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1
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BENCH MEMORANDUM CONCERNING THE ADMISSIBILITY OF YAHOO MESSGAE BOARD POSTS
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EXTRACTED KEY WORDS
YAHOO EVIDENCE EXX TAB HEARSAY NEWCOR SEGAL DEP AUTHENTICATION COURT PLAINTIFFS ADMISSIBILITY MESSAGE BOARD WRONGDOING DELAWARE DEL TRUTH PURPORTS MANAGEMENT MIND COUNSEL POSTINGS EMPLOYMENT MISMANAGEMENT SATISFY PROBABLE WRONGDOING SECURITY FIRST CORN SUPR MOREOVER EXCEPTION |
ORIGINAL
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
EXX, INC.,
Plaintiff,
V.
NEWCOR, INC.,
Defendant.
BENCH MEMORANDUM CONCERNING THE
ADMISSIBILITY OF "YAHOO! MESSAGE BOARD POSTS"
Plaintiff Exx, Inc. ("Exx") proposes to introduce certain "Yahoo! Message Board
Posts" (the "Yahoo! Posts") that reference defendant Newcor, Inc. ("Newcor"). (Tab A,
Plaintiffs Trial Exhibit, No. 32.) The Yahoo! Posts are a series of anonymous messages posted
in a Yahoo! internet chat room dedicated to Newcor. Exx is relying on the content of these
Yahoo! Posts, which were downloaded by Mr. Segal, to show Exx's subjective belief that
wrongdoing on behalf of Newcor's board has occurred. For the reasons described below, the
Yahoo! Posts are not admissible on hearsay, authentication and relevancy grounds.
A. Hearsay
Hearsay statements are inadmissible, out-of court statements "offered in evidence
to prove the truth of the matter asserted." See D.R.E. 801(c); 802. Out-of-court statements
contained in documentary evidence, such as the Yahoo! Posts, may not be offered to prove the
truth of the matter asserted. See, e.g., Henrv v. Delaware Law Scht,ol, Del. Ch., C.A. No. 8837,
1998 WL 15897, *2 n.3, Lamb, V.C. (Jan. 12, 1998) (Tab B) (finding document offered as
exhibit containing out-of-court statements not admissible on hearsay grounds).
Here, Eixx claims to have based its suspicions of waste and mismanagement by
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2
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PLAINTIFFS PRETRIAL BRIEF
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EXTRACTED KEY WORDS
NEWCOR PLAINTIFFS PURPOSE DEMAND EXHIBIT BOOKS FEES COURT SHAREHOLDER DEL MISMANAGEMENT STATUTORY REQUIREMENTS ATTORNEYS INVESTMENT ADVISORY CONSULTANTS PLAINTIFFS TRIAL EXHIBIT STOCKHOLDER RECORDS SET INSPECTION DIRECTORS FINANCIAL CONDITION REPRESENTATION SKADDEN ARPS LIMITATION MEMORANDUM CORRESPONDENCE MANAGEMENT SUBORDINATED NOTES LITIGATION DEMAND LETTER |
ORIGINAL
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
EXX, INC.,
Plaintiff,
V . C.A. No. 18536-NC
NEWCOR, INC.,
Defendant.
PLAINTIFF'S PRETRIAL BRIEF:
Jay W. Eisenhofer
Sidney S. Liebesman
Grant & Eisenhofer, P.A.
1220 North Market Street
Suite 500
Wilmington, Delaware 19801
Attorneys for Plaintiff
Exx, Inc.
Dated: February 6,200l
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . ii
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3
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DEFENDANTS PRETRIAL BRIEF
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EXTRACTED KEY WORDS
NEWCOR PURPOSE ACQUISITION ACQUISITION EFFORTS BOOKS PLAN DEMAND COURT RIGHTS PROPER PURPOSE PLAINTIFF EXCHANGE STOCK SEGAL DEP THRESHOLD FACILITATE PROPOSED EXCHANGE NEWCOR SHARES STATED PURPOSE MISMANAGEMENT ACCUMULATION SHAREHOLDER PROPOSALS PASSIVE INVESTOR INSPECTING STOCKHOLDER DIRECTORS WRONGDOING EXX PRESS |
;
JI4
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COIJNTY
EXX, INC.,
Plaintiff,
V. Civil Action No. 18536
NEWCOR, INC.,
Defendant. i -3
i- -.- _
DEFENDANT NEWCOR, INC.`S PRETRIAL BRIEF. : :
,:;
Edward P. Welch C.-i
Edward B. Micheletti '
SKADDEN, ARPS, SLATE, _ :`.: -1.
