Exhibit (a)(6)
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
PATRICK PLUMLEY, Individually and On | ) | |||
Behalf of All Others Similarly Situated, | ) | |||
) | ||||
Plaintiff, | ) | Case No. | ||
) | ||||
v. | ) | JURY TRIAL DEMANDED | ||
) | ||||
AMBER ROAD, INC., JAMES W. | ) | CLASS ACTION | ||
PREUNINGER, BARRY M. V. WILLIAMS, | ) | |||
PAMELA F. CRAVEN, RALPH FAISON, | ) | |||
RUDY C. HOWARD, EAGLE PARENT | ) | |||
HOLDINGS LLC, CHICAGO MERGER | ) | |||
SUB, INC., and E2OPEN, LLC, | ) | |||
) | ||||
Defendants. | ) |
COMPLAINT FOR VIOLATION OF THE SECURITIES EXCHANGE ACT OF 1934
Plaintiff, by his undersigned attorneys, for this complaint against defendants, alleges upon personal knowledge with respect to himself, and upon information and belief based upon,inter alia, the investigation of counsel as to all other allegations herein, as follows:
NATURE OF THE ACTION
1. This action stems from a proposed transaction announced on May 13, 2019 (the “Proposed Transaction”), pursuant to which Amber Road, Inc. (“Amber Road” or the “Company”) will be acquired by Eagle Parent Holdings, LLC (“Parent”), Chicago Merger Sub, Inc. (“Merger Sub”), and E2open, LLC (“Guarantor,” and together with Parent and Merger Sub, “E2open”).
2. On May 12, 2019, Amber Road’s Board of Directors (the “Board” or “Individual Defendants”) caused the Company to enter into an agreement and plan of merger (the “Merger Agreement”) with E2open. Pursuant to the terms of the Merger Agreement, Merger Sub commenced a tender offer (the “Tender Offer”) to acquire all of Amber Road’s outstanding common stock for $13.05 per share in cash. The Tender Offer is scheduled to expire on July 1, 2019.
3. On June 3, 2019, defendants filed a Solicitation/Recommendation Statement (the “Solicitation Statement”) with the United States Securities and Exchange Commission (“SEC”) in connection with the Proposed Transaction.
4. The Solicitation Statement omits material information with respect to the Proposed Transaction, which renders the Solicitation Statement false and misleading. Accordingly, plaintiff alleges herein that defendants violated Sections 14(e), 14(d), and 20(a) of the Securities Exchange Act of 1934 (the “1934 Act”) in connection with the Solicitation Statement.
JURISDICTION AND VENUE
5. This Court has jurisdiction over all claims asserted herein pursuant to Section 27 of the 1934 Act because the claims asserted herein arise under Sections 14(e), 14(d), and 20(a) of the 1934 Act and Rule14a-9.
6. This Court has jurisdiction over defendants because each defendant is either a corporation that conducts business in and maintains operations within this District, or is an individual with sufficient minimum contacts with this District so as to make the exercise of jurisdiction by this Court permissible under traditional notions of fair play and substantial justice.
7. Venue is proper under 28 U.S.C. § 1391 because a substantial portion of the transactions and wrongs complained of herein occurred in this District.
PARTIES
8. Plaintiff is, and has been continuously throughout all times relevant hereto, the owner of Amber Road common stock.
9. Defendant Amber Road is a Delaware corporation and maintains its principal executive offices at One Meadowlands Plaza, East Rutherford, New Jersey 07073. Amber Road’s common stock is traded on the New York Stock Exchange under the ticker symbol “AMBR.” Amber Road is a party to the Merger Agreement.
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10. Defendant James W. Preuninger is Chief Executive Officer,co-founder, and a director of the Company.
11. Defendant Barry M. V. Williams is Chairman of the Board of the Company.
12. Defendant Pamela F. Craven is a director of the Company.
13. Defendant Ralph Faison is a director of the Company.
14. Defendant Rudy C. Howard is a director of the Company.
15. The defendants identified in paragraphs 10 through 14 are collectively referred to herein as the “Individual Defendants.”
16. Defendant Parent is a Delaware limited liability company and a party to the Merger Agreement.
17. Defendant Merger Sub is a Delaware corporation, a wholly-owned subsidiary of Parent, and a party to the Merger Agreement.
