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AND COUNTERCLAIM by arw15539

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     1 JAMES E. LYONS (Cal. Bar No. 112582)
         TIMOTHY A. MILLER (Cal. Bar. No. 154744)
     2 SKADDEN, ARPS, SLATE, MEAGHER& FLOM LLP
       Four Embarcadero Center,Suite 3800
     3 San Francisco, California 941 11
       Telephone: (41 5) 984-6400
     4 Facsimile: (41 5) 984-2698

     5 JONATHAN J. LERNER (AdmittedPro Hac Vice)
       SKADDEN, ARPS, SLATE, MEAGHER& FLOM LLP
     6 Four Times Square
         New York, New York 10036
     7 Telephone: (212) 735-3000
         Facsimile: (212) 735-2000
     8
         Attorneys forPlaintiff and Counterclaim Plaintiff
     9 MCKESSON HBOC, INC.

    10                                   UNITED STATES DISTRICT COURT
    11                               NORTHERN DISTRICTOF CALIFORNIA
    12                                          SAN JOSE DIVISION
    13 McKESSON D O C , INC.,                               Case
                                                         ) No.             C-01-20021-RMW
                                                         1
    14                 Plaintiff and                     1     PLAINTIFF AND COUNTERCLAIM
                            Plaintiff,
                       Counterclaim                      1     PLAINTIFF McKESSON HBOC, INC.'S EX
    15                                                   1     PARTE REQUEST FOR AN ORDER
                              vs.                        1     PERMITTING IT TOFILE A
    16                                                   1     SUPPLEMENTAL MEMORANDUM IN
         NEW YORK STATE COMMON                      )          RESPONSE TO NEW ARGUMENTS RAISED
    17 RETIREMENT FUND, INC.,
                           individually             )          BY DEFENDANT AND COUNTERCLAIM
       and as a representative of a defendant class )          DEFENDANT IN ITS POST-HEARING
    18 consisting of all persons who exchanged more)           LETTER BRIEF AND DURING ORAL
       than 20,000 shares of HBO & Company          1          ARGUMENT
              stockshares
    19 common for                of McKesson        )
       HBOC, Inc. common stock on or after January )
    20 12,1999 ( sdefined
                  aherein),                         1
                                                         1
    21             and Defendants                        1
                               Defendants.
                       Counterclaim                      )
    22                                                   1
    23                                                   )     MASTER File No.C-99-20743-RMW
       IN RE McKESSON HBOC, INC.                         )
    24 SECURITIES LITIGATION                             )         Action
                                                               Class
                                                         )
    25                                                   )         No      requested
                                                               Date: hearing
                                                         )          No
                                                               Time: hearing requested
    26 This Document Relates To: All
                                  Actions                )     Ctrm: 6, 4h Floor
                                                         )     The Honorable Ronald M. Whyte
    27

    28


                                 -- Req. to File Supp.
                                 Ex Parte                    Response                 and
                                                                        99-CV-20743-RMW Ol-CV-20021
I


