The Anatomy of Public Corruption

Showing posts with label Private Equity. Show all posts
Showing posts with label Private Equity. Show all posts

Verified Ukrainian Organizations - Always donate with care

On Thursday, Feb. 24, Russia began its attack on Ukraine.

With heavy casualties expected on both sides, you might be wondering how you can help.

On TODAY Monday, NBC News correspondent Kerry Sanders highlighted two organizations that are on the ground at the Ukrainian border providing food and shelter for refugees streaming out of the country.

Global Empowerment Mission

The Miami-based organization Global Empowerment Mission is on the ground in the tiny village of Medyka, Poland, using donations to buy refugees train and plane tickets to help them reach any family or friends they may have in Europe.

"They have an opportunity to stay with a friend of theirs, you know, (in) a bordering country where they’re in the warm and they can eat nice meals at the table," GEM founder Michael Capponi told Sanders.

globalempowermentmission.org

World Central Kitchen

For many refugees, food is an immediate need. Chef Jose Andrés has set up his World Central Kitchen on the ground at the Ukraine-Poland border providing warm meals for the hungry.

"Nothing sends a bigger message of hope than a humble plate of food. And that’s the only thing we know how to do," Andrés said. "America is gonna be with the people of Ukraine."

WCK.org

TODAY also compiled a list of United States-based charities that will put your money to good use, based on information from their websites. Here are nine organizations you can support:

Americares

Americares has deployed an emergency response team to Krakow, Poland, to provide aid to the Ukrainian refugees there. According to their press release, they have been sending "large-scale shipments of medicine and relief supplies" to the refugees and are prepared to "deliver medicine, medical supplies, emergency funding and relief items to the region" at will.

United Way Worldwide

United Way Worldwide has just launched a global relief fund for the people in Ukraine called The United for Ukraine fund. The money raised will provide refugees with food, shelter, medicine, transportation and critical childcare supplies that infants need such as formula.

Angela F. Williams, President and CEO, United Way Worldwide addressed the crisis in Ukraine in a press release.

She said, "There is no doubt that this situation is fluid and changing by the hour. And though the needs are great and will likely only grow and change over time, we will be there to support those in crisis."

“United Way stands ready to mobilize the caring power of our global community to help ease the suffering of those whose lives have been upended, and whose future is uncertain," Williams added.

World Health Organization

The WHO foundation is calling on people around the world to help them provide aid to Ukraine. With everyone's help, the WHO foundation can reach its goal of raising $57.5 million to fund “immediate large-scale emergency response and health needs in Ukraine and the humanitarian response in neighboring countries.”


Related video: How American volunteers are helping the evacuation effort in Ukraine (NBC News)

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How American volunteers are helping the evacuation effort in Ukraine

According to its press release, the money will help Ukraine's neighboring countries deal with the overflow of patients in their hospitals as well as anyone who needs immediate medical assistance.

Not to mention, WHO will also help to support the mental health of anyone who has been affected by the crisis, including healthcare workers.

USA for UNHCR

USA for UNHCR fundraises on behalf of UNHCR, the UN Refugee Agency and recently, they made headlines for partnering with Blake Lively and Ryan Reynolds to help people in Ukraine. On Feb. 26, the couple announced that they were going to match donations of up to $1 million that the UN Refugee Agency was getting for Ukraine. And within 48 hours, Reynolds and Lively met their goal.

According to the official website of USA for UNHCR, the money went towards providing "lifesaving aid, protection and hope for displaced families from Ukraine."

But even with so much support, the organization knows that they still have plenty more people to help so UNHCR says that they are currently “on the ground scaling its response to provide assistance and ensure those displaced find safety in welcoming arms in this moment of crisis."

Global Giving Ukraine Crisis Relief Fund

The Ukraine Crisis Relief Fund by Global Giving sprung into action once Russia declared war on Ukraine earlier this week.

According to the organization's official website, your donation will help "affected communities in Ukraine, with a focus on the most vulnerable, including children, who need access to food, medical services, and psychosocial support."

Not only that, but the Ukraine Crisis Relief Fund will "support humanitarian assistance in impacted communities in Ukraine and surrounding regions where Ukrainian refugees have fled."

