Free Notice (Other) - District Court of Colorado - Colorado

Case 1:04-cv-01006-RPM

Document 210

Filed 11/06/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01006-RPM SPECIAL SITUATIONS FUND III, L.P.; SPECIAL SITUATIONS CAYMAN FUND, L.P.; SPECIAL SITUATIONS TECHNOLOGY FUND NEW, L.P.; and SPECIAL SITUATIONS TECHNOLOGY FUND II, L.P., on behalf of themselves and others similarly situated, Plaintiffs, QUOVADX, INC., Defendant.

NOTICE OF CORRECTION OF STATEMENTS MADE AT ORAL ARGUMENT ON OCTOBER 23, 2006, IN OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

Defendant Quovadx, Inc. ("Quovadx" or "the Company"), by its counsel of record John M. Vaught, submits the following Notice of Correction concerning statements made during oral argument in opposition to Plaintiffs' motion for partial summary judgment. At oral argument held on October 23, 2006, Mr. Vaught, as counsel to Quovadx, made statements to the Court concerning the findings and conclusions of the investigation by the staff of the Securities and Exchange Commission ("SEC"). Those statements include the following: 1. The statement on page 28, lines 12-13, of the transcript of the hearing

[Doc. #203] ("Transcript") that, "[U]nderstand that the SEC has engaged an extensive investigation and never took issue with that disclosure." (See Exhibit A attached hereto.)

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2.

The statements on page 32, line 12, through page 33, line 2, of the

Transcript, concerning whether the SEC took issue with anything disclosed in the Management Discussion and Analysis section of the Form 10-Q incorporated by reference in the Form S-4. (See id.) 3. The statements on page 40, lines 2-13, of the Transcript, concerning the

$410,000 payment to Infotech in October 2003. (See id.) Counsel for the Company should not have attempted to characterize the findings and conclusions of the SEC's ongoing investigation, either in the statements referenced above or in any other statement at the hearing that may have done so. Further, the statements referenced in Item Nos. 2 and 3 above were factually inaccurate. The SEC investigation did conclude that statements in the MD&A disclosure were materially false and misleading, and the SEC investigation did not conclude that the $410,000 payment to Infotech was used for outsourcing services. Counsel for the Company was attempting to respond to what he understood to be the position of Plaintiffs' counsel that the alleged omissions in the MD&A would have been materially misleading, and would allegedly violate federal securities laws, independent of the affirmatively misstated revenue recognition on the Infotech contract. In trying to respond to Plaintiffs' argument, Quovadx's counsel in good faith mistakenly provided what he believed to

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be the findings and conclusions of the SEC investigation.1 Neither the Company nor its counsel attempted to mislead the Court in any manner. We apologize for the inadvertent mischaracterization of the SEC investigation. Dated: November 6, 2006 Respectfully submitted,

s/John M. Vaught John M. Vaught Wheeler Trigg Kennedy LLP 1801 California Street, Suite 3600 Denver, CO 80202 Telephone: (303) 244-1800 Facsimile: (303) 244-1879 Attorney for Defendant Quovadx, Inc.

Undersigned counsel for Quovadx does not represent the Company in the SEC investigation.

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on November 6, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:
· · · · · · · · · · · ·

Frederick J. Baumann [email protected] [email protected] Solomon Benjamin Cera [email protected] [email protected] Hugh Gottschalk [email protected] [email protected];[email protected] Marcela A. Kirberger [email protected] Marc Bradley Kramer [email protected] [email protected] Evan S. Lipstein [email protected] [email protected] Lawrence M. Rolnick [email protected] Gavin J. Rooney [email protected] [email protected] John Peter Stigi, III [email protected] John Mark Vaught [email protected] [email protected] Craig Richard Welling [email protected] [email protected] Michael T. Williams [email protected] [email protected] s/John M. Vaught by Elizabeth Anadale John M. Vaught Attorney for Defendant Quovadx, Inc. Wheeler Trigg Kennedy LLP 1801 California Street, Suite 3600 Denver, Colorado 80202 Telephone: (303) 244-1800 Facsimile: (303) 244-1879

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