Retek Inc.

Shareholders of Retek Inc. attempted to enjoin a merger between Retek and Oracle Corporation using a class action complaint that sought to prevent the cash tender offer by which the merger was to be accomplished. The plaintiffs alleged a variety of fiduciary duty claims, stating Retek and its directors manipulated financial results, failed to disclose material information regarding the fairness opinions upon which the board had relied in approving the merger, and approved the merger to further their own interests. The complaint was dismissed with prejudice and the plaintiffs received nothing. Retek’s merger with Oracle was accomplished successfully.

Siebel Systems

In parallel federal and state securities actions against Siebel Systems, Orrick obtained the successful dismissals of both a federal securities class action alleging securities fraud and a state shareholder derivative action alleging breach of fiduciary duties against its directors and officers. In the federal class action, the shareholders asserted claims under Sections 10(b), 20(a) and 20A of the Securities Exchange Act of 1934, alleging that Siebel made misrepresentations regarding its customer satisfaction levels and a product release. The state derivative action involved claims for breach of fiduciary duties based on the same allegations.

Sina Corporation (China)

Based on Orrick’s motions, the United States District Court for the Southern District of New York dismissed a consolidated securities class action complaint filed against SINA Corporation, a NASDAQ-listed, China-based Internet company, without leave to amend, effectively ending a set of shareholder lawsuits that had been filed against the company in 2005.

Thane International, Inc.

A complete defense verdict for Thane International, a global direct consumer marketing company, and its directors and officers, in the only known securities class action trial that has gone to verdict in the last decade under the Securities Act of 1933. Following a merger between Thane and Reliant Interactive Media Corporation, the class action lawsuit was filed by Reliant shareholders who alleged Thane had promised it would list the combined company on the NASDAQ's National Market System, but instead it traded on the less prestigious and perceived riskier over-the-counter market.

Securities Class Actions

Our Securities Litigation and Regulatory Enforcement Group is adept at all types of resolutions. We get walkaways, win motions to dismiss, settle for small amounts and are one of very few practices in the nation whose attorneys have actually taken securities class actions to trial and won.

The group has also earned a reputation for exceeding clients' expectations in all phases of litigation. In fact, in the last five years, we have:

• successfully defended public companies in countless securities class actions
• secured numerous voluntary dismissals
• obtained scores of dismissals throughout the country
• achieved defense verdicts in high-profile securities class action trials
• consistently delivered settlements earlier than - and at amounts far below - the national average
• faced all types of securities claims - from accounting fraud to hyped projections

Walkaways

Some cases can be disposed of early by our convincing plaintiffs to dismiss the complaint voluntarily and without payment ("walkaways"). Although walkaways are increasingly difficult to obtain, Orrick's Securities Litigation Group has achieved many walkaways in 1933 and 1934 Act cases.

Selected Walkaways

• Behrens v. Cygnus Inc.
• Bergen Capital Trust Securities Litigation
• Citrix Systems Securities Litigation
• Clarent Corp. Securities Litigation
• Hunt v. Molina Healthcare Inc., et al.
• In re Agile Derivative Litigation
• Intel Corp. Securities Litigation
• Lippett v. Raymond James Financial
• Olson v. Salomon Smith Barney
• Onyx Software Corp. Securities Litigation
• Triteal Corp. Securities Litigation

Motions to Dismiss

By raising the standard for pleading securities fraud, the Private Securities Litigation Reform Act of 1995 gives companies an unusual opportunity to knock out a case early. Our securities litigators know how to capitalize on that opportunity. We have won motions to dismiss in courts throughout the United States and in more than 80 percent of our cases, compared to an industry average of approximately 30 percent.

Selected Successful Motions to Dismiss

• Adobe Systems Securities Litigation
• AnswerThink Securities Litigation
• Ascend Communications Securities Litigation
• AutoDesk Securities Litigation
• Bay Networks Securities Litigation *
• FPA Securities Litigation *
• Cadence Design Systems Securities Litigation
• Chan v. Orthologic*
• Citrix Systems Securities Litigation *
• Clarent Corp. Securities Litigation
• Fritz Companies Securities Litigation *
• The GAP Securities Litigation *
• Gillam v. PG&E Corp.
• Ikanos Securities Litigation *
• Intel Corp. Securities Litigation
• McKesson HBOC Securities Litigation .
• Metricom Securities Litigation
• Nike Securities Litigation
• nVidia Securities Litigation
• Oak Technology Securities Litigation
• Onyx Software Corp. Securities Litigation
• Prepaid Legal Services Securities Litigation
• Siebel / SCOPAS Merger Litigation
• Sina Corporation Securities Litigation
• TouchStone Software Securities Litigation *
  

*(Dismissed with prejudice)

Because mounting distrust of corporate America is affecting judges' decisions when making close calls on motions to dismiss, our expertise now more than ever is critically important.

