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1
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WIND POINT PARTNERS REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS COUNTERCLAIM
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EXTRACTED KEY WORDS
BERNSTEIN COUNTERCLAIM PLAINTIFFS COURT TURNER RAPAPORT COUNSEL DELAWARE DEFENDANT SUE PROMISSORY ESTOPPEL ALLEGATION PARTNERS JOEL MOTION PARAGRAPH TURNER CLASS MATERIAL FACTS MARVIN RAPAPORT WILMINGTON ATTORNEYS CONSTITUTION CLASS CERTIFICATION SETTLEMENT CONTINENTAL INSURANCE AFFIDAVIT KING STREET HOFFMAN CONVENT STATION |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
MARVIN RAPAPORT, M.D., RICHARD )
GERBER and WIND POINT
PARTNERS, ;
Plaintiffs,
V. 1 C. A. No. 18825
JOEL E. BERNSTEIN, M.D., i
Defendant.
WIND POINT PARTNERS' REPLY BRIEF
IN SUPPORT OF ITS MOTION TO DISMISS
DEFENDANT'S COUNTERCLAIM
PRICKETT, JONES & ELLIOTT
Ronald A. Brown, Jr.
1310 King Street
P.O. Box 1328
Wilmington, DE 19899
(302) 888-6500
Attorneys for Plaintiffs
Of Counsel:
DiPRIMA & HOFFMAN
41 Constitution Way
Convent Station, NJ 07960
(973) 656-0251
November 13,200l
Table of
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
........... . . . . . . . . . . . . . . . . . . . . . ..I.... 1
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2
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DEFENDANTS RESPONSE TO MOTION TO DISMISS COUNTERCLAIM
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EXTRACTED KEY WORDS
COUNTERCLAIM BERNSTEIN MERGER PLAINTIFFS TURNER PROMISSORY ESTOPPEL FORMER DIRECTORS DEFENDANT MEDICIS VICE CHANCELLOR DEL COMPLAINT MOTION GENDERM DISMISS SHAREHOLDERS MERGER DISCLOSURES SETTLEMENT FIDUCIARY DUTY INDUCE RELIANCE CLASS CERTIFICATION HEARING ALLEGATIONS PROCEEDING MEDICIS PHARMACEUTICAL CORPORATION AFFIDAVIT VICE CHANCELLOR STRINE MERGER CONSIDERATION CLASS CERTIFICATION CONNECTION |
IN THE COURT OF CHANCERY FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
>
MARVIN RAPAPORT, M.D.;
WIND POINT PARTNERS; and ;
RICHARD GERBER, )
Plaintiffs, ;
V. ; C.A. No. 18825 r
JOEL E. BERNSTEIN, M.D., ;
i
.
Defendant.
DEFENDANT JOEL E. BERNSTEIN'S RESPONSE TO
PLAINTIFFS' MOTION TO DISMISS COUNTERCLAIM
I. NATURE AND STAGE OF THE PROCEEDINGS
This is an action arising out of the December 1997 merger between GenDerm Corporation
("GenDerm") and Medicis Pharmaceutical Corporation ("Medicis'). Plaintiff Wind Point Partners
("Wind Point") is a former shareholder of GenDerm who brought this action, along with two other
former shareholders, alleging breach of fiduciary duty by GenDerm's former director Joel
Bernstein") in connection with the merger disclosures and relying on Vice Chancellor Strine's
that the former directors (including Dr. Bernstein) were liable for breach of fiduciaq duty in an
case arising out ofthe merger, Turner v. Bernstein, Del. Ch., C.A. No. 16190 ("Turner"). On
17,2001, Dr. Bernstein answered the Complaint and asserted a Counterclaim for promissory estoppel
against Wind Point. On October 8,2001, Wind Point moved to dismiss the counterclaim and filed its
Opening Brief In Support of Its Motion To Dismiss Defendant's Counterclaim ("Brief').
RLFI-2382310-I
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3
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WIND POINT PARTNERS OPENING BRIEF IN SUPPORT OF MOTION TO DISMISS
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EXTRACTED KEY WORDS
BERNSTEIN COUNTERCLAIM COURT PLAINTIFFS DEFENDANT COUNSEL TURNER DISMISS CLASS CERTIFICATION MOTION ALLEGATION DEL MATERIAL FACTS SUPPORT CONSTITUTION MARVIN RAPAPORT PARTNERS PROMISSORY ESTOPPEL FORMER DIRECTORS AFFIDAVIT FORMER GENDERM STOCKHOLDERS WILMINGTON ATTORNEYS WELL-PLEAD ALLEGATION RELIANCE LIABILITY CLASS CERTIFICATION OPINION ESTOPPEL THEORY NATURE |
ORIGINAL
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
MARVIN RAPAPORT, M.D., RICHARD )
GERBER and WIND POINT
PARTNERS, ;
Plaintiffs,
V. i C. A. No. 18825
JOEL E. BERNSTEIN, M.D., i
Defendant.
WIND POINT PARTNERS' OPENING BRIEF
IN SUPPORT OF ITS MOTION TO DISMISS
DEFENDANT'S COUNTERCLAIM
PRICKETT, JONES & ELLIOTT
Ronald A. Brown, Jr.
