The Anschutz Corporation v. Merryll Lynch & Co., Inc. et al

Filing 43

ORDER granting extension to answer (tf, COURT STAFF) (Filed on 10/7/2009)

Case3:09-cv-03780-SI Document41

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FOLEY & LARDNER LLP ATTORNEYS AT LAW ONE MARITIME PLAZA, SIXTH FLOOR SAN FRANCISCO, CALIFORNIA 94111-3409 TELEPHONE: [phone] FACSIMILE: 415.434.4507 PAGE R. BARNES, CA BAR NO. 154539 [e-mail] BILL J. SYMES, CA BAR NO. 257903 [e-mail] FOLEY & LARDNER LLP ATTORNEYS AT LAW 90 PARK AVENUE NEW YORK, NEW YORK 10016 TELEPHONE: [phone] FACSIMILE: 212.687.2329 OF COUNSEL BARRY J. MANDEL [e-mail] KIMBERLY J. SHUR [e-mail] JONATHAN H. FRIEDMAN [e-mail] ATTORNEYS FOR DEFENDANTS, MERRILL LYNCH & CO., INC. AND MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) Plaintiff, ) ) v. ) ) MERRILL LYNCH & CO., INC.; MERRILL ) LYNCH, PIERCE, FENNER & SMITH INC.; ) MOODY'S INVESTORS SERVICE, INC.; ) THE McGRAW-HILL COMPANIES, INC.; ) FITCH, INC.; AND FITCH RATINGS, LTD., ) ) Defendants. ) ) ) ) ) THE ANSCHUTZ CORPORATION, CASE NO.: C 09-3780-SI STIPULATION AND [PROPOSED] ORDER EXTENDING TIME FOR DEFENDANTS TO RESPOND TO COMPLAINT

COMPLAINT FILED: AUGUST 17, 2009 JUDGE: HON. SUSAN ILLSTON

STIPULATION AND [PROPOSED] ORDER EXTENDING TIME TO RESPOND TO COMPLAINT CASE NO.: C 09-3780-SI

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WHEREAS, on June 10, 2009, the United States Judicial Panel on Multidistrict Litigation centralized four actions before the Honorable Loretta A. Preska in the Southern District of New York, captioned In re Merrill Lynch Auction Rate Securities Litigation, 1:08-cv3037-LAP; Community Trust Bank, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 1:09-cv5403-LAP; Louisiana Stadium & Exposition District, et al. v. Financial Guaranty Ins. Co., et al., 1:09-cv-5404-LAP; and The Cooperative Bank, et al., v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 1:09-cv-5405-LAP (the "Centralized Actions"); WHEREAS, on August 17, 2009, Plaintiff filed in this Court its complaint (the "Complaint") in the above-captioned action (the "Action"); WHEREAS, on September 2, 2009, Defendants Merrill Lynch & Co., Inc. and Merrill Lynch, Pierce, Fenner & Smith, Inc., filed a Notice of Tag-Along Action with the United States Judicial Panel on Multidistrict Litigation ("MDL Panel"), seeking to transfer the Action for coordinated or consolidated pretrial proceedings with the Centralized Actions currently pending before Judge Preska in the United States District Court for the Southern District of New York; WHEREAS, on September 16, 2009, the Clerk of the MDL Panel entered a Conditional Transfer Order conditionally transferring the Action to Judge Preska in the Southern District of New York; WHEREAS, on September 18, 2009, defendant Deutsche Bank Securities Inc. ("DBSI")1 filed a notice of opposition to the September 16, 2009 Conditional Transfer Order; WHEREAS, on September 21, 2009, the MDL Panel issued a stay of its September 16, 2009 Conditional Transfer Order pending the resolution of DBSI's opposition; WHEREAS, on September 24, 2009, DBSI filed a motion pursuant to 28 U.S.C. § 1404(a) seeking to transfer the Action to the Southern District of New York, but not seeking consolidation with the Centralized Actions ("DBSI's Transfer Motion"); WHEREAS the procedures applicable to the Centralized Actions, as enumerated in the

DBSI was omitted from the caption of the Complaint, but is nonetheless a defendant. See Compl. ¶ 12 (listing DBSI as a party). 1

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STIPULATION AND [PROPOSED] ORDER EXTENDING TIME TO RESPOND TO COMPLAINT CASE NO.: C 09-3780-SI

