Sheriff/Coroner Rainey is the Lynching Sheriff
Responding to Terrorism and Mass Violence at Home and Abroad
Responding to Terrorism and Mass Violence at Home and Abroad
The threat of terrorism and mass violence has increased in recent years in the United States and abroad. The emotional impact of such crimes can be devastating, leaving victims and emergency personnel in urgent need of services to reduce the immediate trauma they experience as well as to provide long-term assistance to help restore a sense of normalcy to their lives. After the Oklahoma City bombing in 1995, Congress amended VOCA to authorize OVC to set aside up to $50 million annually for an Antiterrorism Emergency Reserve fund, which has helped ensure that victims get the assistance they need without diverting funds from ongoing, standard victim services. The Reserve supports the following programs:
The Antiterrorism and Emergency Assistance Program (AEAP) offers multiple avenues of assistance to victims and communities responding to acts of terrorism and mass violence. Since the program began in 2002, more than $65 million has been allocated for crisis counseling, temporary housing, and emergency transportation, among other assistance. In 2008, OVC provided $3 million to Virginia Polytechnic Institute and State University (Virginia Tech) to facilitate the recovery and support of its students, faculty, and staff and their friends and families, in the wake of the tragic shootings that occurred there.
The International Terrorism Victim Expense Reimbursement Program (ITVERP)was authorized by Congress to reimburse eligible victims of international terrorism that occurs outside the United States for out-of-pocket expenses associated with the crime. Since its implementation in October 2006, ITVERP has processed 39 claims.
The Crime Victim Assistance Emergency Fund works in conjunction with ITVERP. It is administered by the FBI, with OVC reimbursing the bureau for the funds it pays to victims. The fund assists U.S. nationals and federal employees who are victims of terrorism and mass violence occurring outside the United States who need emergency assistance but lack the resources to obtain the help they need on their own.
The Victim Reunification Travel Program (VRT) provides funds to help left-behind parents in international child abduction cases. Support under this program is provided via an intra-agency authorization with the Office of Juvenile Justice and Delinquency Prevention (OJJDP) and an OJJDP grant to the National Center for Missing and Exploited Children. In FYs 2007–2009, 100 requests for support were received for cases that involved 137 children in 34 countries.
Thieves connected to Federal Reserve
Steve Burd Profile - Silverlake Partners, Southern Pacific, Blackhawk Network, Safeway, CEO Steve Burd, Philip Anschutz, Milken, and CEO Larry Ellison
Silverlake Partners, NYFed, AT&T and Building 7
One of the key reasons I have focused on Silverlake partners is the connection to the New York fed, the connection to Glenn Hutchins of AT&T oh, the highly of it in connection to Elevation partners and also litigation involving HomeStore a case apparently pretty fraudulent next to Wilson sonsini and that leads to mulesoft, Salesforce and yours truly the oracle versus Salesforce hostile takeover.
Industry | Private equity |
---|---|
Founded | 1999; 21 years ago |
Founder | Jim Davidson, David Roux, Roger McNamee, Glenn Hutchins |
Headquarters | Menlo Park, California, United States |
Number of locations | Multiple offices in 3 countries |
Key people | Mike Bingle Egon Durban Ken Hao Greg Mondre Joe Osnoss |
Products | Investment funds |
AUM | US$43 billion (2020)[1] |
Website | www.silverlake.com |
Dead Homeless of Contra Costa County
- Posted: June 22, 2020
- Part-Time
- Rate:
$16 USD per hour CAN067
Concord, CA, USA
Job Details
Description
The Coordinated Outreach Referral, Engagement (CORE) program works collaboratively in small teams to engage and stabilize homeless individuals living outside to identify plans to end their homelessness permanently. The CORE Outreach Specialist is responsible for street outreach efforts in Contra Costa County which include building trust with individuals and families that are not being served or are underserved by existing community service delivery systems. The Outreach Specialist works collaboratively to locate, engage, stabilize and house chronically homeless individuals and families. The CORE Outreach Specialist plays a key role among a multidisciplinary team which serves to support and stabilize individuals moving from street to service.
CORE teams work fluctuating hours.
Salary: $16.00 to $17.31, Hourly
ESSENTIAL FUNCTIONS
- Conduct mobile and street outreach throughout Contra Costa County for the purpose of engaging homeless individuals into services.
- Build trust with, and assess the needs of unsheltered homeless persons encountered during outreach efforts; make initial contact and develop rapport with homeless adults, youth and families.
- Distribute survival supplies including but not limited to food, hygiene supplies, blankets, and socks.
