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1
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DF MTN FR SUM JDG ON PLF
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EXTRACTED KEY WORDS
CONTEL MERGER STOCK CONTEL SUBSIDIARYTL MERGER AGREEMENT SECURITIES FACTS PURSUANT AMENDED COMPLAINT PLAINTIFF PHILLIPS PROSPECTUS OUTSTANDING REQUESTS SUMMARY JUDGMENT DISMISSING MOTION FILED HEREWITH CONNECTION REGISTRATION STATEMENT SHARES EXHIBIT AFFIDAVIT DEFENDANTS SECURITIES ACT ALLEGES ASSETS LIABILITIES ACCORDANCE |
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
. . . . l . . l . . ; . . 1 . .
.
VERSYSS INCORPORATED, .
l
Plaintiff, .
l
V. ..
COOPERS & LYBRAND, A .
Partnership, and WILLIAM .
K. O'BRIEN, As Managing l
Partner of Coopers & Lybrand, .
.,Defendants.
l . ...* . . . . l . . . . .
DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT ON PLAINTIFF'S CLAIM
UNDER SECTION 11 OF THE SECURITIES ACT OF 1933
Pursuant to Federal Rule of Civil Procedure 56, defendants
Coopers & Lybrand and William K. O'Brien (collectively "C&L")
move for summary judgment dismissing plaintiff's claim under
section 11 of the Securities Act of 1933, Count I of the Third
Amended Complaint.
The grounds for this Motion, as set forth more fully in a
Memorandum of law filed herewith, are the following:
Plaintiff and its predecessors never acquired any NDS stock.
Because recovery under section 11 is only available to purchasers
of securities, plaintiff has no claim.
Section 11 creates a right of action against certain persons
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2
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DEF MEM N SUP MTN SUM JDG
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EXTRACTED KEY WORDS
NDS MERGER STOCK CONTEL SUBSIDIARYTL SECURITIES ALLEGES VERSYSS AMENDED COMPLAINT PLAINTIFF SHARES MERGER AGREEMENT LAW REGISTRATION STATEMENT THIRD AMENDED COMPLAINT FACTS CSC ASSETS COURT MOTION ISSUED PURSUANT COMMON STOCK PURCHASE LIABILITIES ASSIGNEE SUCCESSOR STANDING RIGHTS MISLEADING ACQUISITION |
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
. * . . l ..* . . . ...* .
.
VERSYSS INCORPORATED, ..
Plaintiff, .
.
V . .
.
COOPERS & LYBRAND, A .
Partnership, and WILLIAM .
K. O'BRIEN, As Managing .
Partner of Coopers & Lybrand, ..
D e f e n d a n t s . ..
. . l . . . r . . . l . . . l .
DEFENDANTS' MEMOMDUM IN SUPPORT OF MOTION
FOR SUMMARY JUDGMENT ON PLAINTIFF'S CLAIM
UNDER SECTION 11 OF THE SECURITIES ACT OF 1933
Defendants Coopers & Lybrand and William K. O'Brien
(collectively ttC&Lfw) submit this memorandum in support of their
Motion for Summary Judgment on plaintiff's claim under section 11
of the Securities Act of 1933, 15 U.S.C. §77k.
The section 11 claim is the only basis on which plaintiff
does or can assert federal jurisdiction. Plaintiff's remaining
claims for negligence and negligent misrepresentation arise under
state law and are subject to discretionary dismissal by this
Court if the federal claim is dismissed. See United Mine Workers
of America v. Gibbs, 383 U.S. 715 (1966).
This Motion turns on a simple, indisputable fact: Plaintiff
and its predecessors never acquired any NDS stock. Because
recovery under section 11 is only available to purchasers of
securities, plaintiff has no claim.
Section I1 creates a right of action against certain persons
in connection with a false securities registration statement.
