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1
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PLAINTIFFS OPENING BRIEF IN SUPPORT OF OMOTION TO VACATE THE STAY
|
EXTRACTED KEY WORDS
PLAINTIFF DERDIGER HBOC CALIFORNIA ACTION TALLMAN MOTION NET INCOME MERGER VACATE DELAWARE PROXY STATEMENT REVENUES ACCESS STOCKHOLDERS SUSMAN DEFENDANTS FIRST NATIONAL PLAZA PROMPT JUSTICE PRO FORMA FALSE DISCLOSURE CALIFORNIA LITIGATION FINANCIAL INFORMATION SUPPLEMENT FINANCIAL PERFORMANCE COMBINED PRO FORMA INDIVIDUAL DEFENDANTS HOWARD DERDIGER NATURE HEALTH CARE HBOC OFFICERS |
~~~~~~~~~~,
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
HOWARD DERDIGER, on behalf of himself >
and all others similarly situated,
;
Plaintiff,
V. ; C.A. No. 17276
>
JOSEPH P. TALLMAN, JOHN R. DURANT, )
M.D., KINNEY L. JOHNSON, RICHARD C. )
MILLER, FRANK G. WASHINGTON and )
HBO & COMPANY, > _ `;
1 i 1
- :
Defendants. 1 : '
`_ I :
PLAINTIFF'S OPENING BRIEF
IN SUPPORT OF HIS MOTION TO VACATE THE STAY
PRICKETT, JONES & ELLIOTT
Ronald A. Brown, Jr.
1310 King Street
P.O. Box 1328
Wilmington, Delaware 19899
(302) 888-6500
Attorneys for Plaintiff
OF COUNSEL:
SUSMAN & WATKINS
Arthur T. Susman
Charles R. Watkins
Two First National Plaza
Suite 600
Chicago, Illinois 60603
(312) 346-3466
Dated: December 20, 2001
SNIPPETS:
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2
.
ORDER REFUSING MOTION TO CERTIFY INTERLOCUTORY APPEAL
|
EXTRACTED KEY WORDS
CLASS ACTION CALIFORNIA DERDIGER DELAWARE APPEALS PLAINTIFF INTERLOCUTORY DISTRICT COURT LAWSUIT DEL OPINION CERTIFY REVIEW CHANCERY MOTION HBOC FORUM SUPREME COURT CONSOLIDATE STANDARD SATISFY UNITED STATES LITIGATION STAYING REASON SUPR FACTS CONFLICTING WANE STANDARD |
IN THE C0UR.T OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
HOWARD DERDIGER, on behalf )
of him.self and all others similarly )
situate,d, >
Plaintiff, ) -- i..
< '
r -: - `"t
> -.
V. > Civil Action No. 172'%: 1:
- ,.. 4
> : .-
JOSEPH P. TALLMAN, JOHN )
R. DLJRANT, M.D., KINNEY >
L. JOHNSON, RICHARD C. >
MILLER, FRANK G.
WASHINGTON and HBO & i
COMPANY, >
Defendants. )
QJDER REFUSING MOTION TO
CERTIFY INTERLOCUTORY APPEAL
-L
1. Plaintiff Howard Derdiger moves pursuant to Rule 42 of the Rules
of the Supreme Court of Delaware for an order certifying an interlocutory
appeal. He seeks to appeal this Court's July 20, 2000 ruling in which I
stayed this purported class action in favor of a prior pending action in the
United States District Court for the Northern District of California involving
subst.antially the same parties and issues.
2. Plaintiff, a former stockholder of Access Health, Inc., filed this
lawsuit on July 2, 1999. He asserts claims arising out of accounting
SNIPPETS:
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3
.
