In Re Omnivision Technologies, Inc. 04-CV-2297-Declaration Of

Case 3:04-cv-02297-SC Document 242 Filed 08/28/2007 Page 1 of 6

1 MILBERG WEISS LLP JEFF S. WESTERMAN (94559) 2 ELIZABETH P. LIN (174663) CHERYL A. WILLIAMS (193532) 3 MICHIYO MICHELLE FURUKAWA (234121) One California Plaza 4 300 South Grand Avenue, Suite 3900 Los Angeles, CA 90071 5 Telephone: (213) 617-1200 Facsimile: (213) 617-1975 6 Lead Counsel for Plaintiffs 7 GIRARD GIBBS LLP 8 DANIEL C. GIRARD (SBN 114826) JONATHAN K. LEVINE (SBN 220289) 9 AARON M. SHEANIN (SBN 214472) 601 California Street, Suite 1400 10 San Francisco, CA 94108 Telephone: (415) 981-4800 11 Facsimile: (415) 981-4846

12 Local Counsel for Plaintiffs

14 UNITED STATES DISTRICT COURT

15 NORTHERN DISTRICT OF CALIFORNIA

16 SAN FRANCISCO DIVISION

17 In re Master File No. C-04-2297 SC OMNIVISION TECHNOLOGIES, INC., 18 CLASS ACTION

19 DECLARATION OF ELIZABETH P. LIN IN This Document Relates To: SUPPORT OF PLAINTIFFS' RESPONSE TO 20 OBJECTIONS TO THE PROPOSED CASE NOS. 04-2297-SC; 04-2298-SC; 04- SETTLEMENT 21 2385-SC; 04-2410-SC; 04-2419-SC; 04-2425- SC; 04-2433-SC; 04-2474-SC; 04-2514-SC; DATE: September 7, 2007 22 04-2525-SC; 04-2570-SC; and 04-4350-SC TIME: 10;00 a.m. CTRM: 1, 17th Floor 23 JUDGE: Hon. Samuel Conti

28 ECL. OF LIN IN SUPPORT OF PLTFS' RESP. TO OBJECTIONS. TO PROPOSED SETTLEMENT Case No. C-04-2297 SC DOCS\412457v1 Case 3:04-cv-02297-SC Document 242 Filed 08/28/2007 Page 2 of 6

1 I, Elizabeth P. Lin, hereby declare:

2 I am an associate at Milberg Weiss LLP ("Milberg Weiss"). Lead Counsel for Plaintiffs in

3 this case. I submit this declaration in support of Plaintiffs' Response to Objections to the Proposed

4 Settlement. Attached hereto as Exhibits are true and correct copies of the following:

5 Exhibit A: The objection from Patricia A. Rivera and Elvin M. Rivera, dated July 30, 2007.

6 Exhibit B: The objection from James J. Hayes, dated August 13, 2007.

7 Exhibit C: The objection from Steve Wierzba, filed August 13, 2007.

8 Exhibit D: The Indictment in U.S.A v. Milberg Weiss Bershad & Schulman LLP.

9 Exhibit E: Statement of Facts in Support of David J. Bershad Plea Agreement and

10 Information.

11 Exhibit F: Order Granting Plaintiffs' Motion for Class Certification in In re Magma

12 Design Automation, Inc., Sec. Litig., dated August 16, 2007.

13 Exhibit G: Press Release dated July 22, 2007 by Theodore A. Bechtold.

14 Exhibit H : Reply to Motion for Protective Order from In re Initial Public Offering Sec.

15 Litig., filed May 16, 2007.

16 Exhibit I: New York State Unified Court System's Attorney Detail for Theodore Andrew

17 Bechtold.

18 Exhibit J: The letter addressed to DJ Clark at Wilson Sonsini, dated August 14, 2007.

19 Exhibit K: The letter addressed to Jeff Westerman at Milberg Weiss, dated August 14,

20 2007.

21 Exhibit L: In re Initial Public Offering Sec. Litig., 2007 U. S. Dist Lexis 42635 (S.D.N.Y.

22 June 11 , 2007).

23 Exhibit M: New York State Department of Labor Notice of Determination to Claimant and

24 State of New York Unemployment Insurance Appeal Board re Theodore A.

25 Bechtold.

26 Exhibit N: Press releases issued by Theodore A. Bechtold, dated March 27, 2007, April 10,

27 2007, and April 19, 2007.

28 ECL. OF LIN IN SUPPORT OF PLTFS' RESP. TO OBJECTIONS. TO PROPOSED SETTLEMENT - 1 - Case No. C-04-2297 SC DOCS\412457v1 Case 3:04-cv-02297-SC Document 242 Filed 08/28/2007 Page 3 of 6

1 Exhibit 0: Bechtold 's website: www.saveourstockmarket.com/AboutUs.html .

2 Exhibit P: The Notice of Pendency and Proposed Settlement of Class Action, Motion for

3 Attorneys' Fees and Settlement Fairness Hearing sent to Class Members.

4 I declare under penalty of perjury under the laws of the United States of America that the

5 foregoing is true and correct. Executed this 28th day of August, 2007 at Los Angeles, California.

7 /s/Elizabeth P. Lin 8 ELIZABETH P. LIN 9

28 ECL. OF LIN IN SUPPORT OF PLTFS' RESP. TO OBJECTIONS. TO PROPOSED SETTLEMENT - 2 - Case No. C-04-2297 SC DOCS\412457v1 Case 3:04-cv-02297-SC Document 242 Filed 08/28/2007 Page 4 of 6

1 DECLARATION OF SERVICE BY MAIL

3 I, the undersigned, declare:

4 1. That declarant is and was, at all times herein mentioned, employed in the County o

5 Los Angeles, over the age of 18 years, and not a party to or interest in the within action; the

6 declarant's business address is One California Plaza, 300 South Grand Avenue, Suite 3900, Lo

7 Angeles, California 90071-3149.

8 2. That on August 28, 2007, declarant served the DECLARATION O]

9 ELIZABETH P. LIN IN SUPPORT OF PLAINTIFFS' RESPONSE TO OBJECTIONS T(

10 THE PROPOSED SETTLEMENT by depositing a true copy thereof in a United States mailbox

11 at Los Angeles, California in a sealed envelope with postage thereon fully prepaid and addresses

12 to the parties listed on the attached Service List.

13 3. That there is a regular communication by mail between the place of mailing and th,

14 places so addressed.

15 I declare under penalty of perjury that the foregoing is true and correct. Executed this 28t]

16 day of August, 2007, at Los Angeles, California. 17

19 ETH

28 ECL. OF LIN IN SUPPORT OF PLTFS' RESP. TO OBJECTIONS. TO PROPOSED SETTLEMENT F7-] Case No. C-04-2297 SC DOCS\412457v1 Case 3:04-cv-02297-SC Document 242 Filed 08/28/2007 Page 5 of 6

OMNIVISION SERVICE LIST 2

3 Counselfor Plaintiffs

4 Jeff S. Westerman Eric T. Chaffin Cheryl A. Williams Rick M. Barreca 5 Elizabeth P. Lin SEEGER WEISS LLP Michiyo Michelle Furukawa One William Street 6 MILBERG WEISS LLP New York, NY 10004 One California Plaza Telephone: (212) 584-0700 7 300 S. Grand Avenue, Suite 3900 Facsimile: (212) 584-0799 Los Angeles, CA 90071 8 Telephone: (213) 617-1200 Facsimile: (213) 617-1975 9 Daniel C. Girard Charles J. Piven 10 Jonathan K. Levine BROWER PIVEN, Aaron M. Sheanin A PROFESSIONAL ASSOCIATION 11 GIRARD GIBBS LLP The World Trade Center-Baltimore 601 California Street, Suite 1400 401 East Pratt Street, Suite 2525 12 San Francisco, CA 94108 Baltimore, Maryland 21202 Telephone: (415) 981-4800 Telephone: (410) 332-0030 13 Facsimile: (415) 981-4846 Facsimile: (410) 685-1300

14 Thomas J. McKenna 15 GAINEY & MCKENNA 295 Madison Avenue, 4th Floor 16 New York, NY 10017 Telephone: (212) 983-1300 17 Facsimile: (212) 983-0383

18 Counsel for Defendants

19 Jenny L. Dixon Douglas J. Clark WILSON SONSINI GOODRICH & ROSATI Jared L. Kopel 20 One Market, Spear Tower, Suite 3300 Cameron P. Hoffman San Francisco, CA 94105 Kelley E. Moohr 21 Telephone: (415) 947-2000 WILSON SONSINI GOODRICH Facsimile: (415) 947-2099 & ROSATI 22 650 Page Mill Road Palo Alto, CA 94304-1050 23 Telephone: (650) 493-9300 Facsimile: (650) 493-6811 24 Attorneyfor Omnivision Technologies, Inc., 25 Shaw Hong, John T. Rossi, H. Gene McCown, and Raymond Wu. 26

-4- DOCS\412457v1 Case 3 : 04-cv-02297-SC Document 242 Filed 08/28/2007 Page 6 of 6

1 Courtesy Copy to:

2 Patricia A. Rivera Elvin M. Rivera 3 1515 Fox River Run 4 Mukwonago, WI 53149

5 James J. Hayes 4024 Estabrook Drive 6 Annandale, VA 22003

7 Steven Wierzba 8 823 Paloma Ave. Oakland, CA 94610 9 Theodore A. Bechtold 10 310 94th Street 11 Brooklyn, NY 11209

-5- DOCS\412457v1 Case 3:04-cv-02297-SC Document 242-2 Filed 08/28/2007 Page 1 of 3

Exhibit A Case 3:04-cv-02297-SC Document 242-2 Filed 08/28/2007 Page 2 of 3

July 30, 2007 AUG 0 2 2007

COURT Clerk of the Court United States District Court for the Northern District of California United States Courthouse 450 Golden Gate Avenue San Francisco, CA 94102

RE: OmniVision Technologies, Inc Master File No. C-04-2297-SC

I am writing to state that I object to the terms of the proposed settlement. Specifically, I object to the provision that the stock must have been purchased after June 11, 2003 and if sold prior to the close of trading on June 8, 2004, there will be no Recognized Claim.

REQUESTED BACKGROUND INFORMATION

Name: Patricia A. Rivera & Elvin M. Rivera A. Ten Address: 1515 Fox River Run' Mukwonago, WI 53149 Telephone:" 1 -262-3 78-4208 Number of Shares purchased and sold between June 11, 2003 and June 9, 2004: 355

OBJECTION

I believe that shareholders, myself included, who purchased shares after the June 11, 2003 date, but sold them prior to June 9, 2004 simply because the "handwriting was already on the wall'.', meaning it was already apparent that OmniVision. Technologies was having financial difficulties,should be awarded a portion of the Settlement. The current Settlement terms are not favorable for those shareholders who were proactive in protecting .their investment before further losses were incurred and perhaps sold their shares 15 days, 21 days or even 30 days earlier.

I recommend that the settlement terms be changed to quarterly timeframes, with the projected payout on a sliding scale. For example, assuming relevant shares were bought during the "Class timeframe - June 11, 2003 through June 8, 2004, there could be an average of $.10 per share payout for shares sold during the period of June 11, 2003 through October 11, 2003, an average of $.15 per share payout for shares sold during the period of October 11, 2003. through January 11, 2004, etc, Case 3:04-cv-02297-SC Document 242-2 Filed 08/28/2007 Page 3 of 3

In summary, I will be submitting the appropriate paperwork to be included in the Class in hopes that the Settlement calculations change.

Sincerely,

Patricia A Rivera Elvin M. Rivera Case 3:04-cv-02297-SC Document 242-3 Filed 08/28/2007 Page 1 of 4

Exhibit B Case 3:04-cv-02297-SC Document 242-3 Filed 08/28/2007 Page 2 of 4

JAMES J_ HAYES 4024 ESTABROOK DR. ANN AND ALE, VA 22003

August 13, 2007 1rc^^^^ III

^^. AUG 16 2007

Hon. Samuel Conti United 'States District Court Northern District of California 450 Golden Gate Ave. San Francisco, CA 94102

Re: In re OmniVision Technologies, Inc., Master File No. C-04-2297-SC

Dear Judge Conti:

I am a class member in the above referenced case having purchased 1,000 shares of OmniVision stock on June 9, 2004. I am writing to respectfully request that the court disapprove the proposed settlement.

As disclosed in the settlement notice, the Milberg Weiss & Bershad firm and two partners were indicted for paying kickbacks to certain plaintiffs in a scheme to defraud class members that covered more than twenty years. The firm and two partners publicly declared their innocence, however, on July 9, 2007, David Bershad, the third named partner in the firm, pled guilty for his role in the scheme. The kick-backs are integral to a corrupt business practice in which Milberg Weiss indiscriminately files and settles class action securities lawsuits on terms that provide little or no benefit to individual class members, but multi-million dollar fee awards that include large premiums for risk, which the scheme avoids, for Milberg Weiss.

Before the indictment, it was a mystery why lead plaintiffs would recommend settlements that provides them and their fellow class members a few pennies on the dollar of actual damages, particularly when the firm is contractually committed to prosecute for frill recovery of damages on a contingent fee basis, advancing costs.' Now with the guilty plea by one of the architects of the scheme it is clear that Milberg Weiss has no intention in ever going to trial to recover shareholders' fraud damages but only in getting

1 The lead plaintiffs' approval of puny class action settlements is analogous to lottery ticket purchasers immediately reselling their tickets for a few pennies more than the purchase price rather than hold their ticket for the lottery drawing. This transaction makes no sense for the lottery ticket purchaser just as a low value settlement makes no sense for the lead plaintiff. The analogy illustrates inexplicable behavior in both examples, which is explained in class actions by the lead plaintiffs receiving kick-backs so that class action law firms never risk their legal fees by going to trial. Case 3:04-cv-02297-SC Document 242-3 Filed 08/28/2007 Page 3 of 4

settlements approved that award them substantial legal fees and avoid the risk of a trial. The scheme is clear because it would not be necessary to illicitly pay for the cooperation of the lead plaintiff if litigation decisions were entirely based on the merits. Illicit payments are only needed in securing settlement approval for settlements that are not in the interests the class. Milberg Weiss is actually defrauding its own class members.

The guilty plea is particularly germane to this court's deliberations in considering approval of the proposed settlement. Normally courts place substantial weight on lead plaintiff's and lead counsel's conclusions on the fairness of the proposed settlement. Now with the guilty plea exposing a scheme that corrupts the settlement approval process, the court cannot place any weight on the. lead plaintiffs and lead counsel's conclusions. The court must rely entirely on its own economic analysis in considering settlement approval. This analysis is made more difficult as Milberg Weiss hides information on fraud damages that is required to analyze the fairness of the settlement.

The Plaintiffs disclose that there were approximately 47.4 Million shares of OmniVision common stock traded during the Class Period that were potentially damaged by the alleged fraud. The Plaintiffs failed to disclose their estimates on the number of damaged shares or the amount of damages that could be recovered from a successful trial. Both the court and absent class members need these numbers to evaluate the fairness of the proposed settlement. Consequently, the court must require the Plaintiffs to provide these estimates in order that the fairness of the settlement can be independently evaluated.2 In the meantime, the following analysis demonstrates the unfairness of the settlement.

The proposed allocation plan reveals the damages for class members holding OmniV:ision pn June 9, 2004 at $7.84 per share or less if members' transactional losses are less than $7.84 per share. Assuming maximum damages, or $7.84 per share and 25 million damaged shares; the total damages recoverable from a successful trial would be $196 million. With these assumptions, the proposed $13.8 million settlement is seven per cent of recoverable damages. (This reduces to 4.3 per cent, after deduction of the requested attorney fees and costs.) The question for the court is whether a recovery of seven per cent of damages is fair for the class given the court's determination the allegations in the complaint are meritorious under the Private Securities Litigation . Reform Act that was designed to weed out suits based on meritless allegations.

Meritorious allegations, by definition, should, at a minimum, have a better than 50 per cent probability of recovering actual damages in a trial. Consequently in this example, the proposed settlement is demonstrably unfair to the class. To be considered fair, the settlement should, at a minimum, be at least $ 98 million, more than seven times the proposed settlement. This example shows that the settlement is inadequate under wide ranges of estimates for damages and eligible shares.

2 The Seventh Circuit requires an economic analysis to demonstrate the fairness of settlement proposals. Circuit Judge Richard Posner described "the district judge's duty in a class action settlement to estimate the litigation value of the claims of the class and determine whether the settlement is a reasonable approximation of that value." Mirfasihi v. Fleet Mortg. Corp., 356 F. 3d 781, 786 (7t' Cir. 2004) Case 3:04-cv-02297-SC Document 242-3 Filed 08/28/2007 Page 4 of 4

Courts, by routinely approving securities class action settlements, are simply perpetuating a corrupt scheme devised by Milberg Weiss that guarantees the fum multi-million dollar legal fees regardless of the merits or lack of merit of a case. In meritorious cases like OmniVision, the Milberg scheme conceals the information court and class members need to evaluate the fairness of the settlement. This leaves the court no choice but to approve the settlement solely on statements by the firm and plaintiffs, who according to the indictment, are firmly under the control of Milberg. In this case, it is incumbent on the court to end the corruption by undertaking an independent analysis to determine the fairness of the settlement for individual class members. Such analysis will show that under a wide range of circumstances, that settlements like the one proposed here, that that provide class members low recoveries of actual damages are not fair to class members and should not be approved by the courts.

Respectfully Submitted,

J es J. Hay 9a6VI4_/ i3-941-4694W

C. Jeff S. Westerman Douglas J. Clark Case 3:04-cv-02297-SC Document 242-4 Filed 08/28/2007 Page 1 of 2

Exhibit C Case 3:04-cv-02297-SC Document 242-4 Filed 08/28/2007 Page 2 of 2

Steven Wierzba 823 Paloma Ave. Oakland Ca. 94610 AIIG .3 Tel: 510 832-3063

Clerk of the Court United States District Court For the Northern District of California United States Courthouse re: Master file No. C-04-2297-SC

Dear Sir:

I, Steven Wierzba, respectfully request to be heard by the Court on September 7t', 2007 in Re: Omnivision Technologies, Inc., Master file No. C-04-2297-SC.

I vigorously oppose an approval to move toward settlement between Milberg Weiss & Bershad, LLP, their plaintiffs and Omnivision Technologies, Inc.

I want to present information about the history of Milberg Weiss & Bershad organizing lawsuits against companies in which they pay lead plaintiffs (Mr. Lazar and family and friends) to bring "class action" lawsuits. They are now involved in proceedings in which Seymour Lazar stands accused of taking a total of $2.4 million in exchange for his participation in a plethora of such cases over the years. Mr. Lazar allegedly received $325,000 over two years for suits against W.R. Grace, $100,000 for a suit against British Petroleum, more than $400,000 for two different suits against Genentech, and the list goes on. (The Milberg Weiss Indictment, New York Sun Editorial May 19, 2006.)

On June 17, 2004 Milberg Weiss (Milberg Weiss & Bershad, formerly known as Milberg Weiss Bershad & Schulman) filed a class action suit against Omnivision Technologies, Inc. with Mr. Lazar, family and friends as lead plaintiffs. This appears to be yet another case constructed to benefit Milberg Weiss, and not a genuine class action suit.

In view of the above mention proceedings I respectfully request that the decision to allow settlement be postponed until the conclusion of the Milberg Weiss case.

Sincerel 7^

Steven Wierzba Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 1 of 106

Exhibit D Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 2 of 106

7 UNITED STATES DISTRICT COURT 8 FOR THE CENTRAL DISTRICT OF.CALIFORNIA 9 October 2004 Grand Jury 10 UNITED STATES OF AMERICA, ) CR 05-587(A)-DDP 1.1 Plaintiff, ) F I R S T 12 S U P E R S E D.I N G V. I N 5 I C T ME N T 13 MILBERG-WEISS BERSHAD & ) [18 U.S.C. § 371: Conspiracy; 14 SCHULMAN LLP, ) 18 U.S.C. § 1962(d): DAVID J. BERSHAD, ) Racketeering Conspiracy; 15 STEVEN. G. SCHULMAN, ) 18 U.S.C. §§ 1341 & 1346:.Mail SEYMOUR M. LAZAR, and ) Fraud; 18 U.S.C. § 1956(h): 16 PAUL T. SELZER, ) Money Laundering Conspiracy; 18 U.S.C. § 1956 (a) (1) (B) (.i) : 17 Defendants. ) Money Laundering; 26 U.S.C. § 7206(1): Subscribing to False 18 Tax Return; 18 U.S.C. § 1503: Obstruction of Justice; 19 .18 U.S.C. § 2: Aiding and Abetting and Causing. an Act.to 20. be:-Done; 28,U.S.C..,§.2461 (c)`, 11 U.S.C. § 981:(a)(1)(C) & .21 U.S:C 21 § 85.3 : -Criminal Forfeiture; - .-18UU.S.C. §.1:963: 'Criminal 22 Forfeiture; 18`U.S.C.. § 982(a)(1) & 21 U.S..C..§ 853: 23 Criminal Forfeiture] 24

DAA:RER:RJM Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 3 of 106

TABLE OF CONTENTS

2 PAGE

3 INTRODUCTORY ALLEGATIONS ...... 1

4 I. DEFENDANTS ...... 1

II. OTHER INDIVIDUALS ...... 3 5 6 III. CLASS ACTIONS AND SHAREHOLDER DERIVATIVE ACTIONS ...... 4

7 A. Overview ...... 4

8 B. Benefits of Securing "Lead Counsel" Status . . . 7

9 C. Fiduciary Duties of Named Plaintiffs and Their Attorneys ...... 7 10 D. Court Approval of Settlements and Awards of 11 Attorneys' Fees ...... 8

12 E. Limitations on Compensation of Named Plaintiffs ...... 9 13 IV. -DEFENDANTS' SECRET AND ILLEGAL KICKBACK SCHEME 14 IN CLASS ACTIONS AND SHAREHOLDER DERIVATIVE ACTIONS ...... 10 15 SUMMARY OF KICKBACK PAYMENTS ...... 14 16 V. A. Kickback Payments to Lazar ...... 14 17 B. Kickback Payments to Vogel ...... 17 18 19 C. Kickback Payments to Cooperman ...... 19 COUNT ONE [18 U.S.C. § 371].[Conspiracy ] ...... 24 20. , 1. THE OBJECTS OF THE CONSPIRACY ...... 24 2.1: Ii. MANNER AND-. MEANS OF THE CONSPIRACY . . . . . 26 . 22 III. . OVERT ACTS ...... 33 23 A.- Overt Acts-in the-Lazar Lawsuits . . . . 33- 24 B. Overt Acts in the Vogel Lawsuits ...... 51 25- C. Overt Acts in the Cooperman Lawsuits . . . . . 64 26

i Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 4 of 106

COUNT TWO [ 18 U.S . C. § 1962 ( d)][Racketeering Conspiracy] - . 79

2 I. THE ENTERPRISE ...... 79

3 II. PURPOSES OF THE RACKETEERING CONSPIRACY ...... 79

4 III. THE RACKETEERING CONSPIRACY ...... 80

5 IV. MANNER AND MEANS OF THE CONSPIRACY ...... 81

6 COUNTS THREE THROUGH FIVE [18 U . S.C. §§ 1341 , 1346, 2] [Mail Fraud ; Aiding and Abetting ; and Causing An Act 7 .to be Done ] ...... 82

8 COUNTS SIX THROUGH EIGHT [ 18 U.S.C. §§ 1341, 1346, 2] 9 [Mail Fraud ; Aiding and Abetting; and Causing An Act to be Done ] ...... 84

10 COUNT NINE [ 18 U.S . C. § 1956 ( h)][Money Laundering Conspiracy ] ...... 86 11 I. INTRODUCTION ...... 86 12 II. THE OBJECTS OF THE MONEY LAUNDERING 13 CONSPIRACY ...... 87

14, III. THE MANNER AND MEANS OF THE MONEY LAUNDERING CONSPIRACY ...... 88 15 COUNTS TEN THROUGH THIRTEEN 16. [18 U . S.C. §§ 1956 ( a)(1)(B)(i) and 2][Concealment Money Laundering ; Aiding and Abetting and 17, Causing An Act to be Done ] ...... 90

18 COUNTS FOURTEEN THROUGH SIXTEEN [ 26 U.S.C. § 7206(1)] Subscribing to False Tax Return ] ...... 19[ ...... 92 COUNT SEVENTEEN [18 U.S . C. §§ 1503 , 2][Obstruction 20..,of Justice ;-Causing An Act to be Done] ...... -93

21 COUNT EIGHTEEN [ 28 U.S . C. § 2461(c), 18 U.S . C. § 981 ( a) (1) (.C) , and 21 U.S.C. § 853-] . 22" - [Criminal Forfeiture ] ...... 94

23 COUNT NINETEEN [ 18 U.S . C. § 1963] Criminal Forfeiture ] ...... 97 24 [ COUNT TWENTY [ 18 U.S . C. § 982(a)(1) 25 and 21 O.S.C. § 853] [Criminal Forfeiture ] ...... 100 26

ii Page 5 of 106 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007

The Grand Jury charges:

2 INTRODUCTORY ALLEGATIONS

3 I.

4 1. At all times relevant to this Indictment, defendant

5 MILBERG WEISS BERSHAD & SCHULMAN LLP, formerly known as "Milberg

6 Weiss Bershad Hynes & Lerach LLP" and "Milberg Weiss Bershad

7 Specthrie & Lerach" ("MILBERG WEISS"), was a New York law firm

8 partnership with principal offices in New York, New York and,

9 through on or about May 1, 2004, San Diego, California. At all

10 times relevant to this Indictment, MILBERG WEISS represented

11 plaintiffs in class actions and shareholder derivative actions in

12 federal and state courts throughout the United States, including

13 in the Central District of California.

14 2. At all times relevant to this Indictment, defendant

15 DAVID J. BERSHAD ("BERSHAD") was a named partner in

16 MILBERG WEISS, the senior partner primarily responsible for

17 overseeing MILBERG WEISS's financial affairs and accounting

18 department, and one of MILBERG WEISS's original managing

19 partners. During the times relevant to this Indictment, BERSHAD

2.0-- .resided in New Jersey and worked in MILBERG-WEISS's New York

2.1 office. On or about January 1, 1998,.BERSHAD was.conferred-the

22:. t=itle "Partner in charge" of that office and became a member of

23. the firm's Executive Committee. During the years 1983 through

24 2005, BERSHAD owned between 10.11% and 17.72% of the firm, and

25 his share of MILBERG WEISS's profits totaled approximately

26 $160.9 million.

27 3. Defendant STEVEN G. SCHULMAN ("SCHULMAN") became a non-

28 I equity partner in MILBERG WEISS on or about January 1, 1989, and Case 3:04-cv-02297-SC Document 242-5_ Filed 08/28/2007 Page 6 of 106

became an equity partner in MILBERG WEISS on or about January 1,

2 1991. During the times relevant to this Indictment, SCHULMAN

3 resided in New York and worked in MILBERG WEISS's New York

4 office. SCHULMAN was appointed to MILBERG WEISS's Management

5 "Committee on or about January 1, 1998; became a member of

6 MILBERG WEISS's Executive Committee on or about January 1, 1999;

7. and became a named partner on or about May 1, 2004. SCHULMAN's

8 ownership interest in MILBERG WEISS grew from approximately

9 .1.25%, at the time he became an equity partner in 1991, to 15.00

10 in 2005. During the. years 1991 through 2005, SCHULMAN's share of

11 MILBERG WEISS's profits totaled approximately $67.1 million.

12 4. During the times relevant to this Indictment,

13 defendants BERSHAD and SCHULMAN each possessed substantial

14 control over the management and conduct of MILBERG WEISS's

15 business affairs. Prior to on or about January 1, 1999, BERSHAD,

16 as an original managing partner, possessed the authority to veto

17 any proposed action or decision affecting the operation or

18 management of MILBERG WEISS. Between on or about January 1, 19991

19 and May 1, 2004, BERSHAD and SCHULMAN, as members of

20 :MILBERG WEISS's Executive Committee, shared final decision making

21. authority over all actions or decisions affecting the operation

22 or management of the firm. After on or about May 1, 2004,

23 BERSHAD again possessed the authority to veto any action or

24. decision affecting MILBERG WEISS, and SCHULMAN continued to hold

25 decision making authority through his vote as a member of

26 MILBERG WEISS's Executive Committee.

27 5. At all times relevant to this Indictment, defendant

28 SEYMOUR M. LAZAR ("LAZAR") resided in Palm Springs, California;

2 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 7 of 106

owned and controlled substantial real property throughout

2 Riverside County, California, and elsewhere; and was an active

3 purchaser and seller of publicly traded stocks. Between in or

4 about 1981 and 2002, LAZAR and certain of his family members

5 frequently served as plaintiffs in class actions and shareholder

6 derivative actions brought and caused to be brought by

7 MILBERG WEISS, BERSHAD, SCHULMAN, and others.

8 6. At all times relevant to this Indictment, defendant

9 PAUL T. SELZER (-SELZER") was a California lawyer residing in

1.0 Palm Springs, California. Prior to in or about July 1995, SELZER

11 was a partner in a law firm that maintained offices in Palm

12 Springs and elsewhere in California (the "Palm Springs Law

.13 Firm"), which specialized in real estate, business, and municipal

14 law. In or about July 1995, SELZER left the Palm Springs Law

15 Firm to co-found a small law firm in Palm Springs, California

16 (the "Selzer Law Firm"), where he was a partner through in or

17 about 2004. At all times relevant to this Indictment, SELZER,

18 the Palm Springs Law Firm, and the Selzer Law Firm provided legal

19. services to defendant LAZAR relating to his business and real

20 estate holdings and other personal affairs. SELZER specialized

21: in non-litigation matters and had no expertise in litigating

22 class actions or shareholder derivative actions; the other

23 attorneys at the Palm Springs and Selzer Law Firms likewise had

24 little if-any experience in litigating class actions or

25 shareholder derivative actions.

26 II. OTHER INDIVIDUALS

27 7. During the times relevant to this Indictment,

28 "Partner A," "Partner B," and "Partner E" were senior partners in

3 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 8 of 106

[MILBERG WEISS.

2 8. During the times relevant to this Indictment,

3 Howard J. Vogel ("Vogel") resided in New Jersey and Florida and

4 worked primarily as a commercial real estate mortgage broker.

5 Between in or about 1991 and 2005, Vogel and certain of his

6 family members and associated entities frequently served as

7 plaintiffs in class actions and shareholder derivative actions

8 brought and caused to be brought by MILBERG WEISS, BERSHAD,

9 SCHULMAN, and others.

10 9. During the times relevant to this Indictment,

11 Steven G. Cooperman ("Cooperman") resided in Brentwood,

12 California and Connecticut and, prior to in or about May 1989,

13 was a licensed ophthalmologist. Between in or about 1988 and

14 1998, Cooperman and certain of his relatives and associates,

15 including "Cooperman Plaintiff 1" and "Cooperman Plaintiff 2,"

16 frequently served as plaintiffs in class actions and shareholder

17 derivative actions brought and caused to be brought by

18 MILBERG WEISS, BERSHAD, SCHULMAN, and others.

19 III. CLASS ACTIONS AND SHAREHOLDER DERIVATIVE ACTIONS

20 A. Overy ew

21: 10. The term "class action" refers to a certain type of

22 civil lawsuit in which a court authorizes anamed plaintiff to

23 represent and litigate claims on behalf of unnamed class members

24. wh.o are not actually before the court (referred to as "absent

251Iclass members").

26 11. Class actions often are brought to address allegations

27 of fraud; breaches of certain legal duties of fidelity, trust,

28 and loyalty (known as "fiduciary duties"); and other financial

4 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 9 of 106

wrongdoing affecting publicly traded companies. In some such

2 cases, referred to as "securities fraud class actions," a named

3 plaintiff alleges that his or her investment in such a company

4 was harmed by wrongdoing committed by company executives and

5 others, and seeks to obtain money and other relief on behalf of a

6 class of investors in that company who are alleged to have been

7 similarly harmed.

8 12. Class actions also often are brought to address

9 allegations that a consumer product or service was defective,

10 deceptively represented, or illegally priced. In such cases

11 (referred to as "consumer class actions"), a named plaintiff

12 alleges that he or she was injured or defrauded by the

13 manufacturers or sellers of.the product or service, and seeks to

14 obtain money and other relief on behalf'of a class of consumers

15 who are alleged to have been similarly harmed.

16 13. A judgment in a class action (whether the result of a

17 trial or a settlement) typically binds absent class members who

18 do not expressly notify the court that they wish to "opt out" of

19 the litigation.

20. 14. The term "shareholder derivative action" refers to a

21, certain type of civil. lawsuit in which a named plaintiff, who is.

22. a shareholder in a corporation, is authorized by a court to

23' represent the interests. of other shareholders of the corporation.-

24. as well as the corporation itself, in seeking the adjudication of

25 rights and obligations of the corporation. As in a class action,

26 a judgment in a shareholder derivative action typically binds

27 unnamed shareholders who are not before the court. 28 / / /

5 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 10 of 106

15. When a controlling shareholder in a corporation

2 attempts to acquire the publicly held shares in that corporation,

3 a certain type of class action and/or shareholder derivative

4 action, referred to as a "transaction case," may be brought. In

5 such a case, a named plaintiff, who owns a minority of the shares

6 in the corporation, alleges on behalf of a class of shareholders

7 that the price per share offered by the controlling shareholder

8 to acquire the remaining shares is too low, and does not

9 represent the fair value of the publicly held shares.

10 16. Class actions and shareholder derivative actions are

11 begun by the filing of a complaint in federal or state court, in

12 which a named plaintiff alleges, among other things, the nature

13 of the claims against the defendants in the action, the reasons

14 why the action should be maintained as a class action or

15 shareholder derivative action, and the reasons why the court

16 -should authorize the named plaintiff and his or her attorneys to

17 represent the interests of absent class members or shareholders 18 in the action.

1. 17. Before a judgment in a class action or shareholder

20 derivative action may bind absent class members or shareholders,

2L a named plaintiff and the.attorneys who seek to represent absent

22 class 'members or shareholders have to demonstrate to the court's

23, satisfaction, among other things, that: (a) the named plaintiff's

24 claims are "typical" of the claims-of the absent class members orl

25 shareholders; (b) the named plaintiff has no interest in the

26 outcome of the action that is antagonistic to, or in conflict

27 with, the interests of the absent class members or shareholders;

28 (c) the named plaintiff is not subject to unique defenses that

6 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 11 of 106

could become the focus of the litigation to the detriment of the

2 absent class members or shareholders; and (d) the named

3 plaintiff's attorneys will be able to fairly and adequately

4 represent the interests of the absent class members or

5 shareholders.

6 18. The court's determination that a lawsuit may proceed

7 as a class action or shareholder derivative action is referred to

8 as the "certification" of the action.

9 B. Benefits of Securing " Lead Counsel " Status

10` 19. In many class actions and shareholder derivative

11 actions, more than one named plaintiff and more than one lawyer

12 or law firm seek to represent, and are approved by the court to

13 represent, the interests of absent class members or shareholders.

14 In such cases, the lawyers and law firms often compete to be 15 appointed by the court as "lead counsel" or "co-lead counsel" for

16' the absent class members or shareholders. A lawyer or law firm

17 that is appointed as lead or co-lead counsel typically has power

18 and responsibility, among other things, to: (a) coordinate the

19- overall litigation strategy; (b) assign the work to be done on

20. the case among. lawyers and law firms who have been approved to

21% represent the class members or shareholders;. and (c) in some

22; cases, determine the division of attorneys' fees awarded by the

23' court among the lawyers and law firms who have worked on the

24 i case.

25 C. Fiduciary Duties of Named Plaintiffs and Their Attorneys 26 20. Because the conduct and decisions of a named plaintiff 27 lin a class action or shareholder derivative action affect the 28 interests and rights of class members or shareholders who are notl

7 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 12 of 106

before the court, the named plaintiff owes these absent class

2 members or shareholders certain fiduciary duties. As a result of

3 these legally imposed duties, a named plaintiff, among other

4 things: (a) may not place his or her own interests above those of

5 absent class members or shareholders; (b) may not act in a

6 deceitful or unethical manner toward the court or the absent

7 class members or shareholders; and (c) is required to disclose to

8 the court any fact that reasonably could affect his or her

9 ability to fairly or adequately represent the interests of the 10 absent class members or shareholders.

11 21. The named plaintiff's attorneys in a class action or

12 shareholder derivative action also owe the absent class members

13 or shareholders fiduciary duties. As a result of these legally

14 imposed duties, the named plaintiff's attorneys, among other

15 things: (a) may not give preferential treatment to the interests

16 of the named plaintiff over the interests of the absent class

17. members or shareholders; (b) may not act in a deceitful or

18 unethical manner toward the court or the absent class members or

19 shareholders; and (c) are required to disclose to the court any

20 fact that reasonably could affect the attorneys' ability to

21: fairly or:adequately represent. the interests of the absent class 22; members or shareholders..

23.. D. Court Approval of Settlements and Awards of

...... Attorneys.' -. Fees 24.. 22. Courts presiding over class actions or shareholder 25 derivative actions are obligated to protect the rights and 26 interests of the absent class members or shareholders. As a 27 result, a court is required to scrutinize any proposed settlement 28 of a class action or shareholder derivative action, and may

8 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 13 of 106

approve such a settlement only if the court first determines that

2 the settlement is fair to absent class members or shareholders.

3 23. The named plaintiff's attorneys in class actions often

4 seek to obtain their attorneys' fees from the recovery obtained

5 for the class in the lawsuit; in shareholder derivative actions

6 they often seek to obtain their attorneys' fees from the

7 corporation. The attorneys' fees in such instances are paid,

8. directly or indirectly, from proceeds that otherwise would be

9 available to the absent class members or shareholders. Courts

10 presiding over class actions or shareholder derivative actions

11 are obligated, on behalf of the absent class members or

12 shareholders, to scrutinize any request for attorneys' fees to

13- ensure its fairness and reasonableness. Consistent with their

14 fiduciary duties, the named plaintiff's attorneys are required,

15 as part of any request for attorneys' fees, to disclose to the

16 court all facts that reasonably could bear on their entitlement

17. to the requested fees.

18 E. Limitations on Compensation of Named Plaintiffs

19: 24. The compensation that may be paid to a named plaintiff

2.0' -.in a class action or shareholder derivative action is limited to

21_. the following: (a) the named plaintiff's pro rata share of the.

22- recovery obtained in the lawsuit, calculated on the same basis as

23 the pro rata shares available to all of the absent class members

24- or shareholders; and (b) his or her reasonable costs and expenses

25 incurred in connection with the lawsuit, as approved by the

26 court. Additionally, in some circumstances, the court presiding

27 over such a lawsuit may award a modest bonus payment to the named

28 plaintiff, in recognition of his or her effort in obtaining a

9 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 14 of 106

beneficial result for the absent class members or shareholders.

2 Such a bonus payment may be awarded only if it is first disclosed

3 to absent class members or shareholders, and only after the

4 absent class members or shareholders have an opportunity to 5 object to the bonus award.

6 25. Because a named plaintiff acts as a fiduciary toward

7 absent class members. or shareholders and is required to remain

8 free of any conflict of interest toward them, the named plaintiff

9 may not have any financial interest in the outcome of a class

10 action or shareholder derivative action lawsuit other than those 11 described above.

12 IV . DEFENDANTS' SECRET AND ILLEGAL KICKBACK SCHEME IN CLASS ACTIONS AND SHAREHOLDER DERIVATIVE ACTIONS 13 26. During the time relevant to this Indictment, 14 MILBERG WEISS brought numerous class actions and shareholder 15. derivative actions against publicly traded companies and other 16 major businesses. These lawsuits generated hundreds of millions 17 of dollars in attorneys' fees for MILBERG WEISS. To bring these 18 lawsuits, MILBERG WEISS needed persons who would agree to serve 19 as named plaintiffs, and whom the courts would likely approve to 20 represent absent.class members or shareholders. 21. 27. Beginning at least as. early as in or about 1981 and 22:: . continuing through at-least 2005, in.orde.r to facilitate the 23 re-cr-uitment--of named plaintiffs, .MILBERG_WEISS,.BERSHAD., 24 SCHULMAN, and others known and unknown to the Grand Jury agreed 25 to and did secretly pay kickbacks to named plaintiffs in class 26 actions and shareholder derivative actions in which MILBERG WEISS 27 served as counsel. Specifically, MILBERG WEISS, BERSHAD, 28 SCHULMAN, and others known and unknown to the Grand Jury agreed

10 Case_ 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 15 of 106

to and did pay to certain individuals a substantial portion of

2 the attorneys' fees MILBERG WEISS obtained in actions in which

3 such an individual served, or caused a relative or associate to

4 serve, as a named plaintiff for MILBERG WEISS.

5 28. Included among the individuals who served as a named

6. plaintiff for MILBERG WEISS pursuant to the kickback scheme

7 described above are LAZAR; Vogel; and Cooperman and two of his

8 associates, Cooperman Plaintiff 1 and Cooperman Plaintiff 2.

9 These individuals are each referred to as a "Paid Plaintiff," and

10 collectively as the "Paid Plaintiffs." The class actions and

11 shareholder derivative actions in which the. Paid Plaintiffs

12 served, or caused their spouse or an associated entity to serve,

13 as a named plaintiff for MILBERG WEISS pursuant to the kickback

14 scheme described above are referred to respectively as the 15 "Lazar Lawsuits," "Vogel Lawsuits," and "Cooperman Lawsuits," and 16 collectively as the "Lawsuits."

