Free Answer to Amended Complaint - District Court of Colorado - Colorado

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710.

Tempest lacks sufficient knowledge or information to admit or deny the

allegations in paragraph 710, and therefore denies them. 711. Tempest denies the allegations in paragraph 711. p. 712. February 5, 2002 SSB Analyst Report

Tempest lacks sufficient knowledge or information to admit or deny the

allegations in paragraph 712, and therefore denies them. 713. Tempest lacks sufficient knowledge or information to admit or deny the

allegations in paragraph 713, and therefore denies them. 714. Tempest denies the allegations in paragraph 714. q. 715. March 6, 2002 SSB Analyst Report

Tempest lacks sufficient knowledge or information to admit or deny the

allegations in paragraph 715, and therefore denies them. 716. Tempest lacks sufficient knowledge or information to admit or deny the

allegations in paragraph 716, and therefore denies them. 717. Tempest admits that Qwest issued a press release on March 11, 2002. That press

release speaks for itself, and Tempest respectfully refers the Court to the full press release for a complete understanding of its contents. Tempest denies any remaining allegations in paragraph 717. 6. 718. Grubman and SSB Concealed Qwest's Accounting

Because the allegations in paragraph 718 are directed at other Defendants, no

response is required. To the extent that a response is deemed necessary, Tempest denies them.

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719.

Because the allegations in paragraph 719 are directed at other Defendants, no

response is required. To the extent that a response is deemed necessary, Tempest denies them. 720. 721. 722. Tempest denies the allegations in paragraph 720. Tempest denies the allegations in paragraph 721. Tempest lacks sufficient knowledge or information to admit or deny the

allegations in paragraph 722, and therefore denies them. 723. Tempest lacks sufficient knowledge or information to admit or deny the

allegations in paragraph 723, and therefore denies them. 7. 724. SSB Brokers' Negative Views of Grubman Underscore Grubman's Conflicts

Because the allegations in paragraph 724 are directed at other Defendants, no

response is required. To the extent that a response is deemed necessary, Tempest lacks sufficient knowledge or information to admit or deny the allegations in paragraph 724 and therefore denies them. VIII. INAPPLICABILITY OF STATUTORY SAFE HARBOR 725. 726. Tempest denies the allegations in paragraph 725. The allegations in paragraph 726 state legal conclusions as to which no response

is required. To the extent that a response is deemed necessary, Tempest denies the allegations in paragraph 726. 727. The allegations in paragraph 727 state legal conclusions as to which no response

is required. To the extent that a response is deemed necessary, Tempest denies the allegations in paragraph 727.

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IX.

APPLICATION OF PRESUMPTION OF RELIANCE: FRAUD ON THE MARKET DOCTRINE 728. 729. Tempest adopts and incorporates Qwest's Answer to paragraph 728. The allegations in paragraph 729 state legal conclusions as to which no response

is required. To the extent that a response is deemed necessary, Tempest denies the allegations in paragraph 729. X. TOLLING OF THE STATUTE OF LIMITATIONS 1. 730. 731. 732. Defendants Actively Concealed and Denied the Existence of Any Accounting Improprieties

Tempest denies the allegations in paragraph 730. Tempest denies the allegations in paragraph 731. Tempest admits that Morgan Stanley issued a report on June 20, 2001 in which

Qwest is discussed. Tempest lacks sufficient knowledge or information to admit or deny any remaining allegations in the first sentence of paragraph 732, and therefore denies them. The second sentence of paragraph 732 states a legal conclusion as to which no response is required. To the extent that a response is deemed necessary, Tempest denies the allegations in the second sentence of paragraph 732. 733. Tempest admits that Qwest hosted a conference call on June 20, 2001 during

which Mr. Nacchio and Ms. Szeliga spoke. Tempest lacks sufficient knowledge or information to admit or deny any remaining allegations in paragraph 733, and therefore denies them. 734. Tempest admits that Qwest hosted a conference call on June 20, 2001 during

which Mr. Nacchio and Ms. Szeliga spoke. Tempest lacks sufficient knowledge or information to admit or deny any remaining allegations in paragraph 734, and therefore denies them.

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735.