OPINION
|
EXTRACTED KEY WORDS
PLAINTIFF CLASS ACTION DELAWARE HBOC DEFENDANTS COUNSEL CALIFORNIA CLASS ACTION DERDIGER ACCESS DIRECTORS MERGER LEAD PLAINTIFF ACCESS STOCKHOLDERS MOTION FORMER ACCESS MCKESSON HBOC STOCK FLOM LLP PROXY STATEMENT FEDERAL COURT SECURITIES FIDUCIARY DUTY SHAREHOLDERS STATE FUND LITIGATION CLASS REPRESENTATIVES WILMINGTON ARPS SLATE MEAGHER |
/- F--, 7 I-% r r- `1 ,p "
:'
IN THE COURT OF CHANCERY OF THE STATE d; DELAWARE
IN AND FOR NEW CASTLE COUNTY
HOWARD DERDIGER, on behalf )
of himself and all others similarly )
situated, >>
Plaintiff, )
>
V. > Civil Action No. 17276
>
JOSEPH P. TALLMAN, JOHN- )
R. DURANT, M.D., KINNEY >
L. JOHNSON, RICHARD C. >
MILLER, FRANK G. :`, :
>
WASHINGTON and HBO & ,
>
,-
COMPANY, > -
>
Defendants. )
OPINION
Date Submitted: July 14, 2000
Date Decided: July 20, 2000
Ronald A. Brown, Jr., of PRICKETT, JONES & ELLIOTT, Wilmington,
Delaware; OF COUNSEL: Arthur T. Susman, Charles R. Watkins, and
Robert J. Emanuel, of SUSMAN & WATKINS, Chicago, Illinois, Attorneys
for Plaintiff.
David C. McBride and Martin S. Lessner, of YOUNG, CONAWAY,
STARGATT & TAYLOR, LLP, Wilmington, Delaware; OF COUNSEL:
James E. Nesland and Peter A. Gergely, of COOLEY GODWARD LLP,
Denver, Colorado, Attorneys for Defendants Joseph P. Tallman, John R.
Durant, M.D., Kinney L. Johnson, Richard C. Miller and Frank G.
Washington.
Anthony W. Clark, Paul J. Lockwood and Stephen D. Dargitz, of
SNIPPETS:
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4
.
LETTER
|
EXTRACTED KEY WORDS
CLASS ACTION DEL DELAWARE CHANDLER MOTION PLAINTIFF HONORABLE WILLIAM CALIFORNIA CLASS ACTION MCWANE HBOC DERDIGER COUNSEL ACCESS DIRECTORS SCHNELL CORN FEDERAL COURT LEAD PLAINTIFF PROXY STATEMENT DELAWARE LAW SECURITIES FRAUD JURISDICTION CONVENIENS ACCESS SHAREHOLDERS SILVERSTEIN FIDUCIARY DUTY CLAIMS MCWANE STANDARD PRIOR FILED CLASS DEFENDANTS WITNESSES |
SKADDEN., ARPS, S L A T E , MEAGHER & FLOM L L P
O N E R O D N E Y S O U A R E
P O B O X 6 3 6
\NILMINGTON. D E L A W A R E 1 9 8 9 9 - 0 6 3 6
T E L ( 3 0 2 ) 65~3000
F A X ( 3 0 2 ) 651-3001
http Ilwww skadden.com
July 14,200O
Via Fax & FedEx
The Honorable William B. Chandler, III
Court of Chancery
Family Court Building
The Circle
Georgetown, Delaware 19947
Re: Derdiger v. Tallman, et al., Del. Ch.. C.A. No. 17276
\_
:DCXII Chancellor Chandler: -
In accordance with the Court's July lo,2000 letter to counsel, this
responds to Plaintiff's two supplemental letter briefs.
1. McWane Applies Here.
As HBOC' noted in its opening and reply briefs on the motion to stay,
the two most recent decisions of this Court considering a motion to stay a class
action in favor of a prior filed class action --- Corwin v. Silverman, Del. Ch., C.A. No.
16347, Chandler, C. (June .30, 1999) and Schnell v. Porta Svs. Corn., Del. Ch., C.A.
No. 12948, Hartnett, V.C. (Apr. 12, 1994) .-applied the McWane standard and
entered a stay. Nevlxtheless, Plaintiff repeatedly has stated that Jim Walter Core. v.
AUla, Del. Ch., CA. No. 10974, Allen, C. (Jan. 12, 1990) and Silverstein v. Warner
Communications, Inc., Del. Ch., CA. Nos. 11285, 10671, Allen, C. (Feb. 4, 1991),
are the "controlling cases" for not applying the McWane standard in class action
cases. (Plaintiffs June 30,200O letter at 1) Yet, in his numerous references to those
I Capitalized terms have the same meaning as in HBOC's opening and reply briefs.
SNIPPETS:
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5
.