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Stipulation and Revised Scheduling Order signed by Judge Preska on August 17, 2009 (attached hereto as Exhibit A), require defendants to inform plaintiff by letter of what they believe to be any deficiencies in the complaint before filing a motion to dismiss and allow plaintiff the opportunity to amend the complaint after receiving the letter; Now, therefore, the Parties, through their respective undersigned counsel, hereby STIPULATE, AGREE, and JOINTLY REQUEST the following: 1. By October 15, 2009, each Defendant will deliver to Plaintiff a letter enumerating what it believes to be the deficiencies in the Complaint that will form the bases for its motion to dismiss. With respect to any Federal Securities law claims, such letters shall focus on Second Circuit law, and not Ninth Circuit law. 2. By October 22, 2009, Plaintiff will notify Defendants whether it intends to amend the Complaint, with the understanding that Defendants do not currently intend to consent to any further amendments, except as provided in Paragraph 6 below. 3. If Plaintiff notifies Defendants that it will not amend the Complaint, Defendants will answer or otherwise move in response to the Complaint no later than: (a) 20 days after Defendants' counsel receive notice that the MDL Panel has filed the Conditional Transfer Order in the United States District Court for the Southern District of New York; (b) 20 days after an Order is entered should this Court transfer this Action to the Southern District of New York under 28 U.S.C. § 1404(a); or (c) 30 days after an Order is entered should this Court decline to transfer this Action to the Southern District of New York. 4. If Plaintiff notifies Defendants that it will amend the Complaint, Defendants will answer or otherwise move in response to the Amended Complaint no later than 25 days after service of the Amended Complaint. However, in no event shall Defendants be required to answer or otherwise move in response to the Amended Complaint until: (a) 20 days after Defendants' counsel receive notice that the MDL Panel has filed the Conditional Transfer Order in the United States District Court for the Southern District of New York; (b) 20 days after an Order is entered should this Court transfer this Action to the Southern District of New York under 28 U.S.C. § 1404(a); or (c) 30 days after an Order is entered 2
STIPULATION AND [PROPOSED] ORDER EXTENDING TIME TO RESPOND TO COMPLAINT CASE NO.: C 09-3780-SI

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should this Court decline to transfer this Action to the Southern District of New York. If any Defendant elects to move to dismiss the Complaint and this action has been transferred to the Southern District of New York either by the MDL Panel or pursuant to DBSI's Transfer Motion, such motion will not raise any arguments not set forth in that particular Defendant's Deficiency Letter. If (a) Plaintiff gives notice pursuant to ¶ 2 above that it does not intend to amend the Complaint, (b) this Action has not been transferred to the Southern District of New York, (c) any Defendant makes any argument not included in that particular Defendant's Deficiency Letter in a motion to dismiss, and (d) Plaintiff seeks to amend its Complaint, then such Defendant will consent to Plaintiff's amendment of the Complaint. In the event that any Defendant elects to move to dismiss the Complaint or the Amended Complaint, Plaintiff will serve an opposition to that particular motion to dismiss no later than 45 days after service of that motion to dismiss. That particular Defendant shall have 30 days to serve any reply to Plaintiff's opposition. This stipulation should not be construed to be a consent to jurisdiction by Fitch Ratings Ltd. or a waiver by Fitch Ratings Ltd. of its objection to jurisdiction. Respectfully submitted, DATED: OCTOBER 5, 2009 FOLEY & LARDNER LLP PAGE R. BARNES BILL J. SYMES BY: /s/ Page R. Barnes ATTORNEYS FOR DEFENDANTS MERRILL LYNCH & CO., INC., AND MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED DATED: OCTOBER 5, 2009 SAVERI & SAVERI, INC. R. ALEXANDER SAVERI GEOFFREY C. RUSHING GIANNA GRUENWALD BY: /s/ R. Alexander Saveri ATTORNEYS FOR PLAINTIFF

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DATED: OCTOBER 5, 2009

WILSON, SONSINI, GOODRICH & ROSATI BY: /s/ David McCarthy ATTORNEYS FOR DEFENDANT MOODY'S INVESTORS SERVICE, INC.

DATED: OCTOBER 5, 2009

PERKINS COIE BY: /s/ David T. Biderman ATTORNEYS FOR DEFENDANTS THE MCGRAW-HILL COMPANIES, INC.

DATED: OCTOBER 5, 2009

TAYLOR & COMPANY LAW OFFICES, LLP BY: /s/ Jayesh S. Hines-Shah ATTORNEYS FOR DEFENDANTS FITCH, INC. AND FITCH RATINGS, LTD.

DATED: OCTOBER 5, 2009

MORGAN, LEWIS, & BOCKIUS LLP BY: /s/ Jami W. McKeon ATTORNEYS FOR DEFENDANT DEUTSCHE BANK SECURITIES, INC.

PURSUANT TO STIPULATION, IT IS SO ORDERED. Dated: ______________, 2009 __________________________________________ Hon. Susan Illston United States District Judge

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GENERAL ORDER 45 CERTIFICATION I, Page R. Barnes, hereby attest pursuant to N.D. Cal. General Order No. 45 that the concurrence to the filing of this document has been obtained from each signatory hereto.
DATED: OCTOBER 5, 2009 FOLEY & LARDNER LLP BY: /s/ Page R. Barnes ATTORNEYS FOR DEFENDANTS MERRILL LYNCH & CO., INC., AND MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

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STIPULATION AND [PROPOSED] ORDER EXTENDING TIME TO RESPOND TO COMPLAINT CASE NO.: C 09-3780-SI