17 29. During the times relevant to this Indictment,

18 MILBERG WEISS's kickback arrangements with and kickback payments

19 to the Paid Plaintiffs were illegal and improper for the

20. following reasons, among others:-(a) under applicable New York

21. law, it is a.criminal offense for an attorney to promise or give

22 anything of value to induce a person to-bring a lawsuit, or to

23 reward a person for having done'so; (b) under applicable New York

24 law, it is a criminal offense to pay a fiduciary, without the

25 consent of those to whom he or she owes fiduciary duties, with

26 the intent to influence his or her conduct as a fiduciary;

27 and (c) under applicable New York and California laws, lawyers

28 may not share attorneys' fees with persons who are not duly

11 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 16 of 106

licensed to practice law. Additionally, the kickback

2 arrangements created a conflict of interest between the

3 Paid Plaintiffs and those to whom they owed fiduciary duties

4 because, as a result of the kickback arrangements, the

5 Paid Plaintiffs had a greater interest in maximizing the amount

6 of attorneys' fees awarded to MILBERG WEISS than in maximizing

7 the net recovery to the absent class members and shareholders.

8 30. To conceal their illegal kickback arrangements from the

9 courts presiding over the Lawsuits, the other parties to the

10 Lawsuits, and the absent class members and shareholders whose 11. interests they purported to represent in the Lawsuits,

12 MILBERG WEISS, BERSHAD, SCHULMAN, the Paid Plaintiffs, and others

13 known and unknown to the Grand Jury engaged and caused others to

14 engage in various fraudulent and deceptive acts, practices, and

15 devices. Among other things, MILBERG WEISS, BERSHAD, SCHULMAN,

16 the Paid Plaintiffs, and others known and unknown to the

17 Grand Jury made and caused others to make false and misleading

18. statements, and omitted and caused others to omit material facts,

19 in complaints, motions, certifications, declarations, and other

20 documents filed in the Lawsuits, and in depositions and other

21 discovery of the Paid Plaintiffs taken in the Lawsuits.

22: Additionally, MILBERG WEISS,. BERSHAD, SCHULMAN, and others known

23 and unknown to the Grand Jury concealed and disguised the illegal

24 kickbacks by, among other things, paying the kickbacks in cash

25 and through intermediary law firms and lawyers selected by the

26 Paid Plaintiffs (hereinafter the "Intermediary Lawyers"), who

27 then used and disbursed the payments at the direction, and for

28 the benefit, of the Paid Plaintiffs.

12 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 17 of 106

31. The Intermediary Lawyers included: (a) SELZER, the

2 Palm Springs Law Firm, the Selzer Law Firm, other attorneys and

3 their associated law firms in Los Angeles, California ("Lazar

4 Intermediary A"), Portland, Oregon ("Lazar Intermediary B"),

5 Santa Ana, California ("Lazar Intermediary C"), and Kansas City,

6 Kansas ("Lazar Intermediary D"), and a Los Angeles entertainment

7 lawyer ("Lazar Intermediary E"), all of whom acted as

8 intermediary lawyers for LAZAR; (b) attorneys in Denver, Colorado

9 and New York, New York, and their associated law firms ("Vogel

10. Intermediary A".and "Vogel Intermediary B," respectively), who

11 acted as intermediary lawyers for Vogel; and (c) attorneys in

12 Los Angeles and Santa Monica, California and their associated law

13 firms ("Cooperman Intermediary A" and "Cooperman Intermediary B,"

14 respectively), who acted as intermediary lawyers for Cooperman.

.15 32. The concealment of the secret and illegal kickback

16 arrangements and payments from the courts presiding over the

17 Lawsuits influenced, obstructed, and impeded the ability of such

18 courts to assess and determine: (a) the appropriateness of

19 approving the Lawsuits to proceed as class actions or shareholder

2.0. derivative actions; (b) the ability of the Paid Plaintiffs and

21' their spouses and associated entities to fairly.and adequately.

22: represent the'.interests of the absent class members or

23 shareholders; (c) the ability of MILBERG WEISS, BERSHAD,

24 SCHULMAN, and other MILBERG WEISS lawyers to fairly and

25 adequately represent the interests of the absent class members or

26. shareholders; (d) the fairness of settlements proposed by

27 MILBERG WEISS, BERSHAD, SCHULMAN, and the Paid Plaintiffs in the

28 Lawsuits; and (e) whether and the extent to which MILBERG WEISS

13 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 18 of 106

should be awarded the attorneys' fees it sought in the Lawsuits.

2 33. By defendants MILBERG WEISS, BERSHAD, SCHULMAN, and 3 others known and unknown to the Grand Jury offering, promising to

4 pay, and paying the Paid Plaintiffs secret and illegal kickbacks,

5 and by the Paid Plaintiffs directing and-accepting such payments,

6 the absent class members and shareholders in each of the Lawsuits 7 were deprived of:

8 (a) the honest services of MILBERG WEISS, BERSHAD,

9 SCHULMAN, LAZAR, the other Paid Plaintiffs, and others known and

10 unknown to the Grand Jury, including: (i) the services of a named

11 plaintiff who was free from any conflict of interest that might

12 impair his or her ability to fairly and adequately represent

13 their interests; (ii) the services of attorneys who were able to

14 fairly and adequately represent their interests without

15 preference to the interests of a named plaintiff; and (iii) the

16 services of a named plaintiff and attorneys who would not act in

17 a deceitful, unethical, or unlawful manner toward them or the 18 court;

19 (b) material economic information that affected their

20 right and ability to influence and control class actions and

-21. shareholder derivative actions brought.on their behalf; and

22 (c) the amount of any kickback that MILBERG WEISS paid

23: using attorneys' fees obtained in the Lawsuit.

24 V.. SUMMARY OF KICKBACK PAYMENTS

25 A. Kickback Payments to Lazar

26 34. Beginning in or about 1981 and continuing through at

27 least in or about 2004, LAZAR served, and caused his relatives

28 and an affiliated entity to serve, as named plaintiffs in

14 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 19 of 106

approximately seventy lawsuits. In total, MILBERG WEISS, 2 BERSHAD, and others known and unknown to the Grand Jury made and

3 caused to be made approximately $ 2.4 million in secret and 4 illegal kickback payments for the benefit of LAZAR. Among such

5 kickback payments were the following, which MILBERG WEISS

6 associated with the lawsuits identified below and other

7 procedurally related lawsuits:

9 Arcata , Civ. No. 257916 LAZAR 10 04/19/84' $ 8,000 (San Mateo Count y, California, 1111111111111Superior 1 04/19/84 $ 32,000 11 Court) 08/29/84 $ 54,000 12 Standard Oil/British LAZAR . 06/29/87 $ 50,000 . 13 Petroleum , No. 127045 (Cuyahoga County, Ohio 08/17/89 $ 50 , 000 14 Court of Common Pleas)

15 Genentech I , C-88-4038 LAZAR 01/23/91 $ 150,000 (United States District Court, 16 Northern District of California) 04/28/92 $ 150,000 (one payment 17 associated with four cases) 18 Ashland Oil , 86-2465 LAZAR's wife 04/28/92 $ 150,000 (United States District (one payment 1920 Court, Central District associated with of California) four cases) Jardine/Bear 21.: Stearns , LAZAR 04/28/92 $ 150,000 No. 87-26513 (Supreme (one payment Court of New 22 York County, associated with New York) four cases) 23 PG&E , No. 893849 LAZAR's 04/28/92 $ 150,000 -(-San Francisco County, mother-in- 24. (one payment California, Superior law associated with Court) 25 four cases) Beverly Hills Savings , LAZAR 12/17/92 $ 90,079 26 No. CV 85-2702 (United States District Court, 27 Central District of California) 28

15 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 20 of 106

1..

2 New Image , No. CV 90-6345 LAZAR 07/09/93 $ 51,881 3 [(United States District Court, Central District 4 of California) 5 Zenith National , LAZAR's wife 12/16/93 $ 89,000 BC 015017 (Los Angeles 6 County, California, 12/29/93 $ 201,329 Superior Court) 7 07/17/95 $ 65,000 07/17/95 8 $ 35,000 United Airlines , LAZAR's son 03/10/95 $ 250,000 9 No. 13312 (New Castle County, Delaware Chancery 10 Court)

11 Lockheed , CA 001171 (Los LAZAR 09/28/95 $ 60,000 Angeles County, 12 California, Superior Court) 13 ZZZZ Best , No..CV 87-6151 LAZAR; 12/14/95 $ 50,000 14 (United States District LAZAR's wife Court, Central District 05/20/96 $ 60,000 15 of California) (one payment associated with 16 two cases) 17 Community Psychiatric , Cooperman 03/07/96 $ 25,000 No. 91-5258 (United 18 States District Court, Central District of 19 California) . 20'. Genentech III , No. 14268 LAZAR 05/20/96 $ 60,000 (New Castle County, (one payment 21. Delaware, Chancery Court) associated with two cases) 22: 12/17/96 $ 60,000 23• .(one payment 24 associated with two cases) Copley Pharmaceutical , LAZAR 12/17/96 $ 60,000 25. No. 95-10113 (United (one payment States District Court, associated with 26 District of two cases) Massachusetts) 27

16 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 21 of 106

2 Concord Holdings , Civ 94- LAZAR 05/06/97 $ 46,175 3 20579 (United States District Court, Northern 4 District of California) 5 Denny's , No. 736748-7 LAZAR's son 11/14/97 . $ 80,000 (Alameda County, 6 California, Superior 08/12/98 $ 50,000 Court) 7 12/18/98 $ 50,000 06/25/99 8 $ 50,000 (one payment 9 associated with two cases) 10 12/08/99 $ 75,000 (one payment 11 associated with two cases) 12 05/26/00 $ 125,000 13 (one payment associated with 1.4 . two cases)

15 W.R. Grace , Civ. 95-8633 LAZAR 05/14/98 $ 75,000 (United States District 16 Court, Southern District 06/25/99 $ 50,000 of Florida) (one payment 17 associated with .two cases) 18 12/08/99 $ 75,000 (one payment 19 associated with two cases) 20 05/26/00 $ 125,000 21; (one payment associated-with' 22 two cases) 23 Schein. Pharmaceutical , LAZAR's 12/28/00 $ 50,000 Civ. _98.-4311 (United .daughter 24 S ta tes D i str i ct Court, District of New Jersey) 07/09/01 $ 133,000 25

26 B. Kickback Payments to Vogel 27 35. Beginning in or about 1991 and continuing through at 28 least in or about 2005, Vogel served, and caused his relatives

17 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 22 of 106

1.1

and associated entities to serve, as named plaintiffs in

2 approximately forty lawsuits. In total, MILBERG WEISS, BERSHAD,

3 SCHULMAN, Partner E, and others known and unknown to the

4 Grand Jury made and caused to be made approximately $ 2.5 million

5 in secret and illegal kickback payments for the benefit of Vogel.

6 Among such kickback payments were the following, made in

7 connection with the lawsuits identified below and other

8 procedurally related lawsuits:

10 Valero Energy , No. 1991 CI Vogel and 12/28/92 $ 637,223 11 12179 (Bexar, Texas Vogel's wife District Court) (" Valero 12 I") 13 Valero Natural Gas Vogel 07/18/94 $ 69,861 Partners , No. 13194 (New 14- Castle County, Delaware Chancery Court) 15 (" Valero II ")

16 Guaranty National , Vogel's wife 08/08/97 $ 44,115 No. 0602632/1996 (New York 17 County, New York-Supreme Court) 18 Guaranty National , No. 97- Vogel's wife 04/27/99 $ 47,160 19- CV-5754 (United States District Court, District of M: Colorado) Santa Fe Pacific Pipeline Vogel's wife 0.4/27/99 $ 10,920 21 Partners , No. 785816 (Orange County., 22; :California Superior Court) 23.1 Vastar Resources , No. 17890 Vogel's wife 12/05/00 $ 94,000 ------24 -(New-Castle County, Delaware Chancery Court) 25 Travelers Property Vogel 05/17/01 $ 140,345 Casualty , No. 17902 (New 26 Castle County, Delaware Chancery Court) 27

18 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 23 of 106

2 Life Technologies , Vogel's wife 09/05/02 $ 1,044 3 No. 16519 (New Castle County, Delaware Chancery 4 Court) 5 Infinity Broadcasting , Vogel's wife 03/17/03 $ 86,923 No. 18219 (New Castle 6 County, Delaware Chancery Court) 7 Intimate Brands , No. 19382 Vogel's wife 03/17/03 $ 47,746 8 (New Castle County, Delaware Chancery Court) 9- Future Healthcare , No. 95- Vogel 03/21/03 $ 68,994 10: CV-182 (United States District Court, Southern 11 District of Ohio) Baan Company 12 , No. 98-CV- Vogel's 12/18/03 $ 120,000 2532 (United States stepson District Court, District of 13 Columbia)

14 Oxford Health Plans , Howard Vogel 12/18/03 $1,100,000 No. 97-CV-2325 (United Retirement 15 States District Court, Plan District of Connecticut) 1.6 US Oncology , Vogel 01/06/05 $ 11,474 17 No. 324-N (New Castle County, Delaware Chancery 02/16/05 $ 2,295 18 Court)

19 Barnesandnoble.com , No. Vogel's wife 05/19/05 $ 10,801 042-N (New Castle County, 20 Delaware Chancery Court)

21 36. In addition to the foregoing kickback payments,

2Z MILBERG WEISS, BERSHAD, Partner E, and others known and unknown

23 to the Grand Jury paid and caused to be paid to Vogel a

24 substantial amount of cash 'for causing his wife to serve as a

25 named plaintiff in the Vogel Lawsuit Vogel, et al. v. Mercer

26 Int'l Inc., et al. , CV 94-4229 (United States District Court,

27 Central District of California) ("Mercer ").

19 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 24 of 106

C. Kickback Payments to Cooperman

2 37. Beginning in or about 1988 and continuing through at

3 least in or about 1998, Cooperman served, and caused his

4 relatives and associates to serve, as named plaintiffs in

5 approximately seventy lawsuits. In total, MILBERG WEISS,

6 BERSHAD, and others known and. unknown to the Grand Jury made and

7 caused to be made approximately $ 6.5 million in secret and

8 illegal kickback payments for the benefit of Cooperman, Cooperman

9 Plaintiff 1,-and Cooperman Plaintiff 2. Among such kickback

10 payments were the following, which MILBERG WEISS associated with

11 the lawsuits identified below and other procedurally related

12 lawsuits:

15 Cetus , No. C-90-2042 ' Cooperman 11/20/91 $ 178,507 (United States District 16 Court, Northern District of California) 17 Cineplex Odeon , No. CV 89- Cooperman 01/08/92 $ 21,376 18 2579 (United States District Court, Central 19 District of California)

20 Jan Bell Marketing ,. Cooperman 07/21/92 $ 19,363 'No. CV 90-6185(United 21. States District-Court, Southern Dist^ri:ctof 22 `Florida)

23 American Continental/ `Cooperman 10/21/92. $ 440,000 Lincoln Savings , No. CV 89- Plaintiff 1 24 2448 (United States 07/19/93 $ 250;000 District Court, Central 11/09/94 $ 160 , 000 25 District of California) 12/21/95 $ 163,000 26

20 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 25 of 106

3- Software Toolworks , No. C- Cooperman 12/16/92 $ 317,885 90-2920 ( Un i ted States 4 District Court, Northern 01/15/93 $ 30,605 District of California 5 01/28/97 $ 73,560 6 01/28/97 $ 73,560

7 02/25/99 $ 128,452 LA Gear , No. CV 90-2832 Cooperman 01/29/93 $ 50,000 8 ( Un it ed S tates D i strict Court, Central District of 05/18/93 $ 160,000 9 California 07/19/93 $ 7,476 10. Prime Motor Inns , No. 90-99 Cooperman 03/12/93 $ 200,286 11 (United States District Court, District of New 12 Jersey) Sun Microsystems 13 , No. C-93- Cooperman .08/16/93 $ 99,887 20292 (United States District Court, 14 Northern District of California)

15 One Bancorp , Civil No. 89- Cooperman 08/16/93 $ 39,332 0315 (United States 16 District Court, District of Maine) 17 Epitope , Civ. No. 92-780 Cooperman 08/16/93 $ 3,849 18 (United States District Court, District or Oregon) 19 Fairfield Communities , No. Cooperman 08/16/93 $ 24,996 20 C-90-464 (United States District Court, Eastern 21 District of Arkansas)

22 Shawmut , No. H-90-253 Cooperman 08/16/93 $ 13,436 (United States District 23. Court, District of Connecticut) 24 Valley National , No. Civ. Cooperman 03/01/94 $ 17,458 89-1733 (United States 25 District Court, District of Arizona) 26

21 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 26 of 106

3 First Executive , No. 89- Cooperman 03/11/94 $ 763,997 7135 ( Unit ed States 4 District Court, Central 05/27/94 $ 211,000 5 District of California) 05/27/94. $ 100,000 6 02/15/95 $ 100,000

7 12/21/95 $ 200,000 12/21/95 8. $ 140,000 04/04/96 $ 150,000 9 Columbia Savings & Loan , Cooperman 03/31/94 $ 200,000 10 No . CV 89-6538 ( Uni te d States District Court, 04/29/94 $ 112,495 11 Central District of California) 07/27/94 $ 200,000 12 08/04/94 $ 250,000 13- 09/22/94 $ 191,278 14 03/30/95 $ 79,000 15. 03/30/95 $ 79,000 U.S. Bioscience , No. CV 92- 16 associate of 09./22/94 $ 2,700 0743 (United States Cooperman District Court, Eastern 17 District of Pennsylvania)

18 Abbott Laboratories , Cooperman 07/05/95 $ 25,868 Civ. No. 632601 (San Diego 19 County, California, Superior Court) (aka 20 " Infant Formula ")

21.- T2 Medical ., No. CV 94-1584 one of 07/05/95 $ 6,433 (United States District Cooperman's . 22. Court, Northern District of brothers-in- Georgia) law 23 ; ("Cooperman 24. Brother-in- Law A")

25: Fidelity Medical , No. 92- Cooperman's 07/07/95 $ 22,207 1913 (United States wife 26 District Court, District of New Jersey) 27

22 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 27 of 106

3 SCI-TV , No. BC100359 (Los Cooperman 11/01/95 $ 100,000 Ange l es.Coun t y, C a lif orn i a, 4 Superior Court) 11/16/95 $ 81,846 5. 11/16/95 $ 100,000 6 12/01/95 $ 40,000

7 12/01/95 $ 40,000 Community Psychiatric , No. Cooperman 03/07/96 $ 180,140 8 91-5258 (Un ited Sta t es District Court, Central 11/11/96 $ 114,892 9 District of California) 02/25/99 $ 145,305 10 Heart Technology , Cooperman 05/06/97 $ 19,859 11 No. 14513 (New Castle Plaintiff 2 County, Delaware, Chancery 12 Court)

13 38. In addition to the foregoing kickback payments, during

14 the period from in or about March 1989 through February 1990,

15 MILBERG WEISS, BERSHAD, and others known and unknown to the Grand

16 Jury paid and caused to be paid approximately $245,000 to one of

17 Cooperman's brothers-in-law ("Cooperman Brother-in-Law B"), of

18 which $203,000 was forwarded to an account controlled by

19 Cooperman.

20. 39. During the period from 1984 through 2005, MI.LBERG WEISS

21 obtained more than.-approximately $ 216.1 million in attorneys'

22 fees in the Lawsuits and litigation resolving the Lawsuits, and,

23 together with BERSHAD, SCHULMAN, and others known and unknown to

24 1 the Grand Jury, paid and caused to be paid more than -

25 approximately $ 11.3 million in secret and illegal kickbacks to

26 the Paid Plaintiffs.

23 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 28 of 106

COUNT ONE

2 [Defendants MILBERG WEISS, BERSHAD, SCHULMAN, and LAZAR]

3 [18 U.S.C. § 371]

4[Conspiracy]

5 40. The^Grand Jury hereby repeats and realleges paragraphs

6 1 through 39 of this Indictment.

7 I. THE OBJECTS OF THE CONSPIRACY

8 41. Beginning on a date unknown but at least as early as in

9 or about 1981, and continuing through at least in or about 2005, 10 within the Central District of California and elsewhere,

11 defendants MILBERG WEISS, DAVID J. BERSHAD, STEVEN G. SCHULMAN,

12 and SEYMOUR M. LAZAR, together with Partner A, Partner B, the

13 other Paid Plaintiffs, and other persons known and unknown to the

14 Grand Jury, knowingly combined, conspired, and agreed to commit

15 the following offenses against the United States:

16 a. to commit obstruction of justice by corruptly

17 influencing, obstructing, and impeding, and endeavoring to

18 influence, obstruct, and impede, the due administration of

19 justice in the Lawsuits filed and litigated in federal courts, in

20 violation of Title 18, United States Code, Section 1503;

21, b. to make false material declarations under oath in

22 proceedings before and ancillary to courts of the United States,

23 in connection with the Lawsuits filed and litigated in federal 24, courts, in violation of Title 18, United States Code, 25 11 Section 1623(a);

26 c. to travel in interstate commerce and to use the

27 II mail and other facilities in interstate commerce with intent to

280 distribute the proceeds of unlawful activity and otherwise to

24 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 29 of 106

facilitate the promotion, management, and carrying on of such

2 unlawful activity, namely, commercial bribery of the

Paid Plaintiffs, in violation of New York Penal Law

4 Section 180.00, and thereafter to perform and attempt to perform

5 acts to distribute the proceeds of such unlawful activity and to

6 facilitate the promotion, management, and carrying on of such

7 activity, in violation of Title 18, United States Code,

8 Section 1952(a)(1), (3).

9 d. to commit mail fraud by using the United States

10 mails and commercial. interstate carriers to execute a scheme to

11 defraud absent class members and shareholders in the Lawsuits as

12 to a material matter, by depriving them of money and property and

13 the honest services of MILBERG WEISS, BERSHAD, SCHULMAN, LAZAR,

14 the other Paid Plaintiffs, and others, and-to obtain money and

15 property by means of material false and fraudulent pretenses,

16 representations, and promises, in violation of Title 18, United

17 States Code, Sections 1341 and 1346;

18. e. to commit wire fraud by using interstate wire and

19.1 radio communications to execute a scheme to defraud absent class

20 (members and shareholders in the Lawsuits as to a material matter,.

21 : by depriving them of money and property and the honest services

22. of MILBERG WEISS, BERSHAD, SCHULMAN, LAZAR, the other

23 Paid Plaintiffs, and others, and to obtain money and property by 24 means of material false and fraudulent pretenses,

25 representations, and promises, in violation of Title 18, United 26 States Code, Sections 1343 and 1346; and

27 f. to make illegal payments to a witness by giving,

28 offering, and promising money to the Paid Plaintiffs, for and

25 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 30 of 106

because of the testimony under oath or affirmation given and to

2 be given by the Paid Plaintiffs as a witness upon a trial,

3 hearing, or other proceeding before a court authorized by the

4 laws of the United States to hear evidence or take testimony in

5 the Lawsuits, filed or litigated in federal courts, in violation

6 of Title 18, United States Code, Section 201(c)(2).

7 II. MANNER AND MEANS OF THE CONSPIRACY

8 42. The objects of the conspiracy were carried out in the

9 manner and by the means described below, among others.

10 43. MILBERG WEISS, BERSHAD, SCHULMAN, and others known and

11 unknown to the Grand Jury arranged for the Paid Plaintiffs to

12 serve, and to cause relatives and associates to serve, as named

13. plaintiffs in class actions and shareholder derivative actions in

14 which MILBERG WEISS served as counsel.

15 44. As an inducement to the Paid Plaintiffs to serve, and

16 to induce them to cause relatives and associates to serve, as

17 named plaintiffs, MILBERG WEISS, BERSHAD, SCHULMAN, and others

18 known and unknown to the Grand Jury offered, promised, and agreed

19- secretly to pay the Paid Plaintiffs kickbacks consisting of a

20 portion of th.e:,attorneys' fees that MILBERG WEISS expected to

21obtain in.each action in which the respective Paid Plaintiff.

22` served, or caused a relative or associate to serve, as a named 23 plaintiff.

24 45. In the course of the Lawsuits, MILBERG WEISS, BERSHAD,

25. SCHULMAN,. LAZAR, the other Paid Plaintiffs, and others known and

26 unknown to the Grand Jury engaged in, and caused each other to

27 engage in, various fraudulent and deceptive acts, practices, and

28 devices, including the following:

26 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 31 of 106

a. MILBERG WEISS, BERSHAD, SCHULMAN, LAZAR, the other

2 Paid Plaintiffs, and others known and unknown to the Grand Jury,

3 concealed their illegal kickback arrangements from the courts

4 presiding over, the other parties to, and the absent class 5 members and shareholders in the Lawsuits;

6 b. MILBERG WEISS, BERSHAD, SCHULMAN, LAZAR, the other

7 Paid Plaintiffs, and others known and unknown to the Grand Jury

8 made and caused to be made false and misleading representations

9 in: (i) complaints to initiate and maintain the Lawsuits;

10 (ii) motions seeking court approval for the Lawsuits to proceed

11 as class actions or shareholder derivative actions; and

12 (iii) motions seeking court approval of MILBERG WEISS and the

13 Paid Plaintiffs or their spouses or associated entities to

14 represent absent class members or shareholders in the Lawsuits.

15' Specifically, they caused to be represented in these pleadings

16. that the Paid Plaintiffs or their spouses or associated entities

17 had no interest in conflict with, or antagonistic to, absent

18: class members or shareholders in the Lawsuits, and that

19 MILBERG WEISS and the Paid Plaintiffs or their spouses or

20 associated entities would fairly and adequately represent their

21; interests. In truth and in fact, as MILBERG WEISS, BERSHAD,

22;-SCHULMAN, .LAZAR, and the other Paid Plaintiffs well knew, the

23 interests of the Paid Plaintiffs or their spouses or associated

24 entities conflicted with those of absent class members or-

25 shareholders because, as a result of their secret and illegal

26 kickback arrangements, they had a greater interest in maximizing

27 the amount of attorneys' fees awarded to MILBERG WEISS than in

28 maximizing the net recovery to the absent-class members or

27 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 32 of 106

. shareholders. Additionally, as a result of the secret and

2 illegal kickback arrangements, MILBERG WEISS improperly favored

3. the financial interests of the Paid Plaintiffs or their spouses

4 or associated entities over the interests of the absent class

5 members or shareholders.

6. C. In under-oath testimony given in connection with

7 the Lawsuits and in written certifications, declarations, and

8 other documents signed under penalty of perjury in the Lawsuits,

9 LAZAR and the other Paid Plaintiffs, acting in concert with

10 MILBERG WEISS, BERSHAD, SCHULMAN, and others, falsely denied that

11 they had ever received, or expected to receive, any payment for

12 serving as a named plaintiff other than their pro rata share of

13. the recovery based on the same terms as the pro rata shares

14 available to all of the absent class members or shareholders. In

15 truth and in fact, as MILBERG WEISS, BERSHAD, SCHULMAN, LAZAR,

16 and the other Paid Plaintiffs well knew, in return for serving as

17 named plaintiffs the Paid Plaintiffs had received and expected to

18 receive from MILBERG WEISS, BERSHAD, SCHULMAN, and others

19: kickback payments that substantially exceeded any pro rata share

2Q..._1of the recovery they received, or could expect to receive, based

21:.;on the terms used to determine the pro rata.shares available to .

22 .all of the. absent class members'or shareholders-in the Lawsuits.

23. d. MILBERG WEISS, BERSHAD, SCHULMAN, LAZAR, the other

24. Paid Plaintiffs, and others'known and unknown to the Grand Jury

25. caused the Lawsuits to be settled in a manner that often would

26:11 generate substantial attorneys' fees for MILBERG WEISS, while

27 concealing from the courts approving these settlements, and from

28 the absent class members or shareholders on whose behalf the

28 Case 3:04-cv-02297-SC . Document 242-5 Filed 08/28/2007 Page 33 of 106

settlements were being negotiated, their secret and illegal

2 kickback arrangements.

3 e. -MILBERG WEISS, BERSHAD, SCHULMAN, LAZAR, the other

4 Paid Plaintiffs, and others known and unknown to the Grand Jury

5 caused to be filed motions in the Lawsuits seeking the awards of

-6 attorneys' fees to MILBERG WEISS, in which they concealed from

7 the courts awarding attorneys' fees, and the absent class members

8 or shareholders, their illegal kickback arrangements under which

9 the awarded attorneys' fees secretly would be shared with the 10 Paid Plaintiffs.

11 46. In the course of certain of the securities fraud class

12 action Lawsuits, MILBERG WEISS, BERSHAD, SCHULMAN, Vogel,

13 Cooperman Plaintiff 1, Cooperman Plaintiff 2, and others known

14 and unknown to the Grand Jury engaged in, and caused each other

15 to engage in, additional fraudulent and deceptive acts,

16 practices, and devices, including the following:

17 a. MILBERG WEISS, BERSHAD, SCHULMAN, and others known

18 and unknown to the Grand Jury falsely represented and caused to

19 be falsely represented in complaints and other pleadings filed in

2.0. such Lawsuits that the Paid Plaintiffs' claims were typical of

21 the. claims of the members of. the class and that the

22` Paid Plaintiffs relied on the allegedly-false And misleading

23. statements made by the defendants in the Lawsuits when purchasing.

24 the securities at issue in the Lawsuits. In truth and in fact,

25 as MILBERG WEISS, BERSHAD, SCHULMAN, and others well knew, the

26 Paid Plaintiffs' claims in such Lawsuits were not typical of the

27 claims of the class members. Unlike the other class members in

2811 the Lawsuits, the Paid Plaintiffs purchased the securities at

29 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 34 of 106

issue anticipating that the securities would decline in value, inj

2 order to position themselves to be named plaintiffs in securities

3 fraud class actions and to obtain kickback payments from MILBERG

4 WEISS, BERSHAD, SCHULMAN, and others.

5 b. In under-oath testimony given in connection with

6 such Lawsuits and in written certifications, declarations, and

7 other documents signed under penalty of perjury in such Lawsuits,

8 Vogel, Cooperman Plaintiff 1, Cooperman Plaintiff 2, and other

9 Paid Plaintiffs, acting in concert with MILBERG WEISS, BERSHAD,

10 SCHULMAN, and others known and unknown to the Grand Jury, falsely

11 denied that they purchased the securities at issue in the

12 Lawsuits in order to be named plaintiffs. In truth and in fact,

13 as MILBERG WEISS, BERSHAD, SCHULMAN, the Paid Plaintiffs in such

14 Lawsuits, and others well knew, the Paid Plaintiffs purchased the

15 securities at issue in order to position themselves to be named

16, plaintiffs in securities fraud class actions and to obtain

.17 kickback payments from MILBERG WEISS, BERSHAD, SCHULMAN, and

18 others.

19. 47. After the court in a Lawsuit awarded attorneys' fees,

20:^or was expected to award attorneys' fees, MILBERG WEISS, BERSHAD,.

21. SCHULMAN, and others known. and unknown-to the Grand'Jury arranged..

.22: for the secret and illegal kickbacks to_be paid to the Paid

23^ Plaintiffs. To conceal and disguise these kickback payments,

24 among other things: (a) MILBERG WEISS, BERSHAD, and others known

25 and unknown to the Grand Jury made and caused kickback payments

26 to be made in cash given directly to the Paid Plaintiffs; and

27 (b) MILBERG WEISS, BERSHAD, SCHULMAN, and others known and

28 unknown to the Grand Jury made and caused kickback payments to be

30 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 35 of 106

made by MILBERG WEISS check payable to the Intermediary Lawyers

2 or other professionals selected by the Paid Plaintiffs, who then.

3 used and disbursed the payments at the direction, and for the 4 benefit, of the Paid Plaintiffs.

5 48. To further conceal and disguise the kickbacks paid to 6 the Paid Plaintiffs in cash:

7 a. MILBERG WEISS, BERSHAD, Partner A, and others

8. known and unknown to the Grand Jury obtained and caused to be

9 obtained the cash in a manner that made the payments difficult to

10 trace, including from casinos;

11 b. MILBERG WEISS, BERSHAD, and.others known and

12 unknown to the Grand Jury kept cash used to make such payments in

13. a safe located in a credenza in BERSHAD's office at

14 MILBERG WEISS, to which access was strictly limited;

15 c. MILBERG WEISS, BERSHAD, and others known and

16 unknown to the Grand Jury failed to record such cash payments in

17 MILBERG WEISS's accounting books and records.

18. 49. To further conceal and disguise the kickbacks paid by

19 MILBERG WEISS check made payable to the Intermediary Lawyers or

.20 other professionals selected by the Paid Plaintiffs:

21.. a. MILBERG WEISS, BERSHAD,.SCHULMAN,and others.known

22 and unknown to the Grand Jury caused such payments to be falsely

23 characterized in MILBERG WEISS's accounting books and records as,

24 among other things, referral fees, professional fees, and "fees

25 to others" paid to the Intermediary Lawyers or other

26 professionals;

27 / / /

28 / / /

31 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 36 of 106

b. MILBERG WEISS, BERSHAD, SCHULMAN, and others known

2 and unknown to the Grand Jury falsely characterized such payments

3 in accompanying cover letters as, among other things: the

4 Intermediary Lawyer's "entitlement" for work and responsibility

5 "assumed" in a Lawsuit; the Intermediary Lawyer's "share" of

6 attorneys' fees for "work, services, and joint representation" of

7 a Paid Plaintiff in a Lawsuit; "referral" fees earned by the

8 'Intermediary Lawyer in a Lawsuit; the Intermediary Lawyer's

9. ".participation" in MILBERG WEISS's fee award in a Lawsuit; or

10 made -on account of cases" that MILBERG WEISS was "doing" with

11 the Intermediary Lawyer or other professional;

12 c. MILBERG WEISS, BERSHAD, and others known and

13 unknown to the Grand Jury provided and caused to be provided

14 false and misleading information to MILBERG WEISS's outside

15 accountants and tax return preparers concerning such payments,

16 which helped to disguise them as legitimate fees paid for the

17 benefit of the Intermediary Lawyers and other professionals,

18 rather than as illegal kickback payments for the benefit of the

19 Paid Plaintiffs; and

20: d. MILBERG.WEISS, BERSHAD, and others known and

21: unknown to the Grand Jury issued and-caused to be issued IRS

22 Forms _1099-MISC_to the Intermediary Lawyers, which made it appear

23 as if such payments were legal referral fees for the benefit of

24 the Intermediary Lawyers.

25 50. After an Intermediary Lawyer or other professional

26 received a kickback payment from MILBERG WEISS, the

27 Paid Plaintiff directed the Intermediary Lawyer or other

28 professional to use and apply such kickback payment for the

32 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 37 of 106

benefit of the Paid Plaintiff including, among other things:

2 (a) to make a payment directly to the Paid Plaintiff; (b) to

3 satisfy legal fees or expenses that the Paid Plaintiff owed or

4. would owe to the Intermediary Lawyer; and (c) to pay third

5 parties to whom-the Paid Plaintiff owed money.

6 III. OVERT ACTS

7 51. In furtherance of the conspiracy and to accomplish its

8 object, defendants MILBERG WEISS, BERSHAD, SCHULMAN, and LAZAR,

9 together with Partner A, Partner B, the other Paid Plaintiffs,

10 and others known and unknown to the Grand Jury, committed and

11 caused others to commit the following overt acts, among others,

12 din the Central District of California and elsewhere, in

.13 : connection with the following Lawsuits.

14 A. Overt Acts in the Lazar Lawsuits

15 The Arcata Class Action

16 Overt Act No. 1 : On or about October 1, 1981,

17 MILBERG WEISS and others known and unknown to the Grand Jury

18 caused to be filed a verified class action and shareholder

19 derivative action complaint in the Arcata lawsuit, naming

20 defendant LAZAR as a plaintiff.

21` Overt Act No. 2 : On or about March 1, 1982, in support

22.^ of a request that the court certify Arcata as a class action,

23 LAZAR falsely represented, under penalty of perjury, that he had

24 "no agreement or understanding' to share in the legal fees, if

25 any, that are awarded to (MILBERG WEISS]."

26: Overt Act No. 3 : On or about March 13, 1984,

27 MILBERG WEISS obtained approximately $821,000 in attorneys' fees

28 awarded by the court in Arcata .

33 --- - Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 38 of 106

Overt Act No. 4 : On or about April 19, 1984,

2 MILBERG WEISS paid $8,000 to Lazar Intermediary D, which

3 MILBERG WEISS characterized in its accounting books and records

4 as. professional fees to Lazar Intermediary D.relating to LAZAR.

5 Overt Act No. 5 : In or about April 1984, LAZAR caused

6 Lazar Intermediary D.to use proceeds of the payment described in

7 Overt Act No. 4 for LAZAR's benefit.

8 Overt Act No. 6 : On or about April 19, 1984,

9 MILBERG WEISS sent to Selzer and the Palm Springs Law Firm a

10 $32,000 check, which MILBERG WEISS characterized in its

11 accounting books and records as professional fees to the Palm

12 Springs Law Firm relating to LAZAR.

13 Overt Act No. 7 : On or about April 30, 1984, LAZAR

14 caused the Palm Springs Law Firm to use the proceeds of the check

15 described in Overt Act No. 6 to satisfy $32-,000 in legal fees

16 owed by LAZAR to the Palm Springs Law Firm.

17 Overt Act No. 8 : On or about July 16, 1984,

18 MILBERG WEISS obtained approximately $547,168 in additional

19 attorneys' fees awarded by the court in Arcata .

20. Overt Act No. 9 : On or about August-23, 1984, LAZAR

21: caused the Palm Springs Law Firm to send to MILBERG WEISS an

22 -invoice billing the New York Law Firm in the amount of $54,000

23: for "Legal Services rendered to Seymour Lazar."

24 Overt Act No. 10 : On or about•August 29, 1984,

25 MILBERG WEISS sent to the Palm Springs Law Firm a $54,000 check,,

26 which MILBERG WEISS characterized in its accounting books and

27 records as "fees to others" paid to the Palm Springs Law Firm 28 relating to Arcata .

34 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 39 of 106

Overt Act No. 11 : On or about September 11, 1984, LAZAR

2 and Selzer caused the Palm Springs Law Firm to deposit the

3 $54,000 check described in.Overt Act No. 10 into a personal trust

4 account established for the benefit of LAZAR.

5 Overt Acts Nos. 12-17 : On or about the following dates,

6 LAZAR and Selzer caused the Palm Springs Law Firm to use the

7 proceeds of the $54,000 check described in Overt Act No. 11 to

8 make-the following payments and credits, among others, for the 9 benefit of LAZAR: 10

19. Overt Act No. 18 : On or about August 29, 1984, MILBERG 20 VEISS recharacterized in-its accounting books. and records the 21: $8,000 and $32,000 payments described in Overt Acts Nos. 4-and 6 22. from "professional fees" relating to LAZAR to "fees to others" 23 relating to Arcata . 24 The Standard Oil/British Petroleum Class Action 25 Overt Act No. 19 : In or about April 1987, MILBERG WEISS 26 and others known and unknown to the Grand Jury caused to be filed 27 a class action complaint in the Standard Oil/British Petroleum 28 lawsuit, naming LAZAR as a plaintiff.

35 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 40 of 106

Overt Act No. 20 : On or about June 22, 1987, LAZAR

2 caused Selzer to send a letter to Partner A purportedly

3 confirming that MILBERG WEISS had agreed to pay 10% of the fees

4 it received in Standard Oil/British Petroleum to the Palm Springs

c Law Firm "on account of services rendered by [the Palm Springs

6 Law Firm] to Mr. Lazar" and requesting that MILBERG WEISS

"advance" the Palm Springs Law Firm "$50,000 on or before June 8 1130, 1987."

a Overt Act No. 21 : On or about June 29, 1987, MILBERG

.10 WEISS and BERSHAD caused to be sent to Selzer and the Palm

11 Springs Law Firm a $50,000 check, with a cover letter signed by

12 BERSHAD falsely describing the payment as fees to Selzer and the

13 Palm Springs Law Firm "in furtherance of arrangements made" with

14 regard to " Lazar v. British Petroleum ."

15 Overt Act No. 22 : On or about June 30, 1987, LAZAR and

16 Selzer caused the Palm Springs Law Firm to use the proceeds of

17 the check described in Overt Act No. 21 to satisfy $50,000 in

18 legal fees that LAZAR owed to the Palm Springs Law Firm.

19 Overt Act No. 23 : On or about August 21, 1989,

..2.0 MILBERG WEISS and BERSHAD caused to be sent.to Selzer and the

21 Palm Springs Law Firm a $50,000. check, with a cover letter signed

,by BERSHAD falsely stating that the check "represent[ed] your 2223 share of fees earned on Lazar v. Standard Oil."

24 Overt-Act No. 24 : On or about August 25, 1989, LAZAR

25 and Selzer caused the Palm Springs Law Firm to use the proceeds

26 of the check described in Overt Act No. 23 to satisfy $50,000 in

27 legal fees that LAZAR owed to the Palm Springs Law Firm. 28

36 _._._Case.2:.04.-cv-02297-SC._ Document 242-5 Filed 08/28/2007 Page 41 of 106

The Genentech I Class Action

2 Overt Act No. 25 : On or about January 9, 1990,

3 MILBERG WEISS and others known and unknown to the Grand Jury

4 caused to be filed with the court an amended class action

5 complaint in the Genentech I lawsuit, naming LAZAR as a

6 plaintiff.