     1          Plaintiff and Counterclaim Plaintiff McKesson HBOC, Inc. ("McKesson"), hereby respectfully
     2 submits this ex         request pursuant to Civil LocalRules 7-3(e) and7-10(b)foran      order permitting
     3 McKesson to file a four-page supplemental memorandum of points and authorities in response to new
     4 arguments raised by Defendant and Counterclaim Defendant the New York State Common Retirement
     5 Fund (the "Fund") in its post-hearing letter brief and at oral argument. The Fund opposes McKesson's
     6 request. (Declaration of Timothy A. Miller ("Miller Decl.")1 (attached).)
                                                                   7
     7                                         EXPARTE REOUEST
     8          Because the Fund has raised new arguments in its March 26,2001, letter to the Court (the "Letter
     9 Brief") and atoral argument, McKesson respectfully urges that it be affordedopportunity to respond,
                                                                                the
                                                                       supplemental memorandum. A copy of
    10 and hereby requests leave to file a short four-page double-spaced
    11 the brief that McKesson proposes to file is attached hereto as Exhibit A. Given the importance of the
    12 matter, McKessonrespectfilly submits that the Court should grant b s ex Darte request andconsider the
    13 attached supplemental memorandum because (i) the opportunity for oral argument on the Fund's Motion
                                                was
    14 to Dismiss, and to address the Fund's Reply, extremely limited given the numerous parties and matters
    15 before the Court; (ii) given the limitations, McKesson was notable to respond orally to new arguments
                                                                  position; and (iii) the Fund misconstrued
    16 raised bythe Fund atoral argument, such as its "no windfall"                           has
    17 the AFP Imaging Corn. v. Ross, 780 F.2d 202 (2d Cir. 1985), Reinfeld v. Riklis, 722 F. Supp. 1077
                                                          444,1999,2001 WL 242162 (Del. Mar.
    18 (S.D.N.Y. 1989) andRossdeutscherv. Viacom. Inc., No.                               9,2001)
    19 decisions, warranting an opportunity for McKesson to comment.
    20          On March 23, 2001, this Court heard oral arguments on Lead Plaintiffs Motion to Dismiss
    21 McKesson's Complaint and Compulsory Counterclaim in the above-captioned action (the "Motion to
    22 Dismiss"). On the Same day, the Court heard several other motions pending in the consolidated actions
    23 captioned In re McKesson HBOC.Inc. Securities Litigation, C-99-20743-RMW,as well as arguments on
    24   other motions on its regular motion calendar. As many as a dozen separate counsel came forwardto be
    25 heard on the various motions pending in the In re McKesson action alone, significantly limiting the time
    26 for argument from any     particular counsel or on any particular matter. As a result, the time for oral
    27 argument on the Fund's Motion to Dismiss, including the Fund's Reply, was extremely limited and
    28 McKesson did have an opportunity to respond to the arguments made by the Fund's counsel before
                   not                                                                       just

                                                          -1-
                                 -- Req. to File Supp. Response W-CV-20743-RMWand 01-CV-20021
                                 Ex Parte
V



     1 :he noon hour.
     2                 In addition, atthe hearing on the Fund's Motion to Dismiss, counsel for brought
                                                                                       McKesson
    3    :o the Court's attention threecases bearing on the Fund's Motion to Dismiss: AFP Imaging v. Ross, 780
    4    F.2d 202 (2d Cir. 1985); Reinfeld v. Riklis, 722 F. Supp. 1077 (S.D.N.Y. 1989); and Rossdeutscher v.
    5    Viacom. Inc., No.444,1999,2001 WL 242162 (Del. Mar.
                                                           9,2001). The Court grantedthe Fund leave to
     6   file a brief addressing these authorities, which it filed in letter form via facsimile on the afternoon of
     7   Monday, March 26,2001 (the "Letter Brief"). The Fund's Letter Brief, which is single-spaced and two
     8                                    in          the                      To
         ?ages long,is the third brief filed support of Fund's Motion to Dismiss. date, McKesson has filed
     9                               the
         mly one brief in opposition to Fund's Motion to Dismiss.
    10                                               CONCLUSION
    11                           McKesson respectfully submits that the Court should grant ex parte request
                For these reasons,                                                       its
    12                                                                    as Exhibit A. A form of order
         md considerthe short four-page supplemental memorandum attached hereto
    13   granting this request is submitted herewith.
    14
         DATED: March 27,2001                             SKADDEN, A R P S , SLATE, M E A G E R & FLOM
                                                                                                    LLP
    15

    16                                                  By:
                                                                         ' . James W L d m
    17                                                        A ome   for Plaintiff d ounterclaim Plaintiff
                                                                       McKESSO$doc,        INC.
    18
         3F COUNSEL:
    19
       IONATHAN J. LERNER (AdmittedPro Hac Vice)
    20 SKADDEN, ARPS, SLATE, M E A G E R & FLOM LLP
       Four Times Square
    21 New York, New York 10036

    22

    23

    24

    25

    26

    27

    28


                                 -- Req. to File Supp. Response W-CV-20743-RMW and Ol-CV-20021
                                 Ex Parte
 1                              DECLARATION OF TIMOTHY A. MILLER
 2                  I, Timothy A. Miller, declare as follows:
 3                  1.      I am a member of the State Bar of California and am associated with the law firm
 4   of Skadden, A r p s , Slate, Meagher & Flom LLP ("SkaddenArps"), counsel for Plaintiff and
 5   Counterclaim Plaintiff McKesson HBOC, Inc. ("McKesson"),in th.~saction. Except where otherwise
 6                                   of                            if
     noted, I have personal knowledge the facts set forth below and called as a witness,I could test@
 7   competently to those facts.
 8                  2. On      the afternoon of Monday, March 26,2001, counsel for McKesson received a
 9   copy of the letter brief(the "Letter Brief') filed by the Fund in response tothe Court's invitation. The
10 Letter Brief, whichis single-spaced andis two pages long,is the third brief filed by the Fund support
                                                                                              in
                                                                                  (the "Reply"). To
11 of its Motion to Dismiss, which included a reply brief raising several new arguments

                                                         the
12 date, McKesson has filedonly one brief in opposition to Fund's Motion to Dismiss.

