In re Herald, Primeo and Thema Funds Securities Litigation

Filing 49

MEMORANDUM OF LAW in Opposition re: #15 MOTION to Appoint Counsel. MOTION to Appoint Dr. Shmuel Cabilly to serve as lead plaintiff(s). MOTION to Consolidate Cases 09-2032., #41 MOTION to Appoint Repex Ventures S.A. to serve as lead plaintiff(s). MOTION to Appoint Counsel. MOTION to Consolidate Cases 1:09-cv-02032, 1:09-cv-02558. MOTION to Appoint Repex Ventures S.A. to serve as lead plaintiff(s).. Document filed by Foxton Group. (Linkh, Gregory)

Repex Ventures S.A v. Madoff et al

Doc. 4

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------REPEX VENTURES S.A., on Behalf of Itself and All Others Similarly Situated, X : : : Plaintiff, : : v. : : BERNARD L. MADOFF; BERNARD L. : MADOFF INVESTMENT SECURITIES; : BANK MEDICI S.A.; SONJA KOHN; PETER : SCHEITHAUER; HERALD USA FUND; : HERALD LUXEMBURG FUND; BANK : AUSTRIA CREDITANSTALT; UNICREDIT : S.A.; PRIMEO SELECT FUNDS; PIONEER : ALTERNATIVE INVESTMENTS; THEMA : INTERNATIONAL FUND PLC; ERNST & : YOUNG LLP, and HSBC HOLDINGS PLC, : : Defendants. : --------------------------------------------------------X

Civil Action No.: 09-cv-00289-RMB

[Caption continued on the next page]

THE FOXTON GROUP'S MEMORANDUM OF LAW IN OPPOSITION TO THE MOTIONS OF SHMUEL CABILLY AND REPEX VENTURES S.A. FOR APPOINTMENT OF LEAD PLAINTIFF

Dockets.Justia.com

--------------------------------------------------------- X HORST LEONHARDT, on Behalf of Himself : and All Others Similarly Situated, : : Plaintiff, : : v. : : BERNARD L. MADOFF, BANK MEDICI : S.A., SONJA KOHN, PETER : SCHEITHAUER, HERALD USA FUND, : HERALD LUXEMBURG FUND, BANK : AUSTRIA CREDITANSTALT, UNICREDIT : S.A., PRIMEO SELECT FUND, PRIMEO : EXECUTIVE FUND, PIONEER : ALTERNATIVE INVESTMENTS, THEMA : INTERNATIONAL FUND PLC, HELMUTH : E. FREY, FRIEDRICH PFEFFER, FRANCO : MUGNAI, ALBERTO BENBASSAT, : STEPHANE BENBASSAT, GENEVALOR, : BENBASSAT & CIE, DAVID T. SMITH, : GERALD J.P. BRADY, DANIEL : MORRISSEY, ERNST & YOUNG S.A., : ERNST & YOUNG GLOBAL LIMITED, : HSBC HOLDINGS PLC, HSBC : INSTITUTIONAL TRUST SERVICES : (IRELAND) LIMITED, HSBC SECURITIES : SERVICES (IRELAND) LIMITED, HSBC : SECURITIES SERVICES, S.A., : PRICEWATERHOUSECOOPERS, : CHARTERED ACCOUNTANTS, : PRICEWATERHOUSECOOPERS : INTERNATIONAL LIMITED and : FRIEHLING & HOROWITZ, : : Defendants. : ------------------------ --------------------------------- X

Civil Action No.: 09-cv-02032-RMB

TABLE OF CONTENTS I. II. INTRODUCTION STATEMENT OF FACTS A. B. C. III. The Foxton Group Has Suffered the Largest Damages Only the Foxton Group Claims Damages Attributable to All Three Medici Funds The Foxton Group Can Effectively Manage the Litigation 1 2 3 4 4 5 6 6 7 8

ARGUMENT A. The Foxton Group Is the Presumptive Lead Plaintiff Because It Has the Largest Financial Interest and Meets Rule 23's Requirements (1) (2) (3) B. Aggregation Is Appropriate Because the Foxton Group Is Small and Its Members Can Control the Litigation Aggregation Is Necessary Because the Lead Plaintiff Must Be Able To Represent Purchasers of Each Underlying Fund The Foxton Group Satisfies the Typicality and Adequacy Requirements

The Competing Motions of Cabilly and Repex Fail to Satisfy Rule 23's Requirements and Do Not Provide a Basis to Rebut the Foxton Group's Presumptive Lead Plaintiff Status Cabilly and Repex Cannot Adequately Protect the Class Because Their Interests Are Divergent Repex Is Particularly Unsuitable for Lead Plaintiff Appointment Because It Seeks to Manipulate the Lead Plaintiff Selection Process Appointment of the Foxton Group as Lead Plaintiff Ensures the Protection of the Interest of Every Class Member

8 9 10 11 13

C. D. E. IV.

CONCLUSION

I.

INTRODUCTION Under the Private Securities Litigation Reform Act of 1995 (the "PSLRA"), a

"group of persons" having "the largest financial interest" in the litigation is presumed the "most adequate plaintiff" if the group moves for lead plaintiff appointment and satisfies the requirements of Federal Rule of Civil Procedure 23. The Foxton Group is entitled to this statutory presumption because: (1) its three members, Willard Foxton, Neville S. Davis, and Chia-Hung Kao, have between $4,211,441.20 and $4,451,4 41.20 in damages ­ at least $500,000 higher than all three competing movants; and (2) as their Joint Declaration demonstrates, Messrs. Foxton, Davis, and Kao share the common goal of maximizing class recovery and their claims are typical of the class claims under Rule 23. No evidence exists to rebut this presumption. Thus, the Foxton Group respectfully requests that it be appointed Lead Plaintiff. The Foxton Group's appointment is particularly appropriate because it represents victims of all three categories o f funds implicated in this litigation: (a) Herald USA Fund and Herald Luxemburg Fund (collectively, the "Herald Funds"); (b) Primeo Select Fund and Primeo Executive Fund (collectively, the "Primeo Funds"); and (c) Thema International Fund PLC (the "Thema Fund"). In contrast, the other movants claim damages attributable only to the Herald and Primeo Funds. Because they have no claim against defendants who were involved with the Thema Fund only, these movants cannot represent Thema Fund purchasers. Nor can they represent the entire class. The Foxton Group is therefore the only appropriate Lead Plaintiff to represent all class members.

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II.

