760970.1
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
IN RE: BROOKS AUTOMATION, INC.,
SECURITIES LITIGATION
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Master File No. 06-CA-11068 RWZ
THIS DOCUMENT RELATES TO:
ALL CASES
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MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY
APPROVAL OF SETTLEMENT, CONDITIONAL CERTIFICATION OF CLASS,
APPROVAL OF NOTICE PLAN, AND
SETTING OF SETTLEMENT FAIRNESS HEARING
LIEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP
Steven E. Fineman
Daniel P. Chiplock
780 Third Avenue, 48th Floor
New York, NY 10017
Telephone: (212) 355-9500
Facsimile: (212) 355-9592
LIEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP
Richard M. Heimann
Michael W. Sobol (BBO # 555519)
275 Battery Street, 30th Floor
San Francisco, CA 94111
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
Counsel for Lead Plaintiff Los Angeles County
Employees Retirement Assocation and named
plaintiff Sacramento County Employees’
Retirement System
Dated: June 24, 2008
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TABLE OF CONTENTS
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I. PRELIMINARY STATEMENT ....................................................................................... 1
II. INTRODUCTION ............................................................................................................. 1
III. FACTUAL AND PROCEDURAL BACKGROUND....................................................... 2
A. Description of the Action....................................................................................... 2
B. Discovery ............................................................................................................... 5
C. Mediation ............................................................................................................... 6
D. Reasons for the Settlement..................................................................................... 7
IV. ARGUMENT..................................................................................................................... 8
A. Plaintiffs’ Motion for an Order Preliminarily Approving the Settlement
Should Be Granted................................................................................................. 8
B. The Proposed Class Meets the Prerequisites for Class Certification under
Rule 23(a)............................................................................................................. 10
1. Numerosity............................................................................................... 11
2. Commonality............................................................................................ 12
3. Typicality ................................................................................................. 14
4. Adequacy ................................................................................................. 15
C. The Proposed Class Satisfies the Requirements of Rule 23(b) – Common
Questions of Law Predominate and A Class Action is Superior to Multiple
Individual Actions................................................................................................ 16
D. The Proposed Form and Method of Class Notice are Appropriate and
Satisfy the Requirements of Rule 23. .................................................................. 17
V. PROPOSED SCHEDULE ............................................................................................... 19
VI. CONCLUSION................................................................................................................ 20
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CASES
Abelson v. Strong,
1987 WL 15872 (D. Mass. July 30, 1987)................................................................................ 14
Adver. Specialty Nat’l. Ass’n. v. FTC,
238 F.2d 108 (1st Cir. 1956)..................................................................................................... 12
Amchem Prods. v. Windsor,
521 U.S. 591 (1997)............................................................................................................ 10, 16
Bussie v. Allmerica Financial Corp.,
50 F. Supp. 2d 59 (D. Mass. 1999) ............................................................................................. 9
Duhaime v. John Hancock Mut. Life Ins. Co.,
177 F.R.D. 54 (D. Mass. 1997)................................................................................................. 11
Durett v. Hous. Auth. Of City of Providence,
896 F. 2d 600 (1st Cir. 1990)...................................................................................................... 8
Grace v. Perception Technology Corp.,
128 F.R.D. 165 (D. Mass. 1989)................................................................................... 10, 12, 13
Guckenberger v. Boston Univ.,
957 F. Supp. 306 (D. Mass. 1997) ............................................................................................ 14
Harris v. Palm Springs Alpine Estates, Inc.,
329 F.2d 909 (9th Cir. 1964) .................................................................................................... 12
Ikon Office Solutions, Inc. Sec. Litig.,
194 F.R.D. 166 (E.D. Pa. 2000)................................................................................................ 18
In re AremisSoft Corp. Sec. Litig.,
210 F.R.D. 109 (D.N.J. 2002)................................................................................................... 19
In re Bank of Boston Corp. Sec. Litig.,
762 F. Supp. 1525 (D. Mass. 1991) .................................................................................... 14, 15
In re Brooks Automation, Inc. Sec. Litig.,
2007 WL 4754051 (D. Mass. Nov. 6, 2007) .............................................................................. 5
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In re Cabletron Sys., Inc. Sec. Litig.,
239 F.R.D. 30 (D. N.H. 2006) .................................................................................................. 19
In re First Commodity Corp. of Boston Customer Accounts Litigation,
119 F.R.D. 301 (D. Mass. 1987)............................................................................................... 11
In re Gen. Motors Corp. Pick-Up Truck Fuel Tanks Products Liab. Litig.,
55 F.3d 768 (3d Cir. 1995) ......................................................................................................... 9
In re Initial Pub. Offering Sec. Litig.,
226 F.R.D. 186 (S.D.N.Y. 2005) ................................................................................................ 9
In re Lupron Marketing and Sales Practices Litig.,
228 F.R.D. 75 (D. Mass. 2005)............................................................................................. 9, 13
In re Lupron Marketing and Sales Practices Litig.,
345 F. Supp. 2d 135 (D. Mass. 2004) ......................................................................................... 9
In re New England Mut. Life Ins. Co. Sales Practices Litig.,
183 F.R.D. 33 (D. Mass. 1998)................................................................................................. 13
In re Prudential Sec. Inc. Ltd. P’ships Litig.,
163 F.R.D. 200 (S.D.N.Y. 1995) .............................................................................................. 19
Kirby v. Cullinet Software, Inc.,
116 F.R.D. 303 (D. Mass. 1987)........................................................................................ passim
Leech v. Brooks Automation, Inc.,
2006 WL 3690736 (D. Mass. Dec. 13, 2006)............................................................................. 3
McCuin v. Sec’y of Health & Human Serv.,
817 F.2d 161 (1st Cir. 1987)..................................................................................................... 12
Modell v. Eliot Sav. Bank,
139 F.R.D. 17 (D. Mass. 1991)................................................................................................. 15
Mullane v. Central Bank & Trust Co.,
339 U.S. 306 (1950)................................................................................................................. 19
New England Health Care Employees Pension Fund v. Fruit of the Loom Inc.,
234 F.R.D. 627 (W.D. Ky. 2006) ............................................................................................. 19
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Payne v. Goodyear Tire & Rubber Co.,
216 F.R.D. 21 (D. Mass. 2003)................................................................................................. 10
Priest v. Zayre Corp.,
118 F.R.D. 552 (D. Mass. 1988)............................................................................. 10, 12, 13, 14
Rand v. M/A-Com, Inc.,
1993 WL 410874 (D. Mass. July 19, 1993)............................................................................ 8, 9