13                  3.      Given the importance of the matter and the extremely limited opportunity
                             to
14 available for oral argument address the arguments advancedin the Fund's Reply or to respond tothe

                                                 McKesson respectfully requests, inthis ex parte
15 new positions the Fund advanced at oral argument,

16 request, leave of Court to file a four-page double-spaced supplemental memorandum responding to new

17 arguments raised forthe first time by the Fund in its Letter Brief, at oral argument andin its Reply. A

                        McKesson proposes to file is attached heretoas Exhlbit A.
18 copy of the brief that

19                 4.       On March 23,2001, the Court held argument on Lead Plaintiff the New York
                          (the "Fund's'') Motion to Dismiss McKessonk Complaint and Compulsory
20 Common Retirement Fund's

21 Counterclaim (the "Motion to Dismiss"). Several other motions were also heardon the morning of

22                                                       In
     March 23 in the related consolidated action captioned re McKesson HBOC. Inc. Securities
23   Litigation, C-99-20743-RMw, and the Court also entertainedoral argument on motions in other
24                                                                                                 two
     unrelated matters on the Court's regular motion calendar. In addition to counsel for McKesson and
25   attorneys forthe Fund, counselcame forward tobe heard for defendants Arthur Andersen LLP, Bear,
26 Steams & Co. Inc.,the McKesson Outside Directors, Mark Pulido, Richard Hawkins, Heidi Yodowitz,

27 Charles McCall, Albert Bergonzi and Jay Lapine.

28                 5.       Given the necessary time limitations and the great number of counsel wishng to

                                                       -1-
                              -- Req. to File Supp. Response W-CV-20743-RMW and 01-CV-20021
                              Ex Parte
#


     1 >eheard, there was limited opportunity available for oral argument fi-om anyone counsel or regarding

     2                                                                                       oral
         my one particular matter. As a result, McKesson was able to present only very limited argument
     3                                                                                                 this
         m response to the Fund's Motion to Dismiss, including the Reply, which raised new arguments. In
     4                             able
         same vein, McKesson was not to respondorally to the oral arguments advanced by the Fund at the
     5   nearing onits Motion to Dismiss.
     6                     6.         At the hearing, the Court allowed the Fund leave to file a m h e r brief addressing
     7   :hree casesbearing on the Motion to Dismiss: AFP Imaging v. Ross, 780 F.2d 202 (2d Cir. 1985);
     8                                                                                     Inc., No. 444,
         Reinfeld v. Riklis, 722 F. Supp. 1077 (S.D.N.Y. 1989); and Rossdeutscher v. Viacom.
     9   1999,2001 WL 242 162(Del. Mar. 9,2001) brought to the Court's attention by counsel for McKesson,
    10   lonathan J. Lerner of Skadden A r p s .
    11                     7.         On Tuesday, March 27,2001, I contacted Dan Berger, counsel for the Fund, and
    12   Eked whether the Fund wouldstipulate to this ex parte Request. Before calling I faxed a draftof this
    13                                          supplemental memorandum toMr. Berger. At the time I
         :x parte request and McKesson's proposed
    14   p k e to Mr. Berger by telephone, the facsimile was still in the process of being transmitted and,
    15   herefore, Mr. Berger had not yet seen ex parte request or the proposed supplemental memorandum
                                              the
    16   at the time wespoke. Nevertheless, Mr. Berger stated that the Fund would "absolutelyoppose it."
    17

    18                     I declare under the penalty of perjury that the foregoingis true and correct. Executed
    19   .his 27th day of March 2001, atSan Francisco, California.
    20

    21

    22

    23

    24

    25

    26

    27

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               113196.O4-San Francisco SIA                        -2-
                                         -- Req. to File Supp. Response 99-CV-20743-RMW and Ol-CV-20021
                                         Ex Parte

								
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