LETTER
|
EXTRACTED KEY WORDS
CALIFORNIA COURT MOTION DEFENDANTS FORUM PERSONAL JURISDICTION CHANDLER DISMISS HONORABLE WILLIAM PLAINTIFF CONVENIENS DELAWARE APPLE COMPUTER HBOC WANE CONVENIENS STANDARD DELAWARE LAW SILVERSTEIN ADDRESSING YOUNG CONAWAY STARGATT TAYLOR LLP ACCESS HEALTH FIDUCIARY DUTY DUPLICATION WANE ANALYSIS ACCESS HEALTH SHAREHOLDERS DURA-PHARMACEUTICALS EXERCISE PERSONAL JURISDICTION |
You~ci CONAWAY STARGATT~TAYLOR, LLP &
ELEVENTH FLOOR
WILMINGTON TRUST CENTER
1100 NORTH MARKET STREET
WILMINGTON, DELAWARE 19801
P.O. Box 391
WILMINGTON, DELAWARE 19899-0391
(302) 571d600
(800) 7.53-2234 (DE ONLY)
FAX: (302) 571-1253 GEORGETOWN
I LO WEST
W P.O.
RITER'S DIRECT DIAL NUMBER
(302) 57 l-6639
E-MAIL: dmcbride@ycst.com
July 14,200O
BY HAND DELIVERY
The Honorable William B. Chandler, III
Court of Clhancery
One South Race Street
Georgetown, DE 19947
Re: Derdiger v. Tallman, et al.. C.A. No. 17276
Dear Chancellor Chandler:
This letter is the response of the Access Director Defendants requested by the
Court in the letter dated July 10,200O. In that letter, Your Honor asked the Defendants to
address three matters: (i) whether McWane should apply in a pre-certification class action context
(and address the decisions in Jim Walter Corporation, Silverstein and Dura-Pharmaceuticals),
(ii) the forum non conveniens arguments made by Plaintiff in his supplemental letter brief filed
on Wednesday, July 12,200O and (ii) whether the California Court may exercise personal
jurisdiction over the Access Directors. In addressing these three matters, it may be helpful to put
our response in the context of the motion to dismiss filed by the Access Directors because (i) the
Court need never reach the stay issue as to the Access Directors if their motion to dismiss is
granted and (ii) the factors to be considered by the Court on the stay question will vary depending
upon whether the Access Directors remain as Defendants in this action.
SNIPPETS:
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6
.
LETTER
|
EXTRACTED KEY WORDS
DELAWARE FORUM DEFENDANTS PLAINTIFFS MOTION CHANDLER WILLIAM FEDERAL SECURITIES CALIFORNIA STATE LAW DISCLOSURE CLAIMS MCWANE DISMISS ARGUE CONVENIENS CONNECTION OVERWHELMINGLY INCONVENIENT FIDUCIARY DUTY STOCKHOLDERS DELAWARE CORPORATION DIRECTORS HONORABLE WILLIAM WITNESSES INDIVIDUAL DEFENDANTS POST OFFICE SUMMARY JUDGMENT DOCUMENT PRODUCTION PERSONAL JURISDICTION AMENDED COMPLAINT |
PRICKETT, JONES & ELLIOTT
13:lu KING STREET, Box 1328
WILMINGTON, DELAWARE 19899
Writer's Direct Dial: (302) 888.6525
Writer'r `Trlecapy Number: (302) 888.6333
Writer's E-Mail Address: IWBroam@prickett.com
July 12, 2000
)`IA FACSIMILE & FEDERDAL EXPRESS
- - -
Ho norable William B. Chandler, III
Court of Ch.ancery
Family Court Building
Post Office Box 581
Georgetown, Delaware 19947
RE: Derdiper v.Bllman, et al.
Del. Ch., C.,4 No.
-A- 17276
Dear Chancellor Chandler:
This letter constitutes plaintiffs submission in accordance with the direction
of the Court in the Court's July 10, 2000 letter to counsel.
A. The Court Should Not Consider a Ground for the Motion to
Stay That Was Not Asserted in the Defendants Briefs
The defendants chose to base their motion to stay entirely on McWane. The
defendants never moved to stay or dismiss this case -- which was filed over one year
ago (on July 2, 1999) -- on the ground of forum non
_ _ _ _ _ conven&ns.
_ _ _
his April 20, 2000 brief demonstrating that McWane did not apply and showing that
the only theory on which a motion to stay this action could theoretically be
predicated was forum
_ _ non !:onveniens,
- the defendants did not file
mnvenienr; motion or even attempt to argue in the alternative that they satisfied
the forum non
_ _ - - conveniens test. Under Chancery Court Rules 7(a) and 171(e)(6) the
grounds for a motion are required to be set out with specificity in the motion and/or
briefs in support of the motion. Accordingly, the Court should not consider any
SNIPPETS:
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7
.
