SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
June 28, 1996
Falcon Cable Systems Company, a California limited partnership
(Exact name of registrant as specified in its charter)
California
(State or other jurisdiction of incorporation)
1-9332 95-4108170
(Commission File Number) (IRS Employer Identification No.)
10900 Wilshire Boulevard, 15th Floor, Los Angeles, CA 90024
(Address of principal executive offices) (Zip Code)
(310) 824-9990
(Registrant's Telephone Number)<PAGE>
ITEM 5. OTHER EVENTS.
On June 28, 1996, a complaint entitled Alan R. Markizon,
et. al. vs. Falcon Cable Systems Company, et. al., case no.
BC152485 filed in the Superior Court of the State of Cali-
fornia, County of Los Angeles on June 21, 1996 (the "Markizon
Complaint"), was served, which complaint is filed as exhibit
1 hereto, and is hereby incorporated herein by reference. As
with the complaint entitled Frank O'Shea, IRA v. Waller Capi-
tal Corp., et. al., case no. BC147386 filed in the Superior
Court of the State of California, County of Los Angeles on
April 1, 1996, Falcon Cable Systems Company, L.P. believes
the Markizon Complaint is without merit.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA
FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits.
Exhibit No. Description
1 Complaint entitled Alan R. Markizon, et. al.
vs. Falcon Cable Systems Company, et. al.,
case no. BC152485 filed in the Superior Court
of the State of California, County of Los An-
geles on June 21, 1996.<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Ex-
change Act of 1934, the registrant has duly caused this re-
port to be signed on its behalf by the undersigned hereunto
duly authorized.
Date: July 3, 1996
FALCON CABLE SYSTEMS COMPANY
By: Falcon Cable Investors Group,
Managing General Partner
By: Falcon Holding Group, L.P.
General Partner
By: Falcon Holding Group, Inc.
General Partner
By: /s/ Michael K. Menerey
-----------------------------
Michael K. Menerey, Secretary
and Chief Financial Officer
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EXHIBIT INDEX
Exhibit No. Description Page No.
1 Complaint entitled
Alan R. Markizon, et.
al. vs. Falcon Cable
Systems Company, et.
al., case no.
BC152485 filed in the
Superior Court of the
State of California,
County of Los Angeles
on June 21, 1996.
Exhibit 1
MARC M. SELTZER (54534)
GRETCHEN M. NELSON (112566)
GEORGE A. SHOHET (112697)
CORINBLIT & SELTZER
A Professional Corporation
3700 Wilshire Boulevard, Suite 820
Los Angeles, California 90010
Telephone: (213) 380-4200
HERBERT E. MILSTEIN
LISA M. MEZZETTI
COHEN, MILSTEIN, HAUSFELD & TOLL
1100 New York Avenue, N.W.
Suite 500, West Tower
Washington, D.C. 20005
Telephone: (202) 408-4600
KLARI NEUWELT
LAW OFFICE OF KLARI NEUWELT
950 Third Avenue, 8th Floor
New York, N.Y. 10022
Telephone: (212) 593-8800
Attorneys for Plaintiffs
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
ALAN R. MARKIZON; LAURENCE E. ) Case No. BC152485
BALFUS, on Behalf of Themselves )
and All Others Similarly Situated, ) CLASS ACTION
)
Plaintiffs, ) COMPLAINT FOR DAMAGES AND
) EQUITABLE RELIEF
vs. )
)
FALCON CABLE SYSTEMS COMPANY; )
FALCON CABLE INVESTORS GROUP; ) Plaintiffs Demand A
FALCON HOLDING GROUP, L.P.; ) Trial by Jury
FALCON HOLDING GROUP, INC.; )
and MARC NATHANSON; and DOES 1 )
through 100, )
)
Defendants. )
___________________________________)
Plaintiffs allege, for their complaint against defendants,
upon information and belief, based, inter alia, on the investi-
gation conducted by and through their counsel, except for the <PAGE>
allegations pertaining to the plaintiffs and their attorneys,
which are alleged upon personal knowledge, as follows:
OVERVIEW OF THE ACTION
1. This is a class action brought by plaintiffs on
behalf of themselves and certain other holders of limited part-
nership units of defendant Falcon Cable Systems Company
("Falcon" or the "Partnership") to invalidate or enjoin the
potential sale of the Partnership's cable systems to its
General Partner, defendant Falcon Cable Investors Group
("Falcon Investors" or the "General Partner"), or the General
Partner's affiliates, at a price that is artificially depressed
and not fair, reasonable or equitable, or, in the alternative,
if the sale is completed, for damages and other relief. Abus-
ing and taking advantage of their positions of power and con-
trol with the Partnership or its affiliates, the General Part-
ner and the other defendants, acting in concert, have engaged
and are engaged in a wrongful course of conduct in breach of
fiduciary and contractual duties owed to plaintiffs and the
members of the Class.