7 Overt Act No. 26 : On or about March 30, 1990,

8 MILBERG WEISS and others known and unknown to the Grand Jury

9 caused to be filed with the court a memorandum in support of a

10 request that the court certify Genentech I as a class action, in

11 which they falsely represented that LAZAR's interests in the

12 lawsuit were "coextensive with, and in no way antagonistic to

13 those of the members of the Class[.]"

14 Overt Act No. 27 : On or about January 24, 1991,

15 MILBERG WEISS and BERSHAD caused to be sent to Selzer and the

16 Palm Springs Law Firm a $150,000 check, with a cover letter

17 signed by BERSHAD falsely stating that the check was a "payment

18 toward your firm's referral entitlement in connection with

19 [ Genentech I ]."

20 Overt Act No. 28 : On or about January 28, 1991, LAZAR .

.21. .and Selzer caused the: proceeds of the check described in Overt

22` Act No. 27 to be deposited into the Palm Springs Law Firm's-

23 client trust account, for the benefit of LAZAR.

24 Overt Acts'Nos. 29-31 : On or about the following dates,

25 LAZAR and Selzer caused the proceeds of the check described in

26 Overt Act No. 27 to be used to make the following payments and

27 credits for the benefit of LAZAR: 28

37 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 42 of 106

5 The Ashland Oil Class Action 6 Overt Act No. 32 : On or about April 9, 1986, 7 •MILBERG WEISS and others known and unknown to the Grand Jury 8 caused to be filed with the court a class action and shareholder 9 derivative action complaint in the Ashland Oil lawsuit, naming 10 LAZAR's wife as a plaintiff. 11 Overt Act No. 33 : On or about November 3, 1988, after 12 the removal and transfer of Ashland Oil from the Los Angeles 13 County Superior Court to the United States District Court for the 14 Southern District of New York, MILBERG WEISS and others known and 15 unknown to the Grand Jury caused to be filed with the federal 16. court a sworn affidavit in support of a request that the court 17 certify Ashland Oil as a class action, in which they falsely 18 represented that LAZAR's wife had "no conflict of interest" with 19 "the other investors whom plaintiff seeks to represent." 20 Overt Act No. 34 : On or about October 24, 1989, in an 21. under-oath deposition in Ashland Oil , MILBERG WEISS and LAZAR 22 caused LAZAR's wife to deny falsely that she had any "financial 23 interest in the outcome of the lawsuit, other than what [she- 24 would] receive as damages if [her] individual complaint [was] 25 successful." 26 Overt Act No. 35 : On or about April 28, 1992, 27 MILBERG WEISS and BERSHAD caused to be sent to Selzer and the 28 Palm Springs Law Firm a $150,000 check, with a cover letter

38 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 43 of 106

signed by BERSHAD falsely stating that the.check was "in full

2 payment of your firm's referral entitlement in connection with"

3 Genentech I , Ashland Oil , and two other class actions in which

4 LAZAR or a family member served as a named plaintiff.

5 Overt Act No. 36 : On or about May 5, 1992, LAZAR and

6 Selzer caused the. check described in Overt Act No. 35 to be

7 deposited into the Palm Springs Law Firm's client trust account

8 for the benefit of LAZAR.

9 Overt Acts Nos. 37-38 : On or about the following

10 dates, LAZAR and Selzer caused the proceeds of the check

11 described in Overt Act No. 35 to be used to make the following

12 payments and credits for the benefit of LAZAR:

14 No. 37 05/05/92 $ 25,000 surveying firm 15 No. 38 05/05/92 $ 125,000 the Palm Springs Law Firm 16 The Beverly Hills Savings Class Action 17 Overt Act No. 39 : On or about December 18 11, 1985, MILBERG WEISS and others known and unknown to the 19. Grand Jury caused to be filed with the court an amended class action 20 complaint in the Beverly Hills Savings lawsuit,. naming LAZAR as 211. a

22. plaintiff, in which they falsely represented, among other things, that LAZAR had "no interests which are contrary to or 23` in conflict with" the absent class members. 24 Overt Act No. 40 On 25 : or about June 19, 1986, during an under-oath deposition 26 in Beverly Hills Savings , LAZAR, acting in concert with 27 MILBERG WEISS and others, falsely testified that he had no 28 understanding by which he would receive "any monetary advantage or any monetary sum" other than his pro rata share of

39 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 44 of 106

the recovery available to all plaintiffs in the lawsuit.

2 Overt Act No. 41 : On or about August 28, 1992,

3 MILBERG WEISS obtained approximately $900,785.53 in attorneys'

4 - fees awarded by the court in Beverly Hills Savings .

.5 Overt Act No. 42 : On or about December 17, 1992,

6 MILBERG WEISS and BERSHAD caused to be sent to Selzer and the

7. Palm Springs Law Firm a $90,078.55 check, with a cover letter

8- signed by BERSHAD falsely stating that the check "represent{ed]

9 your entitlement with regard to work and responsibility assumed

10 as counsel for Seymour Lazar" in Beverly Hills Savings .

11 Overt Acts Nos. 43-44 : On or about the following dates,

12: LAZAR and Selzer caused the proceeds of the check described in

13 Overt Act No. 42 to be used to make the following payments and

14 credits, among others, for the benefit of LAZAR: 15

19 The New Image Class Action

20_ Overt Act No. 45 : On or about November 27, 19.90,

21 MILBERG WEISS , LAZAR, and others known and unknown to the 22 Grand. Jury caused to be filed with the court a class action

23: complaint in the New Image lawsuit, naming LAZAR as a plaintiff, 24 in which they falsely represented that LAZAR had "no interest 25 which is contrary to or in conflict with those of the Class he 26 seeks to represent." 27 Overt Act No. 46 : On or about April 25, 1991, in a 28 written document that LAZAR verified under penalty of perjury,

40 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 45 of 106

MILBERG WEISS and LAZAR falsely represented that LAZAR had never

2 received any compensation from MILBERG WEISS or any of its

3 partners, and that his "claims do not in any manner conflict

4 with, or are . . . antagonistic to, those of the class."

5 Overt Act No. 47 : On or about May 7, 1991, during an

6 under-oath deposition in New Image , LAZAR, acting in concert with

7 MILBERG WEISS and others, evaded answering questions regarding

8 whether he had a "fee arrangement with" MILBERG WEISS by, among

9 :other things, denouncing the questioning as an "absolute insult."

10 Overt Act No. 48 : On or about July 9, 1993, MILBERG

11 WEISS and BERSHAD sent to Selzer and the Palm Springs Law Firm a

12 $51,880.79 check, along with a cover letter signed by BERSHAD

13 falsely stating that the check "represent[ed] your entitlement

14 with regard to work and responsibility assumed as counsel for

15 Seymour Lazar" in New Image .

16 Overt Act No. 49 : On or about July 12, 1993, LAZAR and

17 Selzer caused the Palm Springs Law Firm to use the proceeds of

18 the check described in Overt Act No. 48 to satisfy approximately

19 $51,880.79 in legal fees that LAZAR owed to the Palm Springs Law

20 Firm.

21 The W.R. Grace Class Action

22: Overt Act No. 50 : On or about October 19, 1995,

23 MILBERG WEISS and others known and unknown to the Grand Jury

24 caused to be filed with the court a class action complaint in the

25 W.R. Grace lawsuit, naming LAZAR as a plaintiff, in which they

26 falsely represented that LAZAR did not "have interests

27 antagonistic to, or in conflict with, the Class." 28

41 Case 3:04-cv-02297-SC Docu ment 242-5 Filed 08/28/2007 Page 46 of 106

Overt Act No. 51 : On or about April 24, 1998,

2 MILBERG WEISS obtained approximately $2,531,519 in attorneys'

3 fees awarded by the court in W.R. Grace .

4 Overt Act No. 52 : On or about May 14, 1998,

5 MILBERG WEISS and BERSHAD caused to be sent to the Palm Springs

6 Law Firm a $75,000 check, with a cover letter signed by BERSHAD

7 falsely stating that the check was "in recognition of your

8 supportive role with regard to [ W.R. Grace ] and our client."

9 Overt Acts Nos. 53-58 : On or about the following dates,

10 LAZAR caused the proceeds of the check described in Overt Act

11 No. 52 to be used to make the following payments and credits,

12 among others, for his benefit:

19 Overt Act No..59 : On or about June 25, 1999,

20..21. MILBERG WEISS and BERSHAD caused to be sent to . the Palm Springs

22 Law Firm a $ 50,000 check , with a cover letter signed by BERSHAD

23 falsely stating that the check "represent[ed] an incremental

24 payment of your participation in the fees earned in [ Denny's and.

25 W.R. Grace ]."

26 Overt Acts Nos. 60-61 : On or about the following dates,

27 LAZAR caused the proceeds of the check described in Overt Act

28 No. 59 to be used to make the following payments and credits, among others, for his benefit:

42 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 47 of 106

4 Overt Act No. 62 : On or about December 5 8, 1999, MILBERG WEISS and BERSHAD caused to be sent to the Palm Springs 6 Law Firm a $75,000 check, with a cover letter signed 7 by BERSHAD falsely stating that the check "represent[ed] further 8 recognition of your participation and entitlement in the fees 9 in [ Denny's and W.R. Grace ]." 10 Overt Acts Nos. 63-64 : On or about the following 11 dates, LAZAR caused the proceeds of the check described in 12 Overt Act No. 62 to be used to make the following payments and 13 credits for his benefit: 14

18 Overt Acts Nos. 65-72 : On or about the following dates, 19' LAZAR and Selzer caused the proceeds of the $15,000 payment 20. .described in Overt Act No. 64 to be used to make the following 21. payments and credits, among others, for the further benefit of 22- LAZAR: 23

43 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 48 of 106

6 Overt Act No. 73 : On or about May 26, 2000, MILBERG 7 WEISS and BERSHAD caused to be sent to the Palm Springs Law Firm 8 a $125,000 check, with a cover letter signed by BERSHAD falsely 9 stating that the check was an "additional payment upon and on

10 account of a number of the cases we have been doing including

11 among others W.R. Grace and Denny's."

12: Overt Acts Nos. 74-76 : On or about the following 13 dates, LAZAR caused the proceeds of the check described in Overt 14 Act No. 73 to be used to make the following payments and credits

15 for his benefit: 16

19.

20' Overt Acts Nos. 77-79: On or about the 21. following dates, LAZAR and Selzer caused the proceeds of the payments 22 described in Overt Acts Nos. 74 and 76 to be used to make the 23 following payments and credits for the further benefit of 24 LAZAR:

44 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 49 of 106

Other Overt Acts in Lazar Lawsuits

2 Overt Act No. 80 : On or about February 1, 1984, during

3 .an under-oath deposition taken in the Lazar Lawsuit Seymour Lazar

4 v. Unity Buying Service Co. , Civ. No. 511287 (San Diego County,

5 California, Superior Court) (" Unity Buying "), LAZAR, acting in

6 concert with MILBERG WEISS and others, falsely denied that he

7 contemplated sharing in any award of attorneys' fees in Unity

8 lBu y ing or Arcata .

9 Overt Act No. 81 : On or about January 30, 1985, in the

10 Lazar Lawsuit Seymour Lazar v. James D. Sadlier, et al. , CV 84-

11. 8100-WJR (United States District Court, Central District of

12 California) ("Arrays "), MILBERG WEISS and others known and

13 unknown to the Grand Jury caused to be filed with the court a

14 memorandum in support of a request that the court certify Arrays

15 as a class action, in which they falsely represented that LAZAR's

16 interests in the lawsuit were "congruent with and not in conflict]

17 with those of the members of the class."

18. Overt Act No. 82 : On or about March 12, 1985, during an

19 under-oath deposition in Arrays , LAZAR, acting in concert with

2Q. .M. ILBERG WEISS and others, falsely testified that he had "never,

21..ever received any sums from [MILBERG WEISS] whatsoever," and

22=...falsely denied that he had "any arrangement" with MILBERG WEISS

23 under which he was "to receive or might anticipate receiving any

24 of the award in [ Arrays ] aside from [his] own personal recovery

251 las a plaintiff."

26 Overt Act No. 83 : On or about June 10, 1985, LAZAR

27 caused Lazar Intermediary E to send an invoice in the amount of

28 1$25,000 to MILBERG WEISS for "professional services rendered."

45 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 50 of 106

Overt Act No. 84 : On or about June 25, 1985,

2 MILBERG WEISS and Partner B caused to be sent to Lazar

3 Intermediary E a $25,000 check.

4 Overt Act No. 85 : On or about July 5, 1985, LAZAR

5 caused Lazar Intermediary E to send $22,500 from the proceeds of

6 the check described in Overt Act No. 84 to Selzer and the Palm

7 Springs Law Firm, with a cover letter stating that the payment

8 represented proceeds of a check from the MILBERG WEISS

9 "ostensibly for legal services" that Lazar Intermediary E did not

10 in fact perform.

11 Overt Act No. 86 : On or about July 5, 1985, LAZAR and

12 Selzer caused the $22,500'payment described in Overt Act No. 85

13 to be deposited into a client trust account maintained by the

14. Palm Springs Law Firm for the benefit of LAZAR.

15 Overt Act No. 87 : On or about December 10, 1986,

16 MILBERG WEISS and Partner B caused to be sent to Lazar

17 Intermediary A, who was representing LAZAR in connection with a

18 dispute between LAZAR and a bank, a $35,000 check with a cover

19 letter signed by Partner B falsely stating that the payment was

20: "to satisfy our fee obligation to you" in a case referred to as

-21. Union Carbide . .

22" Overt Act No. 88 : On or.about.December 12, 1986, LAZAR

23. caused Lazar Intermediary A to use the proceeds of the check

24 described.in Overt Act No. 87 to satisfy legal fees that LAZAR

25 owed to Lazar Intermediary A.

26 Overt Act No. 89 : On or about May 5, 1987,

27 MILBERG WEISS and Partner B caused to be sent to Lazar

28IIIntermediary A a $45,000 check, which MILBERG WEISS falsely

46 Case 3:04-cv-02297-S C Document 242-5 Filed 08/28/2007 Page 51 of 106

characterized in its accounting books and records as "? prof

2 fees."

3 Overt Act No. 90 : On or about May 7, 1987, LAZAR caused

4 Lazar Intermediary A to use approximately $23,851.60 from the

5 proceeds of the check described in Overt Act No. 89 to satisfy

6 legal fees that LAZAR owed to Lazar Intermediary A.

7 Overt Act No. 91 : On or about May 11, 1987, LAZAR

8 caused Lazar Intermediary A to use the remaining approximately

9 $21,148.40 from the proceeds of the check described in Overt Act

10 No. 89 as a credit toward future legal fees that LAZAR would owe

11 to Lazar Intermediary A.

12 Overt Act No. 92 : On or about March 10, 1995,

13 MILBERG WEISS and BERSHAD caused to be sent to one of LAZAR's

14 sons, who was an attorney, a $250,000 check with a cover letter

15 signed by BERSHAD falsely stating that the payment represented

16 "your participation in our fee in the [ United Airlines ]

17 litigation in accordance with our agreement."

18 Overt Act No. 93 : On or about March 13, 1995, LAZAR

19 caused the check described.in Overt Act No. 92 to be deposited

2.0 into his daughter-in-law's personal checking account,-to be used

21. for the personal..benefit of LAZAR and his son..

22 Overt Act No. 94 : On or about July 17., 1995,

23 MILBERG WEISS and BERSHAD caused to be sent to Lazar Intermediary

24, B a $35,000 check, along with a cover letter signed by BERSHAD

25 falsely stating that the check was "your share of the attorney's

26 fee" in Zenith National .

27 Overt Act No. 95 : On or about July 31, 1995, LAZAR

28 caused Lazar Intermediary B to use the proceeds from the check

47 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 52 of 1 06

described in Overt Act No. 94 to satisfy $35,000 in fees that

2 ILAZAR owed to Lazar Intermediary B.

3 Overt Act No. 96 : On or about March 7, 1996,

4. MILBERG WEISS and BERSHAD caused to be sent to Lazar Intermediary

5 C a $25,000 check, with a cover letter signed by BERSHAD falsely

6 describing the payment as Lazar Intermediary C's "participation

7 in the most recent fee" obtained by MILBERG WEISS, and which

8 'MILBERG WEISS falsely characterized in its accounting books and

9 records as a referral fee paid to Lazar Intermediary C in the

10 Community Psychiatric class action.

11 Overt Act No. 97 : On or about March 11, 1996, LAZAR

12 caused Lazar Intermediary C to use the proceeds of the check

13. described in Overt Act No. 96 to satisfy legal fees that LAZAR

14 owed to Lazar Intermediary C.

15 Overt Act No. 98 : On or about August 12, 1998,

16 MILBERG WEISS and BERSHAD caused to be sent to the Palm Springs

17 Law Firm a $50,000 check, with a cover letter signed by BERSHAD

18 falsely stating that the payment was "in recognition of your

19 contribution to the legal effort in the Denny's litigation."

20 Overt Acts Nos. 99-100 : On or about the following

21. dates, LAZAR caused the proceeds of the check described in Overt

22. Act No. 98 to be used to make the following payments and credits, 23 among others , for his benefit: 24

27 Overt Acts Nos. 101-102 : 28 On or about the following dates, LAZAR caused Lazar Intermediary B to use the proceeds of

48 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 53 of 106

$23,000 payment described in Overt Act No. 100 to make the

2 following payments and credits for his further benefit:

6 Overt Act No. 103 : On or about December 2, 1998, in the 7 Lazar Lawsuit Seymour Lazar v. Micro Focus Group PLC, et al. , 8 Civ. 98-8591 (United States District Court, Southern District of 9 New York), in which LAZAR was a named plaintiff, LAZAR falsely 10. certified, under penalty of perjury, that he would "not accept 11 any payment for serving as a representative party on behalf 12 of a class beyond plaintiff's pro rata share of any recovery, 13 except such reasonable costs and expenses (including lost wages) 14 directly relating to the representation of the Class as 15 ordered and approved by the Court." 16- Overt Act No. 104 : On or about December 13, 17 1999, in the Lazar Lawsuit Helene Giarputo and Seymour Lazar v. Xerox 18 Corp. et al. , 99 CV 2374 (United States District Court, 19 District of Connecticut), in which LAZAR was a named plaintiff, LAZAR 20. falsely certified, under penalty of perjury, that he would "not 21^ accept any payment for serving as a representative party on 22: behalf of a class beyond plaintiff's pro rata share of any 23 recovery, except such reasonable costs and 24 expenses Jincluding lost wages) directly relating to the representation of the Class 25 as ordered and approved by the Court." 26 Overt Act No. 105 : On or about December 28, 2000, 27 MILBERG WEISS and BERSHAD caused to be sent to the 28 Palm Springs Law Firm a $50,000 check, which MILBERG WEISS's accounting books

49 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 54 of 106

and records falsely described as a "referral fee" to the Palm

2 Springs Law Firm regarding Schein Pharmaceutical .

3 Overt Acts Nos. 106-107 : On or about the following

4 dates, LAZAR caused the proceeds of the check described in Overt

5 Act No. 105 to be used to make the following payments and

6 credits, among others, for his benefit: 7

10 Overt Act No. 108 : On 11 or about June 18, 2001, MILBERG WEISS and BERSHAD attempted 12 to send to the Palm Springs Law Firm a $133,000 check with 13 a cover letter signed by BERSHAD falsely stating that the payment 14 represented "your share of the fee in recognition of your participation 15 in the fee in [ Schein Pharmaceutical ]." 16 Overt Act No. 109 : 17 On or about July 9, 2001, MILBERG WEISS and BERSHAD caused 18 to be sent to the Palm Springs Law Firm a $133,000 check, after the 19 check described in Overt Act No. 108 had been returned to MILBERG WEISS 20. because it was improperly addressed. 21 Overt Acts 22 Nos.. 110-112 : On or about the following dates, LAZAR caused the 23 proceeds of the check described in Overt -Act No. 109 to be used 24 to make the following payments and credits, among others, 25 for his benefit:

50 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 55 of 106

4 B. Overt Acts in the Vogel Lawsuits

5 The Valero I Class Action

6 Overt Act No. 113 : Prior to in or about August 1991,

7 Partner E, acting in concert with BERSHAD, told Vogel that 8: MILBERG WEISS would pay Vogel for serving as a named plaintiff in

9 an action against Valero Energy Corporation.

10 Overt Act No. 114 : On or about August 20, 1991, filed with the 11 MILBERG WEISS, Partner E, and others caused to be

12 court a class action complaint in Valero I , naming Vogel as a other 13 plaintiff, in which they falsely represented, among things,

14 that Vogel had "the same interests [in the outcome of the case]

15 as the other members of the Class."

16 Overt Act No. 115 : In or about mid- 1992, BERSHAD and

17 Partner E told Vogel that he needed to identify a lawyer through WEISS would not 18 whom MILBERG WEISS would pay him, because MILBERG

19 spay Vogel directly. following the 20 Overt Act No. 116 : In or about-mid-1992,

21 discussion referenced in Overt Act No.. 115, Vogel enlisted MILBERG on 22 Vogel Intermediary A to receive monies from WEISS

23 jVogel's behalf.

24 Overt Act No_ 117 : In or about mid-1992, during a

25 meeting attended by, among others, BERSHAD, Partner E, and Vogel,

26 BERSHAD told Vogel the following: (a) MILBERG WEISS would pay

27 Vogel 14% of the attorneys' fees MILBERG WEISS obtained in

28 Valero I ; (b) MILBERG WEISS would also reimburse Vogel for losses that would be sustained by him in connection with the eventual

51 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 56 of 106

sale of his Valero securities; and (c) since Vogel had not yet

2 sold his Valero securities, MILBERG WEISS would pay him $10,000 3 in anticipation of such losses.

4 Overt Act No. 118 : On or about October 14, 1992,

5 MILBERG WEISS and Partner E sent to Vogel Intermediary A a

6 purported retainer agreement, which stated in part:

7 This will confirm that we have been retained by Howard Vogel . . . to prosecute a class action [a ainst] 8. Valero Natural Gas Partners L.P., and a derivative action on behalf of the partnership. On the basis of 9 your efforts in this matter and your having shared in the work and responsibility in this matter, we will 10 pool all fees awarded to us and you shall receive 14% (fourteen percent) of the fees so awarded plus $10,000. 11 Overt Act No. 119 : On or about October 16, 1992, 12 MILBERG WEISS, Partner E, and others caused the court to certify 13 Valero I as a class action, approve Vogel and his wife as class 14, representatives, and preliminarily approve a proposed settlement 15 of Valero -I . 16. Overt Act No. 120 : On or about November 23, 1992, 17 MILBERG WEISS, Partner E, and others caused the court to award 18 approximately $4.75 million in attorneys' fees and expenses in 19 Valero I . 20; Overt Act No. 121 : On or about December 28, 1992, 21f MILBERG WEISS, Partner E, and others caused to be sent to Vogel 22: . Intermediary A a check in the amount of $637,223,. representing 23 -Voge.l'.s share of the attorneys' fees awarded ift-Valero....I , plus-an.- 24 additional $10,000. 2.5 Overt Act No. 122 : In or about January 1993, Vogel 26 caused Vogel Intermediary A to transfer to Vogel substantially 27 all of the proceeds of the check described in Overt Act No. 121. 28

52 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 57 of 106

The Valero II Class Action

2 Overt Act No. 123 : On or about October 15, 1993,

3 MILBERG WEISS, Partner E, and others caused to be filed with the

4 court a class action complaint in Valero II , naming Vogel as a

5 ,plaintiff, in which they falsely alleged, among other things,

6 that Vogel had "the same interests [in the outcome of the case] 7 as other members of the Class."

8 Overt Act No. 124 : On or about March 13, 1994, after

9 :Vogel sold his Valero securities at a $27,600 loss, Vogel sent to

101 MILBERG WEISS and Partner E a letter requesting that

11 MILBERG WEISS "add the sum of.$17,600" to Vogel's expected

12 payment in Valero II , explaining that "[i]t was Dave Bershad's

13' position in late 1992 that since no loss was actually incurred , a

14) contribution to the unknown future loss would be $10,000," and

15 asserting that the remaining $17,600 loss was "real money - no

16 different than the out of pocket disbursements that your firm

17 incurs to maintain the case."

18 Overt Act No. 125 : On or about May 23, 1994,

19 MILBERG WEISS, Partner E, and others caused Vogel to sign an

20 :under-oath affidavit, to be filed with the court in support of a.

21 .proposed settlement of Valero II , in which Vogel falsely stated,

22 among other things, "I have no claim or interest of any kind [in..

23; the outcome of the case] that is adverse to Valero Partners or

24- its public unitholders . . . nor do I have any conflict of

25 interest of any kind that precludes me from bringing or settling

26 this action."

27 Overt Act No. 126 : On or about May 31, 1994, MILBERG

28 WEISS, Partner E, Vogel, and others caused the court to approve a

53 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 58 of 106

settlement in Valero II , and to award approximately $1.2 million 2 in attorneys' fees and expenses.

3 Overt Act No. 127 : On or about June 2, 1993,

4 MILBERG WEISS, Partner E, and others caused to be telefaxed to

5 Vogel Intermediary A a letter stating, "As Howard Vogel's

6 referring attorney you will receive 14% of the legal fee that is

7 paid to my firm, [MILBERG WEISS]."

8 Overt Act No. 128 : On or about July 18, 1994,

9 MILBERG WEISS, Partner E, and others caused to be sent to Vogel

10 Intermediary A a check in the amount of $69,860.89, with a cover

11 letter signed by Partner E falsely describing the payment as

12 "your firm's referral fee" in Valero II .

13 Overt Act No. 129 : On or about July 26, 1994, Vogel

14 caused Vogel Intermediary A to wire transfer to Vogel

15 approximately $69,848.39 of the proceeds of the check described

16 in Overt Act No. 128.

17 The Oxford Health Class Action

18 Overt Act No. 130 : Prior to in or about October 1997,

19 Vogel read a research report that contained negative financial

20. analysis about Oxford Health Plans, Inc. ("Oxford Health").

2.1 Overt Act.No. 131 :_ On or about October .8, 1997, Vogel

22. caused a_ trust of which he was the sole trustee (the "Howard

23. Vogel Retirement Plan," hereinafter referred to as "HVRP") to

24 purchase 50 shares of Oxford Health stock for the purpose of

25 positioning HVRP to be a named plaintiff in a securities fraud

2611class action lawsuit to be brought by MILBERG WEISS against 27 II Oxford Health. 2811 / / /

54 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 59 of 106

Overt Act No. 132 : On or about October 31, 1997,

2 MILBERG WEISS, Partner E, and others caused Vogel to sign under

3' penalty of perjury a certification, be filed with the court in

4 Oxford Health, in which Vogel falsely stated, among other things,

5 that HVRP did not purchase Oxford Health "in order to participate

6 in any private action arising under the federal securities laws,"

7 and would "not accept any payment for serving as a representative

8 party on behalf of a class beyond plaintiff's pro rata share of

9 any recovery, except such reasonable costs and expenses

10: (including lost wages) directly relating to the representation of 11 the Class as ordered or approved by the Court."

12 Overt Act No. 133 : On or about October 31, 1997,

13 MILBERG WEISS, Partner E, Vogel, and others caused to be filed

14 with the court a class action complaint in Oxford Health , naming

15 HVRP as a plaintiff, in which they falsely alleged, among other

16 things, that HVRP's claims were "typical of the claims of the 17 members of the Class."

18 Overt Act No. 134 : In or about November 1997, Partner E

19 told Vogel that because Oxford Health was so large, and

20. MILBERG WEISS would have other payment obligations in the case,

21 Vogel's. payment would. be less than his usual percentage of

22 MILBERG WEISS's attorneys•'.fees.

23 Overt Act No. 135 : Sometime in or about 1999, Partner E

24 told VOGEL that he was leaving MILBERG WEISS, and that Vogel's

25 payment arrangements would thereafter be handled by SCHULMAN.

26 Overt Act No. 136 : On or about June 27, 2003,

27 MILBERG WEISS obtained approximately $40.0 million of the

28 attorneys' fees awarded in Oxfo rd Health.

55 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 60 of 106

Overt Act No. 137 : In or about September 2003, SCHULMAN

2 told Vogel to have Vogel Intermediary A call Partner A to

3 negotiate the amount of Vogel's payment in Oxford Health and the

4 Baan class action (in which Vogel had arranged for his step-son

5 to serve as a named plaintiff for MILBERG WEISS).

6 Overt Act No. 138: On or about September 20, 2003,

7 Vogel sent SCHULMAN a memorandum stating, in part:

8 "As we discussed, enclosed is material from 1997/1998 relating to my role as initiating plaintiff in the 9 Oxford and Baan cases. My dealings with [MILBERG WEISS] in those years centered around [Partner E]. 10 My attorney, who previously represented me in the two 11 Valero cases (working with [Partner E]) is [Vogel Intermediary A] . . . . 12 [Vogel Intermediary A] will call [secretary of Partner 13 A] to arrange a call with [Partner A] to discuss the Oxford case only." 14 Overt Act No. 139 : On or about October 15, 2003, Vogel 15 sent, to Partner A's secretary, a copy of the memorandum 16 referenced in Overt Act No. 138, annotated to clarify that the 17 discussion with Partner A would include the Baan class action as 18 well as Oxford Health . 19 Overt Act No.. 140 : In or about October 2003, SCHULMAN 20 told Vogel that Partner A refused to engage in substantive 21.. discussions with Vogel. Intermediary A on the telephone, but 22 instead insisted on meeting Vogel Intermediary A in person at 23 MILBERG WEISS's-offices in New York to discuss Vogel's payments 24 in Oxford Health and Baan . 25 Overt Act No. 141: On or about November 10, 2003, 26 Partner A met with Vogel Intermediary A at MILBERG WEISS's 27 . New York offices and agreed that MILBERG WEISS would pay Vogel a 28 percentage of its attorneys' fees obtained in connection with

56 . , Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 61 of 106

Oxford Health and Baan .

2 Overt Act No. 142 : On or about December 18, 2003,

3 MILBERG WEISS, SCHULMAN, Partner A, and others caused to be sent

4 to Vogel Intermediary A a $1.1 million check, with a cover letter.

5 signed by SCHULMAN falsely stating, "Enclosed please find a check

6 in the amount of $1,100,000.00, reflecting your share of court

7 ordered attorneys' fees in consideration of your work, services

8 and joint representation of our clients in connection with 9 [ Oxford Health ]."

10 Overt Act No. 143 : On or about December 18, 2003,

11 MILBERG WEISS, SCHULMAN, Partner A, and others also caused to be

12 sent to Vogel Intermediary A a $120,000 check, with a cover

13 letter signed by SCHULMAN falsely stating, "Enclosed please find

14 a check in the amount of $120,000.00, reflecting your share of

15 court ordered attorneys' fees in consideration of your work,

16 services and joint representation of our clients in connection

17 with [ Baan ]."

18 Overt Act No. 144 : On or about January 8, 2004, Vogel 19 caused Vogel Intermediary A to wire transfer approximately

20 $1,205,932.37 of the proceeds of the checks described in Overt

21. Acts Nos. 142 and 143 to a bank account contr?lled.by Vogel.

22 The Infinity Brodces.tiny . Class Action

23. Overt Act No.. 145 : On or about June 14, 2000, after

'24 learning that Viacom, Inc. ("Viacom"), might attempt to acquire

25 the publicly held shares of Infinity Broadcasting Corp.

26 ("Infinity Broadcasting"), in which Viacom held a majority

27 interest, Vogel caused his wife to purchase 100 shares of

28 Infinity Broadcasting to position her to serve as a named

57 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 62 of 106

plaintiff in a potential "transaction case" to be brought against

2 Infinity Broadcasting by MILBERG WEISS.

3 Overt Act No. 146 : On or about June 14, 2000, Vogel

4 wrote a letter to SCHULMAN stating, among other things, "As we

5 just discussed, [Vogel's wife] owns shares of Infinity

6 Broadcasting" and "I feel that a complaint should be drafted and 7 ready to go."

8 Overt Act No. 147 : On or about August 15, 2000, the

9 same day that Viacom announced a proposed acquisition by merger

10 of the publicly owned shares of Infinity Broadcasting,

11 MILBERG WEISS, SCHULMAN, and others caused to be filed a class

12 action complaint in Infinity Broadcasting , naming Vogel's wife as

13 a plaintiff.

14 Overt Act No. 148 : On or about August 23, 2001, during

15 an under-oath deposition taken of him by an Infinity Broadcasting

16 shareholder who objected to the proposed settlement of Infinity

17 Broadcasting and the adequacy of Vogel's wife as a representative

18 plaintiff, SCHULMAN falsely stated that no promises had been made

19 to Vogel's wife "in the context of any benefit that she might

20' .receive that the class would not receive" in Infinity

21:. Broadcasting , and that he was "not . . . aware" of any such

22.: promises being. made in "any other case."

23.. Overt Act No. 149 : On or about September 14, 2001,

24 MILBERG WEISS, SCHULMAN, Vogel, and others caused Vogel's wife to

25 sign an under-oath affidavit, to be filed with the court in

26 support of a proposed settlement of Infinity Broadcasting , which

27 falsely stated, among other things, "I have no claim or interest

28 that is adverse to Infinity or its public shareholders."

58 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 63 of 106

Overt Act No. 150: On or about October 29, 2001,

2 MILBERG WEISS, SCHULMAN, and others caused the court, among other

3 things, to certify Infinity Broadcasting as a class action; to

4. approve Vogel's wife and others as a class representative; to

5 approve MILBERG WEISS as class co-counsel; to approve the

6 proposed settlement in Infinity Broadcasting ; and to award $2.5

7 million in attorneys' fees.

8 Overt Act No. 151: On or about March 13, 2003, SCHULMAN

9 directed an employee in MILBERG WEISS's accounting department to

10 draft a check to Vogel Intermediary B for 12% of the attorneys'

11 fees MILBERG WEISS obtained in Infinity Broadcasting .

12 Overt Act No. 152 : On or about March 17, 2003,

13 MILBERG WEISS, SCHULMAN, Vogel, and others caused to be sent to

14 Vogel Intermediary B an $86,923 check, along with a cover letter

15 signed by SCHULMAN falsely disguising the check as a payment to

16 Vogel Intermediary B "in consideration of [Vogel Intermediary

17 B's] work, services, and joint representation of our clients" in

18 Infinity Broadcasting .

19 Overt Act No. 153 : On or about March 24, 2003, Vogel

20 caused Vogel Intermediary B to send-to him most of the proceeds

21;.from the check described in Overt..Act No. 152 and from a

22 MILBERG WEISS payment that had been made in connection with

23. another Vogel Lawsuit.

24 Other Overt Acts in the Vogel Lawsuits

25 Overt Act No. 154 : In or about 1996, during a meeting

26 at MILBERG WEISS's New York offices, Partner E handed to Vogel a

27 substantial amount of cash, which he had obtained from BERSHAD,

28 as a secret kickback to Vogel for causing his wife to serve as a

59 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 64 of 106

named plaintiff in Mercer .

2 Overt Act No. 155 : On or about July 21, 1998, Vogel,

3 acting in concert with MILBERG WEISS and others, in an under-oath

4 deposition taken in the Vogel Lawsuit Howard Vogel, et al. v.

5 Marvin A Pomerantz, et al. , C.A. No. 14722 (later consolidated

6 into In re Gaylord Container Corp. Shareholders Litigation ,

7 Consolidated Civil Action No. 14616 (Del. Chancery Ct.) (" Gaylord

8 Container "), refused to answer questions he was asked concerning 9 his income or sources of income.

10 Overt Act No. 156 : In or about early 2000, after

11 Partner E had left MILBERG WEISS, SCHULMAN told Vogel that he

12 would not receive 14% of MILBERG WEISS's attorneys' fees in

13 future cases in which Vogel was a named plaintiff, and instead

14 would receive no more than 12% of MILBERG WEISS's attorneys'

15 fees.

16 Overt Act No. 157 : In or about early December 2000,

17 MILBERG WEISS, BERSHAD, and SCHULMAN reaffirmed that Vogel would

18 receive 12% of MILBERG WEISS' attorneys' fees in Vastar and

19. thereafter caused to be sent to Vogel Intermediary B a check in

20: the amount of $94,000, made payable to "[Vogel Intermediary B]

21 IOLA."

22. Overt Act No. 158 : On or about December 12,2000, Vogel

23 caused Vogel Intermediary B.to pay Vogel $93,000 of the proceeds

24 of the check described in Overt Act No. 157.

25 Overt Act No. 159: On or about March 15, 2003, Vogel

26 sent to SCHULMAN an "inventory" of all "transaction cases" in

27 which Vogel, his wife, or HVRP were prepared to serve as named

28. plaintiffs.

60 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 65 of 106

Overt Act No. 160 : In or about late 2002, Vogel asked

2 SCHULMAN when he would receive his share of the attorneys' fees

3 that had been awarded to MILBERG WEISS in Future Healthcare .

.4 Overt Act No. 161 : On or about March 21, 2003,

5 MILBERG WEISS, SCHULMAN, and others caused to be sent to Vogel

6 Intermediary B a check in the amount of $68,993.70, which was 12%

7 of MILBERG WEISS's attorneys' fees in Future Healthcare .

8 Overt Act No. 162 : On or about April 9, 2003,

9 MILBERG WEISS, SCHULMAN, and others caused Vogel to sign a

10 certification under penalty of perjury, to be filed with the

11 , court in the Vogel Lawsuit Howard Vogel v. CIT.Group Inc., et

12 al. , 93-CV-2471-JES (United States District Court, Southern

13 District of New York) (" CIT "), in which Vogel falsely stated,

14 among other things, that he would "not accept any payment for

15 serving as a representative party of behalf of a class beyond

16 plaintiff's pro rata share of any recovery, except such

17 reasonable costs and expenses (including lost wages) directly

18. relating to the representation of the Class as ordered or

19. approved by the Court."

20. Overt Act No. 163 : On or about April 16, 2003, Vogel

21.: caused Vogel Intermediary B to send him $67,993.70 of the.

.22 proceeds of the check described in Overt Act No. 161.

23 Overt Act No. 164: On or about May 24, 2004,

24 MILBERG WEISS, SCHULMAN, and others caused Vogel to sign a

25 certification under penalty of perjury, to be filed with the

26 court in the Vogel Lawsuit Howard Vogel v. The Bisys Group Inc.,

27 et al. , 04-CV-4048-LTS (United States District Court, Southern

28 District of New York (" Bisys "), in which Vogel falsely stated,

61 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 66 of 106

among other things, that he "did not acquire the BISYS Group,

2 Inc. . . . stock at the direction of plaintiff's counsel or in

3 order to participate in any private action under the federal

4 securities laws," and would "not accept any payment for serving

5 as a representative party beyond my pro rata share of any

6 recovery, except reasonable costs and expenses, such as lost

7 wages and travel expenses, directly related to the class

8- representation, as ordered or approved by the court pursuant to

9 law."

10 Overt Act.No. 165 : On or about July 26, 2004,

11 MILBERG WEISS, SCHULMAN, and others caused Vogel to sign a

12 certification under penalty of perjury, to be filed with the

13 court in the Vogel Lawsuit Howard Vogel v. KVH Industries Inc.,

14 et al. , 04-CV-320-ML (" KVH "), in which Vogel falsely stated,

15 among other things, that he would "not accept any payment for

16 serving as a representative party beyond my pro rata share of any

17 recovery, except reasonable costs and expenses, such as lost

18 wages and travel expenses, directly related to the class

19 representation, as ordered or approved by the court pursuant to

.20 law.-

21t Overt Act No. 166 : On or about September 23, 2004,

22, MILBERG WEISS, SCHULMAN, and others caused Vogel to sign an

23 under-oath affidavit, to be filed with the court in support of a

24 proposed settlement of U.S. Oncology , falsely stating, among

25 other things, "I have no claim or interest of any kind that is

26 adverse to [U.S. Oncology] shareholders . . . nor do I have any

27 conflict of interest of any kind that would preclude me from

28 bringing and prosecuting [ U.S. Oncology ] as a class action."

62 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 67 of 106

Overt Act No..167 : On or about February 27, 2005,

2 MILBERG WEISS, SCHULMAN, Vogel, and others caused Vogel's wife to

3 sign an under-oath affidavit, to be filed with the court in

4. support of a proposed settlement of BarnesandNoble.com , falsely

5 stating, among other things, "I have no claim or interest of any

6 kind that is adverse to [BarnesandNoble.com] shareholders . . .

7 nor do I have any conflict of interest of any kind that would

8 preclude me from bringing and prosecuting [ BarnesandNobel.com ] as 9 % a class action."

10 Overt Act No. 168 : On or about May 19, 2005,

11 MILBERG WEISS, SCHULMAN, and others caused to be sent to Vogel

12 Intermediary A a check in the amount of $10,800.67, along with a

13 cover letter signed by SCHULMAN falsely stating that the check

14. was Vogel Intermediary A's "referral fees" in connection with

15 BarnesandNoble.com .

16 Overt Act No. 169 : On or about June 20, 2005, Vogel

17 caused Vogel Intermediary A to forward to an account controlled

18 by Vogel approximately $10,320.80 of the proceeds of the check

19 described in Overt Act No. 168.

