Opposition — Crane v. Barth

— -—

F Supreme Court, U. L-

IN THE JUL 6 1978

Supreme Court of the United States,

Docket No. 77-1638 a

K, JR., CLERK

__

James EK. Crane: James KE. Crane, M.D., P.C.; and James

Kk. Crane and Mary E.ven Crane, Trustees of JAMEs

K. Crane, M.D., P.C. Pension Trust (on behalf of

themselves and investors similarly situated),

Petitioners,

—Vi—

Lesuiz A. Barto; BerGMan AND Barta, P.C.; Pierson, Duet

& Houianp: and Rircu, Greenserc & Hassan,

Respondents.

BRIEF OF RESPONDENTS RITCH, GREENBERG &

HASSAN IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Kenneta A. SAGAt

Rosert P. O’Nerw

Pau. A. IMMERMAN

70 Pine Street

New York, New York 10005

Attorneys for Respondents

Ritch, Greenberg & Hassan

Of Counsel:

D’Amato & LyncH

70 Pine Street

New York, New York 10005

TABLE OF CONTENTS

PAGE

i ecerscernieenesnanitennenenecnnsnccenscecscencsoeee 1

Jurisdiction ...... 1 sasstessssesnenntensencsnosssssnssvsococssccscsecsocencessenseces 1

a 2

EE 2

Se 2

Reasons for Denying the Writ ....0..........0.00..000ccceeees 5

SSO 15

TaBLe or AUTHORILiES

Academic Travel Abroad Inc. v. Kupper, 54 FRD 576

LT 6

Dayco Corp. v. Goodyear Tire and Rubber Company,

TE 5D |_|) RO 6

Frazier v. Stellar Industries, Inc., 72 Civ. 2829 (D.C.

i casccessssmnnsssneceasons 13

Gold v. DCL, Inc., 399 F. Supp. 1123 (S.D.N.Y. 1973) .. 14

Keene Corp. v. Weber, 394 F. Supp. 787 (S.D.N-Y.

a nsesuassonesssonouen 13

Lanza v. Drexel & Co., 479 F. 2d 1277 (2d Cir. 1973) ... 13

ii

PAGE

Schaefer v. First National Bank, 509 F. 2d 1287 (7th

Cir., 1975) cert. denied 96 S. Ct. 1682 ....000 6

Segal v. Gordon, 467 F. 2d 602 (2d Cir. 1972) ................ 6

Seligson v. Plum Tree, Inc., 361 F. Supp. 748 (D.C. Pa.,

BIDET cccinsennsrmeesssemistisnitetennnsdemtsetniptitiainiiesdaisis 6

Walling v. Beverly Enterprises, 476 F. 2d 393 (9th Cir.,

ETE ccnsessemennacetineteisinirananicainapiiinanansesiiiitaainaaaiueaiaaiaiaidiasinin 6

Wessel v. Buhler, 437 F. 2d 279 (9th Cir. 1971) .......... 6, 13

U.S. v. Natalie, 527 F. 2d 311 (2d Cir, 1975) ................ 14

Statutes and Rules

Securities Act of 1933, 15 U.S.C. §77a et seq.

ee NE ee 3

Ey SITTITEDD sciinciteictnstestiniiciicaiteisieeasitemmrenaaiinhadeenabiidbabiabaibia 3, 6

UD TED seccccsnccteternniicnnteticntinataidiiendieiiaiieaas 2, 3, 6

Securities Exchange Act of 1934, 15 U.S.C. $782 et. seq.

SUPINE METIITIED Unnistinticecitdndicpsenicatsdasiiemnintomsanitinaniidineteadenieiatian 2, 3, 6

I IE pacrrciniintntninisienibigate ea eaeaniae 2

BIE TID ccccrntinnrencecesnniteianinniieimneiinieminiieniiion 2

Rule 10b-5 under the Securities Exchange Act of 1934,

Be Seeer ae SPITE sestesicssciinstasnicncniabianaiactainmlcantianaaiatliatias 3

IN THE

Supreme Court of the United States

Docket No. 77-1638

<j

James FE. Crane: James BE. Crane, M.D., P.C.; and James

E. Crane and Mary Exviten Crane, Trustees of James

E. Crane, M.D., P.C. Pension Trusr (on behalf of

themselves and investors similarly situated),

Petitioners,

—V,—

Lesuie A. Barto; BercMan anv Barta, P.C.; Prerson, Duven

& Hotianp: and Ritcu, Greenserc & Hassan,

Respondents.

