Free Motion to Reopen Case - District Court of Colorado - Colorado

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

Document 1060

Filed 10/05/2006

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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, 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 BY INTERVENORS/OBJECTORS GRAHAM, FLOYD, HULL and AUSWR to RE-OPEN ADMINISTRATIVE PROCEEDINGS and FOR LEAVE to FILE MOTION FOR AWARD OF FEES and COSTS __________________________________________________________________________ INTERVENORS/OBJECTORS ELDON GRAHAM, HAZEL FLOYD, MARY M. HULL, and the ASSOCIATION OF U S WEST RETIREES (hereinafter "Graham Objectors"), by and through their counsel Curtis L. Kennedy, hereby move the Court to re-open administrative proceedings and for leave to file their motion for an award of attorney's fees and costs and, as grounds, state: 1. On September 29, 2006, this Court entered several rulings, giving final approval

for partial settlement of this matter, awarding Lead Plaintiffs' Counsel attorney's fees and partially sustaining objections made by Graham Objectors and others. On the same day, this Court entered a judgment for the Class and entered an order administratively closing the case, pursuant to Local Rule 42.2 (Docket 1054). The Court stated any party may seek to lift the administrative closure upon a showing of good cause. 2. Statement Pursuant to Local Rule 7.1: On September 29, 2006, the

undersigned counsel wrote to lead counsel specifically named in the January 5, 2006 Class

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

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Notice, seeking feedback whether there would be any objection to the following request: "As you know, today, Judge Blackburn entered Docket 1054 ordering this action "administratively closed" pending resolution of the criminal charges against defendant Nacchio in USA v. Nacchio, Case No. 05-cr-00545 (D. Colo.) and that any party may seek to lift the stay and administrative closure on a showing of good cause. Intervenors-Objectors contend that today's ruling (Docket 1051) sustaining their objections to the requested $96 million fee award and costs and, thereby, reducing the award to $60 million, much as argued by IntervenorsObjectors during the May 19 "Fairness Hearing," has resulted in a benefit very favorable to the class of shareholders. Accordingly, Intervenors-Objectors wish to file a motion for reimbursement out of the $36 million enhance settlement fund the cost of their expert witness fees ­ $23,000 charged by Professor Michael Perino ­ plus a reasonable award of attorney's fees based upon a modest lodestar enhancement. Therefore, pursuant to Local Rule 7.1, this is a request that you advise whether you have any objection to Intervenors-Objectors filing a motion to lift the administrative stay so as to address the issue of an award of attorney's fees and costs for Intervenors-Objectors. While, we are not seeking a bonanza, it would seem best to get this issue resolved before the settlement fund is distributed. Please let me know. Thank you." The only response was that given by Attorney Mike Dowd who stated as follows: "Lead plaintiffs have no objection to the Graham Objectors filing a motion seeking an order lifting the stay for the limited purpose of allowing Objectors to file a motion seeking attorneys' fees and related expenses in connection with their Objections to Plaintiffs' Motion for Attorneys' Fees and Reimbursement of Expenses. Plaintiffs do note, however, that they intend to oppose any such request for attorneys' fees and expenses by Objectors, if this Court lifts the stay to permit the filing of such a motion." 3. Graham Objectors contend the contribution their counsel made, by providing an

adversarial context in which this Court could evaluate the fairness of attorneys' fees, was substantial, and since their objections were partially sustained, in so far as the $96 million request was reduced to $60 million and there was a reduction in the requested expenses, the Class Settlement Fund and Class of shareholders benefitted and, therefore, the Court should consider an award of attorney's fees and reimbursement of related costs to Graham Objectors' counsel. This issue ought to be timely resolved before final distribution of the Class Settlement -2-

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

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Filed 10/05/2006

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Fund. 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 administratively reopening this case for the purposes of allowing Graham Objectors to submit a motion for an award of attorney's fees and reimbursement of costs. Graham Objectors request they be allowed ten (10) days from the date of the Court's order granting this motion within which to file their motion for attorney's fees and costs. Dated: October 5, 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 ("Graham Objectors")

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CERTIFICATE OF SERVICE I hereby certify that on the 5th day of October, 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

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