International Rescue Committee

As the conflict in Ukraine escalates, the International Rescue Committee is getting ready to prepare for the worst. Right now, it is mobilizing resources to aid the people in Ukraine who were forced to flee their homes.

"The IRC is meeting with partners and local civil society organizations in Poland and Ukraine to assess capacity for responding to an increase of refugees and people in need," said the organization on its official website. "We will work to respond where we are needed the most and with the services that are needed urgently. Whatever the needs are, we are preparing to meet them.”

Save the Children

According to Save the Children, there are 7.5 million kids who are in danger of physical harm, emotional distress and displacement due to the invasion in Ukraine. Even before the conflict escalated this week, there were already 400,000 children there who needed humanitarian aid.

That's why Save the Children has made their own Ukraine Crisis Relief Fund to help Ukrainian families now. On their official website, the organization said that it will use donations to help families meet their basic needs such as food, medicine and shelter.

Save the Children's specialist teams will also help Ukrainian children get access to education and psychosocial support.

People wait in a traffic jam as they leave the city of Kharkiv (Antonio Bronic / Reuters)
© Antonio BronicPeople wait in a traffic jam as they leave the city of Kharkiv (Antonio Bronic / Reuters)

Razom for Ukraine

Razom for Ukraine has been helping Ukrainians since the organization was first established in 2014. It aims to help Ukraine pursue a democratic society that has civil rights for all.

"This is not the first time we are all facing the hybrid war against us. And together we will stand strong!" the charity said on its Facebook page.

According to its official website, the organization is named Razom for Ukraine because Rzaom "means 'together' in Ukrainian and serves as a constant reminder of the community that it takes to create, build and do, to stay the path towards a more prosperous and democratic Ukraine."

The International Committee of the Red Cross

The International Committee of the Red Cross is helping the Ukrainian Red Cross assist people who were affected by the conflict there.

Once war broke out, ICRC president Peter Maurer released a statement on the organization's website.

"The ICRC’s priority is to assist those in need," he said. "This week we delivered 3,000 liters of potable water to Dokuchaevsk hospital and sent 7,000 liters to Donetsk municipality."

"Recent work also includes visits to places of detention to help improve hygiene and nutrition," he added. "The security situation permitting, our teams now in Ukraine will continue their work to repair vital infrastructure, support health facilities with medicines and equipment, and support families with food and hygiene items."

"We will also continue our bilateral and confidential dialogue with the parties to the conflict to protect those affected by the fighting," Maurer continued.

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The Living, Dead and Destroyed Outsourcing Stories

The Living, Dead and Destroyed Outsourcing Stories

Pete Bennett's grassroots efforts regarding the impact of the H-1b eventuall destroyed his family, career and his health.

Outsourcing

Bennett appeared on PBS with Oracle Spokesman Robert Hoffman. The core topic was outsourcing of US Jobs and the impact of the H-1b visa.
Photo of sunset

Nothing in San Francisco not even the reward for the murder of Officer Lester Garnier

Harris indicts Childs

Indict, fire or kill US Programmers so as too outsource your personal reocords.
Photo of sunset

Mr. Childs was seen at Pacific IT Professionals a 4,000 member IT Professional association

Outsourcing Clearing Procedure

Bennett met Mr. Childs at local tech meetings. Many in tech consider his arrest and charge overkill but length of sentence more disturbing.
Photo of sunset

Nothing in San Francisco not even the reward for the murder of Officer Lester Garnier

The Untold Dead Candidates Stories

What Pete Bennett and Kamala Harris know but only Pete is will to share.

2016 ~ Pete Bennett beaten downtown Walnut Creek

the 1984 Timothy Lee Murder on Concord CA

Pete Bennett a resident of Contra Costa County since 1978 sat back for years watching endless incidents of murders, hate crimes and setups of suspects. His first case was a car arson fire at the end of Santa Monica Drive.

1982 to 1996 The Railroad Billionaire

Philip Anschutz Chairman of Southern Pacific
The KKK comes around

Attorney Rick Kopf appeared in Contra Costa County Superior Court on behalf of Southern Pacific. Back in 1989 this collection of parties from Southern Pacific likely colluded in destroying Bennett vs. Southern Pacific by killing a key witness.


Today Bennett believes the murders and hate crimes lead to the investigators.