2. This action arises from an announced intention by the
General Partner to purchase Falcon's cable systems at an inad-
equate and unfair price. Plaintiffs seek injunctive relief
prohibiting the defendants from consummating the proposed sale
and for the designation of procedures to guarantee that appro-
priate steps are taken to ensure that the sale of the cable
systems, if it occurs at all, will proceed by a method that
ensures the fairness of the transaction and the maximization of
value to the Partnership's unitholders. Plaintiffs also seek
damages on behalf
-2-<PAGE>
of themselves and the Class they seek to represent, as defined
in paragraph 19 below.
JURISDICTION AND VENUE
3. The action is brought to remedy violations of
California law by defendants, and the amount in controversy is
in excess of the jurisdictional minimum of this Court.
4. Venue is proper in this Court pursuant to sections
395 and 395.5 of the Code of Civil Procedure. Defendants main-
tain their principal places of business or residence in this
County and defendants' liability to plaintiffs and the Class
arises from defendants' wrongful conduct in this County.
THE PARTIES
PLAINTIFFS
5. Plaintiff Alan R. Markizon purchased, from the Part-
nership, 200 Limited Partnership Units of Falcon on December
23, 1986, at a price of $20 per unit; he held these units at
all times relevant to the transactions complained of herein,
and he continues to hold those units today.
6. Plaintiff Laurence E. Balfus is the beneficial owner
of 11,000 Limited Partnership Units of Falcon.
DEFENDANTS
7. Defendant Falcon is a California limited partnership
with its principal offices located at 10900 Wilshire Boulevard,
15th Floor, Los Angeles, California 90024. Falcon was formed
by the Amended and Restated Agreement of Limited Partnership of
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Falcon Cable Systems Company, dated as of December 15, 1986, as
amended (the "Partnership Agreement").
8. Falcon owns and operates cable television systems in
more than 100 communities in California and Western Oregon. As
of December 31, 1995, the Partnership had approximately 135,475
homes subscribing to cable service and 52,694 premium service
units.
9. Falcon also is a general partner in a limited part-
nership with its affiliate, defendant Falcon Holding Group,
which claims to have 1,000,000 subscribers in 700 communities
residing in 26 states.
10. Falcon has 6,400,000 limited partnership units issued
and outstanding, which are listed and traded on the American
Stock Exchange.
11. Defendant Falcon Investors is a California limited
partnership which is the General Partner of Falcon. Falcon
Investors manages the operations of Falcon. As General Part-
ner, Falcon Investors receives a management fee of monthly pay-
ments of five percent (5%) of the gross revenues of Falcon,
plus reimbursement of expenses (as set forth in Section 3.16 of
the Partnership Agreement). During the nine months ended Sep-
tember 30, 1995, these payments amounted to approximately
$3,500,000.
12. Defendant Falcon Holding Group, L.P. ("Holding Group"
or "Falcon Holding") is a Delaware limited partnership which is
the General Partner of Falcon Investors. Defendant Holding
Group maintains its offices at 474 So. Raymond Avenue, Suite
200, Pasadena, California, 91105. Defendant Holding Group
manages the business and operations of Falcon Investors.
-4-<PAGE>
13. Defendant Falcon Holding Group, Inc. ("Falcon H.G.
Inc.") is a corporation which is the General Partner of Holding
Group. Defendant Falcon H.G. Inc. manages the business and
operations of Holding Group.
14. Defendant Marc B. Nathanson ("Nathanson") has managed
Falcon and its affiliates at all times relevant herein. He is
Falcon's Chairman of the Board of Directors and Chief Executive
Officer. He also is the Chairman of the Board of Directors,
President and Chief Executive Officer of Holding Group, and is
an officer of, or legal affiliate of, Falcon H.G. Inc.
15. Nathanson and members of his family own approximately
30% of Falcon.
16. Falcon, Falcon Investors, Holding Group, Falcon H.G.
Inc., and Nathanson are collectively referred to herein as the
"Falcon Defendants."