STATEMENT OF FACTS Four movants have filed lead plaintiff motions in the three related actions pending

in the Southe rn District of New York: Repex Ventures S.A. v. Madoff et al. , No. 09 Civ. 2032 (RMB); Leonhardt v. Madoff et al. , No. 09 Civ. 2089 (RMB); and Perrone et al. v. Benbassat et al., No. 09 Civ. 2558 (SHS). Alleging violations of the Securities Exchange Act of 1934 (the "Exchange Act"), these actions arise from Defendant Bank Medici's management of the Herald, Primeo, and Thema Funds (collectively, the "Medici Funds"). Central to these actions are the allegations that (1) during the class period ­ between January 1, 2004 and December 10, 2008 ­ Medici controlled the Herald, Primeo, and Thema Funds; and (2) Medici, its affiliates, its officers and directors, and other banking and accounting defendants materially misled investors and funneled over $3 billion of investment funds to Bernard L. Madoff's now well-known Ponzi scheme. Perrone Compl. ¶¶ 1, 18, 111-28.2 To rule on the competing motions for appointment of lead plaintiff,3 the Court must consider three factual questions: (1) (2)
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which movant has the largest financial interest in the related actions; which movant has suffered damages attributable to all Medici Funds; and

This class period is alleged in Perrone for the Exchange Act claims. Perrone Compl. ¶ 1. Similarly, Repex and Leonhardt set the class period between January 12, 2004 and January 12, 2009. Repex Compl. ¶ 54; Leonhardt Compl. ¶ 75. Because all three actions allege similar claims under the Exchange Act and contain similar factual allegatio ns, this brief cites to the Perrone Complaint as a sample reference of the relevant allegations. The Foxton Group moved for lead plaintiff appointment on May 4, 2009, relying in good faith upon the March 5, 2009 class notice in Leonhardt. This motion is timely because, according to the letter endorsed by this Court, the filing period for Leonhardt "should not [be] disturb[ed]." Repex, Dkt. No. 18 at 1. 2
3 2

(3)

which movant can manage the litigation most effectively.

Based on the evidence before the Court, the answer to each question is the Foxton Group. A. The Foxton Group Has Suffered the Largest Damages

Messrs. Foxton, Davis, and Kao are victims of the fraud alleged in the related actions. They lost between $4,211,441.20 and $4,451,441.20 in all three Medici Funds: THE FOXTON GROUP Member Mr. Foxton4 Mr. Davis Mr. Kao Total Loss Fund Purchased Herald Thema Primeo Total Damages $2,880,000.00-$3,120,000.00 $1,131,441.20 $200,000.00 $4,211,441.20-$4,451,441.20

Repex , Dkt. No. 40 (Linkh Decl.) Exs. A, C. As indicated below, the Foxto n Group's damages are much larger than those of the three other movants: (1) Shmuel Cabilly; (2) Nürnberger Versicherung Aktiengesellschaft Österreich; and (3) Repex Ventures S.A. COMPETING MOVANTS Movant Cabilly Nürnberger Repex Funds Purchased Primeo Primeo Herald Total Damages $3,665,200.00 $941,242.85 $700,000.00

See Repex, Dkt. Nos. 17, 25, 43.

On behalf of his father's estate, Mr. Foxton provided estimates of his father's investment beca use he had not been able to locate the papers documenting the damages since his father committed suicide in February 2009 as a result of the fraud alleged in the related actions. Repex, Dkt. No. 40 Ex. A. He certified that his father invested approximately 1.6 million British Pounds in the Herald Funds. Id. The exact amount of the investment can easily be identified through discovery. 3

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B.

Only t he Foxton Group Claims Damages Attributable to All Three Medici Funds

The charts above demonstrate that only the Foxton Group represents purch asers of all three Medici Funds. In contrast, Cabilly and Repex claim damages attributable only to the Herald or Primeo Funds; and notably, they do not allege any damages attributable to the Thema Fund. Cabilly and Repex therefore lack an interest ­ and a basis ­ to seek recovery against all defendants, because numerous defendants were allegedly involved with only a specific fund and thus can only be held liable for damages attributable to that fund. For example, three individuals are named as defendant s in these cases based solely on their alleged role as directors of the Herald Funds. Perrone Compl. ¶¶ 18, 26 -30. In addition, over a dozen other defendants are alleged to have liability solely due to their roles at the Primeo Funds. Id. ¶¶ 23, 33-34, 44-48. And at least seven defendants were allegedly involved only with the Thema Fund. Id. ¶¶ 7, 55-65. Accordingly, in order to pursue claims on behalf of the entire class, the lead plaintiffs must have a claim against each of the foregoing defendants . Only the Foxton Group meets this requirement because Messrs. Foxton, Davis, and Kao suffered damages attributable to all three Medici Funds. C. The Foxton Group Can Effectively Manage the Litigation

In support of the Foxton Group's motion, Messrs. Foxton, Davis, and Kao submit a Joint Declaration outlining their efforts and plans to manage the litigation. See Joint Declaration of All Members of the Foxton Group (submitted together with this brief). In the Joint Declaration, they state that they have ample experience in managing counsel and that they have communicated with counsel regularly and have discussed litigation

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strategy in telephonic conferences. Joint Decl. ¶¶ 2-5. They also set forth the specific steps they have taken and will continue to take to maintain communication with counsel and control the litigation: (1) holding at least one all -hands telephonic conference every three months during the pendency of this litigation, and more frequently as necessary; (2) communicating regularly with couns el regarding any development in the litigation; and (3) receiving status reports from counsel at least once a month and more often as the circumstances require. Id. ¶ 6. Moreover, to ensure that the attorneys' fees and expenses are reasonable, the Foxton Group will review and authorize any fee application before submission to the Court. Id. ¶ 7. III. ARGUMENT At the outset, as all competing movants agree, the related actions should be consolidated because they raise similar issues of fact and law and bec ause consolidation promotes judicial economy. See F ED. R. CIV. P. 42(a); see also Constance Sczesny Trust v. KPMG LLP, 223 F.R.D. 319, 322 (S.D.N.Y. 2004) (Stein, J.) (allowing consolidation because "crucial factual and legal questions [were] common to al l the related actions"). After consolidating the related actions, the Court should rule on the competing motions for appointment as lead plaintiff by applying the two-step analysis set forth in 15 U.S.C. § 78u -4(a)(3)(B)(iii)(I). First, the Court determines which movant is entitled to the statutory presumption of lead plaintiff . Constance Sczesny Trust, 223 F.R.D. at 323 24. Second, the Court determines whether the presumption can be rebutted. Id. at 324. Here, an analysis of both tests supports appointment of the Foxton Group as Lead Plaintiff.

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A.

