Free Motion to Stay - District Court of Colorado - Colorado

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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, 01-CV1616-REB-CBS, 01-CV-1799-REB-CBS, 01-CV-1930-REB-CBS, 01-CV-2083-REB-CBS, 02CV­0333-REB-CBS, 02-CV-0374-REB-CBS, 02-CV-0507-REB-CBS, 02-CV-0658-REB-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 OF PROPOSED INTERVENOR PLAINTIFF, UNITED STATES ATTORNEY'S OFFICE, DISTRICT OF COLORADO TO INTERVENE FOR THE LIMITED PURPOSE OF SEEKING A STAY OF DISCOVERY AND MEMORANDUM BRIEF IN SUPPORT ______________________________________________________________________________ The United States Attorney's Office for the District of Colorado (the "USAO") moves to intervene as a plaintiff in this action pursuant to Fed.R.Civ.P. 24(a)(2) or 24(b)(2) for the purpose of seeking to stay discovery proceedings and protective order pursuant to Fed.R.Civ.P. 26(c) and D.C.COLO.L.CIV.R. 30.2 as more specifically outlined below. The requested intervention and stay are necessary because the subject matter of the civil case now before this Court is directly related to the facts underlying an ongoing criminal investigation. In addition, the subject matter of this civil case is directly related to the facts underlying two pending criminal matters and three pending plea agreements. Permitting civil discovery to go forward may result in the premature disclosure of sensitive information that is important to the USAO's criminal case and investigation. Much of the subject matter of the 5th Consolidated Amended Class Action Complaint in this action ("5th Amended Complaint") is directly related to the underlying facts in

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the Criminal Information in Case No. 05-CR-234-WDM, United States of America v. Robin Szeliga, (alleging insider trading in connection with a scheme to violate §10b and Rule 10b-5) and to a Criminal Indictment in Case No. 03-CR-089-RB, United States of America v. Grant Graham et. al. (alleging securities fraud, and wire fraud). Although criminal Defendants Szeliga and Graham have both entered guilty pleas to felony charges, both plea agreements include covenants to provide the Government with truthful and complete information about Qwest and its agents' activities in connection with its ongoing investigation. In addition, a third criminal Defendant, Tom Hall, has pled guilty and been sentenced on charges of knowingly falsifying certain accounting documents relating to a large equipment transaction, known as the Arizona Transaction, which is a subject of this action. See ¶195, 5th Consolidated Amended Class Action Complaint. Hall's plea agreement likewise requires that he provide the Government with complete and truthful information as part of its ongoing investigation. RELIEF SOUGHT AND POSITIONS OF THE PARTIES Consistent with Magistrate-Judge Shaffer's order of July 28, 2005, the USAO seeks to stay all discovery until September 30, 2005. In accordance with the Court's order, the USAO and the parties will seek to identify specific discovery that can go forward in this and the SEC action and to submit proposals by September 12, 2005. Counsel for plaintiffs opposes this motion on the basis that some discovery can go forward. The USAO, in discussions with plaintiff's counsel has identified some discovery that it concurs can proceed. However, in light of the Court's comments during the July 28 hearing to the effect that (1) discovery in the class action and the SEC action needs to be closely 2

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coordinated, and (2) that all interested parties, including prospective witnesses in the class action and parties in both actions should be heard as to the impact of proceeding with discovery on their rights, the USAO has elected to move to stay all discovery in ths action until September 30, 2005 to permit presentation of a coordinated plan. The USAO does not suggest that it is unwilling to discuss allowing certain discovery to proceed. Pursuant to D.C.COLO.LCivR 7.1(A), the USAO has conferred with all parties in this matter. Plaintiff, through lead class counsel, consents to intervention, but objects to a complete stay. Defendants Qwest, Nacchio, Mohebbi, Szeliga, Anschutz and Slater do not object to the intervention and to the stay of proceedings. No defendants objected to the stay, but several have not responded to the government's request for a stay as of the time of the filing of this paper. STATEMENT OF FACTS The United States Department of Justice began its investigation of Qwest and its directors, officers and employees in 2002. As a result of that investigation, six former Qwest officers have been charged with the commission of a crime. Three have been convicted or pled guilty of crimes relating to violations of the securities laws. Two have been acquitted. A trial is scheduled for the sixth former executive in January, 2006. The subject matter of both the pending cases and the ongoing investigation substantially overlaps the allegations in the 5th Amended Consolidated Class Action Complaint. Specifically, the criminal information in Case No. 05-CR-234-WDM, United States of America v. Robin Szeliga alleges that Qwest's chief financial officer and others misled the investing public about the nature and source of Qwest's earnings and sold significant amounts of stock on the public 3

