Free Motion for Leave - District Court of Colorado - Colorado

Case 1:01-cv-01451-REB-KLM

Document 996

Filed 05/03/2006

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-1451-REB-CBS

(Consolidated with Civil Action Nos. 01-cv-1472-REB-CBS, 01-cv-1527-REB-CBS, 01cv-1616-REB-CBS, 01-cv-1799, REB-CBS, 01-cv-1930-REB-CBS, 01-cv-2083-REBCBS, 02-cv-0333-REB-CBS, 02-cv-0374-REB-CBS, 02-cv-0507-REB-CBS, 02-cv-0658REB-CBS, 02-cv-755-REB-CBS, 02-cv-798-REB-CBS and 04-cv-0238-REB-CBS)

In re QWEST COMMUNICATIONS INTERNATIONAL, INC. SECURITIES LITIGATION __________________________________________________________________________ MOTION FOR LEAVE BY INTERVENORS/OBJECTORS GRAHAM, FLOYD, HULL and AUSWR to DESIGNATE EXPERT WITNESS FOR TESTIMONY at MAY 19 SETTLEMENT HEARING IN RESPONSE TO LEAD COUNSELS' LATE FILED EXPERT WITNESS AFFIDAVITS __________________________________________________________________________ INTERVENORS/OBJECTORS ELDON GRAHAM, HAZEL FLOYD, MARY M. HULL, and the ASSOCIATION OF U S WEST RETIREES (AUSWR), by and through their counsel Curtis L. Kennedy, hereby move for leave to designate and present testimony by their expert witness Professor Michael Perino and, as grounds, state: 1. On February 27, 2006 Lead Counsel filed their motion and supporting brief for an

award of $96 million in attorney's fees (Docket 929), plus $2.2 million in costs. Lead Counsel did not submit any non-party statements addressing the attorney's fees request. Moreover, Lead Counsel decided to forego submission of any expert witness declarations in support of their motion and opening brief. Instead, Lead Counsel relied upon and submitted statements made by several named plaintiffs, a few plaintiffs' attorneys, published studies and other materials. 2. In response to Lead Counsel's massive court filing, on March 6, 2006

Intervenors/Objectors timely submitted their "Notice of Objections" (Docket 942), and they set forth their arguments and contentions in opposition to Lead Counsel's requested fees.

Case 1:01-cv-01451-REB-KLM

Document 996

Filed 05/03/2006

Page 2 of 5

Intervenors/Objectors relied upon and cited newer published studies and other materials which they contend counter the older studies and materials relied upon by Lead Counsel. Intervenors/Objectors also requested leave to conduct discovery on the issues of attorney's fees and costs, which request was subsequently denied. 3. On Friday, April 28, 2006, Lead Counsel submitted a reply brief (Docket 984)

and, as additional new evidence to support their attorney's fee request, they submitted declarations and affidavits wherein expert opinion testimony is given by non-party witnesses, two former federal judges (Docket 986 and Docket 988). 4. In response to the new affidavits filed by Lead Counsel on April 28, 2006,

Intervenors/Objectors request leave to designate an expert rebuttal witness to give opinion testimony at the May 19, 2006 Settlement Hearing. On the first business day after seeing Lead Counsels' expert opinion testimony, Intervenors/Objectors promptly gave notice that they will call Michael A. Perino, Professor at St. John's University School of Law, to give opinion testimony in opposition to that presented in Lead Counsel's newly submitted affidavits. 1 5. Intervenors/Objectors are unfairly surprised and prejudiced by the timing of Lead

Counsel's newly submitted affidavits on April 28, 2006. Due to Professor Perino's prior working commitments and teaching responsibilities, he does not believe he has sufficient time to provide a full rebuttal written expert opinion report, but, he can be prepared to provide Lead

Prior to filing this motion, Lead counsel were provided with Professor Perino's curriculum vitae. In summary, Professor Perino has authored numerous articles on securities regulation, securities fraud, and class action litigation. Congress relied on the empirical findings of his article Fraud and Federalism: Preempting Private State Securities Fraud Causes of Action, 50 Stanford Law Review 273 (1998), in enacting the Securities Litigation Uniform Standards Act of 1998. He is the author of the leading treatise on the Private Securities Litigation Reform Act, Securities Litigation After the Reform Act (CCH 2000). He has testified as an expert witness in court and has testified in both the United States Senate and the House of Representatives and is frequently quoted in the media on securities and corporate matters.

