Free Joinder - District Court of Delaware - Delaware

Case 1 :07-cv-00372-SLR Document 67 Filed 07/17/2008 Page 1 ot 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE COUNTRYWIDE FINANCIAL
Egl;gg.1;{°§gON DERIVATWE c.A. Na. 1:07-003.72 srs (MPT)
(Consolidated Action)
Judge Sue L. Robinson
THIS RELATES TO ALL ACTIONS
DEFENDANTS MICHAEL E. DOUGHERTY AND KATHLEEN BROWN'S
JOINDER IN DEFENDANTS’ POST-MERCER MOTION TO DISMISS
Defendants Michael E. Dougherty and Kathleen Brown (collectively, the "Former
Directors"), by and through their undersigned counsel, respectfully join in the arguments and
request for relief set forth in the Post—Merger Motion to Dismiss, and the supporting opening
brief, tiled by individual defendants Angelo R. Mozilo, Henry G. Cisneros, Robert L. Donato,
Harley W. Snyder, Jeffrey M. Cunningham, Martin R. Melone, Robert T. Parry, Oscar P.
Robertson, and Keith P. Russell and nominal defendant Countrywide Financial Corporation
("Countrywide") (collectively, the "Countrywide Defendants") on July 10, 2008.
As the Countrywide Defendants explained in their opening brief, Plaintiffs lost
standing to prosecute this action following the July 1, 2008 merger between Countrywide and
Bank of America Corporation. Under well—settled Delaware law, a plaintiff in a derivative action
who ceases to be a shareholder of a corporation upon the consummation of a merger loses
standing to pursue the action on behalf of that corporation. As the Delaware Supreme Court
recently explained in F eldmcm v. Cutaia: "[t]wenty—four years ago, in the seminal case of Lewis
v. Anderson, this Court held that a corporate merger generally extinguishes a plaintiffs standing
to maintain a derivative suit." C.A. No. 466, 2008 Del. LEXIS 249, at *8-9 (Del. May 30, 2008)

Case 1:07-cv-00372-SLR Document 67 Filed 07/17/2008 Page 2 of 2
(dismissing case on ground that merger eliminated plaintiffs standing to pursue derivative action
and holding that since a "derivative claim is a property right owned by the nominal corporate
defendant, that right flows to the acquiring corporation by operation of a merger"). For the
reasons set forth in the Countrywide Defendants opening brief, the Court should apply this well
established black-letter law to dismiss this action in its entirety.
/s/ Edward B, Micheletti
Edward P. Welch (1.D. No. 671)
Edward B. Micheletti (1.D. No. 3794)
SKADDEN, ARPS, SLATE, MEAGHER & From LLP
One Rodney Square, P.O. Box 636
Wilmington, DE 19899
Tel.: (302) 651-3000
Fax: (302) 651-3001
E-mai}: emich@s1 Attorneys for Defendants Michael E Dougherty and
Kath/een Brown
Dated: July 17, 2008
541308-Wilmington Server 1A - MSW