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1
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PLF MEM OPP DEF MTD
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EXTRACTED KEY WORDS
FRAUD ROSPATCH ATLANTIS COURT FACTS MOTION PLAINTIFFS VIOLATION RULE LOB-5 PAPER PRODUCTS DEFENDANTS FREBERG ANDERSEN ARGUES STATUTE LIMITATIONS FACTS CONSTITUTING PLEADING ADDRESSING HEREBY DISTRICT ATLANTIS GROUP OPINION SECURITIES PARTY SUPPORT DEFENSE DISMISS DISCOVERY SUIT |
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS I'...- ; :,"-' "i
&,i :
----------------------------------------x
PATRICK ADAMS, MOISE KATZ and :
THOMAS J. HARGADON, on behalf of
themselves and all others similarly :
situated, No.
;
Plaintiffs, . .
-against-
:
ERNST & YOUNG,
:
Defendant.
:
----_---------------____I_______________ X
PLAINTIFFS' MEMORANDUM IN OPPOSITION
TO ERNST 6 YOUNG'S
MOTION TO DISMISS
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
-d-d- ---__-___-______c_c_l___l__________
PATRICK ADAMS, MOISE KATZ and
THOMAS J. HARGADON, on behalf of
themselves and all others similarly
situated,
Plaintiffs,
-against-
ERNST & YOUNG,
Defendant.
PLAINTIFFS' MEMORANDUM
TO ERNST &
MOTION TO
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2
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MOTION TO DISMISS
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EXTRACTED KEY WORDS
LAW ERNST ASSERTS COMPLAINT MOTION PLAINTIFFS COMMON LAW DEFENDANT ERNST YOUNG HEREBY ALLEGES FRAUD CLAIM SUPPORT REQUESTS PURSUANT COURT PREJUDICE SECURITIES NEGLIGENT MISREPRESENTATION MASSACHUSETTS LAW MEMORANDUM CERTIFICATE ATTORNEY DEVALERIO BERMAN PEASE GLEN DEVALERIO LIBERTY SQUARE BOSTON COUNSEL |
PATRICK ADAMS,
MOISE KATZ and
THOMAS J. HARGADON, on behalf of
themselves and all others similarly
situated, Civil Action No. 91-11840-WD
Plaintiffs,
-against-
ERNST & YOUNG,
Defendant.
MOTION TO DISMISS
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, defendant
Ernst & Young hereby moves this Court to dismiss all claims asserted against it
in plaintiffs' complaint with prejudice.
The complaint asserts one claim for relief under federal law and two
claims under state law. Count I alleges a violation of Section 10(b) of the
Securities Exchange Act of 1934, 15 U.S.C. Q 78j(b); count I11 alleges a common
law fraud claim; and count IV asserts a common law negligent
misrepresentation claim.
The federal securities fraud claim asserted in count I should be dismissed
under Fed. R. Civ. P. 12(b)(6) because it is time-barred pursuant to the applicable
statute of limitations for actions brought under Section 10(b). Upon dismissal of
plaintiffs' sole federal claim, the common law claims shoul
because the Court should decline to exercise pendent jurisdi
addition, the common law fraud claim in count 111 should be dismissed because
the complaint fails to allege reliance as required by Massachusetts law and count
N should be dismissed because it attempts to assert a claim for negligent
misrepresentation beyond the permissible scope of liability under Massachusetts
law.
In support of its motion to dismiss, Ernst & Young relies on the complaint
and on its memorandum of law in support of this motion to dismiss which is
submitted herewith.
WHEREFORE, Ernst & Young respectfully requests that the complaint be
dismissed as to it with prejudice.
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3
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DEF MEM SUP OF MTN DISMIS
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EXTRACTED KEY WORDS
COURT REASONABLE DILIGENCE STATUTES LIMITATIONS ACT FACTS DISCOVERY LIMITATIONS PERIOD VIOLATION MASSACHUSETTS COMPLAINT COMMON LAW FRAUD EXERCISE CONGRESS DILIGENCE REQUIREMENT INCORPORATE POLICY CONSIDERATIONS LEGAL PRINCIPLE DEFENDANTS BAY COMMON STOCK FINANCIAL STATEMENTS SECURITIES APPLICABLE STATUTE VIOLATION STRONGLY SUPPORT NEGLIGENT MISREPRESENTATION INQUIRY NOTICE UNITED STATES POLICY CONSIDERATIONS UNDERLYING COMMON STOCK |
.