- Administer intake questionnaires, assessments and other forms of tracking documentation as needed. Assist homeless individuals with completing applications for services, transporting them to shelters, services, and other points as needed.
- Collaborate with Coordinated Entry programs and other County services to place homeless individuals in housing and enroll them into services.
- Provide targeted outreach to individuals who frequent emergency services but are not connected to stable housing and health services.
- Provide necessary referrals and information for temporary housing and community resources.
- Provide program materials to community partners around shelter services (outreach to motels, churches, merchants).
- Maintain and interact in a culturally sensitive, respectful, and professional demeanor.
- Attend and participate in weekly case conferences as part of the county-wide CORE outreach program.
- Attend community meetings with other service providers to share program information and coordinate services.
- Comply with all policies and procedures guiding the work of this position and the department overall.
- Attend training and meetings as required.
- Will be on call to provide relief for the CORE program.
- Assist and support the Hotline Counselors as needed
- All other duties as assigned.
JOB QUALIFICATIONS:
- AA/AS degree in Human Services, Psychology, Counseling, or a related field; OR
- High School degree or equivalent plus a minimum 2 years direct experience working in a professional capacity with homeless, behavioral health or medically complex populations.
- Knowledge of the client population and their complex needs including homelessness, financial instability, medical and psychiatric illnesses, and substance abuse, and HIV/AIDS.
- Ability to work well with diverse staff, stigmatized communities and clientele including cultural, language, sexual identity, gender and other diversity considerations within all neighborhoods in Contra Costa.
- Ability to work successfully both independently and cooperatively.
- Professional level competency using Internet, email, and Microsoft Word computer applications.
- Ability to use computers/internet to look up information and enter relevant notes.
- CPR and first aid certification within 90 days of hire.
- With instruction, the ability to assist persons with disabilities and to help transfer a 180lb person and lift wheel chair in and out of a car or van.
- Ability to use a computer, phone or office equipment for extended periods of time.
- Ability to successfully and efficiently complete tasks in an environment where background noise is present and interruptions may be constant.
- Must possess a valid California driver’s license due to driving County vehicle.
- Must be able to access remote locations that may require traveling through rough terrain in excess of two miles in possible inclement weather conditions.
PREFERRED QUALIFICATIONS:
- Bilingual, bicultural in Spanish.
- Previous experience or training in street outreach and case management.
- Knowledge of Contra Costa County and community resources.
- Knowledge of the Contra Costa emergency provider network.
- Prior experience with documentation and billing procedures.
PHYSICAL DEMANDS:
Stand Frequently
Walk Constantly
Sit Frequently
Handling / Fingering Frequently
Reach Outward Frequently
Reach Above Shoulder Frequently
Climb, Crawl, Kneel, Bend Frequently
Lift / Carry Occasionally - Up to 50 lbs
Push/Pull Occasionally - Up to 50 lbs
See Constantly
Taste/ Smell Not Applicable
Not Applicable Not required for essential functions
Occasionally (0 - 2 hrs/day)
Frequently (2 - 5 hrs/day)
Constantly (5+ hrs/day)
WORK ENVIRONMENT
Outdoors, Inclement weather, rough walking paths, homeless encampments
Heluna Health is an Affirmative Action, Equal Opportunity Employer that encourages minorities, women, veterans, and disabled to apply.
Qualifications
Education
Required
High School or better.
Preferred
Associates or better in Human Services or related field.
Experience
Required
2 years: direct experience working in a professional capacity with homeless, behavioral health or medically complex populations.
NTSB Five Dead Realtors Pete knew three
KinderCare, Frank Doyle Jr., Enron, Kinder Morgan /Building 7 SEC
LAST WEEK IN AN OAKLAND COURTROOM, A JURY OF 10 citizens found that, yes, the FBI is using the fight against terrorism to shut down political dissent. These jurors were not urban radicals; they were suburbanites from Walnut Creek and Concord, some of them wearing sequined American-flag shirts. They found that six agents of the FBI and the Oakland police twisted a murder attempt against Judi Bari and Darryl Cherney, two Earth First! activists working to reform logging practices on California's North Coast, to link them falsely to domestic terrorism and aggressively slander them in the press. Of $4.4 million in damages awarded by the jury, more than 80 percent went for First Amendment violations: The FBI had tried to silence their environmental views.
This is more than just another of many recent black eyes for the FBI. It's strong evidence that the FBI is still in the business of domestic politics, and that the spirit of the 1970s FBI counterintelligence operations that killed off the Black Panthers and the American Indian Movement is alive and well today. With one big difference: No jury ever ruled against those FBI tactics.