1he 1978 KKK Invitation

The KKK comes around
Bennett relocated to Walnut Creek California during June 1978 renting a cottage house next to Coop Grocery on Geary Road. The property was owned by Jack Bennett (Cousin) and Irene Gorgas of Ideal Homes located on N. Main at Geary.

1979-1992 ~ Sheriff Rainey

The KKK comes around
Sheriff Richard Rainey has part of Contra Costa Sheriff since the mid sixties. Bennett arrived in June 1978 where he ran into a series of people clearly connected to the KKK. Given the large number of cold cases something is amiss in the statistics.

1979-1992 ~ Mark Peterson

The KKK comes around
Mark Peterson held the highest level of trust in Contra Costa County as District Attorney. During June 2017 Peterson was charged with perjury connected his fibbing on Fair Political Practices forms (FPPC). During 2010 Bennett met with Peterson with at least a dozen withenss.

Southern Pacific General Counsel

The KKK comes around
This attorney and his connections to the inner power structure of Contra Costa County was defense council in the Matter of Bennett vs. Southern Pacific filed in 1987 lost in 1990.

2003 to 2015 Mark Coon

The KKK comes around
Mark Coon was the most gracious person. He met with Pete Bennett in regards to the City of Concord Entertainment Permit. The dispute arose when Bennett attempted to busk downtown in Todos Santos Park. Bennett went the Concord Police Department where he met with Chief Livingston. Years later Bennett realized Livingston was present at the Pine Wood Derby the same weekend his sons were taken.
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Deadly Equity: The Deadly Side of the Longs Drugs Acquisition

The Private Equity Takedown of Longs Drugs

When the consultants come to down another business goes down


Longs Drugs Portal

The Pathetic Loss of his son, then the loss of his life.

James Powell, a 40 year resident of Walnut Creek was once a Senior Project Manager for Longs Drug 

Cnetscandal.blogspot.com

Jim

Jim and his service dog

A Longs Drugs History Primer

James Powell was senior project manager at Longs Drugs working on the upcoming Point-of-Sale rollout during 2007. Durint the rollout he walked into the restroom and left via ambulance never to return allowing the consultants botch the upgrade bounce the allowing outside parties to acquire the company.

Leadership Changes

Longs Drug Stores Corp. in Walnut Creek, Calif., recently announced that Michael M. Laddon has joined the company as CIO, reporting to the CEO. Laddon previously was CIO at Produceline.com and Ralphs Grocery Co.

Follow the Money

The retail sector is dominated by the investment community driving deals in any direction they choose. Getting in their way might be the end of your career or life but that's your choice!

Blood on their hands

ssex Bags Brio in Walnut Creek for $165M San Mateo, CA-based Essex Property Trust acquired Brio, a 300-unit apartment complex in Walnut Creek, CA, for $164.9 million, or roughly $550,000-per-unit. The complex was sold by SummerHill Apartment Communities, which completed the project in 2015.

The Headquarters

This prime location sat empty near downtown Walnut Creek for many years after the 2008 acquisition by CVS.

Long Drugs Headquarters

Cnetscandal.blogspot.com

Longs during the 50s

Cnetscandal.blogspot.com

Dying for Private Equity

The Story of how two studens each connected to signficant events, one connected to the Merger and Acquisition of Long's Drugs whose former Headquarters located on Civic Drive Walnut Creek

The Los Lomas Tragedies

Cnetscandal.blogspot.com
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Steve Burd Profile - Silverlake Partners, Southern Pacific, Blackhawk Network, Safeway, CEO Steve Burd, Philip Anschutz, Milken, and CEO Larry Ellison

 this story is decades in the making but Pete Bennett owner of Mainframe designs cabinets pictures lost his his business after litigation with planet vs. Southern Pacific Ananda Bennett with the help of the sheriff and the coroner they covered up the murder of his witness for decades.

Ellen and Bill Tauscher owners of computer in stores was actually finish client but we never produced anything for them. Through that relationship and Computer Link korporate eventually Bennett was hired as a as second career to develop the budget forecasting program for ComputerLand stores directly across the street from Vanstarr.

Bennett had to go to Ellen for specialized changes so the SQL Scripts coming off of their systems which is where Bennett discovered the fraud.

By then computerland have been spun off to another distributor called MeriselFab.

