Free Motion for Hearing/Conference - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Action No. 01-CV-1451-REB-PAC (Consolidated with Civil Action Nos. 01-CV-1472, 01-CV-1527, 01-CV-1616, 01-CV1799, 01-CV-1930, 01-CV-2083, 02-CV-333, 02-CV-374, 02-CV-507, 02-CV-658, 02CV-755, 02-CV-798, and 04-CV-238) In re QWEST COMMUNICATIONS INTERNATIONAL INC. SECURITIES LITIGATION

QWEST'S UNOPPOSED MOTION TO SET GLOBAL SCHEDULING/STATUS CONFERENCE IN QWEST SECURITIES LITIGATIONS ASSIGNED TO THE HONORABLE ROBERT E. BLACKBURN

Qwest Communications International Inc. ("Qwest") respectfully moves for entry of an order setting a scheduling/status conference in the above-captioned matter and the ten related individual actions proceeding in the District of Colorado and assigned to the Honorable Robert E. Blackburn ("Global Status Conference").1 As discussed more fully below, the Global Status Conference is necessary to develop a unified, efficient pre-trial plan for these related Qwest securities cases. As good grounds therefore, Qwest states: 1. In addition to the above-captioned, consolidated class action, there are

currently ten individual lawsuits proceeding before this Honorable Court involving claims

Concurrently with the filing of this motion, Qwest is separately filing substantially identical motions in each of the related individual actions that are not consolidated hereunder.

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of securities fraud. These federal cases2 fall into three general categories. First, there is the above-captioned, consolidated class action ("Class Action").3 Second, there are a series of individual lawsuits (i.e., non-class actions) filed in the District of Colorado by pension funds ("Pension Fund Cases Filed In The District of Colorado") and assigned to Judge Blackburn.4 Third, there are a series of individual lawsuits filed by pension funds in federal courts outside the District of Colorado ("Pension Fund Cases Filed Outside The District of Colorado").5

In addition to those cases proceeding in federal court, there are four cases involving nearly identical claims and allegations as those in the Class Action that are proceeding in state courts in California, Colorado, Illinois, and New Jersey. A proposed settlement between the Lead Plaintiffs and the class they represent and certain defendants in the Class Action is currently pending before this Court for approval. Even if that settlement is approved, the Class Action will continue to proceed against two defendants. Stichting Pensioenfonds ABP v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 04-CV-238-REB-PAC (D. Colo.); New York City Employees' Retirement System et al. v. Qwest Commc'ns Int'l Inc. et al , Civ. A. No. 04-CV-1964-REB-PAC (D. Colo.); Shriners Hospitals For Children v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 04-CV781-REB-PAC (D. Colo.); Teachers' Retirement System of Louisiana v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 04-CV-782-REB-PAC (D. Colo.); Fire and Police Pension Ass'n of Colorado v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-732REB-MEH (D. Colo.); Denver Employees Retirement Plan v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-1539-REB-BNB (D. Colo.). A motion to consolidate Denver Employees Retirement Plan v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV1539-REB-BNB (D. Colo.) into the above captioned action (Docket No. 1035) remains pending. San Francisco Employees Retirement System v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-1790-REB (D. Colo.); New York State Common Retirement Fund v. Qwest Comm. Int'l Inc. et al., Civ. A. No. 06-CV-1789-REB (D. Colo.); Pennsylvania Public School Employees' Retirement System v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-1788-REB (D. Colo.); Merrill Lynch Master Basic Value Trust Fund et al., v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-4790-SAS (S.D.N.Y). 2
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2.

On August 15, 2006, the Judicial Panel on Multidistrict Litigation ordered

that all of the Pension Fund Cases Filed Outside The District of Colorado be transferred to Judge Blackburn for consolidated or coordinated pre-trial proceedings with the Class Action and Pension Fund Cases Filed In The District of Colorado. A copy of the MDL Panel's August 15, 2006 Order is attached as Exhibit A to this motion. In its August 15, 2006 Order, the MDL Panel found that transfer was appropriate given the substantial overlap among these related proceedings and because "centralization" "will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation." 3. On September 11, 2006, this Court consolidated three of the four Pension

Fund Cases Filed Outside The District of Colorado6 and one of the Pension Fund Cases Filed In The District of Colorado7 under the case caption In re Qwest Communications International Inc. Securities and "ERISA" Litigation (No. II), Master Docket No. 06-CV-

San Francisco Employees Retirement System v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-1790-REB (D. Colo.); New York State Common Retirement Fund v. Qwest Comm. Int'l Inc. et al., Civ. A. No. 06-CV-1789-REB (D. Colo.); Pennsylvania Public School Employees' Retirement System v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-1788-REB (D. Colo.). The one Pension Fund Cases Filed Outside The District of Colorado that was not consolidated was Merrill Lynch Master Basic Value Trust Fund et al., v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06CV-4790-SAS (S.D.N.Y). The MDL Panel has now transferred that case as a tag-along, but the file has not yet been received by the District of Colorado Clerk's office. Qwest understands that, pursuant to this Court's September 11, 2006 Order, once the file has been received by the Clerk's office, the action will be consolidated as part of In re Qwest Communications International Inc. Securities and "ERISA" Litigation (No. II), Master Docket No. 06-cv-17880-REB-PAC (MDL Docket no. 1788). Fire and Police Pension Ass'n of Colorado v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-732-REB-MEH (D. Colo.). 3
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17880-REB-PAC (MDL Docket no. 1788). A copy of this Court's September 11, 2006 Order is attached as Exhibit B to this motion. 4. As a result of the MDL Panel's August 15, 2006 Order, this Court's