The Foxton Group Is the Presumptive Lead Plaintiff Because It Has the Largest Financial Interest and Meets Rule 23's Require ments

The Foxton Group has suffered between $4,211,441.20 and $4,451,441.20 in damages ­ the largest among the competing movants. As discussed below, aggregation of the Foxton Group's damages is not only appropriate, but necessary. (1) Aggregation Is Appropriate Because the Foxton Group Is Small and Its Members Can Control the Litigation

The PSLRA expressly contemplates the appointment of more than one class member as lead plaintiff. 15 U.S.C. § 77z-1(a)(3)(B)(i), (iii). The Southern District of New York has repeatedly appointed groups as lead plaintiffs. E.g., Davidson v. E*Trade Fin. Corp., Nos. 07 Civ. 10400 (RS) et al., 2008 U.S. Dist. LEXIS 61265, at *11 (S.D.N.Y. July 17, 2008) (Sweet, J.).5 To be appointed lead plaintiff, a group must establish that its members can function cohesively and can control the litigation effectively. Id. The Foxton Group meets this test for two reasons. First, the Foxton group has only three members and is "therefore presumptively cohesive" because it is easy for a small group to control the litigation. Id. at *12 (appointing a group of three). In their Joint Declaration, Messrs. Foxton, Davis, and Kao state that they have ample experience in investing in the securities market and managing counsel. Joint Decl. ¶ 3. Not only have they discussed litigation strategy with each other, but they also have communicated See also In re UBS Auction Rate Sec. Litig. , No. 08 Civ. 2967 (LMM), 2008 U.S. Dist. LEXIS 56016, at *13 (S.D.N.Y. J uly 18, 2008) (Mckenna, J.); Reimer v. Ambac Fin. Group, Inc. , No. 08 Civ. 0411 (NRB), 2008 U.S. Dist. LEXIS 38729, at **78 (S.D.N.Y. May 9, 2008) (Buchwald, J.); In re Centerline Holding Co. Sec. Litig., No. 08 Civ. 0505 (SAS), 2008 U.S. Dist. LEXIS 364 06, at *8 (S.D.N.Y. May 5, 2008) (Scheindlin, J.); In re Tarragon Corp. Sec. Litig., No. 07 Civ. 7972 (PKC), 2007 U.S. Dist. LEXIS 91418, at *2 (S.D.N.Y. Dec. 6, 2007) (Castel, J.); Weltz v. Lee, 199 F.R.D. 129, 132 (S.D.N.Y. 2001) (Batts, J.). 6
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regularly with counsel. Id. ¶¶ 4-5. Mr. Foxton has met with counsel in person to discuss the litigation and the Foxton Group's pending motion. Id. These facts demonstrate the Foxton Group's ability to function cohesively. Second, the Foxton Group has established a protocol to share information among its members and to manage counsel. Id. ¶ 6. The protocol includes monthly status reports from counsel and quarterly all-hands telephonic conferences. Id. Thus, the Foxton Group has demonstrated its ability to control the litigation effectively. See Davidson, 2008 U.S. Dist. LEXIS 61265, at *12 (appointing a group because the group members shared a "clear understanding as to consultation, information sharing, and management of the liti gation"). (2) Aggregation Is Necessary Because the Lead Plaintiff Must Be Able to Represent Purchasers of Each Underlying Fund

The aggregation of the Foxton Group's damages is necessary because class members suffered damages in connection with not one, but three categories of funds: the Herald Funds, the Primeo Funds, and the Thema Fund. Claims arising from each fund implicate different defendants. See Perrone Compl. ¶¶ 7, 18, 27-65. As a result, to adequately represent the entire class, the lead plaintiff must have a financial interest in seeking recovery from all defendants implicated in each Medici Fund. Purchasers of each Medici Fund must therefore join forces to fulfill the role as lead plaintiff. Accordingly, the members of the Foxton Group h ave joined together based on necessity to represent the interest of class members who purchased shares in all three Medici Funds. Therefore, the Foxton Group was formed to ensure the standing of the class and is not an "artifice cobbled together by cooperating counsel for the obvious purpose of

7

creating a large enough" aggregated loss. Cf. In re Razorfish, Inc. Sec. Litig., 143 F Supp. 2d 304, 307-08 (S.D.N.Y. 2001) (Rakoff, J.). In summary, the Foxton Group has the largest financial interest and is the presumptive lead plaintiff because, as discussed below, it has made a " preliminary showing" that its claims are typical of the class claims and that it is an adequate class representative . In re McDermott Int'l, Inc. Sec. Litig., No. 08 Civ. 9943 (DC), 2009 U.S. Dist. LEXIS 21539, at *6 (S.D.N.Y. Mar. 6, 2009) (Chin, J.). (3) The Foxton Group Satisfies the Typicality and Adequacy Requirements

The Foxton Group's claims are typical because, like other class members, Messrs. Foxton, Davis, and Kao purchase d shares of the Medici Funds and suffered damages. Caiafa v. Sea Containers, Ltd., Nos. 06 Civ. 2565 (RMB) et al., 2006 U.S. Dist. LEXIS 57776, at *6 (S.D.N.Y. Aug. 14, 2006) (Berman, J.). Furthermore, the Foxton Group shares with all class members the "common purpose of maximizing class recovery." Joint Decl. ¶ 2. The Foxton Group has selected experienced counsel to pursue the class claims. See Linkh Decl. Exs. D-E. Accordingly, the Foxton Group meets Rule 23's typicality and adequacy requirements. Caiafa, 2006 U.S. Dist. LEXIS 57776, at *8 n.3. B. The Competing Motions of Cabilly and Repex Fail to Satisfy Rule 23's Requirements and Do Not Provide a Basis to Rebut the Foxton Group's Presumptive Lead Plaintiff Status

The Rule 23 analysis highlights the deficiencies in the competing motions. Cabilly and Repex claim damages attributable only to the Herald Funds and the Primeo Funds, respectively. According to the underlying complaints, different defendants managed each underlying fund. See Perrone Compl. ¶¶ 27-30, 35-43. Thus, class members who invested in different funds do not have the same claims against the same

8

defendants arising from the same events, and cannot recover money from those defendants who have no liability to them. As a result, Cabilly (who purchased only the Primeo Funds) and Repex (who purchased only the Herald Funds), standing alone, do not have claims that are typical of class members who purchased other Medici Funds. Repex concedes as such. Repex, Dkt. No. 42 at 9 (stating that "Primeo Fund investors do not satisfy Rule 23's `typicality' requirements when they seek to be appointed lead plaintiffs to represent Herald Fund investors"). Because Cabilly and Repex fail to adduce any proof that the Foxton Group cannot adequately represent the class, the Foxton Group's presumptive status cannot be rebutted. Constance Sczesny Trust, 223 F.R.D. at 324. C. Cabilly and Repex Cannot Adequately Protect the Class Because Their Interests Are Divergent

In other securities class actions, courts ha ve appointed purchasers of one type of securities to serve as lead plaintiffs on behalf of "purchasers of other types of securities of the same issuer where the interest of those purchasers are aligned." Davidson, 2008 U.S. Dist. LEXIS 61265, at **16-17 (citing cases) (emphasis added). This line of cases, however, is inapplicable here for two reasons. First, the "same issuer" requirement cannot be satisfied because the three different categories of Medici Funds were managed by different defendants and we re offered and sold by different issuers through different channels across the world. See Perrone Compl. ¶¶ 18, 23 -65. Second, Cabilly's and Repex's interests are not aligned with those of the class because, standing alone, Cabilly and Repex have no claim against numerous defendants. See id. Accordingly, Cabilly and Repex are unsuitable for lead plaintiff appointment. See Davidson, 2008 U.S. Dist. LEXIS 61265, at **21 -22 (appointing co-lead plaintiffs to protect the class because of potential conflicts of interest).