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
similarly situated,
-against-
ERNST & YOUNG,
OF ERNST & YOUNG'S
MOTION TO DISMISS
ERNST & YOUNG
By Its Attorneys,
Nancy D. Israel (#248000)
Associate General Counsel
Ernst & Young
200 Clarendon Street
Boston, Massachusetts 02116
(617) 266-2000
John Matson
Deputy General Counsel
Ernst & Young
380 Madison Avenue /
New York, New York 10017
Daniel M. Gray
Senior Counsel
Ernst & Young
1200 19th Street, N.W.
Washington, D.C. 20036
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4
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COMPLAINT
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EXTRACTED KEY WORDS
DEFENDANT COMMON DISSEMINATION MISLEADING LIQUIDITY ASSETS SALES FAIR MARKET CASH FLOW INDIVIDUAL DEFENDANTS REAL ESTATE EXCHANGE ACT DIRECTORS MEETINGS CLASS PERIOD BOARD MEETINGS TRANSACTION INTER ALIA COMMON STOCK INVESTMENT PRINCIPAL EXECUTIVE OFFICES CONNECTION DEFENDANT NEHER SHERATON NEWPORT BANKERS TRUST CASH FLOW PROJECTIONS SECURITIES LIQUIDITY PROBLEMS DEFENDANT JOHNSON |
1 4 5 6 A
1, - .. 7,
%
. .
- ~..
PATRICK ADAMS, MOISE KAT2 and
THOMAS J. HARGADON, on behalf of :
themselves and all others
similarly situated, *
Plaintiffs,
-against-
ERNST & YOUNG,
Defendant.
Plaintiffs, by and through their attorneys,
action (the "Action") by filing their complaint (the
which alleges wrongful conduct by defendant Ernst & Young upon
knowledge with respect to themselves and their own acts, and
information and belief as to the other allegations based
i n t e r alia, the investigation of their attorneys, as
below. Though Ernst & Young is the only defendant named in
Action, parties other than Ernst & Young a r e referred to
defendants in this Complaint because they a r e defendants i
related a c t i o n .
m 9 D I C T I O N AND
1. This Court has jurisdiction over the
this action pursuant t o Section 27 of the Securities
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5
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CIVIL COVER SHEET
|
EXTRACTED KEY WORDS
PARTIES UNITED STATES COURT DISTRICT MASSACHUSETTS CIVIL SHEET SHAPIRO LOCAL RULE PLAINTIFF THOMAS COUNTY GOVERNMENT USC PARTIES RESIDING COMMONWEALTH PATRICK ADAMS ERNST LAND SHAPIRO GRACE HABER BOSTON PTF DEF PARTY NATURE SUIT SUIT CODE REGARDLESS GOO |
JS 44
(Rev. 07/86)
The JS-44 civil cover sheet and the information e CIVIL COVER SHEET
contained herein neither replam nor
sadings or other e
paucrs JS rquircd by law. except as urovidsd by loul
ruler of ccurr. This form, avproved bv the Judicial Conference Of the United States
~~
use Of the Clark of Court for the purpose of initiating the civil doekct
sheet. [SEE INSTRUCTIONS ON THE REVERSE OF THE FOAM.)
I (a) PLAINTIFFS
Patrick Adams, Moise Katz and Thomas
J. Hargadon,Son behalf of themselves
and all others similarly
(b) COUNTY OF RESIDENCE OF FIRST LISTEO
LISTED DEFENOANT
(EXCEPT IN U.S. PlAlNTlFF CAS
(IN U.S. PLAINTIFF CASES ONLY)
ASES. USE THE LOCATION OF THE
OLVED
(c) ATTORNEYS (FIRM NAME. ADDRESS. AND TELEPHONE NUMBER)
Thomas G. Shapiro
Shapiro Grace & Haber
75 S t a t e Street
Boston, MA 02109
( 6 1 7 ) 439-3939 n
II. BASIS OF (R*CE AN x IN ONE BOX a m
(PUCE *N x IN W E m x
fOR RANTIFF AN0 (]NE 8ox FOR WENOAWl7
R 1 US. Government era1 Queatlon
Plrintlli (U.S. Government Not a Pam)
F DEF PTF DEF
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