Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01006-RPM

Document 146

Filed 02/02/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-M-1006 (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, v. QUOVADX, INC., LORINE R. SWEENEY, GARY T. SCHERPING, JEFFREY M. KRAUSS, FRED L. BROWN, J. ANDREW COWHERD, JAMES B. HOOVER, CHARLES J. ROESSLEIN and JAMES A. GILBERT, Defendants.

DEFENDANT QUOVADX, INC.S' SUBMISSION OF [PROPOSED] ORDER ON LEAD PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 1:04-cv-01006-RPM

Document 146

Filed 02/02/2006

Page 2 of 3

Defendant Quovadx, Inc. ("Quovadx"), by its undersigned counsel, submits herewith its [Proposed] Order on lead plaintiffs' Motion for Partial Summary Judgment as to Liability, filed December 1, 2005 ("Motion"). Quovadx previously submitted a Statement of Non-Opposition, filed January 20, 2006, indicating that it did not oppose the entry of partial summary judgment on its liability under Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, as requested in the Motion. Quovadx submits this [Proposed] Order to accompany its previously filed Statement of Non-Opposition. Quovadx submits the attached [Proposed] Order to ensure that the order entered by the Court does not inadvertently purport to rule on issues and theories of liability that were not presented in the Motion itself, and not encompassed by Quovadx' Statement of Non-Opposition. Lead plaintiffs' First Amended Class Action Complaint, filed July 26, 2005, as well as lead plaintiffs' Motion for Partial Summary Judgment, were based solely upon an affirmative misstatement in the Registration Statement relating to Quovadx' third quarter financial statements and, in its Statement of Non-Opposition, Quovadx intended solely to concede to liability under Section 11 based upon an affirmative misstatement contained in the Registration Statement. Based on recent statements made by lead plaintiffs' counsel, Quovadx believes that lead plaintiffs may attempt to argue that the Statement of Non-Opposition to Summary Judgment can be interpreted to include an acknowledgement of Section 11 liability for an alleged omission of material facts from the Registration Statement. Lead plaintiffs' Motion did not address the issue of omissions, and Quovadx intended that its non-opposition to that Motion would only acknowledge its liability for the affirmative misstatements made in the Registration Statement in connection with the third quarter financial statements. The [Proposed] Order submitted herewith makes this clear. Additionally, the [Proposed] Order makes clear that the summary judgment order relates only to liability, and does not address or encompass either loss causation or damages, both of which are expected to be contested issues in the trial of this case.

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Case 1:04-cv-01006-RPM

Document 146

Filed 02/02/2006

Page 3 of 3

Respectfully submitted by, Dated: February 2, 2006 WILSON SONSINI GOODRICH & ROSATI Professional Corporation John P. Stigi III s/ John P. Stigi III JOHN P. STIGI III One Market Street, Spear Tower, Suite 3300 San Francisco, CA 94105 Telephone: 415/947-2000 415/947-2099 (fax) WILSON SONSINI GOODRICH & ROSATI Professional Corporation Nina F. Locker Kent W. Easter 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: 650/493-9300 650/493-6811 (fax) DILL DILL CARR STONBRAKER & HUTCHINGS, P.C. John A. Hutchings Adam P. Stapen 455 Sherman Street, Suite 300 Denver, CO 80203 Telephone: 303/777-3737 303/777-3823 (fax) Counsel for Defendants Quovadx, Inc., Jeffrey M. Krauss, Fred L. Brown, J. Andrew Cowherd, James B. Hoover, Charles J. Roesslein and James A. Gilbert

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