Bari's case was so overwhelming that it plowed through 11 years of FBI motions even after Bari herself died of breast cancer in 1997. “Ten Americans, once they weren't limited to hearing controlled soundbites, were able to weed through the crap and they got it,” says Bob Bloom, one of the Bari-Cherney attorneys. “The FBI and law enforcement are the private army for the people who run this country.”
On May 24, 1990, Bari and Cherney drove through Oakland in her Subaru on their way to a gig. Bari, then 40, a carpenter and union activist who lived in the Northern California mill town of Willits with her two preteen daughters, expected to play her fiddle and give another of her rousing talks in support of timber reform. Cherney, a few years her junior, was an Earth First! troubadour known for his sardonic tunes like “You Can't Clearcut Your Way to Heaven.” The two helped organize 1990's Redwood Summer, a monthslong series of nonviolent protests in support of Proposition 130, a November ballot initiative that would preserve old-growth redwoods — and cost the timber industry a reported $50 billion. The night before, the pair had just finished Redwood Summer plans with Berkeley-based Seeds of Peace, which would provide kitchens and logistics. Near 34th and Park, Bari stomped on the brakes to keep from making a wrong turn. As she did, a powerful motion-activated pipe bomb exploded beneath her driver's-side seat.
Bari nearly died on the spot. The bomb, wrapped in finishing nails, shattered her pelvis and broke her back. Cherney was cut and bruised and temporarily deafened. The blast made a 2-by-4-foot hole in the car's floorboard. Before losing consciousness, Bari begged a nurse to let her die.
THE FIRST THOUGHT OF MANY THAT DAY, INCLUDING ME, was that this was the timber industry's Karen Silkwood. Like Silkwood, who spoke out about safety lapses in the nuclear-power industry and died under mysterious circumstances, Bari and Cherney had both been under death threats from pro-timber goons. Earth First! had drawn heavy criticism during the 1980s for advocating spiking trees with 60-
penny nails to discourage sawing. Bari had almost single-handedly turned Earth First! away from spiking and monkey-wrenching of equipment, recognizing that such dangerous tactics alienated timber and mill workers. Bari, a former shop steward with the Retail Clerks Union and the Postal Workers Union, dreamed of a green-black coalition between environmentalists and workers.
But hatred for meddling Earth First! hippies ran too deep. Bari had previously been run off the road by a logging-truck driver she knew with her two baby girls in the car. She'd been threatened with death on a Fort Bragg radio station, and in phone calls from the pro-timber Yellow Ribbon Coalition. Bari had a collection of mailed death threats, one featuring her picture in the cross hairs of a rifle scope. Many of these had already been presented to the local sheriff and to the FBI. Authorities found another pile of them in the back seat of her Subaru.
The FBI, however, ignored all this and immediately accused Bari and Cherney of blowing themselves up. The bomb exploded at 11:55 a.m. By 12:20 p.m., when Oakland Police Sergeant Michael Sitterud arrived, FBI agents already blanketed the scene. Sitterud testified that the agents “said that these were the type of individuals who would be involved in transporting explosives. They said that these people, in fact, qualified as terrorists.”
Thus began the web of lies, which only got deeper. Ten minutes after he arrived, Sitterud made a police-log entry describing Bari and Cherney as “Earth First leaders suspected of Santa Cruz power pole sabotage, linked with federal case of attempted destruction of nuclear power plant lines in Arizona.”
Special Agent Frank Doyle, a 20-year veteran bomb expert with the FBI Terrorist Squad out of San Francisco, oversaw the collection of evidence at the scene. Doyle ran the FBI's “Bomb School,” a law-enforcement event held for years on the property of Louisiana-Pacific Lumber Co., one of the firms that paid millions to defeat Prop. 130. One month earlier, Doyle had shown officers and timber security guards how to build and detonate car bombs identical to the Oakland bomb. Four of the first officers on the scene had participated in that training.
Doyle would later testify that there had been no investigation of Bari and Cherney that would have led him to portray either one as a terrorist, but in fact there were, and famously. Bari's name came up as someone affiliated with Earth First! in government documents about the allegedly “terrorist” downing of power lines in Santa Cruz in April 1990. I'd already written about the 1989 FBI Arizona operation called “THERMCON” (for “Thermite Conspiracy”), in which FBI Agent Michael Fain infiltrated Earth First! and led a sting operation, coaxing activists to use explosives to fell high-tension power lines (which they refused to do). The documents, obtained under the Freedom of Information Act, show THERMCON was still an active file during the Oakland bombing, and documents from February through May of 1990 were marked “missing from the file.”
