Free Brief in Opposition to Motion - District Court of Colorado - Colorado


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Date: May 5, 2006
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State: Colorado
Category: District Court of Colorado
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Case 1:01-cv-01451-REB-KLM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-1451-REB-PAC (Consolidated with Civil Action Nos. 01-cv-1472-REB-PAC, 01-cv-1527-REB-PAC, 01cv-1616-REB-PAC, 01-cv-1799-REB-PAC, 01-cv-1930-REB-PAC, 01-cv-2083-REBPAC, 02-cv-0333-REB-PAC, 02-cv-0374-REB-PAC, 02-cv-0507-REB-PAC, 02-cv-0658REB-PAC, 02-cv-755-REB-PAC, 02-cv-798-REB-PAC and 04-cv-0238-REB-PAC) In re QWEST COMMUNICATIONS INTERNATIONAL, INC. SECURITIES LITIGATION OPPOSITION TO MOTION FOR LEAVE BY INTERVENORS/OBJECTORS TO DESIGNATE EXPERT WITNESS FOR TESTIMONY

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Objectors Graham, Floyd, Hull and AUSWR (the "Graham Objectors") have belatedly moved for permission to designate an expert to testify at the final approval hearing in support of their opposition to Lead Plaintiffs' counsel's application for attorneys' fees and reimbursement of expenses. They claim that Lead Plaintiffs' submission of two expert reports in opposition to their objections somehow constitutes new matter or argument that entitles them to now designate their own expert ­ an individual who is apparently too busy to provide a written opinion or even a summary of his opinions and conclusions to counsel and the Court until "several" days before or at the final approval hearing. The Graham Objectors' motion should be denied. First, the fact that Lead Plaintiffs chose to respond to objections, in part, by submitting expert opinions provides no basis for the Graham Objectors' eleventh hour attempt to designate their own purported expert. If they so desired, they could have hired Mr. Perino in a timely fashion and submitted whatever report he chose to prepare in connection with their initial objections. They don't and can't offer any reason for their failure to do so. Instead, relying on two inapposite decisions involving summary judgment, the objectors claim that Lead Plaintiffs' experts' opinions somehow justify their belated decision to designate their own expert ­ whose opinions and conclusions they propose to submit either at or shortly before the final approval hearing providing Lead Plaintiffs' counsel with little or no opportunity to adequately prepare to rebut. The cases on which the Graham Objectors rely provide no support for the request they make. Both Beaird v. Seagate Tech., Inc. ("Seagate"), 145 F.3d 1159 (10th Cir. 1998) and Doebele v. Sprint/United Mgmt. Co. ("Sprint"), 342 F.3d 1117 (10th Cir. 2003), make it clear that the rule announced there -1-

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springs from the fact that they are summary judgment cases governed by the language of Federal Rule of Civil Procedure 56. Seagate, 145 F.3d at 1163-65; Sprint, 342 F.3d at 1139 n.13. Here, in connection with a final approval hearing and in direct response to objections made by the Graham Objectors, among others, opinions by two highly respected retired jurists are offered. The factual and legal issues before the Court with respect to Lead Plaintiffs' counsel's application for attorneys' fees and reimbursement of expenses have not changed one iota; only the persons weighing in on them. Thus, if the Graham Objectors' view of the world was to prevail, only a reply brief that merely parroted arguments made in an opening brief would prevent the unending briefing that the Graham Objectors' motion portends since we would most assuredly want the opportunity to respond to whatever opinions or conclusions Mr. Perino proffers if the Graham Objectors' motion is granted. Second, there is the question of fundamental fairness. In its Order Preliminarily Approving Partial Settlement and Approving Form and Manner of Notice (the "Order") (Docket No. 906), the Court established a briefing schedule for Lead Plaintiffs' motion in support of final approval of the partial settlement, the Plan of Allocation and application for an award of attorneys' fees and reimbursement of expenses which provided a full and fair opportunity for Class Members to object to any of the relief sought if they thought it appropriate and an opportunity for Lead Plaintiffs to respond to any such objections. The Graham Objectors saw fit to object and did so. However, in making their objections as allowed by the Court's schedule, they did not think it necessary at the time to submit expert testimony to support their views. To allow them to do so now, while giving Lead Plaintiffs -2-

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little or no opportunity to rebut whatever Mr. Perino submits or testifies to, is decidedly unfair. The Graham Objectors' motion should be denied. DATED: May 5, 2006 Respectfully submitted, LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP KEITH F. PARK MICHAEL J. DOWD SPENCER A. BURKHOLZ THOMAS E. EGLER SCOTT H. SAHAM X. JAY ALVAREZ TRIG R. SMITH TED MINAHAN ANDREA N. SALOW

s/ KEITH F. PARK KEITH F. PARK 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP MICHELLE M. McCARRON 9601 Wilshire Blvd., Suite 510 Los Angeles, CA 90210 Telephone: 310/859-3100 310/278-2148 (fax) Lead Counsel for Plaintiffs DYER & SHUMAN, LLP ROBERT J. DYER III KIP B. SHUMAN JEFFREY A. BERENS 801 East 17th Avenue Denver, CO 80218-1417 Telephone: 303/861-3003 Liaison Counsel
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CERTIFICATE OF SERVICE I hereby certify that on May 5, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I have caused to be mailed the foregoing document or paper via overnight delivery to the non-CM/ECF participants indicated on the attached Manual Notice List.

s/ KIP B. SHUMAN KIP B. SHUMAN DYER & SHUMAN, LLP 801 East 17th Avenue Denver, CO 80218-1417 Telephone: 303/861-3003 303/830-6920 (fax) E-mail: [email protected]

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