Reply Brief — Franklin v. Main

EILED

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No. wae SEP 18 1990

‘. EPH F. SPANIOL, JR,

In the Supreme Cou ft _ CLERK

OF THE

United States

OCTOBER TERM, 1990

GEORGE FRANKLIN, et al.,

Petitioners,

VS.

PEAT MARWICK MAIN & Co., et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITIONERS’ REPLY BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

WILLIAM S. LERACH

LEONARD B. SIMON

(Counsel of Record)

BLAKE M. HARPER

HELEN J. HODGES

Eric A. iSAACSON Za

MILBERG WEISS BERSHAD

SPECTHRIE & LERACH

225 Broadway, Suite 2000

San Diego, CA 92101

(619) 231-1058

MICHAEL P. FUCHS

PATRICIA I. AVERY

WOLF POPPER Ross WOLF & JONES

845 Third Avenue

New York, NY 10022

(212) 759-4600

Counsel for Petitioners

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TABLE OF CONTENTS

Page

oo ee eer Terres ere 1

THE LOWER COURTS ARE IN DISARRAY,

THE CIRCUITS ARE SPLIT AND NUMER-

OUS LARGE CASES HANG IN THE BAL-

ANCE ON THE QUESTIONS PRESENTED 2

A. The Contribution Bar Rule Announced Be-

low Conflicts With Precedents In Other Cir-

B. The Ninth Cireuit’s Rule That There Is An

Implied Right To Contribution Under Sec-

tion 10(b) Places That Cireuit In Conflict

With Precedents In The Other Circuits And

With The Decisions Of This Court........ 5

C. The Issue Of An Implied Right Of Contribu-

tion Under Section 10(b) Of The Securities

Exchange Act Of 1934 Was Properly Pre-

PE. Cabins cakk Gee eke week eee 7

SNE 5 664 HAs <ewLAR KARE KSAT R OEM 10

ll

TABLE OF AUTHORITIES

Cases

Page

Alvarado Partners, L.P. v. Mehta, 723 F. Supp. 540 (D.

Ss, EES vb 0 040.5300 Oh be Ree 3

Army & Air Force Exchange Service v. Sheehan, 456

cf eB PD Peer re, Ce Yaw 5

Baker, Watts & Co. v. Miles & Stockbridge, 876 F.2d

Sie. Cet Gs: Es 60 vices. See ee 6

Burch v. Louisiana, 441 U.S. 130 (1979) ............ 8

Casteneda v. Partida, 430 U.S. 482 (1977) .......... 8

Charleston Federal Savings & Loan Ass’n v. Alderson,

Se Seah Bee COREE 0s scenes ckenaeeeaeeeeeaess 8

Christoffel v. E.F. Hutton & Co. 588 F.2d 665 (9th Cir.

SUT wah 06nTec 06000540 0064400 eee 8

Curtis v. Loether, 415 U.S. 189 (1974) .............. 4

Dalton v. Alston & Bird, [Current Transfer Binder]

Fed. Sec. L. Rep. (CCH) § 95, 348 (S.D. Ill. 1990) +

Dawson Chemical Co. v. Rohm & Haas Co., 448 U.S. 176

CRD + v0 cca n0s.cb enna bed ba eee eee 4

Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968) 7,8

Eddings v. Oklahoma, 455 U.S. 104 (1982).......... 7

FDIC v. Strategic Investment Services, No. 88-1769

Ca 20k Ge ey Se cen Rkeekeco hues nes 2

Franks v. Delaware, 438 U.S. 154 (1978) ........... 8

FSLIC v. Fitzpatrick, No. 86-6780 (C.D. Cal. July 25,

SED 0 Wc inns dca cdgdeascuansueeeee ee 2

Heffron v. International Society for Krishna Conscious-

noes, fac., 458 UB. GOO CIGBL) 2. ncn cc ceccsccwces 4

Jenkins v. Georgia, 418 U.S. 153 (1974) ............ 8

Kennedy v. Los Angeles Police Dept., 901 F.2d 702 (9th

COR Se) 6 tect ies thareeduiiaceees Epes 7

Massachusetts v. United States, 435 U.S. 444 (1978) .... 4

ill

TABLE OF AUTHORITIES

CASES

Page

New York ex rel. Bryant v. Zimmerman, 278 U.S. 63

ee ks an Dabs cha wa bees eenes 7

Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) .... 4

Northwest Airlines, Inc. v. Transport Workers Union,

eke nash cee bc bak ones 5, 6

Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971) s

Orr v. Orr, 440 U.S. 268 (1979) .. 2... www cece cca. 8

Payton v. New York, 445 U.S. 573 (1980) ........... 8

Raley v. Ohio, 360 U.S. 423 (1959) ................ 8

Singer v. Olympia Brewing Co., 878 F.2d 596 (2d Cir.