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D.

Repex Is Particularly Unsuitable for Lead Plaintiff Appointment Because It Seeks to Manipulate the Lead Plaintiff Selection Process

Repex made two motions for lead plaintiff appointment. After commencing the first of the related action s, Repex moved together with an individual investor, Radovan Fijember, as a group based on the class notice published on January 12, 2009. See Dkt. No. 19. Without withdrawing that motion, Repex moved again, by itself, purportedly based on the March 5, 2009 class notice relating to Leonhardt . Dkt. Nos. 35, 41. Repex's second motion is procedurally improper for two reasons. First, Repex abandoned its group apparently because, after its first motion was fully briefed, it discovered that Fijember lacked the requisite financial interest. Repex's de -grouping is an effort to manipulate the lead plaintiff appointment process and thus should not be condoned. See Rozenboom v. Van Der Moolen Holding, N.V., No. 03 Civ. 8284 (RWS), 2004 U.S. Dist. LEXIS 6382, at **12-13 (S.D.N.Y. Apr. 14, 2004) (Sweet, J.) (stating that formation of groups after the statutory 60 -day period thwarts the PSLRA's purpose to prevent counsel manipulation and to expedite the lead plaintiff selection process). Second, by making two moti ons, Repex sought to take unfair advantage from a procedural conundrum created by its counsel: Repex and Leonhardt had two different deadlines for motions for lead plaintiff appointment because Repex's counsel, who filed both cases, published two separate, inconsistent class notices as to when the deadline fell. See Dkt. No. 18. These procedural improprieties cast Repex and its motions in an unfavorable light. In any event, Repex fails to demonstrate that it has the largest financial interest and that it can adequately represent the class. As a result, the Court should not appoint Repex to serve as Lead Plaintiff in any capacity.

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E.

Appointment of the Foxton Group as Lead Plaintiff Ensures the Protection of the Interest of Every Class Member

The Foxto n Group should be appointed Lead Plaintiff here to ensure that the interests of purchasers of shares in all three Medici Funds are represented. Recently, the court in Zemprelli v. Royal Bank of Scotland Group PLC addressed a similar issue involving appoin tment of lead plaintiff for a class with divergent interests. 09 Civ. 0300 (DAB) (S.D.N.Y.). There, related cases arose from plaintiffs' purchases of Royal Bank of Scotland ("RBS") stock. Zemprelli , Dkt. No. 57 at 9 (May 5, 2009 Order) (attached as Exhibit A). The putative class included two types of investors: (1) investors who asserted strict liability claims under Section 11 of the Securities Act of 1933 (the "Securities Act") relating to their purchase of the series Q, R, S, and T of Preferred Shares of RBS pursuant to its registration statements; and (2) investors who asserted fraud claims under Section 10(b) of the Exchange Act relating to their purchase of RBS common stock on the open market. See id. at 7-9. On motions for lead plaintiff appointment, two groups emerged as leading contenders. Id. at 8-9. Claiming over $120 million in damages, one group consisted of institutional investors who had only purchased RBS stock on the open market (and thus who only had fraud claims under the Exchange Act). Id. Claiming under $450,000 in damages, the other group consisted of individual investors who had acquired RBS Preferred Shares pursuant to registration statements and who thus had and asserted strict liability claims under the Securities Act. Id. at 9. Although the institutional-investor group did not identify any losses attributable to RBS Preferred Shares (and thus had no claims under the Securities Act), the group asserted claims under both the Securities Act and the Exchange Act and sought to be appointed lead plaintiff for the entire class. Id. at

11

8-9. In contrast, the individual-investor group's damages were attributable to all four series of RBS Preferred Shares, and the group sought only to represent the Securities Act claimants. Id. at 9. These facts raised the same question that now confronts this Court: In selecting a lead plaintiff, how should the Court protect the interest of an entire class that includes members who have separate claims arising from separate investments? To resolve the question, the Zemprelli court had to consider three issues. First, the movant with the largest financial interest is entitled to a presumption of lead plaintiff. 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I). Pursuant to this rule, the institutional -investor group was entitled to the presumption. Second, to be appointed lead plaintiff over the entire class (which asserted claims under both the Securities Act and the Exchange Act), the institutional-investor group was not required to have standing to bring all class claims since the case involved different securities from the same issuer. Hevesi v. Citigroup, Inc., 366 F.3d 70, 82 (2d Cir. 2004). Third, the lead plaintiff must be able to adequately represent the interest of the class. 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I). Faced with these competing considerations, the Zemprelli court appointed both groups as co-lead plaintiffs in order to secure adequate representation for all class members, holding that the class members who had Securities Act claims requi red separate representation from the investors who had only Exchange Act claims. Zemprelli, Dkt. No. 57 at 9. Zemprelli 's logic applies here with stronger force. The purchasers of each Medici Fund require representation by the lead plaintiffs because they purchased their shares from different issuers and because they have claims against different defendants and based on different events. See Perrone Compl. ¶¶ 7, 18, 27-65. Among the competing movants, the Foxton Group has the largest financial interest, has standing to assert claims

12

of all purchasers of each Medici Fund, and is able to control the litigation and protect the interest of all class members. Accordingly, the analysis in Zemprelli supports the conclusion that the Foxton Group is the most ad equate Lead Plaintiff. See also Davidson , 2008 U.S. Dist. LEXIS 61265, at **21-22. IV. CONCLUSION The Foxton Group has suffered larger damages ­ over $4 million ­ than Cabilly, Repex, and Nürnberger. The Foxton Group is also the only movant which has su ffered damages attributable to all three Medici Funds ­ Herald, Primeo, and Thema. Moreover, Cabilly and Repex cannot adequately represent the entire class. Accordingly, the Court should appoint the Foxton Group Lead Plaintiff in this litigation. In the alternative, should the Court decline to appoint the Foxton Group as Lead Plaintiff, the individual members of the Foxton Group request appointment individually as Lead Plaintiff or CoLead Plaintiff. Dated: May 21, 2009 Respectfully submitted, Johnson Bottini, LLP s/ Albert Y. Chang Francis A. Bottini, Jr. Albert Y. Chang (AC 5415) 655 West Broadway, Suite 1400 San Diego, CA 92101 Telephone: [phone] Facsimile: [phone]

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Brian P. Murray (BM 9954) Gregory B. Linkh (GL 0477) Murray, Frank & Sailer LLP 275 Madison Avenue, Suite 801 New York, N Y 10016-1101 Telephone: [phone] Facsimile: [phone] Attorneys for the Foxton Group