17. Plaintiffs do not know the true names or capacities
of the persons or entities sued herein as Does 1 - 100, inclu-
sive, and therefore sue said defendants by such fictitious
names. Plaintiffs are informed and believe and thereon allege
that each of the Doe defendants was in some manner legally
responsible for the damages suffered by plaintiffs and the mem-
bers of the Class alleged herein. Plaintiffs will amend this
complaint to set forth the true names and capacities of these
defendants when they have been ascertained, along with appro-
priate charging allegations, as may be necessary.
18. Plaintiffs are informed and believe and thereon
allege that, at all times mentioned herein, each defendant was
the agent, servant, or employee of the other defendants and in
acting and
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omitting to act as alleged herein did so within the course and
scope of that agency or employment.
CLASS ACTION ALLEGATIONS
19. Plaintiffs bring this action on behalf of themselves
and all others similarly situated as members of the Class
defined as follows:
All persons and entities who hold units of Falcon as of
the date of the filing of this Complaint, or their
successors-in-interest. Excluded from the Class are the
defendants; any entity in which any of the defendants has
a controlling interest; officers, directors and employees
of the defendants; The Baupost Group, Inc.; Cumberland
Associates; Harvest Capital, L.P.; Tweedy, Browne Company
L.P.; and legal representatives, heirs, successors and
assignees of each of the foregoing excluded persons and
entities.
20. This action has been brought and properly may be
maintained pursuant to the provisions of section 382 of the
Code of Civil Procedure.
21. The Class is ascertainable and there is a well-
defined community of interest among the members of the Class in
that:
(a) The members of the Class are so numerous that
their individual joinder herein is impracticable. There are
approximately 6,400,000 Falcon units outstanding and traded on
a national market, and plaintiffs believe there are at least
hundreds of unitholders. The precise number of Class members
and their addresses may be obtained from Falcon's records.
Class members
-6-<PAGE>
may be notified of the pendency of this action by mailed or
published notice.
(b) Common questions of law and fact exist as to all
members of the Class and predominate over the questions affect-
ing only individual Class members. These common legal and fac-
tual questions include, but are not limited to:
(i) Whether defendants participated in and
pursued the scheme and wrongful course of
action complained of in this Complaint;
(ii) Whether defendants committed the breaches
of duty and violations of law alleged
herein;
(iii) Whether defendants have breached their
fiduciary duties owned to plaintiffs and
the Class members;
(iv) Whether the proposed purchase or redemp-
tion price of units in the proposed trans-
action is unfair to the members of the
Class;
(v) Whether plaintiffs and the other members
of the Class would be irreparably injured
were the proposed transaction complained
of herein consummated; and
(vi) The extent of damages and other remedies
to which plaintiffs and the Class are
entitled for defendants' wrongful conduct,
and the proper measure of damages.
(c) Plaintiffs' claims are typical of the claims of
the members of the Class. Plaintiffs are members of the Class
and
-7-<PAGE>
have been injured by the common course of wrongful conduct by
defendants that has damaged the other members of the Class.
(d) Plaintiffs will fairly, fully and adequately
protect the interests of the members of the Class. Plaintiffs
have no interests of which they are aware that are adverse or
antagonistic to those of the Class. Plaintiffs have retained
competent counsel who are experienced in class action litiga-
tion and securities litigation. The interests of the members
of the Class thus will be fairly and adequately protected by
plaintiffs and their counsel.
(e) A Class action is superior to other available
means for the fair and efficient adjudication of the claims of
plaintiffs and the Class. Since the damages suffered by each
individual Class member may be relatively small, the burden and
expense of individual prosecution of this complex and extensive
litigation makes it impossible for individual Class members to
seek redress for the wrongful conduct alleged here. Absent a
class action, defendants likely will retain the benefits of
their wrongdoing. In addition, individual litigation would
increase the delay and expense to all parties and to the court
system. By contrast, the class action device presents far
fewer management difficulties and provides the benefits of
single adjudication, economy of scale and comprehensive super-
vision by a single court.