20 Overt Act No..170 : On or about September 13, 2005,

MILBERG WEISS', SCHULMAN, and others caused Vogel to sign on

22: behalf of HVRP an under-oath affidavit, to be filed with the

23 court in support of a proposed settlement of the Vogel Lawsuit

24 In re'Fox Entertainment Group, Inc. Shareholders Litigation ,

25 Consolidated Case No. 1033-N (Del. Chancery Ct.) (" Fox"), falsely

26 stating, among other things, "I have no claim or interest of any

27 kind that is adverse to [Fox Entertainment Group] shareholders

28 . . nor do I have any conflict of interest of any kind that would

63 . Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 68 of 106

(preclude me from bringing and prosecuting [ Fox ] as a class 2 faction."

3 C. Overt Acts in the Cooperman Lawsuits

4 The Newhall Land Class Action

5 Overt Act No. 171: On or about April 19, 1988

6 MILBERG WEISS, Partner B, and others caused to be filed a

7 verified derivative and class action complaint in Newhall Land ,

8 naming Cooperman and Cooperman Plaintiff 1 as plaintiffs, in

9 which they represented that "Plaintiffs . . . do not have

10 interests antagonistic. to or in conflict with those they

11 represent as. class representatives."

12 Overt Act No. 172 : Between in or about April and

13 November 1988, Cooperman told Cooperman Plaintiff 1 that

14 MILBERG WEISS would pay them a percentage of MILBERG WEISS's fee

15 in Newhall Land.

16 Overt Act No. 173 : On or about November-8, 1988,

17 MILBERG WEISS, Partner B, and others caused the court to approve

18 a settlement of Newhall Land , which provided for an attorneys'

19. fees award in the amount of $1,797,891.70 plus interest.

2.0. Overt Act.No. 174: In or about early 1989, Partner B

2.1. told Cooperman.. and Cooperman Plaintiff 1 that they could receive

22 approximately 5% to 10% of MILBERG WEISS's attorneys' fees in.

23 Newhall Land ; that MILBERG WEISS would pay Cooperman and

24 Cooperman Plaintiff 1 5% to 10% of MILBERG WEISS's attorneys'

25 fees in future cases that they brought to the firm; and that

26 Cooperman and Cooperman Plaintiff 1 should purchase stocks in

27 companies in order to position them and MILBERG WEISS to file 2811 lawsuits in the future.

64 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 69 of 106

Overt Act No. 175 : In or about early 1989, Cooperman

2 gave to Cooperman Plaintiff 1 a check that Cooperman Plaintiff 1

3 understood to be his share of the amount MILBERG WEISS paid to

4 Cooperman in Newhall Land .

5 The Jan Bell Class Action

6 Overt Act No. 176 : On or about March 7, 1990,

7 MILBERG WEISS and others caused to be filed a class action

8 complaint in the Jan Bell lawsuit, naming Cooperman as a

9 plaintiff.

10 Overt Act No. 177 : On or about March 22, 1991, in an

11 under oath deposition in Jan Bell , Cooperman falsely testified,

12 among other things, that in other lawsuits in which he had been a

13 named plaintiff for MILBERG WEISS he had never received any money

14 other than his shareholder portion of the settlements, and that

15 "whatever the court awards as compensation or a judgment," he

16- would "collect [his) share based on how much stock [he] bought."

17 Overt Act No. 178 : On or about July 21, 1992,

18 MILBERG WEISS and BERSHAD caused to be sent to Cooperman

19 Intermediary A a $19,363 check, with a cover letter that falsely

20 stated that the payment was to Cooperman Intermediary A "in

21 consideration of your consultation and referral of Dr. Cooperman

22 to our firm."

23 Overt Act No. 179 : In or about July 1992, Cooperman.

24 caused Cooperman Intermediary A to use the proceeds of the check

25 described in Overt Act No. 178 to satisfy legal fees Cooperman

26 owed to Cooperman Intermediary A. 27 28 / / /

65 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 70 of 106

The American Continental/Lincoln Savinas Class Action

2 Overt Act No. 180 : On or about January 30, 1989, acting

3 in consultation with Partner B, Cooperman Plaintiff 1 purchased

4 100 shares of stock in American Continental Corporation for the

5 purpose of positioning MILBERG WEISS and himself to file a class

6 action lawsuit.

7 Overt Act No. 181 : On or about April 24, 1989,

8 MILBERG WEISS, Partner B, and others caused to be filed a class

9 action complaint in American Continental/Lincoln Savings , naming

10 Cooperman Plaintiff 1 as a plaintiff.

11 Overt Act No. 182 : On or about October 12, 1989,

12 MILBERG WEISS, Partner B, and others caused to be falsely

13 represented to the court in support of a motion for class

14 certification in American Continental/ Lincoln Savings , among

15 other things, that the interests of Cooperman Plaintiff 1 "do not

16. in any manner conflict with, nor are they antagonistic to, those

17 of the class."

18 . Overt Act No. 183 : On or about November 2, 1989,

19 Cooperman Plaintiff 1, acting in concert with MILBERG WEISS,

20 Partner B, and others, subscribed under penalty of perjury to

21. Answers to Interrogatories in American Continental/Lincoln

22 Savings , which falsely concealed that Partner B had discussed

23 with Cooperman Plaintiff 1 purchasing. ACC stock to position

24 MILBERG WEISS to file a lawsuit.

25 Overt Act No. 184 : On or about April 22, 1991, in an

26 under oath deposition in American Continental/Lincoln Savings ,

27 Cooperman Plaintiff 1, acting in concert with MILBERG WEISS and

28 others, falsely stated, among other things, that he would not

66 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 71 of 106

receive any payment from any source in exchange for serving as a

2 named plaintiff in the American Continental/Lincoln Savings

3 lawsuit, and that he did not receive any compensation in Newhall

Land beyond that which he received as a member of the class.

Overt Act No. 185 : In or about October 1992, Cooperman

told Cooperman Intermediary A that MILBERG WEISS would be sending

7 Cooperman Intermediary A a substantial amount of money, which was

8 Cooperman's share of MILBERG WEISS's attorneys' fees in American

9 Continental/Lincoln Savings .

10 Overt Act No. 186 : On or about October 21, 1992,

11 BERSHAD sent to Cooperman Intermediary A a $440,000 check,.

12 accompanied by a cover letter falsely stating the check was 13 Cooperman Intermediary A's "compensation for work and

14 responsibility in our most recent endeavor."

15 Overt Act No. 187 : On or about October 23 1992,

16 Cooperman caused Cooperman Intermediary A to forward $215,000 of

17 the proceeds of the check described in Overt Act No. 186 to 18 Cooperman.

19 Overt Act No. 188 : On or about October 26, 1992,

20 Cooperman paid Cooperman Plaintiff 1 $129,000 of the proceeds of 21: the check described in Overt Act No. 186.

22. The Fairfield Communities Class Action

23 Overt Act No. 189 : On or about June 29, 1990,

24 MILBERG WEISS and others caused to be 'filed with the court a

25 class action complaint in Fairfield Communities , naming Cooperman 2611 as a plaintiff.

27 Overt Act No. 190 : On or about November 29, 1990,

28 Cooperman, acting in concert with MILBERG WEISS, subscribed under

67 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 72 of 106

1.1

penalty of perjury to Answers to Interrogatories in Fairfield

2 Communities , falsely stating, among other things, that Cooperman

3 had "at no time received any bonus or incentive payment as a

4 result of being named as a plaintiff in any class or derivative

5 actions."

6 Overt Act No. 191 : On or about July 17, 1990, in an

7 under oath deposition in Fairfield Communities , Cooperman, acting

8 in concert with MILBERG WEISS and others, falsely denied that he

9 had received any benefit in connection with Newhall Land other

10. than those paid to all shareholders.

11 Overt Act No. 192 : On or about July 16, 1993, SCHULMAN

12 represented to the Court, in support of a request for attorneys'

13 fees in Fairfield Communities , that MILBERG WEISS was not seeking

14 any incentive bonus award on behalf of Cooperman, and that

15 Cooperman was "satisfied to participate as a class member in the 16 I recovery of his claim." 17 Overt Act No. 193 : On or about August 10, 1993,

18 MILBERG WEISS obtained approximately $249,962.69 in attorneys'

191 fees in Fairfield Communities .

20; Overt. Act No. 194 :.On or about August 16, 1993,

21. MILBERG WEISS and BERSHADcaused to be sent to Cooperman

Intermediary A a $2.4,996.27 check, along with a cover letter 2223 signed by BERSHAD falsely stating that the check "represents your,

24 interest in the fee earned by my firm in" Fairfield Communities .

25 Overt Act No. 195' : In or about October 1993, Cooperman

26 caused Cooperman Intermediary A to use the proceeds of the check

27 described in Overt Act No. 194 to satisfy legal fees Cooperman

28 owed to Cooperman Intermediary A.

68 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 73 of 106

The Columbia Savings Class Action

2 Overt Act No. 196 : On or about November 9, 1989,

3 MILBERG WEISS and others caused to be filed a class action

4_ complaint in Columbia Savings , naming Cooperman as a plaintiff.

5 Overt Act No. 197: On or about January 11, 1990,

6 MILBERG WEISS, Partner B, and others caused to be falsely

7 represented to the court in Columbia Savings , in support of a

8 motion for class certification, that the interests of Cooperman

9 in the lawsuit "do not in any manner conflict with, nor are they 10 antagonistic to, those of the class."

11 Overt Act No. 198 : On or about February 28, 1990,

12 Cooperman, acting in concert with MILBERG WEISS, Partner B, and

13 others, subscribed under penalty of perjury to interrogatory

14 responses in Columbia Savings in which, among other things, he

15 falsely stated in response to a question whether he had any

16 "agreement, arrangement, expectation, intention, or understanding

17 . . . with respect to receiving any payment or consideration

18: different from the payment or consideration that may be received

19 by other members of the putative class as a result of this

20:: litigation" the following.: "I will not be treated differently

21% than any other class member regarding any.recovery."

22 Overt Act No. 199: On or about June 28, 1990, in an

23 under oath deposition in the Columbia Savings lawsuit, Cooperman,

24 acting in concert with MILBERG WEISS and others, concealed his

25 kickback arrangement with MILBERG WEISS.

26 Overt Act No. 200 : On or about December 28, 1993,.

27 MILBERG WEISS obtained approximately $3,926,452 in attorneys'

28 fees in Columbia Savincrs.

69 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 74 of 106

Overt Act No. 201 : On or about March 31, 1994,

2 MILBERG WEISS and BERSHAD caused to be sent to Cooperman

3 Intermediary A a $200,000 check, along with a cover letter signed

4 by BERSHAD falsely describing the payment as "a portion of your

5 entitlement" to the attorneys' fees in Columbia Savings .

6 Overt Act No. 202 : In or about April 1994, Cooperman

7 caused Cooperman Intermediary A to use the proceeds of the check

8 described in Overt Act No. 201 to satisfy legal fees Cooperman

9 owed to Cooperman. Intermediary A. 10 Overt Act No. 20.3 : On or about July 26, 1994,

11 MILBERG WEISS obtained approximately $8,210,164 in attorneys'

12 fees in Columbia Savings .

13 Overt Act No. 204 : On or about July 27, 1994,

14 MILBERG WEISS and BERSHAD caused to be sent to Cooperman

15 Intermediary A a $200,000 check, along with a cover letter signed

16. by BERSHAD falsely representing the payment to be "your current

17 entitlement" to the attorneys' fees in Columbia Savings .

18 Overt Act No. 205 : In or about July 1994, Cooperman

19 caused Cooperman Intermediary A to use the proceeds of the check

2.0. described inOvert Act-No. 204-to satisfy legal fees Cooperman

•2J owed to-Cooperman-Intermediary A.

..22: Overt Act No. 206 : On or about September 22, 1994,

23. MILBERG WEISS and BERSHAD caused to be sent to Cooperman

24 Intermediary A a $191,278-check, along with a cover letter signed

25 by BERSHAD describing the payment to be "in furtherance of our

26 prior arrangement" concerning Columbia Savings .

27 Overt Act No. 207 : In or about September 1994,

28 Cooperman caused Cooperman Intermediary A to use the proceeds of

70 Case 3: 04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 75 of 106

the check described in Overt Act No. 206 to satisfy legal fees

2 Cooperman owed to Cooperman Intermediary A.

3 The SCI - Television Class Action

4 Overt Act No. 208 : On or about March 10, 1994,

5 MILBERG WEISS, Partner B, and others caused to be filed a

6 verified class action complaint in SCI-Television , naming

7 Cooperman as a plaintiff, in which they falsely represented,

8 among other things, that Cooperman did "not have interests

9 antagonistic to or in conflict with those he represents as a 10 class representative."

11 Overt Act No. 209 : On or about March 21, 1994, in an

12 under oath deposition in SCI-Television , Cooperman falsely stated

13 that he had never been compensated for appearing as a plaintiff

14 in a class action case.

15 Overt Act No. 210: On or about November 11, 1994,

16 Cooperman, acting in concert with MILBERG WEISS and others,

17 executed a declaration under penalty of perjury to be filed with

18 the court in SCI-Television , which falsely stated, among other

19 things, that there were no legal differences in Cooperman's

20 status as a class member and those of other persons within the

21. class; there were no unique legal issues pertaining to Cooperman

22: as a'class representative; and Cooperman "anticipate[d] receiving

23 [his] pro rata share, and no more, of the damages received by

24 11 this class."

25 Overt Act No. 211 : On or about November 1, 1995,

26 MILBERG WEISS and BERSHAD caused to be sent to Cooperman

27 Intermediary A a $100,000 check, with a cover letter signed by 28

71 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 76 of 106

BERSHAD falsely describing the check as a payment "towards your

2 participation" in SCI-Television .

3 Overt Act No. 212 : On or about November 2, 1995,

4 MILBERG WEISS obtained approximately $3,218,329.50 in attorneys'

5 fees in SCI-Television .

6 Overt Act No. 213 : On or about November 16, 1995,

7 MILBERG WEISS and BERSHAD caused to be sent to Cooperman

8. Intermediary A an $81,846 check, with a cover letter signed by

9 BERSHAD falsely describing the payment as being "with regard to

10 your participation as counsel in [ SCI Television ]."

11 Overt Act No. 214 : In or about November 1995, Cooperman

12 caused Cooperman Intermediary A to use the proceeds of the checks

13 described in Overt Acts Nos. 211 and 213 to satisfy legal fees

14 Cooperman owed to Cooperman Intermediary A.

15 The Community Psychiatric Class Action

16 Overt Act No. 215 : On or about September 30, 1991,

17 MILBERG WEISS and others known and unknown to the Grand Jury

18 caused to be filed a class action complaint in Community

19. Psychiatric , naming Cooperman as a plaintiff, in which they

20. falsely represented, among other things, that Cooperman had "no

21... interest. which is contrary to or.in conflict with those of the 22 class [he] seek[s] to represent."

23 Overt Act No. 216 : On or about February 16, 1996,

24 MILBERG WEISS obtained approximately $4,123,000 in attorneys'

25 fees in Community Psychiatric .

26 Overt Act No. 217 : On or about November 11, 1996,

27 MILBERG WEISS and BERSHAD caused to be issued to Cooperman a 28

72 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 77 of 106

$114,891.50 check, made payable to Cooperman Intermediary B,

2 relating to Community Psychiatric .

3 Overt Act No. 218 : On or about November 14, 1996,

4 Cooperman deposited the check described in Overt Act No. 217 into

5 his personal bank account.

6 The Heart Technology Class Action

7 Overt Act No. 219 : On or about August 11, 1995,

8 Cooperman Plaintiff'2 purchased 100 shares of stock in

9 Heart Technology Inc., for the purpose of positioning

10 MILBERG WEISS and himself to file a lawsuit.

11 Overt Act No. 220: On or about August 30, 1995,

12 MILBERG WEISS, BERSHAD, SCHULMAN, and others known and unknown to

13 the Grand Jury caused to be filed a class action complaint in

14 Heart Technology , naming Cooperman Plaintiff 2 as a plaintiff.

15 Overt Act No. 221 : On or about March 13, 1997,

16 Cooperman Plaintiff 2, acting in concert with MILBERG WEISS and

17 others, subscribed under penalty of perjury to an affirmation in

18 which he falsely stated that he had "no claim or interest that is

19 adverse to Heart [Technology] or its stockholders."

20 Overt Act No...222 : On or about May 5, 1997,

21 MILBERG.WEISS obtained approximately $198,589.63 in attorneys'

22 fees in Heart Technology .

23 Overt Act No. 223 : On or about May 6, 1997,

24 MILBERG WEISS, BERSHAD, and others caused to be sent to Cooperman

25 a check payable to Cooperman Intermediary A in the amount of

26 $19,858.96, representing 10% of the fees awarded in Heart

27 Technology . 28 / / /

73 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 78 of 106

Overt Act No. 224 : On or about May 8, 1997, Cooperman

2 caused to be deposited the check described in Overt Act No. 223

3 into his personal bank account.

4 Overt Act No. 225: On or about May 14, 1997, Cooperman

5 caused to be sent to Cooperman Intermediary A a check in the

6 amount of $19,858.96.

7 Overt Act No. 226 : In or about May 1997, Cooperman

8 caused Cooperman Intermediary A to use proceeds of the check

9 described in Overt Act No. 225 to satisfy legal fees owed to

10 Cooperman Intermediary A's law firm by Cooperman.

11 Overt Act No. 227 : On or about October 3, 1997,

12 Cooperman caused Cooperman Intermediary A to pay Cooperman

13 Plaintiff 2 $10,000, representing Cooperman Plaintiff 2's share

14 of the MILBERG WEISS kickback in Heart Technology .

15 Other Overt Acts in the Cooperman Lawsuits

16 Overt Act No. 228 : On or about March 27, 1989,

17 MILBERG WEISS, BERSHAD, SCHULMAN, and others caused to be sent to

18 Cooperman Brother-in-Law B a letter, signed by SCHULMAN, falsely

19 characterizing Cooperman's brother-in-law as a "consultant" to

20 'MILBERG WEISSS-in a case called. .":Liberty All-Star Equity Fund .

21.: Overt Act No...229: On or about March 29, 1989,

22 MILBERG WEISS, -BERSHAD, and others caused to be. sent to Cooperman

23 Brother-in-Law B a $35,000 check, with a cover letter signed by

24 BERSHAD falsely describing the payment as Cooperman's Brother-in-

25 Law B's "retainer with work performed and to be performed with

26 regard to [ Liberty All-Star ]."

27 Overt Act No. 230 : On or about April 21, 1989,

28 MILBERG WEISS, BERSHAD, and others caused to be sent to Cooperman

74 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 79 of 106

Brother-in-Law B a $25,000 check, with a cover letter signed by

2 BERSHAD falsely describing the payment as Cooperman's Brother-in-

3 Law B's "retainer" in a case called " Brinkmann Instruments,

4 Inc. ."

5 Overt Act No. 231: On or about.May 17, 1989,

6 MILBERG WEISS, BERSHAD, and others caused to be sent to Cooperman

7 Brother-in-Law B a $40,000 check, with a cover letter signed by

8 BERSHAD falsely describing the payment as Cooperman's Brother-in-

9 Law B's "retainer payment" in.a case called "MDC Corporation ."

10 Overt Act No. 232:. On or about May 19, 1989,

11 MILBERG WEISS, BERSHAD, and others caused to be sent to Cooperman

12 Brother-in-Law B a $40,000 check, with a cover letter signed by

13 BERSHAD falsely describing the payment as Cooperman's Brother-in-

14 Law B's "retainer payment" in a case called " Imperial Bank ."

15. Overt Act No. 233 : On or about June 19, 1989, Cooperman

16 caused Cooperman Brother-in-Law B to pay $65,000 of the proceeds

17 of the MILBERG WEISS checks described in Overt Acts Nos. 230-232

18 to a company controlled by Cooperman.

19 Overt Act No. 234 : On or about June 24, 1989, Cooperman

20. caused Cooperman Brother-in-Law B to pay $60,000 of the proceeds

21 of the MILBERG WEISS checks described in Overt Acts Nos. 230-232

22^-.to a company controlled by Cooperman.

23 Overt Act No. 235 : On or about August 17, 1989,

24 MILBERG WEISS, BERSHAD, and 'others caused to be sent to Cooperman

25 Brother-in-Law B a $10,000 check, with a cover letter signed by

26 BERSHAD falsely describing the entirety of the payment as

27 Cooperman Brother-in-Law B's "retainer" in a case called

28 "Citvtrust Litigation."

75 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 80 of 106

Overt Act No. 236 : On or about August 28, 1989,

2 Cooperman caused Cooperman Brother-in-Law B to pay $10,000 of the

3 proceeds of the MILBERG WEISS checks described in Overt Acts

4 Nos. 230-232 and 235 to a company controlled by Cooperman.

5 Overt Act No. 237 : On or about February 8, 1990,

6 MILBERG WEISS, BERSHAD, and others caused to be sent to Cooperman

7 Brother-in-Law B a $35,000 check, with a cover letter signed by

8. BERSHAD falsely describing the payment as Cooperman Brother-in-

9 Law B's "retainer" for his "services with regard to investigation

10 and expert analysis in connection with" a company called " Lone

11 Star Industries ."

12 Overt Act No. 238 : On or about June 12, 1990,

13 MILBERG WEISS, BERSHAD, and others caused to be sent to Cooperman

14. Brother-in-Law B a $25,000 check, with a cover letter signed on

15 behalf of BERSHAD falsely describing the entirety of the payment

16 as Cooperman Brother-in-Law B's "payment" for his "activities andl

17 report" in connection with a case called " Hyatt Union Square

18 Litigation ."

19 Overt Act No. 239 : On or about November 16, 1990, in an

20 under:oath deposition in Valley National , Cooperman, acting in

21.- concert with MILBE:RG WEISS and others, falsely denied that he had

22' received any payment for serving as a plaintiff in

23. Newhall Land , and concealed his expectation that MILBERG WEISS

24 would pay him for being a class representative in

25 Valley National .

26 Overt Act No. 240 : On or about February 6, 1991,

27 MILBERG WEISS, BERSHAD, and others caused to be sent to Cooperman

28 Brother-in-Law B a $35,000 check, with a cover letter signed by

76 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 81 of 106

BERSHAD falsely describing the entirety of the payment as

2 Cooperman Brother-in-Law B's "retainer with regard to acting as

3 an expert as to damages and other aspects concerning" a case

4 called " C.R. Bard Securities Litigation ."

5 Overt Act No. 241 : On or about February 15, 1991,

.6 Cooperman caused Cooperman Brother-in-Law B to pay $33,250 of the

7 proceeds of the MILBERG WEISS checks described in Overt Acts

8 Nos. 230-232, 235, 237-238,'and 240 to a company controlled by

9 Cooperman.

10 Overt Act No. 242 : Ori or about July 3, 1992, Cooperman,.

11 acting in concert with MILBERG WEISS and others, subscribed under

12 penalty of perjury to answers to interrogatories in MBNA , which

13 falsely stated that Cooperman had never, directly or indirectly,

14 received payment from MILBERG WEISS.

15 Overt Act No. 243: On or about June 1, 1995, Cooperman

16 caused to be sent to MILBERG WEISS and Partner B a letter

17 stating, among other things, "Re: Infant Formula case - please do

18 ASAP - our share goes to [Cooperman Intermediary A] - he's

19 pressing me for $ - please send me copy."

20.. Overt Act No. 244 : On or about July 7, 1995,

21 MILBERG WEISS,. BERSHAD, Partner B, and others caused to be sent

22 to Cooperman Intermediary A a $25,868 check, with a cover letter

23 signed by BERSHAD falsely describing the payment as

24 Cooperman Intermediary A's "share of attorneys' fees with respect

25 to [ Infant Formula ]."

26 Overt Act No. 245 : On or about April 5, 2001,

27 MILBERG WEISS caused to be sent by interstate telefax a letter.

28 directing that an additional $507,662.71 in attorneys' fees in

77 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 82 of 106

ACC/Lincoln Savings and an additional $ 572,078.37 in attorneys'

2 fees in Columbia Savings be sent to MILBERG WEISS from the

3 settlement funds in those cases.

20 I. .2 1.22.

78 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 83 of 106

COUNT TWO

2 [Defendants BERSHAD, SCHULMAN, and LAZAR]

3 [18 U.S.C. § 1962(d)]

4 [Racketeering Conspiracy]

5 52. The Grand Jury hereby repeats and realleges paragraphs

6 1 through 39 of this Indictment.

7 I. THE ENTERPRISE

8 53. At all times relevant to this Indictment, the New York

9 law firm partnership Milberg Weiss Bershad & Schulman LLP,

10 formerly known as "Milberg Weiss Bershad Hynes & Lerach LLP" and

11 "Milberg Weiss Bershad Specthrie & Lerach" ("Milberg Weiss"),

12. constituted an "enterprise" as defined by Title 18, United States

13 Code, Section 1961(4), which was engaged in, and the activities

14 of which affected, interstate commerce.

15 54. Defendants DAVID J. BERSHAD and STEVEN G. SCHULMAN were

16 employed by and associated with the enterprise. Defendant

17 SEYMOUR M. LAZAR was associated with the enterprise.

18 II. PURPOSES OF THE RACKETEERING CONSPIRACY

19 55. The purposes of the racketeering conspiracy included

2.0 the following:

21: a. to provide Milberg.Weiss and its partners,

22 including BERSHAD and SCHULMAN, with a stable of persons who were:

23 ready, willing, and able to serve, and whom the courts would

24 likely approve to serve; as named plaintiffs representing absent

25 class members and shareholders in the Lawsuits;

26 b. to enable Milberg Weiss and its partners,

27 including BERSHAD and SCHULMAN, to file and maintain the

28 Lawsuits;

79 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 84 of 106

1.1

c. to assist Milberg Weiss and its partners,

2 including BERSHAD and SCHULMAN, in securing lead counsel status

3 in the Lawsuits; and

4 d. to enrich BERSHAD, SCHULMAN, LAZAR, and the other

5 members and associates of the enterprise through the more than

6 approximately $ 216.1 million dollars of attorneys' fees

7 Milberg Weiss obtained in the Lawsuits and litigation resolving

8 the Lawsuits and the more than approximately $ 11.3 million

9 dollars in kickbacks that BERSHAD, SCHULMAN, and others paid and

10 caused to be-paid to the Paid Plaintiffs.

11 III. THE RACKETEERING CONSPIRACY

12 56. Beginning on a date unknown but at least as early as in

13 or about 1981, and continuing through at least in or about 2005,

14 within the Central District of California and elsewhere,

15 defendants BERSHAD, SCHULMAN, and LAZAR, together with other

16 persons known and unknown to the Grand Jury, being persons

17 employed by and associated with the enterprise described in

18 paragraph 53 above, which enterprise engaged in, and the

19 .activities of which affected, interstate and foreign commerce,

.20 knowingly and. intentionally conspired to violate 18 U.S.C. 21. § 1962(c), that is, to conduct and. participate, directly and

.22 indirectly, in the. conduct of the affairs of that enterprise

23 through a. pattern of racketeering activity, as that term is

24. defined in Sections 1961(1) and 1961(5) of Title 18, United

25 States Code, consisting of multiple acts indictable under the

26 following provisions of federal law:

27 a. 18 U.S.C. §§ 2, 1503 (obstruction of justice);

80 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 85 of 106

lit

b. 18 U.S.C. §§ 2, 1952(a)(1), (3) (travel and use of

2 facilities in interstate commerce, in furtherance

3 of commercial bribery);

4 c. 18 U.S.C. §§ 2, 1341, 1346 (mail fraud involving

5 the deprivation of money and property and honest-

6 -services);

7 d. 18 U.S.C. §§ 2 1343, 1346 (wire fraud involving

8 the deprivation of money and property and honest

9 services);

10 e. 18 U.S.C. §§ 2, 201(c)(2) (illegal witness

11 payments); and

12 f. 18 U.S.C. §§ 2, 1956 (money laundering).

13 57. It was a further-part of the conspiracy that each

14. defendant agreed that a conspirator would commit at least two

15 acts of racketeering activity in the conduct of the affairs of

16 the enterprise.

17 IV. MANNER AND MEANS OF THE CONSPIRACY

18 58. The object of, the conspiracy was carried out in the

19 manner and by the means described in paragraphs 42 through 50

2.0 above, which the Grand :Jury incorporates herein by reference.

21.

22. .

23. 24

81 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 86 of 106

1II

COUNTS THREE THROUGH FIVE

2 [Defendant LAZAR]

3 [18 U.S.C. §§ 1341, 1346, 2]

4 [Mail Fraud; Aiding and Abetting; and Causing An Act to be Done]

5 59. The'.Grand Jury hereby. repeats and realleges paragraphs

6 1 through 34 and 42 through 50 of this Indictment.

7 60. Beginning on a date unknown to the Grand Jury but at

8-: least as early-as in or about 1981, and continuing until at least

9 in or about 20:04, within. the Central District of California and

10 elsewhere, defendant SEYMOUR M. LAZAR, together with

11 Milberg Weiss, Bershad, Schulman, and others known and unknown tol

12 the Grand Jury, knowingly and with intent to. defraud, devised,

13 : participated in, and executed a scheme to defraud absent class

14. members and shareholders in the Lazar Lawsuits as to a material

15 matter, by depriving these victims of the honest services of

16 Milberg Weiss, lawyers in Milberg Weiss, and LAZAR.

17 . 61. On or about the following dates, within the Central

18 District of California and elsewhere, for the purpose of

19., executing and attempting to execute the above-described scheme to

20! defraud, defendant LAZAR, aided and-abetted by Milberg Weiss,

21` Bershad, and others known and unknown to the Grand Jury, caused

22- the following :items to be placed in an authorized depository for

23 mail matter and to be sent and delivered by the United States

24 Postal Service, and to be deposited to be sent and-delivered by

25 private and commercial carrier, according to the directions

26 thereon:

82 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 87 of 106

2 THREE 05/25/00 $125,000 check from Milberg Weiss in New York, New York, to the Palm Springs Law Firm in 3 Rancho Mirage, California

4 FOUR 06/15/00. $30,564.03 check from the Palm Springs Law Firm in'Indian Wells, California, to the 5 Selzer Law Firm in Palm Springs, California

6 FIVE 07/24/00 $18,975 check from the Palm Springs Law Firm in Indian Wells, California, to the Selzer Law 7 Firm in Palm Springs, California

20.

21:

83 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 88 of 106

COUNTS SIX THROUGH EIGHT

2 [Defendants MILBERG WEISS, BERSHAD, SCHULMAN and LAZAR]

3 [18 U.S.C. §§ 1341, 1346, 2]

4 [Mail Fraud; Aiding and Abetting; and Causing An Act to be Done]

5 62. The Grand Jury hereby repeats and realleges paragraphs

6 1 through 34 and 42 through 50 of this Indictment.

7 63. Beginning on a date unknown to the Grand Jury but at

8 least as early as in or about 1981, and continuing until at least

9 in or about 2004, within the Central District of California and

10 elsewhere, defendants MILBERG WEISS, DAVID J. BERSHAD,

11 STEVEN G. SCHULMAN, and SEYMOUR M. LAZAR, together with others

12 known and unknown to the Grand Jury, knowingly and with intent to

13 defraud, devised, participated in, and executed a scheme to

14 defraud absent class members and shareholders in the

15 Lazar Lawsuits as to a material matter, by depriving these

16 victims of money and property and of the honest services of

17 MILBERG WEISS, lawyers in MILBERG WEISS, and LAZAR, and to obtain

18 money and property by means of material false and fraudulent

19 pretenses, representations, and promises.

20. 64. On or about the following dates, within. the Central

21 'District of California and elsewhere, for the purpose of

22 executing and attempting to execute the above-described scheme to

23 defraud, defendants MILBERG WEISS, BERSHAD, SCHULMAN, LAZAR, and

24 others known and unknown to the Grand Jury, aided and abetted by

25 each other and by others known and unknown to the Grand Jury,

26 caused the following items to be placed in an authorized

27 depository for mail matter and to be sent and delivered by the

28 United States Postal Service, and to be deposited to be sent and

84 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 89 of 106

delivered by private and commercial carrier, according-to the

2 directions thereon:

4 SIX 12 / 28/00 $50,000 check from MILBERG WEISS in New York, New York, to the Palm Springs Law Firm in 5. Indian Wells, California

6 SEVEN 06/18/01 Letter from BERSHAD in New York City to the Palm Springs Law Firm in Palm Springs, 7 California

8 EIGHT 07 / 09/-01 $133,000 check from MILBERG WEISS in New York, New York , to the Palm Springs Law Firm 9 in Indian Wells , California

10`

12:

18 ,

20.

85 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 90 of 106

ill

COUNT NINE

2 [Defendants MILBERG WEISS, BERSAAD, LAZAR, and SELZER]

3 [18 U.S.C. § 1956(h)]

4 [Money Laundering Conspiracy]

5 65. The-Grand Jury hereby repeats and realleges paragraphs

6 1, 2, 5, and 6 of this Indictment.

7 1. INTRODUCTION

8 66. As used in this Count Nine, the term "Specified

9 Unlawful Activity" includes all acts and activities described in

10. Counts One and Three through Eight concerning defendant LAZAR

11 that are indictable as: (a) obstruction of justice, in violation

12 of Title 18, United States Code, Section 1503; (b) mail fraud

13 involving deprivation of honest services, in violation of Title

14 18, United States Code, Sections 1341 and 1346; (c) wire fraud

15 involving deprivation of honest services, in violation of Title

16 18, United States Code, Sections 1343 and 1346; (d) mail fraud

17 involving a scheme to obtain money and property in violation of

18 Title 18, United States Code, Section 1341; (e) wire fraud

19: involving a scheme to obtain money and property in violation of

20. Title 18, United States.Code;.Section 1343; and (f) illegal

21 witness payments, in violation of Title 18, United States Code,

22 Section 201(c)(2.) .

23 67. As a result of the Specified Unlawful Activity,

24 MILBERG WEISS was awarded , obtained , and retained ownership and

25 1control of certain monies and property, including more than

26 $44 million in attorneys' fees that were awarded to MILBERG WEISS

27 in the Lazar Lawsuits, which became the proceeds of the Specified

86 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 91 of 106

Unlawful Activity no later than upon receipt of these funds by

2 ^MILBERG WEISS.

31. II. THE OBJECTS OF THE MONEY LAUNDERING CONSPIRACY

4 68. Beginning on or about October 28, 1992 (the date on

5 which Title 18, United States Code, Section 1956(h) was enacted),.

6 and continuing until at least in or about 2004, in the Central

7 District of California and elsewhere, defendants MILBERG WEISS,

8 DAVID J. BERSHAD, SEYMOUR M. LAZAR, and PAUL T. SELZER, together

9 with others known and unknown to the Grand Jury, knowingly

10 combined, conspired, and agreed to commit the following money

11 laundering offenses against the United States:

12 a. To commit concealment money laundering by

13 knowingly conducting, willfully causing others to conduct, and

14 attempting to conduct and to cause others to conduct financial

15. transactions involving the proceeds of Specified Unlawful

16 Activity, knowing that the property involved in the transactions

17 represented the proceeds of some form of unlawful activity, and

18 knowing that the transactions were designed, in whole or in part,

19. to conceal or disguise the nature, source, ownership, or control

20 of the proceeds of Specified Unlawful Activity, in violation of

21 Title 18, United States.Code, Sections 1956(a)(1)(B)(i) and 2(b};

22- and

23 b. To commit promotional money laundering by

24 knowingly condudting, willfully causing others to conduct, and

25 attempting to conduct and to cause others to conduct financial

26 transactions involving the proceeds of Specified Unlawful

27 Activity, knowing that the property involved in the transactions

28 represented the proceeds of some form of unlawful activity, with

87 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 92 of 106

the intent to promote the carrying on of Specified Unlawful

2 Activity, in violation of Title 18, United States Code,

3 Section 1956(a) (1) (A) (i) and 2 (b) .

4 III. THE MANNER AND MEANS OF THE MONEY LAUNDERING CONSPIRACY

5 69. The-objects of the money laundering conspiracy were

6 carried out, in part, in the manner and by the means described 7 below.

8 70. As described in Count One of this Indictment,

9 MILBERG WEISS, BERSHAD, and others known and unknown to the

10: Grand. Jury paid and caused to be paid secret and illegal

11 kickbacks to LAZAR through SELZER and the other intermediary law

12 firms and lawyers.

13 71. As further described in Count One of this Indictment,

14 SELZER and the other intermediary law firms and lawyers used and

15 applied the kickback payments at LAZAR's direction and for his

16. benefit, including to: (a) satisfy legal fees and expenses that

17 LAZAR owed to SELZER and the other intermediary law firms and

18. lawyers, for work related to LAZAR's real estate holdings and

19^ personal matters; (b) pay real estate appraisers, engineers,

20. surveyors., and.-.:others who performed work for LAZAR relating to

21. his real estate holdings; (c) pay permitting.fees relating to

22 LAZAR's real estate holdings; (d) make political-contributions on

23 LAZAR's behalf; (e) make and maintain investments for the benefit

24 of LAZAR; (f) make payments to and for the benefit of one of

25 LAZAR's sons; and (g) make payments directly to LAZAR.

26 72. These transactions concealed and disguised the nature,

27 source, ownership, and control of the proceeds of Specified

28 Unlawful Activity by, among other means: (a) concealing and

88 .... Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 93 of 106

disguising the payments from MILBERG WEISS to SELZER and the

2 other of LAZAR's intermediary law firms and lawyers as fees paid

3 to and for the benefit of the law firms and lawyers, when in fact'

4 they were secret and illegal kickback payments to and for the

5 benefit of LAZAR; and (b) concealing and disguising the payments

6 by SELZER and the other of LAZAR's intermediary law firms and

7 lawyers to and for the benefit of LAZAR as payments involving

8 legitimately obtained proceeds of LAZAR, when in fact they were

a secret and illegal kickback payments from MILBERG WEISS.

10 73. These transactions promoted the Specified Unlawful

11 Activity by, among other means: (a) inducing and rewarding LAZAR

12 for serving and causing his wife to serve as named plaintiffs in

13 the Lazar Lawsuits; (b) causing LAZAR to make false statements,

14 conceal material facts, and engage in other dishonest conduct in-

15 the Lazar Lawsuits in order to maintain the secrecy of his

16 illegal kickback arrangement with MILBERG WEISS; and (c) ensuring,

17 that LAZAR would serve and cause his wife to serve as named

18 plaintiffs in future Lazar Lawsuits to be brought by

19 MILBERG WEISS.

2.0.

21:

89 ___. __._._-______.___.___Case_3i0.4-cv.-022.9Z.-SG .._._-Document242-5._ Filed 08/28/2007 Page 94 of 106

COUNTS TEN THROUGH THIRTEEN

2 [Defendants LAZAR and SELZER]

3 [18 U.S.C. §§ 1956 (a) (1) (B) (i) and 2]

4 [Concealment Money Laundering; Aiding and Abetting

5 and Causing An Act to be Done]

6 74. The Grand Jury hereby repeats and realleges paragraphs

7 1, 2, 5, 6, 66, 67, and 69 through 73 of this Indictment.

8 75. On or about the dates listed below, within the Central

9 District of California and elsewhere, defendants SEYMOUR M. LAZAR

10 . and PAUL T. SELZER, aided and abetted by each other and by others.

11 known and unknown to the Grand Jury, conducted and willfully

12 caused others to conduct the following financial transactions

13 affecting interstate commerce, which transactions in fact

14 involved the proceeds of Specified Unlawful Activity (as defined

15: in paragraph 66 in Count Nine above), knowing that the property

16 involved. in the transactions represented the proceeds of some

17 form of unlawful activity, and knowing that the transactions were

18 designed, in whole or in part, to conceal and disguise the

19 nature, source, ownership, and control of the proceeds of

M. Specified Unlawful Activity:

22 TEN 0.6/22/00 transfer of approximately $ 30,564 from the '. Palm Springs Law Firm ' s business .checking 23 account ( Bank of America account # XXXXX- X0990 ) to the -Selzer -Law Firm's business 24 checking account (Union Bank of California account #XXXXXX4299) 25

26.

90 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 95 of 106

2 ELEVEN 06/26/00 transfer of approximately $5,000 from the Selzer Law Firm's client trust account 3 (Union Bank of California account #XXXXX- X0884) to LAZAR's personal trust account 4 (Bank of America account # XXXXX-X8703, in the name "Paul T. Selzer, FBO Seymour Lazar") 6 TWELVE 07/25/00 transfer of approximately $18,975 from the Palm Springs Law Firm's business checking 7 account (Bank of America account #XXXXX- X0990) to the Selzer Law Firm's client 8 trust account (Union Bank of California account #XXXXXX0884) 91I THIRTEEN 08/10/00 transfer of approximately $19,100 from the 10 Selzer Law Firm's client trust account (Union Bank of California account 11 #XXXXXX0884) to LAZAR's personal trust account (Bank of America account # XXXXX- 12 X8703, in the name "Paul T. Selzer, FBO Seymour Lazar") 13

.14

21.