Keep Bennett was hired by the new owners to rewrite a series of reports which was about three hundred of them and consolidate them to the spreadsheet server.

Bennett being an outside contractor and relatively new in Fortune 500 produce the reports and told management they were losing money all the refunds went back to apple and a few other companies.

Now that Apple's trillion-dollar company maybe it's time that they pay off the employees at computerland that lost their entire retirement when Bennett's reports produce the truth about the rma's so many went back to Apple.

What Benetton coverage was most of the 25 million that he found never shipped in the first place because Van star controlled by Tauscher now with Silverlake partners orchestrated the fraud using the Mars system that they controlled and the Fulfillment model where computer land was basically a sales organization advanstar controled the distribution.

Show before the sale in 1993 they just pumped out the numbers puffed up the books good enough that another company came along and bought them out.

Bennett bumped into Ellen Tauscher at Broadway Plaza oh, already homeless beating on a regular basis and dealing with corruption in Walnut Creek and surrounding areas. He shared his situation in Spring of 2014 and not long after more people died it was a bloody year.


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Silverlake Partners, NYFed, AT&T and Building 7



One of the key reasons I have focused on Silverlake partners is the connection to the New York fed, the connection to Glenn Hutchins of AT&T oh, the highly of it in connection to Elevation partners and also litigation involving HomeStore a case apparently pretty fraudulent next to Wilson sonsini and that leads to mulesoft, Salesforce and yours truly the oracle versus Salesforce hostile takeover.

One key part of that is the connection a former CEO Steve burd of Safeway and his relationship with attorney Richard Stanford Kopf.

In the 1980s Safeway was a customer of Mainframe designs cabinet fixtures owned by Pete Bennett who developed fixtures for Safeway Wells Fargo Bank of America and many other well-known enemies.

His lawsuit ended in Flames when they killed his witness in 1989 it was covered up with the help of Sheriff Richard Rainey because when you control the coroner's office he don't count very well when the body start stacking up.







Industry
Private equity
Founded1999; 21 years ago
FounderJim Davidson, David Roux, Roger McNameeGlenn Hutchins
HeadquartersMenlo ParkCaliforniaUnited States
Number of locationsMultiple offices in 3 countries
Key peopleMike Bingle
Egon Durban
Ken Hao
Greg Mondre
Joe Osnoss
ProductsInvestment funds
AUMUS$43 billion (2020)[1]
Websitewww.silverlake.com
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Bono, Silverlake, Wilson Sonsini, Salesforce, PeopleSoft

So I sued Southern Pacific in 87 I lost when someone killed my witness who was a 21 year old man from Walnut Creek.

It seems my histories constantly criss-crosses with litigation near Wilson sonsini, PG&E bill Tauscher of computerland and former Safeway CEO Steve Burd with additional crossovers into Blackhawk Network Silverlake partners elevation partners and also CEO Philip Anschutz, Michael Milken of the junk Bond theme, and his friend Larry Ellison former CIA programmer that probably knows who killed my Witnesses and my friends in 1975.

 in the middle of this is a company called FICO, a virus called nimda that could have very well been created by CIA experts the ones that lost all all they're spooked tools at the CIA who would easily know how to execute a virus to propagate around the the globe that would work especially well if you have an unwitting Insider parked in front of 3,000 servers at SBC with a virus likes to look at servers and explode from there




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Stanford University Law School - Securities Class Action Clearinghouse

 

BRUCE G. VANYO, State Bar # 060134
LAURIE B. SMILAN, State Bar # 116740
DAVID PRIEBE, State Bar # 148679
MICHELE E. ROSE, State Bar # 154656
SUSAN BOWER, State Bar # 173244
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
Telephone: (650) 493-9300

Attorneys for Defendants

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DAVID T. O'NEAL TRUST, DATED 4/1/77
and TAMMY NEWMAN, On Behalf of
Themselves and All Other Similarly Situated,

                      Plaintiffs,

           v.

