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DONOGHUE v. NATURAL MICROSYSTEMS CORP.

April 16, 2002

DEBORAH DONOGHUE, AS EXECUTRIX OF THE ESTATE OF RICHARD MORALES, DECEASED, PLAINTIFF,
V.
NATURAL MICROSYSTEMS CORP. AND RONALD BLEAKNEY, DEFENDANTS.



The opinion of the court was delivered by: Robert W. Sweet, United States District Judge

OPINION

Deborah Donoghue ("Donoghue"), as executrix of the estate of Richard Morales ("Morales"), has moved for summary judgment under Rule 56, Fed. R. Civ. P., granting the relief sought by her complaint, the recovery of short — swing profits arising out of the purchase and sale of shares of Natural Microsystems Corp. ("NMC") by defendant Ronald Bleakney ("Bleakney"), a former officer of NMC, appearing pro se. Upon the facts and conclusions set forth below, the motion is granted, and judgment will be entered in accordance with this opinion.

Prior Proceedings

Donoghue filed her complaint in this action on January 29, 2001, pursuant to Section 16(b) of the Securities Exchange Act of 1934 (the "Exchange Act"), which provides for an issuer's recovery from an officer of "any profit realized by him from any purchase: and sale, or any sale and purchase, of any equity security of such issuer (other than an exempted security) within any period of less than six months . . . ." 15 U.S.C. § 78p(b).

Donoghue's motion for summary judgment was heard and marked submitted on January 16, 2002.

The Facts

The facts as set forth in the Local Rule 56.1 Statement and the submissions of Bleakney are undisputed.

The common shares of NMC were registered under Section 12(g) of the Exchange Act, 15 U.S.C. § 78l(g).

Prior to March 15, 1999, Bleakney was Senior Vice President for Sales at NMC, and was responsible for directing sales activities for NMC in North America, South America, and Europe. On that day he tendered his resignation. He continued to bear the title of "Senior Vice President For Sales" at NMC, but the resignation was effectively accepted on March 22, 1999, after which time he had few or no substantive duties commensurate with the title.

Bleakney made the following purchases of NMC common stock on the dates, in the quantities, and at the prices, here shown:

Date No. of Shares Price
10/30/98 400 $7.6235/Share
4/19/99 3,000 $4.1250/Share
4/19/99 2,000 $4.2500/Share
4/19/99 3,000 $4.2500/Share
4/20/99 2,000 $4.0625/Share
4/22/99 9,917 $4.0938/Share
4/30/99 400 $4.1569/Share

Bleakney made the following sales of NMC common stock on the dates, in the quantities, ...


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