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EXHIBIT 5
IRELL & MANELLA LLP
David Siegel (State Bar No. 101355)
Daniel P. Lefler (State Bar No. 151253)
Craig Varnen (State Bar No. 170263) [STAMP]
1800 Avenue of the Stars, Suite 900
Los Angeles, California 90067-4276
(310) 277-1010
WACHTELL, LIPTON, ROSEN & KATZ
Paul K. Rowe
51 West 52nd Street
New York, New York 10019
(212) 403-1000
Attorneys for Defendants
Marc Nathanson, Falcon Cable Systems
Company, Falcon Cable Investors
Group and Falcon Holding Group, Inc.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
FRANK O'SHEA, IRA, on behalf of himself and) CASE NO. BC147386
all others similarly situated, )
) CLASS ACTION
Plaintiffs, )
) ANSWER TO UNVERIFIED COMPLAINT
vs. )
) Hearing: None
WALLER CAPITAL CORP., MARK NATHANSON, ) Department: 59
FALCON CABLE SYSTEMS COMPANY, FALCON ) Trial date: None
CABLE INVESTORS GROUP and FALCON )
HOLDING GROUP, INC., )
)
Defendants. )
___________________________________________)
Pursuant to Section 431.30(d) of the California Code of Civil
Procedure, defendants Marc Nathanson, Falcon Cable Systems Company, Falcon
Cable Investors Group and Falcon Holding Group, Inc. (collectively, the "Falcon
Defendants"), answer the unverified complaint (the "Complaint") of plaintiff
Frank O'Shea, IRA, on behalf of himself and all others similarly situated (the
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"Plaintiff"), by making a general denial of each and every material allegation
of the Complaint and of each and every cause of action contained therein, and
by denying that Plaintiff is entitled to the injunctive, declaratory and
monetary relief sought therein.
AFFIRMATIVE DEFENSES TO COMPLAINT
Without admitting any of the allegations set forth in the Complaint,
the Falcon Defendants allege as follows:
FIRST AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action)
1. The allegations set forth in the Complaint do not state facts
sufficient to constitute a cause of action against the Falcon Defendants.
SECOND AFFIRMATIVE DEFENSE
(Adequacy of Monetary Damages)
2. Any harm suffered by Plaintiff, if any, is adequately remedied
through the imposition of monetary damages, and thus injunctive relief is
improper.
THIRD AFFIRMATIVE DEFENSE
(Absence of Harm Caused by the Falcon Defendants)
3. Plaintiff did not suffer any harm as a result of any acts or
omissions of the Falcon Defendants as alleged in the Complaint, and any harm
alleged therein is attributable to unrelated or independent causes other than
any alleged acts or omissions of the Falcon Defendants.
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FOURTH AFFIRMATIVE DEFENSE
(Full Performance)
4. The parties' respective rights and obligations are set forth
in the Amended and Restated Agreement of Limited Partnership of Falcon Cable
Systems Company (the "Agreement"). The Falcon Defendants have fully complied
with and fully performed each and every applicable provision and obligation of
the Agreement.
FIFTH AFFIRMATIVE DEFENSE
(Lack of Reliance)
5. The Plaintiff did not rely upon any representations or
reasonably rely on any representations of the Falcon Defendants.
SIXTH AFFIRMATIVE DEFENSE
(Public Policy)
6. Failure to enforce the express provisions of the Agreement
would be contrary to public policy and the Plaintiff is consequently barred
from obtaining the relief requested in the Complaint.
SEVENTH AFFIRMATIVE DEFENSE
(Statute of Frauds)
7. To the extent that Plaintiff's claims, or any of them, are in
whole or in part based upon any alleged oral agreements or understandings not
contained in the Agreement, the same are barred by the Statute of Frauds,
California Civil Code Section 1624.
EIGHTH AFFIRMATIVE DEFENSE
(Failure to Mitigate Damages)
8. The Plaintiff has failed to mitigate damages, if any, and is
therefore barred from recovery of any such damages.
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NINTH AFFIRMATIVE DEFENSE
(Accord and Satisfaction and/or Novation)
9. Any duty of performance or further performance by the Falcon
Defendants was excused by an accord and satisfaction or novation effective
between the Falcon Defendants and Plaintiff.