22:

91 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 96 of 106

COUNTS FOURTEEN THROUGH SIXTEEN

2 [Defendant LAZAR]

3 [26 U.S.C. § 7206(1)]

4 [Subscribing to False Tax Return]

5 76. The Grand Jury hereby repeats and realleges'paragraphs

6 1 through 34 and 42 through 50 of this Indictment.

7 77. On or about the following dates, in Riverside County,

8 within the Central District of California, defendant

9 SEYMOUR M. LAZAR willfully made and subscribed a Personal Income

10 Tax Return Form 1040 for the tax years identified below, which

11 contained and was verified by a written declaration that it was

12 made under the penalties of perjury, and which LAZAR knew and

13 believed was not true and correct as to a material matter, in

14 that it failed to report as income kickbacks paid during the year

15 . by Milberg Weiss for LAZAR's benefit, in the following amounts:

92 Case .3:04-cv.-.02297-SC .__..Document 242-5 Filed 08/28/2007 Page 97 of 106

COUNT SEVENTEEN

2 [Defendant LAZAR]

3 [18 U.S.C. §§ 1503, 2]

4- [Obstruction of Justice; Causing An Act to be Done]

5 78. The Grand Jury hereby repeats and realleges paragraphs

6 1 through 39 and 42 through 50 of this Indictment.

7 79. At all times relevant to this Count Seventeen, there

8 was pending in the Central District of California a federal grand

9 jury proceeding involving allegations that Milberg Weiss had paid

10 secret and illegal kickbacks to named plaintiffs in class actions

11 and shareholder derivative actions, including LAZAR (the "Grand

12 Jury Proceeding").

13- 80. On or about January 9, 2002, LAZAR was personally

14 served at his residence in Palm Springs, California, with a grand

15 jury subpoena (the "Subpoena"). The Subpoena required LAZAR to

16 produce to the Grand Jury certain specified documents relating to

17. the Grand Jury Proceeding that were in his possession, custody,

18 or control, which, as defined and instructed by the Subpoena,

19 included documents that were in the possession of LAZAR's

20 accountant and.tax return preparer. .

21:: 81. In or about February. 2002,-within the Central District.

221 of California, defendant SEYMOUR M. LAZAR corruptly influenced,

23 obstructed, and impeded, and endeavored to influence, obstruct,

24. and impede, the due-administration of justice in the Grand Jury

25 Proceeding by directing his accountant and tax return preparer to

26 destroy certain documents relating to LAZAR, including documents

27 that LAZAR knew: (a) were responsive to the Subpoena; and

28 (b) were and would become relevant to the Grand Jury Proceeding.

93 Case 3.04=cv=02297=SC Document_.242-5___ Filed 08/28/2007 Page 98 of 106

COUNT EIGHTEEN

2 [Defendants MILBERG WEISS, BERSHAD, SCHULMAN, and LAZAR]

3 [28 U.S.C. § 2461(c), 18 U.S.C. § 981(a)(1)(C),

4 and 21 U.S.C. § 853]

5 [Criminal Forfeiture]

6 82. The allegations contained in Count One of this

7 Indictment are hereby repeated, realleged, and incorporated by

8 reference herein as though fully set forth at length for the

.9 purpose of.alleging forfeiture pursuant to the provisions of

10 Title 28, United States Code, Section 2461(c), Title 18, United

11. States Code, Section 981(a)(I)(C), and Title 21, United States

12 Code, Section 853.

13 83. Pursuant to Title 28, United States Code,

14 Section 2461(c), Title 18, United States Code,

15 Section 981(a)(1)(C), and Title 21, United States Code,

16 Section 853, each of defendants MILBERG WEISS,

17 DAVID J. BERSHAD, STEVEN G. SCHULMAN, and SEYMOUR M. LAZAR

18 convicted under Count One of this Indictment shall forfeit to the

19 United States any and all property, real or personal,. which

20 constitutes or:-is derived from proceeds traceable to such

.2.1 offense, including the following:

22 a. -'with respect to MILBERG WEISS, the more. than -

23 approximately $ 216.1 million in attorneys' fees obtained by

24_.MILBERG WEISS in the Lawsuits and litigation resolving the

25 Lawsuits (the "tainted attorneys" fees");

26 b. with respect to BERSHAD, SCHULMAN, and LAZAR, the

27 portion of the tainted attorneys' fees that each of these

28 defendants received, namely:

94 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 99 of 106

i. the more than approximately $ 26.6 million in

2 tainted attorneys' fees that BERSHAD received as a result of his

3 partnership interest in MILBERG WEISS;

4 ii. the more than approximately $ 9.5 million in

5 tainted attorneys' fees that SCHULMAN received as a result of his

6 partnership interest in MILBERG WEISS; and

7 iii. the more than approximately $ 1.2 million

8 that LAZAR received as kickback payments derived from the tainted

.9 attorneys' fees;

1.0 c. A sum of money equal to the total amount of

11 proceeds traceable to such offense, which sum for each defendant

12 will be up to the following approximate amount:

13 Defendant Amount

14 MILBERG WEISS $ 216.1 million

15 BERSHAD ...... $ 216.1 million

16 SCHULMAN...... $ 216.1 million

17 LAZAR ...... $ 57.7 million

18 84. Pursuant to Title 21, United States Code,

19 Section 853(p), as incorporated by Title 28, United States Code,

20. Section 2461.(c);, each of defendants.MILBERG WEISS, BERSHAD,

21 SCHULMAN,..and LAZAR;.if so convicted, shall forfeit substitute

22 property, up to-the value of the amount described in the

2-3- preceding paragraph, if, by any act or omission of the defendant,

24- the property described therein, or any portion thereof,

25 (a) cannot be-located upon the exercise of due diligence; (b) has

26. been transferred or sold to, or deposited with, a third party;

27 (c) has been placed beyond the jurisdiction of the court; (d) has

28 been substantially diminished in value; or (e) has been

95 .__..___.__Case. 04sv-Q22,9Z._SC.-Document2425_-_-Filed-GB/_28/2.007 .. Page 100 of 106

commingled with other property which cannot be divided without

2 difficulty.

11.

13.

1511

2.1.

22'

96 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 101 of 106

COUNT NINETEEN

2 [Defendants BERSHAD, SCHULMAN, and LAZAR]

3 [18 U.S.C. § 1963]

4 [Criminal Forfeiture]

5 85. The allegations contained in Count Two of this

6 Indictment are hereby repeated, realleged, and incorporated by

7 reference herein as though fully set forth at length for the

8 purpose of alleging forfeiture pursuant to the provisions of

9 Title 18, United States Code, Section 1963. Pursuant to Federal

101, Rule of Criminal Procedure 32.2, notice'is hereby given to the

11 defendants that the United States will seek forfeiture as-part of

121 any sentence in accordance with Title 18, United States Code,

13 Section 1963 in the event of any defendant's conviction under

14 Count Two of this Indictment.

15 86. The defendants, DAVID J. BERSHAD, STEVEN G. SCHULMAN,

16 and SEYMOUR M. LAZAR:

17 a. have acquired and maintained interests in

18- violation of Title 18, United States Code, Section 1962, which

19 interests are subject to forfeiture to the United States pursuant

20 to Title 18, United States Code, Section 1963(a)-(i);.

21; b. have an interest in, security of., claims against,

22: and property and: contractual rights that afford a source of

23 influence over, the enterprise named and described herein, which

24 the defendants-established, operated, controlled, conducted,'and

25 participated in the conduct of, in violation of Title 18, United

26 States Code, Section 1962, which interests, securities, claims,

27 and rights are subject to forfeiture to the United States

2.8 pursuant to Title 18, United States Code, Section 1963 (a)(2); and

97 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 102 of 106

c. have property constituting and derived from

2 proceeds obtained, directly and indirectly, from racketeering

3 activity, in violation of Title 18, United States Code, Section

4 1962, which property is subject to forfeiture to the United

5 States pursuant to Title 18, United States Code, Section

6 1963(a)(3).

7 87. The properties of the defendants subject to forfeiture

8 to the United States pursuant to Title 18, United States Code,

9 Section 1963(a)(1), (a)(2), and (a)(3), include but are not

10 Ilimited to:

11 a. any and all interests any of the defendants

12 BERSHAD and SCHULMAN has in Milberg Weiss.

13 b. defendant BERSHAD's share of the more than

14 approximately $ 216.1 million in attorneys' fees obtained by

15 Milberg Weiss in the Lawsuits and litigation resolving the

16 Lawsuits, which share exceeds approximately $ 26.6 million;

17 c. defendant SCHULMAN's share of the more than

18 approximately $ 216.1 million in attorneys' fees obtained by

19 Milberg Weiss in the Lawsuits and litigation resolving the

20.. Lawsuits, which.share:exceeds approximately $ 9.5 million; and

21. d. . with respect to LAZAR., the more than $2.4 million

22 in illegal kickback payments he acquired from Milberg Weiss; and

23 e. a sum of money equal to the total amount of

24 proceeds the defendants derived from proceeds obtained, directly

25 and indirectly, from racketeering activity, in the minimum amount 26 of $38.5 million-

98 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 103 of 106

88. If any of the property described in the preceding

2 paragraph as being subject to forfeiture, as a result of any act

3 or omission of any defendant:

4 a. cannot be located upon the exercise-of due

5 diligence;

6 b. has been transferred or sold to, or deposited

7 with, a third party;

8 c. has been placed beyond the jurisdiction of the

9 court;

10 d. has been substantially diminished in value; or

11 e. has been commingled with other property which

12 cannot be divided without difficulty;

13 it is the intention of the United States, pursuant to Title 18,

14J United States Code, Section 1963(m), to seek forfeiture of any

15 other property of said defendant up to the value of the

16 forfeitable property.

17 89.' The above-named defendants, MILBERG WEISS, BERSHAD,

18 SCHULMAN, and LAZAR, and each of them, are jointly and severally

19 liable for the forfeiture obligations as alleged above. 20

2.1.:

22.

99 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 104 of 106

COUNT TWENTY

2 [MILBERG WEISS, BERSHAD, LAZAR, SELZER]

3 [18 U.S.C. § 982(a)(1) and 21 U.S.C. § 853]

4 [Criminal Forfeiture]

5 . 90. The allegations contained in Count Nine of this

6 Indictment.are hereby repeated, realleged, and incorporated by

7 reference herein as though fully set forth at length for the

8 purpose of alleging forfeiture pursuant to the provisions of

9 Title 18, United States Code, Section 982, and Title 21,

10 . United States Code, Section _853.

91. Pursuant to Title 18, United States Code,

12 Section 982(a)(1), each of defendants MILBERG WEISS,

13 DAVID J. BERSHAD, SEYMOUR M. LAZAR, and PAUL T. SELZER convicted

14 under Count Nine of this Indictment shall forfeit to the

15 United States the following property:

16 a. All right, title, and interest in any and all

17 property involved in each offense in violation of Title 18,

.18 United States Code, Section 1956, or conspiracy to commit such

19 offense, for which the defendant is convicted, and all property

2.0 traceable-to such property, including the following:.

21: (1) all money or other property that was the

22` subject of each'..-transaction in violation of Title 18, United

23 States Code, Sections 1956(h) and/or 1956(a)(1)(A)(I);

24 (2) all commissions, fees, and other property

25 constituting proceeds obtained as a result of those violations;

26 (3) all property used in any manner or part to

27 commit or to facilitate the commission of those violations; and

100 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 105 of 106

IIl

(4) all property traceable to money or property

2 described in this paragraph 91.a.(1) to 91.a.(3).

3 b. A sum of money equal to the total amount of money

4 involved in each offense in violation of Title 18, United States

5 Code, Section 1956 , or conspiracy to commit such offense, for

6 which the defendant is convicted, which sum for each defendant

7 will be up to at least $ 883,463.

8 92. If, as a result of any act or omission by defendants

9 MILBERG WEISS , BERSHAD , LAZAR, or SELZER , any of the foregoing

10 money or property (a) cannot be located upon the exercise of due

11 diligence ; ( b) has been transferred or sold to , or deposited

12 with, a third party; (c) has been placed beyond the jurisdiction

13 of the court ; ( d) has been substantially diminished in value; or

14 (e) has been commingled with other property that cannot be

15 subdivided without difficulty , then any other property or

17 / / /

2.2

2425

101 Case 3:04-cv-02297-SC Document 242-5 Filed 08/28/2007 Page 106 of 106

interests of that defendant, up to the value of the money and

2 property described in the preceding paragraph of this Indictment,

3 shall be subject to forfeiture to the United States.

.4 A TRUE BILL

6 Foreperson

7 DEBRA WONG YANG I United States Attorney 8

9 GEORGE S. CARDONA 10 Chief Assistant United States Attorney

11 THOMAS P. O'BRIEN Assistant United States Attorney 12 Chief, Criminal Division

13 DOUGLAS A. AXEL Assistant United States Attorney 14 Deputy Chief, Major Frauds Section

15I RICHARD E. ROBINSON ROBERT J. McGAHAN 16 Assistant United States Attorneys Major Frauds Section 17

22.

102 Case 3:04-cv-02297-SC Document 242-6 Filed 08/28/2007 Page 1 of 16

Exhibit E Case 3:04-cv-02297-SC Document 242-6 Filed 08/28/2007 Page 2 of 16

t vtJTDTT T

STATEMENT OF FACTS IN SUPPORT OF DAVID J . BERSHAD PLEA AGREEMENT AND INFORMATION

Defendant DAVID J. BERSHAD ("BERSHAD") represents and admits

that the following facts are true. Pseudonyms, capitalized

terms, and case names herein have the same meanings as are

ascribed to them in the first superseding indictment in United

States v. Milberg Weiss Bershad & Schulman LLP, et al. , CR 05-

587 (A) -JFW (the "FSI") .

Introduction

1. At all relevant times, BERSHAD was a name partner in

Milberg Weiss & Bershad LLP, formerly known as "Milberg Weiss

Bershad & Schulman LLP," "Milberg Weiss Bershad Hynes & Lerach

LLP," and "Milberg Weiss Bershad Specthrie & Lerach" (hereinafter

"Milberg Weiss"). BERSHAD worked in Milberg Weiss's principal

office in New York, New York, was one of the managing partners of

Milberg Weiss, and was the senior partner primarily responsible

for overseeing Milberg Weiss's financial affairs and accounting

department.

2. Milberg Weiss specialized in serving as plaintiff's

counsel in class actions and shareholder derivative actions

(collectively "Class Actions") brought in federal and state

courts throughout the United States, including in the Central

District of California.

3. As counsel seeking to represent and representing class

-1- Case 3:04-cv-02297-SC Document 242-6 Filed 08/28/2007 Page 3 of 16

members or shareholders not before the courts (collectively

"absent class members"), Milberg Weiss and its attorneys,

including BERSHAD, had fiduciary duties of loyalty, honesty, and

trust to absent class members. Individuals who sought to be

authorized by the courts to serve and who served as

representative plaintiffs on behalf of absent class members

(hereinafter "named plaintiffs") likewise had fiduciary duties of

loyalty, honesty, and trust to those absent class members.

Overview of Secret Payment Arrangements

4. Beginning in or about the 1970s and continuing through

2005, in order to facilitate the recruitment and retention of

named plaintiffs, certain senior Milberg Weiss partners agreed

with various individuals that Milberg Weiss would secretly pay

those individuals a portion of the attorneys' fees that Milberg

Weiss obtained in Class Actions in which such individuals served,

or caused a relative or associate to serve, as a named plaintiff.

5. The Milberg Weiss partners who agreed during the

relevant times to secretly pay the named plaintiffs included

BERSHAD, Partner A, Partner B, Steven G. Schulman ("Schulman"),

Partner E, and two other senior Milberg Weiss partners, referred

to herein as "Partner F" and "Partner G" (collectively the

"Conspiring Partners").

6. The individuals who agreed to serve as named plaintiffs

in Class Actions pursuant to the secret payment arrangement with

Milberg Weiss included, among others, Seymour M. Lazar ("Lazar"),

-2- Case 3:04-cv-02297-SC Document 242-6 Filed 08/28/2007 Page 4 of 16

Howard J. Vogel ("Vogel"), and Steven G. Cooperman ("Cooperman"),

as well as three named plaintiffs who resided, at times, in

Florida (hereinafter the "Florida paid plaintiffs"). Generally,

these individuals were promised that they would be paid

approximately 10% of the net attorneys' fees that Milberg Weiss

obtained in their respective Class Actions, although they were

also told by BERSHAD and other Conspiring Partners that the

amount would be lower if they were paid in cash or if Milberg

Weiss had payment obligations on the same case to others.

7. By entering into such secret payment arrangements,

BERSHAD and the other Conspiring Partners were able to secure a reliable source of individuals who were ready, willing, and able to serve as named plaintiffs in Class Actions that Milberg Weiss wanted to bring. In addition, some of these individuals would investigate and propose to BERSHAD and other Conspiring Partners potential Class Actions for Milberg Weiss to bring. Such payment arrangements generally enabled Milberg Weiss to file more Class

Actions and to file them more quickly than would be possible absent such arrangements. Filing Class Actions more quickly than other competing plaintiffs' law firms enhanced Milberg Weiss's ability to obtain lead counsel status in cases, before and after the passage of the Private Securities Litigation Reform Act of

1995. Lead counsel generally obtained a larger share of the attorneys' fees awarded in a Class Action than other counsel.

The secret payments arrangements with paid plaintiffs played a

-3- Case 3:04-cv-02297-SC Document 242-6 Filed 08/28/2007 Page 5 of 16

meaningful role in enabling Milberg Weiss to grow.

8. At all relevant times, BERSHAD, the other Conspiring

Partners, and the paid plaintiffs knew that their secret payment arrangements were improper.

9. BERSHAD knew that it was improper for Milberg Weiss to secretly share attorneys' fees with the paid plaintiffs, and that such payment arrangements created conflicts of interest between the paid plaintiffs and the absent class members they purported to represent. BERSHAD believed that discovery in a Class Action of the secret payment arrangement with a named plaintiff could have resulted in, among other things: (a) the disqualification of the named plaintiff from serving as a class representative in that action and other Class Actions; (b) the disqualification of

Milberg Weiss, including the Conspiring Partners, from serving as class counsel in that action and other Class Actions; and (c) referral to a disciplinary committee and a risk of revocation or suspension of one or more of the Conspiring Partners' licenses to practice law.-

10. At all relevant times, BERSHAD, the other Conspiring

Partners, and the paid plaintiffs knew that their payment arrangements had to be concealed from the federal and state courts presiding over their Class Actions. BERSHAD, the other

Conspiring Partners, and the paid plaintiffs also understood that, to the extent necessary, they would make or cause to be made false and/or misleading statements in documents filed in

-4- Case 3:04-cv-02297-SC Document 242-6 Filed 08/28/2007 Page 6 of 16

federal and state Class Actions (including complaints, motions,

and under-oath certifications) and in under-oath testimony and

other discovery in such actions in order to conceal the existence

of their secret payment arrangements.

11. When BERSHAD prepared individuals for their Class

Action depositions whom he knew had payment arrangements with

Milberg Weiss, BERSHAD's practice was to caution them that they

would be disqualified from serving as named plaintiffs if it were

disclosed that they had received or been promised a share of

Milberg Weiss's attorneys' fees. BERSHAD provided this caution with the expectation that these individuals would then conceal in

their depositions and elsewhere, as necessary, the existence of

their payment arrangements with Milberg Weiss. BERSHAD never

advised Lazar or any other paid plaintiffs that the payments made

to them or to intermediaries for their benefit was in compliance with applicable law.

12. To further conceal the payments made to various named plaintiffs, BERSHAD, Partner A, Partner B, and Partner E delivered some of them in cash. Regarding the cash used to pay these paid plaintiffs:

(a) In the earlier years of the conspiracy, BERSHAD,

Partner A, Partner B, Partner F, and Partner G pooled their personal cash into a fund BERSHAD maintained in his office at

Milberg Weiss, which was used by the Conspiring Partners to supply cash for secret payments to paid plaintiffs and others.

-5- Case 3:04-cv-02297-SC Document 242-6 Filed 08/28/2007 Page 7 of 16

The amounts the Conspiring Partners each contributed were supposed to be approximately proportionate to their respective partnership interests in Milberg Weiss. BERSHAD kept track of the amounts contributed and of the secret cash payments that had been made to paid plaintiffs.

(b) Later in the conspiracy, BERSHAD, Partner A,

Partner B, Partner F, and Partner G caused Milberg Weiss to award

"bonuses" to them, amounting to the cash they had contributed, plus additional amounts intended to approximate the income taxes payable by them on such "bonuses." To implement this practice,

BERSHAD, Partner A, Partner B, Partner F, and Partner G caused to be included in Milberg Weiss's first written partnership agreement, adopted in 1986, a provision that enabled them to allocate up to 10% in the aggregate of the partnership's net income to one or more partners prior to determining the equity partners' shares of the firm's net income. A comparable bonus provision was maintained in Milberg Weiss's partnership agreements thereafter. A purpose of these bonus provisions was to enable BERSHAD, Partner A, Partner B,. Partner F, and Partner

G, who determined in their sole discretion the allocation of the bonuses, to use Milberg Weiss profits to compensate themselves for the cash they had contributed to the secret payment fund.

(c) Schulman did not contribute cash to the fund for paying plaintiffs because he claimed he lacked the money to do so. With the express approval of BERSHAD and Partner A, Partner

-6- Case 3:04-cv-02297-SC Document 242-6 Filed 08/28/2007 Page 8 of 16

E contributed some cash to the fund on one occasion, and was

later compensated by BERSHAD, Partner A and Partner B via a

Milberg Weiss bonus award.

(e) BERSHAD personally provided cash payments to two

of the Florida paid plaintiffs, and was told by Partner A that

Partner A had personally provided cash payments to at least one

of the Florida paid plaintiffs. Partner B also told BERSHAD that

he should be credited for cash that Partner B had used to pay a

plaintiff.

(f) BERSHAD provided cash to Partner E to deliver a

cash payment to Vogel.

13. BERSHAD and the other Conspiring Partners also

concealed the payments to named plaintiffs in other ways. Among

them was to have paid plaintiffs select intermediary law firms,

lawyers, and other professionals through whom they would be paid.

BERSHAD and other Conspiring Partners would cause Milberg Weiss

checks to be issued to these intermediaries, with the

understanding and intent that the money would be distributed to

or used for the benefit of the paid plaintiffs. BERSHAD and

other Conspiring Partners knew that although these payments were variously documented and described as, among other things,

"referral fees" and "professional fees" owed by Milberg Weiss to

the intermediaries, they were actually for the benefit of the paid plaintiffs. BERSHAD caused false and misleading information to be provided to Milberg Weiss's outside accountants and tax

-7- Case 3:04-cv-02297-SC Document 242-6 Filed 08/28/2007 Page 9 of 16

return preparers, as well as the Internal Revenue Service,

concerning such payments, to describe them as legitimate fees

paid for the benefit of the intermediary lawyers and other

professionals, rather than as payments for the benefit of the

paid plaintiffs.

Secret Payment Arrangement With Seymour Lazar

14. Partner A, on behalf of Milberg Weiss, established a

secret payment arrangement with Lazar. Soon after Lazar first

became a named plaintiff for Milberg Weiss, Partner A told

BERSHAD that Milberg Weiss was to pay Lazar a percentage of the

attorneys' fees that Milberg Weiss obtained in Lazar's cases, as

described in paragraph 6 above. BERSHAD later discussed the

Lazar payment arrangement with other of the Conspiring Partners.

15. When the first payment to Lazar came due, Partner A

told BERSHAD that Lazar was willing to have the payment

obligation to him satisfied by Milberg Weiss making an investment

in a business venture with which Lazar was affiliated. Partner A

told BERSHAD that they should satisfy their obligation to Lazar

by supporting this business venture and at the same time have an

opportunity to make some money. As a result, Milberg Weiss

issued a check to Lazar's associated business venture in 1979, to

benefit Lazar for serving as a named plaintiff. Also at Lazar's

request, another payment to benefit Lazar was made in 1984 via a

Milberg Weiss check issued to Lazar's accountant in California.

16. Partner A subsequently told BERSHAD that Partner A had

-8- Case 3:04-cv-02297-SC Document 242-6 Filed 08/28/2007 Page 10 of 16

agreed with Lazar that Milberg Weiss would satisfy its payment obligations to Lazar by paying the intermediary law firms that

Lazar designated.

17. Lazar and certain of his relatives served as named plaintiffs for Milberg Weiss in numerous Class Actions. To satisfy Milberg Weiss's payment obligation to Lazar on these cases, BERSHAD caused Milberg Weiss checks to be written to one of Lazar's sons (who was an attorney), the Palm Springs Law Firm, and other intermediary law firms and attorneys, as selected by

Lazar. BERSHAD caused these payments to be documented and falsely described as, among other things, "referral fees" and the

"share of fees" owed by Milberg Weiss to these intermediaries.

Nonetheless, BERSHAD understood that such payments represented monies that Milberg Weiss owed to Lazar, were made to satisfy

Milberg Weiss's payment obligation to Lazar, and would be used for Lazar's benefit or at his direction.

Secret Payment Arrangement With Steven Cooperman

18. Partner B, on behalf of Milberg Weiss, established a secret payment arrangement with Steven Cooperman, pursuant to which Milberg Weiss would pay Cooperman a percentage of the attorneys' fees that Milberg Weiss obtained in Cooperman's cases, as described in paragraph 6 above. BERSHAD discussed Cooperman's payment arrangement with other of the Conspiring Partners.

19. Near the conclusion of Cooperman's Newhall Land class action, Partner B told BERSHAD that Cooperman wanted to be paid

-9- Case 3:04-cv-02297-SC Document 242-6 Filed 08/28/2007 Page 11 of 16

right away and that the amount Milberg Weiss was going to pay

Cooperman on the case was about $175,000. Partner B also told

BERSHAD that Cooperman was going to be a very important client for Milberg Weiss going forward.

20. Partner A, Partner B, and BERSHAD discussed the means by which Milberg Weiss could quickly get Cooperman the money the firm owed him on Newhall Land . After some discussion, Partner A,

Partner B, and BERSHAD agreed that Partner A would travel to

California, meet with Cooperman, and pay him $175,000 from

Partner A's own funds. Partner A would do this by either using a

strategy involving a phony option to buy art from Cooperman or overpaying for art purchased from Cooperman.

21. Partner A subsequently paid Cooperman $175,000 in 1989, documented as a phony "refundable option" payment for Partner A's

right to purchase a painting owned by Cooperman. Partner A waited a period of time and then declined to exercise the phony

%%option." In truth, the "option" payment by Partner A was a means to get Cooperman money quickly, to compensate him for having served as a plaintiff in Newhall Land . In the meantime,

Partner A, Partner B and BERSHAD discussed how to get funds to

Cooperman through other means, so that Cooperman could then

refund the phony "option" payment to Partner A.

22. Eventually, Partner A, Partner B, and BERSHAD decided

that they would cause Milberg Weiss to pay Cooperman through his brother-in-law ("Cooperman Brother-in-Law B"), who had a business

-10- Case 3:04-cv-02297-SC Document 242-6 Filed 08/28/2007 Page 12 of 16

background. They further decided that the Milberg Weiss payments would be disguised as compensation to Cooperman Brother-in-Law B

for his services as a consultant on Class Action cases when, in

fact, the payments were primarily intended to compensate

Cooperman for serving as a named plaintiff in Newhall Land .

23. BERSHAD then met with Schulman and with Partner E to

identify Class Actions that Milberg Weiss controlled and had a

good likelihood of success, for which they could pay Cooperman

Brother-in-Law B consulting fees. BERSHAD explained to Schulman

and to Partner E that Milberg Weiss had an obligation to

Cooperman who was serving as a named plaintiff. After Schulman

and Partner E identified suitable cases, BERSHAD caused Milberg

Weiss to issue several consulting "retainer" checks to Cooperman

Brother-in-Law B in 1989 and 1990 with regard to specific Milberg

Weiss cases. BERSHAD discussed with Partner A and Partner B that

Milberg Weiss payments to Cooperman Brother-in-Law B would supply

funds to Cooperman so that Cooperman, in turn, would repay

Partner A the $175,000 he had provided Cooperman under the guise

of the phony "option."

24. Cooperman, Cooperman Plaintiff 1, Cooperman Plaintiff

2, and certain of Cooperman's relatives and associates served as

named plaintiffs for Milberg Weiss in numerous other Class

Actions. To satisfy Milberg Weiss's payment obligation to

Cooperman on these cases, BERSHAD caused Milberg Weiss checks to be written to intermediary attorneys and their associated law

-11- Case 3:04-cv-02297-SC Document 242-6 Filed 08/28/2007 Page 13 of 16

firms selected by Cooperman, namely Richard R. Purtich and James

P. Tierney (referred to as Cooperman Intermediary A and Cooperman

Intermediary B in the FSI). BERSHAD caused these payments to be documented and falsely described as, among other things,

"referral fees" and the "share" of attorneys' fees owed by

Milberg Weiss to these intermediaries. Nonetheless, BERSHAD understood that such payments represented monies that Milberg

Weiss owed to Cooperman, were made to satisfy Milberg Weiss's payment obligation to Cooperman, and would be used for

Cooperman's benefit or at his direction.

Secret Payment Arrangement With Howard Vogel

25. BERSHAD and Partner E, on behalf of Milberg Weiss, established a secret payment arrangement with Howard Vogel, pursuant to which Milberg Weiss would pay Vogel a percentage of the attorneys' fees that Milberg Weiss obtained in Vogel's cases, as described in paragraph 6 above (except that Vogel's percentage of Milberg Weiss's attorneys' fees was sometimes greater than

10%). BERSHAD discussed Vogel's payment arrangement with other of the Conspiring Partners.

26. Initially, Partner E was Vogel's primary contact at

Milberg Weiss for initiating new Class Actions and arranging for

Vogel's payments. After Partner E left Milberg Weiss at the end of 1999, the maintenance of the relationship with Vogel was taken over by Schulman.

27. Vogel, certain of his relatives, and the Howard Vogel

-12- Case 3:04-cv-02297-SC Document 242-6 Filed 08/28/2007 Page 14 of 16

Retirement Plan served as named plaintiffs for Milberg Weiss in numerous other Class Actions. To satisfy Milberg Weiss's payment obligation to Vogel on these cases, Schulman and Partner E caused

Milberg Weiss checks to be written to intermediary attorneys and their associated law firms selected by Vogel, namely Vogel

Intermediary A and Vogel Intermediary B. Schulman and Partner E caused these payments to be documented and falsely described as, among other things, "referral fees" and the "share" of attorneys' fees that Milberg Weiss owed to these intermediaries.

Nonetheless, BERSHAD understood that any payments to Vogel intermediaries represented monies that Milberg Weiss owed to

Vogel, were made to satisfy Milberg Weiss's payment obligation to

Vogel, and would be used for Vogel's benefit or at his direction.

28. Around the time of the conclusion of the Oxford Health class action in 2003, Schulman told BERSHAD that Vogel wanted to be paid millions of dollars for having the Howard Vogel

Retirement Plan serve as a named plaintiff in that case. BERSHAD discussed with Partner A and Schulman that Vogel's demands were too high.

29. Because of the ongoing grand jury investigation into

Milberg Weiss's payment arrangements with named plaintiffs,

BERSHAD did not want to deal with Vogel on the Oxford Health secret payment.

30. Based on his contemporaneous discussions with Partner A and Schulman, BERSHAD knows the following:

-13- Case 3:04-cv-02297-SC Document 242-6 Filed 08/28/2007 Page 15 of 16

(a) Schulman discussed Vogel's payment demands on

Oxford Health with Partner A.

(b) Partner A told Schulman that he did not want to talk directly to Vogel, and said Vogel should get a lawyer.

(c) Schulman relayed this information to Vogel, who arranged for Vogel Intermediary A, a lawyer in Denver, Colorado, to negotiate the matter on Vogel's behalf.

(d) Partner A and Vogel Intermediary A met in New York to negotiate the amount of payment for Vogel on Oxford Health .

31. The payment Milberg Weiss made to Vogel on Oxford

Health was approximately $1.1 million. Although it was paid by

Milberg Weiss check issued to Vogel Intermediary A in December

2003, at all times BERSHAD understood that the payment was made for the benefit of Vogel, in satisfaction of Milberg Weiss's obligation to Vogel for having the Howard Vogel Retirement Plan serve as a named plaintiff in Oxford Health .

32. In furtherance of the conspiracy described above,

BERSHAD and other members of the conspiracy committed and caused to be committed the following acts, among others:

(a) On or about December 13, 1999, in the Xerox class action, brought by Milberg Weiss in the United States District

Court for the District of Connecticut, in which Lazar was a named plaintiff, Lazar falsely certified, under penalty of perjury, that he would "not accept any payment for serving as a

-14- Case 3:04-cv-02297-SC Document 242-6 Filed 08/28/2007 Page 16 of 16

representative party on behalf of a class beyond plaintiff's 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."

(b) On or about November 6, 1996, in the Individual class action, brought by Milberg Weiss in the United States

District Court for the District of Massachusetts, in which

Cooperman was a named plaintiff, Cooperman falsely certified, under penalty of perjury, that he would "not accept any payment for serving as a representative party on behalf of a class beyond plaintiff's 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."

(c) On or about April 9, 2003, in the CIT Group class action, brought by Milberg Weiss in United States District Court for the Southern District of New York, in which Vogel was a named plaintiff, Vogel falsely certified, under penalty of perjury, that Vogel would "not accept any payment for serving as a representative party of behalf of a class beyond plaintiff's 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."

-15- Case 3:04-cv-02297-SC Document 242-7 Filed 08/28/2007 Page 1 of 5

Exhibit F Case 3:06-cv-0229-S4BB DGaaei r241 Fled 08/2612007 Page 2 of,5

10 IN THE UNITED STATES DISTRICT COURT

11 FOR THE NORTHERN DISTRICT OF CALIFORNIA 12

13 IN RE: MAGMA DESIGN AUTOMATION, No. C 05-2394 CRB 14 INC. SECURITIES LITIGATION, ORDER GRANTING PLAINTIFFS' 15 / MOTION FOR CLASS CERTIFICATION 16 This Document Relates To: 17 ALL ACTIONS 18

19 Shareholders filed this lawsuit against Magma Design Automation and several of its 20 officers for alleged violations of Section 10(b) and Section 20(a) of the 1934 Exchange Act. 21 Now pending before the Court is Plaintiffs' motion for class certification. 22 As in almost all lawsuits by shareholders ofpublic companies, the investors in this case 23 easily satisfy the requirements ofRule 23. First, there are too many ofthem to make individual 24 suits practical. Second, all ofthe shareholders' claims involve substantially the same questions 25 of law and fact. Third, the claims actually presented by the lead shareholder in this case are 26 typical of the claims that would be asserted by other investors. And fourth, the parties to the 27 case have given the Court every reason to think that the lead plaintiff and his attorneys will 28 Case 3:06-cv-0229-S4BB DGaaei r241 Fled 08/2612007 Page a of,5

1 adequately represent the interests of other class members. Fed. R. Civ. P. 23(a). Finally, the

2 Court has little trouble concluding that, as with most suits against public companies, a class

3 action is "maintainable in this case because Magma Design Automation treated its all of its

4 shareholders in the same fashion, which both raises the specter of "inconsistent or varying

5 adjudications with respect to individual members of the class, and makes a class action

6 "superior to other available methods for the fair and efficient adjudication of the controversy.

7 Fed. R. Civ. P. 23(b). See also Blackie v. Barrack, 524 F.2d 891, 902 (9th Cir. 1975).

8 Faced with the Ninth Circuit's policy of liberally construing Rule 23 in the context of

9 class actions suits, Defendants raise one basic argument in opposition to class certification.

10 Defendants view the crux of the case as a dispute about whether the company made false and

11 misleading statements regarding its financial prospects during the course ofrecently concluded

12 patent litigation, which Plaintiffs view as having had an adverse impact on the company and its

13 stock price. Yet the shareholders' complaint itself sets forth claims for relief based of a series

14 of statements that occurred long before the litigation even began, when Magma Design

15 Automation was using patented technology, but was not yet embroiled in a legal dispute about

16 their use of it. Defendants contend that these earlier statements are not properly the subject of

17 a claim under the securities laws, and moreover, that a "properly constituted class would not

18 even include the lead plaintiff, who purchased his stock before the litigation had begun.

19 Distilled to its essence, Defendant's argument is simply that some aspect of Plaintiffs'

20 claims are going to fail. The nub of their contention is that Plaintiffs' claim for relief is too

21 broad and cannot succeed as to earlier, purportedly "forward-looking statements, which the

22 company believes do not subject them to liability. See 15 U.S.C. § 78u-5(c). It is axiomatic,

23 however, that "arguments evaluating the weight of evidence or the merits ofa case are improper

24 at the class certification stage. Dukes v. Wal-Mart, Inc., 474 F.3d 1214, 1277 (9th Cir. 2007);

25 see also Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 177 (1974) ("We find nothing in either the

26 language or history ofRule 23 that gives a court any authority to conduct a preliminary inquiry

27 into the merits of a suit in order to determine whether it may be maintained as a class action. ).

28 Defendants' argument may ultimately carry the day, knock out part of the lawsuit, and reveal Case 3:06-cv-0229-S4BB DGaaei r241 Fled 08/2612007 Page a of,5

1 that the lead plaintiff is ineligible for relief. But the proper vehicle for presenting this argument

2 is on a motion for partial summary judgment. It is not a reason for denying class certification.

3 That certain shareholders might be able to put forward stronger claims than others, or that a

4 better lead plaintiff might be found to advance the claims ofthe class, is not a reason to proceed

5 to test the shareholders' theory of liability on its merits, at least at this stage of the litigation.

6 This case is not like the ones cited by Defendant in opposition to class certification. For

7 instance, in this case there is no absolute bar on recovery due to a statute oflimitations, see, e.g.,

8 Bovee v. Coopers & Lybrand, 103 F.R.D. 596, 604 (S.D. Ohio 2003), and there are no

9 "undisputed facts that establish a date after which the investors' reliance on the company's

10 alleged misrepresentations would be unreasonable, see e.g. , 144 F.R.D. 247, 254-55 (D.N.J.

11 1992). Here, Defendants' argument against class certification cuts to the heart of Plaintiffs'

12 claims. Plaintiff's theory is that the company issued materially false and misleading statements

13 given that these statements assumed the company could use technology to which it did not have

14 absolute proprietary rights. Whether their theory has any merit under the securities laws is a

15 question for another day, not an issue to be resolved at the stage of class certification.

16 Defendants' argument may form the basis for a slam-dunk motion for partial summaryjudgment,

17 though the Court here expresses no view on that issue at all. Whatever the strength of the

18 company's defense as to these earlier statements, the merit of its position does not transform its

19 argument about the merits of the case into a reason for denying class certification.

20 Finally, Defendants suggest that class certification is improper because the complaint

21 defines the class to include "all persons who purchased or otherwise acquired the securities of

22 Magma during the relevant period. Defendants note that this broad definition would capture

23 "short-sellers, whose goal was to make money as the stock of Magma Design Automation

24 depreciated. Defendants note that the plaintiffs in a class action must have aligned legal

25 interests, rather than the diametrically opposed interests that shareholders and short-sellers

26 typically have. See Fed. R. Civ. P. 23(a); In re PolyMedica Corp. Sec. Litig. , 244 F.R.D. 27,44

27 (D. Mass. 2004). Like most of the other courts that have addressed this issue, this Court rejects

28 the idea that the inclusion of short-sellers is fatal to Plaintiffs' request for class certification. In Case 3:06-cv-0229-S4BB DGaaei r241 Fled 08/2612007 Page 45of,5

1 re Unioil Sec. Litig. , 107 F.R.D. 615, 622 (C.D. Cal. 1985). To the extent that any difference

2 exists among shareholders in terms oftheir actual reliance on the alleged misrepresentations, or

3 the damages they suffered as a result of that reliance, such issues may be addressed during

4 subsequent phases of the trial. Id. ("With respect to damages, any differences between named

5 plaintiffs and class members at this point in the litigation do not preclude class certification.

6 Conflicts which arise later can be solved by grouping the class members into subclasses or

7 bifurcating trial of the damages issue. ); see also Blackie, 524 F.2d at 902 ("Confronted with a

8 class of purchasers allegedly defrauded over a period of time by similar misrepresentations,

9 courts have taken the common sense approach that the class is united by a common interest in

10 determining whether a defendant's course of conduct is in its broad outlines actionable, which

11 is not defeated by slight differences in class members' positions, and that the issue may

12 profitably be tried in one suit. ).

13 Given the allegations set forth in the complaint, the Court finds that the proposed class

14 of shareholders satisfies the requirements of Rule 23. To the extent that the claims set forth in

15 the complaint are without merit, or that even meritorious claims give rise to no damages for

16 certain shareholders, the Court expects such issues to be litigated in due course during these

17 proceedings, and will respond appropriately to the merits ofthose issues when they are squarely

18 presented.

19 IT IS SO ORDERED.

22 Dated: August 16, 2007 CHARLES R. BREYER UNITED STATES DISTRICT JUDGE 23

28 G:\CRBALL\2005\2394\order re class certification.wpd Case 3:04-cv-02297-SC Document 242-8 Filed 08/28/2007 Page 1 of 4

Exhibit G Case 3:04-cv-02297-SC Document 242-8 Filed 08/28/2007 Page 2 of 4

Home > Legal > Counsel to challenge Milberg Weiss proposed settlement of In Re Omnivision Technologies, Inc.