Tempest admits that Qwest issued a press release on June 20, 2001. That press

release speaks for itself, and Tempest respectfully refers the Court to the full document for a complete understanding of its contents. 736. Tempest lacks sufficient knowledge or information to admit or deny the

allegations in paragraph 736, and therefore denies them. 737. Tempest admits that Morgan Stanley issued a report on July 25, 2001 in which

Qwest is discussed. Tempest lacks sufficient knowledge or information to admit or deny any remaining allegations in paragraph 737, and therefore denies them. 738. Tempest admits that Morgan Stanley issued a report on August 22, 2001 in which

Qwest is discussed. Tempest lacks sufficient knowledge or information to admit or deny any remaining allegations in paragraph 738, and therefore denies them. 739. Tempest denies the allegations in the first two sentences of paragraph 739.

Tempest lacks sufficient knowledge or information to admit or deny any remaining allegations in paragraph 739, and therefore denies them. 740. Tempest lacks sufficient knowledge or information to admit or deny the

allegations in paragraph 740, and therefore denies them. 741. Tempest admits that Qwest issued a press release on September 10, 2001.

Tempest further admits Business Week published a letter from Mr. Nacchio in October 2001 in which Qwest is discussed. Those documents speak for themselves, and Tempest respectfully refers the Court to the full documents for a complete understanding of their contents. Tempest lacks sufficient knowledge or information to admit or deny any remaining allegations in paragraph 741, and therefore denies them.

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742.

Tempest lacks sufficient knowledge or information to admit or deny the

allegations in paragraph 742, and therefore denies them. 743. The first sentence in paragraph 743 states a legal conclusion as to which no

response is required. To the extent that a response is deemed necessary, Tempest denies the allegations in the first sentence in paragraph 743. Tempest lacks sufficient knowledge or

information to admit or deny any remaining allegations in paragraph 743, and therefore denies them. 744. Tempest admits that the Wall Street Journal published an article on February 13, Tempest admits that Qwest issued a press release on

2002 in which Qwest is discussed.

February 13, 2002. That press release speaks for itself, and Tempest respectfully refers the Court to the full document for a complete understanding of its contents. The last sentence of paragraph 744 states a legal conclusion as to which no response is required. To the extent that a response is deemed necessary, Tempest denies the allegations in the last sentence of paragraph 744. Tempest lacks sufficient knowledge or information to admit or deny any remaining allegations in paragraph 744, and therefore denies them. 745. Paragraph 745 states a legal conclusion as to which no response is required. To

the extent that a response is deemed necessary, Tempest denies the allegations in paragraph 745. 2. 746. Tolling of Statute of Limitations by the Filing of the Class Action

Paragraph 746 states a legal conclusion as to which no response is required. To

the extent that a response is deemed necessary, Tempest denies the allegations in paragraph 746. 747. 748. Tempest adopts and incorporates Qwest's Answer to paragraph 747. Tempest adopts and incorporates Qwest's Answer to paragraph 748.

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749. 750. 751.

Tempest adopts and incorporates Qwest's Answer to paragraph 749. Tempest adopts and incorporates Qwest's Answer to paragraph 750. Paragraph 751 states a legal conclusion as to which no response is required. To

the extent that a response is deemed necessary, Tempest denies the allegations in paragraph 751. COUNT I (Against Qwest, Woodruff, Tempest, Nacchio, Haines, Slater, Stephens, Szeliga, Alverado, and Hellman) VIOLATION OF SECTION 18 OF THE EXCHANGE ACT 752. 753. In response to paragraph 752, Tempest repeats the answers to paragraphs 1-751. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 753. 754. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 754. 755. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 755. 756. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 756. 757. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 757. 758. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 758. 759. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 759.

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760.

No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 760. 761. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 761. 762. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 762. 763. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 763. COUNT II (Against the Andersen Defendants) VIOLATION OF SECTION 18 OF THE EXCHANGE ACT 764. 765. In response to paragraph 764, Tempest repeats the answers to paragraphs 1-763. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 765. 766. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 766. 767. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 767. 768. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 768. 769. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 769.

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770.