Randle v. SpecTran,
129 F.R.D. 386 (D. Mass. 1988)......................................................................................... 12, 13
Smilow v. Southwestern Bell Mobile Sys.,
323 F.3d 32 (1st Cir. 2003)....................................................................................................... 16
Swack v. Credit Suisse First Boston,
230 F.R.D. 250 (D. Mass. 2005)............................................................................................... 11
STATUTES
15 United States Code Annotated
§ 78u-4(a)(7)(A)-(F) ................................................................................................................. 18
Securities Act of 1933
Section 11 ..................................................................................................................... 2, 4, 5, 15
Section 12 ............................................................................................................................. 2, 15
Section 12(a) ............................................................................................................................... 4
Section 15 ......................................................................................................................... 2, 4, 15
Securities Exchange Act of 1934
Section 10(b)...................................................................................................................... passim
Section 20(a) ..................................................................................................................... 2, 3, 14
RULES
Federal Rule of Civil Procedure
Rule 12(b) ................................................................................................................................... 5
Rule 23............................................................................................................................... passim
Rule 23(a) .......................................................................................................................... passim
Rule 23(a)(1)....................................................................................................................... 11, 12
Rule 23(a)(2)................................................................................................................. 12, 13, 14
Rule 23(a)(3)............................................................................................................................. 14
Rule 23(a)(4)............................................................................................................................. 15
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Rule 23(b) ........................................................................................................................... 16, 17
Rule 23(b)(3)............................................................................................................................. 16
Rule 23(c)(2)(B) ................................................................................................................. 17, 18
Rule 23(c)(3)(B) ....................................................................................................................... 17
Rule 23(e) ................................................................................................................................... 8
Rule 23(e)(1)....................................................................................................................... 17, 18
Rule 30(b)(6)............................................................................................................................... 6
United States District Court of Masschusetts
Local Rule 7.1............................................................................................................................. 1
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I. PRELIMINARY STATEMENT
Pursuant to Rule 7.1 of the Local Rules for the United States District Court of Massachusetts,
Lead Plaintiff Los Angeles County Employees Retirement Association (“LACERA”) and named
plaintiff Sacramento County Employees’ Retirement System (“SCERS”) (together, “Plaintiffs”)
respectfully submit this Memorandum in support of their Motion for an order: (i) granting
preliminary approval to the proposed settlement as detailed in the Stipulation and Agreement of
Settlement dated June 18, 2008 (the “Settlement”); (ii) conditionally certifying the Class for
purposes of Settlement; (iii) approving the manner of giving notice of the Settlement to the proposed
Class; and (iv) setting a date for the final Settlement Fairness Hearing.
II. INTRODUCTION
The proposed Settlement now before the Court for preliminary approval provides a cash
payment of seven million seven hundred fifty thousand dollars ($7,750,000), plus interest earned
thereon, for the benefit of the Class (as defined below), and resolves all claims asserted by Plaintiffs
against the Defendants (defined below) (collectively, Plaintiffs and Defendants are the “Parties”) in
this Action. Plaintiffs and Lead Counsel Lieff Cabraser Heimann & Bernstein, LLP (“Lieff
Cabraser” or “Lead Counsel”) believe that the Settlement before this Court is in the best interests of
the Class in view of the estimated damages suffered by the Class, as well as both the complexity of
and risks attendant to Plaintiffs’ demonstration that those damages were causally linked to
Defendants’ alleged wrongdoing. Plaintiffs and Lead Counsel accordingly respectfully submit that
the Settlement is fair, reasonable and adequate under the governing standards for evaluating class
action settlements in the First Circuit.
Moreover, certification of the proposed Class is appropriate pursuant to Fed. R. Civ. P. 23,
and the proposed notice program more than satisfies the requirements of due process. Indeed, the
individual and publication forms of notice are consistent with the forms of notice used and routinely
recognized as satisfying due process in securities actions. As set forth below, all prerequisites for
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preliminary approval of the Settlement and conditional certification of the proposed Class have been
met, and Plaintiffs respectfully submit that their Motion should be granted.
III. FACTUAL AND PROCEDURAL BACKGROUND
A. Description of the Action
This action is one of a number of lawsuits that have been filed against publicly-owned
companies over the past two years relating to the alleged improper and undisclosed “backdating” of
company stock options in order to take advantage of troughs in a company’s stock price. Brooks
Automation, Inc. (“Brooks” or the “Company”) was one of the first companies to be publicly
identified by The Wall Street Journal, in an article published in March 2006, as having allegedly
engaged in this practice. In the months following that article, Brooks undertook an internal
investigation which resulted in the Company stating that its reported earnings for the prior six years
could no longer be relied upon, the Company’s former Compensation Committee members resigned,
and the United States Department of Justice (“DOJ”) and the Securities and Exchange Commission
(“SEC”) both launched their own investigations of the Company’s stock option granting practices.
Over the course eight trading days in May 2006, during which time the Company disclosed the
above facts in addition to others concerning its stock option grants, Brooks’ stock price fell by
approximately 20%, to the harm of Brooks’ shareholders.
The first proposed class action on behalf of Brooks’ shareholders, captioned Charles E.G.
Leech, Sr. v. Brooks Automation, Inc., et al., Case No. 06-CA-11068-RWZ (D. Mass.), was filed on
June 19, 2006, asserting claims under Sections 10(b) and 20(a) of the Securities Exchange Act of
1934 (“Exchange Act”) and Sections 11, 12 and 15 of the Securities Act of 1933 (“Securities Act”).
The Exchange Act claims were asserted on behalf of investors who purchased or otherwise acquired
Brooks’ publicly-traded securities between July 25, 2001 and May 22, 2006, inclusive. The
Securities Act claims were asserted on behalf of a subset of the proposed Class (the “Merger
Plaintiffs”) consisting of investors who acquired Brooks shares that were traceable to the merger of
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Brooks with Helix Technologies, Corp. (“Helix”) on or about October 26, 2005 (the “Merger”). The
Securities Act claims specifically alleged that the Joint Proxy/Prospectus and Registration Statement
issued in connection with the Merger contained materially false statements concerning Brooks’
financial results due to backdated stock options. A second proposed shareholder class action,
captioned James R. Shaw v. Brooks Automation, Inc., et al., Case No. 06-CA-11239-RWZ (D.