VANSTAR CORPORATION, RICHARD H.
BARD, WILLIAM Y. TAUSCHER, JAY S.
AMATO, ROBERT C. KUNTZENDORF,
JEFFREY S. RUBIN, RICHARD N.
ANDERSON, CHRIS M. LANEY,
MICHAEL J. MOORE, AHMAD
MANSHOURI, COLEMAN D. SISSON,
THANOS M. TRIANT, E.M. WARBURG,
PINCUS & CO., INC., WARBURG PINCUS
& CO., L.P., STEWART K. P. GROSS,
WILLIAM H. JANEWAY and JOHN L.
VOGELSTEIN,

                      Defendants.
______________________________________


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CASE NO.: C-98-0216-MJJ

CLASS ACTION

MEMORANDUM OF POINTS
AND AUTHORITIES IN
OPPOSITION TO
PLAINTIFFS' MOTION TO
STRIKE EXHIBITS
SUBMITTED IN SUPPORT
OF DEFENDANTS' MOTION
TO DISMISS

[filed c. Oct. 23, 1998]

Date: November 3, 1998
Time: 9:30 a.m.
Court: Honorable
      Martin J. Jenkins

INTRODUCTION

Plaintiffs have moved to strike certain documents submitted with Vanstar's motion to dismiss: Vanstar's 1997 Form 14A ("Form 14A") and a calculation of stock sales by Vanstar's officers and directors ("Appendix"), which is taken directly from publicly filed SEC documents upon which plaintiffs rely. Plaintiffs argue that these documents are "outside" the Complaint, and therefore cannot be considered on a motion to dismiss. Plaintiffs also argue that the documents constitute inadmissible hearsay.

Plaintiffs' arguments are ill-founded. Under the Private Securities Litigation Act of 1995, plaintiffs must plead specific facts giving rise to a strong inference of each defendant's required state of mind (i.e., scienter), or the Complaint must be dismissed. Plaintiffs attempt to plead scienter by arguing that the individual defendants' stock sales were unusual or suspicious. The documents in question simply assist the Court in analyzing the judicially noticeable information provided by plaintiffs. Courts in securities class action cases routinely take judicial notice of SEC filings -- including documents which demonstrate that stock sale allegations are false -- and will dismiss allegations which are inconsistent with the filings. It is contrary to the Reform Act, and palpably unfair, for plaintiffs to claim that the documents must be excluded from the Court's consideration, while at the same time averring that their stock sale allegations taken from the same documents, which may be judicially noticed, give rise to a strong inference of scienter. Thus, the Court should deny plaintiffs' motion; or, if the Court is inclined to strike these documents, it should also strike plaintiffs' stock sale allegations.

Moreover, the documents are not "outside" the Complaint as they deal directly with allegations in the complaint. The law is clear that the mere fact that plaintiffs neglect to attach documents integral to their complaint does not render such documents "outside" a complaint, nor preclude the Court from considering the documents in a motion to dismiss. The Form 14A reveals the stock ownership of Vanstar's most senior management, ownership that is at the heart of plaintiffs' scienter allegations. Likewise, the Appendix was prepared directly from the Forms 3 and 4 filed with the SEC, which plaintiffs clearly used in drafting the Complaint (there is no other ultimate source from which plaintiffs could have obtained otherwise confidential information regarding the individual defendants' stock sales and holdings). Plaintiffs cannot seriously complain about a chart that was prepared to assist the Court in analyzing judicially noticeable information that was first provided by plaintiffs.

Plaintiffs' hearsay objection also is misplaced. Plaintiffs waived any such objection by choosing to include in their Complaint stock sale allegations in the first instance. Moreover, to the extent the Form 14A is referenced for the truth of the matters asserted therein, it is admissible under the business records exception to the hearsay rule. Finally, as plaintiffs themselves admit, the documents at issue were not offered solely for their truth value: rather, they are also offered to indicate the individual defendants' state of mind., i.e., were they selling or retaining significant portions of their net worth in the securities of the Company.