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securities markets knowing that the public was not fully aware of this information. See Exhibit A attached hereto. The 5th Amended Complaint contains similar allegations both with respect to insider stock sales and with respect to various misrepresentations, half truths and omissions allegedly made by Qwest executives. The Department of Justice's investigation is not yet concluded. First, the government has yet to complete its review of the information developed by the Securities Exchange Commission and made available to the government, as is expressly permitted and encouraged by existing law. Second, all three plea agreements require the pleading defendant to provide the government with complete and truthful information about events at Qwest that are the subject of the government's investigation. Finally, the government's investigation into insider trading and securities disclosures issues implicates many aspects of Qwest's business during the period 2000 through the announcement by Qwest of its restatement in 2002 and involves a massive amount of information to review and analyze. Both the Government and the parties to this litigation are interested in many of the same witnesses because of the overlapping nature of the allegations in the respective cases. On or about March 18, 2005, counsel for the government sent a letter to lead plaintiff's counsel and lead defense counsel advising all counsel of the government's ongoing investigation and seeking the parties' cooperation in scheduling discovery in a way that would not compromise the government's ongoing investigation. See Exhibit B attached hereto. As a result of the government's request, both the plaintiffs and the defendants have cooperated with respect to scheduling by deferring certain depositions and, as a result, the parties have not been forced to 4

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resort to court intervention on this issue. However, as the government's investigation has ripened (as evidenced by the change of plea of Qwest's chief financial officer that occurred on July 14, 2005), as the number of witnesses remaining to be deposed shrinks and the relative importance of these witnesses increases, and as the time to complete discovery in this case comes closer to an end, the need for a formal stay of certain discovery is apparent. Accordingly, the government seeks a stay of discovery and related deadlines until September 30, 2005. The government anticipates that, as part of its September 12, submission, it will seek to extend the stay beyond September 30 in some form. ARGUMENT I. INTERVENTION IS APPROPRIATE UNDER FEDERAL RULE OF CIVIL PROCEDURE 24 Under Rule 24(a)(2) of the Federal Rules of Civil Procedure, anyone may intervene as of right in an action when the applicant "claims an interest relating to the property or transaction which is the subject of the action" and the applicant is so situated that "disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest . . .." Alternatively, intervention may be permitted by the Court under Rule 24(b)(2) of the Federal Rules of Civil Procedure "when the applicant's claim or defense and the main action have a question of law or fact in common." The Tenth Circuit follows "a somewhat liberal line in allowing intervention." Utah Association of Counties v. Clinton, 255 F.3d 1246, 1249 (10th Cir. 2001) (citations omitted). Intervention is appropriate in this action under both cited provisions. The USAO has a direct and substantial interest in the subject matter of the instant civil case,

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which substantially parallels the facts of the criminal case that the USAO is currently prosecuting. Specifically, the USAO has a "discernible interest in intervening in order to prevent discovery in a civil case from being used to circumvent the more limited scope of discovery in the criminal matter." SEC v. Chestman, 861 F.2d 49, 50 (2d Cir. 1988). In Chestman, the Second Circuit held that the district court had not abused its discretion in permitting intervention by the Government under either Rule 24(a) or (b). Moreover, the USAO's interest in upholding the public interest in enforcement of the criminal laws cannot be protected adequately by the existing parties in the civil cases. Neither the SEC in its case, nor the plaintiffs in the civil class actions can represent the USAO's interests with respect to the investigation and enforcement of federal criminal statutes. Clearly, the parties in the civil cases are focused alternatively on maximizing and minimizing their financial recovery and are driven by cost benefit concerns that are irrelevant to the government's interest in seeking justice. As for the SEC, as another court recognized: [V]arious branches within the United States Government often have diverging interests. Thus, even though the SEC is involved in this action, the United States Attorney may have an interest in this litigation which is qualitatively different from the SEC's interest. Moreover, the United States Attorney is better equipped to explain its need for intervention in the instant case due to a parallel criminal investigation, rather than using the SEC as a conduit for such arguments. Securities and Exchange Commission v. Downe, 1993 WL 22126, at 12 (S.D.NY. Jan. 26, 1993) Courts thus have allowed the United States Attorney to intervene when it was believed that the case would interfere with a criminal prosecution. Id. (citations omitted).

