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1
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Government Exhibit # 1ST AMENDED COMPLAINT
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EXTRACTED KEY WORDS
DEFENDANT ACCOUNTING LASON FINANCIAL STATEMENTS PRINCIPLES BUSINESS DPS ACQUISITION PURCHASE PRICE DEFENDANT PRICEWATERHOUSE DELAWARE AGREEMENT STOCK WILMINGTON EBIT PURCHASE PAYMENT AUDITED FINANCIAL STATEMENTS FINANCIAL ACCOUNTING CONCEPTS REPRESENTATIVES TARGET EARNINGS LIMITED LIABILITY PARTNERSHIP HEREINAFTER TIMOTHY MOLNAR BASE PURCHASE PRICE APB OPINION GAAP FINANCIAL CONDITION LLP PRICEWATERHOUSE COOPERS |
SUPERIOR COURT OF NEWCASTLE COUNTY,
DELAWARE
MARK
W.
CARELLO :
10 Fair Hill Drive : No. 01C 10 219 (RRC)
Chadds Ford, Pennsylvania 19317 :
:
And :
:
KAREN
CARELLO
NOCKET
:
28
Harlech
Drive,
:
Wilmington,
Delaware
19807
:
: NON-ARBITRATION
Plaintiffs :
: JURY TRIAL DEMANDED
vs. :
:
PRICEWATERHOUSE COOPERS, LLP : CMAL ACCOUNTING
Avenue of the Americas : MALPRACTICE
New
York,
New
York,
10019
:
Defendant
:
FIRST AMENDED CO M P L A I N T
PARTIES
1. Plaintiff Mark W. Carello is a resident of the Commonwealth of
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2
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MEMORANDUM OPINION
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EXTRACTED KEY WORDS
PWC COURT BUSINESS JUDGEMENT PLAINTIFFS ALLEGE MOTION NEGLIGENCE NEGLIGENT LASON DUTY FINANCIAL STATEMENTS DEFENDANT PARTY ACCOUNTANTS PRIVITY MOTION FUR SUPERIOR COURT THIRD PARTIES RESTATEMENT DPS CONTRACT NEGLIGENT MISREPRESENTATION REPRESENTATIONS AFFIDAVITS LIABILITY BUSINESS TRANSACTION INCLUSION PWC AWED PLAINTIFFS DEFENDANT PRICEWATERHOUSECOOPERS LLP |
IN THE SUPERIOR COURT OF TItfE STATE OF DELAWAKEZ
IN A~ FOR NEW CASTLE COUNTY
MARK W, CARIELLO and >
WREN CARII3LLO NOCl?35T, 1
>
Plaintiffs, >
) C.A. No. OlC40-219 IRRC
V, >
)
PR~CEWATERHOUSECOOPERS LLP, )
)
Defendant. >
A Submitted: May 23,2002
ORANIYILJM OP1NIQN
UPON DEFENDANT'S MOTION FOR SUGARY J~GMENTa
DENIED.
Kevin William Gibson, Esquire, Gibson & Perkins, P.C., Media,
Pennsyfvania, Attorney for Plaintiffs.
Gregory V. Vxallo, Esquire, Richards, Layton & Finger, P.A., Wilmington,
Delawue, and Martin L. Perschetz, Esquire, Schulte Roth (5%
Zabel LLP,
New York, New York ~~~ hnc vice), Att~~~y~ for Defendant.
COOCH, J.
ODUCTION
Before the Court is a motion fur sunxnxy judgment ("the Motion")
filed by defendant Pricewaterhousecoopers LLP ("PwC'") 1 against plaintiffs
Mark W. Care110 and Karen Care110 Nocket ~~~Plaintiff~`~),
PlGntiffs' action
sounds in tort for negligent misrepresentation, specifically the alleged
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3
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PLAINTIFF ANSWER TO DISMISS
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EXTRACTED KEY WORDS
DEFENDANT LASON COMPLAINT MOTION COURT FINANCIAL STATEMENT MISSTATEMENT DPS LIABILITY FINANCIAL RECORDS REVIEW DISMISS INTENDS RESTATEMENT ACCOUNTANTS THIRD PARTIES SELL REASON FACTS ATTORNEY CITIZENS BANK FINANCIAL DISCLOSURES FORESEEABILITY NEGLIGENT BUSINESS REPORT PARAGRAPH CITING DISCOVERY |
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
Mark
Carello
:
and Karen Carello Nocket :
: No. 01C 10 219 (RRC)
v. :
PricewaterhouseCoopers LLP :
PLAINTIFFS' ANSWER TO THE DEFENSE MOTION
TO DISMISS THE COMPLAINT PURSUANT TO RULE 12(B)(6) AND 9(B)
Now come the Plaintiffs and respond to the Motion to Dismiss and would show the Court:
STANDARD OF REVIEW
In evaluating a Motion to Dismiss under Superior Court Civil Rule 12(b)(6), the Court must
assume all well pleaded facts in the Complaint to be true. Nix v. Sawyer, Del.Super., 466 A.2d
407, 410 (1983) (citing Laventhol, Krekstein, Horwath & Horwath v. Tuckman, Del.Supr., 372
A.2d 168 (1976)). For purposes of a Motion under Rule 12(b)(6), all allegations in the Complaint
must be accepted as true. State Use of Certain-Teed Products Corp. v. United Pacific Ins. Co.,
Del.Super., 389 A.2d 777, 778 (1978). A Complaint will not be dismissed unless the Plaintiff
would not be entitled to recover under any reasonably conceivable set of circumstances
susceptible of proof. Nix, 466 A.2d at 410 (citing Diamond State Tel. Co. v. University of Del.,
Del.Supr., 269 A.2d 52 (1970)). A Complaint may not be dismissed unless it is clearly without
merit, which may be a matter of law or fact. Diamond State, 269 A.2d at 58.
1. "The Complaint:" The factual narrative of the Motion makes three (3) critical
misstatements of what was actually pled by Plaintiffs in their Complaint. In enumerated ¶ 1 the
Defendant states, "that Plaintiff first advised Lason that they wished to review Lason's audited
financial statements on October 1, 1999 (¶ 29,32)". In the first instance ¶ 29 of the Complaint has
no language at all about the Plaintiffs' desire to review statements. As for ¶ 32, nothing contained
in this paragraph references a date of October 1, 1999, being the date Plaintiffs requested the
financial statements. The October 1, 1999, date was the date Plaintiffs received certain audited
statements. Then the Motion makes another misstatement that "Rather, plaintiffs claim that, in
determining to sell DPS and accept deferral payments they `relied on Lason's Annual Report, 10-
K and the audited financial statements accompanying such reports for the periods ending
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