THE CRIMINAL CASE AGAINST BARI AND CHERNEY MOVED fast. As Bari underwent emergency surgery hours after the bombing, the police filed papers arresting them on suspicion of possessing explosives. The Oakland police and the FBI issued a series of press releases heralding the arrest, drilling home the Earth First!bomb connection. This went on for months, with both agencies going public with each shred of evidence against Bari and Cherney, all of which turned out to be false. Local and national papers printed everything they said.
In the meantime, the feds ransacked both Earth First! and the Bay Area environmentalist community. Agents stormed the Seeds of Peace house, as activists sat on the lawn in handcuffs and watched their computers, notes and address books being carted off. Phone records led agents to more than 500 people who had made inquiries into Redwood Summer organizing, including the media.
On the scene of the bombing, the FBI fed Oakland police two false theories that the agencies used to obtain search warrants. One was that Bari had hidden the bomb with her guitar in the rear foot well. The other was that two bags of nails found in the car “matched” those in the bomb. The jury found that the agencies knew both theories to be wrong, leading to illegal warrants and false arrests. The theories were disproved in part by the FBI's own experts, and Doyle, in particular, was shown to be lying. Months after the bombing, FBI agents obtained a second search warrant for Bari's house and found finishing nails that they claimed, in another dramatic press release, had come from the same batch of only “200 to 1,000 nails” found on the bomb. In court, it was revealed that the batch consisted of several million nails and were not a match at all.
WHILE STILL IN THE HOSPITAL, BOTH BARI AND CHERNEY gave the FBI and Oakland police the names of people and a right-wing vigilante group they believed to be behind the death threats. They were never investigated. Seven weeks after the bombing, the Alameda County District Attorney's Office dropped all charges against the pair, citing lack of evidence, and Bari sued.
The FBI, it seems, achieved its purpose long ago: Agents connected Earth First! and Judi Bari with the bombing in the minds of the public. This was later cited as a key to the narrow defeat of Prop. 130. Now, many years later, a jury finds that the FBI violated Bari and Cherney's First Amendment rights by destroying them in the press, and violated the Fourth Amendment by embarking on a course of illegal searches and false arrests. What popular domestic issue will be silenced next — perhaps in the name of homeland security? Judi Bari's bomber remains at large.
Larry Ellison and Oracle as Covert CIA operatives - exploiting foreign databases
Mr. and Mrs. David Leslie Milne of 417 Park Avenue
SPC James Coon balad Iraq April 2007
Defund Police Police better refund our fines
Bono, Silverlake, Wilson Sonsini, Salesforce, PeopleSoft
Stanford University Law School - Securities Class Action Clearinghouse |
BRUCE G. VANYO, State Bar # 060134
LAURIE B. SMILAN, State Bar # 116740
DAVID PRIEBE, State Bar # 148679
MICHELE E. ROSE, State Bar # 154656
SUSAN BOWER, State Bar # 173244
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
Telephone: (650) 493-9300
Attorneys for Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
DAVID T. O'NEAL TRUST, DATED 4/1/77 Plaintiffs, v. VANSTAR CORPORATION, RICHARD H. Defendants. | ) | CASE NO.: C-98-0216-MJJ CLASS ACTION MEMORANDUM OF POINTS Date: November 3, 1998 |
INTRODUCTION
Plaintiffs have moved to strike certain documents submitted with Vanstar's motion to dismiss: Vanstar's 1997 Form 14A ("Form 14A") and a calculation of stock sales by Vanstar's officers and directors ("Appendix"), which is taken directly from publicly filed SEC documents upon which plaintiffs rely. Plaintiffs argue that these documents are "outside" the Complaint, and therefore cannot be considered on a motion to dismiss. Plaintiffs also argue that the documents constitute inadmissible hearsay.
Plaintiffs' arguments are ill-founded. Under the Private Securities Litigation Act of 1995, plaintiffs must plead specific facts giving rise to a strong inference of each defendant's required state of mind (i.e., scienter), or the Complaint must be dismissed. Plaintiffs attempt to plead scienter by arguing that the individual defendants' stock sales were unusual or suspicious. The documents in question simply assist the Court in analyzing the judicially noticeable information provided by plaintiffs. Courts in securities class action cases routinely take judicial notice of SEC filings -- including documents which demonstrate that stock sale allegations are false -- and will dismiss allegations which are inconsistent with the filings. It is contrary to the Reform Act, and palpably unfair, for plaintiffs to claim that the documents must be excluded from the Court's consideration, while at the same time averring that their stock sale allegations taken from the same documents, which may be judicially noticed, give rise to a strong inference of scienter. Thus, the Court should deny plaintiffs' motion; or, if the Court is inclined to strike these documents, it should also strike plaintiffs' stock sale allegations.