1989), cert. dened, _... U.S. — _, 110 S. Ct.

rr Se. cca eek ko ibs none s Caacenaee 3, 4, 5

Smith v. Mulvaney, 827 F.2d 558 (9th Cir. 1987) .... 7,8

Sunrise Securities Litigation, In re, 698 F. Supp. 1256

RE 2,3

Texas Industries, Inc. v. Radcliff Materials, Inc., 451

De eae c cep esaeiancees 5, 6

United States v. Spilotro, 800 F.2d 959 (9th Cir. 1986) 7

Ward v. Monroeville, 409 U.S. 57 (1972) ............ 8

iv

TABLE OF AUTHORITIES

Statutes

Page

Securities Act of 1933

Sie a saa as ee eae we 1, 6, 8,9

Securities Exchange Act of 1934

onc dg kun ikke bees Dak ekban kh 1, 2, 5, 6, 7, 8

ME cdc ubia he shake enanndcaek sess cue ee ees 4

Secondary Authority

Goodman, Belgum & McDonald, “Contribution and

Partial Settlement in Federal Securities Laws

Cases,” 4 Insights 15 (May 1990) ................ 4

No. 90-98

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1990

GEORGE FRANKLIN, et al.,

Petitioners,

vs.

PEAT MARWICK MAIN & Co., et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITIONERS’ REPLY BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

I.

INTRODUCTION

The two respondents’ briefs opposing certiorari take dif-

ferent tacks in seeking to avoid this Court’s review, but

neither is satisfactory. Respondent Prudential-Bache Secu-

rities, having sought additional time to respond “[b]ecause

of the significance of this appeal,”’ acknowledges the con-

flict between the Second and Ninth Circuits on the first

question presented, Prudential-Bache Brief at 11 n.2, and

essentially argues for affirmance. Jd. at 9-18. Respondent

Peat Marwick, on the other hand, goes to great lengths to

argue that whatever the outward appearance, there is not

really a conflict between the circuits on the first question.

Neither respondent can dispel the fact that the first ques-

tion is highly significant, has generated conflicting decisions

in the lower federal courts, was decided by the Ninth Circuit

in a manner which it acknowledged was inconsistent with

prevailing authority in the Second Circuit, and cries out for

prompt and definitive resolution.

As to the second question (the right to contribution under

Section 10(b) and Section 12), respondents are aligned,

with both asserting that the issue was not properly pre-

served below. They are wrong, as the law did not require —

indeed did not permit — petitioner to present this issue to a

panel of the Ninth Circuit, as that Circuit had already

resolved the issue in another case. Petitioner presented the

issue a8 soon as was appropriate: by suggestion for rehear-

ing en banc. Moreover, the second question can be decided

as a threshold issue necessarily raised by the third question

presented, which plainly was preserved at all levels.

Finally, although both respondents have chosen to spend

substantial portions of their energy arguing the merits, they

fall back incessantly upon the false assertion that this case

presents the question of who will bear the risk of “an

‘Letter of July 27, 1990 from Robert D. Feighner to the Honorable

Joseph F. Spanioi, Jr.

bo

inadequate” or “unfairly low” settlement. Prudential-Bache

Brief at 9, 11, 12; see also Peat Marwick Brief at 15. On the

contrary, this case presents the highly significant and recur-

ring question of the legal effect of an adequaie settlement

with a defendant of inadequate means.”

Il.