ARGUMENT

I. THE COURT MAY TAKE JUDICIAL NOTICE OF THE DOCUMENTS

    A. Courts Routinely Take Judicial Notice of SEC Filings.

When deciding motions to dismiss, courts routinely take judicial notice of, or otherwise consider, documents other than the complaint.1 Indeed, the great weight of authority holds that SEC filings are properly considered when deciding a motion to dismiss, and that those filings are properly the subject of judicial notice. Seee.g.Wenger v. Lumisys, Inc., 2 F. Supp. 2d 1231, 1240 n.8 (N.D. Cal. 1998) (denying plaintiff's motion to strike documents filed with the SEC, specifically Form 4s showing the actual number of shares sold during the class period); In re Silicon Graphics Securities Lit., 970 F. Supp. 746, 758 (N.D. Cal. 1997) (court may take judicial notice of the contents of relevant public disclosure documents required to be filed with the SEC) (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991)); In re Gupta Corp. Sec. Litig., 900 F. Supp. 1217, 1228 (N.D. Cal. 1994) ("[T]he court may review 'public disclosure documents required by law to be and which actually have been filed with the SEC.'") (quotation omitted); Shaw v. Digital Equipment Corp., 82 F.3d 1194, 1206 n. 13, 1220 (1st Cir. 1996) ("In deciding a motion to dismiss a securities action, a court may properly consider the relevant entirety of a document integral to or explicitly relied upon in the complaint, even though not attached to the complaint, without converting the motion into one for summary judgment."); Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1018 (5th Cir. 1996) ("When deciding a motion to dismiss a claim for securities fraud on the pleadings, a court may consider the contents of relevant public disclosure documents which (1) are required to be filed with the SEC and (2) are actually filed with the SEC.").2

    B. Courts May Take Judicial Notice of Documents "Outside" the Complaint.

Plaintiffs also assert that the subject documents do not fall within the scope of judicial notice because they are "outside" the Complaint. See Plaintiffs' Brief at 3-4. It is well settled, however, that a document need not be attached to a complaint in order for a court to properly consider it when deciding a motion to dismiss. In re Syntex Corp. Sec. Litig., 95 F.3d 922, 926, 929 (9th Cir. 1996) ("When deciding a motion to dismiss, a court may consider the complaint and 'documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading.'") (quoting Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994)).3

Here, the authenticity of the subject documents is not truly disputed, and their contents are integral to the Complaint. The Form 14A reveals the stock ownership of Vanstar's senior most management and plaintiffs have made this ownership a central issue of the Complaint. Likewise, the Appendix was prepared directly from the Forms 3 and 4 which are the exact documents plaintiffs used to draft the Complaint.4 All that Defendants have done here is present the same judicially noticeable, integral information plaintiffs have included in their Complaint in such a way as to assist the Court.5

II. THE SUBJECT DOCUMENTS ARE NOT INADMISSIBLE HEARSAY

Plaintiffs contend that even if the exhibits are properly the subject of judicial notice, the Court may not consider them because they may not be submitted to disprove scienter and because they constitute hearsay. See Plaintiffs' Brief at 4-6. Plaintiffs similarly argue that cases which have judicially noticed SEC filings have only taken judicial notice of the fact that the documents were filed or where the misrepresentations were contained in those documents. Id. at 4-5. For three reasons, plaintiffs are wrong.

First, as shown above, plaintiffs themselves have alleged the truth of the matters asserted in the documents. Their Complaint alleges that the individual defendants sold particular amounts of stock, at particular prices, on particular dates. It also alleges that the individual defendants sold particular (albeit inflated) percentages of their stock holdings. Complaint ¶¶ 138-141. Thus, plaintiffs cannot complain if and when Defendants refer to the same SEC filings, or information extracted from the filings for the truth of the matters asserted therein. This is precisely the reason that courts have taken judicial notice of stock sales in securities cases. See Silicon Graphics, 970 F. Supp. at 759 ("Having raised questions about defendants' stock sales, [and] based their allegations on defendants' SEC filings . . . plaintiffs can hardly complain when defendants refer to the same information in their defense."); Wenger at 1240 n.8 (denying plaintiff's motion to strike documents filed with the SEC, specifically Form 4s showing the actual number of shares sold during the class period); see also United States v. Anderson, 532 F.2d 1218, 1229 (9th Cir. 1976) (defendant who introduced hearsay statement waived objection).

Second, the exhibits are offered not only for their truth value, but also to demonstrate the state of mind of the individual defendants. As such, they are excepted from the hearsay rule. Fed. R. Evid. 803(3). Plaintiffs admit that these documents would demonstrate state of mind, if accepted by the Court. Pl. Br. at 6. Plaintiffs attempt to plead the individual defendants' state of mind by asserting that each of them intended to sell unusual amounts of Vanstar stock, rather than retaining his or her shares and stock options. Thus, the documents are relevant to plaintiffs' state of mind theory.