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EXHIBIT A

DOCUMEl"rr 1

USDC snNY . 1/1

---~

j EI.EC!ltO~"H(, l T 7. oJ ..."'C .r.D .1' UNITED STATES DISTRICT COURT , D .,. #: l iti '" C . -', J L.: .L Z' L. .~. j SOUTHERN DISTRICT OF NEW YORK lr P-..l~ FF ¡ .l-. \1 - . i; D .. 'Y°Z.- t-~ . I - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --X ¡ fL. A.. .o4. ~ D"\ 1.;. EDWARD P. ZEMPRELLI, on Behalf of ---~ -- ;;':,==-7,,~~~:'~! Himself and All Others Similarly Situated,

~-- -~----- ....--- , \
o 9 C i v . 3 0 0 (DAB)

Plaintiff,
-againstTHE ROYAL BAN OF SCOTLAN GROUP
ORDER

PLC, THE ROYAL BAN OF SCOTLA PLC,
SIR THOMAS FULTON WILSON McKILLOP, SIR FREDERICK ANERSON GOODWIN, GUY ROBERT WHITTAKER, LAWRENCE KINGSBAKER FISH, GORDON FRACIS PELL,

COLIN ALEXAER MASON BUCHAN,
JAMES McGILL CURRIE, SIR STEPHEN ARTHUR ROBSON, ROBERT AVISSON SCOTT, PETER DENIS SUTHERLAN, ARCHIBALD HUNTER, CHARLES JOHN KOCH, JOSEPH PATRICK MacHALE, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, GREENWICH CAPITAL MARKETS, INC., WACHOVIA CAPITAL MARKETS, LLC, MORGAN STANLEY & CO. INCORPORATED, UBS SECURITI.ES LLC, BANC OF AMERICA SECURITIES LLC, and RBC CAPITAL MARKETS CORPORATION,

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --X HAROLD H. POWELL TRUST U/A DATED

Defendants.

All Others Similarly Situated,
-against-

DECEMBER 2 i , i 988, And On Behal f Of

Plaintiff,
o 9 C i v . 6 i 7 (DAB)
ORDER

ROYAL BANK OF SCOTLAN GROUP PLC, THOMAS FULTON WILSON McKILLOP, FREDERICK ANERSON GOODWIN, GORDON FRACIS PELL, GUY R. WHITTAKER, COLIN BUCHAN, JAMES M. CURRIE, LAWRENCE KINGSBAKER FISH, WILLIAM
1

M. FREIDRICH, ARCHIBALD SINCLAIR HUNTER, CHARLES JOHN KOCH, JANIS C. KONG, JOSEPH PATRICK MACHALE, STEVE ROBSON, ROBERT AVISSON SCOTT, PETER D. SUTHERLAN, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, GREENWICH CAPITAL MARKETS, INC., MORGAN STANLEY & CO. INCORPORATED, UBS SECURITIES LLC, WACHOVIA CAPITAL MARKETS, LLC, BANC OF AMERICA SECURITIES LLC, and RBC DAIN RAUSCHER INC.,

Al i Others Similarly Situated,
- against-

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x NATALIE GORDON, on Behalf of Herself and

Defendants.

Plaintiff,
09 Civ. 704 (DAB) ORDER

THE ROYAL BAN OF SCOTLAN GROUP PLC, THE ROYAL BANK OF SCOTLAN PLC, SIR
THOMAS McKILLOP, SIR FREDERICK A. GOODWIN, LAWRENCE K. FI SH, GORDON F. PELL, GUY R. WHITTAKER, COLIN A.M. BUCHAN, JAMES CURRIE, SIR STEPHEN A. ROBSON, ROBERT A. SCOTT, PETER D. SUTHERLAN, ARCHIBALD HUNTER, CHARLES J. KOCH, JOSEPH P. MacHALE, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, GREENWICH CAPITAL MARKETS, INC., WACHOVIA CAPITAL MARKETS, LLC, MORGAN STANLEY & CO. INCORPORATED, UBS SECURITIES LLC, BANC OF AMRICA SECURITIES LLC, and RBC CAPITAL MARKETS CORPORATION,

All Others Similarly Situated,
- against-

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x FERDINAN LEVY, on Behalf of Himself and

Defendants.

Plaintiff,
o 9 C i v . 85 6 (DAB)
ORDER

THE ROYAL BAN OF SCOTLAN GROUP PLC,
2

THE ROYAL BAN OF SCOTLA PLC, SIR
THOMAS FULTON WILSON McKILLOP, SIR FREDERICK ANERSON GOODWIN, GUY ROBERT WHITTAKER, LAWRENCE KINDSBAKER FISH,

GORDON FRACIS PELL, COLIN ALEXAER
MASON BUCHA, JAMES McGILL CURRIE, SIR STEPHEN ARTHUR ROBSON, ROBERT AVISSON SCOTT, PETER DENIS SUTHERLA, ARCHIBALD HUNER, CHARLES JOHN KOCH, JOSEPH PATRICK MacHALE, GREENWICH CAPITAL MARKETS, INC., WACHOVIA CAPITAL MARKETS, LLC, MORGAN STANLEY & CO. INCORPORATED, UBS SECURITIES LLC, BANC OF AMERICA SECURITIES LLC, and RBC DAIN RAUSCHER INC.,

All Others Similarly Situated,
-against-

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x JEFFREY WACKSMA, on Behalf of Himself and

Defendants.

Plaintiff,
o 9 C i v . 8 57 (DAB)
ORDER

THE ROYAL BAN OF SCOTLA GROUP PLC, THE ROYAL BAN OF SCOTLA PLC, SIR
THOMAS FULTON WILSON McKILLOP, SIR FREDERICK ANERSON GOODWIN, GUY ROBERT WHITTAKER, LAWRENCE KINDSBAKER FISH, GORDON FRACIS PELL, COLIN

ALEXAER MASON BUCHA, JAMES McGILL
CURRIE, SIR STEPHEN ARTHUR ROBSON, ROBERT AVISSON SCOTT, PETER DENIS

SUTHERLA, ARCHIBALD HUNER, CHARLES
JOHN KOCH, JOSEPH PATRICK MacHALE, GREENWICH CAPITAL MARKETS, INC., WACHOVIA CAPITAL MARKETS, LLC, MORGAN STANLEY & CO. INCORPORATED, UBS SECURITIES LLC, BANC OF AMERICA SECURITIES LLC, and RBC DAIN RAUSCHER, INC.,

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

Defendants.