THE LOWER COURTS ARE IN DISARRAY, THE CIR-

CUITS ARE SPLIT AND NUMEROUS LARGE CASES

HANG IN THE BALANCE ON THE QUESTIONS

PRESENTED

Respondent Peat Marwick argues that because its skilled

attorneys can devise arguable rationales to “reconcile” the

widely varying precedents among the circuits, there is no

unqualified conflict among the circuits for this Court to

resolve. Peat Marwick ignores the fact that the courts

themselves perceive a conflict among the circuits on the

appropriate contribution bar rule. As to the question of

whether contribution may be implied under Section 10(b),

Peat Marwick focuses on strained distinctions hoping to

distract this Court’s attention from the fact that the crucial

*Because this case will affect not only private securities litigation, but

also efforts by the bank regulatory agencies to recover losses from the

savings and loan scandal, the Court may wish to solicit the views of the

Solicitor General on this petition. Indeed, the Federal Deposit Insur-

ance Corporation (“FDIC”) sought leave to file an amicus curiae brief

supporting en banc rehearing of this case. At least two district courts in

the Ninth Cireuit have stated that they will apply the “proportional

culpability” offset rule from this case to partial settlements entered into

between the FDIC and former directors and officers of failed savings

institutions. FDIC v. Strategic Investment Services, No. 88-1769 (S.D.

Cal. July 9, 1990) (oral bench ruling); FSLIC v. Fitzpatrick, No. 86-6780

(C.D. Cal. July 25, 1990) (order confirming July 17, 1990 bench ruling).

The decison below adopts its proportional offset contribution bar from

In re Sunrise Securities Litigation, 698 F. Supp. 1256 (E.D. Pa. 1988),

where the rule was applied against the Federal Savings and Loan

Insurance Corporation (“FSLIC”’) in the partial settlement of claims

arising out of operations of the Sunrise Savings and Loan Association.

3

underlying conflict is not just between the Ninth Circuit and

other lower courts, but between the Ninth Circuit and this

Court’s precedents.

A. The Contribution Bar Rule Announced Below Con-

flicts With Precedents In Other Circuits

Respondents purport to reconcile the Ninth Circuit’s

opinion in this case with the precedents of the other circuits

on hypertechnical grounds — that they “were either not

decided under the federal securities laws or did not involve

an attempt to extinguish the contribution rights of nonset-

tling defendants.” Peat Marwick Brief at 11-12. Respon-

dents do not explain why decisions holding that a pro tanto

offset is sufficient to satisfy a mght to contribution do not

conflict with the Ninth Circuit’s holding that the same pro

tanto offset is insufficient to “extinguish” the right. This

truly is a distinction without a difference.

Respondent Peat Marwick contends that the Ninth Cir-

cuit’s approach does not depart from the rules of law

articulated in Singer v. Olympia Brewing Co., 878 F.2d 596

(2d Cir. 1989), cert. denied, __- U.S. —_, 119 S.Ct. 729

(1990). It ignores the fact that the Ninth Circuit’s opinion

in this ease expressly refused to follow Singer.’ Respondent

*See App. A at 17a-22a. Peat Marwick also contends that the Court of

Appeals did not reject the “one satisfaction rule” articulated in Singer,

but its rejection could not be clearer: “We are not convinced that the

efficient and equitable administration of this statutorily mandated right

must yield to the logic of a general rule.” App. A at 22a. The propor-

tional offset rule it adopts allows plaintiffs to obtain a judgment from

the nonsettling defendants that affords them more than their actual

damages, if the amount they have obtained in partial settlement exceeds

the proportional liability of the settling defendants. See App. A at 2la-

22a; accord Alvarndo Partners, L.P. v. Mehta, 723 F. Supp. 540, 553 (D.

Colo. 1989) (“If settling defendants pay an amount greater than their

proportionate fault as later determined at trial, plaintiff benefits be-

cause it retains the entire prior settlement” in addition to the propor-

tional liability obtained at trial from the nonsettling defendants.); Jn re

Sunrise Securities Litigation. 698 F. Supp. 1256, 1258 (E.D. Pa. 1988)

4

Prudential-Bache more candidly acknowledges the “appel-

late court’s rejection of the Second Circuit’s position in

Singer,” but attacks Singer as “fail[ing] to consider the

various competing concerns addressed” by the Ninth Cir-

cuit here. Prudential-Bache Brief at 11 n.2. Attacking the

reasoning of Singer does not eliminate the conflict.

