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Apr.30. 20 12 2: 14PM

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Case 1:09-cv-00808-PKC Document 149 Filed 04/30/12 Page 1 of 3
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20th Floor
New York. NY 10016

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Fax: (212)-986-4501
[email protected]

April 30, 2012

VIA FACSIMILE
Hon. P. Kevin Castel
United States District Judge
Daniel Patrick Moynihan
United States Courthouse
500 Pearl St.

New York, NY 10007·1312


MEMO ENDORSED

RE:

In Re: Bank OfAmerica Corp. Securities, Derivative, And Employee
Retirement Income Security Act (ERISA) Litigation, 09-CV-00808 (PKC);

In re Bank 0/America Corporation Stockholder Derivative Litigation.,
C.A. No. 4307-CS (DeL Ch. Ct)

Dear Judge Castel:

We are court-appointed co-lead counsel in In re Bank ofAmerica Corporal/on

Stockholder Derivative Litigation, C.A. No. 4307-CS (DeL Ch. Ct) (the "Delaware
Derivative Action"). Pursuant to the Order to Show Cause entered by this Court on April
13, 2012, the Delaware Derivative Plaintiffs will file their Reply in Further Support of
Petition for an Order To Show Cause (the "Petition") on May 4, 2012. The Reply Brief
will refer to a limited number ofevidentiary materials that the Delaware Derivative
Plaintiffs believe to be material to their Petition, i.e., "judicial documents," under
Lugosch v. Pyramid, 435 F3d 110, (2nd Cir. 2006) ("Lugosch"). However, these judicial
documents have been produced and designated "confidential discovery material" by
Defendant Bank of America Corp., in both of the above-referenced actions.'

1 See, e.g., Stipulations and Orders Governing the Production and Exchange of
Confidential Material~ entered in in In Re: Bank OfAmerica Corp. Securities, Derivative,
And Employee Retirement Income Security Act (ERISA) Litigation (the "S.D.N.Y.
Actions") on January 20. 2010, and entered in the Delaware Derivative Action on
December 21,2009. Furthermore, any confidential discovery material that was originally
unique to the Delaware Derivative Action, such as transcripts of deposition testimony
taken by the Delaware Plaintiffs, has now also been produced by Defendants to the
plaintiffs in the S.D.N.Y. Actions.

~,pr, 30, 2012

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No,4968
Case 1:09-cv-00808-PKC Document 149 Filed 04/30/12 Page 2 of 3

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HORWITZ. HORWITZ & PARADIS


Hon. P. Kevin Castel
Apri130,2012
Page 2

Plaintiffs do not believe the judicial documents they will refer to in their Reply

Brief raise issues of "higher values" under Lugosch 2 and therefore must be publicly filed
for the Court to consider them. Nevertheless, Plaintiffs believe that Defendants should be
afforded the opportunity to review Plaintiffs' Reply Brief to detennine whether
Defendants see a need to file an application pursuant to Lugosch. See Equal Employment
Opportunity Commission v. Kelly Drye & Warren LLP., No. 10 civ. 655 (LTS), 2012
U.S. Dist. LEXIS 28724, at "'4 (S.D.N.V. Mar. 2,2012), citing DiRussa v. Dean Witter
Reynolds /nc., 121 F.3d 818, 826 (2d Cir. 1997) (the party seeking to maintainjudiciai
documents under seal bears the burden of showing the higher values overcome the
presumption of public access).

The parties have met and conferred and have been unable to agree upon a method

for the Court to consider judicial documents in connection with the Petition without the
public filing of the judicial documents. Plaintiffs sent a draft of this letter to Defendants
at noon on Friday, April 27, 2012, seeking their consent to the proposal below. Plaintiffs
have not received a response.

Therefore, Plaintiffs respectfully propose that the following will ensure

compliance with Lugosch, afford Defendants the opportunity to demonstrate "higher
values" and enable the Court to consider judicial documents material to the Petition (see
Endorsed Letter, So Ordered April18~ 2012):

1.

2.

Delaware Derivative Plaintiffs serve redacted and uruedacted versions
of the Reply Brief and supporting papers on May 4,2012;

Delaware Derivative Plaintiffs provide your Honor's Chambers
redacted and unredacted versions of the Reply Brief and supporting
papers on May 4, 2012;

,

2 Confidentiality orders do not bear on the presumption favoring disclosure under
Lugosch, as confidentiality orders issued for discovery purposes should not interfere with
the presumption of public access to judicial documents. See Cohen v. Gerson Lehrman
Group, Inc., 09 Civ. 4352 (PKC), 2011 U.S. Dist. LEXIS 104510, at "'3 (S.D.N.Y. Sept.
15~ 2011).

Apr,30, 2012

2: 15 DM

No,4968
Case 1:09-cv-00808-PKC Document 149 Filed 04/30/12 Page 3 of 3

p, 4

HORWITZ. HORWITZ & PARADIS


Han. p, Kevin Castel
April 30,2012
Page 3

3.

4.

Delaware Derivative Plaintiffs file with the Clerk of the Court a
redacted version of the Reply Brief and supporting papers on May 4~
2012, pending any potential Lugosch application made by Defendants,
and a subsequent ruling on any such motion; and

Defendants be directed to file any application under Lugosch within five
days of service of the Delaware Derivative Plaintiffs' Reply Brief and
supporting papers. The Delaware Derivative Plaintiffs do not intend to
oppose any Lugosch application.

cc: Mitchell Lowentlial, E

. ( a e

ail)

Lawrence Portnoy, Esq. (v'
Lewis S. Kalm, Esq. (. mail)
Joseph E. White, Esq. (via email)
Curtis V. Trinka, Esq. (via email)
Steven B. Singer~ Esq. (via email)
David Kessler, Esq. (via email)
Frederic S. Fox, Esq. (via email)