Ads by G0981r Addo ur press release for free .

Settlement With IRS <4 Previous I Next Today We are Tax Attorneys! 888-776-7770 Free Counsel to challenge Milberg Weiss proposed Confidential Consultation . settlement of In Re Omnivision Technologies, Inc. www.PriorityTaxRelief.com

Added: (Sun Jul 22 2007)

Lawsuits Cash Theodore A. Bechtold, Esq. has identified numerous plaintiff issues affecting Lawsuit Cash for Phs the proposed settlement of In Re OMNIVISION TECHNOLOGIES, INC. The www.AmericanLegalFunding.corn deadline for objections to the settlement authorized by Milberg Weiss suspect plaintiffs is August 14, 2007. Class members that have received settlement materials from Milberg Weiss relating to In Re OMNIVISION TECHNOLOGIES, INC. File #C-04-2297 SC (JCS) or if you purchased or acquired the Common Stock of OMNIVISION TECHNOLOGIES, INC. between June 11, 2003 and Milberg Weiss Firm Info June 9, 2004 are encouraged to read the Milberg Weiss Notice of Settlement Milberg Weiss Associate and confirm the details of this press release before carefully considering their Surveys: Firm Culture, Pay options. & Hiring Info! The www.l/aut .comInfoLaw Statement of Facts in the Bershad plea agreement describes illegal payoffs to and perjury by plaintiffs at the direction of Milberg Weiss. In Re OMNIVISION TECHNOLOGIES, INC. included Milberg Weiss plaintiffs which raise grave doubts about the representation of the interests of absent Class Frier &Levitt members by lead counsel or lead plaintiffs. The level of scrutiny for Certified by the Supreme settlements in every case involving Milberg Weiss must be far higher after Court of NJ as a Civil Trial execution of the Bershad plea agreement. Attorney Awww.frttor ierfevitt.com The first and most obvious problem requiring investigation of the plaintiffs used in the case is the fact that Steven Schulman signed the original complaint filed by Milberg Weiss for his client Paul Lee Associates LLC. Another Milberg Weiss lead plaintiff appears to have vanished from the face Motions and Appeals of the earth. A third plaintiff has documented legal difficulties which appear Experienced Appellate to preclude it from serving as a representative plaintiff. This plaintiff has Attorney Call For Your been repeatedly named in Court filings including the current settlement Next Motion or Appeal documentation submitted by Milberg Weiss. w."w.mzhulaw corn The curious procedural history of the lead counsel appointment in the case, a disappearing plaintiff and the relentless use of another clearly improper plaintiff reflect the overwhelming likelihood that not every case affected by Milberg Weiss improper plaintiff activities has been identified by the government investigation or revealed to the Courts or the public. Absent Class members require legitimate representatives not Milberg Weiss placeholders doing what Milberg Weiss lawyers tell them to. These lawyers have accepted direction from Partner A and his management team for years. Removal of the names of Steven Schulman and David Bershad from the Milberg Weiss letterhead cannot erase the doubts of Class members about the nature of the representation they are receiving in this case. When 43% of shareholder recovery goes to these lawyers representing these plaintiffs under these circumstances the evaluation of the fairness and adequacy of Case 3:04-cv-02297-SC Document 242-8 Filed 08/28/2007 Page 3 of 4

the proposed settlement requires a complete review of the players and the process in addition to the terms agreed to by the parties.

Largest loss in the case was initially claimed by Liao Group which was represented by Schiffrin & Barroway. In their August 9, 2004 Notice of Motion to appoint the Liao group lead plaintiff filed they declared themselves the best choice to represent Class members for many reasons. The group claimed $595,000 in losses. They were also the first case filed but counsel withdrew their motion just two days prior to the scheduled September 24, 2004 hearing. The Liao group stated that they were still willing to participate in a leadership role but nonetheless withdrew their motion to be appointed lead plaintiff.

Milberg Weiss was appointed lead plaintiff on September 24, 2004 representing a group including Ken Churchill as trustee for Churchill Family Trust, Michael ]. Hannan on behalf of Coyote Growth Management LLC, Anthony P. Broccoli, Gerald A. Madore and Rocco Peters. They are each listed on the amended complaints filed November 23, 2004 and May 20, 2005 as part of the )/2Churchill groupik1/2.

Mr. Broccoli was officially recognized by the firms as a lost plaintiff on December 2, 2005. See Letter attached to the Declaration of Rick Barreca of Seeger & Weiss dated July 27, 2006. He describes his longstanding inability to obtain documentation or any response from the plaintiff prior to sending the letter explaining his pending removal as lead plaintiff. Despite this ongoing difficulty even contacting Mr. Broccoli he was included as part of the '0/2Churchill group1/2 used to gain control of the case. Eight months later the Court is informed of the lost plaintiff when counsel finally asked to remove him from the record.

Mr. Barreca*0 s declaration regarding Mr. Broccoli reflects numerous writings, contacts and information passing to Mr . Broccoli but makes only one reference to actual conversational communication with the client. Ms. Williams of Milberg Weiss states that she 0/2instructed him directly0/2 to produce documents and that Mr . Broccoli gave her a fax number but makes no specific representation of actually speaking to the man . Even the proof of service is only proof of mailing to an address . No attempts at personal service were made. It is entirely reasonable to ask if Mr . Broccoli ever even existed. What documentation did the firm have in its possession when representing to the Court that this person was a valid representative plaintiff? What documentation does it have now? Did this mysterious figure and his l0/21ossesI 1/2 make a difference in the appointment of Milberg Weiss as lead counsel in the case? Was this simply a ruse to enable Seeger and Weiss to justify a larger payout from Milberg Weiss when the fee was divided among the participating firms ? Why was such an undocumented, unresponsive plaintiff presented to the Court in the first place and then kept in place for months after officially disappearing? When an indicted racketeering enterprise is involved anything is possible. Many serious questions require answers.

One surviving Lead plaintiff is of even greater concern than the mysterious and elusive Mr. Broccoli . Coyote Growth Management LLC is referenced in the latest settlement materials as a lead plaintiff. It appears they are better suited to the role of respondent and defendant that acting as a lead plaintiff. The failure of Milberg Weiss to inform the Court of the status of this plaintiff and remove it from the record is easily explained by the nature of their business and the obvious relevance to the activities confirmed by the Bershad plea agreement. Rather than be candid with the Court about their plaintiff they revert to form and mislead the Court. In addition to asking the Court to reject the proposed settlement and investigate all plaintiffs used in the case Counsel intends to request imposition of sanctions against Milberg Weiss for use of one improper plaintiff and failure to provide timely Case 3:04-cv-02297-SC Document 242-8 Filed 08/28/2007 Page 4 of 4

notification of the missing plaintiff.

Action was taken by the State of Arizona against Coyote Growth Management LLC on August 28, 2006. The firm was an unregistered investment advisor operating in violation of Arizona Law since 2003. Coyote Growth Management LLC was run by Michael Joseph Hannan a/k/a k.1/2MICHAEL HANNAN,'0/2 -I .1/2MIKE HANNAN1)/2 and I .1/2MICHAEL J. HANNAN, II" and his wife I1/2Jane Doe0/2 Hannan. They were required to cease and desist by State authorities. There is a subsequent request by counsel for the Arizona Corporation Commission Michael Dailey to appoint a receiver for The 12 Percent Fund, I LLC and Coyote Growth Management, LLC (Case number: CV07-10539). Coyote was an unregistered investment company selling unregistered securities while Hannan was barred by the SEC from association with any broker, dealer or investment advisor. Hannan promoted the fund guaranteeing participants a 12% return on their investment. Hannan0/2s history of securities violations included securities fraud, misappropriation of client funds and use of those funds to manipulate markets in OTC stocks. This is who Mel Weiss brings to Court as a representative plaintiff for public shareholders.

More information and links to news stories and Court documents relating to these matters can be found at the stoplegalfiction website. In Re OMNIVISION TECHNOLOGIES Class members are encouraged to review all available information and contact Theodore A. Bechtold, Esq. to discuss their rights at 570 686-3438 or by E Mail (see contact info below).

Submitted by: T heodo re A. Bechtold, Esq.

Find out mo re.

Slip and Fall Injuries Licensed Professional Engineers Reports - Expert Court Testimony www.heimer.com

VMC_Technolog es, Inc. Fadal, Cincinnati, G&L, Clausing Sales, Service, Parts & Training v ww.vrnctech.com

Pleural Mesothelioma Mesothelioma and Pleural cancer information and treatment PleuraCancers.n(c

Auto Accident Settlement How Much is Your Auto Accident Case Worth? Auto Accident Case Into www. T otaliniury.ccm Ad6 by Gale Disclaimer: Pressbox disclaims any accuracy in the content contained in these releases. If you would like a release removed please send an email to remove (@D ressbox.co. uk. together with the url of the release.

ho me page I add your p iLess release I advanced search I about pressbox p ress release distribution I copywriting services I ema il news sionua I journalist sign up site terms I privacy policy i advertising info " feedback ;1999-2007 Pressbox.co.uk Case 3:04-cv-02297-SC Document 242-9 Filed 08/28/2007 Page 1 of 12

Exhibit H Case 3:04-cv-02297-SC Document 242-9 Filed 08/28/2007 Page 2 of 12

MAY-17-2806 11:36 United States District Court P.02 Southern District of New York

IN RE: INITIAL PUBLIC OFFERING SECURTFIES LITIGATION

Reply to Motion for Protective Order This Document relates to 21 MC 92-(SAS) ALL CASES

r.HAiYS9^eftS Ur_ , ;

_ y t MAY 1 6 ?OW f -

S SGHEPAXI 1 Case 3:04-cv-02297 -SC Document 242-9 Filed 08/28/2007 Page 3 of 12

P1HY-1 7-2e 11: 36 P 03

TABLE OF CONTENTS

1. STATEMENT OF FACTS p.3-4

2. ARGUMENT p.5

3. CORRECTION OF FACTS p.6-10

4. CONCLUSION P.10

2 Case 3:04-cv-02297-SC Document 242-9 Filed 08/28/2007 Page 4 of 12

MAY-17-2006 11:36 P.04 1. Statement of Facts

Mel Weiss presented many false and misleading "facts" in support of his bid for a personal protective order. Many ofthese will be addressed in my correction of facts section. His feigned concern for absent Class members and protests over the consequences of my intrusion into counsel 's general right to privacy cannot obscure who is really seeking the protection ofyour Court. There is nothing in my various public statements that requires knowledge of anything beyond the public record. I have faithfully complied wi h direction of the Court as well complying with the Code ofProfessional Responsibility Despite the IPO Executive Committee waiving privilege by posting my detailed letter objecting to their proposed issuer settlement on the official JPO Securities Litigation website I have avoided public dissemination ofthe issues noted in the letter, I have made absolutely no mention of other activities by counsel where 1 have previous y indicated that any claim ofprivilege cannot possibly withstand serious scrutiny. Protection of the Interests of my clients and all absent Class members required some limited public communication about these important issues. Nothing improper was disclosed at any time. I see no legitimate reason why Mel Weiss should be afforded judicial protection from my entirely proper activities in furtherance ofthe interests ofmy clients and Millions. of.absent Class members.

Due to the procedural status ofthe case and the needs of my existing clients it became desirable to have clients in each of the 309 charged offerings. Only at that point was there any need for me to publicly reach out to locate additional Class members. I have not sought out the big fish hoping to represent a lead plaintiff or earn a large contingent fee for settling private cases. Each press release accurately described the current state of affairs. Class members are-entitled to know about the status of the case, the legal status ofclass counsel and the meaning of the Court of Appeals decision. Class members were advised oftheir-right to fair and adequate representation and some basic issues effecting the representation of Milberg Weiss, Several of my clients have been waiting years for a return call from Milberg Weiss. Many of them have been concerned about these issues for a long time. For me to provide less information than I have would be as unfair to the Class members as the year of silence Milberg Weiss has provided since the indictment ofthe firm and its partners.

The only substantive point made by Mr. Weiss which warrants explanation is my noting the failure to charge culpable parties "otherwise identified by counsel". The failure of experienced class counsel to charge so many culpable parties listed in each prospectus in so many cases comes dangerously close to fraud on both Class members and the Court. Such intentional failure to pursue legitimate client interests is simply not subject to any legal privilege. For purposes of this Motion no such complex analysis is required. A review ofthe Amended complaints, prospectus' and the Court of Appeals decision is all that is required to understand this situation. No privileged or confidential information is called for.

Class counsel has presumably reviewed many documents and extensive trading data since filing these cases many years ago. It is reasonable to inquire if Class counsel has added a single defendant or added and any existing defendant to even one additional case in the 4 years since the amended complaints were filed? The fact that there are uncharged participants in the scheme that were listed in the prospectus is without question. After reading the Court of Appeals decision a reasonable person familiar with the public record of the case does not require any special insight or information to reach the conclusion that Milberg Weiss and its IPO Executive Committee at some point during the last 4 years are certain to have identified additional participants in the scheme.

3 Case 3:04-cv-02297-SC Document 242-9 Filed 08/28/2007 Page 5 of 12

MY-17-2006 11:37 OS They failed to either charge these entities and individuals as defendants or exclude them moth me P class. The continued inclusion ofthese parties as Class members was the primary cause of the class certification problems_ Examination of this monumental failure cannot be prevented by claims ofreliance on privileged information. The Court of Appeals was able to identify the problem without any access to confidential Milberg Weiss work product. Some ailoeauts were not suitable class members because they were really uncharged participants in the scheme. The Court of Appeals decision connecting the dots allows for no other reasonable conclusion. The Court ofAppeals expressly refused to do the job for experienced Class counsel or offer any legal advice. For whatever warped reasons Milberg Weiss has chosen not to even attempt to charge even one ofthese parties at any time. Dcdactive reasoning does not require privileged information or Milberg Weiss work product

A review of the thick binder of supporting documentation presented in support of this bid for protection reflects a motion based on speculation and conjectinc_ It is an honor to be accused of flagrantly disregarding my ethical responsibilities and breaching my fiduciary duties to IPO Securities Litigation Class members by the likes ofMel Weiss. False accusations ofthis nature from a rich powerful man facing the fact that his upcoming retirement will include eating from a tray and sleeping on a cot are to be expected. At this point nothing would really surprise me.

In the absence ofrelevant facts or verbage he relies on the "inevitable disclosure of IPO Executive Committee work product" to my "purported intervenor clients". Noting could be further from the truth or more completely unnecessecary. The history of client neglect and abuse by the indicted firm and nature ofthe allegations in the racketeering indictment have made my task quite easy. My clients have been treated badly or ignored for so long by Milberg Weiss that they often need nothing more than basic information about where their case stands. Nothing remotely deceptive or misleading is required and nothing improper has ever been disclosed. There is just no need to sell this idea to any of these Class members.

Mr. Weiss cites Gulf Oil Co., 452 US at 101 but the question is whose rights have been interfered wiith. Even after this case was thrown back in their faces by the Court of Appeals the priority is still the issuer settlement class. Nothing seems to deter the relentless pursuit of this fee even now that the class for which the issuer settlement was negotiated has been decertified due to their own misguided decisions. Mr. Weiss also cites in Re Currency Conversion Fee Antitrust Litig., 361 F.Supp. 2d 237- 53 (SDNY 2005). Again I question who is most likely to be abusing the rights ofmembers of the Class. In my opinion the record speaks for itself.

The Court clearly has the power to restrict communication by counsel; this is a question of judgment. Under these circumstances the only parties needing protection are Mel Weiss and his indicted firm. I fail to see a single negative consequence for Class Members from my efforts to remove Milberg Weiss. What harm is threatened by informing Class members about legitimate alternatives to inaction and the availability an attorney who is currently working to extract their case from the clutches of indicted racketeers. Far greater harm would result from restriction of my effort to address the continued effects of these conflicts and distractions on the legal representation provided to my Clients and 7 Million IPO Securities Litigation Class members.

This is really a choice of evils. One year after the indictment of Milberg Weiss the firm is still holding my clients cases hostage. The Court ofAppeals has returned the case to the District Court, expressly refusing to provide guidance to experienced class counsel. They failed to properly plead the case.

4 Document 242-9 Filed 08/28/2007 Page 6 of 12 Case 3:04-cv-02297-SC ------MRY-17-2006 11=37 P.06 The critninal trial is six months away but the warn-ups are underway. Last week defendant Schulman was explaining how no one is hurt by kickbacks to lead plaintiffs, and in any event these payments do not technically qualify as kickbacks. This is certainly the first of many public statements of OJ like denial and dissembling by these defendants. The Court must weigh the risk to the interests of class members resulting from limited statements made in pursuit of the legitimate interests of clients against the risk posed by Federal Courts providing official protection for Mel Weiss and his firm from efforts by counsel for absent Class members opposed to the continued exercise of fiduciary duties on their behalf by Milberg Weiss.

11. ARGUMENT

A. The court should not iimuose any restrictions on Communication

Guidance from the Court about what Class members can or should be told about the unique situation created by the RICO indictment of Milberg Weiss and its partners was not considered appropriate- Polling of Class members regarding their satisfaction with the representation of Milberg Weiss would result in a landslide for removal if my clients are any indication. This- would also be certain to precipitate an unseemly public spectacle. Given the procedural state of the case additional clients were needed to improve prospects for the removal ofthe indicted firm. These limited, factually accurate press releases were issued to protect the interests ofClass Members from conflicted indicted lawyers that have managed to stay in control of my client's case for a year after the indictment ofthe firm and its partners. This minimal level ofpublic activity was required in pursuit of the interests ofthese existing clients. As soon as Mt. Weiss stated his intention to Me his motion for a protective order the activity was suspended. Any evaluation of my activities should be weighed against the harm inflicted on Millions of real people whose legal cases are still trapped by this firm's uncanny ability to avoid the consequences one would expect to follow after the racketeering indictment of a law Firm and its partners.

This is not the daily battle among counsel fighting over money. That has been the case in virtually every post indictment objection by other lawyers to Milberg Weiss remaining as lead counsel. These lawyers rail against their clients being represented by indicted racketeers. There is much indignation and concern for the proper operation of the legal system. The allegations are deplored as reprehensible. Then a deal is struck when the price is right resulting in Milberg Weiss remaining on the case in a limited capacity and the objectors gaining a greater level of control over the case and the fees. Even the dutiful attorney that sent a fax to Mel Weiss and Stan Bernstein advising them of my activities is hoping to get paid for thousands of hours of time on this very case. Of course he also states his concern with maximizing the return for "their" clients. There is obviously a great difference of opinion about the best means of achieving this admirable goal and who should be entrusted to do so.

The continuing failure of the legal profession and courts of law to address the continued exercise of fiduciary duties by indicted racketeers is the real risk here. I am prepared to address this problem in this case and as a result Mel Weiss needs to stop me by any means necessecary. Granting this motion would allow Mel Weiss and his firm to hide from the truth for only a little while longer. It would have a negative effect on new challengers to the leadership of Milberg Weiss in other cases. Restricting legitimate efforts by lawyers willing to address this problem would be far more damaging that any possible Interpretation of all of my public statements. As a mater of Law and public policy I believe than the Court should not issue a protective order for Mel Weiss and his firm Case 3:04-cv-02297-SC Document 242-9 Filed 08/28/2007 Page 7 of 12 rwr-1Y-uub 11 c A^ P.07 B. There hi been no disclosure of arivi egred material or attorney work product.

1' tive reasoning is not prohibited by claims of privilege. The amended complaints, prospectus' and the decision of the Court of Appeals provide everything needed to draw the conclusion that additional culpable parties were identified but never charged. Failure to pursue legitimate client interest cannot be wished into a strategic decision made in the client's interest and hidden by specious claims ofmy reliance on Milberg Weiss work product or an insiders strategic knowledge ofthe case. The statements are based on information that is part of the public record.

In addition to the public availability ofthe relevant information the activities by counsel for which this privilege is claimed were not performed in pursuit of the interests of the client. Ignoring so many identified potential sources of client recovery cannot possibly be part of any legitimate litigation strategy. As a result the claims by Mr, Weiss of disclosure ofprivileged material or attorney work product are without merit under any analysis.

CORRECTION OF FACTS

1. Experience and imowledge.as a securities lawyer.

After completing a double major in history and economics at Fordham University I spent 5 years on the trading floor and 5 years in the legal and regulatory division of the American Stock Exchange. In my finaltwo years I was Staff Counsel. Hands on, front line experience in the legal department of a marketplace with no real listing standards and a never ending string of spectacular regulatory embarrassments provided a far broader and deeper understanding of securities law than almost any litigation record I am aware of, Working with so many troubled, aggressive companies and years ofanalyzing details and tracking the results of every highly dilutive or otherwise suspect deal corporate counsel could dream up was an incredible education. It was precisely because ofmy long experience operating in this ethical black hole that I was able to ascertain almost immediately the nature ofthe Milberg Weiss business model and understand the deleterious effects it has had on the representation provided to many millions of Class members.

After being terminated during my first encounter with the Milberg Weiss business model in the Prudential matter I understood that their clients really were treated like shoeboxes frill of documents. Ofcourse at that time there appeared to be no hope of anyone actually doing anything to address the situation. Even the Federal Legislative initiatives specifically designed to address the dominance of Milberg Weiss seemed completely ineffective, ifnot favorable for the firm. Criminal prosecution of any kind was not even a remote possibility. I had watched as the lawyers responsible for my personal journey through American Stock Exchange regulatory abdication were totally unaffected by their dereliction of duty. They had proven so useful to those in charge that they were dusted offand positioned to work their way to the, very top of the Regulatory food chain. After walking away from my life as a regulator I decided against doing so again,

I took strategic guidance from Sun Tzu and the Art of War. It explains that sound plans can exist to conquer the enemy but it may be the wrong time to execute those plans. When you are overmatched and lack resources you are instructed to devise and execute a plan of defense. You can survive by burying yourself away and waiting until a time when your plans can be successfully implemented You confuse the enemy by feigning incapacity and making false Case 3:04-cv-02297-SC Document 242-9 Filed 08/28/2007 Page 8 of 12 ------r Y-17-2086 11:38 P.eB moves until the time is right. As hard as It will be for many of those involved to believe there was always a plan.

The details were, by necessetity somewhat vague but I was certain that an inside view ofthis type of fraud is essential because the expertise and devious nature of lawyer crooks makes theta very difficult to detect, much less prove anything against. My timing has admittedly been exceptional but I was actually looking into the statutes criminalizing failure to provide honest services years before the indictment ofMilberg Weiss. While I continued to earn a modest living within the - system my long term goal became creation ofa record which would demonstrate the true nature ofthe legal practice ofMilberg Weiss. This goal has clearly been reached.

My shortcomings as a litigator are obvious to all, but this approach was often a calculated effort to elicit certain reactions from and satisfy the expectations of those involved The real goal here was never money although I folly expect that when the dust eventually settles I will be both very famous and have many opportunities to get rich. Mel Weiss ascribes this battle solely to my quest for financial gain. His opinion is the result ofmoney being the only thing he understands.

If I really wanted to get paid off I would have immediately hired a lawyer like Jules Brody did and have him do the dirty work of obtaining the traditional confidential severance settlement. It is very likely that I would have received a fine package after document requests went out to all IPO Securities Litigation Executive Committee firms and others involved in the case. Instead my self directed proceedings in the New York State Department of Labor and New York Supreme Court have created tangible documented proofof one way racketeers operating within the legal system avoid any accountability for their actions.

2. In it for the money.

I freely admit that I have demanded a great deal to settle my wrongful termination claim. Understanding the nature of a $10 Million demand requires a review ofmy employment history. These firms knew for years that I was not a compliant attorney. I made a noisy exit from the American Stock Exchange. Seeger and Weiss had previously terminated we from the Prudential project due to my putting the client ahead of the process established by counsel. I was always instructed by Jules Brody to be aggressive, particularly when working on cases involving Milberg Weiss. I never disguised my objection to the approach to this case taken by Milberg Weiss. My activities were consistent with the Code ofProfessional Responsibility. Ajury will . eventually decide if my termination under these circumstances by the TO'Securities Litigation Executive Committee entitles me to money damages and how much they should pay.

The $250 Million claim for punitive damages must be compared to the fees these firms are paid. The partial settlement ofthe TO Securities litigation would have paid Mel Weiss and his associates over $350 Million in fees and expenses. What amount would deter someone from silencing objecting counsel when this much money is involved. If anything I was too conservative and should have asked for more.

Before I had a client in the case I would have gladly considered early retirement. I understood from the limitations I encountered when leaving the American Stock Exchange that taking ort an obligation to pursue the interests of the client would eliminate any possibility that I would settle my case and sign an enforceable confidentiality agreement. Days after Wberg Weiss was indicted my first executed client agreement arrived in the mail, exterminating any further temptation to attempt to find a financial exit. Case3:04-cv-02297-SC Document 242-9 Filed 08/28/2007 Page 9 of 12

PRY-17-2006 11.39 P.09 If I was really after the money I would have hired the lawyer, filed the lawsuit the next day and made sure everyone know that I was prepared to tell everything I know to the world. Instead I respect the directives of the Court, accept the long delay and questionable disposition ofmy unemployment claim and file a pro se case which is directed to the Hon, Marilyn G. Diamond. We will never know if these firms would have tried this approach if they were confronting a firm offirst rate professional litigators instead ofme, we only have the record that has been created.

I chose to make this stand despite my being subjected to all normal economic pressures. I have become virtually unemployable through normal employment channels. My family has carried me but that cannot last forever. If this was actually my plan to get paid I would have to be every bit as stupid as they always appeared to believe I was. Consider the history and look at the numbers.

My personal financial disaster began after my resignation from the American Stock Exchange. My noisy exit resulted in no employment prospects and no references at all. When I was fired by Seeger and Weiss I was unemployed for another 6 months. The financial effect was devastating. Even after landing with rules Brody I was earning $40,000 a year. Paying my student loans which were taken when I was. expecting to continue my career as a regulator was a dream. When I asked about my future i was'told by Jules Brody that if I paid my dues with the firm I would be taken care of. Small raises did not offset the increasing cost of medical insurance and rent which consumed more and more ofmy income. I decided to reach out to other firms for a new job, including most IPO Securities Litigation Executive Committee fines but there was no interest,

As my financial situation deteriorated I realized that being somewhat compromised might not be a bad way to further bury myself away to wait for the right time to take action against Milberg Weiss. I would have the opportunity to see if I would ever receive compensation more in line with my peers and reflective of the $410 per hour Jules Brody bills the investing public for my services. This fantasy slowly died after I was granted a one dollar per hour raise each year since 2003.

I repeatedly asked for and eventually received assignment to the IPO Securities Litigation. I believe that Milberg Weiss only allowed me to stay on the case because they thought that there was no way anyone with so much financial exposure would take action against them. I can think ofno other reason that can explain why someone with my employment history that made continuous and documented objections to virtually every management decision made was allowed to stay inside the tent for so long. After I was fined for contacting the Court I filed for bankruptcy. My continued inability to find paying work for over a year confirms the wisdom of obtaining some relief from my debts. It also removed any pressure of having "secret" financial problems which the opponent knows about. When forces are uneven you must utilize unorthodox strategy and tactics to succeed. Forces were never more uneven than when I started this battle. Whatever the cost in public perception resulting from my financial irresponsibility I was able to hang around long enough to achieve my goal of exposing Milberg Weiss for what it is.

3. Wants to block the issuer settlement and disrupt the litigation. Ms is true, but only because the proposed settlement was so contrary to the interests ofclass members- Class members get no money and later get to pay the defendants lawyers for negotiating this settlement. What else can a reasonable person do but object to such a proposal. I intend to continue to take any and all available legal action to prevent approval of anything remotely resembling the previously proposed settlement. Once proper counsel for my clients and other Class members is in place I will have no reason whatsoever to be disruptive. 8 Case 3:04-cv-02297-SC Document 242-9 Filed 08/28/2007 Page 10 of 12 r1H'-rr-L1eia , P.10

4. Claims to have played a major role in representing victims of life insurance fraud.

I have never claimed a major role representing policyholders. My website states that my legal experiences Included "representing policyholders against Prudential Insurance pursuant to a class action settlement". I prepared and tried arbitration cases for policyholders under terms of a settlement negotiated by Milberg Weiss and implemented by Seeger and Weiss. The only major role in this case was clearly filled by someone named Weiss. During hearings I told the arbitrators about any unfair action by the Company's representatives. I pulled some client files because delay resulted in settlement at the highest level allowed. I was fired a few days after another attorney made very negative comments about the situation in an article in New York Newsday.

My to urination made clear that the client was Prudential, not the widows, orphans and other helpless victims of Prudential agents. My efforts to obtain recovery for these deserving parties using the process set up by lawyers that supposedly represent the same clients as I did were just not welcome. I was fired. As is now apparent to all I have been around this same block with this same group of lawyers more than once.

If I had any major role in the case the terms ofthe settlement would have been followed. The best tangible proof of the failure of counsel to protect the interests of Prudential policyholders was the fact that Seeger and Weiss employed any licensed attorney available when the settlement required experienced professionals. Only the uninitiated or otherwise unemployable would be willing to do this work for $17 - $20 per hour. This was true ofmany attorneys on the case.

After a week I began to understand the dark brilliance ofthis almost undetectable yet comprehensive scheme implemented by counsel- The combination of procedural impediments, arbitrary categorization ofclaims, limited appeal rights and confusing, poorly organized materials provided to inexperienced lawyers consistently led to the most favorable result for the Compmy. Even when the policyholder "won" the victory was very limited. I completely understood why other lawyers called this practice area a racket.

My work on the American Stock Exchange facilitated Billions of dollars of securities being issued and sold to the investing public. I never had a problem because I never dealt with the personal financial wreckage resulting from equity issuance by desperate failing companies. I heard dozens of stories ofPrudential sales agents systematically descending on widows receiving a payout from a large policy to get back whatever they could by selling new product or policies. Law enforcement should clearly have been more involved. A multitude of reprehensible and morally repugnant acts were all washed away through the skills and expertise of Milberg Weiss and their numerous affiliates. The policyholders never had a chance. Once I had personal contact with these victims I could never go back to pretending this was just business.

5. Mr. Weiss expresses great concern over my personal agenda or vendetta His concerns are justified but should be ofno concern whatsoever to the Court. I have remained patient while waiting for the wheels ofjustice to turn in this historic case. My agenda and vendetta involve exposing and eliminating racketeers acting as lawyers. This agenda or vendetta also resulted in my wrongful termination. The great likelihood of a financial payoff resulting from the miscalculation of the IPO Executive Committee by firing me is just a gift they provided by dealing with my allegations in an improper manner. Case 3:04-cv-02297-SC Document 242-9 Filed 08/28/2007 Page 11 of 12 rHr-17=3b 11.40 P.11 6. Mr. Weiss appears to place great weight on the decisions ofthe Department ofLabor and the dismissal of a barely filed cage. We need to keep in mind the limitations of the procedures -- establlshed by the Department ofLabor and remember that employers are legally entitled to lie. In my case the initial determination by Susan Fish was based on a 2 minute phone interview. The only question she focused on is did I contact the Judge. Regardless of the fact that it was required by the Code ofProfessional Responsibility it was considered misconduct. It is my understanding that she made her determination on this basis.

Mr. Weiss discussion of the findings also neglects any mention of the wealth ofprocedural intrigue involved processing and adjudicating this claim. The case was delayed for well past the normal 6 month limit. Even after a determination that I was an employee no payments were authorized and requests for payment were ignored . At one scheduled "final" determination the judge was mysteriously presented with incomplete files, allowing later reassignment to a new ALJ. At the end ofthe day Joseph Wolfermann was assigned as the ALT. Despite being told by another AU that she thought It was patently obvious what went on Mr. Wolfemmann decided in favor of Jules Brody.

The long delay ofthis case and .its ultimate direction to a sympathetic jurist is best viewed in light of how W. Brody and his alawyer were able to litigate the subsequent wrongful termination claim. Jules Brody selected C. Daniel Chill as his lawyer for both matters. A look at the record ofMr. Brody's chosen counsel is a good place to begin understanding what would best be described as an old school litigation strategy. These facts are clearly relevant to evaluating the danger posed by my statements compared to the danger posed these officers ofthe court that I am attempting to remove from the case.

Dan Chill started out his career representing nursing home owners. He has extensive experience as a political operative and in certain trusts and estates work. He also represents issuers and underwriters, which makes him an interesting choice to defend an unemployment claim and a' wrongful termination claim involving the IPO Securities Litigation. The presence ofhe and his wife as plaintiffs in cases for Jules Brody provides additional background to this choice of counsel. The most informative Dan Chill case by far is currently buried in the dark reaches of Surrogate Court. W. Chill's was representing Alice Lawrence, the widow of Grauband Miller's real estate developer client Sylvan Lawrence.

Media reports describe a sordid holiday visit to Mrs. Lawrence home by Mr. Cbill. He is reported to have obtained personal checks totaling $5.5 Million as gifts from her made out to Mr. Chill and two partners at Graubard Miller. Mrs. Lawrence was on medication while recovering from surgery. He returned months later to obtain additional checks to cover the taxes due on these "gifts". The firm later obtained retroactive changes to its The agreement. Not surprisingly the fee would be larger because it was changed from hourly to contingent even though the work was already largely complete. The firm even attempted to enforce this change in Court and managed to have the case removed to Surrogate Court. This is the chosen counsel ofJules Brody. I confess to offering to settle my case for slightly more than Mr. Chill took home from his holiday gifting visit with Mrs. Lawrence but that was more of a personal insult than a serious offer. I never received a reply.

10 Case 3:04-cv-02297-SC Document 242-9 Filed 08/28/2007 Page 12 of 12

_raar-1(-fit, 11'40 P.12

After his Department of Labor victory Dan Chill continued his representation ofJules Brody in the wrongful termination suit He had Jules Brody-repeat in an executed writing his repeatedly stated beliefthat the IPO Securities Litigation Executive Committee fired me. This was first documented in his February 15, 2006 letter to the New York State Department of Labor and was consistently repeated during the unemployment hearings. flis position in the wrongful termination case clearly put the ball in the Committee's court. A short time later this entim position was abandoned and described as "factually incorrect". Despite executed instruments Mr. Chill claimed to have lacked some sort of auhority from Mr. Brody. After all this time what caused such a change of heart. As soon as Jules Brody knew that the case was assigned to Marilyn 0. Diamond his need for an independent defense from my claim suddenly vanished. I ask the Court to consider the entire history of both the IPO Securities Litigation and my private case when determining whether absent Class members really need protection from Vte or from Mel Weiss and associates?

7. W. Weiss describes a ca=ef uL investigation ofmy allegations by-the Special Master. I was not contacted by the Special Ma^ before he completed his careful investigation of my many allegations. I have never barn` provided an opportunity to read Mr_ Weiss' transcript ofhis hearing with the Special Master regarding this matter. His describing this process as a careful investigation is at vatisoce with what I was told by the Special Master at my "interview". The interview was only arranged after I began reacting to the indictment of Milberg Weiss in May 2006. I have respected the Courts decision to seal this matter but Mr. Weiss description ofthese events is very misleading. I will refrain from asking for the protection of the Court unless he persists in repeating his mischaracterization of the actual disposition ofthe sealed matters.

CONCLUSION

The reasonable activity by counsel in pursuit of the interests of clients should be tolerated. There has been no disclosure of privileged material or attorney work product. Motion should be denied in its entirety.

Respectfully Submitted-

Theodore A. Bechtold, Esq. 3I0 - 94th Street #319 Brooklyn, NY 11209 (347 - 668 4218) Dated : New York, New York May 15, 2007

TOTAL P_12 Case 3:04-cv-02297-SC Document 242-10 Filed 08/28/2007 Page 1 of 3

Exhibit I Attorney Direct00bsL4Lt39Mb,,P9t1A7-SC Document 242-10 Filed 08/28/2007 Page 2 of 3 Page 1 of 1

Welcome COURTS '. . . Attorney Search LITIG ANTS attorney .Detail as of 08/28/2007 Resources Registration Number: 2975506 ATICRNLY

Attorney Registration THEODORE ANDREW BECHTOLD JURORS United States E-Courts J UDG E S Year Admitted in NY: 2000 Contact Us Appellate Division Department of Admission: 2 Law School : BROOKLYN LAW SCHOOL Registration Status : Delinquent ARCH Next Registration : Mar 2008

The Detail Report above contains information that has been provided by the attorney listed, with the exception of REGISTRATION STATUS, which is generated from the OCA database. Every effort is made to insure the information in the database is accurate and up-to-date.

The good standing of an attorney and/or any information regarding disciplinary actions must be confirmed with the appropriate Appellate Division Department. Information on how to contact the Appellate Divisions of the Supreme Court in New York is available at www.nycourts.gov/courts .

If the name of the attorney you are searching for does not appear, please try again with a different spelling. In addition, please be advised that attorneys listed in this database are listed by the name that corresponds to their name in the Appellate Division Admissions file. There are attorneys who currently use a name that differs from the name under which they were admitted. If you need additional information, please contact the NYS Office of Court Administration, Attorney Registration Unit at 212-428-2800.

www.NYCOURTS.gov

https://iapps.courts.state.ny.us/attorney/AttorneyDetails?attorneyId=5528358 8/28/2007 Attorney DirectqCbB4.t b 2]97-SC Document 242-10 Filed 08/28/2007 Page 3 of 3 Page 1 of 2

C C

Resources To search you must enter at least the first character of the Al Attorney's first name OR the first character of the Attorney's Attorney middle name AND the first character of the last name. To Registration narrow your search enter the Attorney's full name. :i u

E-Courts Required Fields: Iu Contact Us First Name: theodore

Middle Name: andrew C1

Last Name: bechtold

Sort by: City Registration Number Last Name Registration Status State Year Admitted

Search Results: 1 Returned

Attorney Name (Click Registration Year Registration City State name Number Admitted Status for details) 1 THEODORE 2975506 2000 Delin q uent ANDREW BECHTOLD

Search Again .:,

If the name of the attorney you are searching for does not appear, please try again with a different spelling. In addition, please be advised that attorneys listed in this database are listed by the name that corresponds to their name in the Appellate Division Admissions file. There are attorneys who currently use a name that differs from the name under which they were admitted . If you need additional information , please contact the NYS Office of Court Administration, Attorney Registration Unit at 212-428-2800 or email attyreg @courts.state. ny.us .

4 https://iapps.courts.state.ny.us/attorney/AttorneySearch 8/28/2007 Case 3:04-cv-02297-SC Document 242-11 Filed 08/28/2007 Page 1 of 4

Exhibit J Case 3:04-cv-02297-SC Document 242-11 Filed 08/28/2007 Page 2 of 4

DJ Clark Wilson Sonsini 650 Page Mill Road Palo Alto CA 94304 August 14, 2007 Dear Sir:

My name is Theodore A. Bechtold, Esq. and I intend to submit an Amicus Brief detailing my objections to the settlement of In Re OMNIVISION TECHNOLOGIES, INC proposed by Milberg Weiss and their associates. I would like to appear at the hearing on behalf of all absent class members to speak to the Court about these important issues. These truly unrepresented parties have no idea that the lead plaintiffs used by Milberg Weiss to gain control of the case are so suspect. They rely on the Courts for protection and in light of the curious history of the case and the cast of characters involved this Class clearly needs protection from the activities of the indicted firm and its partners.

In Re OMNIVISION TECHNOLOGIES, INC. Class Members must rely on Milberg Weiss representative plaintiffs to oversee counsel. This fact raises grave doubts about the protection of the interests of absent Class members. The level of scrutiny for settlements in every case involving Milberg Weiss must be far higher after execution of the Bershad plea agreement. The number of issues raised by Milberg Weiss continued reliance on such inappropriate representative plaintiffs require an extraordinary level of scrutiny by the Court. Independent investigation and interview of all name plaintiffs is clearly in the interests of the Class due to Milberg Weiss criminal activities.

The first and most obvious problem requiring investigation of the plaintiffs used in the case is the fact that Steven Schulman signed the original complaint filed by Milberg Weiss for his client Paul Lee Associates LLC. A second Milberg Weiss lead plaintiff in the case has vanished from the face of the earth and a third plaintiff has documented legal difficulties which appear to preclude it from serving as lead plaintiff. This plaintiff continues to be named in Court filings submitted by Milberg Weiss. Class members require assurance that the settlement of the case has been authorized by legitimate lead plaintiffs unaffected by the activities that were admitted to in the Bershad plea agreement and statement of facts. There is an overwhelming likelihood that not every case subject to Milberg Weiss improper plaintiff activities has been identified by the government investigation or revealed to the Courts or the public. The curious procedural history of the lead counsel appointment in this case, a disappearing plaintiff and the relentless use of another clearly improper plaintiff raise serious questions that require answers.

