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Case 1:11-cv-00733-WHP Document 15 Filed 04/04/11 Page 1 of 12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK





PIPEFITTERS LOCAL NO. 636 DEFINED
BENEFIT PLAN, Individually and on Behalf
of All Others Similarly Situated,

Plaintiff,

vs.

BANK OF AMERICA CORPORATION, et
al.,

Defendants.


PATRICIA GROSSBERG LIVING TRUST,
Individually and on Behalf of All Other
Similarly Situated Stockholders,

Plaintiff,

vs.

BANK OF AMERICA CORPORATION, et
al.,



Defendants.

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Civil Action No. 1:11-cv-00733-WHP

CLASS ACTION

Civil Action No. 1:11-cv-01982-AKH

CLASS ACTION

[Caption continued on following page.]


MEMORANDUM OF LAW IN SUPPORT OF THE MOTION OF PIPEFITTERS LOCAL NO.

636 DEFINED BENEFIT PLAN FOR CONSOLIDATION, APPOINTMENT AS LEAD

PLAINTIFF AND APPROVAL OF SELECTION OF LEAD COUNSEL





Case 1:11-cv-00733-WHP Document 15 Filed 04/04/11 Page 2 of 12





ANCHORAGE POLICE & FIRE
RETIREMENT SYSTEM, Individually and on
Behalf of All Others Similarly Situated,

Plaintiff,

vs.

BANK OF AMERICA CORPORATION, et
al.,

Defendants.







Civil Action No. 1:11-cv-02216

CLASS ACTION



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Case 1:11-cv-00733-WHP Document 15 Filed 04/04/11 Page 3 of 12

I.

PRELIMINARY STATEMENT

Presently pending before this Court are at least three-related securities class action lawsuits

(the “Actions”), brought on behalf of all purchasers of the publicly-traded securities of Bank of

America Corporation (“BofA” or the “Company”) between July 23, 2009 and October 19, 2010,

inclusive (the “Class Period”).1 The Actions allege violations of Sections 10(b) and 20(a) of the

Securities Exchange Act of 1934 (“the Exchange Act”), as amended by the Private Securities

Litigation Reform Act of 1995 (“PSLRA”) (15 U.S.C. §78u-4, et seq.) and the Securities and

Exchange Commission (“SEC”) Rule 10b-5 promulgated thereunder (17 C.F.R. §240.10b-5).

Pipefitters Local No. 636 Defined Benefit Plan (“Pipefitters 636”) hereby moves this Court

for an Order to: (i) consolidate the Actions; (ii) appoint Pipefitters 636 as Lead Plaintiff in the

Actions under Section 21D(a)(3)(B) of the Exchange Act; and (iii) approve Pipefitters 636’s

selection of the law firm of Robbins Geller Rudman & Dowd LLP (“Robbins Geller”) to serve as

Lead Counsel.

This motion is made on the grounds that Pipefitters 636 is the most adequate plaintiff, as

defined by the PSLRA. Pipefitters 636 is precisely the type of institutional investor that Congress

sought to summon and empower when it enacted the PSLRA. See Ferrari v. Impath, Inc., No. 03

Civ. 5667 (DAB), 2004 U.S. Dist. LEXIS 13898, at *10 (S.D.N.Y. July 20, 2004) (holding that the

purpose behind the PSLRA is best achieved by encouraging institutional investors to serve as lead

plaintiffs). Moreover, as an institutional investor, Pipefitters 636 is accustomed to acting as a

fiduciary and its experience in legal and financial matters will substantially benefit the class.



While the class period alleged in the initial complaint commenced on January 20, 2010, a

1
subsequently-filed related complaint starts the class period on July 23, 2009.

Case 1:11-cv-00733-WHP Document 15 Filed 04/04/11 Page 4 of 12



During the Class Period, Pipefitters 636 incurred a substantial $131,368.80 loss on its

transactions in BofA common stock. See Rosenfeld Decl., Ex. B.2 In addition, Pipefitters 636, for

the purposes of this motion, adequately satisfies the requirements of Rule 23 of the Federal Rules of

Civil Procedure in that its claims are typical of the claims of the putative class and that it will fairly

and adequately represent the interests of the class.

II.

FACTUAL BACKGROUND3

BofA is a bank holding company and a financial holding company. The Company is a

financial institution, serving individual consumers, small and middle market businesses, large

corporations and governments with a range of banking, investing, asset management and other

financial and risk management products and services.

