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Case 1:11-cv-00733-WHP Document 248 Filed 11/26/13 Page 1 of 9

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

DlRECT DIAL.

212 735 7852

917 777 7852
EMAIL ... OORl!:55

scorr [email protected] .COM

FOUR TIMES SOUARE

NEW YORK 10036·6522

TEL: (212) 735·3000
FAX: (212) 735·2000

www.skadden.com

November 26, 2013

BOSTON
CHICAGO
HOUSTON

L.OS ANGEL.ES

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WASHINGTON, D.C

WIL.MINGTON

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SJ.O PAUL.O
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TORONTO

VIENNA

BY ECF AND HAND DELIVERY

The Honorable William H. Pauley, III
United States District Court Judge
for the Southern District of New York
500 Pearl Street
New York, NY 10007

RE:

Pennsylvania Public School Employees' Retirement
System v. Bank of America Corp. et aI.,
II-CV-733-WHP (SDNY)

Dear Judge Pauley:

We write this letter motion on behalf of all parties to jointly move for an

extension of the deadline for substantial completion of document discovery to
January 31, 2014. The current deadline is November 29,2013. No previous
requests for an extension of this deadline have been made.

As discussed in the parties' Joint Status Report Concerning Class

Certification and Document Discovery (attached hereto), filed October 31, 2013, the
parties have been engaging in good-faith efforts to produce documents in response to
the parties' respective discovery requests. To date, Defendants have produced
approximately 4.5 million pages of documents and thousands of native files on the
core issues in the litigation. Lead Plaintiff has produced hundreds of pages of
documents in response to Defendant Bank of America's requests. Nonetheless,
significant discovery remains to be completed, including, among other things, the
collection and review of documents from more than 60 custodians whose
electronically stored information Lead Plaintiff seeks pursuant to search protocols
that contain more than 100 search terms.

Case 1:11-cv-00733-WHP Document 248 Filed 11/26/13 Page 2 of 9

The Honorable William H. Pauley, III
November 26,2013
Page 2

As a result, the parties agree that, despite best efforts to date, the parties will

be unable to complete document production by November 29, 2013. The parties
therefore jointly move for an extension of the deadline for substantial completion of
document production to January 31, 2014. Such an extension should not unduly
prejudice any party and would not significantly impact the Court's management of its
docket or require any change to the current deadline of December 31, 2014, for the
completion offact witness discovery.

cc; All counsel (by email)

Case 1:11-cv-00733-WHP Document 248 Filed 11/26/13 Page 3 of 9
Case 1:11-cv-00733-WHP Document239 Filed 10/31/13 Page 1 of7

UNITED STATES D1STRlCT COURT
SOUTHERN DISTRICT OF NEW YORK
-- -- --- ----- --- --- -- -- ------- -- -----x
PENNSYLVANIA PUBLIC SCHOOL
EMPLOYEES' RETIREMENT SYSTEM,
individually and on behalf of all others
similarly situated,

Plaintiff,

v.

BANK OF AMERICA CORPORATION, et aI.,

Defendants.

-- ·---------------------------------x

II-CV -00733 (WHP)

JOINT STATUS REPORT
CONCERNING CLASS
CERTIFICATION
AND DOCUMENT DISCOVERY

Lead Plaintiff, Pennsylvania Public School Employees' Retirement System ("Lead

Plaintiff' or "PSERS"), and Defendants Bank of America Corporation, Brian T. Moynihan,

Charles H. Noski, Kenneth D. Lewis, Neil Cony and Joe L. Price (collectively "Defendants"), by

their counsel, respectfully submit this Joint Status Report Concerning Class Certification and

Document Discovery.

I.

On June 20, 20 II, the Court issued a Memorandum and Order naming PSERS as

Lead Plaintiff in this action and appointing its counsel, Barrack, Rodos & Bacine, as Lead

Counsel.

2.

On July 30, 2013, the Court issued an Order concerning class certification in this

action, which established a schedule for filing of materials with respect to the class certification

motion, and directed, inter alia, that the parties submit a joint report regarding the proposed class

certification motion by October 31,2013.

3.