No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 770. 771. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 771. 772. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 772. 773. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 773. 774. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 774. 775. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 775. 776. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 776. COUNT III (Against Qwest and the Individual Defendants) VIOLATION OF SECTION 10(b) OF THE EXCHANGE ACT AND RULE 10b-5 777. 778. Tempest repeats and incorporates by reference his Answers to paragraphs 1-776. Tempest admits that Plaintiff purports to bring this claim pursuant to section 10(b)

of the Securities Exchange Act of 1934 and Rule 10b-5. Tempest denies all other allegations in paragraph 778. 779. 780. Tempest denies the allegations in paragraph 779. Tempest denies the allegations in paragraph 780.

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781.

Paragraph 781 states legal conclusions as to which no response is required. To

the extent that a response is deemed necessary, Tempest denies the allegations in paragraph 781. 782. 783. 784. 785. Tempest denies the allegations in paragraph 782. Tempest denies the allegations in paragraph 783. Tempest denies the allegations in paragraph 784. Tempest denies the allegations in paragraph 785.

COUNT IV (Against the Andersen Defendants) VIOLATION OF SECTION 10(b) OF THE EXCHANGE ACT AND RULE 10b-5 786. 787. In response to paragraph 786, Tempest repeats the answers to paragraphs 1-785. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 787. 788. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 788. 789. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 789. 790. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 790. 791. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 791. 792. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 792.

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793.

No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 793. 794. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 794. COUNT V (Against Grubman and CGMI) VIOLATION OF SECTION 10(b) OF THE EXCHANGE ACT AND RULE 10b-5 795. 796. In response to paragraph 795, Tempest repeats the answers to paragraphs 1-794. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 796. 797. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 797. 798. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 798. 799. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 799. 800. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 800. 801. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 801. 802. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 802.

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COUNT VI (Against the Individual Defendants) VIOLATION OF SECTION 20(a) OF THE EXCHANGE ACT 803. 804. the Court. 805. the Court. 806. the Court. COUNT VII (Against Citigroup and CGMHI) VIOLATION OF SECTION 20(a) OF THE EXCHANGE ACT 807. 808. In response to paragraph 807, Tempest repeats the answers to paragraphs 1-806. No response is required, as this claim and allegations are not alleged against No answer is required to these allegations because this Count was dismissed by No answer is required to these allegations because this Count was dismissed by Tempest repeats his answers to paragraphs 1-802. No answer is required to these allegations because this Count was dismissed by

Tempest. If a response is required, Tempest denies the allegations in paragraph 808. 809. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 809. 810. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 810. 811. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 811.

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COUNT VIII (Against Defendants Nacchio and Szeliga) VIOLATION OF SECTION 304 OF THE SARBANES-OXLEY ACT 812. 813. In response to paragraph 812, Tempest repeats the answers to paragraphs 1-811. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 813. 814. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 814. 815. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 815. 816. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 816. 817. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 817. 818. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 818. 819. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 819. COUNT IX (Against All Defendants) VIOLATION OF COLORADO SECURITIES ACT (C.R.S. §§ 11-51-501 and 11-51-604) 820. 821. Tempest repeats his answers to paragraphs 1-819. Tempest denies the allegations in paragraph 821.

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822.

Tempest lacks sufficient knowledge or information to admit or deny the

allegations in paragraph 822, and therefore denies them. 823. 824. 825. 826. 827. 828. 829. 830. 831. Tempest denies the allegations in paragraph 823. Tempest denies the allegations in paragraph 824. Tempest denies the allegations in paragraph 825. Tempest denies the allegations in paragraph 826. Tempest denies the allegations in paragraph 827. Tempest denies the allegations in paragraph 828. Tempest denies the allegations in paragraph 829. Tempest denies the allegations in paragraph 830. Tempest denies the allegations in paragraph 831.

COUNT X (Against Andersen Defendants and The Citigroup Defendants) AIDING AND ABETTING QWEST'S VIOLATION OF C.R.S. §§ 11-51-501 and 11-51-605 832. 833. In response to paragraph 832, Tempest repeats the answers to paragraphs 1-831. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 833. 834. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 834. 835. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 835.