—_

BRIEF OF RESPONDENTS RITCH, GREENBERG &

HASSAN IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Opinions Below

The opinions of the District Court are annexed to the

petition as Appendices D, E, & F.

Court of Appeals affirmed the opinions of the District

Court and did not render an opinion of its own.

None of the aforesaid opinions have yet been officially

reported.

Jurisdiction

¥

The jurisdictional requisites are set forth in the petition

at page 2.

Question Presented

Whether a plaintiff must aver the circumstances con-

stituting fraud with particularity in an action alleging

securities laws violations.

Statutes Involved

The pertinent Federal Rules of Civil Procedure are

FRCP 8(a) and (e), 9(b), and Form 13 appended to the

Federal Rules of Civil Procedure.

The pertinent statutory provisions of the Securities Act

of 1933 are Section 5, 15 USC Section 77 E; Section 12(2),

15 USC Section 770(2); Section 13, 15 USC Section 77M;

Section 17(a), 15 USC Section 77Q(a).

The pertinent statutory provisions of the Securities

Exchange Act of 1934 are §10(b), 15 U.S.C. §78J(b);

§15(e), 15 U.S.C. §780(e); §20(a), 15 U.S.C. §78T'(a).

The pertinent rules of the Securities Exchange Commis-

sion are Rule 10B-5, 17 CFR 240.10(b)-5 and Rule 15CL-2,

17 CFR 240.15CL-2.

Statement of the Case

1. Nature of This Action and the Parties

This action was commenced on November 26, 1975 by the

filing of a complaint alleging violations of 417(a) of the

Securities Act of 1933 (the “Securities Act”), 15 U.S.C.

§ 77q(a), §§ 10(b), 15(c) and 20(a) of the Securities Ex-

change Act of 1934 (the “Exchange Act”), 15 U.S.C.

§78}(b), o(c) and t(a), respectively, and S.E.C. Rules

3

10b, 10b-5 and 15c1-2. The first amended complaint added

an alleged violation of Securities Act $5, 15 U.S.C. $77e,

which was later abandoned. The second amended complaint

added an alleged violation of § 12(2) of the Securities Act,

15 U.S.C. §771(2).

At this juncture plaintiffs are asserting claims only

under § i0(b) of the Exchange Act, and §§ 12(2) and 17(a)

of the Securities Act. (App. Br. 2)' Plaintiffs also have

asserted claims, relying on pendent jurisdiction, for reck-

less, wanton and/or willful acts and representations by

defendants; negligent representations, and breach of fidu-

ciary relationship.

The plaintiffs are Dr. James E. Crane, individually, as

a trustee of his pension trust and as a professional corpo-

ration, and his wife, Mary Ellen Crane, as trustee of

Dr. Crane’s pension trust. Plaintiffs seek to recover losses

allegedly sustained on their limited partnership invest-

ments in three real estate tax shelters. The nature and

date of purchase of these interests were as follows:

a) A limited partnership interest in Reading-EKaston

Associates—purchased on November 15, 1972 for $26,000

(17a) ;*

b) A limited partnership interest in Carlene Tower

Associates—purchased on June 15, 1973 for $13,000 (id.) ;

and

ec) A debenture issued by Clementon Associates pur-

chased on January 1, 1974 for $7,500. (id.)

' Citations preceded by “App. Br.” indicate references to pages

in Appellants’ Brief.

* References designated “ a” are to che pages of the appendix

filed by appellants herein.

4

The defendants are: the corporation which formed the

limited partnerships and sold interests therein to the public

—Stonehenge Industries, Inc. (“Stonehenge”) ; the officers

and directors of Stonehenge—Messrs. Constantine, Ward

and Henderson; Howard N. Garfinkle, who allegedly sold

real estate properties to Stonehenge and improperly ob-

tained and misappropriated funds from Stonehenge; the

sales representatives of Stonehenge—Grayson Securities,

Ine. and Arthur Grayson; and every lawyer and accountant

who: rendered any professional services to Stonehenge

including Ritch, Greenberg & Hassan (“Hassan”) certified

publie accountants; Donald L. Lawrence, an attorney;

Leslie A. Barth and Bergman and Barth, P.C., attorneys,

and Pierson, Duel & Holland, attorneys.