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As a general rule, courts "have allowed the government to intervene in civil actions - especially when the government wishes to do so for the limited purpose of moving to stay discovery." Twenty First Century Corp. v. LaBianca, 801 F. Supp. 1007 (E.D.N.Y. 1992). See Downe, 1993 WL 22126 at 10; Kaiser v. Stewart, Civ. A. 96-6643, 1997 WL 66186 (E.D. Pa. Feb. 6, 1997) (granting intervention). The Third Circuit has noted that "[i]t is well established that the United States Attorney may intervene in a federal civil action to seek a stay of discovery when there is a parallel criminal proceeding, which is . . . already underway that involves common questions of law or fact." United States v. Mellon Bank, 545 F.2d 869 (3d Cir. 1976). See also Governor of the Fed'l Reserve System v. Pharaon, 140 F.R.D. 634, 638 (S.D.N.Y. 1991). Because civil discovery may, as a practical matter, impair or impede the USAO's ability to protect its interests in the enforcement of federal criminal law, the USAO respectfully submits that its application to intervene should be granted. II. A TEMPORARY STAY OF PROCEEDINGS IS APPROPRIATE

The government is advised that a number of witnesses of interest to the government either have been scheduled for depositions or that the parties are attempting to schedule their depositions prior to the discovery cutoff. As of the present time, these witnesses include the following: 7/26 8/11 Mark Evans Kathleen Kochis Investor Relations Financial Planning and Analysis

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8/15 8/16 8/23 8/25 9/06 9/06 9/12 9/15

Yash Rana Bryan Treadway Philip Anschutz Peter Hellman Mark Iwan Vinod Khosla Craig Slater Joseph Nacchio Roger Hoagland William Eveleth Drake Tempest Jim Gallegos Steve Jacobsen Lew Wilks Afshin Mohebbi Greg Casey Lee Wolfe Thomas Stephens Joel Arnold Robin Szeliga James A. Smith Mark Schumacher Craig Barrett

In-House Counsel Assistant Controller Chairman of the Board Board Member and member of the audit committee Arthur Andersen Partner in charge of the Qwest Audit Board Member Board Member CEO

Senior Vice President of Finance General Counsel Assistant General Counsel EVP-Global EVP QIS President and COO EVP Wholesale Investor Relations Director EVP Global CFO EVP Consumer, DEX Controller Board Member

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C.Y. Harvey Andrew Matsuyama Robert Woodruff

Board Member Arthur Andersen Manager CFO

Each of these witnesses possess information that is relevant and important to the government's investigation. The Government continues to review the facts and reserves the right to supplement this list as it does so. As noted, the transactions and scheme that are subject of the pending Information, Indictment and investigation substantially overlap the scheme and transactions alleged in the 5th Amended Complaint. The alleged criminal scheme to sell personal shareholdings at a time that the market was not fully informed of material information involves an overlap of actors with the 5th Amended Complaint. Information conveyed to the public and information deliberately withheld from the public can be identified by investor relations personnel. The true condition of Qwest's business can be explained by one or more Qwest EVPs, its president and its CFO. The Board members were privy to a number of discussions with Qwest management. In short, the listed witnesses possess core knowledge about the central subject of the government's investigation. There is thus an identity of questions of law and fact, of parties and potential parties, and of witnesses in the pending civil cases on the one hand, and in the ongoing criminal investigation on the other. Courts have long recognized that the interests of justice weigh in favor of a stay of parallel civil proceedings due to the variety of ways in which the civil proceeding may impede a criminal proceeding. See Application of Eisenberg, 654 F.2d 1107, 1113-14 (5th Cir. 1981)(it is "this circuit's policy that criminal prosecutions take priority over civil actions"); SEC v. Dresser 9