ACCESS DIRECTORS REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS AMENDED CLASS ACTION COMPLAINT
|
EXTRACTED KEY WORDS
PLAINTIFF MOTION COMPLAINT DEL DISMISS DISCLOSURE SUPPORT COURT STRICT LIABILITY LAW DAMAGES FIDUCIARY DUTY MERGER FAITH SHAREHOLDERS LITIGATION MISREPRESENTATION FACTUAL ALLEGATIONS PROXY STATEMENT TRANSACTION DISCLOSURE VIOLATION COOLEY GODWARD LLP INTENTIONAL MISCONDUCT DELAWARE SUPREME COURT MONETARY DAMAGES GROSS NEGLIGENCE EQUITABLE FRAUD SUPREME COURT DEFENDANTS THIRD PARTY |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
HOWARD DERDIGER, on behalf of himself and )
all others similarly situated, >
Plaintiff,
V. C.A. No. 17276
JOSEPH P. TALLMAN, JOHN R. DURANT, /
M.D., KINNEY L. JOHNSON, RICHARD C. ) I- i _
MILLER, FRANK G. WASHINGTON AND HBO) , ` .
& COMPANY, / , i i
L .
; I _`
Defendants. > i -2
_ . a
/-- -`.( .,^.-.
i-3
ACCESS DIRECTORS' REPLY BRIEF IN SUPPORT Og'
MOTION TO DISMISS AMENDED CLASS ACTION COMPLAINT
YOUNG CONAWAY STARGATT & TAYLOR, LLP
David C. McBride
Martin S. Lessner
11 th Floor, Wilmington Trust Center
1100 North Market Street
Wilmington, DE 1980 1
(302) 571-6600
Attorneys for Defendants Joseph P. Tallman, John R.
Durant, M.D., Kinney L. Johnson, Richard C. Miller and
Frank G. Washington
OF COUNSE:L:
COOLEY GODWARD LLP
J:ames E. Nesland
Peter A. Gergely
1200 17th Street, Suite 2 100
Denver, Colorado 80202-5835
(.303) 606-4800
Dated: June 26,200O
SNIPPETS:
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8
.
HBO & COS REPLY BRIEF IN SUPPORT OF MOTION TO STAY PROCEEDINGS
|
EXTRACTED KEY WORDS
COURT DEL MCWANE MOTION CALIFORNIA CLASS ACTION DELAWARE DERDIGER PLAINTIFF PRIOR FILED ACTION CORN ACCESS STOCKHOLDERS HBOC SUPPORT SLIP STRONGLY FAVORS DEFENDANTS LEAD PLAINTIFF FORMER ACCESS AUTHORITIES OVERLAPPING CLASS ACTION MCWANE STANDARD ACCESS DIRECTORS FEDERAL COURT NYS FUND PSLRA DELAWARE LAW LITIGATION LEAD COUNSEL HBO |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
HOWARD DERDIGER, on behalf of himself
and all others similarly situated,
Plaintiff, i>
v.
i
JOSEPH P. TALLMAN, JOHN R. DURANT, CA. No. 17276
M.D., KINNEY L. JOHNSON, RICHARD C. t
MILLER, FRANK G. WASHINGTON and
HBO & COMPANY, ;
Defendants.
HBO & COMPANY'S REPLY BRIEF IN SUPPORT
OF ITS MOTION TO STAY PROCEEDINGS
IN FAVOR OF A PRIOR FILED ACTION
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
One Rodney Square
P.O. Box 636
Wilmington, Delaware 19899
(302) 651-3000
Attorneys for Defendant HBO & Company
DATED: May 11,200O
TABLE OF CONTENTS
TABLE OF CASES AUTHORITIES . . . . . . . . . . . . . . i
PRELIMINARY STATEMENT . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I. THIS COURT HAS NOT RULED ON HBOC'S REQUEST FOR A STAY
SNIPPETS:
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9
.