(f) In the alternative, this action is certifiable
as a class action because:
(i) the prosecution of separate actions by
the individual members of the Class would
create a risk of inconsistent or varying
-8-<PAGE>
adjudications with respect to individual
Class members, which would establish
incompatible standards of conduct for
defendants;
(ii) the prosecution of separate actions by
individual Class members would create a
risk of adjudications with respect to
them which would, as a practical matter,
be dispositive of the interests of other
Class members not parties to the adjudi-
cations, or substantially impair or
impede such Class members' ability to
protect their interests; or
(iii) defendants have acted or refused to act
on grounds generally applicable to the
Class, thereby making appropriate final
declaratory and injunctive relief with
respect to the Class as a whole;
(g) Plaintiffs anticipate no difficulty in the man-
agement of this litigation as a class litigation.
DEFENDANTS' WRONGFUL COURSE OF CONDUCT
THE PARTNERSHIP AGREEMENT
22. The Partnership Agreement provides that Falcon Inves-
tors is to use its best efforts to cause the Partnership to
sell all of the Partnership's cable systems between December
31, 1991 and December 31, 1996, the termination date of the
Partnership.
23. The Partnership Agreement provides that the General
Partner, or its affiliates, may purchase for cash all or
-9-<PAGE>
substantially all of the Partnership's cable television system
and other related property, including franchises and other real
and personal property (Partnership Agreement, Art. II) at any
time after December 31, 1991, without soliciting unaffiliated
purchasers (the "purchase right"), so long as the purchase
price, without deduction for certain fees, is equal to or
greater than the "Appraised Value," as described in paragraph
24 below, of the cable systems being sold.
24. The "Appraised Value" is defined in the Partnership
Agreement (Partnership Agreement, Art. II) as the average of
three appraisal evaluations of the Partnership's cable systems,
as determined by three nationally-recognized independent
appraisers: one to be selected by the General Partner; one to
be selected by a majority vote of the independent members of
the Partnership's Advisory Committee; and one to be selected by
the two appraisers already so chosen.
25. The Advisory Committee consists of defendant
Nathanson and six other individuals. They receive compensation
of $500 per meeting they attend and $6,000 per annum for their
membership on the Advisory Committee.
26. In the event of a sale, including a sale to the Gen-
eral Partner or its affiliates, Falcon Holdings is to be paid a
fee equal to 2.5% of the gross proceeds of the sale less any
fees. (Partnership Agreement, Section 3.15).
27. The Partnership Agreement provides that during its
last year, i.e., 1996, it may be amended by majority vote and
consent of the General Partner to extend the term of the Part-
nership by five years. Indeed, an extension of the term "may
be implemented
-10-<PAGE>
any number of times." (Partnership Agreement, Section 5.12).
Extension of the term could lead to maximizing or at least
increasing the units' value and, hence, the value of the unit-
holders' investment in the Partnership.
28. The Partnership Agreement, as amended by the Second
Amendment thereto, states that the Partnership may not incur
debt that exceeds the greater of 65% of the aggregate cost of
all Partnership assets or 65% of the fair market value of all
Partnership assets. (Partnership Agreement, Section
3.5(a)(iii)).
THE ACQUISITION PROCESS AND THE FALCON DEFENDANTS'
PROPOSED TRANSACTION
29. Despite the ability to extend the term of the Part-
nership, in or before May 1995, 19 months before the end of the
term, the General Partner initiated preliminary discussions to
identify methods for the sale of the Partnership's cable sys-
tems or other restructuring of the Partnership. Falcon stated
this in a May 15, 1995 press release issued on the BUSINESS
WIRE.
30. On or about November 8, 1995, Falcon announced that
defendant Nathanson had made a preliminary proposal under which
Holding Group would exchange its stake in the Partnership for a
portion of the Partnership's cable systems equal to Holding
Group's proportionate ownership in the Partnership.
31. Holding Group therefore initiated the appraisal pro-
cess by asking the Advisory Committee to designate an
appraiser.
32. Under the preliminary proposal made by certain affil-
iates of the Partnership and Holding Group, including defendant
Nathanson, the exchange would take place immediately
-11-<PAGE>
prior to the exercise by Holding Group of its right to purchase
for cash substantially all of the Partnership's cable systems
remaining after giving effect to the exchange. In the
exchange, substantially all of the Falcon units owned by Hold-
ing Group would be exchanged for a portion of the Partnership's
cable systems equal to the proportion of the total outstanding
units exchanged by the affiliates. Falcon Holdings also would
relieve the Partnership of an equal portion of the Partner-
ship's total debt.
