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1
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REP MEM IN SUP DEF MOT
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EXTRACTED KEY WORDS
DELAWARE SUIT COURT CHASE YORK DELAWARE LAW DEFENDANTS SQUARE MOTION DIRECTORS SUE SUPREME COURT SUPPORT COUNSEL RAISE PMM SHAREHOLDER DERIVATIVE SUIT MARWICK MITCHELL MEMORANDUM WILMINGTON STOCKHOLDER BUSINESS JUDGMENT RULE MARTIN FOX COMPLAINT NEUTRAL POSITION AUTHORITY PENN SQUARE CONNECTION |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------"----'-------------------------x
MARTIN FOX and WARREN OPAL, as Trustees for :
Warren Opal, and BERNARD KAPLAN, .. Index No. 20414/86
Plaintiffs, : IAS Part 13
-against- Stecher, J.
PEAT MARWICK MITCHELL & CO., THE CHASE
MANHATTAN CORPORATION, and THE CHASE :
MANHATTAN BANK (N.A.),
Defendants.
:
------------------------"`----------------------x
REPLY MEMORANDUM OF LAW IN SUPPORT 'OF
a THE MOTION OF DEFENDANT PEAT, MARWICK,
MITCHELL & CO.
CAHILL GORDON & REINDEL
(a partnership including
professional corporations)
80 Pine Street
New York, New York 10005
(212) 701-3000
Attorneys for Defendant
Peat, Marwick, Mitchell & Co.
Of Counsel:
RICHARDS, LAYTON & FINGER, P.A.
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
(302) 658-6541
a
.-
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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2
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PLF MEM OPP DEF MOT STAY
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EXTRACTED KEY WORDS
COURT PMM YORK MANHATTAN CHASE DEFENDANT MOTION BERNARD KAPLAN MANHATTAN CORPORATION MANHATTAN BANK DEFENDANT PEAT MARWICK MITCHELL ENTIRETY PENDENCY DELAWARE ACTION ARGUES OPPOSITION EXPENSE CATS-PAW STANDING RAISE PLAINTIFFS BENISCH CAMERON SUPP LITIGATION DEL PMM RELIES |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------___I_______________I----- X
MARTIN FOX and WARREN OPAL, as Trustees for :
Warren Opal, and BERNARD KAPLAN,
Plaintiffs,
-against-
PEAT, MARWICK, MITCHELL & CO., THE CHASE :
MANHATTAN CORPORATION, and THE CHASE
MANHATTAN BANK (N.A.),
Defendants. :
-_l_--l-------------------------------------- X
PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION
TO DEFENDANT PEAT, MARWICK, MITCHELL & CO.'S
MOTION TO STAY AND/OR DISMISS PLAINTIFFS'
Preliminary Statement
Plaintiffs submit this memorandum in opposition
motion of Defendant Peat, Marwick, Mitchell & Co.
seeks, inter alia, either a dismissal or stay of this
the grounds that a prior action is pending in
shown in Point I below, that request is totally
It is manifest that New York represents a far more
convenient forum since most of the documents and
available here, and none are located in Delaware.
have moved to dismiss the Delaware action and withdraw
claims in Delaware without prejudice while plaintiffs'
go forward in New York. PMM has not interposed
the Delaware Action and no discovery there has been taken.
PMM also argues that: (a) plaintiffs
make a demand on the Board of Directors of The Chase
t
Corporation and The Chase Manhattan Bank, N.A.
are collectively referred to herein as "Chase")
PMM with respect to losses resulting from The
Bank (N.A.)'s ("the Bank's") transactions
Government Securities, Inc.; and (b) plaintiffs
from bringing this suit because several years
boards rejected a demand that they sue PMM with respect
losses resulting from the Bank's participation
Square Bank. These contentions rest on the
Chase boards presently object or might object
continuance of this action. This assumption,
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3
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MEM SUP MOT STAY ACTION
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EXTRACTED KEY WORDS
DELAWARE COURT SUIT PMM LAW BANK YORK COMPLAINT SUMMARY JUDGMENT SQUARE DEFENDANT DISMISS DIRECTORS PEAT MOTION PLAINTIFFS MANHATTAN BANK SUPREME COURT SHAREHOLDER MITCHELL PURSUANT SUBSTANTIVE LAW APPLICABLE DELAWARE PENN SQUARE DRYSDALE CPLR RULE BUSINESS OFFICERS RICHARDS |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----__-_--____- - -----d-x
MARTIN FOX and WARREN OPAL, as Trustees for
Warren Opal, and BERNARD KAPLAN,
Plaintiffs,
-against-
PEAT MARWICK MITCHELL & CO., THE CHASE
MANHATTAN CORPORATION, and THE CHASE
MANHATTAN BANK (N.A.),
Defendants.
---- --_____-__- - -------x
MEMORANDUM OF LAW IN SUPPORT OF THE MOTION
OF DEFENDANT PEAT, MARWICK, MITCHELL & CO.