ACCESS DIRECTORS COMBINED OPENING BRIEF
|
EXTRACTED KEY WORDS
COMPLAINT MOTION HBOC PLAINTIFF PARTIAL SUMMARY JUDGMENT DELAWARE COURT MCKESSON FIDUCIARY DUTY DEL PROXY STATEMENT MERGER SUPPORT DISMISS ALLEGATIONS ACCESS SHAREHOLDERS DISCLOSURE ALLEGED OVERSTATEMENTS OPPOSITION FINANCIALS STOCKHOLDERS RESCISSION CERTIFICATE SUPPLEMENT INCORPORATION CONNECTION MISDISCLOSURE TRANSACTION GROSSLY NEGLIGENT |
ORIGINAL
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
HOWARD DERDIGER, on behalf of himself and )
all others similarly situated,
;
Plaintiff,)
>
V. CA. No. 17276 c-. :
; *-..
JOSEPH P. TALLMAN, JOHN R. DURANT, )
M.D., KINNEY L. JOHNSON, RICHARD C. )
MILLER, FRANK G. WASHINGTON AND HBO)
& COMPANY,
;
Defendants.) ,^
I
ACCESS DIRECTORS' COMBINED OPENING BRIEF IN
SUPPORT OF THEIR MOTION TO DISMISS AMENDED CLASS ACTION
COMPLAINT AND ANSWERING BRIEF IN OPPOSITION TO
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
YOUNG CONAWAY STARGATT & TAYLOR, LLP
David C. McBride
Martin S. Lessner
1 lth Floor, Wilmington Trust Center
1100 North Market Street
Wilmington, DE 19801
(302) 571-6600
Attorneys for Defendants Joseph P. Tallman, John R. Durant,
M.D., Kinney L. Johnson, Richard C!. Miller and Frank G.
Washington
OF COUNSEL:
COOLEY GODWARD LLP
James E. Nesland
Peter A. Gergely
1200 17th Street, Suite 2 100
Denver, Colorado 80202-5835
(303) 606-4800
DATED: April 17,200O
SNIPPETS:
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10
.
LETTER OPINION
|
EXTRACTED KEY WORDS
PLAINTIFFS DISCOVERY COURT CLASS ACTION FEDERAL CLASS DERDIGER ACCESS HEALTH PENDING MOTION LITIGATION ALLEGES COMPEL FIRST REQUEST CALIFORNIA PRODUCTION DELAWARE SHAREHOLDER FIDUCIARY DUTY HBOC JURISDICTION APPEALS EXPENSE COORDINATION GRANT PLAINTIFFS SCOPE FORESEE REQUIRING DEFENDANTS ASSEMBLE CONSIDERABLE AMOUNT |
COURT OF CKANC:ERY ) /
CF .Ihi +$ J
/
STATE OF DELAWARE
Ronald A. Brown, Jr. David C. McBride
Prickett, Jones & Elliott Young Conaway Stargatt
P.O. Box 1328 & Taylor, LLP
Wilmington, DE 19899 P.O. Box 391
~v~;`i~i-~l~iig~oii, DE 19899
Anthony W. Clark
Skadden, Arps, Slate, Meagher & Flom
P.O. Box 636
Wilmington, DE 19899
Re: Derdiger v. Tallman, et al.
Civil Action No. 17276
Dear Counsel:
Plaintiff Howard Derdiger is a former shareholder of Access Health!
Inc., who alleges that the former Access Health directors breached their
fiduciary duty of disclosure in connection with HBO & Company's
December 21, 1998, acquisition of Access Health. Plaintiff Derdiger also
alleges that defendant HBOC aided and abetted the director defendants'
misdisclosures. He further alleges that HBOC perpetrated an equitable fraud
against Derdiger and the putative class that he represents.
On February 25, in an earlier decision in this case, I rejected
defendant HBOC's argument that this Court either had no jurisdiction to
proceed or should exercise its discretion to stay further proceedings, pending
the Third Circuit Court of Appeals' decision on whether it has appellate
SNIPPETS:
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11
.
DEFENDANT HBOS BRIEF IN OPPOSITION TO CLASS CERTIFICATION AND IN SUPPORT OF MOTION TO STAY
|
EXTRACTED KEY WORDS
CALIFORNIA CLASS PRIOR CLASS CERTIFICATION MOTION HBOC PLAINTIFF DEFENDANTS FACTS FORMER ACCESS DEL SUPPORT SLIP ACCESS-HBOC MERGER DEFENDANT HBO DELAWARE LEAD PLAINTIFF OPPOSITION PRIOR PENDING STATE FUND MCKESSON HBOC FORMER ACCESS STOCKHOLDERS SECURITIES PRINCIPLES CONSOLIDATE COMPLAINT SECURITIES LAWS FORMER ACCESS DIRECTORS FORMER ACCESS SHAREHOLDERS LEAD COUNSEL |
.--1 ,
,I `-'
L .'
