
OF LAW IN OPPOSITION TO THE COURT GRANTING
PRELIMINARY APPROVAL OF THE SETTLEMENT
Friday, February 22, 2008
Judge to California lawyers: Don't come backTriangle Business Journal - by Chris Baysden
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RALEIGH - North Carolina public companies have one less law firm to worry about when it comes to shareholder lawsuits filed in the state.
North Carolina Business Court Judge Ben Tennille has barred the San Diego, Calif., firm of Robbins Umeda & Fink from practicing in the state for five years on a pro hac vice basis. The Latin phrase, which means "this time only," allows an out-of-state lawyer to appear in court for a particular trial even though the lawyer isn't licensed in that state.
The order came as something of a coda to a shareholder lawsuit, Egelhof v. Szulik, filed on behalf of a former Red Hat shareholder against members of the technology company's officers and board of directors.
Shareholder lawsuits are the bane of many public corporations since there are a host of law firms that specialize in filing them on word of bad news from a company.
In 2004, Robbins Umeda & Fink represented a plaintiff in a shareholders derivative case involving Chapel Hill-based Pozen. That lawsuit was dismissed in November 2005.
Press Millen, a Womble Carlyle attorney who helped defend Red Hat's management in the Egelhof v. Szulik case, hopes the victory his side scored will have a positive impact for corporations beyond the case.
"I think it's pretty serious," Millen says of the sanctions. "It's definitely a warning shot over the bow of out-of-state counsels about filing meritless lawsuits in North Carolina."
Sanctions against plaintiff
The order, which was issued Feb. 4, prohibits Robbins Umeda & Fink's lawyers from appearing in the state's courts for five years. It also bars Andrew Egelhof, the plaintiff in the case, from acting as a shareholder derivative plaintiff or a class-action representative in North Carolina litigation for five years.
The Egelhof v. Szulik complaint, which originally was filed in Wake County Superior Court in 2004, included allegations of insider trading and gross mismanagement at Red Hat. Defendants included Red Hat Chairman Matthew Szulik and board members Marye Anne Fox, former chancellor of North Carolina State University, and retired Army Gen. Hugh Shelton.
Tennille dismissed the plaintiff's claims in March 2006 due in part to Egelhof's loss of standing as a stockholder. The defendants later asked that they be awarded attorneys' fees. Though that motion was not granted, it prompted Tennille to examine actions taken by the plaintiff and the law firm.
Tennille asserts that the lawsuit was filed in a "needless rush to court" just 31 days after Red Hat restated its earnings on July 19, 2004. He wrote in his order that the case was filed without an inspection of the company's books and records, and many of the allegations relied on media reports and published analyst opinions.
Tennille also took exception to Egelhof being the fiduciary standard bearer. According to court documents, Egelhof was a 24-year-old Kansas resident when he responded to an Internet solicitation seeking a plaintiff.
While he had a degree in business administration, Egelhof had worked in information technology jobs at Kansas State University. His holdings in Red Hat amounted to 28 shares of stock worth $710.50 that he bought in 2004.
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