3

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x
GARY KOSSOFF, Individually and On Behalf of All Others Similarly Situated,

Plaintiff,
- againstROYAL BANK OF SCOTLAN GROUP PLC, FREDERICK ANERSON GOODWIN, GORDON FRACIS PELL, GUY R. WHITTAKER, COLIN BUCHAN, ARCHIBALD SINCLAIR HUNER, JOSEPH PATRICK MACHALE, STEVE ROBSON, ROBERT AVISSON SCOTT, PETER D.
09 Civ. 890 (DAB) ORDER

SUTHERLAN, MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED, GREENWICH CAPITAL MARKETS, INC., MORGAN STANLEY & CO. INCORPORATED, UBS SECURITIES LLC, WACHOVIA CAPITAL MARKETS, LLC, BANC OF AMERICA SECURITIES LLC, and CITIGROUP GLOBAL MARKETS, INC., and RBC DAIN RAUSCHER, INC.,

All Others Similarly Situated,
-against-

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x KENNETH BROWN, Individually And On Behalf of

Defendants.

Plaintiff,
09 Ci v. 1096 (DAB) ORDER

THE ROYAL BAN OF SCOTLA GROUP PLC,
THOMAS FULTON WILSON MCKILLOP, FREDERICK ANERSON GOODWIN, GUY ROBERT WHITTAKER, LAWRENCE KINGSBAKER FISH, GORDON FRACIS PELL, COLIN

ALEXAER MASON BUCHA, JAMS MCGILL
CURRIE, STEPHEN ARTHUR ROBSON, ROBERT AVISSON SCOTT, PETER DENIS SUTHERLAN, ARCHIBALD HUNER, CHARLES JOHN KOCH, JOSEPH PATRICK MACHALE, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, GREENWICH CAPITAL MARKETS, INC., WACHOVIA CAPITAL MARKETS, LLC, MORGAN STANLEY & CO. INCORPORATED, UBS SECURITIES
4

LLC, BANC OF AMERICA SECURITIES LLC, and RBC CAPITAL MARKETS CORP. F /K/A RBC DAIN RAUSCHER, INC.,

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x
BARBARA FITTER (BENEFICIARY OF ILSE O. MARKS IRA), Individually and On Behalf of All Others Similarly Situated

Defendants.

Plaintiff,
-againstTHE ROYAL BANK OF SCOTLA GROUP PLC, THE ROYAL BANK OF SCOTLA PLC, SIR GEORGE ROSS MATHEWSON, SIR THOMAS FULTON WILSON McKILLOP, SIR FREDERICK ANERSON GOODWIN, GUY ROBERT BAKER FISH,
WHITTAKER, LAWRENCE KINGS GORDON FRAC

09 Ci v. 1650 (DAB) ORDER

I SPELL, COLIN ALEXAER

MASON BUCHA, JAMS McGILL CURRIE, SIR
STEPHEN ARTHUR ROBSON, ROBERT AVISSON SCOTT, PETER DENIS SUTHERLA, ARCHIBALD HUNER, CHARLES JOHN KOCH, JOSEPH PATRICK MacHALE, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, GREENWICH CAPITAL MARKETS, INC., CITIGROUP GLOBAL
MARKETS, INC., MORGAN STANLEY & CO. INCORPORATED, UBS SECURITIES LLC, WACHOVIA CAPITAL MARKETS, LLC, BANC OF AMERICA SECURITIES LLC, A. G. EDWARDS & SONS, INC., and RBC DAIN RAUSCHER, INC.,

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x
TROY RAYNOR, Individually and on Behalf of All Others Similarly Situated

Defendants.

Plaintiff,
- againstTHE ROYAL BANK OF SCOTLA GROUP PLC, THE ROYAL BANK OF SCOTLA PLC, THOMAS
5

09 Ci v. 1854 (DAB) ORDER

FULTON WILSON McKILLOP, FREDERICK ANERSON GOODWIN, GUY ROBERT WHITTAKER, LAWRENCE KINGSBAKER FISH, GORDON FRACIS PELL,

COLIN ALEXAER MASON BUCHA, JAMES
McGILL CURRIE, STEPHEN ARTHUR ROBSON, ROBERT AVISSON SCOTT, PETER DENIS SUTHERLAN, ARCHIBALD HUNTER, CHARLES JOHN KOCH, JOSEPH PATRICK MACHALE, JOHNN CAMERON, MARK ANREW FISHER, JANIS CAROL KONG, MERRILL LYNCH, PIERCE, FENNER & SMITH INC., GREENWICH CAPITAL MARKETS, INC., WACHOVIA CAPITAL MARKETS, LLC, MORGAN STANLEY & CO. INC., UBS SECURITIES LLC, BANC OF AMERICA SECURITIES LLC, and RBC CAPITAL MARKETS
CORPORATION,

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x
SAM G. LINDSAY, TRUSTEE OF THE LINDSAY FAMILY TRUST DATED 8/26/05, Individually and on

Defendants.

Behalf of All Others Similarly Situated,

Plaintiff,
- against09 Civ. 2325 (DAB) ORDER

THE ROYAL BANK OF SCOTLAN GROUP PLC, THE ROYAL BANK OF SCOTLAN PLC, THOMAS FULTON WILSON McKILLOP, FREDERICK ANERSON GOODWIN, GUY ROBERT WHITTAKER, LAWRENCE KINGSBAKER FISH, GORDON FRACIS PELL, COLIN ALEXAER MASON BUCHA, JAMES McGILL CURRIE, STEPHEN ARTHUR ROBSON, ROBERT AVISSON SCOTT, PETER DENIS SUTHERLAN, ARCHIBALD HUNTER, CHARLES JOHN KOCH, JOSEPH PATRICK MACHALE, JOHNN CAMERON, MARK ANREW FISHER,
JANIS CAROL KONG, MERRILL LYNCH, PIERCE, FENNER & SMITH INC., GREENWICH CAPITAL MARKETS, INC., WACHOVIA CAPITAL MARKETS, LLC, MORGAN STANLEY & CO. INC., UBS SECURITIES LLC, BANC OF AMERICA SECURITIES LLC, and RBC CAPITAL MARKETS CORPORATION,

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x
6

Defendants.

DEBORA A. BATTS, United States District Judge.

A Complaint was filed under docket numer 09 Civ. 300 by
Edward P. Zemprelli on January 12, 2009, alleging violations of

the Securities Act of 1933 against the Royal Bank of Scotland

Group pIc ("RBS"), its directors, and the investment banks which
underwrote a June 2007 initial public offering of the Company's 38-million Non-cumulative Dollar Preference Shares, Series S

("the Offering"). Subsequently, nine other related actions
(captioned above) were filed against similar Defendants, making

similar allegations. Three of those Complaints also alleged
violations of the Exchange Act of 1934 on behalf of purchasers of

any shares of publicly traded RBS securities. (Brown Compl., 09
civ. 1096, at ~ 1; Raynor Compl., 09 Civ. 1854, at ~ 3; Lindsay
Compl ., 09 C i v. 2325 , a t ~ 4.)

For example, the Complaint of Sam

G. Lindsay asserted claims "on behalf of all persons who

purchased of otherwise acquired any of the publicly traded
securities of RBS from June 26, 2007 through and including
January 19, 2009."
(Lindsay Compl., 09 Civ. 2325, at ~ 4.)