18. Defendant Guarantor is a Delaware limited liability company and a party to the Merger Agreement.
CLASS ACTION ALLEGATIONS
19. Plaintiff brings this action as a class action on behalf of himself and the other public stockholders of Amber Road (the “Class”). Excluded from the Class are defendants herein and any person, firm, trust, corporation, or other entity related to or affiliated with any defendant.
20. This action is properly maintainable as a class action.
21. The Class is so numerous that joinder of all members is impracticable. As of May 10, 2019, there were approximately 28,438,574 shares of Amber Road common stock outstanding, held by hundreds, if not thousands, of individuals and entities scattered throughout the country.
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22. Questions of law and fact are common to the Class, including, among others, whether defendants will irreparably harm plaintiff and the other members of the Class if defendants’ conduct complained of herein continues.
23. Plaintiff is committed to prosecuting this action and has retained competent counsel experienced in litigation of this nature. Plaintiff’s claims are typical of the claims of the other members of the Class and plaintiff has the same interests as the other members of the Class. Accordingly, plaintiff is an adequate representative of the Class and will fairly and adequately protect the interests of the Class.
24. The prosecution of separate actions by individual members of the Class would create the risk of inconsistent or varying adjudications that would establish incompatible standards of conduct for defendants, or adjudications that would, as a practical matter, be dispositive of the interests of individual members of the Class who are not parties to the adjudications or would substantially impair or impede thosenon-party Class members’ ability to protect their interests.
25. Defendants have acted, or refused to act, on grounds generally applicable to the Class as a whole, and are causing injury to the entire Class. Therefore, final injunctive relief on behalf of the Class is appropriate.
SUBSTANTIVE ALLEGATIONS
Background of the Company and the Proposed Transaction
26. Amber Road is a leading provider of cloud-based global trade management software, trade content, and training that helps companies create value through their global supply chain by improving margins, achieving greater agility, and lowering risk.
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27. The Company creates a digital model of the global supply chain that enables collaboration between buyers, sellers, and logistics companies.
28. The Company replaces manual and outdated processes with comprehensive automation for global trade activities, including sourcing, supplier management, production tracking, transportation management, supply chain visibility, import and export compliance, and duty management.
29. The Company also provides data analytics to uncover areas for optimization and deliver a platform that is responsive and flexible to adapt to the changing nature of global trade.
30. On May 12, 2019, Amber Road’s Board caused the Company to enter into the Merger Agreement.
31. Pursuant to the terms of the Merger Agreement, Merger Sub commenced the Tender Offer to acquire all of the Company’s outstanding common stock for $13.05 per share in cash.
32. According to the press release announcing the Proposed Transaction:
E2open and Amber Road, Inc. (NYSE: AMBR) (“Amber Road”), today announced they have entered into a definitive agreement for the acquisition of Amber Road in anall-cash transaction valued at approximately $425 million.
Under the terms of the agreement, a subsidiary of E2open will commence a tender offer for all the outstanding shares of Amber Road common stock for $13.05 per share in cash. The Board of Directors of Amber Road has unanimously approved the definitive agreement and recommends that Amber Road shareholders tender their shares in the tender offer. Upon closing, Amber Road will become a privately held company. Closing of the transaction is subject to customary closing conditions, including a majority of the outstanding shares having been tendered in the tender offer and clearance under the Hart-Scott-Rodino (HSR) Antitrust Improvements Act of 1976, as amended. The parties expect the transaction to close before the end of the third quarter of fiscal year 2019.
E2open is one of the premier cloud-based providers of networked supply chain solutions, featuring a complete portfolio of applications that enable the world’s most complex supply chains to better plan, collaborate, and execute theirend-to-end operations. Many of the largest brands, manufacturers, and logistics operators across a range of industries—use the E2open network and platform to orchestrate their global supply chains creating significant efficiencies.
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Amber Road’s cloud-based global trade management (GTM) platform helps companies across all industries to digitize their supply chain with rich solutions across sourcing, global logistics and trade compliance. To speed cycle times and improve decisions, the platform is powered by Global Knowledge, a digital repository of global trade rules and regulations across 170 countries. Amber Road maintains a global trade network of suppliers, product testing firms, transportation carriers, forwarders, brokers, and other customs regimes to promote collaboration and streamlineend-to-end processes. Amber Road has built a strong reputation of successfully automating the complex supply chains of Global 1000 companies as well as serving a range ofmid-enterprise customers in a variety of industries. . . .