However, that right of action is available only to a "person
acquiring such security," that is, a security issued pursuant to
the registration statement in question. Plaintiff alleges that
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3
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AFFDVT STEVEN W PHILLIPS
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EXTRACTED KEY WORDS
EXHIBIT NDS MERGER CORPORATION AFFIDAVIT HERETO CONTEL DISTRICT RELEVANT PORTION AGREEMENT NORTHERN DATA SYSTEMS CHRISTIAN CERTIFICATE SECURITIES ACT PLAN REORGANIZATION CONTINENTAL TELECOM FOUNDING STOCKHOLDERS PURSUANT HOFFMAN COMBINED PROXY STATEMENT-PROSPECTUS ACCORDANCE FORM S-15 AMENDMENTS THERETO LLPROSPECTUSLT PROSPECTUS CHRISTIAN M/HOFFMAN PAINS PENALTIES PERJURY HEREBY CERTIFVTHAT |
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
. . . . . . . . . . . ...* ..
VERSYSS INCORPORATED, ..
Plaintiff, ..
V . Civil Action
l
. No. B
COOPERS & LYBRAND, A .
Partnership, and WILLIAM . ~`5%657 '
-,C. E,:. ~
;*," 22 ,/A>
K. O'BRIEN, As Managing . ,-,a &.- .
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4
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DEF MTN FR SUMMARY JDGMNT
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EXTRACTED KEY WORDS
NDSM HOFFMAN AFF STOCK VERSYSS NDS DEFENDANTS MERGER COMMON STOCK PURSUANT EXS AGREEMENT LITIGATION NDS COMPANIES SUMMARY JUDGMENT PERUGINI VCM COOPERS LYBRAND MATERIAL FACTS AFFIDAVIT CHRISTIAN AUDIT MARSHALL COMPLAINT PUBLIC OFFERING SHARES SHORT-TERM NOTE STOCK PURCHASE CBSD |
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
. . ...* . * l ,.* . . l .
.
VERSYSS INCORPORATED, ..
Plaintiff, l
V. l
l
COOPERS & LYBRAND, A .
Partnership, and WILLIAM .
K. O'BRIEN, As Managing .
Partner of Coopers & Lybrand, ..
Defendants. ..
..-. l . . . l . . . . . . .
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Pursuant to Federal Rule of Civil Procedure 56, defendants
Coopers & Lybrand and William K. O'Brien (collectively "C&L")
move for summary judgment dismissing the claims of VERSYSS,
Incorporated ("VERSYSS').
The grounds for this Motion, as set forth more fully in a
memorandum of law filed herewith, are the following: VERSYSS'
claims are asserted against C&L as the purported "assignee" of
claims of Contel Corporation and as the purported successor-in-
interest to a Contel Corporation subsidiary, Contel Systems
Corporation. VERSYSS' assertion of these claims against C&L is
inconsistent with the discharge of the common liability of all
defendants, including C&L, recognized by the filing of a related
state court action against C&L for contribution. VERSYSS must be
judicially estopped to deny that discharge of liability in this
action. Further, VERSYSS' claims contravene fundamental
principles of restitution and contribution, and should be barred.
There is no dispute of material fact, and C&L is entitled to
judgment as a matter of law. While the factual context of the
complex transactions that purportedly give rise to VERSYSS'
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5
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AFFDVT PETER J MARSHALL
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EXTRACTED KEY WORDS
PARTNER AUDIT NORTHERN DATA SYSTEMS NDSM COOPERS LYBRAND PETER CONTEL COMMON STOCK DEFENDANTS AFFIDAVIT MARSHALL EMPLOYEE LINDSM1L CAPITAL STRUCTURE OWNERSHIP THOMPSON DAVID KEENE MATTHEW MAGGIO ROBERT AUDITED FINANCIAL STATEMENTS AFORESAID INDIVIDUALS SOLE OWNERS PUBLIC OFFERING PRIOR ACQUISITION PERFORMING AUDIT REGULAR PROFESSIONAL FEES |
UNITED STATES DISTRICT COURT
FOR THE ,.-,
b;-
DISTRICT OF MASSACHUSETTS i .I
VERSYSS INCORPORATED,
Plaintiff,
V .
COOPERS & LYBRAND, A Partnership,
and WILLIAM K. O'BRIEN, As Managing
Partner of Coopers & Lybrand,
Defendants.