Moreover, the documents are not "outside" the Complaint as they deal directly with allegations in the complaint. The law is clear that the mere fact that plaintiffs neglect to attach documents integral to their complaint does not render such documents "outside" a complaint, nor preclude the Court from considering the documents in a motion to dismiss. The Form 14A reveals the stock ownership of Vanstar's most senior management, ownership that is at the heart of plaintiffs' scienter allegations. Likewise, the Appendix was prepared directly from the Forms 3 and 4 filed with the SEC, which plaintiffs clearly used in drafting the Complaint (there is no other ultimate source from which plaintiffs could have obtained otherwise confidential information regarding the individual defendants' stock sales and holdings). Plaintiffs cannot seriously complain about a chart that was prepared to assist the Court in analyzing judicially noticeable information that was first provided by plaintiffs.
Plaintiffs' hearsay objection also is misplaced. Plaintiffs waived any such objection by choosing to include in their Complaint stock sale allegations in the first instance. Moreover, to the extent the Form 14A is referenced for the truth of the matters asserted therein, it is admissible under the business records exception to the hearsay rule. Finally, as plaintiffs themselves admit, the documents at issue were not offered solely for their truth value: rather, they are also offered to indicate the individual defendants' state of mind., i.e., were they selling or retaining significant portions of their net worth in the securities of the Company.
ARGUMENT
I. THE COURT MAY TAKE JUDICIAL NOTICE OF THE DOCUMENTS
A. Courts Routinely Take Judicial Notice of SEC Filings.
When deciding motions to dismiss, courts routinely take judicial notice of, or otherwise consider, documents other than the complaint.1 Indeed, the great weight of authority holds that SEC filings are properly considered when deciding a motion to dismiss, and that those filings are properly the subject of judicial notice. See, e.g., Wenger v. Lumisys, Inc., 2 F. Supp. 2d 1231, 1240 n.8 (N.D. Cal. 1998) (denying plaintiff's motion to strike documents filed with the SEC, specifically Form 4s showing the actual number of shares sold during the class period); In re Silicon Graphics Securities Lit., 970 F. Supp. 746, 758 (N.D. Cal. 1997) (court may take judicial notice of the contents of relevant public disclosure documents required to be filed with the SEC) (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991)); In re Gupta Corp. Sec. Litig., 900 F. Supp. 1217, 1228 (N.D. Cal. 1994) ("[T]he court may review 'public disclosure documents required by law to be and which actually have been filed with the SEC.'") (quotation omitted); Shaw v. Digital Equipment Corp., 82 F.3d 1194, 1206 n. 13, 1220 (1st Cir. 1996) ("In deciding a motion to dismiss a securities action, a court may properly consider the relevant entirety of a document integral to or explicitly relied upon in the complaint, even though not attached to the complaint, without converting the motion into one for summary judgment."); Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1018 (5th Cir. 1996) ("When deciding a motion to dismiss a claim for securities fraud on the pleadings, a court may consider the contents of relevant public disclosure documents which (1) are required to be filed with the SEC and (2) are actually filed with the SEC.").2
B. Courts May Take Judicial Notice of Documents "Outside" the Complaint.
Plaintiffs also assert that the subject documents do not fall within the scope of judicial notice because they are "outside" the Complaint. See Plaintiffs' Brief at 3-4. It is well settled, however, that a document need not be attached to a complaint in order for a court to properly consider it when deciding a motion to dismiss. In re Syntex Corp. Sec. Litig., 95 F.3d 922, 926, 929 (9th Cir. 1996) ("When deciding a motion to dismiss, a court may consider the complaint and 'documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading.'") (quoting Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994)).3
Here, the authenticity of the subject documents is not truly disputed, and their contents are integral to the Complaint. The Form 14A reveals the stock ownership of Vanstar's senior most management and plaintiffs have made this ownership a central issue of the Complaint. Likewise, the Appendix was prepared directly from the Forms 3 and 4 which are the exact documents plaintiffs used to draft the Complaint.4 All that Defendants have done here is present the same judicially noticeable, integral information plaintiffs have included in their Complaint in such a way as to assist the Court.5
II. THE SUBJECT DOCUMENTS ARE NOT INADMISSIBLE HEARSAY
Plaintiffs contend that even if the exhibits are properly the subject of judicial notice, the Court may not consider them because they may not be submitted to disprove scienter and because they constitute hearsay. See Plaintiffs' Brief at 4-6. Plaintiffs similarly argue that cases which have judicially noticed SEC filings have only taken judicial notice of the fact that the documents were filed or where the misrepresentations were contained in those documents. Id. at 4-5. For three reasons, plaintiffs are wrong.