33. At that time and in a January 1996 public filing,
Falcon announced that its decision to pursue the proposal made
by defendant Nathanson and Falcon Holding would rest on several
factors, including the need for it to receive an opinion of a
qualified appraiser or other financial advisor (selected by the
independent members of the Advisory Committee) on the fairness
of the proposal as compared to a sale of all of the Partner-
ship's cable systems.
34. Were the Nathanson and Falcon Holdings proposal to be
completed in the manner described above, defendants Nathanson
and Falcon Holdings and their affiliates expected to be able to
defer their potential tax liability as compared to a liquida-
tion of the Partnership.
35. The interests of defendants Nathanson, Falcon Hold-
ing, Falcon H.G. Inc. and their affiliates directly and actu-
ally conflict with those of plaintiffs and the members of the
Class.
36. In accordance with the appraisal process, three
appraisers were selected: Malarkey-Taylor Associates Inc.,
Kane-Reece Associates, Inc., and Waller Capital Corporation.
-12-<PAGE>
37. In January 1996, before the results of the appraisals
were announced, Falcon entered into an agreement with four
large unitholders ("the Oversight Committee"), who collectively
held approximately 21% of the outstanding units, to provide
them with access to confidential information regarding the
appraisals. The Oversight Committee specifically agreed that
it would not act on behalf of third-parties, including any
unitholders of Falcon that are not members of the Committee.
Thus, the Oversight Committee does not represent, and does not
act in the interest of, plaintiffs or the Class.
38. On or about March 12, 1996, Falcon announced that, in
accordance with the Appraisal Process, Falcon had received the
results of the three appraisals of all of its cable systems
(the "Total Systems"). The appraised value of the Total Sys-
tems as of December 31, 1995, calculated as the average of the
three appraisal results (the "Total Systems Appraised Value"),
was $247.57 million, based on the average of $283.23 million,
$245.80 million, and $213.67 million, which were the appraised
values as of December 31, 1995, of the Total Systems, set forth
in the respective appraisals delivered by Malarkey-Taylor,
Kane-Reece and Waller Capital.
39. On or about March 18, 1996, Kane-Reece amended its
appraised value to $245.29 million, which lowered the Total
Systems Appraised Value to $247.40 million.
40. Based upon the revised Total Systems Appraised Value
of $247.40 million, and assuming a hypothetical liquidation of
the partnership on December 31, 1995, involving the sale of the
Total Systems on that date for an amount equal to the Total
Systems
-13-<PAGE>
Appraised Value, the estimated cash distribution to unitholders
would be $9.08 per unit (the "hypothetical estimated per unit
distribution"), based upon 6,398,913 units outstanding.
41. The hypothetical estimated per unit distribution was
calculated assuming (i) net liabilities on the balance sheet of
the Partnership, excluding property, plant and equipment and
intangible assets ("net liabilities") of approximately $183.09
million, as of December 31, 1995, and (ii) a sale fee payable
to the General Partner equal to approximately $6,190,000, 2.5%
of the Total Systems Appraised Value, as allowed under the
Partnership Agreement.
42. On June 13, 1996, Falcon filed a Form 8-K with the
SEC, announcing and attaching as an exhibit an Asset Purchase
Agrement by and between Falcon and a new entity in the Falcon
H.G. Inc. family, calling for a sale of Falcon's entire cable
systems to the new entity for a purchase price of approximately
$9.17 per unit.
43. The General Partner presently intends to pay itself
the sales fee of 2.5% of the Total Systems Appraised Value,
prior to making a distribution to the unitholders. This pay-
ment would be made to, and enjoyed by, the Falcon Defendants,
to the detriment of the plaintiffs and the Class. Since the
proposed transaction already benefits the Falcon Defendants, no
sales fee should properly be paid to or taken by any Falcon
Defendant.
44. By virtue of their dominance and control over Falcon,
the Falcon Defendants intend to liquidate Falcon at the $9.17
per unit price, which is an inadequate and unfair price. The
actual value of a unit of Falcon is believed to be in excess of
$14.19 per unit, a price also advocated by the Oversight Com-
mittee.
-14-<PAGE>
45. This estimate is based in part on the Partnership
Agreement's restriction on debt: if total debt did not exceed
65% of the value of the partnership's assets, then the Partner-
ship's assets recently were worth not less than $259,000,000
because as of September 30, 1995, Falcon's net outstanding bor-
rowing totaled approximately $168,600,000.