1

-2-

Case 1:01-cv-01451-REB-KLM

Document 996

Filed 05/03/2006

Page 3 of 5

Counsel with a fair high level summary of his opinions and conclusions several days prior to his expected testimony at the May 19, 2006 Settlement Hearing, so as to not prejudice Lead Counsel. 6. Tenth Circuit case law provides that "if the court relies on new materials or new

arguments in a reply brief, it may not forbid the nonmovant from responding to these new materials." Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir. 1998); accord Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1139 n.13 (10th Cir. 2003). Or, if the district court does preclude a surreply, then the court can avoid error only by not relying on the new materials and arguments in the movant's reply brief. Beaird, 145 F.3d at 1164. While the cited case law concerns summary judgment proceedings, the same principles should apply here. Lead Counsel should not be allowed to wait until their reply brief is submitted - so very close to the scheduled court hearing - to reveal unexpected expert opinion testimony. Intervenors/Objectors proclaim "foul." 7. This Court has ruled that Intervenors/Objectors should not be allowed to conduct

discovery. However, Intervenors/Objectors should be allowed a fair amount of time in order to present a rebuttal to the newly submitted expert opinion testimony about reasonable attorney's fees. Intervenors/Objectors should not be faulted for the timing of this request, since Lead Counsel strategically chose not to submit non-party expert opinion testimony with their opening brief. 8. Statement Pursuant to Local Rule 7.1: On May 1, 2006, a draft of this motion

was sent to the lead counsel specifically named in the January 5, 2006 Class Notice, seeking feedback. All lead counsel have reported that this motion will be opposed.

-3-

Case 1:01-cv-01451-REB-KLM

Document 996

Filed 05/03/2006

Page 4 of 5

WHEREFORE, INTERVENORS/OBJECTORS, Eldon Graham, Mary M. Hull, Hazel Floyd and the ASSOCIATION OF U S WEST RETIRES, move this Court to enter an order granting them leave to designate and present as their expert witness Professor Michael Perino to give rebuttal expert opinion testimony at the May 19, 2006 Settlement Hearing in opposition to Lead Counsel's expert opinion affidavits filed on April 28, 2006 in support of their motion for an award of $96 million in attorneys' fees, plus $2.2 million in expenses to be charged to the Settlement Fund. IN THE ALTERNATIVE, INTERVENORS/OBJECTORS request leave until May 19, 2006, within which to submit a rebuttal expert opinion affidavit in response to the expert opinion affidavits filed by Lead Counsel on April 28, 2006. Dated: May 3, 2006. s/ Curtis L. Kennedy Curtis L. Kennedy 8405 E. Princeton Avenue Denver, Colorado 80237-1741 Telephone: (303) 770-0440 Fax: (303) 843-0360 Email: [email protected] Attorney For INTERVENORS/OBJECTORS

-4-

Case 1:01-cv-01451-REB-KLM

Document 996

Filed 05/03/2006

Page 5 of 5

CERTIFICATE OF SERVICE I hereby certify that on the 3RD day of May, 2006, a true and correct copy of the above and foregoing document was electronically filed with the Clerk of the Court using the CM/ECF system and a courtesy copy was emailed to counsel of record in accordance with the January 5, 2006 Class Notice as follows: Keith F. Park, Esq. Michael J. Dowd, Esq. LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 [email protected] Lead Counsel for Plaintiffs Alfred Levitt, Esq. BOIES, SCHILLER & FLEXNER LLP 5301 Wisconsin Ave., N.W., Suite 800 Washington, DC 20015 Tele: 202-895-7567 Fax: 202-237-6131 [email protected] Counsel for Settling Defendant Qwest John Freedman, Esq. ARNOLD & PORTER LLP 555 Twelfth Street, N.W. Washington, DC 20004-1202 [email protected] Tele: 202-942-5316 Fax: 202-942-5999 Counsel for Defendant Arthur Andersen LLP and a copy of the same was sent via email to OBJECTORS - Association of U S WEST Retirees, Eldon H. Graham, Hazel A. Floyd and Mary M. Hull.

s/ Curtis L. Kennedy

-5-