Settlements

Credibility with plaintiff's lawyers translates directly into favorable early settlements for the defense. Our win rate on motions to dismiss and our proven ability to try the cases that survive these motions, give our team this credibility. Not only do we have the experience to accurately evaluate the risk of a case on the front end, we also have close working relationships with the D&O insurers who normally contribute to a settlement. As a result, the settlements our securities litigators negotiate are less than half the national average.

Trials

Although few securities cases have actually gone to trial, all trends indicate that there will be more trials in the future. More immediately, a credible trial threat often proves decisive in resolving securities class actions on favorable terms to our clients. The public is more inclined than ever to believe that companies and their officers and directors have engaged in misconduct, and the prospect of a bet-the-company jury trial gives plaintiffs enormous settlement leverage. This leverage can be effectively reversed by demonstrating that a company is ready, willing, and able to take the case to trial – and win.

Orrick's securities litigators have extensive jury trial experience. We have successfully tried two of the six major public company securities class actions that have gone to a jury trial in the last five years, as well as other securities class actions. The plaintiffs' securities class action bar knows that we can, and will, take them to trial, and that we will win.

Orrick's securities litigators obtained complete defense verdicts in two high profile stock drop class action trials arising out of the demise of California computer manufacturer Everex Systems, Inc. Both trials centered on allegations of accounting fraud, false press releases and SEC filings, insider trading, and misconduct by senior officers and directors. We have also achieved significant trial victories on behalf of major securities firms and in a variety of other securities matters.

Select Trials

• Everex Securities Litigation I - In 1998, Orrick lawyers obtained a defense verdict in the first securities class action trial in the Ninth Circuit since a jury returned a $100 million verdict against Apple Computer in 1991. At the end of plaintiffs' case, the court directed a verdict for the defense on all claims. The case was remanded for a second trial after the SEC filed an amicus brief in support of plaintiffs' appeal and the judgment was reversed by the Ninth Circuit Court of Appeals.
• Everex Securities Litigation II - The second Everex trial commenced amid the national furor over Enron and highly publicized accounting scandals at several other companies. Adding to this already hostile environment was the fact that during the trial, one of the plaintiffs' accounting experts appeared on national television to comment on pervasive accounting abuses throughout corporate America. Plaintiffs were given free reign to present evidence of accounting fraud, insider trading and other alleged misconduct. After hearing six weeks of testimony from experts and other witnesses (including Everex's former officers, directors and outside auditors) and being presented with voluminous documentary evidence, the federal court jury returned a unanimous defense verdict. The jury specifically found that there was no fraud, and that the company's financial reportings were not misstated.
• Thane International, Inc. – In 2005, Orrick obtained complete defense verdict for Thane International, a global direct consumer marketing company, and its directors and officers, in the only known securities class action trial that has gone to verdict in the last decade under the Securities Act of 1933. Following a merger between Thane and Reliant Interactive Media Corporation, the class action lawsuit was filed by Reliant shareholders who alleged Thane had promised it would list the combined company on the NASDAQ's National Market System, but instead it traded on the less prestigious and perceived riskier over-the-counter market. This case was named a "Top Defense Verdict" by the Daily Journal.
• Ferriera v. Quik Stop Markets - We obtained a defense verdict, after a six-week jury trial, in favor of a franchisor charged with fraud and violations of the California Corporate Securities Act.
• Golden v. A.G. Becker - We successfully represented AG Becker in a three-week federal court trial involving securities fraud arising out of multiple transactions in fixed income government securities.
• Gary Thompson v. Alan Miller Jr. - We obtained a defense verdict, after a nine-week jury trial, on claims of fraud, constructive fraud, concealment, elder abuse and violations of the California Corporate Securities Act.
• SEC v. Price Waterhouse - We successfully defended Pricewaterhouse Coopers LLP (formerly Price Waterhouse) in the first SEC enforcement action to go to trial.