Delaware Business Litigation Report

Federal Court Denies Motion To Transfer Applying The Jumara Public-Private Balancing Factors

Kuck v. Veritas Software Corp., No. Civ. 04-831-SLR, 2005 WL 123744 (D.Del. Jan. 14, 2005). Defendant filed a Motion to Transfer in a matter involving securities violations. The defendants sought to transfer the matter to the Northern District of California. The Court denied the defendants' motion. Plaintiff filed a Complaint in 2004 against: Veritas Software Corporation ("Veritas"), a Delaware corporation; Edwin Gillis ("Gillis"), the Executive Vice President and Chief Financial Officer of Veritas; and Gary L. Bloom ("Bloom"), the Chairman of the Board, President and Chief Executive Officer of Veritas. The Complaint alleged Section 10(b) and 20(a) violations under the Securities Exchange Act of 1934, 28 U.S.C. Sections 78(j) and 78(t). There were two related cases titled Bennet v. Veritas Software Corporation, Civ. No. 04-867-SLR and Choon v. Veritas Software Corporation, Civ. No. 04-872-SLR. The Motion to Transfer was extended to these two related actions based on the agreement of the parties. Plaintiff contended that the individual defendants had caused Veritas to issue a materially false and misleading press publication on the expected revenue and earnings of Veritas. In support of their Motion to Transfer, defendants alleged that Veritas had no connections to Delaware: all its offices, employees and documents were located in California. Some other offices and employees were located worldwide. The plaintiff then moved on behalf of himself and "all other persons similarly situated (the "class") who purchased or acquired the publicly traded securities of Veritas between April 21, 2004 and July 6, 2004." Accordingly, motions to consolidate, appoint lead plaintiff and lead counsel were filed. The Court examined the Third Circuit law of transfer and the factors listed in Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995) and balanced the facts in this case in accordance with the public/private factors listed in Jumara. The Court held that the Jumara balancing tipped in favor of not transferring the case to the Northern District of California and accordingly denied the defendants motion. Authored by: Raj Srivatsan 302.888.6831 rsrivatsan@morrisjames.com Share