The confirmation by David Bershad that his credenza full of cash was used for payment of kickbacks to plaintiffs indicates many untraceable payments were made to any number of parties in any number of cases. Absent Class members require legitimate representatives, not Milberg Weiss placeholders doing what Milberg Weiss lawyers tell them to. These lawyers have accepted direction from Partner A and his trusted management team for years. Removal of the names of Steven Schulman and David Bershad from the Milberg Weiss letterhead cannot erase the doubts of Class members about the nature of the representation they are receiving in this case. When 43% of shareholder recovery goes to these lawyers representing these plaintiffs under these circumstances the evaluation of the fairness and adequacy of the proposed settlement requires a complete review of the players and the process in addition to examination of the terms agreed to by the parties. The entire process, including the decision to settle the case rather than proceed toward trial must be scrutinized very carefully. Case 3:04-cv-02297-SC Document 242-11 Filed 08/28/2007 Page 3 of 4

The largest loss in the case was initially claimed by Liao Group which was represented by Schiffrin & Barroway. In their August 9, 2004 Notice of Motion to appoint the Liao group lead plaintiff they declared themselves the best choice to represent Class members for many reasons. The group claimed $595,000 in losses. They were also the first case filed but counsel withdrew their motion just two days prior to the scheduled September 24, 2004 hearing. The Liao group stated that they were still willing to participate in a leadership role but nonetheless withdrew their motion to be appointed lead plaintiff. Given the usual battles over control of these cases this arrangement seems odd. Milberg Weiss was appointed lead counsel on September 24, 2004 representing a group including Ken Churchill as trustee for Churchill Family Trust, Michael J. Hannan on behalf of Coyote Growth Management LLC, Anthony P. Broccoli, Gerald A. Madore and Rocco Peters. They are each listed on the amended complaints filed November 23, 2004 and May 20, 2005 as part of the Churchill group.

Mr. Broccoli was officially recognized by the firms as a lost plaintiff on December 2, 2005. See Letter attached to the Declaration of Rick Barreca of Seeger & Weiss dated July 27, 2006. He describes his longstanding inability to obtain documentation or any response from the plaintiff prior to sending the letter explaining his pending removal as lead plaintiff. Despite this ongoing difficulty even contacting Mr. Broccoli he was included as part of the Churchill group used to gain control of the case. Eight months later the Court was informed ofthe lost plaintiff when counsel finally asked to remove him from the record.

The Barreca declaration regarding Mr. Broccoli reflects numerous writings, contacts and information passing to Mr. Broccoli but makes only one reference that indicated actual conversational communication with the client. Ms. Williams of Milberg Weiss states that she instructed him directly to produce documents and that Mr. Broccoli gave her a fax number but makes no specific representation of actually speaking to the man. Even the proof of service is only proof of mailing to an address. No attempts at personal service were made. One has to wonder if Mr. Broccoli ever even contacted Seeger and Weiss? What documentation did the firm have in its possession when representing to the Court that this person was a valid representative plaintiff? What documentation does it have now? Did this mysterious figure and his supposed losses make a difference in the appointment of Milberg Weiss as lead counsel in the case or was this simply a ruse to enable Seeger and Weiss to justify a larger payout from Milberg Weiss when the fee was divided among the participating firms? Why was such an undocumented, unresponsive plaintiff presented to the Court in the first place and then kept in place for months after officially disappearing? I recognize the highly prejudicial nature of recent revelations of Milberg Weiss partners owning residential sex clubs and the imposition of Court sanctions for both indicted and unindicted Milberg Weiss partners for lying to the Court in a case that has not been publicly identified as part of the current government investigation. In fact these matters prove that anything is possible with Milberg Weiss. Many serious questions require answers.

One surviving Lead plaintiff is of even greater concern than use of the elusive Mr. Broccoli. Coyote Growth Management LLC is referenced in the latest settlement materials as a lead plaintiff. Unless this is actually another firm named Coyote Growth Management LLC it appears this Milberg Weiss plaintiff is far better suited to the role of respondent and defendant that that of lead plaintiff. The failure of Milberg Weiss to inform the Court of the status of this plaintiff and remove it from the record is easily explained by the nature of their business and the obvious relevance to the activities confirmed by the Bershad plea agreement. Rather than be candid with the Court about their plaintiff they revert to form and withhold information from the Court. In addition to asking the Court to reject the proposed settlement and investigate all plaintiffs used in the case I request imposition of sanctions against Milberg Weiss for continued use of one improper plaintiff and failure to provide timely notification of the missing plaintiff. Case 3:04-cv-02297-SC Document 242-11 Filed 08/28/2007 Page 4 of 4

Action was taken by the State of Arizona against Coyote Growth Management LLC on August 28, 2006. The firm was an unregistered investment advisor operating in violation of Arizona Law since 2003. Coyote Growth Management LLC was run by Michael Joseph Hannan a/k/a MICHAEL HANNAN, MIKE or MICHAEL J. HANNAN, IP and his wife who is only identified as Jane Doe Hannan. They were required to cease and desist by State authorities. There is a subsequent request by counsel for the Arizona Corporation Commission Michael Dailey to appoint a receiver for The 12 Percent Fund, I LLC and Coyote Growth Management, LLC (Case number: CV07-10539). Coyote was an unregistered investment company selling unregistered securities while Hannan was barred by the SEC from association with any broker, dealer or investment advisor. Hannan promoted the fund guaranteeing participants a 12% return on their investment. Hannan has a history of securities violations included securities fraud, misappropriation of client funds and use of those funds to manipulate markets in OTC stocks. This is who Mel Weiss brings to Court on his way to jail to act as a representative plaintiff for public shareholders.

I expect the upcoming publicity about my demands for the return of all legal fees generated in Milberg Weiss cases affected by the illegal activities to generate some interest from Plaintiffs in the Omnivision case. I was fighting to have Milberg Weiss removed, from the IPO Securities Litigation nine months before they were indicted. I would appreciate the opportunity to make the case in person on behalf of all absent Class members being subjected to representation by a racketeering enterprise. The record in the IPO cases reflects my ability to conform with the instructions of the Judge when appearing in Court. The only sideshow resulting from my appearance would be the reaction of Milberg Weiss and their associates. I am a perfect gentleman, despite what they would have you believe. I simply speak the truth to power on behalf of abused class members. I look forward to submitting an Amicus Brief and respectfully request an opportunity to address these issues in open Court. I intend to run Milberg Weiss out of the business and return all legal fees to defrauded Class members. In light of the history of official indifference to my efforts your assistance would be greatly appreciated.

Respectfully,

Theodore A. Bechtold, Esq. 310 94th Street Brooklyn, New York, 11209 347 668 4218 [email protected] Case 3:04-cv-02297-SC Document 242-12 Filed 08/28/2007 Page 1 of 5

Exhibit K Case 3:04-cv-02297-SC Document 242-12 Filed 08/28/2007 Page 2 of 5

Jeff Westermann Milberg Weiss, . 300 -South Grand Avenue , . LA CA 90071 August 14, 2007 Hello:

The first and most obvious problem requiring investigation of the plaintiffs used in the case is the fact that Steven Schulman signed the original complaint filed by Milberg Weiss for his client Paul Lee Associates LLC. A second `Milberg Weiss lead plaintiff in the case has vanished from the face of the earth and a third plaintiff has documented legal difficulties which appear to preclude it from serving as lead plaintiff. This plaintiff continues to be named in Court filings submitted by Milberg Weiss. Class members require assurance that the settlement of the case has been authorized by legitimate lead plaintiffs unaffected by the activities that were admitted to in the Bershad plea agreement and statement of facts. There is an overwhelming likelihood that not every case subject to Milberg Weiss improper plaintiff activities has been identified by the government investigation or revealed to the Courts or the public. The curious procedural history of the lead counsel appointment in this case, a disappearing plaintiff and the relentless use of another clearly improper plaintiff raise serious questions that require answers.

The confirmation by David Bershad that his credenza full of cash was used for payment of kickbacks to plaintiffs indicates many untraceable payments were made to any number ofparties in any number of cases. Absent Class members require legitimate representatives, not Milberg Weiss placeholders doing what Milberg Weiss lawyers tell them to. These lawyers have accepted direction from Partner A and his trusted management team for years. Removal of the names of Steven Schulman and David Bershad from the Milberg Weiss letterhead cannot erase the doubts of Class members about the nature of the representation they are receiving in this case. When 43% of shareholder recovery goes to these lawyers representing these plaintiffs under these circumstances the evaluation of the fairness and adequacy of the proposed settlement requires a complete review of the players and the process in addition to examination of the terms agreed to by the parties. The entire process, including the decision to settle the case rather than proceed toward trial must be scrutinized very carefully. Case 3:04-cv-02297-SC Document 242-12 Filed 08/28/2007 Page 3 of 5

Mr. Broccoli was officially recognized by the firms as a lost plaintiff on December 2, 2005. See Letter attached to the Declaration of Rick Barreca of Seeger & Weiss dated July 27, 2006. He describes his longstanding inability to obtain documentation or any response from the plaintiff prior to sending the letter explaining his pending removal as lead plaintiff. Despite this ongoing difficulty even contacting Mr. Broccoli he was included as part of the Churchill group used to gain control of the case. Eight months later the Court was informed of the lost plaintiff when counsel finally asked to remove him from the record.

Action was taken by the State of Arizona against Coyote Growth Management LLC on August 28, 2006. The firm was an unregistered investment advisor operating in violation of Arizona Law since 2003. Coyote Growth Management LLC was run by Michael Joseph Hannan a/k/a MICHAEL HANNAN, MIKE or MICHAEL J. HANNAN, II" and his wife who is only identified as Jane Doe Hannan. They were required to cease and desist by State authorities. There is a subsequent request by counsel for the Arizona Corporation Commission Michael Dailey to appoint a receiver for The 12 Percent Fund, I LLC and Coyote Growth Management, LLC (Case number: CV07-10539). Coyote was an unregistered investment company selling unregistered securities while Hannan was barred by the SEC from association with any broker, dealer or investment advisor. Hannan promoted the fund guaranteeing participants a 12% return on their investment. Hannan has a history of securities violations included securities fraud, misappropriation of client funds and use of those funds to manipulate markets in OTC stocks. This is who Mel Weiss brings to Court on his way to jail to act as a representative plaintiff for public shareholders.

I expect the upcoming publicity about my demands for the return of all legal fees generated in Milberg Weiss cases affected by the illegal activities to generate some interest from Plaintiffs in the Omnivision case. I was fighting to have Milberg Weiss removed from the IPO Securities Litigation nine months before they were indicted. I would appreciate the opportunity to make the case in person on behalf of all absent Class members being subjected to representation by a racketeering enterprise. The record in the IPO cases reflects my ability to conform with the instructions of the Judge when appearing in Court. The only sideshow resulting from my appearance would be the reaction of Milberg Weiss and their associates. I am a perfect gentleman, despite what they would have you believe. I simply speak the truth to power on behalf of abused class members. I look forward to submitting an Amicus Brief and respectfully request an opportunity to address these issues in open Court. I intend to run Milberg Weiss out of the business and return all legal fees to defrauded Class members. In light of the history of official indifference to my efforts your assistance would be greatly appreciated.

Respectfully,

Theodore A. Bechtold, Esq. 310 94th Street Brooklyn, New York, 11209 347 668 4218 [email protected] 0

(1) 0) CD a Theodore ti A. Bechtold, Esq. 0 310 94th St #319 h 0 LEHIGH ^^" N .:;Brooklyn NY 11209 VALLEY PA .80 00 N 14 AUG 2007 00 PM I T O d) LL

N N It N Jeff Westermann C Milberg Weiss E 300 South Grand Avenue U LA CA 90071 0 0

U U) ti =^^^^^•i-i-= 0) i;. J1,i,11ISI1Fl111l „4.I1,;IJIi III 11fifrl1fill 181111111FIIIIIII l N N O I

} C) M

CO CD 0 Case 3:04-cv-02297-SC Document 242-13 Filed 08/28/2007 Page 1 of 6

Exhibit L Case 3 : 04-cv-02297-SC Document 242-13 Filed 08/28/2007 Page 2 of 6 Page 1

LEXSEE 2007 US DIST LEXIS 42635

IN RE: INITIAL PUBLIC OFFERING SECURITIES LITIGATION; This Docu- ment Relates To: ALL CASES

21 MC 92 (SAS)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

2007 U.S. Dist. LEXIS 42635

June 11, 2007, Decided June 11, 2007, Filed

PRIOR HISTORY: In re Initial Pub . Offering Secs. Lead Counsel in this litigation (the "motion to inter- Litig., 2007 U.S. Dist. LEXIS 23174 (S.D.N.Y., Mar. 19, vene"). Second, Milberg Weiss moves for a protective 2007) order barring Theodore A. Bechtold, [*2] Esq. ("Bech- told"), counsel for Movants, from issuing any class-wide COUNSEL: [*1] For Movants: Theodore A. Bechtold, communications without prior approval by the Court and Esq., Brooklyn, New York. to preclude Bechtold from disclosing attorney work product (the "motion for a protective order"). For the Liaison Counsel for Plaintiffs: Melvyn I. Weiss, Esq., reasons set forth below, the motion to intervene is denied Robert A. Wallner, Esq., Ariana J. Tadler, Esq., Peter and the motion for a protective order is granted in part Safirstein, Esq., Neil Fraser, Esq., MILBERG WEISS & and denied in part. BERSHAD LLP, New York, NY; Stanley Bernstein, Esq., Rebecca M. Katz, Esq., BERNSTEIN LIEBHARD I. BACKGROUND & LIFSHITZ, LLP, New York, NY. A. Indictment of Milberg Weiss Liaison Counsel for Defendants (Underwriters): Gan- Milberg Weiss is the chair of the six-firm IPO Ex- dolfo V. DiBlasi, Esq., Penny Shane, Esq., SULLIVAN ecutive Committee that has been representing plaintiffs & CROMWELL, New York, NY. in this action for the last several years. On May 18, 2006, a federal grand jury in California returned an indictment Liaison Counsel for Defendants (Issuers): Jack C. Aus- against Milberg Weiss and two of its named partners. pitz, Esq., MORRISON & FOERSTER LLP, New York, The indictment NY. alleges, inter alia, that certain fees awarded to the firm were improperly shared with certain plaintiffs. Of the two named partners, one is on JUDGES: Shira A. Scheindlin, U.S.D.J. a leave of absence and the other has resigned from the firm. Mil- berg Weiss denies and is defending OPINION BY: Shira A. Scheindlin against the allegations in the indictment. In the year following the indictment, no lead plaintiff in any of OPINION these 310 coordinated actions has sought to remove Milberg Weiss as Lead Counsel. OPINION AND ORDER

B. Bechtold SHIRA A. SCHEINDLIN, U.S.D.J.: In January 2001, Bechtold [*3] was hired as an as- This Order addresses two motions. First, various in- sociate by Stull, Stull & Brody ("SS&B"), an IPO Execu- dividuals ("Movants") move to intervene as plaintiffs in tive Committee firm. During his employment at SS&B, certain of the coordinated actions in the above-captioned Bechtold was assigned to work on the IPO Securities litigation for the sole purpose of seeking to remove Mil- Litigation. Bechtold was fired for cause by SS&B after berg Weiss & Bershad LLP ("Milberg Weiss"), as well he sent an ex parte communication to the Court on Sep- as other members of the IPO Executive Committee, as Case 3:04-cv-02297-SC Document 242-13 Filed 08/28/2007 Page 3 of 6 Page 2 2007 U.S. Dist. LEXIS 42635, *

tember 29, 2005, which contained allegations regarding the discovery conduct of the IPO Executive Committee. ' Bechtold subsequently sued all of the members of the 2 Declaration of Neil Fraser, of Milberg Weiss, IPO Executive Committee in New York State Supreme in Support of Memorandum of Law in Opposition Court for wrongful termination seeking $ 10 million in to Motion to Intervene and Remove Milberg compensatory and $ 250 million in punitive damages, Weiss & Bershad as Lead Counsel ("Fraser which was dismissed in part on a motion to dismiss and Decl.") Exhibit ("Ex.") 5. in full after he defaulted. 3 Id. 1 The allegations in Bechtold's ex parte letter were referred to a Special Master, and based on 4 See id. his investigation, the Court concluded no further inquiry was necessary. 5 Id. Ex. 6. Bechtold then began to solicit potential class mem- C. Procedural History bers to intervene in the litigation as his clients. In March and April 2007, Bechtold issued a series of press [*4] In or about in February 2007, Bechtold submitted a releases: series of letters to the Court regarding his desire to seek the removal of Milberg Weiss. After Bechtold had satis- . On March 27, 2007, Bechtold issued a fied the Court that he had clients with an interest in this press release stating that the was "investi- litigation, the Court set a briefing schedule for a formal gating possible violations of duties owed motion to intervene by Bechtold and for a motion for a to class members in the IPO Securities protective order requested by Milberg Weiss. As per that Litigation by Milberg Weiss & Bershad schedule, on April 30, 2007, Milberg Weiss made its and Bernstein Liebhard Lifshitz and other motion for a protective order. Bechtold responded on IPO Securities Litigation Executive May 16, 2007, and Milberg Weiss submitted its reply on Committee firms." In that press release May 24, 2007. Bechtold did not submit his moving pa- Bechtold encouraged people who received pers on the motion to intervene on April 30, 2007. Nev- materials relating to the IPO litigation in ertheless, [*6] Milberg Weiss and the IPO Executive particular or from Milberg Weiss in gen- Committee submitted opposition briefs according to the eral to contact him "to discuss [their] legal schedule on May 14, 2007, responding to the February rights." Z submissions regarding the removal of Lead Counsel. Bechtold finally submitted a belated "formal" motion on . On April 11, 2007, Bechtold issued behalf of Movants to intervene on May 16, 2007. The a press release stating that "counsel will Court later ordered Bechtold to submit any reply on or intervene on behalf of class members to before June 6, 2007. The Court received Bechtold's reply remove Milberg Weiss from the case." on June 8, 2007. The press release also claims that Milberg Weiss failed to charge all culpable parties II. LEGAL STANDARD in the litigation, including parties named in the prospectus or "otherwise identified A. Permissive Intervention by counsel as participants in the manipulation." ' Permissive intervention is governed by Federal Rule of Civil Procedure 24(b), which provides, in pertinent . On April 19, 2007, Bechtold issued part: another press release that announced that Bechtold had filed the motion to intervene Upon timely application anyone may be to remove Milberg Weiss. ' permitted to intervene in an action:... (2) . On April 28, 2007, Bechtold issued when an applicant's claim or defense and a press release stating that "[c]lass mem- the main action have a question of law or bers in any case where Milberg Weiss & fact in common.... In exercising its dis- Bershad serves [*5] as lead counsel are cretion the court shall consider whether encouraged to contact Theodore A. Bech- the intervention will unduly delay or told, Esq." 5 prejudice the adjudication of the rights of the original parties. 6 Case 3:04-cv-02297-SC Document 242-13 Filed 08/28/2007 Page 4 of 6

Page 3 2007 U.S. Dist. LEXIS 42635, *

may direct to some or all of the members of any step in A motion for permissive intervention must be timely. the action . [*9] .. [and] (5) dealing with similar proce- "A district court has broad discretion in assessing the dural matters." " timeliness of a motion to intervene, which 'defies precise defuution. [*7] "' 8 In analyzing timeliness, "[t]he court 12 See Gulf Oil Co. v. Bernard, 452 U.S. 89, may consider, inter alia, the following factors: (1) how 100, 101 S. Ct. 2193, 68 L. Ed. 2d 693 (1981). long the applicant had notice of its interest in the action before making its motion; (2) the prejudice to the exist- 13 Fed. R. Civ. P. 23(d). The Court' s power to ing parties resulting from this delay; (3) the prejudice to restrict communications between parties and pu- the applicant resulting from a denial of the motion; and tative class members applies even before a class (4) any unusual circumstance militating in favor of or is certified. See In re Currency Conversion Fee against intervention." 9 "Generally, the court's analysis Antitrust Litig., 361 F. Supp. 2d 237, 252-53 must take into consideration the totality of the circum- (S.D.N.Y. 2005) (collecting cases). stances." 1° However, "[t]he principal guide in deciding In Gulf Oil Company v. whether to grant permissive intervention is 'whether the Bernard, the United States Supreme intervention will unduly delay or prejudice the adjudica- Court held that "because of the potential for abuse, a district court tion of the rights of the original parties."' " has both the duty and the broad authority to exercise control over a class action and to enter appropriate 6 Fed. R. Civ. P. 24(b). orders governing the conduct of counsel and parties ." '" However, "[t]he Gulf Oil Court specified that any order that limited 7 See NAACP v. New York, 413 U.S. 345, 365, communications between parties and 93 S. Ct. 2591, 37 L. Ed. 2d 648 (1973) potential class members 'should be based on a clear record and specific findings ("Whether intervention be claimed of right or as that reflect a weighing of the need for limitation permissive, it is at once apparent, from the initial a and the [* 10] potential inter- ference with the rights of the parties."' words of both Rule 24(a) and Rule 24(b), that the 15 "A court making this assessment should look application must be 'timely.' If it is untimely, in- to further the policies em- bodied in Rule 23, while tervention must be denied."); MasterCard Int'l limiting speech as little as possible, consistent with the rights Inc. v. Visa Int'l Serv. Assn, Inc., 471 F.3d 377, of the parties under the circumstances ." 16 Restraints 391 (2d Cir. 2006); Catanzano by Catanzano v. on communications to class members have the potential Wing, 103 F.3d 223, 234 (2d Cir. 1996). to raise First Amendment [*8] concerns and courts must be attentive to whether "the restraint is justified by the likelihood of serious abuses." 8 In re Holocaust Victim Assets Litig., 225 F.3d 17 191, 198 (2d Cir. 2000) (quoting United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 14 452 U.S. at 100. 1994)). 15 In re WorldCom Sec. Litig., No. 02 Civ. 9 Id. 3288, 2003 U.S. Dist. LEXIS 20748, 2003 WL 22701241, at *8 (S.D.N.Y. Nov. 17, 2003) (em- 10 Id. Accord NAACP, 413 U. S. at 365-66 ("Al- phasis added) (quoting Gulf Oil, 452 U.S. at 101). though the point to which the suit has progressed is one factor in the determination of timeliness, it 16 Id. (citing Gulf Oil, 452 U.S. at 102 ; Rossini is not solely dispositive. Timeliness is to be de- v. Ogilvy & Mather, 798 F.2d 590, 601-02 (2d termined from all the circumstances ." (footnote Cir. 1986)). See also id. ("One of the policies of omitted)). Rule 23 that has been specifically identified by the Second Circuit is the protection of class 11 Pitney Bowes, 25 F.3d at 73 (quoting Fed. R. members from 'misleading communications from Civ. P. 24(b)(2)). the parties or their counsel."' (quoting Erhardt v. Prudential Group, 629 F.2d 843, 846 (2d Cir. B. Restrictions on Class-Wide Communications 1980))). District courts have broad authority to supervise [*11] class actions. 'Z Federal Rule of Civil Procedure 23(d) 17 Gulf Oil, 452 U.S. at 104 . However, provides that the court may issue appropriate orders, "[s]olicitations for legal services that are moti- inter alia, "(2) requiring, for the protection of the mem- vated by economic considerations constitute bers of the class or otherwise for the fair conduct of the commercial speech." In re WorldCom, 2003 U.S. action, that notice be given in such manner as the court Dist. LEXIS 20748, 2003 WL 22701241, at *8 Case 3:04-cv-02297-SC Document 242-13 Filed 08/28/2007 Page 5 of 6

Page 4 2007 U.S. Dist. LEXIS 42635, *

(citing Shapero v. Kentucky Bar Assn, 486 U.S. Movants also make a conclusory accusation of a 466, 472, 108 S . Ct. 1916, 100 L. Ed. 2d 475 conflict arising out of the representation of an unspeci- (1988 ); Anderson v. Treadwell, 294 F .3d 453, fied plaintiff who is alleged to be a possible witness for 460 (2d Cir. 2002)). "The First Amendment does the prosecution against Milberg Weiss. 20 This is mere not protect misleading commercial speech, which speculation and is without any support in the record. may be prohibited by the government if it is more Likewise, movants make the conclusory and speculative likely to deceive the public than to inform it." Id. accusations that there are "suspect lead plaintiffs used in (citing Central Hudson Gas & Elec. Corp. v. many cases by these firms" and that there are "[p]ossible Public Serv. Comm 'n ofN.Y, 447 U.S. 557, 563- illegal payments or other improper arrangements with 64, 100 S . Ct. 2343, 65 L. Ed. 2d 341 ( 1980); lead [p]laintiffs." Z' I will [*14] not credit these unsup- Anderson, 294 F. 3d at 461). ported accusations. This Court takes seriously the presumption of innocence afforded to defendants until III. DISCUSSION proven guilty. I will not disqualify and remove Milberg Weiss solely on the basis of the allegations in the indict- A. Permissive Intervention to Remove Milberg Weiss ment. To do so would undoubtedly prejudice the rights and the IPO Executive Committee of the putative class members, who have been capably represented by the IPO Executive Committee for years Although the motion to intervene is brought more and who the Court has no reason to doubt will continue than one year after the indictment of Milberg Weiss, I to be adequately represented by those firms. need not address whether the motion is timely under Rule 24(b) because I find that intervention would "un- 20 Once again, this allegation does not apply to duly delay or prejudice the adjudication of the rights the remaining members of the IPO Executive [*12] of the original parties." 18 Milberg Weiss and the Committee. other IPO Executive Committee firms have spent years prosecuting this case and funding the litigations to the 21 Bechtold Motion P 4 tune of several million dollars in actual expenses and over fifty million dollars in fees. They have conducted By contrast, Movants are not prejudiced by the extensive discovery, and successfully engaged in exten- Court's refusal to remove the IPO Executive Committee sive settlement negotiations with the Issuers. Collec- firms. Movants still have the right to pursue their indi- tively, they now have a vast institutional knowledge of vidual claims with counsel of their choice. the case. To remove Milberg Weiss and the other IPO In sum, I find that the circumstances of this case Executive Committee firms at this late stage would weigh in favor of denying the motion to intervene and eliminate that acquired intellectual capital and require refusing to remove Milberg Weiss and any of the IPO new counsel to start again, to the detriment of the ad- Executive Committee firms. 22 [*15] vancement of this case and all of the putative class members. 22 Many courts have refused to remove Milberg Weiss based on the indictment. 18 Fed. R. Civ. P. 24(b). See, e.g., In re Novastar Fin. Sec. Litig., No. 04-0330, 2007 U.S. Milberg Weiss and the IPO Executive Committee Dist. LEXIS 9039, 2007 WL 465649, at *4 (W.D. have been found to, and continue to, adequately repre- Mo. Feb. 8, 2007) ("[R]emoval of Milberg Weiss sent the class. Indeed, no lead plaintiff has moved to re- as co-lead counsel would not only harm the class, move any of the firms from their position as Lead Coun- but prematurely punish the firm for unproven al- sel. Movants attack the representation [*13] based on legations. The Court does not believe it is [] ap- the assertion that mounting a defense to the indictment propriate to consider disqualification of the firm burdens and distracts Milberg Weiss from this case. 19 unless and until the claims have been substanti- There simply is no evidence that Milberg Weiss's repre- ated."); In re Merck & Co., Inc. Sec. Litig., No. sentation has suffered at all as a result of its defense or 05-CV-2367, Docket Entry # 196, Hearing Tr. at that it will suffer in the future. Nor is there any evidence 13-14 (D.N.J. Jan. 25, 2007); In re Lord Abbett that the IPO Executive Committee's representation as a Mut. Funds Fee Litig., No. 04-CV-0559, Docket whole will be inadequate as a result. Entry # 127, Order at 1 (D.N.J. Dec. 1, 2006); In re Williams Sec. Litig., No. 02-CV-72 (N.D. 19 Clearly, this argument is irrelevant to the re- Okla. July 19, 2006); Simon v. KPMG LLP, No. maining law firms making up the IPO Executive 05-CV-3189, 2006 U.S. Dist. LEXIS 35943, Committee. Docket Entry # 166, Order at 19 (D.N.J. June 2, 2006); Schoenbaum v. E.I. Dupont de Nemours & Case 3:04-cv-02297-SC Document 242-13 Filed 08/28/2007 Page 6 of 6

Page 5 2007 U.S. Dist. LEXIS 42635, *

Co., No. 4:05-CV-1108, Docket Entry # 135, [*16] B. Protective Order Hearing Tr. at 6 (E.D. Mo. May 24, 2006); Sol- lins v. Alexander, No. 601272/2006, 2006 N.Y. 1. Class-Wide Communications Misc. LEXIS 2889, at *10 (Sup. Ct. N.Y. Co. Based on Bechtold's history of personal animus July 13, 2006). But see Siemers v. Wells Fargo & against the IPO Executive Committee firms, his conduct Co., No. C 05-04518, Docket Entry # 98, Orders in this litigation, including the ex parte letter to the dated June 8, 2006 and June 30, 2006 (N.D. Cal.) Court, and the various press releases he has issued relat- (ordering Lead Plaintiff to consult with a lawyer ing to this litigation and to Milberg Weiss, that there is not affiliated with Milberg Weiss about whether more than sufficient justification for a minimal limitation Milberg Weiss should continue to represent him on Bechtold's class-wide communications in order to and the class, and approving Lead Plaintiffs deci- protect the rights of the parties. Z' Accordingly, it is sion to replace Lead Counsel); In re Organogene- hereby ordered that before Bechtold may issue any class- sis Secs. Litig., No. 04-10027, 2007 U.S. Dist. wide communication or press release, he must submit to LEXIS 18795, 2007 WL 776425 (D. Mass. Mar. the Court a copy of the communication for in camera 15, 2007) (finding that Milberg Weiss was not review. Upon that review, if the Court has reason to be- adequate Lead Counsel, giving significant weight lieve that the communication may disclose attorney work to the fact that Milberg Weiss was serving as sole product, the Court will then provide a copy of the com- Lead Counsel, and that one of the named indicted munication to the IPO Executive Committee for com- partners was involved in the case along with cer- ment. tain other case-specific circumstances, rather than based on the indictment itself, the existence of 23 Given that a substantial portion of these which the court found was in "equipose" with communications contain solicitations for clients, Milberg Weiss's track record in other cases and these press releases are likely commercial speech the presumption of innocence); In re New Motor and are not afforded the highest level of First Vehicles Canadian Export Antitrust Litig., 466 F. Amendment protection. Supp. 2d 364 (D: Me. 2006) (removing Milberg Weiss as vice-chair of the plaintiffs executive [* 17] 2. Disclosure of Attorney Work Product committee); In re Medtronic, Inc. Implantable Defibrillator Prod. Liability Litig., 434 F. Supp. There is insufficient evidence at this time that Bech- 2d 729 (D. Minn. 2006) (removing Milberg told has disclosed attorney work product in any of his Weiss as counsel for the MDL case's transferee press releases or otherwise, and the Court will not issue plaintiffs). Some courts have denied motions to any prospective protective order on this point. It should appoint Milberg Weiss as Lead Counsel, as op- be noted, however, that all attorneys, including Bechtold, posed to removing the firm, which occurs at a have a duty not to disclose attorney work product. More- much earlier stage than that presented here. See, over, Bechtold, like all attorneys that have worked on e.g., Nowak v. Ford Motor Co., 240 F.R.D. 355, this case, must also continue to comply with the terms of 363-64 (E.D. Mich. 2006); In re General Elec. the stipulated protective order entered in this litigation. ERISA Litig., No. 06-CV-315, Docket Entry # 33, Order at 4 (N.D.N.Y. Aug. 3, 2006); In re Chap- IV. CONCLUSION arral Res., Inc. S'holders Litig., C.A. No. 2001- For the reasons discussed above, the motion to in- N, Hearing (Del. Ch. May 17, 2006). Still other tervene is denied and the motion for a protective order is courts have continued to appoint Milberg Weiss granted in part and denied in part. The Clerk of the Court as Lead Counsel after the indictment. See, e.g., In is directed to close these motions. re Diebold Sec. Litig., No. 5:05-CV-2873 (N.D. Ohio Oct. 20, 2006); In re Martek Biosciences SO ORDERED: Corp. Sec. Litig., No. MJG 05-1224, Docket En- Shira A. Scheindlin try # 63, Order at 2 (D. Md. Sept. 21, 2006); In re WRT Energy Sec. Litig., No. 96 Civ. 3610, 2006 U.S.D.J. U.S. Dist. LEXIS 47483, 2006 WL 2020947, at *3 n.2 (S.D.N.Y. July 13, 2006); Welmon v. Chi- Dated: New York, New York cago Bridge & Iron Co., No. 06-CV-1283 June 11, 2007 (S.D.N.Y. June 19, 2006). Case 3:04-cv-02297-SC Document 242-14 Filed 08/28/2007 Page 1 of 5

Exhibit M Case 3:04-cv-02297-SC Document 242-14 Filed 08/28/2007 Page 2 of 5

NYS DEPARTMENT OF LABOR PO BOX 13131 NEW YORK STATE DEPARTMENT OF LA13OR ALBANY NY 12212-5131 NOTICE OF DETERMINATION TO CLARIANT EMPLOYER COPY

DATE MAILED: 2/15/2006 SSN:064 - 58-7073 LO: 801 EMP: JULES BRODY JULES BRODY 6 E 45TH ST 4 THEODORE. A BECHTOLD NEW YORK NY •10017-2414 310 94TH STREET 319 BROOKLYN NY 11209

PLEASE REFER TO THOSE ITEMS WHICH ARE SELECTED X BELOW AND READ THE BACK OF T141S FORM

1. ® NOTICE OF DETERMINATION

NO UNEMPLOYMENT INSURANCE BENEFITS HILL BE PAID TO YOU FOR THE PERIOD BEGIN- NING 10/01/2005 UNTIL YOU HAVE SUBSEQUENTLY WORKED FOR AN EMPLOYER AND EARNED AT LEAST 5 TIMES YOUR WEEKLY BENEFIT RATE_ EMPLOYMENT AND EARNINGS FROM NON COVERED, EXCLUDED OR SELF-EMPLOYMENT WILL NOT COUNT. YOUR WEEKLY BENEFIT RATE 3 IS $405.

DETERMINATION

YOU WERE DISCHARGED FOR MISCONDUCT IN CONNECTION WITH YOUR EMPL'_YMENT WITH THE ABOVE EMPLOYER. AS A RESULT OF THIS DETERMINATION THE WAGES EARNED WITH THIS EMPLOYER PRIOR TO-10/01/2005 CANNOT j BE USED TO ESTABLISH ANY RF-6 SUBSEQUENT CLAIM FOR UNEMPLOYMENT INSURANCE YOU MAY FILE.

YOU WERE FIRED ON APPROXIMATELY 09/30/ 05 BECAUSE YOU SENT AN EX PARTE LETTER TO THE JUDGE OF A CASE YOUR EMPLOYER HAS HANDLING FOR THE PLAINTIFF. YOUR EMPLOYER INDICATED YOUR ACTION IN SENDING THE LETTER HAS A VIOLATIONOF ETHICS CODE . YOU INDICATED YOU KNEW YOU WERE, TAKING A RISK IN SENDING: THE :ETTER, HOWEVER YOU HERE TRYING TO BE MORE AGGRESSIVE IN PURSUIT OF MOVING } THE CASE. YOU SHOULD HAVE KNOWN YOUR ACTIONS COULD LEAD TO TERMINATION-

2, 0 NOTICE OF DETERMINATION OF WILFUL MISREPRESENTATION A T..

REASON

This notice supersedes the one sent you dated which has been cancelled.

TO PROTECT YOUR RIGHTS. READ THE BACK OF THIS FORM By_ S FISH FOR T COMMISSIONER OF LABOR LO 412 (4-99) Case 3:04-cv-02297-SC Document 242-14 Filed 08/28/2007 Page 3 of 5

RENEWING If you are satisfied that this determination is correct, you may apply to YOUR CLAIM renew your claim by filing a claim for the first week after the period on the reverse or for the first week after the reason on the reverse no longer applies and you are still unemployed. -

RIGHT TO A If you believe that any of these determinations are incorrect, you may ask HEARING for a hearing before an impartial Administrative Law Judge at no -cost or obligation to you.

REQUEST FOR A Your hearing request must be in writing and mailed to the NYS HEARING Department of Labor address on the front of this notice. Your request must be made NOT LATER THAN 30 DAYS from the mail date on this notice. When requesting a hearing,.indude your social security account number in the-request-

REPRESENTATION You have the right to be represented at a hearing by an attorney or other AT HEARINGS person. If you are a New York City resident, a listing of attorneys and registered representatives can be found at the Offices of the -c. Unemployment Insurance Appeal Board and the Administratiive Law Judge section . If you wish representation , you should make hangements as soon as possible. ,

You may be able to obtain free assistance through the Legal Aid Society or Local Legal Services Program: -

REPORTING Continue to follow reporting requirements as long as you remain unemployed and are claiming benefits . This will protect your rights to any benefits you claim.

TO EMPLOYER;

It has been determined that the claimant named on the other side of this form is ineligible for benefits for the period and for the reason shown- However, if the claimant is still unemployed at the end of the period, such claimant will have the right to file a new claim.

The cooperation which you have extended to us in burnishin g information is appreciated.

Section 620.1 of Unemployment Insurance Law states in part:

A claimant who is dissatisfied with an initial determination of the claim for benefits or any other party affected by such determination may, within thirty days after the making or personal delivery of notice of such determination, request a hearing..." Filed 08/28/2007 Page 4 of 5 Case 3:04-cv-02297-SC Document 242-14

STATE OF NEW YORK UNEMPLOYMENT INSURANCE APPEAL BOARD USA CONNERS MIGHT PO Box 15126 5)(E UTr/E DrRECroR Albany NY 12212-6126 MICHAEL T. GREASON CHIEFADMNISTRATIVE LAW JUDGE CHAIRMAN (518) 402-0205 ROBIN STROUP MARYANN K. MCCARTHY FAX4518) 402-6208 PrwNCmAL ADMINlSrRAT+ /E LAW JUDGE TANYA R. DANIEL EILEEN LONG-CHELALES MEMBERS DECISION OF THE BOARD DECISION DE LA JUNTA

Mailed and Filed: JAN 17 2W7 IN THE MATTER OF: Appeal Board No. 534467

THEODORE A BECHTOLD JULES BRODY 310 94TH STREET 319 RBA STULL STULL & BRODY BROOKLYN NY 11209 6 EAST45TH STREET NEW YORK NY 10017-2414

GRAUBARD MILLER THE CHRYSLER BUILDING 405 LEXINGTON AVE NEW YORK NY 10174-1901

A.S.O. - Appeals Section A.L.J. Case No. 006-16024 Department of Labor Office: 801

PLEAS TAKE NOTICE that the commissioner, or any other party affected by this decision who appeared before the Appeal Board, may appeal questions of law involved In such decisim to the Appellate Dhdsion of the Supreme Court Third Department, by written notice mailed to the Unemployment Insurance Appeal Board, PO Box 15126, Albany, New York 12212-5126 within THIRTY GAYS from the date this decision was mailed.

F OR FAVOR TOME OF que el oomisionado o cualquter otra parle afectada por esta decision que haya comparecido ante la Junta de Apelaciones puede apelar aspectos legales de icha decision a Appellate Division of the Supreme Court Thad Department, enviando un aviso escrito a Unemployment insurance Appeal Board, PO Box 15126, Albany. New York 122125126 deatro de Ins-- S a artir de la techa en esta decision fue enviada or correo.

DOCUMENTO IMPORTANTE. PUEDE OBTENER UNA TRADUCC1ON DEL MJSMO LLAMANDO AL 1-808-209-8124 (FUERA DEL ESTADO DE NUEVA YORK 1-877-358-53D6)

PRESENT: MARYANN K . MCCARTHY, TANYA R. DANIEL MEMBERS

The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective October 1, 2005, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by Jules Brody, d/b/a Stull, Stull & Brody prior to October 1, 2005, cannot be used toward the establishment of a claim for benefits. The claimant requested a hearing. The Commissioner of Labor objected that the hearing request was not made within the time allowed by statute.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard andat which testimony was taken. There were appearances by the claimant and on behalf of the employer and the Commissioner of Labor. By decision filed October 12, 2006 (A.L.J. Case No.006-16024), the Administrative Law Judge overruled the Commissioner of Labor's timeliness objection and sustained the initial determination.

li'-:it c AB 2 (10/06 fff - -^- Case 3:04-cv-02297-SC Document 242-14 Filed 08/28/2007 Page 5 of 5

-AIN

Appeal Board No. 534467 Page 2

The claimant appealed the Judge's decision to the Appeal Board, insofar as it sustained the initial determifiation of misconduct.

We have reviewed the entire record and have considered the testimony and other evidence. It appears that no errors of fact or law have been made. The findings of fact and the opinion of the Administrative Law Judge are fully supported by the record and, therefore, are adopted as the findings of fact and the opinion of the Board.

DECISIONI : The decision of the Administrative Law Judge, insofar as appealed from, is affirmed.

The initial determination, disqualifying the claimant from receiving benefits effective October 1, 2005, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the'wages paid to the claimant by Jules Brody, dlbla Stull, Stull & Brody prior to October 1, 2005, cannot be used toward the establishment of a claim for benefits, is sustained.

The claimant is denied benefits with respect to the issues decided herein.