2. Prior Motions to Dismiss and Decisions of the Court

Defendants Hassan and Pierson, Duel & Holland moved

to dismiss the original complaint on several grounds in-

cluding plaintiffs’ failure to comply with Fed. R. Civ. P.

%(b) and plaintiffs’ failure to state a claim upon which

relief can be granted. The original complaint was dis-

missed on May 27, 1976 with leave to replead. An amended

complaint was filed on June 14, 1976 but it was as deficient

as the original and new motions to dismiss were filed.

On September 7, 1976 the District Court dismissed the

amended complaint as to Pierson, Duel & Holland stating

that it failed utterly to set forth a specifie fact from which

it could be concluded that there was any connection between

the defendant law firm and the alleged wrongful conduct

and that it lacked the specificity mandated by Rule 9(b).

On September 23, 1976 and November 30, 1976 the

amended complaint also was dismissed as to Hassan and

5

Barth and Bergman and Barth, P.C., respectively, on Rule

9(b) grounds.

Thereafter, plaintiffs moved for reconsideration of the

dismissals and for leave to file a second amended complaint.

Leave was granted and a second amended complaint was

filed on December 20, 1976. That complaint proved to be

a rehashed version of its predecessors and defendants were

compelled to move once again. This time the District Court

granted the motions, with prejudice, noting that although

“facially rearranged” (108a) the third complaint contained

“no greater specificity than before” (108a). The com-

plaints relating to Hassan, Bergman & Barth and Barth

similarly were dismissed on Rule 9(b) grounds.

Since all of these dismissals were based solely on an

analysis of the complaint, we respectfully refer to that

document alone—not the expanded interpretation found in

Appellants’ Brief—as the touchstone for this Court’s re-

view.*

The U.S. Court of Appeals for the Second Circuit

affirmed the decision of the District Court without opinion.

Reasons for Denying the Writ as to Defendants

Ritch, Greenberg & Hassan

Notwithstanding Plaintiffs’ assertion, the decision of the

Court below is not in conflict with the decisions of the

Courts of Appeal and District Courts in other circuits.

The Courts below have consistently applied the require-

*The Second Amended Complaint appears at pages 12a-62a of

the Appendix. The discussion infra cites two specific paragraphs

of the Complaint itself.

6

ments of FRCP 9(b) to actions alleging securities viola-

tions. See, e.g., Segal v. Gordon, 467 F. 2d 602 (2d Cir.

1972). The circuits have been consistent in their uniform

application of rule 9(b) FRCP. The following represen-

tative decisions are in accord with the decision rendered

in the instant case: Wessel v. Buhler, 437 F. 2d 279

(9th Cir. 1971); Dayco Corp. v. Goodyear Tire and Rubber

Company, 523 F. 2d 389 (6th Cir., 1975); Schaefer v.

First National Bank, 509 F. 2d 1287 (7th Cir. 1975) cert.

denied 96 S. Ct. 1682; Walling v. Beverly Enterprises, 476

F. 2d 393 (9th Cir., 1973); Seligson v. Plum Tree, Inc.,

361 F. Supp. 748 (D.C. Pa., 1973) reh. den. 61 FRD 343;

Academic Travel Abroad, Inc. v. Kupper, 54 FRD 576

(D.C. Wise. 1972). In applying FRCP 9(b), the Courts

below do not require evidentiary matter to be set forth

in the complaint, but rather require averments setting

forth the circumstances of the alleged fraud with partic-

ularity. Segal v. Gordon, supra. This is merely a rational

implementation of congressional intent as set forth in

FRCP 9(b).

The very first sentence of the complaint in the instant

case, signals its insufficiency through the statement that

each and every allegation is upon information and belief

except paragraphs 1-10. (2a) The complaint is not accom-

panied by any statement of the facts upon which the belief

is founded.*

In the first ten paragraphs of the complaint, the only

allegations made with knowledge, refer to jurisdiction

(11); claimed violations of §§ 12 and 17(a) of the Securi-

ties Act, and 410 of the Exchange Act (2), as well as

* For this reason alone, as discussed below, the compiaint should

be dismissed.