46. The methodology used by defendants to determine the
estimated per unit distribution contains numerous inconsisten-
cies, including (a) the inclusion of General Partnership
expenses in the valuation of the cable systems on a stand alone
basis, and (b) the reduction of net asset value by the entire
stated net liabilities of the partnership, rather than just net
debt.
47. The proposed payment of $9.17 per unit to plaintiffs
and the Class also is inconsistent with the following facts:
(a) cable systems' prices are rising, and (b) in representa-
tions made to financial institutions, the General Partner had
made statements that the value of the units was closer to
approximately $14.00 per unit.
48. For the two weeks preceding the March 12 announcement
of Falcon's appraisals, Falcon units traded at prices ranging
from $12-1/8 to $12-3/8. On the day after Falcon's announce-
ment, the unit price had dropped to $9-3/4 per unit. After the
June 13 filing, the price fell to $9.00 per unit.
FIRST CAUSE OF ACTION
(AGAINST ALL DEFENDANTS,
FOR VIOLATIONS OF FIDUCIARY DUTIES)
49. Plaintiffs reallege each allegation contained in
paragraphs 1 through 48 above, as if set forth fully herein.
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50. By reason of their respective positions as Chairman
of Falcon, General Partner of Falcon, General Partner of Falcon
Investors, General Partner of Holding Group, and as managers of
the business and affairs of Falcon, all the Falcon Defendants
owe plaintiffs and the Class fiduciary duties of the highest
degree of fidelity, loyalty, and care.
51. Through the foregoing acts, practices and course of
conduct, the defendants were and are negligent and failed and
are failing to use ordinary care and diligence in the exercise
of their respective fiduciary obligations toward the Falcon
unitholders, and thus the defendants have violated and are vio-
lating, or aiding and abetting the violation of, their fidu-
ciary duty of care to plaintiffs and the Class.
52. The acts of the defendants were and are in breach, or
have aided and abetted the breach, of their fiduciary duty of
loyalty to plaintiffs and the Class, in that the defendants
knew that their actions involve improper self-dealing and
fraudulent practices, and other acts in breach of their fidu-
ciary duties to plaintiffs and the Class.
53. In their dealings with the unitholders of Falcon, and
particularly in connection with the proposed transaction, the
Falcon Defendants are required as fiduciaries to act in
accordance with the best interests of the unitholders and to
assure themselves that the proposed transaction is fair to the
unitholders, and they may not use their power and control over
the business and operations of Falcon for their own aggrandize-
ment at the expense of its unitholders.
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54. The proposed transaction is unfair to plaintiffs and
the Class because defendant Nathanson and the other Falcon
Defendants are attempting to acquire Falcon's cable systems
based on a price that undervalues the fair market value of
Falcon.
55. As a direct and proximate result of the Falcon Defen-
dants' wrongful conduct, plaintiffs and the Class are entitled
to the relief sought herein.
SECOND CAUSE OF ACTION
(AGAINST ALL DEFENDANTS, FOR ABUSE
OF CONTROL AND CONSPIRACY TO ABUSE CONTROL)
56. Plaintiffs reallege each allegation contained in
paragraphs 1 through 55 above, as if set forth fully herein.
57. The foregoing conduct by defendants constitutes an
abuse of their ability to control Falcon, causing damage to
plaintiffs and the Class. In addition, by reason of the fore-
going breach of trust by all defendants, plaintiffs and the
Class have sustained and will sustain great and irreparable
injury for which they have no adequate remedy at law.
58. As a direct and proximate result of the Falcon Defen-
dants' wrongful conduct, plaintiffs and the Class are entitled
to the relief sought herein.
THIRD CAUSE OF ACTION
(AGAINST ALL DEFENDANTS, FOR
UNJUST ENRICHMENT)
59. Plaintiffs reallege each allegation contained in
paragraphs 1 through 58 above, as if set forth fully herein.
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60. As a result of the tortious conduct described herein,
the defendants will be unjustly enriched at the expense of
plaintiffs and the Class.
61. A constructive trust should be imposed on all of the
gains unjustly obtained by defendants.
FOURTH CAUSE OF ACTION
(AGAINST ALL DEFENDANTS, FOR BREACH
OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING)
62. Plaintiffs reallege each allegation contained in
paragraphs 1 through 61 above, as if set forth fully herein.
63. The acts alleged herein constitute a material breach
of the implied covenant of good faith and fair dealing con-
tained in the Partnership Agreement.
64. As a direct and proximate result of the Falcon Defen-
dants' wrongful conduct, plaintiffs and the Class are entitled
to the relief sought herein.