Indeed, commentators confirm that “[wJith the Kaypro

decision, the approaches taken by the courts are in clear

conflict.” Goodman, Belgum & McDonald, “Contribution

and Partial Settlement in Federal Securities Laws Cases,”

4 Insights 15, 15 (May 1990). District courts too have

recognized that the circuits are in conflict. See Dalton v.

Alston & Bird, [Current Transfer Binder] Fed. Sec. L. Rep.

(CCH) 4 95,348, at 96,683-85 (S.D. Ill. 1990) (rejecting

Franklin in favor of Singer).*

(rejecting pro tanto rule which “prevents ‘double recovery by a plain-

tiff’); see also Peat Marwick Brief at 19 & n.13. Of course this violates

the explicit congressional mandate of Section 27 of the Securities Act of

1934, that “no person permitted to niaintain a suit for damages under

the provisions of this title shall recover, through satisfaction of judg-

ment in one or more actions, a total amount in excess of his actual

damages.” 15 U.S.C. § 78bb. It is, however, the law of the Ninth Circuit

unless corrected by this Court.

*Even if the circuits were not in direct conflict, it would be appropri-

ate to grant certiorari because of the importance of the questions

presented and the conflicting ‘iews in the lower courts. In Dawson

Chemical Co. v. Rohm & Haas Co., 448 U.S. 176, 185 & n.4 (1980), the

Court granted certiorari “to forestall a possible conflict in the lower

courts” on an “important” issue, even though there was “no direct

conflict” among the several district court and court of appeals decisions

on the issue. The Court has granted certiorari on important issues based

on district court conflicts as well. See Heffron v. International Society for

Krishna Consciousness, Inc., 452 U.S. 640, 646 n.9 (1981) (citing four

district court opinions); Newport v. Fact Concerts, Inc., 453 U.S. 247, 257

n.14 (1981) (citing four district court opinions); Curtis v. Loether, 415

U.S. 189, 191 n.2 (1974) (citing “evenly divided” district court deci-

sions as a reason for grant of certiorari); Massachusetts v. United States,

435 U.S. 444, 453 (1978) (certiorari granted on a conflict between a

court of appeals decision and a district court).

5)

Aside from debating whether the decision below is in

four-square conflict with Singer, respondents do not seri-

ously dispute the significance of the case or the importance

of prompt resolution by this Court. Seores of pending

securities fraud class actions are affected by the decision, as

settlement negotiators must take into account the decision

below, and whether it will remain the law, and become the

law in other circuits. Other cases, some involving important

governmental interests, see n.2, supra, will also be affected

by the opinion below.

B. The Ninth Circuit’s Rule That There Is An Implied

Right To Contribution Under Section 10(b) Places

That Circuit In Conflict With Precedents In The

Other Circuits And With The Decisions Of This

Court

The Ninth Circuit’s holding that a right to contribution

may be implied under the federal securities laws — and

under Section 10(b) in particular — conflicts with this

Court’s reasoning in Northwest Airlines, Inc. v. Transport

Workers Union, 451 U.S. 77 (1981), and Tezas Industries,

Inc. v. Radcliff Materials, Inc., 451 U.S. 630 (1981). That

alone is a compelling ground for a writ of certiorari to

issue.” The Ninth Circuit’s recognition of an implied right to

contribution is based on the kind of general policy ratio-

nales that this Court expressly rejected as wholly inappro-

priate to the question of whether a right to contribution may

be implied by the judiciary.®

Although respondents deny it, there is also a conflict

among the circuits on the question of implied contribution

under the federal securities laws. Petitioners’ opening brief

cites numerous decisions in other circuits which hold that

°See Army & Air Force Exchange Service v. Sheehan, 456 U.S. 728, 733

(1982) (certiorari granted where the opinion below “appeared to be in

conflict with our precedents’’).

°See Texas Industries, 451 U.S. at 635-36, 638; Northwest Airlines, 451

U.S. at 89-90, 98-99.

6

because Northwest Airlines and Texas Industries are control-

ling, lower courts may not create implied rights of contribu-

tion under the federal securities statutes. The Ninth Circuit

ignored this Court’s holdings to create just such a right.’

Respondents dismiss numerous precedents on the ground

that they were rendered by district courts. They distinguish

appellate decisions on the ground that they address differ-

ent sections other than Section 10(b) — such as Section 12.

But Section 12 claims were part of the settlement in this case.