The complaint alleges that, throughout the Class Period, defendants issued materially false

and misleading statements regarding the Company’s business and financial results. Specifically,

defendants failed to disclose that: (i) BofA did not have adequate personnel to process the huge

numbers of foreclosed loans in its portfolio; (ii) BofA had not properly recorded many of its

mortgages when originated or acquired, which would severely complicate the foreclosure process if

it became necessary; (iii) defendants failed to maintain proper internal controls related to processing

of foreclosures; (iv) BofA’s failure to properly process both mortgages and foreclosures would

impair the ability of BofA to dispose of bad loans; and (v) BofA had engaged in a practice known



References to the “Rosenfeld Decl., Ex. __” are to the exhibits attached to the accompanying

2
Declaration of David A. Rosenfeld, dated April 4, 2011 and submitted herewith.

3
These facts are drawn from the allegations in the action entitled Pipefitters Local No. 636
Defined Benefit Plan v. Bank of America Corporation, et al., Civil Action No. 1:11-cv-00733-WHP
(the “Pipefitters 636 Action”).

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Case 1:11-cv-00733-WHP Document 15 Filed 04/04/11 Page 5 of 12



internally as “dollar rolling” to remove billions of dollars of debt from its balance sheet over the

prior years.

Beginning in May 2010, BofA began disclosing aspects of its “repo-to-maturity” transactions

(dollar rolling), claiming the transactions did not have a material impact on BofA’s balance sheet.

Later, in October 2010, BofA announced a nationwide foreclosure halt pending a review of its

foreclosure processes and whether there were irregularities with respect to its previously completed

foreclosure activities. Then, on October 19, 2010, BofA announced its third quarter 2010 financial

results, reporting a net loss of $7.3 billion and a diluted earnings per share loss of $0.77. BofA

further reported receiving $18 billion in claims about faulty home loans that it may have to

repurchase. On this news, BofA stock dropped $0.54 per share, to close at $11.80 per share on

October 19, 2010 – a one-day decline of 5% and a nearly 42% decline from the stock’s Class Period

high.

III. ARGUMENT

A.

The Actions Should Be Consolidated for All Purposes

The Actions each assert class claims on behalf of the purchasers of BofA securities for

alleged violations of the Exchange Act during similar time periods. The Actions name similar

defendants and involve the same factual and legal issues. They are each brought by investors who

purchased BofA securities during the relevant time period in reliance on the integrity of the market

for such securities and were injured by the fraud on the market that was perpetrated through the

issuance of materially false and misleading statements and concealment of material information, thus

artificially inflating the prices of BofA securities at all relevant times. Consolidation is appropriate

where there are actions involving common questions of law or fact. See Fed. R. Civ. P. 42 (a); see

also Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (2d Cir. 1990). That test is met here and,

accordingly, the Actions should be consolidated.

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Case 1:11-cv-00733-WHP Document 15 Filed 04/04/11 Page 6 of 12



B.

Pipefitters 636 Should Be Appointed Lead Plaintiff

1.

The Procedure Required By the PSLRA

The PSLRA has established a procedure that governs the appointment of a lead plaintiff in

“each private action arising under the [Exchange Act] that is brought as a plaintiff class action

pursuant to the Federal Rules of Civil Procedure.” 15 U.S.C. §78u-4(a)(1) and (a)(3)(B)(i).

First, the plaintiff who files the initial action must publish a notice to the class, within 20

days of filing the action, informing class members of their right to file a motion for appointment as

lead plaintiff. See 15 U.S.C. §78u-4(a)(3)(A)(i). Plaintiff in the Pipefitters 636 Action caused the

first notice regarding the pendency of the Actions to be published on Business Wire, a national,

business oriented newswire service, on February 2, 2011. See Rosenfeld Decl., Ex. A. Within 60

days after publication of the notice, any person or group of persons who are members of the

proposed class may apply to the Court to be appointed as lead plaintiff, whether or not they have

previously filed a complaint in the action. See 15 U.S.C. §§78u-4(a)(3)(A) and (B).

Second, the PSLRA provides that, within 90 days after publication of the notice, the Court

shall consider any motion made by a class member and shall appoint as lead plaintiff the member or

members of the class who the Court determines to be most capable of adequately representing the

interests of class members. See 15 U.S.C. §78u-4(a)(3)(B). In determining the “most adequate

plaintiff,” the PSLRA provides that:

[T]he court shall adopt a presumption that the most adequate plaintiff in any private
action arising under this Act is the person or group of persons that

(aa) has either filed the complaint or made a motion in response to a notice. . .

(bb) in the determination of the court, has the largest financial interest in the relief
sought by the class; and

(cc) otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil
Procedure.

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Case 1:11-cv-00733-WHP Document 15 Filed 04/04/11 Page 7 of 12



15 U.S.C. §78u-4(a)(3)(B)(iii). See generally Greebel v. FTP Software, 939 F. Supp. 57, 64 (D.

Mass. 1996).

2.

Pipefitters 636 Satisfies the “Lead Plaintiff” Requirements of
the Exchange Act

a.