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Industries, Inc., 628 F.2d 1368 (D.C. Cir.1980); In re Par Pharmaceutical Inc. Securities Litig., 133 F.R.D. 12, 13-14 (S.D.N.Y. 1990) ("the weight of authority in this Circuit indicates that courts will stay a civil proceeding where the criminal investigation has ripened into an indictment"); United States v. One 1964 Cadillac Coupe DeVille, 41 F.R.D. 352, 353 (S.D.N.Y. 1966) ("where both civil and criminal proceedings arise out of the same or related transactions the government is ordinarily entitled to a stay of all discovery in the civil case until disposition of the criminal matter"). The reasons for the policy against civil discovery while criminal proceedings are open stem directly from the differences between civil and criminal proceedings. As the Fifth Circuit explained in Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962): The very fact that there is a clear distinction between civil and criminal actions required a government policy determination of priority: which case should be tried first. Administrative policy gives priority to the public interest in law enforcement. This seems so necessary and wise that a trial judge should give substantial weight to it in balancing the policy against the right of a civil litigant to a reasonably prompt determination of his civil claims or liabilities. Id. at 487. The courts have repeatedly recognized the priority that should be given to the "public interest in law enforcement." United States v. Hugo Key & Son, Inc., 672 F. Supp. 656, 685 (D.R.I. 1987); Driver v. Helms, 402 F. Supp. 683, 685 (D.R.I. 1975). As observed in In re Ivan F. Boesky Securities Litig., 128 F.R.D. 47, 49 (S.D.N.Y. 1989), "the public interest in the criminal case is entitled to precedence over the civil litigant." (Emphasis in original). In addition to the priority accorded criminal investigations by virtue of the public interest, courts repeatedly have recognized that a stay may be necessary to prevent a civil litigant from

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using civil discovery to avoid the restrictions that would otherwise apply in a criminal case. See, e.g., SEC v. Downe, No. 92 Civ. 4092, 1993 WL 22126 (S.D.N.Y. Jan. 26, 1993); Governor of the Fed'l Reserve System v. Pharaon, 140 F.R.D. 634, 639 (S.D.N.Y. 1991). As stated by the Circuit Court for the District of Columbia: It is well established that a litigant should not be allowed to make use of the liberal discovery procedures applicable to a civil suit to avoid the restrictions on criminal discovery and, thereby, obtain documents he might otherwise not be entitled to for use in his criminal suit. Founding Church of Scientology v. Kelley, 77 F.R.D. 378, 380 (D.C. Cir. 1977). See also Campbell, 307 F.2d at 487 (litigants may not use civil discovery "as a dodge to avoid the restrictions in criminal discovery"). Another court has stated that "[t]his abusive tactic is an improper circumvention of the restrictions of the criminal discovery rules. Protection of the integrity of the criminal justice process fully justifies this Court's taking remedial action." United States v. Phillips, 580 F. Supp. 517, 520 (N.D. Ill. 1984) (granting stay of discovery until conclusion of criminal trial). Rule 16 of the Federal Rules of Criminal Procedure expressly states that it "does not authorize the discovery . . . of statements made by government witnesses or prospective government witnesses except as provided in 18 U.S.C. § 3500." Fed. R. Crim. P. 16(a)(2). Title 18, United States Code, Section 3500 provides that in criminal cases the statements of government witnesses, such as witness testimony taken by the SEC or other witness interview notes available to the government, shall not be "the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case." The public policy

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against premature disclosure of the government's criminal case is so strong that courts are without power to order early production of witness statements. See United States v. Taylor, 802 F.2d 1108, 117-18 (9th Cir. 1986). Traditionally, the narrow scope of federal criminal discovery, unlike the broad scope of civil discovery, has been justified by three considerations of particular concern in a criminal proceeding: (1) the fear that broad disclosure of the essential elements of the prosecution's case will result in perjury and manufactured evidence; (2) the fear that revelation of the identity of prospective government witnesses will create the opportunity for intimidation of those witnesses, thereby discouraging the giving of information to the government; and (3) the fear that criminal defendants will unfairly surprise the prosecution at trial with information gained through discovery, while the self-incrimination privilege would effectively block any attempts by the Government to discover relevant evidence from the defendants. See Campbell, 307 F.2d at 487 n.12. In recognition of these distinctions and interests, courts have regularly stayed civil discovery and adjourned civil trials where a criminal proceeding is pending, both in order to prevent the civil discovery rules from being subverted into a device for improperly obtaining discovery in the criminal proceedings and to assure that the Government's ability to prosecute the criminal case is not undermined. This is particularly so where, as here, the pending criminal proceedings involves almost the same issues, evidence, and witnesses as the civil proceeding. Considerations of judicial economy and the public interest in efficient use of judicial resources also militate in favor of granting a stay. Issues common to both cases can be resolved 12