PRAYER FOR RELIEF
WHEREFORE, plaintiffs pray for judgment against the defen-
dants, jointly and severally, as follows:
1. Declaring that defendants and each of them have com-
mitted or aided and abetted an abuse of their positions and
trust, and have breached their fiduciary and other duties to
plaintiffs and the Class, and have breached the Partnership
Agreement's implied covenant of good faith and fair dealing;
2. Granting an injunction and other equitable relief,
including, but not limited to, (a) the imposition of a con-
structive trust on or otherwise restricting the assets of
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defendant Nathanson and the other Falcon Defendants obtained by
reason of their breaches of duty, (b) an order requiring defen-
dants to refrain from not following procedures necessary to
ensure that the sale of the cable systems proceeds in a manner
that will ensure the fairness of the transaction to the unit-
holders, and (c) prohibiting the Falcon Defendants from consum-
mating the proposed transaction until such time as the Falcon
Defendants agree to pay fair value to plaintiffs and all unit-
holders;
3. Awarding compensatory and punitive damages, in the
event that the proposed transaction is consummated on the terms
now proposed and prejudgment interest thereon;
4. Awarding attorneys' fees;
5. Costs of this suit, including payment of experts'
fees and expenses; and
6. Such other and further legal and equitable relief as
this Court may deem just and proper.
Dated: June 21, 1996.
MARC M. SELTZER
GRETCHEN M. NELSON
GEORGE A. SHOHET
CORINBLIT & SELTZER
A Professional Corporation
HERBERT E. MILSTEIN
LISA M. MEZZETTI
COHEN, MILSTEIN, HAUSFELD &
TOLL
KLARI NEUWELT
LAW OFFICE OF KLARI NEUWELT
By /s/ George A. Shohet
------------------------
George A. Shohet
Attorneys for Plaintiffs
-19-<PAGE>
JURY DEMAND
Plaintiffs demand a trial by jury.
Dated: June 21, 1996.
MARC M. SELTZER
GRETCHEN M. NELSON
GEORGE A. SHOHET
CORINBLIT & SELTZER
A Professional Corporation
HERBERT E. MILSTEIN
LISA M. MEZZETTI
COHEN, MILSTEIN, HAUSFELD &
TOLL
KLARI NEUWELT
LAW OFFICE OF KLARI NEUWELT
By /s/ George A. Shohet
-----------------------
George A. Shohet
Attorneys for Plaintiffs
-19-<PAGE>
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
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SHORT CASE TITLE CASE NUMBER
ALAN R. MARKIZON V. FALCON
COMPANY, et al. CABLE SYSTEMS
CERTIFICATE OF ASSIGNMENT
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File this certificate with all cases presented for filing
in all districts of the Los Angeles Superior Court.
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[X] JURY TRIAL [ ] NON-JURY TRIAL
TIME ESTIMATED FOR TRIAL ----- [ ] HOURS/ [ ] DAYS
[ ] The undersigned declares that the above entitled matter is
filed for proceedings in the -------------------- District
of the Los Angeles Superior Court under Section 392 et
seq., Code of Civil Procedure and Rule 2(c) and (d) of
this court for the reasons checked below. The address of
the accident, performance, party, detention, place of
business, or other factor which qualifies this case for
filing in the above designated district is (address
information not required for non-tort cases filed in
Central District):
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NAME (INDICATE TITLE OR ADDRESS:
OTHER QUALIFYING FACTOR)
-----------------------------
(CITY) (STATE) (ZIP CODE)
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CHECK ONLY ONE NATURE OF ACTION
NATURE OF ACTION GROUND
[ ] A7100 Vehicle Accident Local Rule 2 sets forth the
[ ] A7210 Med Malpractice provisions for mandatory fil-
[ ] A7200 Other Personal Inj. ing in the Central District
[ ] A7220 Product Liability and optional filings in the
[ ] A6060 Other Malpractice Central District or District
[ ] A6012 Collection Note other than the Central Dis-
[ ] A6040 Injunct. Relief trict in "Los Angeles County."