1310 King Street
P.O. Box 1328
Wilmington, DE 19899
(302) 888-6500
Attorneys for Plaintiffs
Of Counsel:
DiPRIMA & HOFFMAN
41 Constitution Way
Convent Station, NJ 07960
(973) 656-0251
October 8, 2001
17824.1\145043vl
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4
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PLAINTIFFS ANSWERING BRIEF IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS
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EXTRACTED KEY WORDS
PLAINTIFFS BERNSTEIN WIND RAPAPORT DEFENDANTS GERBER RICHARD CLASS ACTION TURNER MOTION MEMBERS GENDERM REPRESENTATIVE PLAINTIFFS DISMISS STOCKHOLDERS CLASS DEFINITION AFFILIATES MARVIN RAPAPORT LIABILITY OPINION CLASS CERTIFICATION OPINION AFFIDAVITS CLASS CERTIFICATION FIDUCIARY DUTY DIRECTORS CLASS CERTIFICATION ORDER INDIVIDUAL ACTIONS ASSERTED MEMBERS LIMITATIONS GENDERM BOARD |
IN THE: COURT OF CHANCERY OF THE STATE OF DELAWARE
c ,
IN AND FOR NEW CASTLE COUNTY
MARVIN RAPAPORT, M.D., RICHARD )
GERBER and WIND POlNT
PARTNERS, i
Plaintiffs,
V. C. A. No. 18825
JOEL E. BERNSTEIN, M.D., ;
Defendant. ;
PLAINTIFFS' ANSWERING BRIEF
IN OPPOSITION TO DEFENDANT'S
MOTION
- - - TO DISMISS
PRICKETT, JONES & ELLIOTT
Ronald A. Brown, Jr.
1310 King Street
P.O. Box 1328
Wilmington, DE 19899
(302) 888-6500
Attorneys for Plaintiffs
Of Counsel:
DiPRIMA & HOFFMAN
41 Constitution Way
Convent Station, NJ 07960
(973) 656-0251
Dated: July 5, 2001
TABLE OF CONTENTS
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5
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MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS
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EXTRACTED KEY WORDS
COURT AFFILIATES DEFENDANT SHAREHOLDERS CLASS COUNSEL PLAINTIFFS MERGER FORMER DIRECTORS COMPLAINT GENDERM MOTION MARVIN RAPAPORT LAWSUIT DISMISS STARK EXCLUSION BERNSTEIN VICE CHANCELLOR REPRESENTATIVES ACCORDING WRONGDOERS COLLATERAL ESTOPPEL FIDUCIARY DUTY VICE CHANCELLOR STRINE RES JUDICATA SETTLEMENT GENDERM CORPORATION FORMER DIRECTORS PAID EXCLUDING |
IN THE COURT OF CHANCERY FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
-1
WIND POINT PARTNERS; >
MARVIN RAPAPORT, M.D.; and
RICHARD GERBER, i
Plaintiffs, ;
_..
,s .i
c-."?
V. I C.A. No. 18825 >`:\:
`, i
;jI,:
JOEL E. BERNSTEIN, M.D., ;
- i.
Defendant. ; : -.
, ,I
--A :.
_-. -2
MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO DISMISS THE COMPLAINT
I. NATURE AND STAGE OF THE PROCEEDINGS
This Memorandum is filed on behalf of the defendant, Dr. Joel E. Bermtein ("Bernstein"),
support of his Motion to Dismiss the complaint filed on April 12,200l in its entirety.' This is the
lawsuit spawned by the December 3,1997 merger of GenDerm Corporation ("GenDerm") with Medicis
Pharmaceutical Corporation ("Medicis"). GenDerm's former directors paid in excess of $5.8 million
settle the first case .- a class action filed on behalf of all shareholders as of the merglsr date,
former directors and their "affrhates." According to class counsel, affiliates were refquired to
from the class to ensure that any recovery would not benefit the "wrongdoers."
After full oral and written argument, this Court found that the individual plaintiffs in
were "affiliates" of the defendant former directors and thus excluded horn the class. The Court
' The complaint is referred to herein as "Complaint." The documents attached as exhibits to the
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6
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COMPLAINT
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EXTRACTED KEY WORDS
COURT MERGER STOCKHOLDERS TURNER PLAINTIFFS GENDERM FIDUCIARY DUTY BREACHES CONNECTION MEDICIS GERBER WIND REMEDY DISCLOSURE DEFENDANT MARVIN RAPAPORT RICHARD ESQUIRE PARTNERS SUMMARY JUDGMENT SUMMARY JUDGMENT OPINION STOCK PAY REPORT CHANCERY DEL STRINE SHARES FACTS |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
MARVIN RAPAPORT, M.D., RICHARD )
GERBER and WIND POINT
PARTNERS, ;
Plaintiffs, . - A---
A-5
V. i Civil Action No. /p
' : - -,
r-
T
JOEL E. BERNSTEIN, M.D., i // --
; 2
Defendant. ,' /
COMPLAINT_
A. Introduction
1. Th.is is an individual action by Marvin Rapaport, M.D., Richard
Gerber, Esquire and Wind Point Partners, former stockholders of GenDerm
Corporation ("GenDerm" or the "Company"), to obtain, inter alia a remedy for
- -,
breaches of fiduciary duty that Joel Bernstein, M.D., GenDerm's founder, CEO and
largest stockholder, was adjudicated to have committed in connection with the
merger of GenDerm into a subsidiary of Medicis Pharmaceutical Corporation
("Medicis") that occurred in December 1997 (the "Merge.r").
2. In a class action lawsuit filed in the Delaware Court of Chancery (the
"Turner Action"), the Court held that Bernstein breached his fiduciary duty of
disclosure to GenDerm's stockholders by making no substantive disclosure at all in
connection with .the Merger. Turner v. Bernstein, Del. Ch., C.A. No. 16190, Strine,
V.C. (June 6, 2000) (the "Summary Judgment Opinion").
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