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in the criminal proceeding, thereby simplifying the civil action. This, in turn, may pare down the number of issues to be determined in the civil case. See United States v. Mellon Bank, N.A., 545 F.2d 869, 873 (3d Cir. 1976) ("resolution of the criminal case may moot, clarify, or otherwise affect various contentions in the civil case"); Twenty First Century Corp. v. LaBianca, 801 F. Supp. 1007 (recognizing judicial economy as a factor to be considered); Brock v. Tolkow, 109 F.R.D. 116, 120 (E.D.N.Y. 1985) (noting that resolution of criminal case "might reduce scope of discovery in the civil case and otherwise simplify the issues"). One district court observed: There is an unnamed party in every lawsuit - - the public. Public resources are squandered if judicial proceedings are allowed to proliferate beyond reasonable bounds. The public's right to a `just, speedy, inexpensive determination of every action'...is infringed, if a court allows a case...to preempt more than its reasonable share of the Court's time. United States v. Reaves, 636 F. Supp. 1578 (E.D. Ky. 1986) (citations omitted). The USAO likely will suffer irreparable prejudice if the civil defendants are permitted to obtain discovery, including notes of witness interviews and transcripts of investigative testimony, prior to the conclusion of the criminal proceedings. It would be exceedingly unfair to permit the defense to obtain discovery that may jeopardize the prosecutions and to which the defendant is not now entitled under the applicable federal rules and statutes. Furthermore, premature disclosure of witness testimony could provide a putative defendant, subject or target with the means to manufacture evidence or tailor defenses to fit the government's proof. The ongoing criminal proceedings should be permitted to proceed unimpaired by premature disclosure of discovery the defendants would not be entitled to in the pending criminal cases. The defendants will not suffer substantial prejudice if discovery is stayed temporarily because such a stay will be 13

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limited in duration. Finally, it is simply unmanageable to try to conduct full-scale civil discovery at the same time that the government is trying to complete its criminal investigation. As the civil litigants notice depositions, answer interrogatories and face disclosure deadlines, witnesses and parties will legitimately be inquiring of the government as to their status in the investigation before all the work necessary to accurately advise them has been completed. Witnesses will face difficult, and perhaps unnecessary, choices between asserting their fifth amendment rights and testifying in the civil case. In addition, the government may be forced to make premature decisions with respect to immunity as witnesses are called to be examined in a venue that is outside the government's control. The civil litigants may have, and probably will have, different ideas as to the order and relative significance of the witnesses than will the government in its criminal investigation. Finally, the scheduling difficulties and time demands for witnesses and counsel inherent in conducting separate interviews, and even duplicate testimony in the civil and criminal cases in order for the government to complete its criminal investigation expeditiously all weigh in favor of a stay. CONCLUSION For the foregoing reasons, the government respectfully requests that this Court grant its application to intervene and for a temporary stay of civil proceedings until September 30, 2005, and to further consider extending the stay at the hearing currently scheduled for September 28, 2005 in accordance with proposals to be submitted by the parties on or about September 12, 2005. 14

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Dated this 3rd day of August, 2005. Respectfully submitted,

s/William J. Leone William J. Leone WILLIAM J. LEONE United States Attorney 1225 17th Street, Suite 700 Denver, Colorado 80202 (303) 454-0100 Fax: (303) 454-0400 E-mail: [email protected]

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CERTIFICATE OF SERVICE This is to certify that on this 3rd day of August, 2005, I electronically filed the foregoing MOTION OF PROPOSED INTERVENOR PLAINTIFF, UNITED STATES ATTORNEY'S OFFICE, DISTRICT OF COLORADO TO INTERVENE FOR THE LIMITED PURPOSE OF SEEKING A STAY OF DISCOVERY AND MEMORANDUM BRIEF IN SUPPORT with the Clerk of the Court using the CM/ECF system which will send notification such filing to the following e-mail addresses: Timothy Granger Atkeson [email protected] Michael James Barry [email protected] [email protected];[email protected] Jeffrey Allen Berens [email protected] Nicholas M. Billings [email protected] Terry W. Bird [email protected] Spencer A. Burkholz [email protected] [email protected] Kwame A. Clement [email protected] [email protected] David Lawrence Cook [email protected] Jennifer Lynn Coon [email protected] [email protected] Marguerite S. Dougherty [email protected] Michael J. Dowd [email protected] [email protected] Mark T. Drooks [email protected] [email protected]

