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Jury)
Bre-X Minerals Ltd., et al., §
§
Defendants. §
AFFIDAVIT OF PAUL MILLER
STATE OF TEXAS §
§
COUNTY OF BOWIE §
Paul Miller, being duly sworn, deposes and says:
SEQ ParaNumbers2_0 \* Arabic \r 11. My name is Paul Miller. I am a partner with the law firm of Miller, James, Miller, Wyly & Hornsby. I am co-counsel for plaintiffs in this case. Unless otherwise noted, I have personal knowledge of the facts contained in this affidavit.
2. This affidavit is offered in support of plaintiffs' opposition to the motions to dismiss for lack of venue, or to transfer venue, filed by defendants Kilborn, SNC-Lavalin, J.P. Morgan, and Lehman. As shown in plaintiffs' response, the motions to dismiss should be denied because one or more defendants caused false and misleading information to be transmitted into this District, as well as into this State. As also shown in plaintiffs' response, the motions to transfer should be denied because this District is a convenient forum for plaintiffs and because both this District and State have a significant interest in the subject matter of this litigation.
Statements By One or More Defendants Were Distributed Here.
3. Statements by one or more of the defendants were available in this District and State by the following methods: printed publications distributed nationally; the “web site” maintained by defendant Bre-X and available globally over the Internet; and electronic databases available both in this District and State.
4. Statements concerning Bre-X by one or more defendants were transmitted to this District and State by means of printed publications that are available throughout the United States. Attached hereto as Exhibit 1 are true and correct copies of representative news articles containing statements by one or more defendants about Bre-X.
5. Statements concerning Bre-X by one or more defendants were transmitted to this District and State by means of the Bre-X web site. Attached hereto as Exhibit 2 are true and correct copies of representative documents, taken from the Bre-X web site, which contain statements made by one or more defendants about Bre-X.
6. Statements concerning Bre-X by one or more defendants were also available in this District and State by means of electronic databases, including such services as Lexis / Nexis and Westlaw. Attached hereto as Exhibit 3 are true and correct copies of representative documents taken from Lexis / Nexis or Westlaw that contain statements by one or more defendants about Bre-X.
7. Attached hereto as Exhibit 4 is a news article from the Institutional Investor Portfolio Letter, dated November 6, 1995. According to the article, Victor Flores, a gold fund manager at United Services Advisors in San Antonio, regularly spoke with Dan McConvey, an employee of defendant Lehman, and Egizio Bianchini, and employee of defendant Nesbitt Burns, regarding their views on gold stocks, including Bre-X.
This District Is a Convenient Forum.
8. This District is as or more convenient than the defendants' suggested fora of Delaware or New York. In fact, no proposed class representative or Lead Plaintiff resides in Delaware or New York. Transfer thus would result in inconvenience and hardship to plaintiffs.
9. Of the eight class representatives proposed by plaintiffs, three reside in this State. Lane McNamara resides in this District; and Mark and Debra Scheuerman reside in the Southern District of Texas. In addition, plaintiffs John and Marian McCarthy, who are Canadian citizens, reside in the Southern District of Texas for the fall and winter months. Two more plaintiffs have residences closer to Texarkana than to the East Coast of the U.S. -- Melvin Lieberman of California and Dennis Oliver of Manitoba. All of these individuals, as well as the eighth proposed class representative, Alloxford Ltd. of Ontario, prefer that their claims be adjudicated here rather than in Delaware or New York.
10. The Lead Plaintiffs previously appointed by the Court include all eight of the foregoing proposed class representatives, plus six other individuals. All of these individuals reside closer to Texarkana than Delaware or New York -- Jean Messmer of Mississippi; John Quick of Texas; Tom Jurevick of Washington; Hy Stotland of British Columbia; and Jack Kinderman and Dennis Garneau, both of Alberta.