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COUNT XI (Against All Defendants) COMMON LAW FRAUD 836. 837. 838. 839. 840. Tempest repeats his answers to paragraphs 1-835. Tempest denies the allegations in paragraph 837. Tempest denies the allegations in paragraph 838. Tempest denies the allegations in paragraph 839. Tempest denies the allegations in paragraph 840. COUNT XII (Against Qwest and the Individual Defendants, the Andersen Defendants and Citigroup Defendants) CIVIL CONSPIRACY 841. 842. 843. 844. 845. Tempest repeats his answers to paragraphs 1-840. Tempest denies the allegations in paragraph 842. Tempest denies the allegations in paragraph 843. Tempest denies the allegations in paragraph 844. Tempest denies the allegations in paragraph 845. COUNT XIII (Against Grubman and CGMI) AIDING AND ABETTING COMMON LAW FRAUD 846. 847. In response to paragraph 846, Tempest repeats the answers to paragraphs 1-845. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 847. 848. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 848.

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849.

No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 849. 850. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 850. 851. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 851. COUNT XIV (Against the Andersen Defendants) AIDING AND ABETTING COMMON LAW FRAUD 852. 853. In response to paragraph 852, Tempest repeats the answers to paragraphs 1-851. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 853. 854. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 854. 855. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 855. 856. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 856. COUNT XV (Against All Defendants) NEGLIGENT MISREPRESENTATION 857. 858. Tempest repeats his answers to paragraphs 1-856. Tempest denies the allegations in paragraph 858.

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859.

Tempest lacks sufficient knowledge or information to admit or deny the

allegations in paragraph 859, and therefore denies them. 860. 861. 862. 863. 864. 865. Tempest denies the allegations in paragraph 860. Tempest denies the allegations in paragraph 861. Tempest denies the allegations in paragraph 862. Tempest denies the allegations in paragraph 863. Tempest denies the allegations in paragraph 864. Tempest denies the allegations in paragraph 865. COUNT XVI (Against the Andersen Defendants) FRAUDULENT CONCEALMENT 866. 867. In response to paragraph 866, Tempest repeats the answers to paragraphs 1-865. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 867. 868. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 868. 869. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 869. 870. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 870. 871. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 871.

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872.

No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 872. 873. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 873. 874. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 874. 875. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 875. 876. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 876. COUNT XVII (Against Qwest, Arthur Andersen and SSB) RESPONDEAT SUPERIOR 877. 878. In response to paragraph 877, Tempest repeats the answers to paragraphs 1-876. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 878. 879. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 879. 880. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 880. 881. No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 881.

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882.

No response is required, as this claim and allegations are not alleged against

Tempest. If a response is required, Tempest denies the allegations in paragraph 882. AFFIRMATIVE AND OTHER DEFENSES Tempest sets forth below additional defenses to Counts One through Seventeen. By setting forth these defenses, Tempest does not assume the burden of proving any fact, issue, or element of a cause of action where such burden properly belongs to Plaintiff. Moreover, nothing stated herein is intended or shall be construed as an acknowledgement that any particular issue or subject matter is relevant to Plaintiff's allegations. 1. The Complaint and each purported claim for relief fails to state a claim upon

which relief can be granted. 2. Plaintiff's allegations are not pled with sufficient particularity under the Federal

Rules of Civil Procedure. 3. Plaintiff's claims are barred, in whole or in part, because Plaintiff has failed to

plead and cannot establish loss causation. 4. Plaintiff's claims are barred, in whole or in part, by the doctrines of waiver,

estoppel, ratification, affirmance, in pari delicto, and/or unclean hands. 5. Plaintiff's claims are barred, in whole or in part, because Tempest had no duty to

disclose any facts allegedly not disclosed. 6. Plaintiff's claims are barred, in whole or in part, because Plaintiff would be

unjustly enriched if it was allowed to recover anything in the action. 7. Plaintiff's claims are barred by the doctrine of laches, as Plaintiff knowingly

delayed for an unreasonable time, under circumstances permitting and requiring diligence, to

