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Published: Wednesday, 8/20/2003

Attorney finds new plaintiff for Dana suit

BY JULIE M. McKINNON
BLADE BUSINESS WRITER

A Pennsylvania lawyer who shepherded a shareholder lawsuit against Toledo's Dana Corp. without the consent of the plaintiff - who owned all of 25 shares - has found another investor to take his place.

Dana shareholder Donald Kincheloe of Winchester, Calif., filed a lawsuit against the company and its directors last week, alleging they violated their fiduciary duties by not properly considering an unsolicited offer from ArvinMeritor Inc. to acquire the company. The Troy, Mich., firm is offering investors $15 a share for their stock, a $4.6 billion hostile-takeover bid Dana board members have advised shareholders not to accept.

The lawsuit, filed in U.S. District Court in Lynchburg, Va., seeks class-action status. Dana and its directors believe the lawsuit's allegations are without merit, according to a Securities and Exchange Commission filing this week from Toledo's largest company.

Mr. Kincheloe is represented by Marc Topaz, of Schiffrin & Barroway LLP of Bala Cynwyd, Pa., who filed a similar lawsuit in the same court on the behalf of Roger Ryan of Elizabethtown, Ky.

Yet Mr. Ryan said he had not decided whether to take part in a lawsuit against Dana, which he had been told would be on behalf of numerous shareholders, and found out about a case being filed solely in his name last month from a Blade reporter. That lawsuit was dismissed at his request, and the case was closed Aug. 1.

Mr. Kincheloe declined to comment yesterday and directed questions to his attorney. Mr. Topaz did not have an immediate comment about Mr. Kincheloe's holdings in Dana, saying he would have to consult with him about whether to divulge such information.

His lawsuit calls Dana's board members' actions a conspiracy to remain in control that continues to cost Dana's shareholders. Plus, the lawsuit says, Dana directors have not adequately disclosed information that would help Dana shareholders make a decision about ArvinMeritor's offer, including results of financial analyses from advisers and what they calculated to be the company's fair value ranges.

Among other demands, the lawsuit asks the court to direct board members to give due consideration to proposed business combinations. Dana, the lawsuit notes, has a takeover defense in place that could make an offer directors don't approve of prohibitively expensive.

ArvinMeritor's tender offer to Dana shareholders expires Aug. 28, although it could be extended. Dana's stock has hovered near or above $15 a share since ArvinMeritor announced the tender offer last month, closing yesterday at $15.35 on the New York Stock Exchange.



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