The Solicitation Statement Omits Material Information, Rendering It False and Misleading
33. Defendants filed the Solicitation Statement with the SEC in connection with the Proposed Transaction.
34. As set forth below, the Solicitation Statement omits material information with respect to the Proposed Transaction, which renders the Solicitation Statement false and misleading.
35. First, the Solicitation Statement omits material information regarding the Company’s financial projections and the analyses performed by the Company’s financial advisor in connection with the Proposed Transaction, KeyBanc Capital Markets Inc. (“KeyBanc”).
36. With respect to the Company’s financial projections, the Solicitation Statement fails to disclose: (i) all line items used to calculate Adjusted EBITDA; (ii) all line items used to calculate unlevered free cash flow; and (iii) a reconciliation of allnon-GAAP to GAAP metrics.
37. With respect to KeyBanc’s Premium Paid Analysis, the Solicitation Statement fails to disclose: (i) the transactions observed by KeyBanc in the analysis; and (ii) the premiums paid in the transactions.
38. With respect to KeyBanc’s Discounted Cash Flow Analysis, the Solicitation Statement fails to disclose: (i) all line items used to calculate unlevered free cash flow; (ii) the terminal values for the Company; (iii) the individual inputs and assumptions underlying the discount rates ranging from 9.9% to 13.9%; and (iv) KeyBanc’s basis for applying terminal revenue multiples ranging from 3.0x to 5.0x.
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39. The disclosure of projected financial information is material because it provides stockholders with a basis to project the future financial performance of a company, and allows stockholders to better understand the financial analyses performed by the company’s financial advisor in support of its fairness opinion. Moreover, when a banker’s endorsement of the fairness of a transaction is touted to shareholders, the valuation methods used to arrive at that opinion as well as the key inputs and range of ultimate values generated by those analyses must also be fairly disclosed.
40. Second, the Solicitation Statement omits material information regarding potential conflicts of interest of KeyBanc.
41. The Solicitation Statement fails to disclose whether KeyBanc has provided past services to E2open or its affiliates, as well as the timing and nature of such services and the amount of compensation KeyBanc received for providing the services.
42. The Solicitation Statement fails to disclose the amount of compensation KeyBanc received for providing acquisition financing to the Company for its acquisition of ecVision Inc.
43. The Solicitation Statement fails to disclose the timing and nature of the additional services KeyBanc has provided to the Company.
44. Full disclosure of investment banker compensation and all potential conflicts is required due to the central role played by investment banks in the evaluation, exploration, selection, and implementation of strategic alternatives.
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45. Third, the Solicitation Statement fails to disclose whether the Company entered into any confidentiality agreements that contained standstill and/or “don’t ask, don’t waive” provisions that are or were preventing the counterparties from submitting superior offers to acquire the Company.
46. Without this information, stockholders may have the mistaken belief that, if these potentially interested parties wished to come forward with a superior offer, they are or were permitted to do so, when in fact they are or were contractually prohibited from doing so.
47. The omission of the above-referenced material information renders the Solicitation Statement false and misleading, including,inter alia, the following section of the Solicitation Statement: The Solicitation or Recommendation.
48. The above-referenced omitted information, if disclosed, would significantly alter the total mix of information available to the Company’s stockholders.
COUNT I
(Claim for Violation of Section 14(e) of the 1934 Act Against Defendants)
49. Plaintiff repeats and realleges the preceding allegations as if fully set forth herein.
50. Section 14(e) of the 1934 Act states, in relevant part, that:
It shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading . . . in connection with any tender offer or request or invitation for tenders[.]
51. Defendants disseminated the misleading Solicitation Statement, which contained statements that, in violation of Section 14(e) of the 1934 Act, in light of the circumstances under which they were made, omitted to state material facts necessary to make the statements therein not misleading.
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52. The Solicitation Statement was prepared, reviewed, and/or disseminated by defendants.
53. The Solicitation Statement misrepresented and/or omitted material facts in connection with the Proposed Transaction as set forth above.
54. By virtue of their positions within the Company and/or roles in the process and the preparation of the Solicitation Statement, defendants were aware of this information and their duty to disclose this information in the Solicitation Statement.
55. The omissions in the Solicitation Statement are material in that a reasonable shareholder will consider them important in deciding whether to tender their shares in connection with the Proposed Transaction. In addition, a reasonable investor will view a full and accurate disclosure as significantly altering the total mix of information made available.