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assert the purported caused of action in the Complaint against Tempest, to the substantial detriment and prejudice of Tempest. Accordingly, the relief prayed for in the Complaint cannot be granted. 8. Plaintiff fails to state a claim to the extent that the alleged statements upon which

these claims for relief are based constitute expressions of honest opinion. 9. Some or all of the alleged untrue statements of material fact, omissions of

material fact, misleading statements, or other challenged statements made by Defendants consist only of non-actionable general statements of optimism and/or indefinite opinions or puffery, and are thus non-actionable. 10. Every act or omission alleged in the Complaint was done or omitted in good faith

conformity with the rules and regulations of the SEC and, therefore, pursuant to section 23(a) of the Securities Exchange Act of 1934, there is no liability for any act or omission so alleged. 11. The matters alleged to be the subject of misrepresentations or omissions were

publicly and prominently disclosed, and were available to Plaintiff and the securities market. 12. The acts and practices of persons or entities not associated with Qwest or any of

the Individual Defendants, and ongoing economic events, constitute intervening and superseding causes of the alleged harm, if any, suffered by Plaintiff, and some or all of the decline in the value of Qwest securities was the result, not of any omission or misstatement on the part of Qwest or any Individual Defendants, but rather of a general decline in the market, especially among securities in the telecommunications sector. Should Plaintiff recover damages against Tempest, the amount of those damages should be abated, reduced, or eliminated accordingly.

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13.

Plaintiff had actual or constructive knowledge of some or all of the facts alleged

in the Complaint upon which Tempest's liability is asserted at the time that Plaintiff acquired Qwest securities, and assumed the risk that the value of Qwest securities could decline. 14. Some or all of the damage, loss, or injury allegedly sustained by Plaintiff

represents losses other than the depreciation in market price or value of the securities resulting from such parts of the registration or financial statements alleged to be untrue or to omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. 15. Plaintiff knew or should have known the financial condition of Qwest and the

risks associated with the development of Qwest's products, and in failing to consider these risks, assumed the risk that they might be damaged by acquiring Qwest securities. 16. Plaintiff purchased Qwest securities after public announcements of adverse

market trends in the telecommunications industry and thus had actual or constructive notice of the matters alleged herein and assumed the risk of decline in the market value of the securities they purchased. 17. Plaintiff neither relied nor reasonable relied on any of the allegedly untrue

statements of material fact, omissions of materials fact, or misleading statements or other wrongful conduct upon which Tempest's purported liability rests. 18. Plaintiff's claim is barred, in whole or in part, because the asserted injury, if any,

was not proximately caused by Tempest. 19. Plaintiff would have acquired Qwest securities common stock even if, when

acquired, Plaintiff had known of the allegedly untrue statements of material fact, omissions of

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materials fact, or misleading statements or other wrongful conduct upon which Tempest's purported liability rests. 20. When it acquired Qwest securities, Plaintiff knew, or in the exercise of reasonable

care should have known, of the facts with respect to the allegedly untrue statements of material fact, omissions of material fact, misleading statements or other actions alleged in the Complaint. Plaintiff was negligent and this negligence was a cause-in-fact and a proximate cause of any alleged damages. Such negligence bars recovery in whole or in part. 21. 22. Plaintiff has failed to mitigate any damages it may have suffered. Any recovery for damages allegedly incurred by Plaintiff is subject to offset in the

amount of any tax benefits or other benefits actually received through its investments. 23. The claims alleged in the Complaint are barred, in whole or in part, by the

applicable statute of limitations. 24. The claims alleged in the Complaint are barred, in whole or in part, by res

judicata, in light of the final judgment of settlement in Strauss v. Anschutz, et al, No. 02-CV-8188 (Colo. 2d Dist., Denver County). 25. Some or all of the alleged untrue statements of material fact, omissions of

material fact, misleading statements, or other challenged statements are rendered non-actionable by the Safe Harbor provisions of the Private Securities Litigation Reform Act of 1995, as codified at 15 U.S.C. § 78u-5(c). 26. Plaintiff's claims for attorneys fees are barred on the ground that no statutory

right to attorneys fees exists and each party is therefore required to bear its own costs and fees.

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27.