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Stephanie Erin Dunn [email protected] [email protected] Thomas E. Egler [email protected] [email protected] Clyde A. Faatz, Jr [email protected] [email protected];[email protected] Christopher James W. Forrest [email protected] [email protected];[email protected] Joshua David Franklin [email protected] [email protected] John A. Freedman [email protected] Walter W. Garnsey, Jr [email protected] [email protected] Marcy Marie Heronimus [email protected] [email protected];[email protected] Scott M. Himes [email protected] Michael James Hofmann [email protected] [email protected] Kevin Brent Huff [email protected] [email protected] Shelby Hunt [email protected] Lee Frederick Johnston [email protected] [email protected];[email protected] Roberta A. Kaplan [email protected] Gary Michael Kramer [email protected] [email protected]

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Alfred P. Levitt [email protected] [email protected] David Meister [email protected] James D. Miller [email protected] Robert Nolen Miller [email protected] [email protected] James E. Nesland [email protected] [email protected];[email protected] Sharan Nirmul [email protected] [email protected] Elissa J. Preheim [email protected] Kimberly Wolf Price [email protected] Thomas Vincent Reichert [email protected] [email protected] Eric Tolentino Rillorta [email protected] Kenneth F. Rossman, IV [email protected] Scott Saham [email protected] Paul Howard Schwartz [email protected] [email protected];[email protected];[email protected] David L. Schwarz [email protected] [email protected] Jeffrey Allen Smith [email protected] [email protected];[email protected] 18

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Holly Stein Sollod [email protected] [email protected];[email protected] Jesus Manuel Vazquez, Jr [email protected] [email protected] Jennifer H. Weddle [email protected] [email protected]

Manual Notice List
and I hereby certify that I have served the document to the following non CM/ECF participants in the manner indicated by the non-participant's name via U.S. Mail and e-mail (if available).
John K. Carroll Clifford Chance, US LLP-New York 31 West 52nd Street New York, NY 10019 Geoffrey C. Jarvis Grant & Eisenhofer, P.A. 1201 North Market Street #2100 Wilmington, DE 19801 Vincent J. Marella Bird, Marella, Boxer & Wolpert, APC 1875 Century Park East 23rd Floor Los Angeles, CA 90067 Cleo J. Rauchway Rothgerber, Johnson & Lyons, LLP United States District Court Box 11 1200 - 17th Street #3000 Denver, CO 80202 Scott B. Schreiber Arnold & Porter-DC 555 12th Street N.W. Washington, DC 20004 [email protected]

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Ray Mandlekar Lerach Coughlin Stoia Geller Rudman & Robbins LLP 9601 Wilshire Blvd., Suite 510 Los Angeles, Ca. 90210 [email protected] Daniel Berger Berger & Montague, P.C. 1622 Locust Street Philadelphia, Pa. 19103 [email protected] I. Walton Bader Bader & Bader LLP 50 Main Street PMB 1029, Suite 1000 White Plains, N.Y. 10606 James G. Stranch, III Branstetter Kilgore Stranch & Jennings 227 Second Avenue North Nashville, Tn. 37201 [email protected] Ellen Kelman Brauer, Buescher, Goldhammer, Kelman & Dodge, P.C. 1563 Gaylord Street Denver, Colorado 80206 [email protected] Andrew Entwistle Entwistle & Capucci LLP 123 N. Wacker Drive, Suite 1800 Chicago, Il. 60606 [email protected] Daniel C. Girard Girard Gibbs & De Bartolomeo LLP 601 California Street, Suite 1400 San Francisco, California 94108 [email protected] 20

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Michael Greco 6609 West North Avenue Oak Park, Il. 60302 Steven Williams Cotchett Pitre, Simon & McCarthy 840 Malcolm Road, Suite 200 Burlingame, Ca. 94010 [email protected] Rich Gonnello Entwistle & Capucci LLP 299 Park Avenue, 14th Floor New York, N.Y. 10171 Charles G. Michaels 4605 South Yosemite Street, #21 Denver, Colorado 80237 [email protected] Joel Sterns Sterns & Weinroth PC 50 West State Street Trenton, N.J. 08607 [email protected] Joe R. Whatley, Jr. Whatley Drake, LLC 2323 Second Avenue North Birmingham, Al. 35203 [email protected] Perry J. Schneider, Esq. Milodragovich, Dale, Steinbrenner & Binney, P.C. P.O. Box 4947 Missoula, Mt. 59806 [email protected]