None of the respondents’ purported distinctions changes

the fact that the Ninth Circuit is in conflict with this Court,

and with the lower courts which have obeyed this Court’s

mandate. Once again, the conflict is real and serious, and

warrants review by this Court.

"Respondents’ “conceptual” argument that the right of contribution

necessarily inheres in the very concept of joint and several liability, see

Peat Marwick Brief at 14; Prudential-Bache Brief at 22, cannot be

reconciled with this Court’s opinions in Northwest Airlines and Tezas

Industries. Those opinions, like the common law, recognize joint and

several liability and prohibit contribution! See Northwest Airlines, 451

U.S. at 86; Tezas Industries, 451 U.S. at 646 (‘“‘[n]or does the judicial

determination that defendants should be jointly and severally liable

suggest that courts may order contribution’”’).

Although a defendant’s right to contribution can exist, conceptually,

only if the plaintiff has a prior right to joint and severaly liability, the

right to contribution is not a logical extension of joint and several

liability. There can be no doubt: the victim of fraud’s right to be made

whole is more fundamental than, and superior to, any wrongdoer’s right

to contribution. See Texas Industries, 451 U.S. at 646; Baker, Watts & Co.

v. Miles & Stockbridge, 876 F.2d 1101, 1104- 06 (4th Cir. 1989). The

Ninth Cireuit erred by elevating contribution above the victim’s right to

be made whole. “{WlJe are speaking of equities between wrongdoers,”’

the court below recognized, but ‘we decline to back away from our goal

of equity” for the perpetrators of fraud, whatever the cost to their

victims. App. A at 19a.

— oe

7

C. This Issue Of An Implied Right Of Contribution

Under Section 10(b) Of The Securities Exchange

Act of 1934 Was Properly Preserved Below

In Smith v. Mulvaney, 827 F.2d 558, 561 (9th Cir. 1987),

the Ninth Circuit held that there was an implied right of

contribution among defendants under Section 10(b). With

Smith on the books, petitioners did not distinguish between

Section 11 and plaintiffs’ other claims in the district court,

where petitioners prevailed, nor did they do so before the

Ninth Cireuit.® In both courts the issue of whether there is

an implied right to contribution under Section 10(b) was

foreclosed by Smith, and it would have been futile to argue

for an overruling of that decision.’

*Petitioners in their Court of Appeals brief called attention to the issue,

conceding that for proceedings before the three-judge panel they would

have to “assume the existence of implied rights of contribution under

these statutés,” but indicating that Smith had failed to engage in proper

analysis “articulated by the Supreme Court.” See Appellees’ Brief at 24

n.15 (quoted in part in Peat Marwick Brief at 25-26). This Court’s

precedents indicate that for an issue to be raised it is enough merely to

bring the issue to the lower court’s attention. “[I]f the record as a whole

shows either expressly or by clear intendment that this was done, the

claim is to be regarded as having been adquately presented.” New York

ez rel. Bryant v. Zimmerman, 278 U.S. 63, 67 (1928) (footnote omitted);

see Eddings v. Oklahoma, 455 U.S. 104, 113-14 n.9 (1982); Dyke v. Taylor

Implement Mfg. Co., 391 U.S. 216, 217 n.3 (1968). Respondent Peat

Marwick concedes that petitioners did precisely this in their opening

brief to the three-judge panel. See Peat Marwick Brief at 25-26. After

the panel rendered its decision, petitioners requested a rehearing en

banc so that the Niath Circuit could overrule Smith and bring its law

into conformity with this Court’s precedents.

*Three-judge panels of the Ninth Circuit cannot consider arguments

that prior authority in the circuit was wrongly decided absent an

intervening decision of the Supreme Court. Indeed, to direct such

arguments to a three-judge panel is to “ignore the well-established

principle that [the panel] cannot overrule Ninth Cireuit precedents

without convening en banc.” Kennedy v. Los Angeles Police Dept., 901

F.2d 702, 707 n.3 (9th Cir. 1989). “Such a request will only be

considered by an en bane court.” United States v. Spilotro, 800 F.2d 959,

8

Once petitioners were free of this restriction, they did

argue, in their suggestion for rehearing en bance, that Smith

was wrongly decided, and was inconsistent with the most

recent decisions of this Court. Petition for Rehearing with

Suggestion for Rehearing En Banc at 14; see Peat Marwick

Brief at 25-26.