Without admitting that attorneys fees are available, the Complaint fails to allege

facts sufficient to support a claim for attorneys fees. 28. Plaintiff is barred from recovery, in whole or in part, because Tempest acted in

good faith reliance on the advice of other persons. 29. Tempest had no knowledge of or reasonable ground to believe in the existence of

the facts by reason of which the liability of Tempest is alleged to exist. 30. Plaintiff is barred from recovery, in whole or in part, because with respect to all

alleged untrue statements of material fact, omissions of material fact, misleading statements, or other challenged statements, Tempest had, after reasonable investigation, reasonable grounds to believe and did in good faith believe, at the time those statements were made and all relevant times, that the statements were true and not misleading and that there were no omissions of material fact required to be stated necessary to make the statements not misleading. 31. Plaintiff is barred from recovery, in whole or in part, because with respect to all

alleged untrue statements of material fact, omissions of material fact, misleading statements, or other challenged statements, Tempest acted in good faith and had no knowledge that any such statement was false or misleading. 32. Some or all of the alleged untrue statements of material fact, omissions of

material fact, misleading statements, or other challenged statements contained sufficient cautionary language or risk disclosure to protect Tempest against claims of securities fraud, and are thus rendered non-actionable by the "bespeaks caution" doctrine. 33. Without admitting that any damages were suffered by Plaintiff, any damages

allegedly suffered were proximately cause by and contributed to by persons other than Tempest.

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The liability of all defendants and any responsible parties, named or unnamed, should be apportioned according to the relative degrees of fault, and the liability of Tempest should be reduced accordingly. 34. Without admitting that Qwest or any Individual Defendant is liable under the

Securities Exchange Act of 1934, and without admitting that Tempest controls either Qwest or any Individual Defendant, Tempest acted in good faith and did not directly or indirectly induce the act or acts constituting the violation of the Securities Exchange Act, or any rule or regulation thereunder, or the cause of action. 35. Without admitting that Qwest or any Individual Defendant is liable under the

Colorado Securities Act, and without admitting that Tempest controls either Qwest or any Individual Defendant, Tempest did not know, and in the exercise of reasonable care could not have known, of the existence of the facts constituting the violation or cause of action. 36. Without admitting that Qwest or any Individual Defendant is liable under the

Colorado Securities Act, and without admitting that Tempest controls either Qwest or any Individual Defendant, Tempest acted in good faith and did not, directly or indirectly, induce the act or acts constituting the violation or cause of action. 37. Colorado. 38. 39. Tempest did not sell any security that is the subject of this action to the Plaintiff. Plaintiff cannot pursue exemplary or punitive damages because Plaintiff included Tempest did not sell any security that is the subject of this action in the State of

that claim in its initial claim for relief and has failed to establish prima facie proof of a triable issue on exemplary or punitive damages.

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40.

Plaintiff's damages claims, including claims for compensatory, recissionary,

punitive, exemplary, and/or opportunity cost damages, are speculative and thus not recoverable. 41. Any award of punitive or exemplary damages would violate the procedural and/or

substantive due process safeguards provided under the Fifth, Sixth, Eighth and/or Fourteenth Amendments to the Constitution of the United States and/or the Constitution of the State of Colorado and/or various federal and state statutes and regulations. 42. Without admitting that exemplary or punitive damages are available, the

Complaint fails to allege facts sufficient to support a claim for exemplary or punitive damages, including but not limited to the absence of fraud, malice, or willful and wanton conduct. 43. Plaintiff is not the real party in interest and lacks standing to assert the claims

alleged in the Complaint. 44. Plaintiff's claims for equitable relief are barred, in whole or in part, because

Plaintiff has an adequate remedy at law. 45. The claims asserted in the Complaint are barred to the extent that they have been

settled, compromised, released, or otherwise discharged. 46. Tempest reserves the right to allege additional defenses as they become known

during discovery and other proceedings in this case, and to withdraw, amend, or modify his Answer accordingly. Tempest further reserves the right to withdraw defenses that he determines are not applicable during the course of discovery and other proceedings in this case.