First, as shown above, plaintiffs themselves have alleged the truth of the matters asserted in the documents. Their Complaint alleges that the individual defendants sold particular amounts of stock, at particular prices, on particular dates. It also alleges that the individual defendants sold particular (albeit inflated) percentages of their stock holdings. Complaint ¶¶ 138-141. Thus, plaintiffs cannot complain if and when Defendants refer to the same SEC filings, or information extracted from the filings for the truth of the matters asserted therein. This is precisely the reason that courts have taken judicial notice of stock sales in securities cases. See Silicon Graphics, 970 F. Supp. at 759 ("Having raised questions about defendants' stock sales, [and] based their allegations on defendants' SEC filings . . . plaintiffs can hardly complain when defendants refer to the same information in their defense."); Wenger at 1240 n.8 (denying plaintiff's motion to strike documents filed with the SEC, specifically Form 4s showing the actual number of shares sold during the class period); see also United States v. Anderson, 532 F.2d 1218, 1229 (9th Cir. 1976) (defendant who introduced hearsay statement waived objection).
Second, the exhibits are offered not only for their truth value, but also to demonstrate the state of mind of the individual defendants. As such, they are excepted from the hearsay rule. Fed. R. Evid. 803(3). Plaintiffs admit that these documents would demonstrate state of mind, if accepted by the Court. Pl. Br. at 6. Plaintiffs attempt to plead the individual defendants' state of mind by asserting that each of them intended to sell unusual amounts of Vanstar stock, rather than retaining his or her shares and stock options. Thus, the documents are relevant to plaintiffs' state of mind theory.
Third, the Form 14A is admissible under the business records exception to the hearsay rule. See Fed. R. Evid. 803(6). For a memorandum or record to be admissible as a business record, it must be: (1) made by a regularly conducted business activity; (2) kept in the "regular course" of that business; (3) "the regular practice of that business to make the memorandum, and (4) made by a person with knowledge or from information transmitted by a person with knowledge." Clark v. City of Los Angeles, 650 F.2d 1033, 1036-37 (9th Cir. 1981) (quoting Fed. R. Evid. 803(6). The Form 14A was prepared by persons with knowledge of the facts contained therein, kept in the ordinary course of Vanstar's business, and required by law to be prepared and submitted to the SEC. Moreover, Vanstar relied on the preparation of those documents in its business; it was required by law to disclose proxy and officer stock sale information. Accordingly, all of the requisites of the business records exception are satisfied. See United States v. Childs, 5 F.3d 1328, 1333 (9th Cir. 1993) (documents properly admitted as business records notwithstanding defendant's objections that the circumstances surrounding preparation of documents indicated a lack of trustworthiness, and that documents were not made in regular course of business); United States v. Bland, 961 F.2d 123, 126-27 (9th Cir. 1992) (firearm registration form required by law properly admitted as business record; "the person completing [the form] had knowledge of the transaction at the time it occurred and [the document] was maintained as a regularly conducted business activity as required by law."); Keogh v. Commissioner of Internal Revenue, 713 F.2d 496, 499 (9th Cir. 1983) (card dealer's diary containing personal financial records properly admitted as business record; "Witlock's diary, even though personal to him, shows every indication of being kept 'in the [ordinary] course of' his own 'business activity,' 'occupation, and calling.' . . . The reliability usually found in records kept by business concerns may be established in personal business records if they are systematically checked and regularly and continually maintained.").
III. IT WOULD BE CONTRARY TO THE REFORM ACT TO STRIKE THE DOCUMENTS
Under the heightened pleading requirements of the Reform Act, plaintiffs must allege facts sufficient to create a strong inference of scienter on the part of each defendant. See Securities Exchange Act of 1934 §§21D(b)(2), (3), 15 U.S.C. §§78 u-4(b)(2), (3). Plaintiffs attempt to meet this burden to plead the individual defendants' state of mind by arguing that those persons engaged in unusual or suspicious trading. Plaintiffs' Mem. of Points & Auth. in Opposition to Defendants' Motion to Dismiss at 19-21. Nevertheless, plaintiffs contend that the actual stock sale information included in the Defendants' exhibits should not be considered.