56. Defendants knowingly or with deliberate recklessness omitted the material information identified above in the Solicitation Statement, causing statements therein to be materially incomplete and misleading.
57. By reason of the foregoing, defendants violated Section 14(e) of the 1934 Act.
58. Because of the false and misleading statements in the Solicitation Statement, plaintiff and the Class are threatened with irreparable harm.
59. Plaintiff and the Class have no adequate remedy at law.
COUNT II
(Claim for Violation of 14(d) of the 1934 Act Against Defendants)
60. Plaintiff repeats and realleges the preceding allegations as if fully set forth herein.
61. Section 14(d)(4) of the 1934 Act states:
Any solicitation or recommendation to the holders of such a security to accept or reject a tender offer or request or invitation for tenders shall be made in accordance with such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.
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62. Rule14d-9(d) states, in relevant part:
Any solicitation or recommendation to holders of a class of securities referred to in section 14(d)(1) of the Act with respect to a tender offer for such securities shall include the name of the person making such solicitation or recommendation and the information required by Items 1 through 8 of Schedule14D-9 (§240.14d-101) or a fair and adequate summary thereof[.] Item 8 requires that directors must “furnish such additional information, if any, as may be necessary to make the required statements, in light of the circumstances under which they are made, not materially misleading.”
63. The Solicitation Statement violates Section 14(d)(4) and Rule14d-9 because it omits the material facts set forth above, which renders the Solicitation Statement false and/or misleading.
64. Defendants knowingly or with deliberate recklessness omitted the material information set forth above, causing statements therein to be materially incomplete and misleading.
65. The omissions in the Solicitation Statement are material to plaintiff and the Class, and they will be deprived of their entitlement to make a fully informed decision with respect to the Proposed Transaction if such misrepresentations and omissions are not corrected prior to the expiration of the tender offer.
66. Plaintiff and the Class have no adequate remedy at law.
COUNT III
(Claim for Violation of Section 20(a) of the 1934 Act
Against the Individual Defendants and E2open)
67. Plaintiff repeats and realleges the preceding allegations as if fully set forth herein.
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68. The Individual Defendants and E2open acted as controlling persons of Amber Road within the meaning of Section 20(a) of the 1934 Act as alleged herein. By virtue of their positions as directors of Amber Road and participation in and/or awareness of the Company’s operations and/or intimate knowledge of the false statements contained in the Solicitation Statement filed with the SEC, they had the power to influence and control and did influence and control, directly or indirectly, the decision making of the Company, including the content and dissemination of the various statements that plaintiff contends are false and misleading.
69. Each of the Individual Defendants and E2open was provided with or had unlimited access to copies of the Solicitation Statement alleged by plaintiff to be misleading prior to and/or shortly after these statements were issued and had the ability to prevent the issuance of the statements or cause them to be corrected.
70. In particular, each of the Individual Defendants had direct and supervisory involvement in theday-to-day operations of the Company, and, therefore, is presumed to have had the power to control and influence the particular transactions giving rise to the violations as alleged herein, and exercised the same. The Solicitation Statement contains the unanimous recommendation of the Individual Defendants to approve the Proposed Transaction. They were thus directly connected with and involved in the making of the Solicitation Statement.
71. E2open also had direct supervisory control over the composition of the Solicitation Statement and the information disclosed therein, as well as the information that was omitted and/or misrepresented in the Solicitation Statement.
72. By virtue of the foregoing, the Individual Defendants and E2open violated Section 20(a) of the 1934 Act.
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73. As set forth above, the Individual Defendants and E2open had the ability to exercise control over and did control a person or persons who have each violated Section 14(e) of the 1934 Act and Rule14a-9, by their acts and omissions as alleged herein. By virtue of their positions as controlling persons, these defendants are liable pursuant to Section 20(a) of the 1934 Act.
74. As a direct and proximate result of defendants’ conduct, plaintiff and the Class are threatened with irreparable harm.