7

other claimed violations of the securities laws, in the sale

of limited partnership interests through Stonehenge, which

alleged violations are not in issue on this appeal; venue

(73); the appropriateness of class action certification

under Fed. R. Civ. P. 23 (4); the applicability of the

factual allegations to all plaintiffs (5); the composition

and common interests of the class (6); the identity of

the plaintiffs and the limited partnerships in issue (7);

assertions by plaintiffs of their commencement of the action

as a class action (8); identification of the specific pur-

chases by Crane, and the dates and amounts of those

purchases (9), and allegations that sales and solicitations

were made by use of the mails ({[ 10).

All of the remaining allegations, as summarized below,

are pleaded on information and belief.

The complaint alleges that Stonehenge organized limited

partnerships as real estate syndications which were offered

and sold to the public; that Stonehenge, Constantine and

Ward were general partners and that Constantine, Ward

and Henderson were officers and directors of Stonehenge

(11 (a)); that Garfinkle sold the properties acquired by

the limited partnerships, became the “wrap around mort-

gagee” and was able to misappropriate mortgage pay-

ments; that he conspired with Stonehenge, Constantine,

Ward and Henderson, and that he “was aided and abetted

by the other defendants herein” ({[11(b)). There follows

a description of defendants Grayson Securities and Gray-

son (f/11(¢)) and Donald Lawrence, Esq. ({ 11(b)).

The complaint then describes the purnose of the three

limited partnerships—to acquire and operate real estate

(/ 1la)—and claims that the organization, operation and

sale of the limited partnerships were steeped in fraud

8

and deception and that the fraud led to an S.E.C. injunction

against such practices (12). The complaint carefully

omits the uncontested fact that the S.E.C. never took action

against or enjoined any of the professional defendants.

Paragraphs 14 and 15 constitute the nub of plaintiffs’

complaint. They restate the theme found in the amended

and original complaints and in Appellants’ Brief.’ Both

paragraphs reveal that the claim against appellees is based

on supposition, surmise and speculation—not fact. Plain-

tiffs claim, in res ipsa loquitur fashion, that the fraud in

the sale of the limited partnerships “could not be perpe-

trated without the services and cooperation of professionals

such as defendant accountants and lawyers” ({ 14); that

“Ta]t the very least, there were highly supicious cireum-

stances [that] should have been investigated” (15); and

that the “defendant accountants and lawyers shut their

eyes to those circumstances, and made no inquiry into them,

and made no disclosure, and thereby aided and abetted

the deceptive concealment worked on Crane and the other

investors.” Jd.

The manner in which the fraud occurred is set forth

following allegations that relevant information was con-

cealed from plaintiffs (16); that limited partnership in-

terests were offered to numerous investors in various

states; that substantial monies were realized on such sales

(7 17, 18), and that the S.E.C. had asserted a requirement

for registration prior to such sales (19).

The complaint then lists a litany of supposed facts and

events which all of the defendants “knew or should have

known” or “willfully and recklessly disregarded,” and as

° (App. Br. 6).

—-

9

to which there was no disclosure. /t is noteworthy that

all of these allegations involved acts, misrepresentations

and omissions of Stonehenge, its officers and Garfinkle.

None involved any of the professional defendants.