The parties have met and conferred concerning the elimination or narrowing of

issues relating to the class certification motion, and as a result have agreed to the following:

Case 1:11-cv-00733-WHP Document 248 Filed 11/26/13 Page 4 of 9
Case 1 :11-cv-00733-WHP Document 239 Filed 10/31/13 Page 2 of 7

a. PSERS proposes to bring this action on behalf of all persons or entities who

purchased or othetwise acquired either Bank of America Corporation's

Common Stock ("CS") or Common Equivalent Securities ("CES") during the

Class Period of February 27, 2009 through October 19,2010, and who

allegedly suffered damages as a result (the "Class"). Excluded from the Class

are: (i) Defendants; (ii) members of the immediate family of each of the

Executive Defendants; (iii) any person who was an executive officer and/or

director of Bank of America Corporation during the Class Period; (iv) any

entity that served as an underwriter for Bank of America Corporation's

offering of CES; (v) any person, firm, trust, corporation, officer, director, or

any other individual or entity in which any Defendant has a controlling

interest; and (vi) the legal representatives, agents, affiliates, heirs, successors(cid:173)

in-interest or assigns of any such excluded party. PSERS also proposes that

the Court appoint Barrack, Rodos & Bacine as Lead Counsel for the Class in

this action.

b. Defendants do not contest the efficiency of the market for Bank of America

CS and CES during the Class Period with respect to Lead Plaintiff's motion

for class certification. Accordingly, as noted in Lead Plaintiff's letter of

October 17,2013, there was no need for the parties to exchange expert reports

pertaining to the class motion.

c.

In the papers to be submitted on November 15, 2013 in support of Lead

Plaintiff's motion for class certification, Lead Plaintiff intends to demonstrate

that each of the elements necessary for certification of the Class is satisfied. as

Case 1:11-cv-00733-WHP Document 248 Filed 11/26/13 Page 5 of 9
Case 1 :11-cv-00733-WHP Document 239 Filed 10/31/13 Page 3 of 7

follows: (I) the proposed Class satisfies the numerosity requirement of

Federal Rule of Civil Procedure 23(a); (2) the proposed Class satisfies the

commonality requirement of Rule 23(a); (3) the claims of Lead Plaintiff are

typical of the claims of absent class members under Rule 23(8); (4) Lead

Plaintiff can adequately represent the Class under Rule 23(a); (5) common

issues in this action and the proposed Class predominate over any individual

issues pursuant to Rule 23(b)(3); and (6) this action and the proposed Class

satisfy the superiority requirement of Rule 23(b)(3).

d. Defendants do not dispute that this action and the proposed Class satisfy

elements 1,2, 5 and 6. However, Defendants reserve their right to dispute in

their opposition papers due December 20, 20 13, elements 3 and 4, which

relate to typicality and adequacy of the Lead Plaintiff. Defendants will notify

the Court and Lead Plaintiff no later than December 13, 2013 if they intend to

challenge the adequacy or typicality of Lead Plaintiff.

e. The parties have exchanged written discovery related to class and merits

issues, including the production of documents. The parties are meeting and

conferring regarding the scope of document discovery by all parties.

f. Defendants intend to serve a Rule 30(b)(6) notice on Lead Plaintifffor a

deposition of a Lead Plaintiff representative. After receipt of such notice,

Lead Plaintiff will meet and confer with Defendants and make its Rule

30(b )(6) designee reasonably available for examination.

Case 1:11-cv-00733-WHP Document 248 Filed 11/26/13 Page 6 of 9
Case 1: 11-cv-00733-WHP Document 239 Filed 10/31/13 Page 4 of 7

g. The parties reserve their right to alter their position on these issues, including

in subsequent dispositive motions, for any reason before final judgment,

pursuant to Federal Rule of Civil Procedure 23(c)(1 )(C).

4. The parties have been engaging in good-faith efforts to produce documents in

response to the parties' respective discovery requests. To date, Defendants have

produced approximately 4.5 million pages of documents and thousands of native files

on the core issues in the litigation. Lead Plaintiff has produced hundreds of pages of

documents in response to Defendant Bank of America's requests.