Mass.), and asserting solely Exchange Act claims, was filed on July 19, 2006.
By order of the Honorable Rya W. Zobel dated December 13, 2006, the Court consolidated
the Leech and Shaw actions, appointed LACERA as the Lead Plaintiff for the proposed Class, and
approved LACERA’s choice of Lieff Cabraser as Lead Counsel. See Leech v. Brooks Automation,
Inc., No. 06-11068-RWZ, 2006 WL 3690736 (D. Mass. Dec. 13, 2006).
On February 9, 2007, Lead Plaintiff filed its Consolidated Amended Class Action Complaint
(the “CAC”), which asserted claims under Section 10(b) of the Exchange Act against Brooks; Robert
J. Therrien (“Therrien”), the Company’s former Chief Executive Officer; Amin J. Khoury
(“Khoury”) and Roger D. Emerick (“Emerick”), who were both members of the Company’s
Compensation Committee and Board; Joseph R. Martin (“Martin”), the Company’s Chairman; and
Ellen B. Richstone (“Richstone”), the Company’s former Chief Financial Officer. LACERA
additionally asserted claims under Section 20(a) of the Exchange Act against these same
Defendants1 (minus Brooks), for, inter alia, their direct participation in and/or control of persons
participating in the scheme to defraud Brooks’ investors into believing (a) that the Company’s
financial reporting during the propsed class period was accurate, and (b) that the Company’s stock
option granting practices, and the reporting and recording of the grants in question, were in
compliance both with the Company’s shareholder-approved stock option plans and with generally
accepted accounting principles (“GAAP”).
1 Defendants Brooks, Therrien, Khoury, Emerick, Martin and Richstone are also referred to collectively as the
“Backdating Defendants.”
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The CAC additionally asserted claims under Section 11 of the Securities Act against the
Backdating Defendants (minus Richstone), PricewaterhouseCoopers, LLP (“PwC”), Robert
Woodbury (“Woodbury”) (the Company’s new Chief Financial Officer) and Edward Grady
(“Grady”) (the Company’s new Chief Executive Officer), and against all of these same defendants
(minus PwC) under Section 15 of the Securities Act, for causing, participating in, and/or controlling
the dissemination of materially misleading statements in the Merger Registration Statement and Joint
Proxy/ Prospectus concerning the Merger. Lastly, the CAC included a claim under Section 12(a) of
the Securities Act against Brooks for making false statements and omissions in the Joint
Proxy/Prospectus related to the Merger.
Between April 9 and 18, 2007, Defendants filed motions to dismiss the CAC. On May 10,
2007, LACERA moved for leave to amend the CAC for the discrete purpose of adding SCERS,
which acquired Brooks shares traceable to the Merger, as an additional named plaintiff for purposes
of litigating the Securities Act claims.2 On May 21, 2007, Defendants Brooks, Martin, Woodbury
and Grady (the “Brooks Defendants”) opposed Lead Plaintiff’s Motion to Amend. PwC followed
with its own opposition to the Motion to Amend on May 24, 2007. Lead Plaintiff filed its
memoranda in opposition to Defendants’ motions to dismiss on May 24, 2007, followed by a reply
memorandum in support of its Motion to Amend on June 21, 2007. Defendants filed reply
memoranda in support of their motions to dismiss between June 22 and 25, 2007. Oral argument on
both Lead Plaintiff’s Motion to Amend and Defendants’ motions to dismiss was heard before the
Hon. Rya W. Zobel on June 26, 2007, whereupon the Court took all matters under advisement.
One month later, on July 25, 2007, the DOJ lodged a criminal indictment against Therrien
stemming from its investigation of the stock options granting practices at Brooks.3 That same day,
2 See Lead Plaintiff LACERA’s Motion to Amend Complaint to Add a Named Plaintiff (and Mem. of Law in
Support), filed May 10, 2007 [Docket Nos. 99, 100] (“Motion to Amend”).
3 The criminal action is captioned United States of America v. Robert J. Therrien, Case No. 07-CR-10238-GAO
Footnote continued on next page
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the SEC filed a civil complaint against Therrien.4 On July 30, 2007, Lead Plaintiff filed a motion for
leave to file a supplemental affidavit in opposition to Defendants’ motions to dismiss, attaching
copies of both the criminal indictment and the SEC’s civil complaint. Defendants Emerick and
Khoury filed a response to this motion on August 13, 2007.
On November 6, 2007, the Court issued its decision, in which it allowed LACERA’s Motion
to Amend, and permitted the bulk of Plaintiffs’ claims to proceed. In re Brooks Automation, Inc.
Sec. Litig., No. 06-11068-RWZ, 2007 WL 4754051 (D. Mass. Nov. 6, 2007). The Court dismissed
certain of Plaintiffs’ claims under Section 10(b) of the Exchange Act against Martin and Richstone,
and under Section 11 of the Securities Act against Martin, Woodbury, Grady and PwC, for failure to
state a claim under Fed. R. Civ. P. 12(b). Id.
On November 30, 2007, Plaintiffs filed their Second Amended Consolidated Class Action
Complaint (“SAC”), which added SCERS as an additional named plaintiff. The remaining
Defendants filed answers to the SAC that same day.
On January 22, 2008, Plaintiffs moved to certify a class of all persons who purchased or
otherwise acquired the publicly traded securities of Brooks during the period from July 25, 2001
through May 22, 2006, inclusive, and were damaged thereby (the “Class”). On February 13, 2008,
the parties jointly moved for the entry of a Stipulated Protective Order governing the exchange of
written discovery. The Court endorsed and entered the Stipulated Protective Order on February 19,
2008.
B. Discovery
Plaintiffs and the Brooks Defendants each served numerous document requests and
interrogatories in early January 2008. On February 4, 2008, Plaintiffs served their written responses
Footnote continued from previous page
(D. Mass.).
4 The SEC action is captioned Securities and Exchange Commission v. Robert J. Therrien, Case No. 07-CA-
11364-RCL (D. Mass.)
