Donald Johnson, Individually and on Behalf of All Others Similarly Situated v. James D. Aljian Kirk Kerkorian Tracinda Corporation

We must decide a case of first impression involving insider trading liability under the federal securities laws.

I

On August 21, 2003, Donald Johnson, on behalf of himself and all other persons who purchased the common stock of Daim-lerChrysler AG (“DaimlerChrysler”) on nine different dates between March 19, 1999, and June 11, 1999, brought this as-yet-uncertified securities fraud class action against James D. Aljian, Kirk Kerkorian, and Tracinda Corporation. Kerkorian is an executive and sole shareholder of Tra-cinda. Aljian is an executive of Tracinda and a member of the DaimlerChrysler Shareholder Committee.

The amended complaint alleges (1) illegal insider trading against all defendants in violation of Section 10(b) of the Exchange Act of 1934 (“Exchange Act”), and Rules 10b-5 and 10b5-l promulgated thereunder; (2) control person liability against. Aljian and Kerkorian based on Section 20(a) of the Exchange Act; and (3) contemporaneous trading liability against all defendants based on Section 20A of the Exchange Act.

The amended complaint alleges that Al-jian attended a DaimlerChrysler Shareholder Committee Meeting, where he was given a board report entitled…