The allegations are that appellees should have known of

the requirements asserted by the S.E.C. ({] 20); that the

sale of the limited partnership interests constituted un-

lawful sales of securities ({[ 21); that the properties ac-

quired by Stonehenge from Garfinkle invo ved collusion

and the absence of arm’s length negotiations ({[ 22); that

Garfinkle had a criminal record ({ 23); that although the

securities were offered as “tax shelter investments” in

honestly managed entities, the real properties were ac-

quired, sold and managed for the benefit of Garfinkle,

Stonehenge and its officers (24); that Garfinkle obtained

properties for little or no cash, or by placing junior

mortgages against the properties ({[ 25); that Stonehenge

paid Garfinkle substantially more for the properties than

he had paid ({[ 26) ; that Stonehenge assumed various mort-

gages with the effect that the properties produced in-

sufficient cash flow for debt service (id.); that by using

a “wrap around mortgage” granted to Garfinkle, he con-

trolled the manner in which junior mortgages were paid

(7 27); that no escrow fund was set up ({ 28); that

Stonehenge exercised no control over the properties, and

that Garfinkle misappropriated funds earmarked for the

payment of mortgages (id.); that Garfinkle controlled the

management and operation of the properties through cer-

tain agreements and arrangements ({ 29) ; that Stonehenge

prepaid certain interest payments to Garfinkle which he

did not use to pay junior mortgages ({ 30); that the prop-

erties purchased by plaintiffs were being foreclosed or had

been foreclosed, and that the plaintiffs had suffered serious

10

financial losses (31); that the properties were poorly

managed ({[ 32); that the limited partnerships were poorly

managed and their funds wasted (ff 33, 34); that Stone-

henge and its officers accepted information from Garfinkle

on the properties without independent verification which

information Stonehenge in turn relied on and used for

the purpose of soliciting investors ({] 35); and that Stone-

henge issued literature that referred to non-existent finane-

ing possibilities ({ 36). Once again we pause to emphasize

that all of these charges, whether or not they are true,

have absolutely no relationship to any acts taken by the

professione] defendants. °

Paragraph 37 of the complaint makes plain that the pro-

fessional defendants played no part in the solicitation or

sales of securities, and that they never distributed any offer-

ing brochures; that was done by Stonehenge, its officers and

its sales representatives. Plaintiffs merely state, generally

that the efforts of Stonehenge were “aided and abetted” by

“defendants Barth, Bergmen and Barth, Pierson Duel &

Helland and Ritch, Greenberg & Hassan.” ({[ 37)

Although paragraph 37 lists all of the ways in which the

sales efforts and circulars were alleged to be false and mis-

leading there is not the slightest specification of how the

professional defendants are claimed to have aided and

abetted. The most that plaintiffs ever said is that the pro-

fessional defendants shut their eyes to those circumstances,

made no inquiry and made no disclosure (15), and the

general allegations in paragraph 41 that all of the profes-

sional defendants prepared all of the offering brochures for

all of the investments in Reading Kaston, Carlene and

Clementon.

11

Plaintiffs sought to detail their purported claims against

Hassan in the second count of the complaint ({{{] 42-67).

These allegations also parrot the previously discussed con-

clusory allegations of paragraphs 7 through 41.

This claim begins with the allegation that a partner in

the Hassan firm acted within the scope of his authority and

that the Hassan firm rendered a variety of accounting ser-

vices for Stonehenge ({[] 43-44).

Plaintiffs then allege that Hassan performed accounting

services for Stonehenge ({[ 45) and that “as the accountants

should have inquired into and disclosed . .. the misleading

omissions and statements alleged in pars. 11 through 41”

(/d.);” plaintiffs further alleged that Hassan knew or had

reasonable grounds to suspect the blatant deceptions being

worked by Stonehenge, et al., including the circumstances

through which the partnerships obtained their properties,

the arrangements made with respect to the properties, how

those partnerships were being operated, what was happen-

ing to the funds that came from investors and that Hassan

“consciously cooperated in keeping those facts concealed.”

(11 46)

The complaint further alleges that Hassan prepared

financial statements for Stonehenge for at least the years

1971 through 1974 (9/47) and that brochures were dis-

tributed to the public, including Plaintiffs, to induce them

to invest ({ 48).

It should be noted that plaintiffs nowhere allege that

Hassan issued certified statements or that Hassan had any

knowledge that the uncertified statements which were pre-

pared would be issued to prospective purchasers of partner-

ship interests.

Plaintiffs then repeat in shopping list fashion all of the

var.ous “facts” set forth in Count 1 of the complaint (f/f 20-

12

37(k)) which “should have been included in those brochures

fand which] the Hassan firm willfully or recklessly failed

to do.” (49)

Conspicuous by its absence is any allegation that Hassan

knew of and intentionally sought to hide any of the alleged

wrongs.

The Complaint further alleges that the financial state-

ments which were included in the brochures failed to dis-

close any of the “facts” ({] 50); that the financial statement

contained inaccurate and artificially created figures ob-

tained from Garfinkle which were not verified by Hassan

and which did not represent actual or historic information

and which were deceptive and misleading ({[ 51-52); that

the financial statements concerning projections of income,

cash flow and profit, ete. were prepared by Hassan and dis-

tributed to prospective investors ({ 53) ; that neither Stone-

henge nor the partnerships kept books in accordance with

good bookkeeping practice or accepted accounting princi-

ples and that Hassan knew this but failed to disclose it

(54); that Hassan knew but failed to disclose comming-

ling of funds ({/ 55) ; that Hassan reviewed and participated

in the preparation of sales brochures distributed to pros-

pective investors and made no attempt to disclose the fore-

going information (56); that Hassan knew there would

be no S.E.C. registration, although it was required and

Hassan deliberately omitted this information from the cir-

cular ({] 57).