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and objections to the Brooks Defendants’ document requests and interrogatories. Plaintiffs
subsequently produced, on February 29 and March 10, 2008, over 4,000 pages of documents to the
Brooks Defendants relating to their investments in Brooks and internal investment guidelines,
among other subjects.
Defendants served their written responses and objections to Plaintiffs’ document requests
between February 6 and 8, 2008. After several meet and confers, the parties agreed to an April 25,
2008 deadline for all Defendants to respond to Plaintiffs’ interrogatories. Between March and April
2008, Defendants produced more than 70,000 pages of documents in hard copy or electronic form to
Plaintiffs, including but not limited to documents that were produced to the SEC as part of its
investigation.
During this same time period, Defendants noticed depositions of LACERA and SCERS
under Fed. R. Civ P. 30(b)(6), and also issued subpoenas to several non-parties, including Plaintiffs’
outside investment managers, as well as Leech and Shaw. Plaintiffs meanwhile served a subpoena
on Brooks’ former General Counsel, the law firm of Brown Rudnick Freed & Gesmer, LLP (now
known as Brown Rudnick Berlack Israels LLP) (“Brown Rudnick”), relating to work done advising
the Company on its stock option practices. The parties also engaged in meet-and-confers and
exchanged lengthy written correspondence, citing extensive legal authority, in connection with all of
the discovery described above. At the time of mediation (described below), both sides were
preparing for (a) motions to compel responses to certain discovery requests that were served on both
the Parties and on non-parties and (b) party and non-party depositions.
C. Mediation
In the midst of the discovery process described above, the Plaintiffs and Brooks began
discussing a possible resolution of the Action. On March 25 and 26, 2008, the Parties participated in
a two-day mediation session with the assistance of the Honorable Nicolas H. Politan (Ret.), United
States District Court Judge for the District of New Jersey, which was preceded by the exchange of
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detailed mediation statements in which the Parties stated their views of both the strengths and
weaknesses of their positions, as well as the provable damages suffered by the proposed Class. The
Parties also made confidential presentations to the mediator, particularly as related to damages. At
the conclusion of two days of intensive arms-length negotiations, the Parties remained in
disagreement over an acceptable settlement figure. Judge Politan then made a mediator’s proposal
for the Action to settle for $7.75 million to the proposed Class. The Parties departed the mediation
without accepting this proposal in order to continue evaluating the strengths and weaknesses of their
respective positions in view of the discovery exchanged to date.
On or about April 4, 2008, the Parties agreed in principle to accept the mediator’s proposal to
settle the Action for $7.75 million, and notified the Court that they had reached a tentative resolution
of the Action. Between that date and April 29, 2008, the Parties negotiated and signed a
Memorandum of Understanding (“MOU”), followed by a Stipulation of Settlement dated June 18,
2008 memorializing the Settlement.
D. Reasons for the Settlement
Plaintiffs have entered into this proposed Settlement with a thorough understanding of the
strengths and weaknesses of Plaintiffs’ claims, in particular the challenges inherent in proving the
“loss causation” element of their Section 10(b) claims. This understanding is based on: (i) review of
Brooks’ public filings, annual reports, and other public statements; (ii) consultations with a damages
expert; (iii) research of the applicable law with respect to the claims asserted in the Action and the
potential defenses thereto; (iv) a review of tens of thousands of Company documents concerning
Brooks’ stock option granting practices; (v) the exchange of information with Defendants both prior
to and over the course of a two-day intensive mediation overseen by a retired federal judge; and (vi)
input from the mediator, the Hon. Nicholas H. Politan (Ret.).
In determining to settle this Action, Plaintiffs have engaged in extensive and intense arm’s-
length negotiations with counsel for Defendants. Lead Counsel has evaluated the proposed
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Settlement of $7.75 million in comparison to the likely result of litigation, in light of the risks,
complexity, expense and duration of the litigation. Lead Counsel has concluded, based on the
analysis of the considerations listed above, that while it is confident in the merits of the Action, (i)
the Settlement described herein confers a substantial benefit upon the Class; (ii) success is not
assured, particularly given the risks and complexity associated with Plaintiffs’ proof of loss
causation; (iii) Defendants have mounted and will continue to mount a vigorous defense on the
merits5; and (iv) the chance that a greater amount could be recovered for Plaintiffs and the Class
does not outweigh the expense and delay that would be involved in prosecuting the Action to trial.
Based upon the consideration of all of these factors, it is the view of both Lead Counsel and
Plaintiffs, who are sophisticated institutional clients, that the Settlement is fair, adequate, and
reasonable, and that it is in the best interest of Plaintiffs and the proposed Class to settle this Action
on the terms described herein.
IV. ARGUMENT
A. Plaintiffs’ Motion for an Order Preliminarily Approving the Settlement Should
Be Granted.
Federal Rule of Civil Procedure 23(e) requires judicial approval for any settlement, voluntary
dismissal or compromise of claims brought on a class basis. The decision of whether to grant or
deny approval of a settlement lies within the broad discretion of the trial court, and this discretion
should be exercised in light of the general judicial policy favoring settlements. See Rand v. M/A-
Com, Inc., Civ. A. No. 86-1347-N, 1993 WL 410874, at *3 (D. Mass. July 19, 1993). Further, the
settlement of complex class action litigation is clearly favored by the courts. See Durett v. Hous.
Auth. Of City of Providence, 896 F. 2d 600, 604 (1st Cir. 1990); In re Lupron Marketing and Sales
5 As part of this defense, Brooks doubtless would have raised the fact that the SEC’s investigation of the
Company recently resolved with no admission of guilt or financial penalty. See Final Judgment as to Defendant Brooks
Automation, Inc., entered May 28, 2008, in Securities and Exchange Commission v. Brooks Automation, Inc., Case No.
08-CA-10834-WGY (D. Mass.).
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Practices Litig., 228 F.R.D. 75, 93 (D. Mass. 2005).