MARYANN K. McCARTHY, MEMBER W F:AY TANYA R. DANIEL , MEMBER Case 3:04-cv-02297-SC Document 242-15 Filed 08/28/2007 Page 1 of 5

Exhibit N Case 3:04-cv-02297-SC Document 242-15 Filed 08/28/2007 Page 2 of 5

Source: PRLog - Press Release Submission & Distribution (httpJhwvw.pr1og.or9)

T. A. Bechtold, Esq. Announces Investigation into Milberg Weiss and the IPO Securities Litigation

By Theodore A. Bechtold, Esq. Dated: 2007-03-26 22:00:01

NEW YORK, NY - March 27, 2007 - T. A. Bechtold, Esq. announces an investigation ofpossible violations of duties owed to Class Members in the IPO Securities Litigation by Milberg Weiss and the IPO Securities Litigation Executive Committee

If you have received materials relating to the IPO Securities Litigation from the IPO Securities Litigation Executive Committee or Milberg Weiss and Bershad you are encouraged to contact Theodore Andrew Bechtold, Esq. at 1 (570)686-3438 or by E Mail at [email protected] to learn about the investigation of the IPO Securities Litigation and to discuss your legal rights- You may retain Theodore Andrew Bechtold, Esq. or any lawyer you choose to act as your counsel in these cases.

Milberg Weiss Bersbad Hynes and Lerach was under investigation by the U.S. Attorney's office when the 309 cases and 7 Million clients in the IPO Securities Litigation were placed under their control. The firm is currently under indictment as a racketeering enterprise and has a January 2008 trial date. The investigation by counsel involves two issues. The first issue is the representative nature of the plaintiffs used to gain control of the case by Milberg Weiss Bershad Hynes and Lerach, co lead counsel Bernstein Liebhard Lifshitz and the other firms on the IPO Securities Litigation Executive Committee. The second issue is whether the conduct of this case by these firms constitutes fraud on the Court.

Establishing fraud on the Court would enable Class members to have legitimate legal representation in a new effort to have their Class certified by the Federal Court. Theodore Andrew Bechtold, Esq. has practiced securities law for over 10 years as both a regulator and litigator, including two years working exclusively on the IPO Securities Litigation. Please e mail, call or visit the website at http:://saveourstoclanarket.com for more information about this extraordinary situation. If you are a class member in the IPO Securities Litigation and wish to discuss this matter or have any questions concerning your rights and interests with regards to this case feel free to contact Theodore Andrew Bechtold, Esq. at 1 (570)686-3438 or by B Mail at [email protected].

Category Legal, Finance, Business Email [email protected] Website http://saveourstockmarket.com Phone 347 668 4218 Address 310-94th Street #319 City/Town Brooklyn State/Province New York Zip 11209 Country United States

Page 1/1 Case 3:04-cv-02297-SC Document 242-15 Filed 08/28/2007 Page 3 of 5

Source: PRLog - Press Release Submission & Distribution (http*Avww.priog.org)

Theodore A. Bechtold Esq. to seek removal of Milberg Weiss from the IPO Securities Litigation

By Theodore A Bechtold, Esq. Dated: 2007-04-10 01:16:34

Future conduct of the IPO Securities Litigation is uncertain. Counsel will intervene on behalf of Class members to remove Milberg Weiss from the case. Investigation continues into possible fraud on the court and improper leadplaintiffs.

From its inception the IPO Securities Litigation appears to have been directed by Milberg Weiss solely to obtain the legal fees. The still pending issuer settlement presented to the Court by Milberg Weiss provides a clear picture of the priorities of counsel. The settlement includes no money for class members but does arrange for payment of well over $300 million in legal fees and expenses. Milberg Weiss even agreed that the class would be required to pay all legal fees incurred by the issuer defendants in the case. An indicted racketeering enterprise responsible for presenting such a self interested and absurd settlement proposal to a Federal Court on behalf of his clients does not provide fair and adequate representation for the Class members in the IPO Securities Litigation.

Under the direction of Milberg Weiss the lPO Securities Litigation Executive Committee failed to charge hundreds of underwriters listed in the prospectuses for the 309 charged IPO's- In the 6 "focus cases" decertified by the Second Circuit the Committee failed to charge 70% of the underwriters listed in the prospectus- Venture capital investors, hedge funds and other clearly culpable parties were completely ignored as defendants even if they were listed in the prospectus as principle shareholders or otherwise identified by counsel as participants in the manipulation.

Establishing fraud on the court in the conduct of the case would enable Class members in the IPO Securities Litigation to void all prior legal proceedings and obtain new class counsel. This would provide legitimate legal representation for an effort to have these classes certified in Federal Court. Establishing fraud on the court could also allow the class period for each offering to be extended. One alternative cutoff date would be when securities analysts stopped intentionally deceiving investors by issuing positive reports on these falling stocks. Since the analysts generally did not downgrade these stocks until the price collapse was complete this could result in far larger shareholder classes seeking even greater damages for additional years of market manipulation.

The IPO Securities Litigation Executive Committee was given ample opportunity by the Court to file amended complaints. Defendants have said from the first public allegations that these activities were customary, industrywide practices. There is no legitimate, plausible explanation for experienced counsel ignoring this many easily identified, clearly culpable, deep pocketed defendants . Many of these prospective defendants had extensive liability insurance coverage which provided another means to obtain increased client recovery- Further examination of this and other inexplicable litigation decisions by Milberg Weiss and its IPO Securities Litigation Executive Committee is clearly warranted-

The investigation by counsel has also identified several groups of lead plaintiffs utilized by Milberg Weiss, Bernstein Liebhard Lifshitz and other IPO Executive Committee firms to gain control of these 309 cases that may not be acceptable class representatives. The future of the case appears very uncertain, as does the future of Milberg Weiss and its indicted partners. Counsel believes that considering all surrounding facts and circumstances fair and adequate legal representation for all 7 million class members requires the immediate removal of lead counsel that has been indicted as a racketeering enterprise.

If you are a class member in the IPO Securities Litigation and would like to discuss the possibility of

Page 1/2 Case 3:04-cv-02297-SC Document 242-15 Filed 08/28/2007 Page 4 of 5

Source: PRLog - Press Release Submission & Distribution (http:/twww.prlog.org)

intervening in the IPO Securities Litigation to remove Milberg Weiss and Bershad you are encouraged to immediately contact Theodore Andrew Bechtold, Esq. at 1 (570) 686-3438 or by E-Mail.

If you are a class member in any Milberg Weiss led case and are concerned about your continued legal representation by the firm after its indictment as a racketeering enterprise you are also encouraged to contact Theodore Andrew Bechtold, Esq. to discuss your legal rights. You may retain Theodore Andrew Bechtold, Esq. or any lawyer you choose to act as your counsel in these cases. Feel free to E-mail, call or visit the saveourstockmarket website for more information about this developing situation.

Category Legal, Business, Finance Email [email protected] Website http://savcourstockmarket.com Phone 347 668 4218 Address 310-94th Street #319 Brooklyn New York City/Town Brooklyn State/Province New York Zip 11209 Country United States

Page 2/2 Case 3:04-cv-02297-SC Document 242-15 Filed 08/28/2007 Page 5 of 5

PRBuzz - Free Press Release distribution Motion to Intervene has been filed seeking removal Milberg Weiss from the IPO Securities Litigation

Contributed by Theodore A. Bechtold

Counsel has filed a motion intervening on behalf of class members to remove Milberg Weiss. The RICO indictment, pending criminal trial and insurmountable conflicts completely justify immediate removal Apr 19, 2007 - lprbuzz/ -- Expanding government investigations and the upcoming criminal trial each provide sufficient grounds for the Court to remove Milberg Weiss and Bershad as lead counsel in the IPO Securities Litigation. In addition to these Issues Milberg Weiss Bershad Hynes and Lerach utilized at least one suspect lead plaintiff in the case. It is highly likely that the expanding government investigation into and prosecution of Milberg Weiss and Bershad has or will in some way reach this plaintiff relationship.

The decision to use the Plumbers and Pipefitters National Pension Fund as a lead plaintiff in the IPO Securities Litigation was made by the indicted firm and personally signed for by Partner &Idquo;A” in his amended complaint. After Milberg Weiss Bershad Hynes and Lerach was appointed lead counsel in the case four trustees of the Fund were removed for cause by the Department of Labor. The particulars of this situation turn Milberg Weiss’ need to prepare and present a robust criminal defense into an insurmountable conflict of interest with their clients.

Such firmwide conflict provides powerful independent justification for removal of the firm and its partners. The impossibility of walling off or otherwise insulating IPO Securities Litigation Class Members from the situation is indisputable. The law requires that class counsel fairly and adequately represent the interests of the class. Milberg Weiss and Bershad are clearly not capable of doing so under these circumstances. The Court of Appeals decision returning this case to the District Court makes this the perfect time to end the year long sideshow imposed on Class members.

Lead counsel and its partners are criminal defendants that are representing a plaintiff whose trustees were removed by the government for cause. This plaintiff is still directed by many of the same powerful individuals and organizations. Never in history have the roles of counsel, defendant, witness and plaintiff been so thoroughly and completely confused and conflicted. This confusion confirms the need for the public and their elected representatives to ignore the appeals for fairness and understanding by the indicted firm- Class members do not need an illusory wall erected or detailed flow chart to understand this situation. The fundamental importance of the presumption of innocence for criminal defendants does not create a right for conflicted, indicted lawyers to remain as class counsel. Seven Million Class Members deserve legal representation unburdened by such serious conflicts and monumental distractions.

Feel free to contact Theodore Andrew Bechtold, Esq. at 1 (570) 686-3438 or by E-Mail to learn about this limited opportunity to participate in this historic intervention to remove Milberg Weiss and Bershad from the IPO Securities Litigation. Check the last pages for a long list of cases where an intervening plaintiff is still needed. Class members in any case that are dissatisfied with their representation by an indicted law firm and indicted partners are also encouraged to call to discuss your legal rights. Please visit the saveourstockmarket website for background information about this developing situation.

About Us

Save Our Stockmarket was started by Theodore A- Bechtold Esq. in response to the compelling tale of SEC malfeasance provided to the American public by Gary J. Aguirre. After 10 years as a licensed attorney this historic confrontation made clear that Officers of the Court had a duty to publicly confront the ongoing systematic high level abuse of the legal process. Theodore A. Bechtold Esq. resigned as Staff Counsel of the American Stock Exchange in 1997 after experiencing extraordinary dereliction of duty by Exchange regulatory counsel. His other legal experiences include representing policyholders against a large insurance company pursuant to a highly publicized class action settlement and over two years leading a team of lawyers working on the IPO Securities Litigation. Current clients include class members in over 70 offerings intervening to remove Milberg Weiss from the IPO Securities Litigation, objecting to their attempted settlement with issuers and investigating lead plaintiffs and possible claims of fraud on the Court- There is also a pending wrongful termination suit against the IPO Securities Litigation Executive Committee for his discharge in 2005 as an attorney on the case.

If you purchased the Common Stock of any of these 241 companies prior to December 2000 please contact Theodore A. Bechtold to discuss your legal rights

httpJlwww.prbua.com Powere7 by Joomlal Generated: 30 April, 2001,14:14 Case 3:04-cv-02297-SC Document 242-16 Filed 08/28/2007 Page 1 of 2

Exhibit 0 Case 3:04-cv-02297-SC Document 242-16 Filed 08/28/2007 Page 2 of 2 Page Title Page 1 of 1

acbarOaQCknatkef waa stae 'b}lgodgre A° Betfcsq^in:;`-: response to the compelling tale of SEC malfeasance provided to the American public by Gary J. Aguirre. Forces powerful enough to capture the highest level federal regulators and arrange for the extermination of criminal liability in this manner are a clear threat the American legal and financial systems . In over 10 years as a regulator and litigator he has become convinced of the need for swift corrective

action in the legal profession. The public interest requires all citizens,

particularly Officers of the Court to publicly confront this systematic high level abuse of the legal process.

Theodore A. Bechtold Esq. resigned as Staff Counsel of the American

Stock Exchange in 1997 after experiencing extraordinary dereliction of duty by Exchange regulatory counsel. His other legal experiences

include representing policyholders against Prudential Insurance pursuant to a class action settlement and over two years leading a team of lawyers working on the IPO Securities Litigation. His current cases include representing class members objecting to the attempted settlement and conduct of the IPO Securities Litigation. He has also filed a wrongful termination suit against the IPO Executive Committee for his discharge in 2005 as an attorney on the case.

httn://www_savernirstnckmarknt r.nm/AhnntT Tc html A/)A/)nm Case 3:04-cv-02297-SC Document 242-17 Filed 08/28/2007 Page 1 of 9

Exhibit P Case 3:04-cv-02297-SC Document 242-17 Filed 08/28/2007 Page 2 of 9

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA IF YOU PURCHASED OR ACQUIRED OMNIVISION TECHNOLOGIES, INC. COMMON STOCK BETWEEN JUNE 11, 2003 AND JUNE 9, 2004, YOU COULD RECEIVE A PAYMENT FROM A CLASS ACTION SETTLEMENT.

A federal court authorized this notice. This is not a solicitation from a lawyer. NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION, MOTION FOR ATTORNEYS' FEES AND SETTLEMENT FAIRNESS HEARING • The settlement will provide a $13.75 million settlement fund for the benefit of investors who bought shares of OmniVision Technologies , Inc. ("OmniVision") common stock during the period from June 11, 2003 through and including June 9, 2004 (the "Class Period"). • The settlement resolves a lawsuit over whether OmniVision and certain of its officers misled investors about its current and future earnings. • Your legal rights are affected whether you act or do not act. Read this notice carefully. YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT: SUBMIT A CLAIM FORM The only way to get a payment. BY OCTOBER 9, 2007 EXCLUDE YOURSELF BY Get no payment. This is the only option that allows you to ever be AUGUST 14, 2007 part of any other lawsuit against OmniVision and the other Released Persons about the Settled Claims. OBJECT BY AUGUST 14, Write to the Court about why you do not like the settlement. 2007 GO TO A HEARING ON Ask to speak in Court about the settlement. SEPTEMBER 7, 2007 DO NOTHING Get no payment. Give up rights. • These rights and options - and the deadlines to exercise them - are explained in this notice. • The Court in charge of this case still has to decide whether to approve the settlement Payments will be made if the Court approves the settlement and after appeals are resolved. Please be patient. SUMMARY NOTICE A. Statement of Plaintiff Recovery Pursuant to the settlement described herein, a Settlement Fund consisting of $13,750,000 in cash, plus interest, has been established. Plaintiffs estimate that there were approximately 47.4 million shares of OmniVision common stock traded during the Class Period which may have been damaged. Plaintiffs estimate that the average recovery per damaged share of OmniVision common stock under the settlement is $0.29 per damaged share' before deduction of Court-awarded attorneys' fees and expenses. A Class Member's actual recovery will be a proportion of the Net Settlement Fund determined by that claimant's Recognized Claim as compared to the total Recognized Claims of all Class Members who submit acceptable Proofs of Claim. Depending on the number of claims submitted, when during the Class Period a Class Member purchased shares of OmniVision common stock, the purchase price paid, and whether those shares were held at the end of the Class Period or sold during the Class Period, and, if sold, when they were sold and the amount received, an individual Class Member may receive more or less than this average amount. See the Plan of Allocation beginning on page 7 for more information on your Recognized Claim. B. Statement of Potential Outcome of Case The parties disagree on both liability and damages and do not agree on the average amount of damages per share that would be recoverable if plaintiffs were to have prevailed on each claim alleged. Among the issues about which the two sides do not agree are: (1) the amount of damages that could be recovered at trial; (2) the method for determining whether OmniVision common stock was artificially inflated during the relevant period; (3) the amount of any such inflation; (4) the extent that various facts alleged by Lead Plaintiffs were materially false or misleading; (5) the extent that various facts alleged by Lead Plaintiffs influenced the trading price of OmniVision common stock during the relevant period; and

An allegedly damaged share might have been traded more than once during the Class Period, and the indicated average recovery would be the total for all purchasers of that share. Case 3:04-cv-02297-SC Document 242-17 Filed 08/28/2007 Page 3 of 9 (6) whether the facts alleged were material, false, misleading or otherwise actionable under the securities laws. The Defendants deny that they are liable to the plaintiffs or the Class and deny that plaintiffs or the Class have suffered any damages. C. Statement of Attorneys ' Fees and Costs Sought Plaintiffs' Counsel are moving the Court to award attorneys' fees not to exceed Twenty-Eight Percent (28%) of the Gross Settlement Fund, and for reimbursement of expenses incurred in connection with the prosecution of this Action in an amount not to exceed $1,500,000. The requested fees and expenses would amount to an average of 11.3¢ per damaged share in total for fees and expenses. Application will also be made for reimbursement to the Lead Plaintiffs for an amount not to exceed $30,000 for reimbursement of their reasonable costs and expenses (including lost wages) directly relating to their representation of the Class. Plaintiffs' Counsel have expended considerable time and effort in the prosecution of this litigation on a contingent fee basis, and have advanced the expenses of the litigation, in the expectation that if they were successful in obtaining a recovery for the Class they would be paid from such recovery. In this type of litigation it is customary for counsel to be awarded a percentage of the common fund recovery as their attorneys' fees. D. Further Information

Further information regarding the Action and this Notice may be obtained by contacting Plaintiffs' Lead Counsel: Jeff S. Westerman, Esq., Milberg Weiss & Bershad LLP, One California Plaza, 300 South Grand Avenue, Suite 3900, Los Angeles, CA 90071, Telephone: (213) 617-1200, Facsimile: (213) 617-1975. E. Reasons for the Settlement For the Plaintiffs, the principal reason for the settlement is that it avoids the costs and risks associated with continued litigation, including the danger of no recovery, and provides a substantial benefit to the Class now. For the Defendants, who deny all allegations of wrongdoing or liability whatsoever, the principal reason for the settlement is to eliminate the expense, risks, and uncertain outcome of the litigation. [END OF COVER PAGE] BASIC INFORMATION 1. Why Did I Receive This Notice Package? You or someone in your family may have purchased or acquired shares of OmniVision common stock between June 11, 2003 and June 9, 2004. The Court directed that this Notice be sent to Class Members because they have a right to know about a proposed settlement of a class action lawsuit, and about all of their options, before the Court decides whether to approve the settlement. If the Court approves it and after any objections or appeals are resolved, the Claims Administrator appointed by the Court will make the payments that the settlement allows. This package explains the lawsuit, the settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them. The Court in charge of the case is the United States District Court for the Northern District of California, and the case is known as In re OmniVision Technologies, Inc., Master File No. C-04-2297-SC. The people who sued are called the Lead Plaintiffs, and the company and the individuals they sued, OmniVision, Shaw Hong, Raymond Wu, H. Gene McCown, and John T. Rossi, are called the Defendants. 2. What Is This Lawsuit About? OmniVision is engaged in the business of designing, developing, and marketing semiconductor image sensor devices. The Second Consolidated Amended Class Action Complaint (the "Complaint"), filed May 20, 2005 in the Litigation, alleges, among other things, that Defendants issued materially false and misleading press releases and other statements regarding OmniVision's financial condition during the Class Period - June 11, 2003 through and including June 9, 2004 - in a scheme to artificially inflate the value of OmniVision's common stock. The Complaint further alleges that Lead Plaintiffs and other Class Members purchased the common stock of OmniVision during the Class Period at prices artificially inflated as a result of the Defendants' dissemination of materially false and misleading statements regarding OmniVision, and that the Defendants' statement were made in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder. The Complaint also claimed that the Individual Defendants sold their personally held shares of OmniVision stock at inflated prices during that time. The Complaint seeks money damages against the Defendants for violations of the federal securities laws. The Defendants deny all allegations of misconduct contained in the Complaint, and deny having engaged in any wrongdoing whatsoever.

2 Case 3:04-cv-02297-SC Document 242-17 Filed 08/28/2007 Page 4 of 9

3. Why Is This a Class Action? In a class action, one or more people called class representatives (in this case the court-appointed Lead Plaintiffs, Ken Churchill as Trustee for the Churchill Family Trust, Gerald A. Madore, Rocco Peters, and Michael J. Hannan on behalf of Coyote Growth Management), sue on behalf of people who have similar claims. All these people are called a Class or Class Members. One court resolves the issues for all Class Members, except for those who exclude themselves from the Class. Judge Samuel Conti is in charge of this class action. 4. Why Is There a Settlement? The Court did not finally decide in favor of Lead Plaintiffs or Defendants. Instead, both sides agreed to a settlement. That way, they avoid the costs and risks of a trial, and eligible Class Members who submit valid claims will receive compensation. The Lead Plaintiffs and their attorneys think the settlement is best for all Class Members. WHO IS IN THE SETTLEMENT To see if you will receive money from this settlement, you first have to determine if you are a Class Member. 5. How Do I Know if I Am Part of the Settlement? The Court directed, for purposes of the proposed settlement, that everyone who fits this description is a Class Member: all persons who purchased or acquired OmniVision common stock between June 11, 2003 and June 9, 2004. 6. What Are The Exceptions to Being Included? Excluded from the Class are Defendants, members of the immediate families of the Individual Defendants, any entity in which any Defendant has or had a controlling interest, current or former directors and officers of OmniVision, and the legal representatives, heirs, successors, or assigns of any such excluded person or entity. If one of your mutual funds purchased shares of OmniVision common stock during the Class Period, that alone does not make you a Class Member. You are a Class Member only if you directly purchased or acquired shares of OmniVision common stock during the Class Period. Check your investment records or contact your broker to see if you purchased or acquired OmniVision common stock during the Class Period. If you sold OmniVision common stock between June 11, 2003 and June 9, 2004, that alone does not make you a Class Member. You are a Class Member only if you purchased or acquired OmniVision common stock between June 11, 2003 and June 9, 2004. 7. I'm Still Not Sure if I Am Included. If you are still not sure whether you are included , you can ask for free help. You can contact the Settlement administrator, Gilardi & Co. LLC, P.O. Box 990 , Corte Madera, CA 94976-0990 , Telephone (800) 447-7657, www.gilardi. com, for more information . Or you can fill out and return the claim form described in question 10, to see if you qualify. THE SETTLEMENT BENEFITS - WHAT YOU GET 8. What Does the Settlement Provide? In exchange for the Settlement and dismissal of the Litigation, Defendants have agreed to create a $13.75 million cash fund to be divided, after court-approved fees and expenses, among all Class Members who send in valid claim forms. 9. How Much Will My Payment Be? Your share of the fund will depend on the total Recognized Claims represented by the valid Proof of Claim forms that Class Members send in, how many shares of OmniVision common stock you bought, how much you paid for them, and when you bought and whether or when you sold them, and if so for how much you sold them. You can calculate your Recognized Claim in accordance with the formula shown below in the Plan of Allocation. It is unlikely that you will get a payment for all of your Recognized Claim. After all Class Members have sent in their Proof of Claim forms, the payment you get will be a part of the Net Settlement Fund equal to your Recognized Claim divided by the total of everyone's Recognized Claims. See the Plan of Allocation beginning on page 7 for more information on your Recognized Claim_ HOW YOU OBTAIN A PAYMENT - SUBMITTING A CLAIM FORM 10. How Can I Get a Payment? To qualify for payment, you must be an eligible Class Member, send in a Proof of Claim form, and properly document your claim as requested in the Proof of Claim form. A Proof of Claim form is enclosed with this Notice. Read the instructions carefully, fill out the form, include all the documents the form asks for, sign it, and mail it in the enclosed envelope postmarked no later than October 9, 2007. Case 3:04-cv-02297-SC Document 242-17 Filed 08/28/2007 Page 5 of 9

11. When Will I Receive My Payment? The Court will hold a hearing on September 7, 2007, to decide whether to approve the settlement. If Judge Conti approves the settlement, there may be appeals. It is always uncertain whether these appeals can be resolved, and resolving them can take time, perhaps several years. It also takes time for all the claim forms to be processed. Please be patient. 12. What Am I Giving Up to Receive a Payment or Stay in the Class? Unless you exclude yourself, you are staying in the Class, and that means that, upon the "Effective Date," you will release all "Released Claims" (as defined below) against the "Released Persons" (as defined below). "Released Claims" shall collectively mean any and all claims, debts, demands, rights or causes of action or liabilities whatsoever (including, but not limited to, any claims for damages, interest, attorneys' fees, expert or consulting fees, and any other costs, expenses or liability whatsoever), whether based on federal, state, local, statutory or common law or any other law, rule or regulation, whether fixed or contingent, accrued or un-accrued, liquidated or un-liquidated, at law or in equity, matured or un-matured, whether class or individual in nature, including both known claims and Unknown Claims, (i) that have been asserted in this Action by the Class Members or any of them against any of the Released Persons, or (ii) that could have been asserted in any forum by the Class Members or any of them against any of the Released Persons which arise out of or are based upon the allegations, transactions, facts, matters or occurrences, representations or omissions involved, set forth, or referred to in the Complaint and relate to the purchase of common stock of OmniVision during the Class Period. "Released Claims" does not mean or include claims, if any, against the Released Persons arising under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. ("ERISA") which are not common to all Class Members. "Released Persons" means each and all of the Defendants and each and all of their past or present directors, officers, employees, partners, insurers, co-insurers, reinsurers, agents, controlling shareholders, attorneys, accountants or auditors, advisors, investment advisors, personal or legal representatives, predecessors, successors, parents, subsidiaries, divisions, joint ventures, assigns, spouses, heirs, related or affiliated entities, any entity in which a Defendant has a controlling interest, any members of an Individual Defendant's immediate family, or any trust of which the Individual Defendant is the settlor or which is for the benefit of the Individual Defendant's family and Certain Underwriters at Lloyd's, London subscribing to Policy Number FV036950c002 ("Lloyd's") and their reinsurers. The "Effective Date" will occur when an Order entered by the Court approving the Settlement becomes final and not subject to appeal. If you remain a member of the Class, all of the Court's orders will apply to you and legally bind you. EXCLUDING YOURSELF FROM THE SETTLEMENT If you do not want a payment from this settlement, but you want to keep the right to sue or continue to sue the Defendants on your own for the Released Claims in this case, then you must take steps to get out of the Class. This is called excluding yourself or is sometimes referred to as opting out of the Class. Defendants may withdraw from and terminate the Settlement if putative Class Members who purchased or acquired in excess of a certain amount of OmniVision common stock exclude themselves from the Class. 13. How Do I Get Out of the Class? To exclude yourself from the Class, you must send a signed letter by mail stating that you want to be excluded from In re OmniVision Technologies, Inc., Master File No. C-04-2297-SC. Your letter must include your name , address, telephone number, and your signature and should state the date(s), price(s), and number(s) of shares of all your purchases , acquisitions , and sales of OmniVision common stock during the Class Period. You must mail your exclusion request postmarked no later than August 14, 2007 to:

OmniVision Securities Litigation EXCLUSIONS c% Gilardi & Co. LLC, Notice Administrator P.O. Box 990 Corte Madera, CA 94976-0990 You cannot exclude yourself on the phone or by e-mail. If you ask to be excluded, you are not eligible to receive any settlement payment, and you cannot object to the settlement. You will not be legally bound by anything that happens in this lawsuit. 14. If I Do Not Exclude Myself, Can I Sue the Defendants and the other Released Persons for the Same Thing Later? No. Unless you exclude yourself, you give up any right to sue the Defendants and the other Released Persons for the Released Claims in this settlement. If you have a pending lawsuit against any of the Released Persons, speak to your lawyer in that case immediately. Remember, the exclusion deadline is August 14, 2007. 4 Case 3:04-cv-02297-SC Document 242-17 Filed 08/28/2007 Page 6 of 9

15. If I Exclude Myself, Can I Receive Money from This Settlement? Na If you exclude yourself, you may not send in a Proof of Claim form. But, in that case you may sue, continue to sue, or be part of a different lawsuit involving the Released Claims against the Released Persons. THE LAWYERS REPRESENTING YOU 16. Do I Have a Lawyer in This Case? The Court ordered that the law firm of Milberg Weiss & Bershad LLP (formerly known as Milberg Weiss Bershad & Schulman LLP)2 to represent you and other Class Members. These lawyers are called Lead Counsel. You will not be separately charged for these lawyers. The Court will determine the amount of Lead Counsel's fees and expenses, which will be paid from the Gross Settlement Fund. If you want to be represented by your own lawyer, you may hire one at your own expense. 17. How Will the Lawyers Be Paid? Lead Counsel are moving the Court to award attorneys' fees from the Gross Settlement Fund in an amount not greater than Twenty-Eight Percent (28%) of the Gross Settlement Fund and for reimbursement of their expenses in an amount not to exceed $1,500,000, plus interest on such expenses at the same rate as earned by the Settlement Fund. Lead Counsel, without further notice to the Class, will subsequently apply to the Court for payment of the Claims Administrator's fees and expenses incurred in connection with giving notice, administering the settlement and distributing the settlement proceeds to the members of the Class. OBJECTING TO THE SETTLEMENT You can tell the Court that you do not agree with the settlement or some part of it. 18. How Do I Tell the Court that I Do Not Like the Settlement? If you are a Class Member, you can object to the settlement if you do not like any part of it, including the plan of allocation and the request for attorneys' fees. You can state the reasons why you think the Court should not approve it. The Court will consider your views. To object, you must send a letter saying that you object to the settlement in In re OmniVision Technologies, Inc., Master File No. C-04-2297-SC. Be sure to include your name, address, telephone number, your signature, the number of shares of OmniVision common stock purchased and sold between June 11, 2003 and June 9, 2004, and the reasons you object. Your objection must be filed with the Court and served (delivered by hand or sent by first class mail) on all the following counsel no later than August 14, 2007: COURT: Clerk of the Court United States District Court for the Northern District of California Unites States Courthouse 450 Golden Gate Avenue San Francisco, CA 94102 LEAD COUNSEL FOR PLAINTIFFS: DEFENDANTS' COUNSEL: Jeff S . Westerman Douglas J. Clark Milberg Weiss & Bershad LLP Wilson Sonsini Goodrich & Rosati, P.C. One California Place 650 Page Mill Road 300 South Grand Avenue Palo Alto, CA 94304-1050 Suite 3900 Los Angeles, CA 90071 19. What's the Difference Between Objecting and Excluding? Objecting is simply telling the Court that you do not like something about the settlement. You can object only if you stay in the Class. Excluding yourself is telling the Court that you do not want to be part of the Class. If you exclude yourself, you have no basis to object because the case no longer affects you.

` On May 18, 2006 in the United States District Court for the Central District of California (Los Angeles), Milberg Weiss Bershad & Schulman LLP and two of its partners were named as defendants in an indictment. The indictment alleges that, in certain cases which are identified in the indictment, portions of attorneys' fees awarded to Milberg Weiss Bershad & Schulman LLP were improperly shared with certain plaintiffs. The indictment does not refer to this action. The firm and the two partners have publicly stated that they are innocent and intend to fight vigorously the charges. Case 3:04-cv-02297-SC Document 242-17 Filed 08/28/2007 Page 7 of 9

THE COURT'S FAIRNESS HEARING The Court will hold a hearing to decide whether to approve the settlement. You may attend and you may ask to speak, but you do not have to. 20. When and Where Will the Court Decide Whether to Approve the Settlement? The Court will hold a fairness hearing at 10:00 a . m., on September 7, 2007, at the United States Courthouse, 450 Golden Gate Avenue, San Francisco, California. At this hearing the Court will consider whether the settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them. Judge Conti will listen to people who have asked to speak at the hearing. The Court will also consider how much to pay to Lead Counsel. The Court may decide these issues at the hearing or take them under consideration. We do not know how long these decisions will take. You should be aware that the Court may change the date and time of the fairness hearing. Thus, if you want to come to the hearing, you should check with Lead Counsel before coming to be sure that the date and/or time has not changed. 21. Do I have to Come to the Hearing? No. Lead Counsel will answer questions Judge Conti may have. But, you are welcome to come at your own expense. If you send an objection, you do not have to come to Court to talk about it. As long as you mailed your written objection on time, the Court will consider it. You may also pay your own lawyer to attend, but it is not necessary. Class Members do not need to appear at the hearing or take any other action to indicate their approval. 22. May I Speak at the Hearing? You may ask the Court for permission to speak at the Fairness Hearing. To do so, you must send a letter saying that it is your intention to appear in In re OmniVision Technologies, Inc_, Master File No. C-04-2297-SC. Be sure to include your name, address, telephone number, your signature, the number of shares of OmniVision stock purchased, acquired, and sold between June 11, 2003 and June 9, 2004. Your notice of intention to appear must be postmarked no later than August 14, 2007 , and be sent to the Clerk of the Court, Lead Counsel, and Defendants' Counsel, at the addresses listed in question 18. You cannot speak at the hearing if you exclude yourself from the Class. IF YOU DO NOTHING 23. What Happens if I Do Nothing at All? If you do nothing, you will not receive any money from this settlement. But, unless you exclude yourself, you won't be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against the Released Persons about the Released Claims in this case. GETTING MORE INFORMATION 24. Are There More Details About the Settlement? This Notice summarizes the proposed settlement. More details are in the Stipulation of Settlement dated as of May 14, 2007 (the "Stipulation"). You can obtain a copy of the Stipulation by writing to Lead Counsel (Jeff S. Westerman, Milberg Weiss & Bershad LLP, One California Plaza, 300 South Grand Avenue, Suite 3900, Los Angeles, CA 90071) or by visiting www.gilardi.com. You also can call the Claims Administrator at (800) 447-7657 toll free; write to OmniVision Securities Litigation Settlement, Gilardi & Co. LLC, P.O. Box 990, Corte Madera, CA 94976-0990; or visit the website at www.gilardi.com, where you will find answers to common questions about the settlement, a Proof of Claim form, plus other information to help you determine whether you are a Class Member and whether you are eligible for a payment. 25. How Do I Get More Information? For even more detailed information concerning the matters involved in this Litigation, reference is made to the pleadings, to the Stipulation, to the orders entered by the Court and to the other papers filed in the Litigation, which may be inspected at the Office of the Clerk of the United States District Court for the Northern District of California, 450 Golden Gate Avenue, San Francisco, CA during regular business hours.

PLEASE DO NOT TELEPHONE THE COURT REGARDING THIS NOTICE

6 Case 3:04-cv-02297-SC Document 242-17 Filed 08/28/2007 Page 8 of 9 SPECIAL NOTICE TO NOMINEES The Court has ordered that if you purchased shares of OmniVision common stock (NASDAQ ticker symbol: OVTI; CUSIP 682128103) between June 11, 2003 and June 9, 2004 as nominee for a beneficial owner, then, within ten (10) days after you receive this Notice, you must either: (1) send a copy of this Notice by first class mail to all such Persons; or (2) provide a list of the names and addresses of such Persons to the Claims Administrator:

OmniVision Securities Litigation c/o Gilardi & Co. LLC, Settlement Administrator P.O. Box 990 Corte Madera, CA 94976-0990

If you choose to mail the Notice and Proof of Claim yourself, you may obtain from the Claims Administrator (without cost to you) as many additional copies of these documents as you will need to complete the mailing. Regardless of whether you choose to complete the mailing yourself or elect to have the mailing performed for you, you may obtain reimbursement for the reasonable incremental costs actually incurred in connection with forwarding the Notice and which would not have been incurred but for the obligation to forward the Notice, upon submission of appropriate documentation to the Claims Administrator.

DATED: June 15 , 2007 BY ORDER OF THE COURT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

PLAINTIFFS' PROPOSED PLAN OF ALLOCATION OF NET SETTLEMENT FUND AMONG CLASS MEMBERS The $13,750,000 Settlement Amount and the interest earned thereon shall be the Gross Settlement Fund. The Gross Settlement Fund, less all taxes, approved costs, fees and expenses (the "Net Settlement Fund") shall be distributed to members of the Class who submit acceptable Proofs of Claim ("Authorized Claimants"). The Claims Administrator shall determine each Authorized Claimant's pro rata share of the Net Settlement Fund based upon each Authorized Claimant's "Recognized Claim." The Recognized Claim formula is not intended to be an estimate of the amount of what a Class Member might have been able to recover after a trial; nor is it an estimate of the amount that will be paid to Authorized Claimants pursuant to the settlement. The Recognized Claim formula is the basis upon which the Net Settlement Fund will be proportionately allocated to the Authorized Claimants. f The following proposed Plan of Allocation reflects the proposition that the price of OmniVision common stock was inflated by reason of the allegedly false and misleading statements made by Defendants during the Class Period until June 9; 2004 when defendants announced that: (a) they were not at that time going to release the Company's fiscal 2004 financial results because they were considering a restatement of OmniVision's financial results for the first three quarters of fiscal 2004 and (b) the Company conducted an internal review, including a review of certain revenue recognition "cutoff" issues, and that, if a restatement was required, it would likely have the effect of increasing reported revenue and net income .for the first three quarters of fiscal 2004. Upon this revelation, investors en masse sold off their OmniVision stock, driving the price down more than 30% following the announcement, or more than $7.84 per share, to close trading at $17.63 per share on June 9, 2004, on trading volume of 40 million shares, more than 18 times the Company's average trading volume. The day before the announcement, the Company's stock closed at $25.47. For purposes of allocating the Net Settlement Fund an Authorized Claimant's "Recognized Claim" shall be calculated as follows: With respect to shares of OmniVision common stock purchased from June 11, 2003 through and including June 8, 2004 and sold prior to the close of trading on June 8, 2004, there shall be no Recognized Claim ($0.00). With respect to shares of OmniVision common stock purchased from June 11, 2003 through and including June 8, 2004 and sold on June 9, 2004 or held at the close of trading on June 9, 2004, Recognized Claim shall be the least of the following amounts: (1) $7.84 per share (the decline in the price from June 8, 2004 to June 9, 2004). (2) The purchase price paid (but no more than $25.47 per share) less the sales proceeds received. (3) The purchase price paid less $17.63 per share (the June 9, 2004 closing price). With respect to shares of OmniVision common stock purchased on June 9, 2004, there shall be no Recognized Claim ($0.00). Case 3:04-cv-02297-SC Document 242-17 Filed 08/28/2007 Page 9 of 9 In the event a Class Member has more than one purchase, acquisition, or sale of OmniVision Technologies, Inc. common stock during the period from June 11, 2003 through and including June 9, 2004, all purchases, acquisitions, and sales shall be matched on a Last In First Out ("LIFO") basis. Class Period sales will be matched first against any OmniVision shares purchased or acquired during the Class Period and then against any shares held at the beginning of the Class Period in reverse chronological order. A purchase, acquisition, or sale of OmniVision common stock shall be deemed to have occurred on the "contract" or "trade" date as opposed to the "settlement" or "payment" date. The receipt or grant by gift, devise or operation of law of OmniVision common stock during the Class Period shall not be deemed a purchase, acquisition, or sale of OmniVision common stock for the calculation of an Authorized Claimant's Recognized Claim nor shall it be deemed an assignment of any claim relating to the purchase or acquisition of such shares unless specifically provided in the instrument of gift or assignment. To the extent a Claimant had a gain from his, her or its overall transactions in OmniVision common stock during the Class Period, the value of the Recognized Claim will be zero. To the extent that a Claimant suffered an overall loss on his, her or its overall transactions in OmniVision common stock during the Class Period, but that loss was less than the Recognized Claim calculated above, then the Recognized Claim shall be limited to the amount of the actual loss. For purposes of determining whether a Claimant had a gain from his, her or its overall transactions in OmniVision common stock during the Class Period or suffered a loss, the Claims Administrator shall: (i) total the amount paid for all OmniVision common stock purchased/acquired during the Class Period by the claimant (the "Total Purchase Amount"); (ii) match any sales of OmniVision common stock during the Class Period first against the Claimant's opening position in the stock (the proceeds of those sales will not be considered for purposes of calculating gains or losses); (iii) total the amount received for sales of the remaining shares of OmniVision common stock sold during the Class Period (the "Sales Proceeds"); and (iv) ascribe a $17.63 per share holding value for the number of shares of OmniVision common stock purchased or acquired during the Class Period and still held at the end of the Class Period ("Holding Value"). The difference between (x) the Total Purchase Amount ((i) above) and (y) the sum of the Sales Proceeds ((iii) above) and the Holding Value ((iv) above) will be deemed a Claimant's gain or loss on his, her or its overall transactions in OmniVision common stock during the Class Period. Each Authorized Claimant shall be allocated a pro rata share of the Net Settlement Fund based on his, her or its Recognized Claim as compared to the total Recognized Claims of all Authorized Claimants. Class Members who do not submit acceptable Proofs of Claim will not share in the settlement proceeds. Class Members who do not either submit a request for exclusion or submit an acceptable Proof of Claim will nevertheless be bound by the settlement and the Order and Final Judgment of the Court dismissing this Action. Distributions will be made to Authorized Claimants after all claims have been processed and after the Court has finally approved the settlement. If any funds remain in the Net Settlement Fund by reason of un-cashed distributions or q$herwise, then, after the Claims Administrator has made reasonable and diligent efforts to have Class Members who are entitled to participate in the, distribution of the Net Settlement Fund cash their distributions, any balance remaining in the Net Settlement Fund one (1) year after the initial distribution of such funds shall be re-distributed to Class Members who have cashed their initial distributions and who would receive at least $10.00 from such re-distribution, after payment of any unpaid costs or fees incurred in administering the Net Settlement Fund for such re-distribution. If after six months after such re-distribution any funds shall remain in the Net Settlement Fund, then such balance shall be contributed to non-sectarian, not-for-profit, 501(c)(3) organization(s) designated by Plaintiffs' Lead Counsel. Plaintiffs, Defendants, their respective counsel, and all other Released Persons shall have no responsibility for or liability whatsoever for the investment or distribution of the Settlement Fund, the Net Settlement Fund, the Plan of Allocation or the determination, administration, calculation, or payment of any Proof of Claim or non-performance of the Claims Administrator, the payment or withholding of taxes owed by the Settlement Fund or any losses incurred in connection therewith.