TO DISMISS OR STAY THIS ACTION PURSUANT TO
TO CPLR RULE 3211(a)(4) OR CPLR SECTION
OR ALTERNATIVELY FOR DISMISSAL OR SUMMARY
JUDGMENT UNDER APPLICABLE DELAWARE LAW
CAHILL GORDON & REINDEL
(a partnership
professional
80 Pine Street
New York, New York
(212) 701-3000
Attorneys for
Peat, Marwick,
Of Counsel:
RICHARDS, LAYTON &-FINGER, P.A.
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
(302) 658-6541
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . ..*.......................*
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4
.
COVER SHEET
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EXTRACTED KEY WORDS
APPLICANT PEAT MARWICK MITCHELZ E4ANK NUGUST |
46.3004R.2OOM-83
./!
COUNTY CLERK, NEW YORK COUNTY
/
INDEX NUMBER
Application for INDEX NUMBER pursuant
C.P.L.R.
FEE $35.00
Spaces below to be TYPED or PRINTED by applicant
TITLE OF ACTION OR PROCEEDING
CHECK ONE
MARTIN FOX and illARRF:N OE'AL, as Tr:~stees
gNS~MER
Warren 3pa.1,
TRANSACTION
and BERNARD KAPLAN,
NOT
Plaintiffs,
MONOMER
TRANSACTION
-against-
PEAT, MARWICK, MITCHELZ~ & CO. , THE CHASE
i'4ANHATTAN COKPORA.T1ON, and THE CHASE KANHAT'?AIJ
E4ANK, N.A.,
Defendants.
Name and address of Milherg Weiss Bershad
Attorney for Plaintiff Specthrie EC Lerach
or Petitioner. One Pennsylvania
Telephone No. New York, N.Y.
594-5300
Name and address of Cahill Gor(jon &
Attorney for Defendant 80 l?irle streer
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5
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COMPLAINT
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EXTRACTED KEY WORDS
YORK LOANS CHASE PARTICIPATIONS EXCEEDS SUPREME COURT MANHATTAN BANK LAWS DELAWARE ACT AGENT LOSS MANAGEMENT PROB LEMS GAAP NONPERFORMING AMOUNT DEFENDANTS PROPER |
IN THE SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF J!E37 YORK -__-- X
MARTIN FOX and WARREN OPAL, as Trustees for
Warren Opal, and BERNARD KAPLAN,
Plaintiffs,
PEAT MARWICK MITCHELL & CO., THE CHASE
MANHATTAN CORPORATION, and THE CHASE
MANHATTAN BANK (N.A.),
Defendants.
Plaintiffs, by their attorneys, for
herein, allege as follows:
PARTIES
1. As trustees for Warren Opal,
and Warren Opal are owners of common stock
Manhattan Corporation ("Chase") and were shareholders
time of the transactions complained of. In
trustees for Warren Opal, plaintiffs Fox and Opal
authorized and empowered to commence this
2. Currently and at all relevant
plaintiff Bernard Kaplan has been a holder
of Chase.
3. ction
right of Chase.,- ntiffs bring
double derivative a If of The Chase
(N.A.) ("the Bank"), which company is the principal
of Chase.
4. Chase is a bank holding company incorporated
the laws of the State of Delaware.
5. The Bank is a national banking association
organized under the laws of the United States.
6. Defendant Peat Marwick Mitchell & Co.
firm of certified public accountants and auditors
offices within the City, State, and County of New-York.
rendered unqualified opinions regarding the financial
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7
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CARLSON AFF W EXHIBITS
|
EXTRACTED KEY WORDS
CHASE MANHATTAN BANK MEETING ESQ DIRECTORS BRODY LOWEY MANHATTAN CORPORATION STULL DANNENBERG KNAPP COUNTY ANNEXED HERETO EXHIBIT DEMAND COMMITTEE CHASE MANHATTAN PLAZA DRYSDALE WEISS LOGAN SQUARE JULES BRODY LEGAL CLAIMA COUNECLIOU MENDATE INCUR AUY EXPENSES DARIRABH CERT ZHASE |
0
8 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------x
MARTIN FOX and WARREN OPAL, as Trustees for :
Warren Opal, and BERNARD KAPLAN,
:
Plaintiffs,
:
-against- :
PEAT MARWICK MITCHELL & CO., THE CHASE
MANHATTAN CORPORATION, and THE CHASE
MANHATTAN BANK (N.A.),
Defendants.
-----------------------x
AFFIDAVIT OF MICHAEL E. CARLSON
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK f
MICHAEL E. CARLSON, being duly sworn, says:
1. I am Secretary of The Chase.Manhattan
("Chase"). As used herein, "Chase" includes its
subsidiary, The Chase Manhattan Bank, N.A.
2. In May of 1982, Drysdale Government
l
Inc. ("Drysdale") a dealer in Government securities,.
in the performance of its obligations with respect
chase agreements which it had entered into covering
-2-
securities. Chase had dealt with Drysdale and as a consequence
of this default, Chase incurred an after-tax loss of approxi-
mately $117 million for the second quarter of 1982.
3. By letter dated July 1, 1982 a lawyer for a Chase
shareholder demanded that the Board of Directors cause Chase
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