AFFIDAVIT OF PETER J. MARSHALL
Hillsborough, ss.
Peter J. Marshall deposes and says as follows:
1. I am a partner of the firm of certified public
accountants of Coopers & Lybrand ("C&L"), defendant in this
action. I make this affidavit in support of C&L's motion for
summary judgment, dated December 1, 1989.
2. Commencing in or about May, 1981 C&L undertook to
provide audit and other services to two affiliated New Hampshire
corporations, Northern Data Systems, Inc. ("NDSNH") and Northern
Data Systems of New England, Inc. (I'NDSNE"), single-source
suppliers of integrated turnkey business computer systems which
included proprietary and generic software and computer hardware
manufactured by others. Thereafter, until merger with Contel
Corporation ("Contel") and its subsidiary on July 16, 1985, C&L
provided audit and other services to NDSNH, NDSNE and their
successor, Northern Data Systems, Inc., a Massachusetts
corporation (lINDSM1l) (collectively the "NDS Companies"). I
personally was involved with all audit work performed by C&L for
the NDS Companies and with certain other work performed by C&L
from 1981 through July 16, 1985. During this period I became
acquainted with the capital structure of the NDS Companies and
with the ownership of the NDS Companies.
3. At no time did I ever own any Common Stock of any of
the NDS Companies. Representation letters executed by
Peter A. Thompson, David 0. Keene, Matthew Maggio and/or
Robert J. Keyes issued periodically between October 16, 1981 and
July 31, 1984 confirmed during the period that C&L audited
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6
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COMPLAINT
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EXTRACTED KEY WORDS
COOPERS LYBRAND NDS VERSYSS FINANCIAL STATEMENTS NDS MERGER CORPORATION CONTEL SYSTEMS PLAINTIFF DEFENDANTS PARTIES MASSACHUSETTS COMMON STOCK COMPLAINT REPORTS SOLE AUDIT REPORTS REPRESENTATIONS ACCOUNTING CONNECTION MERGER AGREEMENT CERTIFIED PUBLIC ACCOUNTANTS REGISTRATION STATEMENT MATERIAL FACT PROXY STATEMENT-PROSPECTUS STATES DISTRICT COURT CIVIL ACTION PUBLIC OFFERING PROSPECTUS MARKET PRICE |
UNITED STATES DISTRICT COURT c
FOR THE DISTRICT OF MASSACHUSETTS
VERSYSS Incorporated,
Plaintiff, Civil Action
No.
V .
;
COOPERS & LYBRAND, A Partnership, )88-l K '
and WILLIAM K. O'BRIEN, As
Managing Partner of Coopers & ;
Lybrand,
;
Defendants. 1
COMPLAINT
Introduction
Reference is made to pending Civil Action No. 88-121-K
captioned Contel Corporation, et al. v. Peter A. Thompson,
et al. (D. Mass.) which is related. This Complaint is being
filed to commence an action separate from Civil Action No.
88-121-K; however, this action will be prosecuted only in the
event that the Court does not permit amendxxnt of the pleadings
of Civil Action No. 88-121-K (1) to substitute VERSYSS
Incorporated as the sole plaintiff, (2) to dismiss Contel
Corporaticn and Contel Systems Corp. as parties plainriff, with
prejudice, with respect to all deferA
..,ants other than Coopers &
Lybrand, and with respect tc ciaims against Coopers & Lybrand
which they had at one time as plaintiffs, <3) to dis.miss, with
prejudice, defendants Thompscn, Keene, Keyes, Perugini,
G a l l a n t , Green, Boss and Reilly as parties defendant, and (4)
to dismiss, without prejudice, the third-party complaints
against Coopers & Lybrand filed by defendants Thompson, Keene,
Keyes and Perugini, as a result of their dismissal, with
prejudice, as defendants.
Subject Matter Jurisdiction and Venue
1. This Court has jurisdiction over the subject matter of
this action under Section 22 of the Securities Act of 1933, 15
U.S.C. § 77v, pursuant to 28 U.S.C. 5 1332, and pursuant to the
doctrine of pendent jurisdiction with respect to Count II of
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