Third, the Form 14A is admissible under the business records exception to the hearsay rule. See Fed. R. Evid. 803(6). For a memorandum or record to be admissible as a business record, it must be: (1) made by a regularly conducted business activity; (2) kept in the "regular course" of that business; (3) "the regular practice of that business to make the memorandum, and (4) made by a person with knowledge or from information transmitted by a person with knowledge." Clark v. City of Los Angeles, 650 F.2d 1033, 1036-37 (9th Cir. 1981) (quoting Fed. R. Evid. 803(6). The Form 14A was prepared by persons with knowledge of the facts contained therein, kept in the ordinary course of Vanstar's business, and required by law to be prepared and submitted to the SEC. Moreover, Vanstar relied on the preparation of those documents in its business; it was required by law to disclose proxy and officer stock sale information. Accordingly, all of the requisites of the business records exception are satisfied. See United States v. Childs, 5 F.3d 1328, 1333 (9th Cir. 1993) (documents properly admitted as business records notwithstanding defendant's objections that the circumstances surrounding preparation of documents indicated a lack of trustworthiness, and that documents were not made in regular course of business); United States v. Bland, 961 F.2d 123, 126-27 (9th Cir. 1992) (firearm registration form required by law properly admitted as business record; "the person completing [the form] had knowledge of the transaction at the time it occurred and [the document] was maintained as a regularly conducted business activity as required by law."); Keogh v. Commissioner of Internal Revenue, 713 F.2d 496, 499 (9th Cir. 1983) (card dealer's diary containing personal financial records properly admitted as business record; "Witlock's diary, even though personal to him, shows every indication of being kept 'in the [ordinary] course of' his own 'business activity,' 'occupation, and calling.' . . . The reliability usually found in records kept by business concerns may be established in personal business records if they are systematically checked and regularly and continually maintained.").

III. IT WOULD BE CONTRARY TO THE REFORM ACT TO STRIKE THE DOCUMENTS

Under the heightened pleading requirements of the Reform Act, plaintiffs must allege facts sufficient to create a strong inference of scienter on the part of each defendant. See Securities Exchange Act of 1934 §§21D(b)(2), (3), 15 U.S.C. §§78 u-4(b)(2), (3). Plaintiffs attempt to meet this burden to plead the individual defendants' state of mind by arguing that those persons engaged in unusual or suspicious trading. Plaintiffs' Mem. of Points & Auth. in Opposition to Defendants' Motion to Dismiss at 19-21. Nevertheless, plaintiffs contend that the actual stock sale information included in the Defendants' exhibits should not be considered.

Plaintiffs are wrong. As the Reform Act imposes an affirmative duty on plaintiffs to present a complaint that provides a strong inference of scienter, it is only logical that "plaintiffs bear the burden of showing that any such sales are in fact unusual," when they rely on stock sale allegations to plead scienter. In re Health Mgm't Sys., Inc. Sec. Litig., No. 97-CIV-1865(HB), 1998 U.S. Dist. LEXIS 8061, at *18 (S.D.N.Y. May 28, 1998). Thus, plaintiffs cannot merely plead their conclusion that the stock sales are "suspicious" or "unusual." Instead, they must plead information indicating (1) the number of shares and options each defendant retained, and (2) each defendants' past pattern of sales, so that the "suspicious" or "unusual" nature of the sales in question can be discerned. Securities Exchange Act of 1934 §§21D(b)(1), (2), 15 U.S.C. §§ 78u-4(b)(1), (2) (Reform Act requires plaintiffs to set forth the factual basis of allegations made on information and belief).

Thus, the Court is entitled to take judicial notice of those documents to determine if, as the Vanstar Defendants allege, they refute plaintiffs' allegations. In re Silicon Graphics, Inc. Sec. Litig., 970 F. Supp. 746, 751 (N.D. Cal. 1997 ("[T]he court need not accept as true allegations that contradict facts that have been judicially noticed."). Conversely, if the exhibits are not considered, neither should plaintiffs' stock sale allegations. Seee.g.Duncan v. Pencer, 1996 WL 19043, at *12 (S.D.N.Y. 1996) (absent stock sale information, no inference of unusual or suspicious sales may be drawn).