Plaintiffs further claim the alleged omitted or misleading

statements in the brochure were material and relied on by

them in making their purchase ({] 58-59) but, plaintiffs do

not allege what it was that made the alleged omissions and

misstatements material, nor do they state how they relied

13

on the financial statements, nor do they allege that Hassan

knew “about the fraud to be committed and knowingly ren-

dered positive aid to it.” Frazier v. Stellar Industries, Inc.,

supra 72 Civ. 2829 (D.C. Cal. Nov. 15, 1973 p. 24 of slip

opinion) ; Keene Corp. v. Weber, 394 F. Supp. (787, 790)

(SDNY 1975).

Plaintiffs also allege that Hassan violated certain

AICPA rules and standards ({ 60) ; specifically it is alleged

that the purported statements should have contained an

expression of opinion but did not ({/ 61); that Hassan ob-

tained its information from Garfinkle and that this informa-

tion should have been disclosed since AICPA rules require

an auditor to disclose that he is making reference to the

report of another auditor ({ 62); that the use of the words

“unaudited” or “pro forma” did not justify misleading omis-

sions (63); that Hassan should have revised the state-

ments when it became aware of its deficiencies (| 64) ; that

Hassan should have advised the S.E.C. of the statements’

alleged deficiencies (65); and that Hassan aided and

abetted the alleged fraud ({ 66 and 67).

We respectfully submit that this Court need look no fur-

ther than the discussion in Lanza v. Drexel € Co., 479 F.2d

1277 (2d Cir. 1973), and the opinion of the Ninth Circuit in

Wessel v. Buhler, 437 F.2d 279 (9th Cir. 1971), to dispose

of appellants’ claim against Hassan.

In one way or another all of the foregoing seek to con-

nect Hassan to financial statements which are purportedly

false. However, as Judge Metzner noted in his opinion:

“Those financial statements, attached to the Complaint

as Exhibits A, B, C, were neither certified by [| Hassan |

nor identified with Hassan in any way” and “a read-

ing of [the statements] shows that the alleged omis-

14

sions were not required to be included in order to make

them complete for their intended purpose.” (102a-103a)

Thus, in this case, as in Gold v. DCL Inc., 399 F. Supp.

1123 (SDNY 1973), we respectfully submit that even if the

complaint did contain an allegation by which it might be

inferred that Hassan had knowledge of the facts as plain-

tiffs allege, there is nothing before this Court which pos-

sibly lead to a finding that there exists between Hassan

and plaintiffs “the kind of special relationship which has

heretofore imposed on auditors a duty of disclosure.” 399

F. Supp. at 1127.

It is abundantly clear from the . vegoing that appellants’

goal was to sue anyone remotely connected with Stone-

henge. It is even clearer that appellants have failed to

satisfy the pleading requirements of Fed. R. Civ. P. 9(b).

Plaintiff’s reliance on U.S. v. Natalie, 527 F. 2nd 311

is misplaced in view of the fact that Natalie involved

criminal charges against an accountant who knowingly

issued false and misleading financial statements. In any

event it is indeed ironic that Plaintiff relies on a Second

Cireuit case for the proposition of the Second Circuit mis-

applies the requirements of Rule 9(b).

None of the cases relied on by petitioner has any bear-

ing upon the issue before this Court, that is, whether or

not certiorari should be granted. Indeed, they serve only

to emphasize that this case has no importance beyond the

particular facts and parties involved. It is impossible to

diseern in the petition before this Court any question of

significance in terms of interpretation of any federal

statute or the administration of the federal courts. The

15

petition fails completely to set forth any considerations

of the character enumerated in Rule 19 of this Court which

traditionally have influenced the Court to grant certiorari.

CONCLUSION

For the reasons stated, the petition for a writ of cer-

tiorari should be denied. ;

Dated: New York, New York

June 16, 1978

Respectfully submitted,

Kennetu A. Sagat

Rosert P. O’NerLu

Paut A. IMMERMAN

70 Pine Street

New York, New York 10005

Attorneys for Respondents

Ritch, Greenberg & Hassan

Of Counsel:

D’Amato & Lyncx

70 Pine Street

New York, New York 10005