IN THE COURT OF CHANCERY OF THE STATE OF DELAW'kcE :
1 ,
IN AND FOR NEW CASTLE COUNTY c.-_
HOWARD DERDIGER, on behalf of himself :
and all others similarly situated, c--,, /:
I-- __-
Plaintiff,
V. l-z76 /ut_
JOSEPH P. TALLMAN, JOHN R. DURANT, ; Case No. 99+%?
M.D., KINNEY L. JOHNSON, RICHARD C. :
MILLER, FRANK G. WASHINGTON and
HBO & COMPANY,
Defendants.
DEFENDANT HBO & COMPANY'S BRIEF IN OPPOSITION TO
CLASS CERTIFICATION AND IN SUPPORT OF ITS MOTION TO STAY
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
One Rodney Square
P.O. Box 636
Wilmington, Delaware 19899
(302) 651-3000
Attorneys for Defendant HBO & Company
DATED: April 6,200O
TABLE OF CONTENTS
PRELIMINARY STATEMENT , . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
NATURE AND STAGE OF PROCEEDINGS . . . . . .
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SNIPPETS:
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12
.
DEFENDANT HBOS RESPONSE TO PLAINTIFFS MOTION TO COMPEL
|
EXTRACTED KEY WORDS
CALIFORNIA CALIFORNIA LITIGATION PLAINTIFF DISCOVERY MCKESSON SHAREHOLDERS MOTION ALLEGES COMPLAINT MERGER STOCK SUPP COORDINATION COUNSEL COURT ASSERTS AMEND RESPONSE ALLEGATIONS DERDIGER COMPL ACCOUNTING DIRECTORS SECURITIES FINANCIAL INFORMATION PROCEEDS COMMON DOCUMENT REQUEST LITIG |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY -- i
HOWARD DERDIGER, on behalf of himself :
and all others similarly situated, _ 1..
. -
Plaintiff, : -
.- I- ,;
V.
JOSEPH P. TALLMAN, JOHN R. DURANT, CA. No. 17276
M.D., KINNEY L. JOHNSON, RICHARD C.
MILLER, FRANK G. WASHINGTON, and
HBO & COMPANY,
Defendants.
DEFENDANT HBO & COMPANY'S
RESPONSE TO PLAINTIFF'S MOTION TO COMPEL
This is defendant HBO & Company's ("HBOC") response to plain-
tiffs March 9, 2000 motion to compel (the "Motion").
Background
1. This discovery dispute can only be appreciated in context, with
an understanding of the allegations and claims asserted in this action and in related
litigation pending throughout the country, but mostly centered in California. As
explained below, because of the substantial overlap between this action and the
related litigation in California, and the needless burden and expense that duplicative
discovery here would impose on HBOC, certain of the document discovery plaintiff
seeks should be held in abeyance until it can be coordinated with discovery in the
California litigation.
SNIPPETS:
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13
.
LETTER OPINION
|
EXTRACTED KEY WORDS
REMAND APPEALS JURISDICTION DISTRICT HBOC PLAINTIFF MOTION STATE COURT LITIGATION DEFENDANT CERTIFICATION CHANCERY REVIEW PENDING CIRCUIT APPELLATE REVIEW THIRD CIRCUIT CIR LAW PRACTICE HOLDING PARTY APP REQUEST PARTIES ACCESS HEALTH ALLEGES PARTIAL SUMMARY JUDGMENT ARGUES |
\ I
C OURT OF C HANCERY
OF- THE
STATE OF D ELAWARE
WILUAM B. C HANDLER III T HE F AMILY CO
CHANCLLLOR Date Submitted: February 22,200O P.O. BOX
Date Decided: February 25,200O GEORGETOWN , D
Ronald A. Brown, Jr., Esquire
Prickett, Jonles & Elliott
P.O. Box 1328
Wilmington, DE 19801
Anthony W. Clark
Skadden, Arps, Slate, Meagher & Flom
P.O. Box 636
Wilmington, DE 19899
Re: Derdiger v. Tallman, et al.