[ ] A6030 Declar. Relief
[ ] A6170 Late Claim Relief If this is a Class Action,
[x] A8000 Other Complaint mark this box
(Specify) Breach of Fiduciary [x] Class Action
Duty
[ ] A8011 Contract/Commercial Performance in the district is
expressly provided for.**
[ ] A7500 Eminent Domain/ The property is located within
Inverse Condemnation the district.**<PAGE>
NATURE OF ACTION GROUND
No. of Parcels-----------
[ ] A6020 Landlord/Tenant
(UD)
[ ] A6060 Real Property
Rights
[ ] A6140 Admin Award The administrative tribunal is
located within the district.**
[ ] A6160 Abstract The judgment debtor hold prop-
[ ] A6141 Sister State Judg- erty within the district.**
ment
[ ] A6107 Confession of
Judgment
[ ] A7221 Asbestos Pers. Inc. Must be filed in the Central
[ ] A6070 Asbestos Prop. Dam. District.
[ ] A6137 RESL Initiating
Petition
[ ] A6138 RESL Responding
Petition
[ ] A6139 RESL Reg of Foreign
Support
[ ] A6111 Minor's Contract
[ ] A6190 Election Contest
[ ] A6110 Name Change One or more of the party liti-
[ ] A6121 Civil Harassment gants resides within the dis-
[ ] A6100 Other Petition trict.**
(Specify):--------------------
[ ] A6151 Mandamus* The defendant functions wholly
[ ] A6152 Prohibition* within the district.**
[ ] A6150 Other Writ*
(Specify):--------------------
No. of Minors Involved:------- One or more of the party liti-
[ ] A5520 Regular Dissolution gants resides within the dis-
[ ] A5525 Summary Dissolution trict.**
[ ] A5530 Nullity
[ ] A5510 Legal Separation
[ ] A5135 Foreign Support (Not a requirement for filing
[ ] A6135 Foreign Custody in Central District - Rule 2)
[ ] A6122 Domestic Violence
[ ] A6130 Family Law
Complaint-Other
No. of Minors Involved:------- Child resides or deceased
[ ] A6060 Paternity father's probate would be
[ ] A6191 DA Paternity (DA filed in the district.**<PAGE>
NATURE OF ACTION GROUND
use only)
[ ] A6133 DA Agreement (DA
use only)
[ ] A6600 Habeas Corpus Fam- Child is held within the dis-
ily Law trict.**
[ ] A6101 Agency Adoption Petitioner resides within the
[ ] A6102 Independent Adop- district.**
tion
[ ] A6104 Stepparent Adoption or
[ ] A6103 Adult Adoption
[ ] 6108 Sole Custody Peti- Consent to out-of-state adop-
tion tion, consentor resides within
[ ] A6105 Abandonment the district.**
[ ] A6210 Probate-Will Let- Decedent resided within the
ters Testamentary district.**
[ ] A6211 Probate Will-
Letters Administration or
[ ] A6212 Letters of Adminis-
tration Decedent resided out of the
[ ] A6213 Letters of Special district, but held property
Administration within the district.**
[ ] A6214 Set Aside Sm. Es-
tate (6602 PC) or
[ ] A6215 Spousal Property
[ ] A6216 Succession to Real Petitioner, conservator or
Property ward resides within this dis-
[ ] A6217 Summary Probate trict.**
(7660 PC)
[ ] A6218 Real Prop./Sm.
Value (13200 PC)
[ ] A6230 Conservatorship P&E
[ ] A6231 Conservatorship
Person
[ ] A6232 Conservatorship
Estate
[ ] A6233 Medical Treatment
without Consent
[ ] A6240 Guardianship P&E
[ ] A6241 Guardianship Person
[ ] A6242 Guardianship Estate
[ ] A6243 Spouse Lacks Capac-
ity
[ ] A6254 Trust Proceedings
[ ] A6280 Comp. Minor's Claim
[ ] A6180 Petition to Estab-
lish Fact of Birth, Death
or Marriage
[ ] A6200 Probate Other
(Specify):-------------------<PAGE>
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I declare under penalty of perjury under the laws of the State
of California, that the foregoing is true and correct and this
declaration was executed on June 21, 1996 at Los Angeles, Cali-
fornia.
--/s/ Marc M. Seltzer-------------------------------
(SIGNATURE OF ATTORNEY/FILING PARTY) MARC M. SELTZER
* Perogative writs concerning a court of inferior jurisdic-
tion shall be filed in Central District.
** Rule 2 allows optional filing in Central District.
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THE COURT MAY IMPOSE SANCTIONS OR OTHER PENALTIES FOR
FAILURE TO FILE IN THE PROPER DISTRICT
CERTIFICATE OF ASSIGNMENT