11. I am informed by Paul Yetter, Lead Counsel in the case, that the proposed class in this case includes many other Texas purchasers of Bre-X/Bresea stock. Indeed, class members who are clients of his firm reside across the State, including the cities of Dallas, San Antonio, Houston, Cedar Park, La Porte, Clear Lake, and Sugarland. Plaintiffs' counsel anticipate that one or more of these individuals may be called as witnesses at the time of trial.
12. Of the 15 defendants, only two -- Lehman and J.P. Morgan -- reside or have their principal place of business in Delaware or New York. I understand that defendants Bre-X and Bresea are Alberta corporations with their principal place of business in Calgary; the bankruptcy trustee for Bre-X also resides in Calgary; defendants David Walsh and Jeanette Walsh maintain residences in both Calgary and the Bahamas; and defendant John Felderhof is resident of the Cayman Islands. For these defendants, Texarkana is closer than either New York or Delaware.
13. Documentary evidence related to this case will be drawn from around the world -- not just New York City, as defendants suggest. Kilborn is headquartered in British Columbia. In addition, important third party witnesses reside in jurisdictions that adjoin this District. Freeport McMoRan, whose testing was instrumental in discovering the Bre-X fraud, is located in New Orleans. United Services Advisors, to whom defendants Lehman and Nesbitt Burns made statements concerning Bre-X as early as November 1995, is located in San Antonio.
14. Documents in the possession of Bre-X and Bresea are located in Calgary. Other documents relevant to the case are found in Australia, the residence of several individuals and companies with knowledge of events at Busang.
15. Attached hereto as Exhibits 5, 6, and 7 are true and correct copies of letters from Clint Dockin, Rod Gillis, and David Klein, respectively, to Mr. Yetter, as Lead Counsel. Messrs. Dockin, Gillis, and Klein are Canadian attorneys who have brought suits in Alberta, British Columbia, and New Brunswick, Canada, respectively, on behalf of about 450 individual Bre-X shareholders. Messrs. Dockin, Gillis, and Klein prefer that their clients' claims be adjudicated in this District.
16. Attached hereto as Exhibit 8 is a true and correct copy of the Affidavit of Harvey T. Strosberg, Q.C., filed in Wagnerman, et al. v. Vassiliades, et al., No. BUR-1-02401-96, in the Superior Court of New Jersey, Burlington County. For the reasons specified in Mr. Strosberg's Affidavit, he concludes that under Canadian law, the remedies available to investors injured on the secondary trading markets are “so difficult to pursue and to establish that they are, for all practical purposes, illusory.”
This Case Will Reach Trial More Quickly in This District.
17. Attached hereto as Exhibit 9 are true and correct copies of Judicial Caseload Profiles for the Eastern District of Texas and the Southern District of New York, as published by the Administrative Office of the U.S. Courts. Exhibit 9 reflects that courts in this District try more cases more quickly than in the Southern District of New York.
18. In 1997, cases filed in this District were tried, on average, 15 months after filing, ranking this District 17th of all 94 judicial districts in the United States. In comparison, cases filed in the Southern District of New York during 1997 reached trial 23 months after filing, ranking that district 47th in the nation.
19. Exhibit 9 also reflects that this District tries more cases than the Southern District of New York -- an important consideration in plaintiffs' original choice of this forum. In 1997, an average of 36 trials were completed by each the judges sitting in this District. In comparison, the judges sitting in the Southern District of New York only completed an average of 25 trials.
20. Finally, Exhibit 9 reflects that courts in this District do not permit cases to linger. In 1997, only 1.4% of all civil cases in this District were older than three years, ranking this District
15th among all judicial districts. In comparison, in the Southern District of New York, 1,254 cases, (nearly 11% of all civil cases) have been pending three years or longer. This figure ranks 87th of the 94 judicial districts, meaning that only seven judicial districts have a greater backlog of old cases.
Paul Miller
Sworn to me this _____ day
of December, 1997 Notary Public, in and for the State of Texas
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