Civil Action No. 17276
Dear Counsel:
Plaint:iff Howard Derdiger brings this purported class action on behalf
of himself and all other similarly situated former shareholders of Access
Health, Inc. Plaintiff alleges that the former Access Health directors
breached their fiduciary duty of disclosure in connection with HBO &
Company's ("HBOC") December 21, 1998 acquisition of Access Health.
Plaintiff also alleges that defendant HBOC aided and abetted the director
defendants' misdisclosures and further alleges that HBOC perpetrated an
equitable fraud against Derdiger and the putative class.
On September 24, 1999, plaintiff filed opening briefs in support of
motions for class certification and partial summary judgment. In lieu of
SNIPPETS:
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14
.
LETTER TO CHANCELLOR CHANDLER
|
EXTRACTED KEY WORDS
REMAND ORDER APPEALABILITY JURISDICTION DISTRICT COURT HBOC DEFENDANTS PLAINTIFFS HONORABLE WILLIAM CHANDLER MOTION LAW PREEMPTION JUDGE CIR PENDING PURPORTS PERMIT THIRD CIRCUIT LITIGATION GRANTING PURSUANT CHANCERY CERTIFICATION CORN DIVESTS CONTRAST ASSERTS APPELLATE HOLDING |
PRICKETT, JONES & ELLIOTT
1310 KINGSTREET,BOX~~~~
WI~IINGTON, DELAWARE 19899
TEL:(302)888-6500
FAX: (302) 658-8111
http://www.prickett.com
Writer's Direct Dial: (302) 888-6525
Writer's Telecopy Number: (302) 888-6333
Writer's E-Mail Address: RABromaxickettmm
February 4,200O
VIA FACSIMILE AND FEDERAL EXPRESS
The Honorable William B. Chandler, III
Court of Chancery
Family Court Building
Post Office Box 581
Georgetown, Delaware 19947
Re: Derdiger v. Tallman, Del. Ch., C.A. NO. 17276 :
L
Dear Chancellor Chandler: -.
This letter responds to Mr. Clark's letter to Your Honor dated January 28,
2000 in the above referenced action. Defendant HBO & Company ("HBOC") argues
that this Court should not enter the scheduling order we proposed because (1) this
Court allegedly does not have jurisdiction over this case at this point, and (2) even if '
the Court does have jurisdiction, the Court should enter a de facto stay of this case,
as a matter of "comity," by doing nothing until an appeal that HBOC is pursuing in
federal court is resolved. HBOC is wrong on both points.
A. This Court Has Jurisdiction
According to HBOC, "because this action is presently pending in the federal
courts, this Court has no jurisdiction at this time." (Ltr. at 1). That is not correct.
Judge McKelvie entered an order granting plaintiffs motion to remand this action
back to this Court. The fact that HBOC purportedly commenced an appeal from the
SNIPPETS:
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15
.
PLAINTIFFS OPENING BRIEF IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT
|
EXTRACTED KEY WORDS
PLAINTIFF ACCESS STOCKHOLDERS PROXY STATEMENT DEFENDANTS MERGER NET INCOME MOTION DELAWARE SUMMARY JUDGMENT COURT DISCLOSURE SUPPLEMENT REVENUES PARTIAL SUMMARY JUDGMENT FIDUCIARY DUTY DEL PARTICIPATION COMBINED PRO FORMA CONNECTION OVERSTATEMENTS INDIVIDUAL DEFENDANTS HBO WILMINGTON SUSMAN CHARLES WATKINS ROBERT FIRST NATIONAL PLAZA AUTHORITIES SENIOR HBOC OFFICERS MERGER AGREEMENT |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
HOWARD DERDIGER, on behalf of himself )
and all others similarly situated, >>
Plaintiff, >
V. ) C.A. No. 17276
>
JOSEPH P. TALLMAN, JOHN R. DURANT, )
M.D., KINNEY L. JOHNSON, RICHARD C. )
MILLER, FRANK G. WASHINGTON and )
HBO & COMPANY, >>
Defendants. >
PLAINTIFF'S OPENING BRIEF IN SUPPORT
OF HIS MOTION FOR PARTIAL SUMMARY JUDGMENT
PRICKETT, JONES & ELLIOTT
Ronald A. Brown, Jr.