MEAGHER & FLOM, LLP, * *
One Rodney Square _ : c-3
CA3
Post Office Box 636
Wilmington, Delaware 19899-0636
(302) 651-3000
Attorneys for Defendant
Newcor, Inc.
OF COUNSEL:
Christina M. Tchen
Vincent P. Schmeltz III
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM, LLP (Illinois)
333 West Wacker Drive
Suite 2100
Chicago, Illinois 60606-1285
(3 12) 407-0700
DATED: February 5,200 1
TABLE OF CONTENTS
TABLE OF CASES AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . .
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4
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ANSWER TO COMPLAINT
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EXTRACTED KEY WORDS
COMPLAINT COURT PLAINTIFF RESPECTFULLY REFERS EXHIBIT TERMS THEREIN PARAGRAPH DENIES INFORMATION SUFFICIENT DELAWARE DEFENDANT DIRECTORS RESPONSE AFFIRMATIVE DEFENSE INSPECTION PURPOSE PURSUANT NEWCOR DENIES KNOWLEDGE TRUTH IMPROPER COUNSEL GRANT ILLINOIS EISENHOFER BREACHES FIDUCIARY DUTY MISMANAGEMENT CORPORATE WASTE STOCK |
IN THE COURT OF CHANCERY OF THE STATE `OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
EXX, INC.,
Plaintiff,
V . Civil Action No. 18536 z
tJa 0"
NEWCOR, INC., >G
$2: pq
r": -.,
Defendant. v:-' rQ ;z
.-' /I - ~;
y `--
I>>- 2
ANSWER TO COMPLAINT -..
-r-.*l -* :*.,d
-ni. .q
co'. .-
=e;f-:.
Defendant Newcor, Inc., ("Newcor"), by its undersigned couns~~ans&&s
the Complaint of plaintiff Exx, Inc. ("Exx") in this action as follow;s:
1. The first sentence of paragraph 1 is demed, except it is admitted
that Newcor is a Delaware corporation, and that this purports to be an action pursuant to
Section 220 of the Delaware General Corporation Law. Newcor denies knowledge or
information sufficient to form a belief as to the truth of the allegations contained in the
second and third sentences, except specifically denies that Newcor's Board of Directors
committed any breaches of fiduciary duty, mismanagement or corporate waste;
specifically denies that Newcor's Board of Directors improperly reported financial
information relating to Newcor; and further denies that Newcor's Eoard of Directors has
improperly engaged in any activities to entrench themselves as directors.
2. Admitted.
3. Admitted.
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5
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COMPLAINT
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EXTRACTED KEY WORDS
EXX PLAINTIFF NEWCOR BOOKS FIDUCIARY DUTY DEMAND WASTE CORPORATION LAW PURSUANT DEL INVESTMENT BANK PAPERS CORRESPONDENCE E-MAILS SHAREHOLDER MEMORANDUM DELAWARE GENERAL CORPORATION CHAIRMAN COMMUNICATE DEMAND LETTER AGREEMENTS SKADDEN ARPS PURPOSES EVIDENCING COMPLAINT PURSUANT DEFENDANT NEWCOR GENERAL CORPORATION LAW BREACHES MISMANAGEMENT |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CAST.LE COUNTY
EXX. INC.,
Plaintiff.
NEWCOlI: INC., 1
Defendant. :
1
COMPLAINT PURSUANT TO 8 DEL. C.
__- 6220
PlaintifF. Exx, Inc. ("Exx"), as and for its Complaint, herein alleges, upon
knowledge as to itself iand its own actions, and upon information and belief as to all other
matters, as follows:
NATURE OF THE ACTION
__-__ __-.
1. In this action, plaintiff seeks to enforce its right to inspect certain corporate
books and records of defendant Newcor, Inc.. ("Newcor" or the "Company"), a Delaware
corporation, pursuant 1.0 Sect.on 220 of the Delaware General Corporation Law. Exx, by and
through David A. Segal, the Chairman ofExx's Board ofDirectors. seeks to inspect these documents
in order to investigate possible breaches of fiduciary duty, mismanagement and corporate waste on
the part o.F Newcor's Board of Directors and in order to communicate with other Newcor
sharehc~lclers regarding a possible proxy solicitaticsn. As set forth in part herein. Exx is
that Newcor improperly engaged in a series of activities and transactions intended to entrench
themsclvcs as directors, including the adoption of an illegal poison pill, failed to implement a
to enhance shareholder value, and inaccurately reported financial information relating to the
Compq
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