Rule 42 of the Federal Rules of Civil Procedure states that,

"If actions before the court involve a common question of law or
fact, the court may... (2) consolidate the actions; or (3) issue

any other orders to avoid unnecessary cost or delay." Fed. R.
Civ. P. 42.

The Court finds that the each of the actions
7

captioned above involve common questions of law and fact making
consolidation appropriate to promote judicial efficiency and to

avoid unnecessary cost and delay.
The Court received motions for appointment of lead plaintiff
and selection of lead counsel from eight different individuals
and groups: Stichting Bedri j fstakpensioenfonds Voor De

Metalektro, Wirral MBC ("European Funds"), Sam G. Lindsay, the
"Freeman Group" (Jay Freeman, Ravi Srinavasan, Sheldon Cantor,

Heff Hathorn, and Michael Mancini), the "State Funds"
(Massachusetts Pension Reserves Investment Management Board and

the Mississippi Public Employee's Retirement System), Gary
Kosseff, Michael T. Sullivan, the "Hersh- Schwartz Group" (Irwin

Hersch et al.) and Barbara Fitter (beneficiary of Ilse O. Marks

IRA). Of those seeking appointment as lead counsel, some but not
aii of the applicants have asserted claims solely under the
Securities Act of 1933, and some but not all have asserted claims

under both the Securities Act of 1933 and the Exchange Act of

1934.
The State Funds have the largest financial stake in the
Ii tigation, alleging losses as high as $123,090,077.35. The State Funds have alleged ownership in RBS common stock and Series

U stock, but their moving papers did not differentiate losses
attributable to their holdings of common stock from losses
8

attributable to preferred shares. Further, the State Funds have
alleged claims under both the Securities Act and the Exchange

Act.
On the other hand, the Freeman Group has alleged losses

totaling $444,716.00. Their Group consists of individuals who

held preferred shares from each of Series Q, R, S, and T. Their
group alleges violations of the Securities Act only. They argue
that "(aJ lthough the individual actions should be consolidated,

differences between the securities purchased and claims asserted
to Securities Act Class and the Exchange Act Class, as well as inherent conflicts between the classes, mandate that each class
have separate representation."
5. )
(Freeman Group, Joint Resp., at

Having considered each of the applications, the Court

determines:
1. The following actions are HEREBY consolidated for all

purposes:
EDWARD P. ZEMPRELLI v. ROYAL BAN OF SCOTLAN GROUP PLC, et
al. 09 Civ. 300 (DAB)

HAROLD H. POWELL TRUST U/A DATED DECEMBER 21, 1988 v. ROYAL BAN OF SCOTLAN GROUP PLC, et al. 09 Civ. 617 (DAB)

NATALIE GORDON v. ROYAL BANK OF SCOTLA GROUP PLC, et al.
09 C i v. 7 04 (DAB)

FERDINAN LEVY v. ROYAL BAN OF SCOTLA GROUP PLC, et al.
09 Civ. 856 (DAB)
9

JEFFREY WACKSMA v. ROYAL BANK OF SCOTLAN GROUP PLC, et al.
09 Civ. 857 (DAB)

GARY KOSSOFF v. ROYAL BANK OF SCOTLAN GROUP PLC, et al. 09 C i v . 890 (DAB)

KENNETH BROWN v. ROYAL BANK OF SCOTLAN GROUP PLC, et al. 09
Ci v. 1096 (DAB)

BARBAR FITTER (BENEFICIARY OF ILSE O. MARKS IRA) v. ROYAL

BAN OF SCOTLAN GROUP PLC, et al. 09 Ci v. 1650 (DAB)
TROY RAYNOR v . ROYAL BANK OF SCOTLA GROUP PLC, e t al. 09
Ci v. 1854 (DAB)

SAM G. LINDSAY, Trustee of the Lindsay Family Trust dated 8/26/05 v. ROYAL BAN OF SCOTLAN GROUP PLC, et al. 09 Civ.
2325 (DAB)

The caption of these consolidated actions shall be "In re Royal
Bank of Scotland Group pIc Securities Litigation" and the files

of these consolidated actions shall be maintained under Master

Docket Numer 09 Civ. 300 (DAB) .
2. The Freeman Group SHALL BE APPOINTED Co-Lead Plaintiff on

behalf of the putative class of Plaintiffs who purchased
preferred shares in Defendant RBS ("the Preferred Share Group") .

3. The State Funds SHALL BE APPOINTED Co-Lead Plaintiff on

behalf of the putative class of Plaintiffs who owned common
shares in Defendant RBS ("the Common Share Group") .

4. Nothing in this Order shall be construed as a

determination for the purposes of class action certification

pursuant to Rule 23. The Court may re-consider the decision to

10

appoint co-Lead Plaintiffs at a later time.

5. The Freeman Group's selection of Girard Gibbs LLP as Lead
Counsel is APPROVED for the Preferred Share Group.

6. The state Funds's selection of Cohen Milstein Sellers &

Toll PLLC, Labaton Sucharow LLP, and Wolf Popper LLP to serve as
Co-Lead Counsel is APPROVED for the Common Share Group.

7. Counsel for the Common Share Group SHALL FILE an AMNDED
COMPLAINT wi thin thirty (30) days of the date of this ORDER which

shall include all claims, including those under the Securities

Act and the Exchange Act. Girard Gibbs LLP SHALL advise and
coordinate with the Common Share Group attorneys on the creation
of the Amended Complaint.

8. Going forward, counsel shall coordinate their efforts at
every step in this litigation and avoid duplicative costs and

fees.
SO ORDERED.

Dated:

New York, New York

~ S; UV1-

f)~ a.&A
Deborah A. Batts United States District

11

DECLARATION OF SERVICE I am an attorney admitted to practice in this district. I hereby certify, under penalty of perjury, that on this 21st day of May, 2009, I caused a true and correct copy of the foregoing document to be served on the persons listed below: 1) through this court's ECF system, 2) by e-mail, and/or 3) by mail, postage prepaid: ERNST & YOUNG GLOBAL LIMITED Becket House, 1 Lambeth Palace Rd. London SE1 7EU, United Kingdom ERNST & YOUNG S.A. 7 Pare d'Activite Syrdall Munsbach L5365 Luxembourg Jules Brody ([e-mail]) Patrick Kevin Slyne STULL, STULL & BRODY 6 East 45th Street New York, NY 10017 Robert S. Schachter ([e-mail]) ZWERLING, SCHACHTER & ZWERLING 41 Madison Avenue New York, NY 10010 William P. Hammer, Esq. ERNST & YOUNG LLP 5 Times Square, 36th Floor New York, New York 10036-6530 Lawrence J. Zweifach, Esq. GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue New York, NY 10166-0193 Timothy Joseph Burke ([e-mail]) STULL, STULL & BRODY 10940 Wilshire Blvd., Suite 2300 Los Angeles, CA 90024 Catherine A. Torell, Esq. ([e-mail]) COHEN, MILSTEIN, SELLERS & TOLL, P.L.L.C. 150 East 52nd Street 30th Floor New York, NY 10022 Samuel Howard Rudman ([e-mail]) COUGHLIN STOIA GELLER RUDMAN & ROBBINS, LLP 58 South Service Road Suite 200 Melville, NY 11747 GENEVALOR, BENBASSAT & CIE 7, rue Versonnex CH-1207 Geneva Switzerland

