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The AMS Fund is a charitable endowment. It works at improving communities through education and service to the poor, the mentally impaired and others in need of vital social services. On November 17, 2002, the AMS Fund dedicated the "Erica and Harry John Family Chair in Ethics" to the Catholic Theological Union in Chicago. The AMS Fund embraces its fiduciary duties to the absent class members and believes that beyond securities fraud, this case is also about ethics—the ethics of the defendant and the ethics within our legal system.

The AMS Fund has Seven Fundamental Principles:

1. Promote human dignity.
2. Expand community leadership.
3. Strengthen family, volunteer and community participation.
4. Empower people to take responsibility.
5. Cooperate with other organizations.
6. Demonstrate that efforts are being made.
7. Encourage collaboration and integration.

These principles apply to many areas of life, even within our legal system with regards to its participants—especially the attorneys:

1. Your attorney must promote and respect your dignity.
2. Your attorney should encourage you to expand your leadership.
3. Your attorney should strengthen your participation.
4. Those involved should be empowered to take responsibility for their actions.
5. Those involved should cooperate with each other.
6. Your attorney should demonstrate that efforts are being made to allow you to direct and control your litigation.
7. The "team" should encourage collaboration and integration.

Class action attorneys have the reputation of driving the litigation. The fact is that Securities Fraud Class Action litigation is very difficult, time consuming and tedious. Results vary depending upon jurisdiction, the judge presiding, the way in which the case is plead, the quality of the attorneys, whether the attorneys are zealous and ethical advocates, the amount of director and officer liability insurance and many more factors. The Court denied the defendant's Motion to Dismiss Halliburton and a ruling as to the individual defendants is still pending. The Lead Plaintiff in this case, which is a charitable fund, has attended all hearings, participated in the litigation process and directed the affairs by the determinations made and will continue to do so vigorously as it has done to date.

This litigation is paramount in that it brought the end to an era where the perception had been (and unfortunately sometimes it was true) that the representative plaintiffs had no say in their case. This case has set in motion the reality that class representatives have power and that they are in control of their litigation. Truth in Corporate Justice LLC ("TCJ") will use its power to empower those who need it to remain in control of their case. Secure your rights and speak up and state how you feel when your money is on the table. The Lead Plaintiff in Halliburton objected to the initial $6 million settlement of the other three Lead Plaintiffs' attorneys and prevailed. Thereafter, the Lead Plaintiff defeated Halliburton's Motion to Dismiss the case. Neil Rothstein, the Chief Managing Officer of TCJ, which is Special Counsel to the Lead Plaintiff, is duly respectful of the two other plaintiffs that not only filed complaints in a timely manner, but also objected to the settlement.

He also respects all other objectors for their support of this Lead Plaintiff including numerous funds. Additionally, a few funds intervened in this matter and while they did not file complaints until after the sustaining of the objection to the $6 million settlement, nor did they object to that settlement, he respects their selfless presence in support of the Lead Plaintiff. They did so in order to support the Lead Plaintiff and are represented by attorney William S. Lerach. To intervene is rare and that intervention showed the importance of that procedure in securities cases; the pleading by the interveners was done to support an extraordinary effort by a conscientious Lead Plaintiff that is tenaciously handling its role as a fiduciary to all absent class members.

In the "INTERVENERS JOINDER IN LEAD PLAINTIFF AMS FUND, INC.'S MOTION FOR MODIFICATION OF LEAD PLAINTIFF AND LEAD COUNSEL APPOINTMENT", the Interveners stated: "To its substantial credit, lead plaintiff AMSF [AMS Fund] has demonstrated throughout this litigation how a fiduciary on behalf of the shareholder class should conduct itself. AMSF, through its representative Paula John, has been an active participant in the litigation and instrumental in protecting the interests of absent class members. September 9, 2004 Order at 3. It has appeared at hearings, mediation and taken part in all important aspects of the litigation." The interveners also went on to state the following with regard to the AMS Fund's role in the Enron Securities Litigation: "AMSF is a named plaintiff in that action [Enron], and has worked (and continues to work) diligently and effectively with its own counsel and Lerach Coughlin for the benefit of all shareholders." In fact, TCJ is also Special Counsel to the AMS Fund in the Enron Securities Litigation. The AMS Fund is the Representative Plaintiff on behalf of the debt bondholders and has assumed a duty on their behalf in Enron to the same extent as if it were the Lead Plaintiff.

There is little doubt that the AMS Fund understands its role as a Lead Plaintiff clearly and competently and that pursuant to the heightened standard placed upon the Lead Plaintiff/Representative Plaintiff in the Fifth Circuit, it takes its duties as a fiduciary to the purported class very seriously. It only engages counsel to represent it who also understands this as being the standard placed upon the Lead/Representative Plaintiff.

The Court did not permit the interveners to assume the role of co-lead plaintiffs nor did they need to do so in Halliburton. As previously stated, other parties had filed timely complaints and objections to the original settlement. In this instance, the interveners supported the landmark efforts and results of the Lead Plaintiff. While the Lead Plaintiff's damages and the other named plaintiffs may not be as great as those who tried to intervene, they are more adequate as representatives here as they have been actually involved, kept up to date on their litigation (assuming, as in this case, counsel has been diligent in advising his or her clients and other counsel as directed by AMS) and hence, their financial interest in the case is obviously greater because they took action earlier—prior to the objection being made and then sustained.