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Andrew C. Littman Stevens, Littman, Biddison, Tharp & Weinberg, L.L.C. 250 Arapahoe, Suite 301 Boulder, CO. 80302 [email protected] Douglas P. Lobel Arnold & Porter LLP 1600 Tysons Blvd., Suite 900 McLean, Va. 22102 [email protected] Larry Mackey Barnes & Thornburg LLP 11 South Meridian Street Indianapolis, In. 46204 [email protected] J. Patrick Herald Baker & McKenzie LLP One Prudential Plaza 130 East Randolph Drive, Suite 3500 Chicago, Il. 60601 [email protected] Donn Pickett Bingham McCutchen LLP Three Embarcadero Center, 18th Floor San Francisco, CA. 94111 [email protected] Geoff Beckham Bingham McCutchen LLP 1900 University Avenue East Palo Alto, Ca. 94303 [email protected]

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David Stark Faegre & Benson LLP 3200 Wells Fargo Center 1700 Lincoln Street Denver, Colorado 80203-4532 [email protected] Scott Solberg Elmer Stahl Klevorn & Solberg LLP 224 South Michigan Avenue, Suite 1100 Chicago, Il. 60604 [email protected] Jonathan Dickey Gibson Dunn & Crutcher LLP 1881 Page Mill Road Palo Alto, Ca. 94304 [email protected] Gregory Joseph Gregory P. Joseph Law Offices LLC 805 Third Avenue, 31st Floor New York, N.Y. 10022 [email protected] M. Robert Thornton King & Spalding LLP 191 Peachtree Street Atlanta, Ga. 30303 [email protected] Mark D. Larsen Lindquist & Vennum P.L.L.P. 4200 IDS Center 80 South 8th Street Minneapolis, Mn. 55402 [email protected]

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Wendy Thurm Keker & Van Nest 710 Sansome Street San Francisco, Ca. 94111 [email protected] Stephen Peters Lindquist & Vennum P.L.L.P. 600 Seventeenth Street, Suite 1800S Denver, Colorado 80202 [email protected] Andrew Berry McCarter & English LLP Four Gateway Center 100 Mulberry Street Newark, N.J. 07102 [email protected] Paul Grand Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C. 565 Fifth Avenue New York, N.Y. 10017 [email protected] Kevin O'Keefe O'Keefe Lyons & Hynes, LLC 30 N. Lasalle Street, Suite 410 Chicago, Il. 60602 [email protected] H. Nicholas Berberian Neal, Gerber & Eisenberg LLP 2 N. Lasalle Street Chicago, Il. 60602 [email protected]

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E. Anne Hawkins Orrick, Herrington & Sutcliffe LLP The Orrick Building 405 Howard Street San Francisco, Ca. 94105-2669 Rebecca Justice Lazarus Gibson Dunn & Crutcher LLP One Montgomery Street, Suite 3100 San Francisco, Ca. 94104 [email protected] Norman Blears Heller, Ehrman, White & McAuliffe LLP 275 Middlefield Road Menlo Park, Ca. 94025-3506 [email protected] Larry Achron Heller, Ehrman, White & McAuliffe LLP 333 Bush Street San Francisco, CA. 94104-2878 David Seserman Hale Friesen, LLP 1430 Wynkoop Street, Suite 300 Denver, Colorado 80202 [email protected] Joseph McLaughlin Heller, Ehrman, White & McAuliffe LLP 120 West 45th Street New York, N.Y. 10036-4041 [email protected] Ty Cobb Hogan & Hartson LLP 1200 17th Street, Suite 1500 Denver, Colorado 80202 [email protected] 25

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Bruce F. Black Holme Robert & Owen LLP 1700 Lincoln Street, Suite 4100 Denver, Colorado 80203 [email protected] Charles Stillman Stillman & Friedman, P.C. 425 Park Avenue New York, N.Y. 10022 [email protected]

s/William J. Leone William J. Leone WILLIAM J. LEONE United States Attorney 1225 17th Street, Suite 700 Denver, Colorado 80202 (303) 454-0100 Fax: (303) 454-0400 E-mail: [email protected]

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