1310 King Street
P.O. Box 1328
Wilmington, Delaware 19899
(302) 888-6500
Attorneys for Plaintiff
OF COUNSEL:
SUSIL'IAN & W,4TKINS
Arthur T. Susman
Charles R. Watkins
Robert J. Emanuel
Two First National Plaza
Suite 600
Chicago, Illinois 60603
(312) 346-3466
Dated: September 24, 1999
TABL,E OF CONTENTS
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16
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PLAINTIFFS OPENING BRIEF IN SUPPORT OF HIS MOTION FOR CLASS CERTIFICATION
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EXTRACTED KEY WORDS
COURT DELAWARE CERTIFICATION HBOC DEL CLASS ACTION CHANCERY COUNSEL MERGER ACCESS STOCKHOLDERS CHANCERY COURT RULE NET INCOME PROXY STATEMENT DEFENDANTS SUPPORT MOTION SUSMAN CHARLES WATKINS ARTHUR COMMON STOCK FALSE DISCLOSURE WILMINGTON FIRST NATIONAL PLAZA AUTHORITIES CLASS REPRESENTATIVES PRO FORMA EQUITABLE RELIEF FINANCIAL INFORMATION COMBINED PRO FORMA NATIONAL PLAZA SUITE |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
HOWARD DERDIGER, on behalf of himself )
and all others similarly situated, >
Plaintiff, >
V . ) C.A. No. 17276
>
JOSEPH P. TALLMAN, JOHN R. DURANT, )
M.D., KINNEY L. JOHNSON, RICHARD C. )
MILLER, FRANK G. WASHINGTON and )
HBO & COMPANY, >>
Defendants. >
PLAINTIFF'S OPENING BRIEF
IN SUPPORT OF HIS MOTION FOR CLASS CERTIFICATION
PRICKETT, JONES & ELLIOTT
Ronald A. Brown, Jr.
1310 King Street
P.O. Box 1328
Wilmington, Delaware 19899
(302) 888-6500
Attorneys for Plaintiff
OF COUNSEL:
SUSMAN & WATKINS
Arthur T. Susman
Charles R. Watkins
Robert J. Emanuel
Two First National Plaza
Suite 600
Chicago, Illinois 60603
(312) 346-3466
Dated: September 24, 1999
TABLE OF
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17
.
CLASS ACTION COMPLAINT
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EXTRACTED KEY WORDS
MERGER PLAINTIFF PROXY STATEMENT FIDUCIARY DUTY ACCESS STOCKHOLDERS DEFENDANTS FIDUCIARY DUTIES SUPPLEMENT DELAWARE BREACHES OVERSTATEMENTS CHANCERY CONNECTION HEALTH ACCESS DIRECTORS DISCLOSURE DISSEMINATION COMMON STOCK FINANCIAL INFORMATION WRONGDOING DIRECT ROLE MCKESSON HBOC CHANCERY COURT RULE MERGER AGREEMENT PRO FORMA SENIOR HBO OFFICERS INDIVIDUAL MEMBER VARYING ADJUDICATIONS MATERIALLY INCORRECT |
IN THE ICOURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
HOWARD DEIRIDI'GER, on behalf of himself >
and all others similarly situated, >>
Plaintiff.
V.
JOSEPH P. TAIl,LMAN , JOHN R. DURANT, >
M.D., KINNEY L. JOHNSON, RICHARD C. >
MILLER, FRANK G. WASHINGTON and >
HBO & COMPA.NY, >
>
Defendants. > .- _
CL.ASS ACTION COMPLAINT
1. Plaintiff, Howard Derdiger, a former stockholder of Access Health, Inc.
("Access"), bri-ngs this action on behalf of himsetf and all other similarly situated
former stockholders of Access, excluding defendants and their affiliates. The
iridividual defendants breached the fiduciary duties they owed to plaintiff and Access'
other stockholders in connection with the stock-fo:,:-stock rnerger between Access and
HBO & Company ("HBO") in December, 1998 (Yylerger") pursuant to which Access
was acquired by HOBO. HBO aided and abetted those breaches of fiduciary duty.
2. As set out in detail below, the proxy statement dated November 6, 1998
("Proxy Statement") as well as a supplement to the Proxy Statement dated November
27, 1998 (the "Supplement") disseminated by the defendants to Access' stockholders in
connection with the Merger were materially false and materially misleading because,
inter alia they misrepresented and substantially overstated
- - -> HBO's revenues. As a
result of this wrongdoing, the Access stockholders have suffered hundreds of millions
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