Plaintiffs are wrong. As the Reform Act imposes an affirmative duty on plaintiffs to present a complaint that provides a strong inference of scienter, it is only logical that "plaintiffs bear the burden of showing that any such sales are in fact unusual," when they rely on stock sale allegations to plead scienter. In re Health Mgm't Sys., Inc. Sec. Litig., No. 97-CIV-1865(HB), 1998 U.S. Dist. LEXIS 8061, at *18 (S.D.N.Y. May 28, 1998). Thus, plaintiffs cannot merely plead their conclusion that the stock sales are "suspicious" or "unusual." Instead, they must plead information indicating (1) the number of shares and options each defendant retained, and (2) each defendants' past pattern of sales, so that the "suspicious" or "unusual" nature of the sales in question can be discerned. Securities Exchange Act of 1934 §§21D(b)(1), (2), 15 U.S.C. §§ 78u-4(b)(1), (2) (Reform Act requires plaintiffs to set forth the factual basis of allegations made on information and belief).
Thus, the Court is entitled to take judicial notice of those documents to determine if, as the Vanstar Defendants allege, they refute plaintiffs' allegations. In re Silicon Graphics, Inc. Sec. Litig., 970 F. Supp. 746, 751 (N.D. Cal. 1997 ("[T]he court need not accept as true allegations that contradict facts that have been judicially noticed."). Conversely, if the exhibits are not considered, neither should plaintiffs' stock sale allegations. See, e.g., Duncan v. Pencer, 1996 WL 19043, at *12 (S.D.N.Y. 1996) (absent stock sale information, no inference of unusual or suspicious sales may be drawn).
CONCLUSION
For the reasons set forth above, the motion to strike should be denied in its entirety; or, if the Court is inclined to strike the Subject Documents, it should also strike plaintiffs' stock sale allegations.
Dated: October __, 1998 | WILSON, SONSINI, GOODRICH & ROSATI By:___________________________________ |
1 See, e.g., Kottle v. Northwest Kidney Centers, 146 F.3d 1056, 1064 n. 7 (9th Cir. 1998) (declining to treat Rule 12(b)(6) motion as summary judgment motion despite district court's consideration of affidavit whose "sole purpose was to put before the Court certain public records of the Department" for which court could take judicial notice); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir. 1988) (declining to treat Rule 12(b)(6) motion as summary judgment motion despite district court's consideration of declaration requesting judicial notice of certain matters in public record, including other related proceedings).
2 Plaintiffs' citation to In re Sun Microsystems, Inc. Sec. Lit., No. C-89-20351, 1990 U.S. Dist. LEXIS 18740 (N.D. Cal. Aug. 20, 1990), in support of their argument that the Court may not take judicial notice of the documents in question is more than a little misleading: the Court in that case declined to take judicial notice of certain SEC filings because the relevant SEC filings already were attached to the complaint by plaintiffs, and hence no judicial notice of those documents was necessary. Id. at *6. It is also curious that plaintiffs would cite Haltman v. Aura Systems, Inc., 844 F. Supp. 544, 550 (C.D. Cal. 1993), as the Court in that case merely decided that it could dismiss plaintiffs' claims without the necessity of reviewing the documents submitted for judicial notice.
3 See also In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1405 n. 4 (9th Cir. 1996) ("[D]ocuments whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading may be considered in ruling [under] Rule 12(b)(6) Motion to Dismiss.") (quotation omitted); Fecht v. Price Co., 70 F.3d 1078, 1080 n.1 (9th Cir. 1995); In re Verifone Sec. Litig., 11 F.3d 865, 868 n.2 (9th Cir. 1993); Branch, 14 F.3d at 453 ("The leading commentators state that 'when [the] plaintiff fails to introduce a pertinent document as part of his pleading, [the] defendant may introduce the exhibit as part of his motion attacking the pleading.'") (quoting 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil ' 1327, at 762-63 (2d ed.1990)).
4 Plaintiffs admit that they reviewed Vanstar's SEC filings in drafting their Complaint. Complaint ¶ 160. In any event, any contention that the stock trading data alleged in the Complaint was obtained from sources other than Forms 4s is highly implausible (and no such other sources are disclosed). If Vanstar and its officers had not been required to disclose their trades and stock holdings in the SEC filings, the information would be protected from disclosure by the Article I of the California Constitution. Silicon Graphics, 970 F. Supp. at 758 (the trading "allegations can be derived only from the[] publicly-filed documents," any credible financial publications themselves must derive information concerning the personal financial affairs of executives from the SEC filings).