Pipefitters 636 Has Complied with the Exchange Act
and Should Be Appointed Lead Plaintiff

The time period in which class members may move to be appointed Lead Plaintiff herein

under 15 U.S.C. §78u-4(a)(3)(A) and (B) expires on April 4, 2011. Pursuant to the provisions of the

PSLRA and within the requisite time frame after publication of the required notice on February 2,

2011, Pipefitters 636 timely moves this Court to be appointed Lead Plaintiff on behalf of all

members of the class.

Pipefitters 636 has duly signed and filed a certification stating that it is willing to serve as a

representative party on behalf of the class. See Exhibit to Complaint filed in Pipefitters 636 Action.

In addition, Pipefitters 636 has selected and retained competent counsel to represent itself and the

class. See Rosenfeld Decl., Ex. C. Accordingly, Pipefitters 636 has satisfied the individual

requirements of 15 U.S.C. §78u4(a)(3)(B) and is entitled to have its application for appointment as

Lead Plaintiff and approval of selection of Lead Counsel as set forth herein, considered and

approved by the Court.

b.

Pipefitters 636 Is Precisely the Type of Lead Plaintiff
Congress Envisioned When it Passed the PSLRA

The Congressional objective in enacting the lead plaintiff provisions was to encourage large,

organized institutional investors to play a more prominent role in securities class actions. See H.R.

Conf. Rep. No. 104-369, at 34 (1995), reprinted in 1995 U.S.C.C.A.N. 679, 733 (“The Conference

Committee believes that increasing the role of institutional investors in class actions will ultimately

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Case 1:11-cv-00733-WHP Document 15 Filed 04/04/11 Page 8 of 12



benefit shareholders and assist courts by improving the quality of representation in securities class

actions.”).

Congress reasoned that increasing the role of institutional investors, which typically have a

large financial stake in the outcome of the litigation, would be beneficial because institutional

investors with a large financial stake are more apt to effectively manage complex securities

litigation. Pipefitters 636, as an institutional investor, is precisely the type of Lead Plaintiff

Congress envisioned when it passed the PSLRA. See id.

c.

Pipefitters 636 Has the Requisite Financial Interest in
the Relief Sought by the Class

During the Class Period, as evidenced by, among other things, its signed certification,

Pipefitters 636 incurred a substantial $131,368.80 loss on its transactions in BofA common stock.

See Rosenfeld Decl., Ex. B. Pipefitters 636 thus has a significant financial interest in this case.

Therefore, Pipefitters 636 satisfies all of the PSLRA’s prerequisites for appointment as Lead

Plaintiff in the Actions and should be appointed Lead Plaintiff pursuant to 15 U.S.C. §78u-

4(a)(3)(B).

d.

Pipefitters 636 Otherwise Satisfies Rule 23

According to 15 U.S.C. §78u-4(a)(3)(B), in addition to possessing the largest financial

interest in the outcome of the litigation, the lead plaintiff must also “otherwise satisf[y] the

requirements of Rule 23 of the Federal Rules of Civil Procedure.” Rule 23(a) provides that a party

may serve as a class representative only if the following four requirements are satisfied: (1) the class

is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact

common to the class; (3) the claims or defenses of the representative parties are typical of the claims

or defenses of the class; and (4) the representative parties will fairly and adequately protect the

interests of the class.

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Case 1:11-cv-00733-WHP Document 15 Filed 04/04/11 Page 9 of 12



Of the four prerequisites to class certification, only two – typicality and adequacy – directly

address the personal characteristics of the class representative. Consequently, in deciding a motion

to serve as lead plaintiff, the Court should limit its inquiry to the typicality and adequacy prongs of

Rule 23(a), and defer examination of the remaining requirements until the lead plaintiff moves for

class certification. See Lax v. First Merchs. Acceptance Corp., No. 97-C-2715, 1997 U.S. Dist.

LEXIS 11866, at *20 (N.D. Ill. Aug. 11, 1997). Pipefitters 636 satisfies both the typicality and

adequacy requirements of Rule 23, thereby justifying its appointment as Lead Plaintiff.

Under Rule 23(a)(3), the claims or defenses of the representative parties must be typical of

those of the class. Typicality exists where the plaintiffs’ claims arise from the same series of events

and are based on the same legal theories as the claims of all the class members. See Rossini v.

Ogilvy & Mather, Inc., 798 F.2d 590, 598 (2d Cir. 1986). Typicality does not require that there be

no factual differences between the class representatives and the class members because it is the

generalized nature of the claims asserted which determines whether the class representatives are

typical. See Sofran v. LaBranche & Co., 220 F.R.D. 398, 402 (S.D.N.Y. 2004) (“The possibility of

factual distinctions between the claims of the named plaintiffs and those of other class members does

not destroy typicality, as similarity of legal theory may control even in the face of differences of

fact”). The requirement that the proposed class representatives’ claims be typical of the claims of

the class does not mean, however, that the claims must be identical. See Ferrari, 2004 U.S. Dist.