Steven J. Toll, Esq. Daniel S. Sommers, Esq. COHEN, MILSTEIN, SELLERS & TOLL, P.L.L.C. 1100 New York Avenue, N.W. Suite 500, West Tower Washington, DC 20005 Jacob Sabo, Esq. The Tower # 3 Daniel Frisch St. Tel Aviv, Israel

STEPHANE BENBASSAT 7, rue Versonnex CH-1207 Geneva Switzerland FRIEHLING & HOROWITZ 4 High Tor Rd. New City, NY 10956

ALBERTO BENBASSAT 7, rue Versonnex CH-1207 Geneva Switzerland Susan L. Saltzstein ([e-mail]) William J. O'Brien ([e-mail]) SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Times Square New York, New York 10036-6522 Attorneys for Defendant Pioneer Alternative Investment Management Limited BANK MEDICI S.A. Operngasse 6/4 Vienna, 1010 Austria SONJA KOHN Operngasse 6/4 Vienna, 1010 Austria HERALD FUND SPC Operngasse 6/4 Vienna, 1010 Austria HERALD USA FUND Operngasse 6/4 Vienna, 1010 Austria WERNER TRIPOLT Operngasse 6/4 Vienna, 1010 Austria

BERNARD L. MADOFF 885 Third Avenue New York, New York 10022 BANK MEDICI AG Operngasse 6/4 Vienna, 1010 Austria PETER SCHEITHAUER Operngasse 6/4 Vienna, 1010 Austria HERALD FUND SPC PO Box 30B Ufllend Heues Oranti Cayman Kri 1104 HERALD LUXEMBURG FUND Operngasse 6/4 Vienna, 1010 Austria

JOHN HOLLIWELL Operngasse 6/4 Vienna, 1010 Austria BANK AUSTRIA CREDITANSTALT 1010 Wien, Schottengasse 6-8 A-1010 Vienna Austria ALFRED SIMON 13 Rue Goethe, B P 413 L-2014 Luxembourg JOHANNES P. SPALEK 13 Rue Goethe, B P 413 L-2014 Luxembourg JAMES E. O'NEILL 13 Rue Goethe, B P 413 L-2014 Luxembourg DECLAN MURRAY 13 Rue Goethe, B P 413 L-2014 Luxembourg MICHAEL WHEATON 13 Rue Goethe, B P 413 L-2014 Luxembourg PRIMEO EXECUTIVE FUND 13 Rue Goethe, B P 413 L-2014 Luxembourg FRIEDRICH PFEFFER WFE-Consulting Fuhrenweg 27 D-31515 Wunstorf Germany

HELMUTH E. FREY Operngasse 6/4 Vienna, 1010 Austria UNICREDIT S.A. Piazza Cordusio 20123 Milan Italy KARL E. KANIAK 13 Rue Goethe, B P 413 L-2014 Luxembourg NIGEL H. FIELDING 13 Rue Goethe, B P 413 L-2014 Luxembourg ALBERTO LA ROCCA 13 Rue Goethe, B P 413 L-2014 Luxembourg URSULA RADEL-LESZCZYNSKI 13 Rue Goethe, B P 413 L-2014 Luxembourg PRIMEO SELECT FUND 13 Rue Goethe, B P 413 L-2014 Luxembourg THEMA INTERNATIONAL FUND PLC 3 George's Dock IFSC Dublin 1 Ireland FRANCO MUGNAI Via Leone XIII_n.27 1-20145 Milan Italy

DAVID T. SMITH c/o Equus Asset Management Partners Bermudiana Arcade 27 Queen Street Hamilton HM 11 Bermuda DANIEL MORRISSEY William Fry Solicitors Fitzwilton House Wilton Place Dublin 2 Ireland HSBC SECURITIES SERVICES, S.A. c/o Chris Wilcockson Managing Director, HSS 40 Avenue Monterey B.P. 413, L-2014 Luxembourg HSBC INSTITUTIONAL TRUST SERVICES (IRELAND) LIMITED c/o Ronnie Griffin 1 Grand Canal Square Grand Canal Harbour Dublin 2 Ireland PRICE WATERHOUSECOOPERS, CHARTERED ACCOUNTANTS One Spencer Dock North Wall Quay Dublin 1 Ireland PIONEER ALTERNATIVE INVESTMENTS 1 George's Quay Plaza George's Quay Dublin 2 Ireland

GERALD J. P. BRADY Birch Hollow Upper Kilmacud Road Dundrum Dublin 14 Ireland HSBC HOLDINGS PLC c/o Chris Wilcockson Managing Director, HSS 40 Avenue Monterey B.P. 413, L-2014 Luxembourg HSBC SECURITIES SERVICES (LUXEMBURG) S.A. 40 Avenue Monterey P.O. Box 413, L-2014 Luxembourg HSBC SECURITIES SERVICES (IRELAND) LIMITED c/o Rosemary Leahy 1 Grand Canal Square Grand Canal Harbour Dublin 2 Ireland PRICEWATERHOUSECOOPERS INTERNATIONAL LIMITED 1 Embankment Place London WC2N 6RH United Kingdom BA WORLDWIDE FUND MANAGEMENT, LTD c/o HWR Services P.O. Box 71 Road Town Tortola B.V.I.

BA WORLDWIDE MANAGEMENT LTD c/o HWR Services P.O. Box 71 Road Town Tortola B.V.I. HANNES SALETA c/o HWR Services P.O. Box 71 Road Town Tortola B.V.I. BANK OF BERMUDA (LUXEMBOURG) S.A. 6 Front St. Hamilton, HM 11 Bermuda BANK OF BERMUDA P.O. Box 513 GT HSBC House 68 West Bay Road Grand Cayman Cayman Islands PRIMEO FUND c/o BANK OF BERMUDA (CAYMAN) LIMITED P.O. Box 513 GT HSBC House 68 West Bay Road Grand Cayman Cayman Islands

HERALD C. NOGRASEK c/o HWR Services P.O. Box 71 Road Town Tortola B.V.I. NICOLA A. CORSETTI c/o HWR Services P.O. Box 71 Road Town Tortola B.V.I. BANK OF BERMUDA (LUXEMBOURG) S.A. 13 rue Goethe L-1637 Luxembourg BANK OF BERMUDA (CAYMAN) LIMITED P.O. Box 513 GT HSBC House 68 West Bay Road Grand Cayman Cayman Islands

_______________S/_________________ Thomas J. Kennedy (TK-9989)