5 Nor may plaintiffs contend that they genuinely dispute the accuracy of the exhibits at issue. The purpose of judicial notice is to avoid unnecessary costs associated with establishing a fact that "is not really disputable." 1 Weinstein's Evidence ¶ 201[03] at 201-24 (1996). Courts have rejected such attempts to circumvent the principles of judicial notice. See Silicon Graphics, 970 F. Supp. at 758 (rejecting theory where plaintiffs' challenge to accuracy of SEC forms submitted by the defendant was "weak," and there was no evidence presented which would cast doubt on those filings). Moreover, the Ninth Circuit has held that judicial notice may be taken of matters less trustworthy than SEC filings, where the matter is "capable of sufficiently accurate and ready determination." In Ritter v. Hughes Aircraft Co., 58 F.3d 454 (9th Cir. 1995), the Court held that the district court properly took judicial notice of widespread layoffs at Hughes Aircraft based on a newspaper article: "judicial notice of layoffs at Hughes was not an abuse of discretion [because] [t]his is a fact which would be generally known in Southern California and which would be capable of sufficiently accurate and ready determination." Id. at 458-59.
Source: File to epost from Wilson Sonsini Goodrich & Rosati
The Rape of the Redwoods riding the Southern Pacific Depot Murders
The Rape of the Redwoods
follow the money into the Redwoods from the corporate Raiders over at computerland who sold their properties and then later the employees lost their retirement when the public company found out they had been taken advantage of.The murderous Mormons that likely killed Kobe
Mitt Romney’s business career seems to dovetail neatly with his Mormon faith
- Josh Richman
-
PUBLISHED: | UPDATED:
- Categories:News
“There’s nothing in Mitt Romney’s record that suggests that his financial or business decision-making have been motivated by anything other than bottom-line considerations. To be fair: As a capital manager, that’s his job,” said Joanna Brooks, a San Diego State literature professor who publishes the “Ask Mormon Girl” blog.
Modern Mormon communities “have come to view financial success as an inherent good without necessarily having the same conversations about how money is made, as may take place in other faith traditions,” Brooks said.
It’s a more profit-oriented, value-neutral approach to financial decisions, she said: Money is consecrated in the act of tithing and other donations to the church, and “how that money is made is less of a religious preoccupation,” she said. That’s been particularly true as the Mormon church grew dramatically in the past 50 years, which required considerable money.
Patrick Mason, chairman of Mormon studies at Claremont Graduate University in Southern California, agreed that “Romney is almost prototypical of the majority of modern American Mormons.” The Church of Jesus Christ of Latter-day Saints — which in its early years embraced communal economics and criticized cutthroat business practices — “embraced pro-market American capitalism” in the late 19th century as part of its attempt to assimilate into society, he said.
The Mormon ethics of self-reliance, accountability and hard work lent themselves well to that economic ethos, he said. “It’s a mistake to say wealth equals God’s favor, but it’s not a surprise when God does bless you with wealth when you’re living right.”
Yet while there’s a clear expectation that faithful Mormons must contribute some of their assets to building God’s kingdom through their church, “Mormonism has never developed a real social ethic as opposed to Catholic social teaching or the social gospel that’s in Protestantism,” Mason said. Mormons aren’t unconcerned with social welfare, and acts of individual charity are important, he said, but “it largely is secondary; it doesn’t define what the gospel is or how people go about their lives.
“I do think there’s a strong element of libertarianism … within Mormon thought along these lines. It’s very much a laissez-faire approach,” he said. “It gives Mormons and potentially Romney an added layer of confidence, of assurance that this is not just good economics but it’s good religion, too.”
Rick Kopf of Alamo, who directs the Latter-day Saints’ Bay Area Public Affairs Council, said charity for the less fortunate in the community and humanitarian projects abroad are a huge part of Mormon practice.
Mormonism teaches that “materialism can be a huge burden to a person. … It’s how they use it that’s very important,” he said. “We encourage hard work, we encourage people to be successful but to do it for the right means. We’re not out there trying to be rich for the sake of being rich.”
Personally, Kopf said, “I would hope that any political candidate who’s a member of the church would live by the values of the church would be true and honest and virtuous and family-oriented.”
Evan Chase, a staffer at the California Election Forum website, which offers election recommendations for Christian voters, said he would like to hear Romney say more about how his Mormon faith informs his fiscal and economic policies.
“I haven’t heard him communicate that very much,” he said. “That affirms my interest in voting for Mitt Romney. In the evangelical community, those are strengths; those are American strengths.”
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