CONCLUSION

For the reasons set forth above, the motion to strike should be denied in its entirety; or, if the Court is inclined to strike the Subject Documents, it should also strike plaintiffs' stock sale allegations.

Dated: October __, 1998

WILSON, SONSINI, GOODRICH & ROSATI

By:___________________________________
     Susan Bower
Attorneys for Defendants




1 Seee.g.Kottle v. Northwest Kidney Centers, 146 F.3d 1056, 1064 n. 7 (9th Cir. 1998) (declining to treat Rule 12(b)(6) motion as summary judgment motion despite district court's consideration of affidavit whose "sole purpose was to put before the Court certain public records of the Department" for which court could take judicial notice); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir. 1988) (declining to treat Rule 12(b)(6) motion as summary judgment motion despite district court's consideration of declaration requesting judicial notice of certain matters in public record, including other related proceedings).

2 Plaintiffs' citation to In re Sun Microsystems, Inc. Sec. Lit., No. C-89-20351, 1990 U.S. Dist. LEXIS 18740 (N.D. Cal. Aug. 20, 1990), in support of their argument that the Court may not take judicial notice of the documents in question is more than a little misleading: the Court in that case declined to take judicial notice of certain SEC filings because the relevant SEC filings already were attached to the complaint by plaintiffs, and hence no judicial notice of those documents was necessary. Id. at *6. It is also curious that plaintiffs would cite Haltman v. Aura Systems, Inc., 844 F. Supp. 544, 550 (C.D. Cal. 1993), as the Court in that case merely decided that it could dismiss plaintiffs' claims without the necessity of reviewing the documents submitted for judicial notice.

3 See also In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1405 n. 4 (9th Cir. 1996) ("[D]ocuments whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading may be considered in ruling [under] Rule 12(b)(6) Motion to Dismiss.") (quotation omitted); Fecht v. Price Co., 70 F.3d 1078, 1080 n.1 (9th Cir. 1995); In re Verifone Sec. Litig., 11 F.3d 865, 868 n.2 (9th Cir. 1993); Branch, 14 F.3d at 453 ("The leading commentators state that 'when [the] plaintiff fails to introduce a pertinent document as part of his pleading, [the] defendant may introduce the exhibit as part of his motion attacking the pleading.'") (quoting 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil ' 1327, at 762-63 (2d ed.1990)).

4 Plaintiffs admit that they reviewed Vanstar's SEC filings in drafting their Complaint. Complaint ¶ 160. In any event, any contention that the stock trading data alleged in the Complaint was obtained from sources other than Forms 4s is highly implausible (and no such other sources are disclosed). If Vanstar and its officers had not been required to disclose their trades and stock holdings in the SEC filings, the information would be protected from disclosure by the Article I of the California Constitution. Silicon Graphics, 970 F. Supp. at 758 (the trading "allegations can be derived only from the[] publicly-filed documents," any credible financial publications themselves must derive information concerning the personal financial affairs of executives from the SEC filings).

5 Nor may plaintiffs contend that they genuinely dispute the accuracy of the exhibits at issue. The purpose of judicial notice is to avoid unnecessary costs associated with establishing a fact that "is not really disputable." 1 Weinstein's Evidence ¶ 201[03] at 201-24 (1996). Courts have rejected such attempts to circumvent the principles of judicial notice. See Silicon Graphics, 970 F. Supp. at 758 (rejecting theory where plaintiffs' challenge to accuracy of SEC forms submitted by the defendant was "weak," and there was no evidence presented which would cast doubt on those filings). Moreover, the Ninth Circuit has held that judicial notice may be taken of matters less trustworthy than SEC filings, where the matter is "capable of sufficiently accurate and ready determination." In Ritter v. Hughes Aircraft Co., 58 F.3d 454 (9th Cir. 1995), the Court held that the district court properly took judicial notice of widespread layoffs at Hughes Aircraft based on a newspaper article: "judicial notice of layoffs at Hughes was not an abuse of discretion [because] [t]his is a fact which would be generally known in Southern California and which would be capable of sufficiently accurate and ready determination." Id. at 458-59.




Source: File to epost from Wilson Sonsini Goodrich & Rosati
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