TCJ Sets New Standard for Lead Plaintiff

TCJ takes the position that the Private Securities Litigation Reform Act of 1995 states that one, and only one of the determinative factors in the selection of the Lead Plaintiff(s), is the requirement for the Lead Plaintiff to have the "largest financial interest." First, the adequacy and typicality requirements under Rule 23 of the Federal Rules of Civil Procedure are paramount. Courts should take those factors into consideration BEFORE determining which of the moving plaintiffs left for consideration has the greatest interest in the case due to the financial loss. The plaintiff with the largest financial interest is the plaintiff who has the most interest in the case and that it is a financial interest. As evidenced in this case, three plaintiffs came forward and were appointed co-lead plaintiffs and thereafter showed no interest in the case. The litigation, then driven by their lawyers, almost led to a totally inadequate settlement that would have violated the absent class members' right to due process. Then after various individuals filed complaints AND objected timely AND the objection to the settlement was sustained, other investors intervened in support of the Lead Plaintiff—yet desired the role for themselves. Any support from any plaintiff is always welcome and necessary, but one cannot deny that the interest by those who filed timely complaints and objected to the settlement far exceeds any other plaintiff’s interest which appears when the battle has already been won.

It is with that in mind that each Court in every case should scrutinize the proposed plaintiff in ascertaining what their individual interests are in being the lead or one of the Lead Plaintiffs.

A pension fund and/or Taft-Hartley Fund is nothing more than an aggregation of thousands of individuals' investments - which is not what Congress intended, or in some cases have not turned out to be the sort of lead plaintiff that Congress desired when enacting the Private Securities Litigation Reform Act. A charitable endowment or a foundation is a single entity that has been formed to help others. Therefore, it inherently always has the "largest financial interest" no matter what the actual monetary loss is.

The Lead Plaintiff Controls the Litigation:
The Enron Application as Stated by the Honorable Melinda Harmon

The class certification hearing in Enron, Consolidated Civil Action No. H-01-3624, where the AMS Fund, Inc. is a Representative Plaintiff for the debt bondholders and has actively participated with the Lead Plaintiff, brought out the true meaning of Rule 23(a)(4). The "Harmon Doctrine" (the term has been dedicated by TCJ to Judge Melinda Harmon who stated the principles of this rule perfectly) clearly enunciates the defining factors of what is expected by a Lead Plaintiff. The Honorable Melinda Harmon, United States District Judge for the Southern District of Texas displayed her "concern" about the standards that "we all need to be aware of" regarding adequacy under Rule 23(a)(4) in the Fifth Circuit. She stated that "the Court examines the zeal and competence of the class representatives' counsel and the class representatives' willingness, experience and ability to handle class actions." Her Honor stated that the class representative must "take an active role in and control of litigation and to protect the interests of absent class members to determine if there is fair and adequate representation of the interests of the class." She follows by explaining that the absent class members are bound by the decisions made by the representative plaintiffs and therefore, the Court must be "vigilant" in protecting the due process rights of all class members. Language that her Honor uses to describe the role of the representative plaintiff include: willing to serve, controlling the litigation, active role in and control of the litigation, capable of controlling or prosecuting the litigation, plaintiff's who are active, able and informed and can demonstrate direction of the litigation and more. She states: "In sum, 'competent plaintiffs rather than lawyers must direct such cases.'"

TCJ agrees with this Court's clear explanation of the Lead Plaintiff's role in a case. Thus, we believe that the University of California Regents and the AMS Fund would function well as the escrow agents overseeing their funds on the Enron case.

The Lead Plaintiff in Halliburton is a Model for the Future

In Halliburton, the Lead Plaintiff has directed its counsel in every phase to date as can be seen in the pleadings and in the fact that it has never missed a court appearance. The Lead Plaintiff has a duty to the absent class members. The Lead Plaintiff has an affirmative duty to direct the litigation and control it so as to ensure the best result. This duty includes the choice of attorneys. The attorneys' only duty is to litigate the case to the expectations of their client and to protect, advise and respect the Lead Plaintiff with humility. The Lead Plaintiff has a duty in protecting the absent class members and to advise the Court of any issues it might have during the course of the litigation. TCJ is Special Counsel to the Lead Plaintiff in this case. As its advisor, it affords the purported class more protection than if it were not involved in the case. Lead Counsel in any class action case should remember that it is at the honor of the Lead Plaintiff that it serves in its capacity.

The Special Counsel to the Lead Plaintiff, chosen by the Lead Plaintiff to advise it as to the propriety of all matters concerning the litigation, sees no reason for the media to involve itself in any issue other than the issue at hand—securities fraud. As the Lead Attorneys have been instructed not to address the media without consent, the Lead Plaintiff will abide by its duty and, at minimum, advise the Court if it believes that it is to the detriment of the litigation or to the detriment of the absent class members. If the Court determines such speech to be detrimental to the interests of the class, then the Court will have to make a determination based upon the circumstances.