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PRAYER FOR RELIEF WHEREFORE, Defendant Drake S. Tempest prays that judgment enter in his favor and against Plaintiff, that Plaintiff takes nothing by its Complaint and that Defendant be awarded his damages, punitive damages, attorneys' fees and costs and pre- and post-judgment interest. Dated: October 3, 2005

s/Paul H. Schwartz Paul H. Schwartz COOLEY GODWARD LLP James E. Nesland Jeffrey A. Smith 380 Interlocken Crescent, Suite 900 Broomfield, CO 80021-8023 Telephone: (720) 566-4000 FAX: (720) 566-4099 E-mail: [email protected] [email protected] [email protected] Attorneys for Defendant Drake S. Tempest

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CERTIFICATE OF SERVICE I hereby certify that on October 3, 2005, I electronically filed the foregoing DEFENDANT DRAKE S. TEMPEST'S ANSWER TO PLAINTIFF STICHTING PENSIOENFONDS, ABP'S FIRST AMENDED COMPLAINT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Timothy G. Atkeson Michael J. Barry Frederick J. Baumann Jeffrey A. Berens Nicholas M. Billings Terry W. Bird Bruce F. Black Jessica R. Brody Spencer A. Burkholz Kwame A. Clement David L. Cook John F. Cove, Jr. Marguerite S. Dougherty Michael J. Dowd Mark T. Drooks Stephanie E. Dunn Thomas E. Egler Clyde A. Faatz, Jr Christopher J.W. Forrest John A. Freedman Walter W. Garnsey, Jr Terence C. Gill Kirsten E. Gillibrand Michael J. Grudberg Mark C. Hansen Marcy M. Heronimus Scott M. Himes Michael J. Hoffman Kevin B. Huff Shelby Hunt Lee F. Johnston Roberta A. Kaplan James D. Kilroy Gary M. Kramer Alfred P. Levitt Martin D. Litt James M. Lyons [email protected] [email protected]; [email protected] [email protected]; [email protected] [email protected] [email protected] [email protected] [email protected]; [email protected] [email protected] [email protected]; [email protected] [email protected]; [email protected] [email protected] [email protected]; [email protected] [email protected] [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected] [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]; [email protected] [email protected] [email protected]; [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected] [email protected] [email protected]; [email protected]

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David Meister James D. Miller Robert N. Miller Blain D. Myhre Sharan Nirmul Cindy C. Oliver Neil Peck Elissa J. Preheim Kimberly W. Price Thomas V. Reichert Eric T. Rillorta Kenneth F. Rossman, IV Scott Saham David L. Schwarz David W. Shapiro Holly Stein Sollod Charles A. Stillman Jesus M. Vazquez, Jr. Jennifer H. Weddle David A. Zisser

[email protected] [email protected] [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected] [email protected] [email protected]; [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]; [email protected] [email protected] [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected]

and I hereby certify that a copy of the foregoing DEFENDANT DRAKE S. TEMPEST'S ANSWER TO PLAINTIFF STICHTING PENSIOENFONDS, ABP'S FIRST AMENDED COMPLAINT was placed in the United States Mail, postage prepaid, addressed to: Jonathan D. Schiller, Esq. David R. Boyd, Esq. Boies, Schiller & Flexner, LLP 5301 Wisconsin Avenue, N.W. Washington, DC 20015 Geoffrey C. Jarvis, Esq. Grant & Eisenhofer, P.A. 1201 North Market Street, Suite 2100 Wilmington, DE 19801 Scott B. Schreiber, Esq. Arnold & Porter 555 Twelfth Street, NW Washington, DC 20004-1206 Ty Cobb, Esq. Hogan & Hartson 1200 17th Street, Suite 1500 Denver, CO 80202 Vincent J. Marella, Esq. Bird, Marella, Boxer & Wolpert, APC 1875 Century Park East, 23rd Floor Los Angeles, CA 90067

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s/Paul H. Schwartz Paul H. Schwartz COOLEY GODWARD LLP James E. Nesland Jeffrey A. Smith 380 Interlocken Crescent, Suite 900 Broomfield, CO 80021-8023 Telephone: (720) 566-4000 FAX: (720) 566-4099 E-mail: [email protected] [email protected] [email protected] Attorneys for Defendant Drake S. Tempest
240661 v1/CO

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