In determining whether preliminary approval of the Settlement is warranted, the sole issue
before the Court is whether the settlement is within the range of what could be found to be fair,
adequate and reasonable, so that notice may be given to the proposed class and a hearing for final
approval can be scheduled. See Rand, 1993 WL 410874, at *3 (“In the event the settlement falls
within the range of possible approval, this court may then authorize notice to the class and set a
formal fairness hearing.”). “[W]hen the court finds that: (1) the negotiations occurred at arm’s
length; (2) there was sufficient discovery; (3) the proponents of the settlement are experienced in
similar litigation; and (4) only a small fraction of the class objected,” a presumption of fairness
attaches to the court’s preliminary approval determination. In re Lupron Marketing and Sales
Practices Litig., 345 F. Supp. 2d 135, 137 (D. Mass. 2004) (granting preliminary approval to
proposed settlement) (citing In re Gen. Motors Corp. Pick-Up Truck Fuel Tanks Products Liab.
Litig., 55 F.3d 768, 785 (3d Cir. 1995)).
All the indicia cited above are present here. First, the Settlement was reached during
extensive arm’s-length negotiations, including a formal mediation presided over by a former federal
judge. See Bussie v. Allmerica Financial Corp., 50 F. Supp. 2d 59, 77 (D. Mass. 1999) (“strong
initial presumption” of a settlement’s fairness where “settlement negotiations[…]were conducted at
arms’ length”); In re Initial Pub. Offering Sec. Litig., 226 F.R.D. 186, 194 (S.D.N.Y. 2005) (where
negotiations were facilitated by former federal judge, settlement was “clearly the result of arm’s-
length bargaining”). Second, Lead Counsel possessed adequate information concerning the
strengths and weaknesses of the Action after extensive document discovery, full briefing of
Defendants’ motion to dismiss, and the exchange of information during and after a two-day
mediation, including information concerning damages calculations. Third, Lieff Cabraser is highly
competent counsel, with many years of experience litigating complex securities cases. Fourth,
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Plaintiffs, who are sophisticated institutional clients and who have had a high level of involvement in
the litigation, support presenting this Settlement to the Court for preliminary approval. Finally, as
explained above, the complexity, expense, uncertainty, and likely duration of the litigation also
militates in favor of consummating the settlement process. Therefore, Lead Counsel respectfully
submits that all of the above cited circumstances support preliminary approval of the proposed
Settlement.
B. The Proposed Class Meets the Prerequisites for Class Certification under
Rule 23(a).
One of the Court’s functions in reviewing a proposed class action settlement is to determine
whether the action may be maintained as a class action under Rule 23 of the Federal Rules of Civil
Procedure. See Amchem Prods. v. Windsor, 521 U.S. 591 (1997). Securities fraud cases are
particularly amenable to class treatment. Indeed, “[c]ourts have expressed a general preference for
class certification in securities fraud cases based on a policy favoring enforcement of the federal
securities laws and recognition of the fact that class actions may be the only practicable means of
enforcing investors’ rights.” Priest v. Zayre Corp., 118 F.R.D. 552, 553-54 (D. Mass. 1988) (Zobel,
J.) (citations omitted).6 Accordingly, Rule 23 has been liberally construed in order to enforce
investor’s rights and, in considering a motion for class certification, all doubts should be resolved in
favor of certification. Payne v. Goodyear Tire & Rubber Co., 216 F.R.D. 21, 25 (D. Mass. 2003).
Courts have routinely acknowledged the propriety of certifying a class solely for settlement
purposes, particularly in the area of securities class action litigation. See Grace v. Perception
Technology Corp., 128 F.R.D. 165, 167 (D. Mass. 1989) (“There is little question that suits on behalf
of shareholders alleging violations of federal securities laws are prime candidates for class action
treatment and that [Rule 23] has been liberally construed to effectuate that end.”); In re First
6 See also Kirby v. Cullinet Software, Inc., 116 F.R.D. 303, 311 (D. Mass. 1987) (“In securities fraud cases, the
class action device has been deemed especially appropriate, and even ‘indispensable’ to protect the small claimants who
would otherwise as a practical matter be denied relief.”) (citation omitted).
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Commodity Corp. of Boston Customer Accounts Litigation, 119 F.R.D. 301, 308 (D. Mass. 1987)
(noting that “[t]emporary settlement classes have proved to be quite useful in resolving major class
action disputes”).
A plaintiff seeking to certify a class must show that all four of the requirements of Rule 23(a)
are satisfied — typically called numerosity, commonality, typicality, and adequacy:
(1) [T]he class is so numerous that joinder of all members is impracticable; (2) there
are questions of law or fact common to the class; (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a).
Plaintiffs submit that the proposed Class satisfies each of Rule 23(a)’s requirements. The
Class is defined in the Stipulation as “all persons and entities who purchased or otherwise acquired
Brooks’ common stock between July 25, 2001, through and including August 1, 2006, including
without limitation any and all persons and entities who purchased, received or otherwise acquired
Brooks’ common stock in connection with or traceable to the merger between Brooks and Helix
Technology Corporation on or about October 26, 2005, and who claim to have been damaged
thereby, as asserted in the Consolidated Complaint, with the exception of all Defendants, current or
former Brooks directors or officers, and their successors and assigns.”
1. Numerosity
Under Rule 23(a)(1), the proposed class must be so numerous that joinder of all class
members is impracticable. “To meet this requirement, the class representatives need only show that
it is difficult or inconvenient to join all the members of the class.” Duhaime v. John Hancock Mut.
Life Ins. Co., 177 F.R.D. 54, 62 (D. Mass. 1997). In demonstrating that a proposed class meets the
numerosity requirement, a plaintiff is not required to show the exact number of class members at the
time of class certification. Swack v. Credit Suisse First Boston, 230 F.R.D. 250, 258-59 (D. Mass.
2005) (finding numerosity based on “the reasonable inference that the putative class comprises
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hundreds, if not thousands, of geographically diverse members.”). Instead, “numerosity can be
assumed where the number of shares traded is so great that common sense dictates the class is very
large.” Grace, 128 F.R.D. at 167; see also McCuin v. Sec’y of Health & Human Serv., 817 F.2d 161,
167 (1st Cir. 1987) (“[C]ourts may draw reasonable inferences from the facts presented to find the
requisite numerosity.”).
As of February 9, 2006, there were approximately 75 million shares of the Company’s
common stock outstanding. Thus, Plaintiffs reasonably estimate that there are thousands of
geographically dispersed members of the Class. The size of the Class thus makes joinder of all
members impracticable.7 Thus, this case satisfies the numerosity requirement of Fed. R. Civ.