5. At the time the Court set the deadline for substantial completion of document

discovery on November 29, 2013, Defendants were hopeful that they would be able

to leverage significant other document productions to resolve Lead Plaintiffs

requests for documents, here. Unfortunately, this has not been the case. Lead

Plaintiff's document requests are comprehensive and involve over 60 custodians. The

parties have been meeting and conferring in good faith to focus those requests.

6. Nonetheless, significant discovery remains to be completed. Specifically, Lead

Plaintiff has identified more than 60 custodians whose electronically stored

information Lead Plaintiff wants reviewed pursuant to search protocols that contain

more than 100 search terms. Various non-custodial documents also remain to be

produced.

7. The parties agree that, despite best efforts to date, the parties are unlikely to

substantially complete document production by November 29,2013 .

8. For these reasons, it appears that the orderly production of documents would be

facilitated by an extension of the deadline for the substantial completion of document

Case 1:11-cv-00733-WHP Document 248 Filed 11/26/13 Page 7 of 9
Case 1:11·cv·00733·WHP Document239 Filed 10/31/13 Page50f7

production to January 31,2014. Such an extension should not unduly prejudice any

party and would not significantly impact the Court's management of its docket or

require any change to the current deadline of December 31,2014, for the completion

of fact witness discovery.

A. Arnold Gershon (ag!r;[email protected])
William J. Ban ([email protected])
Michael A. Toomey ([email protected])
BARRACK, RODOS & BACINE
425 Park Avenue, 31st Floor
New York, New York 10022
(2 12) 688·0782

Leonard Barrack ([email protected])
Mark R. Rosen ([email protected])
Jeffrey A. Barrack [email protected])
Jeffrey B. Gittleman [email protected])
Chad A. Carder ([email protected])
Julie B. Palley [email protected])
BARRACK, RODOS & BACINE
3300 Two Commerce Square
200 I Market Street
Philadelphia, PA 19103
(215) 963·0600

Attorneys for Lead Plaintiff Pennsylvania Public
School Employees' Retirement System

./IU---

Ja B. asner [email protected])
Scott D. Musoff([email protected])
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP

Four Times Square
New York, New York 10036
(212) 735·3000

Paul J. Lockwood
([email protected])
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP

One Rodney Square
P.O. Box 636
Wilmington, Delaware 19899
(302) 651·3000

Attorneys for Defendant Bank of America
Corporation

Patrick J. Smith ([email protected])
Jeffrey David Rotenberg
Geffrey. [email protected])
John Michael Hillebrecht
[email protected])
DLA PIPER US LLP (NY)
125 J A venue ofthe Americas
NewYork,NewYork 10020
(212) 335·4500

Attorneys/or Defendant Brian T Moynihan

Case 1:11-cv-00733-WHP Document 248 Filed 11/26/13 Page 8 of 9
Case 1:11-cv-00733-WHP Document239 Filed 10/31/13 Page6of7

Robert Jeffrey Jossen
([email protected])
Adam Jay Wasserman
(adam. [email protected])

Katherine Keely Rankin
([email protected])
DECHERTLLP
1095 Avenue of the Americas
New York, New York 10036-6797
(212) 698-3500

Allorneysfor Deftndant Charles H. Noski

ith ([email protected])

Colby A S
Ada Fernandez Johnson
([email protected])
DEBEVOISE & PLIMPTON (DC)
555 13th Street, N.W.
Washington, D.C. 20004
(202) 383-8000

Atlorneysfor Deftndant Kenneth D. Lewis

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Brian Marc Bumovski
([email protected])
Charles S. Duggan ([email protected])
DAVIS POLK & WARDWELL L.L.P.
450 Lexington Avenue
New York, New York 10017
(212) 450-4000

Atlorneysfor Defendant Neil Cotty

Case 1:11-cv-00733-WHP Document 248 Filed 11/26/13 Page 9 of 9
Case 1:11-cv-00733-WHP Document 239 Filed 10/31/13 Page 7 of 7

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([email protected])
BAKER BOTTS LLP (NY)
30 Rockefeller Plaza
44th Floor
New York, New York 10112
(212) 408-2568

Julia Guttman ([email protected])
BAKER BOTTS LLP (DC)
1299 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
(202) 639-1700

Allorneysfor Defendant Joe L. Price