Given this set of facts, respondents’ waiver argument is

misplaced. Moreover, any deficiency in the particularity

with which an issue is raised is cured by the fact that the

court below expressly considers or decides the issue’® — as

the Ninth Circuit did in this case. “For we need not inquire

how and when the question... was raised when such ques-

tion appears to have been actually considered and decided

by that court.” Charleston Federal Savings & Loan Ass’n v.

Alderson, 324 U.S. 182, 185-86 (1945). The panel’s opinion

unambiguously states: “it has been determined that a right

to contribution exists under claims based on section 10(b)

of the Securities Exchange Act of 1934 and Rule 10b-5 of

the Securities Exchange Commission’s rules.” Franklin,

App. A at 9a. Analysis need proceed no further than the

opinion itself to establish that the issue was thus raised and

decided in a fashion that renders it fully appropriate to

invoke this Court’s jurisdiction to correct the Ninth Cir-

euit’s holding. Charleston Federal, 324 U.S. at 185-86.

Finally, it must be noted that the viability of contribution

under Section 10(b), and Section 12 is fairly raised as

encompassed in the question of what contribution bar rule

should apply to the settlement of Section 10(b) and Section

967 (9th Cir. 1986) (Kennedy, J.); see, ¢.g., Christoffel v. E.F. Hutton &

Co. 588 F.2d 665, 667 (9th Cir. 1978).

See Payton v. New York, 445 U.S. 573, 582 n.19 (1980); Burch v.

Louisiana, 441 U.S. 130, 133 n.5 (1979); Orr v. Orr, 440 U.S. 268, 274-75

(1979); Franks v. Delaware, 438 U.S. 154, 161-62 (1978); Casteneda v.

Partida, 430 U.S. 482, 485 n.4 (1977); Jenkins v. Georgia, 418 U.S. 153,

157 (1974); Ward v. Monroeville, 409 U.S. 57, 61 (1972); Ocala Star-

Banner Co. v. Damron, 401 U.S. 295, 299 n.3 (1971); Dyke, 391 U.S. at

217 n.3; Raley v. Ohio, 360 U.S. 423, 436-37 (1959). -

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9

12 claims in this action. Without contribution rights, there

is plainly no need (or legal basis) for a contribution bar

judgment reduction. Thus, since the first and third ques-

tions are properly presented and preserved, the second

question may be decided as a necessary step in the Court’s

analysis."

‘Respondents contend that petitioners negotiated to be bound by the

same terms imposed by the Ninth Circuit. That is not true.

The settling defendants anticipated the possibility that the nonset-

tling defendants might appeal, and might even persuade the Ninth

Circuit to impose different rules of offset than those agreed to by the

settling parties and previously approved by several district courts

within the Ninth Circuit. Accordingly, the settling defendants de-

manded complete protection, in the form of a “back up” clause provid-

ing that if the nonsettling defendants prosecuted a successful appeal of

the district court’s order, the settlement would effect a reduction in

judgment to the extent necessary to protect the settling defendants

from liability to the nonsettling defendants. This by no means moots

this petition for certiorari, which seeks to correct the decision of the

Ninth Cireuit and to reestablish the pro tanto offset sc that plaintiffs

may be made whole. Moreover, this case-specific arrangement designed

to protect settling defendants in this ground- breaking case does not

undermine petitioners’ assertion that the rule below will deter many

settlements.

10

III.

CONCLUSION

The petition for writ of certiorari should be granted on all

three questions.

DATED: September 18, 1990

Respectfully submitted,

MILBERG WEISS BERSHAD

SPECTHRIE & LERACH

WILLIAM S. LERACH

LEONARD B. SIMON

(Counsel of Record)

BLAKE M. HARPER

HELEN J. HODGES

Eric A. ISAACSON

LEONARD B. SIMON

Counsel of Record for

Petitioners

225 Broadway, Suite 2000

San Diego, CA 92101

Telephone: 619/231-1058

WOLF POPPER Ross WOLF

& JONES

MICHAEL P. FuCcHS

PATRICIA I. AVERY

845 Third AVenue

New York, NY 10022

Telephone: 212/759-4600