P. 23(a)(1). See, e.g., Randle v. SpecTran, 129 F.R.D. 386, 390 (D. Mass. 1988) (certifying a class
where more than 4.5 million shares of common stock were outstanding and actively traded); Priest,
118 F.R.D. at 554 (“Although the exact number of class members has not been determined,
plaintiff’s undisputed estimate that shareholders of record of [the Company’s] common stock
numbered more than 9,000 during the class period permits the inference that the class is so large that
joinder is impracticable.”); Kirby, 116 F.R.D. at 306 (“[A]n assumption that the class members are
not so numerous as to make joinder impracticable would be, in light of the number of shares traded
during the class period, ridiculous.”) (internal quotation marks omitted).
Thus, the numerosity requirement of Rule 23(a)(1) has been satisfied.
2. Commonality
Rule 23(a)(2) requires that there be common questions of law or fact among the proposed
Class, not “that every question be common.” Kirby, 116 F.R.D. at 306. In fact, “one common issue
7 “‘[I]mpracticability’ does not mean ‘impossibility,’ but only the difficulty or inconvenience of joining all
members of the class.” Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-14 (9th Cir. 1964) (quoting
Adver. Specialty Nat’l. Ass’n. v. FTC, 238 F.2d 108, 119 (1st Cir. 1956)).
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of fact or law at the core of the action” is sufficient to satisfy Rule 23(a)(2). In re Lupron Mktg. and
Sales Practices Litig., 228 F.R.D. 75, 88 (D. Mass. 2005).
Common questions of law and fact abound where, as here, a common course of unlawful
conduct is alleged, and the alleged acts involve uniform written documents that are disseminated to
the investing public. Here, the common questions include (a) whether the federal securities laws
were violated by Defendants’ acts and omissions as alleged herein; (b) whether Defendants
misstated and/or omitted to state material facts in their public statements and filings with the SEC;
(c) whether Defendants’ statements omitted material facts necessary to make the statements made, in
light of the circumstances under which they were made, not misleading; (d) whether the Backdating
Defendants knew or deliberately disregarded that their statements were false and misleading;
(e) whether the prices of Brooks’ publicly traded securities were artificially inflated; (f) whether the
Backdating Defendants engaged in and participated directly or indirectly in the common course of
conduct complained of herein; and (g) whether the members of the Class have sustained damages
and the proper measure of such damages.
These central issues, which are common to all Class members’ claims, satisfy the
requirement that there be common questions of fact or law. Indeed, in certifying a shareholder class
action in Priest, this Court found that a similar listing of common questions established commonality
under Rule 23(a)(2).8 See also In re New England Mut. Life Ins. Co. Sales Practices Litig., 183
F.R.D. 33, 39 (D. Mass. 1998) (identifying common issues of fact and law where allegations were of
a common course of fraudulent conduct by high-level decision makers); Randle, 129 F.R.D. at 390
(“Plaintiffs present common questions in their allegations of misstatements and omissions in
various … public financial documents.”); Grace, 128 F.R.D. at 167 (“[A]ll plaintiffs will have to
8 See Priest, 118 F.R.D. at 554 (holding that common questions of law and fact existed in that case “regarding:
(1) Whether statements made by defendants contained misrepresentations or omissions; (2) Whether the alleged
misrepresentations or omissions were material; (3) Whether defendants acted with scienter; and (4) Whether the
misrepresentations or omissions inflated the market price of [the defendant company’s] common stock.”)
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prove the same misrepresentations and omissions … . Thus, it is obvious that common questions
exist.”).
Hence, the commonality requirement of Rule 23(a)(2) is satisfied.
3. Typicality
The typicality requirement of Rule 23(a)(3) is met “‘when the [named] plaintiff’s injuries
arise from the same events or course of conduct as do the injuries that form the basis of the class
claims,’ and ‘when the plaintiff’s claims and those of the class are based on the same legal theory.’”
Guckenberger v. Boston Univ., 957 F. Supp. 306, 325 (D. Mass. 1997) (quoting In re Bank of Boston
Corp. Sec. Litig., 762 F. Supp. 1525, 1532 (D. Mass. 1991)); see also Kirby, 116 F.R.D. at 312
(“[W]here plaintiff claims a continuing course of conduct and points to specific and identified
documents which are alleged to contain interrelated and cumulative misrepresentations, class
certification is proper.”) (internal quotation marks omitted). “[T]he burden on plaintiffs in proving
typicality is not very substantial.” Abelson v. Strong, 1987 WL 15872, at *2 (D. Mass. July 30,
1987) (internal quotation marks omitted). As this Court explained in Priest, in order to meet the
typicality requirement of Rule 23(a)(3):
[P]laintiffs need not show substantial identity between their claims and those of
absent class members, but need only show that their claims arise from the same
course of conduct that gave rise to the claims of absent members. The question is
simply whether a named plaintiff, in presenting his case, will necessarily present the
claims of the absent plaintiffs.
Priest, 118 F.R.D. at 555 (internal citations and quotation marks omitted).
The typicality requirement is satisfied here. Plaintiffs’ claims arise from the same events and
practices and are based on the same legal theories as the claims of absent Class members. Plaintiffs
allege that Defendants violated the federal securities laws by publicly disseminating a series of false
and misleading statements, that they purchased or otherwise acquired Brooks stock at prices inflated
by Defendants’ misrepresentations in reliance on the market, and that they were damaged thereby in
violation of Sections 10(b) and 20(a) Exchange Act and (with respect to the Helix Merger) Sections
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11, 12 and 15 of the Securities Act. In sum, Plaintiffs are purchasers or acquirers of Brooks
common stock that seek to prove Defendants’ liability on theories that are identical to those
available to other Class members and based upon an identical set of facts as set forth in the SAC and
summarized above. Plaintiffs have no unique claims or defenses that threaten to be the focus of the
litigation. Accordingly, Plaintiffs’ claims are typical of the Class.
4. Adequacy
Fed. R. Civ. P. 23(a) also requires that the representative plaintiff adequately protect the
interests of the Class. In Guckenberger, the court summarized the adequacy test of Rule 23(a)(4) as
follows:
In making the required determination regarding the adequacy of the named plaintiffs
as class representatives, a court must decide “first, whether any potential conflicts
exist between the named plaintiffs and the prospective class members, and, second,
whether the named plaintiffs and their counsel will prosecute their case vigorously.”