LEXIS 13898, at *18.

Pipefitters 636 satisfies this requirement because, just like all other class members, it: (1)

purchased BofA securities during the Class Period; (2) was adversely affected by defendants’ false

and misleading statements; and (3) suffered damages as a result thereof. Thus, Pipefitters 636’s

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Case 1:11-cv-00733-WHP Document 15 Filed 04/04/11 Page 10 of 12



claims are typical of those of other class members since its claims and the claims of other class

members arise out of the same course of events.

Under Rule 23(a)(4), the representative parties must also “fairly and adequately protect the

interests of the class.” The PSLRA directs this Court to limit its inquiry regarding the adequacy of

Pipefitters 636 to represent the class to the existence of any conflicts between the interest of

Pipefitters 636 and the members of the class. The Court must evaluate adequacy of representation

by considering: (i) whether the class representatives’ claims conflict with those of the class; and (ii)

whether class counsel is qualified, experienced, and generally able to conduct the litigation. See In

re Global Crossing Sec. & ERISA Litig., 225 F.R.D. 436, 453 (S.D.N.Y. 2004).

Here, Pipefitters 636 is an adequate representative of the class. As evidenced by the injuries

suffered by Pipefitters 636 and the class, the interests of Pipefitters 636 are clearly aligned with the

members of the class, and there is no evidence of any antagonism between Pipefitters 636’s interests

and those of the other members of the class. Further, Pipefitters 636 has taken significant steps that

demonstrate it will protect the interests of the class: it commenced the first of these related actions

and has retained competent and experienced counsel to prosecute these claims. In addition, as

shown below, Pipefitters 636’s proposed Lead Counsel is highly qualified, experienced and able to

conduct this complex litigation in a professional manner. Thus, Pipefitters 636 prima facie satisfies

the commonality, typicality and adequacy requirements of Rule 23 for the purposes of this motion.

C.

The Court Should Approve Pipefitters 636’s Choice of Counsel

Pursuant to 15 U.S.C. §78u-4(a)(3)(B)(v), the proposed lead plaintiff shall, subject to Court

approval, select and retain counsel to represent the class it seeks to represent. In that regard,

Pipefitters 636 has selected the law firm of Robbins Geller as Lead Counsel. Robbins Geller has

substantial experience in the prosecution of shareholder and securities class actions, including

serving as lead counsel in In re Enron Corp. Securities Litigation, No. H-01-3624 (S.D. Tex.), in

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which Robbins Geller achieved the largest recovery ever obtained in a shareholder class action. See

Rosenfeld Decl., Ex. C. Specifically, the court in Enron stated:

The firm is comprised of probably the most prominent securities class action
attorneys in the country. It is not surprising that Defendants have not argued that
counsel is not adequate. Counsel’s conduct in zealously and efficiently prosecuting
this litigation with commitment of substantial resources to that goal evidences those
qualities is evident throughout this suit.

In re Enron Corp. Sec. Derivative & “ERISA” Litig., 529 F. Supp. 2d 644, 675 (S.D. Tex. 2006).

Accordingly, the Court should approve Pipefitters 636’s selection of Lead Counsel.

IV. CONCLUSION

For all the foregoing reasons, Pipefitters 636 respectfully requests that the Court: (i)

consolidate the Actions; (ii) appoint Pipefitters 636 as Lead Plaintiff in the Actions; (iii) approve its

selection of Lead Counsel as set forth herein; and (iv) grant such other relief as the Court may deem

just and proper.

DATED: April 4, 2011

ROBBINS GELLER RUDMAN
& DOWD LLP
SAMUEL H. RUDMAN
DAVID A. ROSENFELD

/s/ David A. Rosenfeld

DAVID A. ROSENFELD

58 South Service Road, Suite 200
Melville, NY 11747
Telephone: 631/367-7100
631/367-1173 (fax)
srudman@rgrdlaw.com
drosenfeld@rgrdlaw.com

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Case 1:11-cv-00733-WHP Document 15 Filed 04/04/11 Page 12 of 12










ROBBINS GELLER RUDMAN
& DOWD LLP
JONAH H. GOLDSTEIN
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: 619/231-1058
619/231-7423 (fax)
jonahg@rgrdlaw.com

[Proposed] Lead Counsel for Plaintiffs

SULLIVAN, WARD, ASHER & PATTON, P.C.
JACQUELINE A. KELLY
MICHAEL J. ASHER
25800 Northwestern Highway
1000 Maccabees Center
Southfield, MI 48075-1000
Telephone: 248/746-0700
248/746-2760 (fax)

Additional Counsel for Plaintiff

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