TENTH AFFIRMATIVE DEFENSE
(Modification, Termination and/or Rescission)
10. Any duty of performance or further performance owed by the
Falcon Defendants was excused by an agreement between the parties modifying,
amending, terminating, abrogating, rescinding, or abandoning the Agreement.
ELEVENTH AFFIRMATIVE DEFENSE
(Unclean Hands)
11. Plaintiff is guilty of having unclean hands herein and should
be barred from any recovery against the Falcon Defendants.
TWELFTH AFFIRMATIVE DEFENSE
(Justification and Privilege)
12. The Falcon Defendants' conduct with respect to Plaintiff was
justified, privileged, fair, and effected in good faith, without malice, spite
or conscious, reckless or negligent disregard of any purported rights of
Plaintiffs, or with improper purpose or ill-will of any kind and without the
employment of any improper, wrongful or illegal methods. Consistent with the
foregoing, the Falcon Defendants did not directly or indirectly perform or fail
to perform any act that constitutes a violation of any purported rights of
Plaintiff or a violation of any duties or obligations purportedly owed to
Plaintiff. At all times the
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Falcon Defendants acted in good faith and in justifiable reliance on
independent advisors.
The Falcon Defendants expressly adopt, accept and join in each and
every affirmative defense proffered by codefendant Waller Capital Corporation
in its response to the Complaint. Moreover, the Falcon Defendants reserve the
right to allege additional affirmative defenses as they become known through
the course of discovery.
WHEREFORE, the Falcon Defendants pray for judgment as follows:
1. For a judgment and order that the Falcon Defendants are not
liable to Plaintiff on any cause of action alleged in the Complaint and that
Plaintiff is not entitled to any relief by virtue of any of the causes of
action alleged therein;
2. For attorneys' fees and costs incurred herein; and
3. For such other and further relief as the Court may deem just
and proper.
Dated: May 31, 1996 IRELL & MANELLA LLP
David Siegel
Daniel P. Lefler
Craig Varnen
WACHTELL, LIPTON, ROSEN & KATZ
Paul K. Rowe
By: /s/ CRAIG VARNEN
------------------------------------
Craig Varnen
Attorneys for Defendants
Marc Nathanson, Falcon Cable Systems
Company, Falcon Cable Investors
Group and Falcon Holding Group, Inc.
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PROOF OF SERVICE
I am employed in the County of Los Angeles, State of California. I am
over the age of 18 and not a party to the within action. My business address
is 1800 Avenue of the Stars, Suite 900, Los Angeles, California 90067.
On May 31, 1996, I served the foregoing document described as ANSWER
TO UNVERIFIED COMPLAINT on all interested parties in this action as stated on
the attached service list.
(BY MAIL) I placed true copies of the foregoing document in sealed
envelopes addressed as stated on the attached service list. I placed each such
envelope, with postage thereon fully prepaid, for collection and mailing at
Irell & Manella LLP, Los Angeles, California. I am readily familiar with Irell
& Manella LLP's practice for collection and processing of correspondence for
mailing with the United States Postal Service. Under that practice, the
correspondence would be deposited in the United States Postal Service on that
same day in the ordinary course of business.
Executed on May 31, 1996, at Los Angeles, California.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
V. E. HOLB /s/ V. E. HOLB
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Name Signature
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SERVICE LIST
Alan Schulman, Esq.
Steven W. Pepich, Esq.
Milberg Weiss Bershad Hynes & Lerach LLP
600 West Broadway, Suite 1800
San Diego, CA 92101
Stephen Lowey, Esq.
Thomas Skelton, Esq.
Lowey Dannenberg Bemporad & Selinger, P.C.
747 Third Avenue
New York, NY 10017
John Wilson Spiegel, Esq.
Munger Tolles & Olson
355 South Grand Avenue, 35th Floor
Los Angeles, CA 90071-1560
Charles Bachman, Esq.
O'Sullivan Graev & Karabell
30 Rockefeller Plaza, 41st Floor
New York, NY 10112
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