957 F. Supp. at 326 (quoting In re Bank of Boston, 762 F. Supp at 1534). Each of these elements is
satisfied here.
As demonstrated above, Plaintiffs’ interests are not antagonistic or in conflict with the
interests of the Class they seek to represent. Indeed, Plaintiffs are victims of the same wrongful
conduct as the other Class members. They are also public institutions that are committed to the
vigorous prosecution of this action, and have retained counsel who are experienced in federal
securities litigation and have the ability and willingness to protect the interests of the Class. See
Modell v. Eliot Sav. Bank, 139 F.R.D. 17, 23 (D. Mass. 1991) (approving of lead counsel because
lead counsel was “familiar with and experienced in this type of litigation”).
Lead Counsel Lieff Cabraser is highly experienced in complex securities class actions and
has successfully prosecuted numerous securities class actions suits throughout the country.9
9 Plaintiffs refer the Court to LCHB’s firm resume, filed in this matter as Exhibit B to the Declaration of Michael
W. Sobol in Support of Los Angeles County Employees Retirement Association’s Motion for Consolidation of Actions,
Footnote continued on next page
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Accordingly, Plaintiffs will fairly and adequately protect the interests of the Class.
C. The Proposed Class Satisfies the Requirements of Rule 23(b) – Common
Questions of Law Predominate and A Class Action is Superior to Multiple
Individual Actions
Finally, in addition to the four requirements of Rule 23(a), a proposed class must meet the
requirements enumerated in one of the three subsections of Rule 23(b). Payne, 216 F.R.D. at 24-25;
Kirby, 116 F.R.D. at 305. Here, the relevant subsection, Rule 23(b)(3), requires that “the questions
of law or fact common to class members predominate over any questions affecting only individual
members, and…a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
Here, little question exists that a class action is superior to other available methods, as
required by Rule 23(b)(3). To ensure that the class action is more efficient than individual actions,
Rule 23(b) requires common issues to predominate over issues that are particular to a class
representative. Generally, common questions will predominate if the common issues constitutes a
significant part of each of the class members’ individual cases. Smilow v. Southwestern Bell Mobile
Sys., 323 F.3d 32, 40 (1st Cir. 2003)) (common questions regarding liability are generally found to
predominate even if individual damages issues exist). Further, in cases alleging securities fraud,
predominance is readily satisfied. See, e.g., Amchem Prods., 521 U.S. at 625 (finding common
questions predominated in securities class action certified for settlement).
The test for predominance is clearly met in this Action, and a class action is superior to other
available methods. Here, the same set of operative facts and a single proximate cause applies to
each Class Member – each Class Member purchased or otherwise acquired Brooks common stock
during the proposed class period at prices that were alleged to be artificially inflated as a result of
Defendants’ conduct, and was alleged to have been harmed when the facts came to light. If
Footnote continued from previous page
for Appointment of Lead Plaintiff and Approval of Lead and Class Counsel (“Sobol Decl.”) on August 18, 2006.
[Docket No. 21-4.]
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Plaintiffs and each Class Member were to bring individual actions, they would each be required to
prove the same wrongdoing by Defendants in order to establish liability. See Kirby, 116 F.R.D. at
311 (“In securities fraud cases, the class action device has been deemed especially appropriate, and
even ‘indispensable’ to protect the small claimants who would otherwise as a practical matter be
denied relief.”).
In light of the foregoing, all of the requirements of Rule 23(a) and (b) are satisfied. Thus,
there are no issues which would prevent the Court from certifying this Class for settlement purposes
and appointing Plaintiffs as Class Representatives.
D. The Proposed Form and Method of Class Notice are Appropriate and Satisfy the
Requirements of Rule 23.
The Court should approve the form and content of the proposed Notice of Pendency of Class
Action and Proposed Settlement, Motion for Attorneys’ Fees and Expenses and Settlement Fairness
Hearing (the “Notice”) and the Summary Notice of Pendency of Class Action, Proposed Settlement
and Settlement Hearing (“Summary Notice”). See Settlement, Exs. A-1, A-3. Each document is
written in plain and straightforward language. The Notice features a “Q & A” format that clearly
sets out the relevant information and answers most of the questions that Class members will have.
Consistent with Rules 23(c)(2)(B) and 23(e)(1), the Notice objectively and neutrally apprises all
Class members of the nature of the action, the definition of the Class sought to be certified for
purposes of the Settlement, the Class claims and issues, that Class counsel may enter an appearance
through counsel if desired, that the Court will exclude from the Class any Class member who
requests exclusion (and sets forth the procedures and deadlines for doing so), and the binding effect
of a class judgment on Class members under Rule 23(c)(3)(B).
The Notice also satisfies the separate disclosure requirements under the Private Securities
Litigation Reform Act (“PSLRA”). To conform with the PSLRA, the notice must state: (i) the
amount of the Settlement proposed to be distributed to the parties as determined in the aggregate and
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on an average per-share basis; (ii) if the parties do not agree on the average amount of damages per
share that would be recoverable in the event plaintiffs prevailed, a statement from each settling party
concerning the issue(s) on which the parties disagree; (iii) a statement indicating which parties or
counsel intend to make an application for an award of attorneys’ fees and costs, the amount that will
be sought, and a brief explanation in support of the request; (iv) the name, telephone number, and
address of one or more representatives of counsel for the class who will be reasonably available to
answer questions concerning any matter contained in the notice; (v) a brief statement explaining why
the parties are proposing the settlement; and (vi) such other information as may be required by the
Court. See 15 U.S.C.A. §78u-4(a)(7)(A)-(F). The Notice satisfies the foregoing criteria.
The Notice additionally discloses the date, time and location of the Settlement Fairness
Hearing and the procedures and deadlines for the submission of Proof of Claim forms and objections
to any aspect of the Settlement, Plan of Allocation10, or attorneys’ fees and expenses to be sought by
Lead Counsel. These disclosures are complete and should be approved by the Court. See, e.g., In re
Ikon Office Solutions, Inc. Sec. Litig., 194 F.R.D. 166, 175 (E.D. Pa. 2000).