75. Plaintiff and the Class have no adequate remedy at law.
PRAYER FOR RELIEF
WHEREFORE, plaintiff prays for judgment and relief as follows:
A. Enjoining defendants and all persons acting in concert with them from proceeding with, consummating, or closing the Proposed Transaction;
B. In the event defendants consummate the Proposed Transaction, rescinding it and setting it aside or awarding rescissory damages;
C. Directing the Individual Defendants to file a Solicitation Statement that does not contain any untrue statements of material fact and that states all material facts required in it or necessary to make the statements contained therein not misleading;
D. Declaring that defendants violated Sections 14(e), 14(d), and 20(a) of the 1934 Act, as well as Rule14a-9 promulgated thereunder;
E. Awarding plaintiff the costs of this action, including reasonable allowance for plaintiff’s attorneys’ and experts’ fees; and
F. Granting such other and further relief as this Court may deem just and proper.
JURY DEMAND
Plaintiff hereby demands a trial by jury.
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Dated: June 6, 2019 | RIGRODSKY & LONG, P.A. | |||||
By: | /s/ Gina M. Serra | |||||
Brian D. Long (#4347) | ||||||
OF COUNSEL: | Gina M. Serra (#5387) | |||||
300 Delaware Avenue, Suite 1220 | ||||||
RM LAW, P.C. | Wilmington, DE 19801 | |||||
Richard A. Maniskas | Telephone: (302)295-5310 | |||||
1055 Westlakes Drive, Suite 300 | Facsimile: (302)654-7530 | |||||
Berwyn, PA 19312 | Email:bdl@rl-legal.com | |||||
Telephone: (484)324-6800 | Email:gms@rl-legal.com | |||||
Facsimile: (484)631-1305 | ||||||
Email: rm@maniskas.com | Attorneys for Plaintiff |
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CERTIFICATION OF PLAINTIFF I, Patrick Plumley (“Plaintiff’), hereby declare as to the claims asserted under the federal securities laws that: 1. Plaintiff has reviewed the complaint and authorizes its filing. 2. Plaintiff did not purchase the security that is the subject of this action at the direction of Plaintiff s counsel or in order to participate in any private action. 3. Plaintiff is willing to serve as a representative party on behalf of the class, either individually or as part of a group, and I will testify at deposition or trial, if necessary. I understand that this is not a claim form and that I do not need to execute this Certification to share in any recovery as a member of the class. 4. Plaintiffs purchase and sale transactions in the Amber Road, Inc. (NYSE: AMBR) security that is the subject of this action during the class period is/are as follows: PURCHASES SALES Please list additional transactions on separate sheet of paper, if necessary. 5. Plaintiff has complete authority to bring a suit to recover for investment losses on behalf of purchasers of the subject securities described herein (including Plaintiff, anyco-owners, any corporations or other entities, and/or any beneficial owners).
6. During the three years prior to the date of this Certification, Plaintiff has not moved to serve as a representative party for a class in an action filed under the federal securities laws. 7. Plaintiff will not accept any payment for serving as a representative party on behalf of the class beyond Plaintiffs pro rata share of any recovery, except such reasonable costs and expenses (including lost wages) directly relating to the representation of the class as ordered or approved by the Court. I declare under penalty of perjury that the foregoing is true and correct. Executed this 6th day of June, 2019. Patrick Plumley
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The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. (a) PLAINTIFFS (b) County of Residence of First Listed Plaintiff AMBER ROAD, INC., JAMES W. PREUNINGER, BARRY M. V. WILLIAMS, PAMELA F. CRAVEN, RALPH FAISON, RUDY C. HOWARD, EAGLE PARENT HOLDINGS LLC, et al. County of Residence of First Listed Defendant Bergen County, NJ (EXCEPT IN U.S. PLAINTIFF CASES) (c) Attorneys (Firm Name, Address, and Telephone Number) Gina M. Serra, RIGRODSKY & LONG, P.A. 300 Delaware Avenue,(302)295-5310 Suite 1220, Wilmington, DE 19801 NOTE: (IN U.S. PLAINTIFF CASES ONLY) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. Attorneys (If Known) ‘ 1 U.S. Government Plaintiff ‘ 3 Federal Question (U.S. Government Not a Party) Citizen of This State PTF ‘ 1 DEF ‘ 1 Incorporated or Principal Place of Business In This State PTF DEF ‘ 4 ‘ 4 ‘ 2 U.S. Government ‘ 4 Diversity Citizen of Another State ‘ 2 ‘ 2 Incorporated and Principal Place ‘ 5 ‘ 5 Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State Citizen or Subject of a ‘ 3 ‘ 3 Foreign Nation ‘ 6 ‘ 6 Foreign Country IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions. II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excludes Veterans) 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers’ Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Personal Injury—Medical Malpractice PERSONAL INJURY ‘ 365 Personal Injury—Product Liability ‘ 367 Health Care/ Pharmaceutical Personal Injury Product Liability ‘ 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY ‘ 370 Other Fraud ‘ 371 Truth in Lending ‘ 380 Other Personal Property Damage ‘ 385 Property Damage Product Liability 625 Drug Related Seizure of Property 21 USC 881 690 Other 422 Appeal 28 USC 158 423 Withdrawal 28 USC 157 PROPERTY RIGHTS 820 Copyrights 830 Patent 835 Patent—Abbreviated New Drug Application 840 Trademark LABOR SOCIAL SECURITY REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property 440 Other Civil Rights 441 Voting 442 Employment 443 Housing/ Accommodations 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 448 Education V. ORIGIN (Place an “X” in One Box Only) ‘ 1 Original Proceeding 2 Removed from State Court Habeas Corpus: 463 Alien Detainee 510 Motions to Vacate Sentence 530 General 535 Death Penalty Other: 540 Mandamus & Other 550 Civil Rights 555 Prison Condition 560 Civil Detainee—Conditions of Confinement 3 Remanded from Appellate Court 710 Fair Labor Standards Act 720 Labor/Management Relations 740 Railway Labor Act 751 Family and Medical Leave Act 790 Other Labor Litigation 791 Employee Retirement Income Security Act IMMIGRATION 462 Naturalization Application 465 Other Immigration Actions 4 Reinstated or Reopened 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff or Defendant) 871 IRS—Third Party 26 USC 7609 ‘ 375 False Claims Act ‘ 376 Qui Tam (31 USC 3729(a)) ‘ 400 State Reapportionment ‘ 410 Antitrust ‘ 430 Banks and Banking ‘ 450 Commerce ‘ 460 Deportation ‘ 470 Racketeer Influenced and Corrupt Organizations ‘ 480 Consumer Credit ‘ 490 Cable/Sat TV 850 Securities/Commodities/ Exchange ‘ 890 Other Statutory Actions ‘ 891 Agricultural Acts ‘ 893 Environmental Matters ‘ 895 Freedom of Information Act ‘ 896 Arbitration ‘ 899 Administrative Procedure Act/Review or Appeal of Agency Decision ‘ 950 Constitutionality of State Statutes 5 Transferred from Another District (specify) 6 Multidistrict Litigation—Transfer 8 Multidistrict Litigation—Direct File VI. CAUSE OF ACTION Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 15 U.S.C. ァァ 78n(d), 78n(e), 78t(a), and 17 C.F.R.240.14d-9 ‘ Brief description of cause: Violation of Sections 14(e), 14(d), and 20(a) of the 1934 Act and Rule14a-9 VII. REQUESTED IN 3 CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint: COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ‘ Yes 3 No VIII. RELATED CASE(S) IF ANY DATE (See instructions): 06/06/2019 FOR OFFICE USE ONLY66308-001 JUDGE SIGNATURE OF ATTORNEY OF RECORD /s/ Gina M. Serra 12Jun2019 03:11 RECEIPT # AMOUNT APPLYING IFP DOCKET NUMBER QTA Page 71 JUDGE MAG. JUDGE Print Save As... Reset
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) | Plaintiffs-Defendants.Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. |
(b) | County of Residence.For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the “defendant” is the location of the tract of land involved.) |
(c) | Attorneys.Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section “(see attachment)”. |
II. | Jurisdiction.The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an “X” in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. |
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked.(See Section III below; NOTE: federal question actions take precedence over diversity cases.)
III. | Residence (citizenship) of Principal Parties.This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. |
IV. | Nature of Suit.Place an “X” in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code that is most applicable. Click here for:Nature of Suit Code Descriptions. |
V. | Origin.Place an “X” in one of the seven boxes. |
Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers.
Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7.Origin Code 7 was used for historical records and is no longer relevant due to changes in statue.
VI. | Cause of Action.Report the civil statute directly related to the cause of action and give a brief description of the cause.Do not cite jurisdictional statutes unless diversity.Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service |
VII. | Requested in Complaint.Class Action. Place an “X” in this box if you are filing a class action under Rule 23, F.R.Cv.P. |
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. | Related Cases.This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. |
Date and Attorney Signature.Date and sign the civil cover sheet.