Rule 23 of the Federal Rules of Civil Procedure requires that notice of a settlement be “the
best notice practicable under the circumstances, including individual notice to all members who can
be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B); see also Fed. R. Civ. P.
23(e)(1) (requiring court to “direct notice in a reasonable manner to all class members who would be
bound” by a proposed settlement). Further, notice must be “reasonably calculated under all
circumstances, to apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.” Mullane v. Central Bank & Trust Co., 339 U.S. 306, 314
10 The Plan of Allocation is set forth on pages 17-20 of the Notice, and allocates the settlement money based on
Plaintiffs’ estimate of the amounts by which the market prices of Brooks common stock were artificially inflated at
various points during the Class Period, and takes into consideration when an authorized claimant purchased Brooks
shares and, if the claimant sold the shares, when they were sold. The Plan of Allocation also takes into consideration the
operation of the statutory “90 day bounce-back” limitation on damages in the PSLRA. Plaintiffs submit that the Plan of
Allocation is fair and reasonable and should be approved together with the Settlement at the Settlement Fairness Hearing.
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(1950); see also In re AremisSoft Corp. Sec. Litig., 210 F.R.D. 109, 120 (D.N.J. 2002) (finding that
notice was adequate where it set forth the settlement terms, nature of the action, class member
criteria, recovery sought, hearing date, and how class members could request exclusion).
Plaintiffs’ proposed plan of notice satisfies the above criteria. As detailed in the proposed
Preliminary Approval Order (see Settlement, Exh. A), Lead Counsel and the claims administrator
propose to mail copies of the Notice and Proof of Claim and Release form (“Proof of Claim”) (see
Settlement, Exh. A-2) by first class mail, postage prepaid, to all Class members who can be
identified through reasonable effort. This will be accomplished principally by using record holder
data to be produced by Brooks’ transfer agent, and by reaching out to all registered broker-dealers
for the last known names and addresses of potential Class members. In addition, Lead Counsel shall
publish the Summary Notice once in the Investor’s Business Daily, as well as in a wire to be posted
for up to thirty days on the Business Wire, a major national business-oriented wire service.
Plaintiffs’ proposed notice program fulfills the requirements of due process and Rule 23, and
should be approved by the Court. See In re Cabletron Sys., Inc. Sec. Litig., 239 F.R.D. 30, 35-36 (D.
N.H. 2006) (approving notice program that distributed notice packets to individual investors and
nominees and published summary notice in national newspaper and wire services); In re Prudential
Sec. Inc. Ltd. P’ships Litig., 163 F.R.D. 200, 210-11 (S.D.N.Y. 1995) (sending notice by first class
mail is the “best notice practicable,” and publication in a major newspaper “will have the broadest
reach to inform those members of the Class who, for some reason, may not received the mailed
Notice.”); cf. New England Health Care Employees Pension Fund v. Fruit of the Loom Inc., 234
F.R.D. 627, 632 (W.D. Ky. 2006) (granting final approval of settlement where notice had been
mailed to class members and summary notice was published in the Investor’s Business Daily).
V. PROPOSED SCHEDULE
If the Court is inclined to grant preliminary approval to the proposed Settlement, the Parties
respectfully submit the following procedural schedule for the Court’s review. The proposed
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Preliminary Approval Order includes one blank date – the date of the Settlement Fairness Hearing.
The deadlines for the submission of requests for exclusion and objections and the deadline for the
submission of Proofs of Claim must be extrapolated from the Settlement Fairness Hearing date in
order to properly effectuate the notice process. In this regard, the Parties have consented to present
the following generalized schedule of events to the Court:
Event Time for Compliance
Deadline for Mailing of the Notice and a Proof
of Claim to Class Members (the “Notice
Date”)
75 calendar days prior to the Settlement
Fairness Hearing, to be set by the Court
(Proposed Preliminary Approval Order, ¶11)
Publishing Summary Notice in the Investor’s
Business Daily and the Business Wire
Within 10 calendar days of the Notice Date
(Proposed Preliminary Approval Order, ¶12)
Deadline for Filing Proofs of Claim 60 calendar days after the Notice Date
(Proposed Preliminary Approval Order,
¶14(a))
Deadline for Filing Exclusion Requests or
Objections
21 calendar days prior to the Settlement
Fairness Hearing (Proposed Preliminary
Approval Order, ¶¶15, 17)
Settlement Fairness Hearing Scheduled for _________, 2008 at ____ _.m.
(Proposed Preliminary Approval Order, ¶6)
Further, the Parties respectfully request that the Settlement Fairness Hearing be scheduled for
approximately ninety (90) days after the entry of the proposed Preliminary Approval Order, or later
at the Court’s convenience. If this schedule is not convenient for the Court, the Parties request that
the Court use at least the same or greater intervals between each event listed in the schedule in order
to provide all parties sufficient time to comply with the proposed Preliminary Approval Order.
VI. CONCLUSION
Based on the foregoing, Plaintiffs respectfully request that the Court grant their Motion for
Preliminary Approval of Settlement, Conditional Certification of Class, Approval of Notice Plan,
and Setting of Settlement Fairness Hearing.
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LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP
/s/ Daniel P. Chiplock
Daniel P. Chiplock (admitted pro hac vice)
Steven E. Fineman
Daniel P. Chiplock
780 Third Avenue, 48th Floor
New York, NY 10017
Telephone: (212) 355-9500
Facsimile: (212) 355-9592
LIEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP
Richard M. Heimann
Michael W. Sobol (BBO # 555519)
275 Battery Street, 30th Floor
San Francisco, CA 94111
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
Counsel for Lead Plaintiff Los Angeles County
Employees Retirement Assocation and named
plaintiff Sacramento County Employees’
Retirement System
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CERTIFICATE OF SERVICE
I hereby certify that these documents filed through the ECF system will be sent electronically
to the registered participants as identified on the Notice of Electronic Filing (“NEF”) and paper
copies will be delivered via first class mail to those indicated as non-registered participants on the
NEF on June 24, 2008.
/s/ Daniel P. Chiplock
Daniel P. Chiplock (admitted pro hac vice)
LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP
780 Third Avenue, 48th Floor
New York, NY 10017
Telephone: (212) 355-9500
Facsimile: (212) 355-9592
Case 1:06-cv-11068-RWZ Document 144 Filed 06/24/2008 Page 28 of 28