September 11, 2006 Order, and this Court's January 27, 2005 Order Providing for Coordinated Discovery With Parallel Qwest Litigation (Docket No. 560), the current posture of the Class Action, Pension Fund Cases Filed In The District of Colorado, and Pension Fund Cases Filed Outside The District of Colorado is as follows: a. Of the six Pension Fund Cases Filed In The District of Colorado, one case has already been formally consolidated for pre-trial purposes with the Class Action pursuant to FED. R. CIV. P. 42(A) and D. COLO. L. R. 42.1,8 one case has been consolidated with three of the four Pension Fund Cases Filed Outside The District of Colorado9, three cases have been coordinated (but not consolidated) for pre-trial purposes with the Class Action10, and one

Stichting Pensioenfonds ABP v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 04-CV-238-REB-PAC (D. Colo.). Additionally, numerous other putative class actions were previously consolidated. On September 12, 2001, this Court consolidated three securities cases with the Class Action. The Court subsequently consolidated two more securities cases on September 18, 2001 and October 4, 2001, respectively. Again, on May 6, 2002, this Court consolidated four more securities cases and ordered: "That any later filed cases that the court deems to be sufficiently related to these cases shall be consolidated with these cases." May 6, 2002, Order at 6 (Docket No. 78). Thereafter, the Court consolidated two additional actions, bringing the current total to 11 consolidated securities class actions. Fire and Police Pension Ass'n of Colorado v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-732-REB-MEH (D. Colo.). New York City Employees' Retirement System et al. v. Qwest Commc'ns Int'l Inc. et al , Civ. A. No. 04-CV-1964-REB-PAC (D. Colo.); Shriners Hospitals For 4
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case remains neither consolidated nor coordinated with any other case.11 b. Of the four Pension Fund Cases Filed Outside The District of Colorado, three have been consolidated with one of the Pension Fund Cases Filed In The District Of Colorado12, while the fourth is currently being transferred as a tag-along case.13 5. While tremendous substantive and procedural overlap exists among the

Class Action, the Pension Fund Cases Filed In The District of Colorado, and the Pension Fund Cases Filed Outside The District of Colorado, several important threshold procedural issues remain. For example, while motions to dismiss are substantially briefed and submitted for decision in one of the Pension Fund Cases Filed In The District of Colorado,14 defendants have yet to answer or file motions to dismiss in two of

Children v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 04-CV-781-REB-PAC (D. Colo.); Teachers' Retirement System of Louisiana v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 04-CV-782-REB-PAC (D. Colo.). Denver Employees Retirement Plan v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-1539-REB-BNB (D. Colo.) Fire and Police Pension Ass'n of Colorado v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-732-REB-MEH (D. Colo.). Merrill Lynch Master Basic Value Trust Fund et al., v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-4790-SAS (S.D.N.Y). On September 8, 2006, the MDL Panel issued an order conditionally transferring the Merrill Lynch case to the District of Colorado. See Exhibit C, September 8, 2006 Conditional Transfer Order. New York City Employees' Retirement System et al. v. Qwest Commc'ns Int'l Inc. et al , Civ. A. No. 04-CV-1964-REB-PAC (D. Colo.). Neither Defendant James Smith nor Defendant Robert Woodruff has filed a motion to dismiss in New York City Employees' Retirement System et al. v. Qwest Commc'ns Int'l Inc. et al , in light of the status of their motions to dismiss in Stichting Pensioenfonds ABP v. Qwest Commc'ns Int'l Inc. et al. See n.16, infra. 5
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the other Pension Fund Cases Filed In The District of Colorado,15 and most motions to dismiss have been decided and answers filed in three others.16 Attached as Exhibit D is a chart summarizing the procedural posture between and among the Pension Fund Cases Filed In The District of Colorado and the Pension Fund Cases Filed Outside The District of Colorado. 6. Similarly, motions to dismiss are fully briefed ­ or nearly fully briefed ­ in

two of the Pension Fund Cases Filed Outside The District of Colorado (although at least certain of them briefed with a now inappropriate focus on a different circuit's law, which may necessitate revision and re-filing),17 while motions to dismiss or answers have yet to be filed in any of the others.18

Fire and Police Pension Ass'n of Colorado v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-732-REB-MEH (D. Colo.); Denver Employees Retirement Plan v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-1539-REB-BNB (D. Colo.). Stichting Pensioenfonds ABP v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 04-CV-238-REB-PAC (D. Colo.); Shriners Hospitals For Children v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 04-CV-781-REB-PAC (D. Colo.); Teachers' Retirement System of Louisiana v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 04-CV782-REB-PAC (D. Colo.). It is unclear at this time whether motions to dismiss filed by James Smith and Robert Woodruff in Stichting Pensioenfonds ABP v. Qwest Commc'ns Int'l Inc. et al remain pending. See Class Action Docket No. 831. New York State Common Retirement Fund v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-1789-REB (D. Colo.); Merrill Lynch Master Basic Value Trust Fund et al. v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-4790-SAS (S.D.N.Y). San Francisco Employees Retirement System v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-1790-REB (D. Colo.); Pennsylvania Public School Employees' Retirement System v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV1788-REB (D. Colo.). 6
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7.

Qwest respectfully submits that given the complex interrelationship

between and among these cases, it would be appropriate for this Court to conduct the Global Status Conference in order: a. To consider a unified, efficient pre-trial plan for the Class Action, Pension Fund Cases Filed In The District of Colorado, and Pension Fund Cases Filed Outside The District of Colorado;19 b. To consider the appropriate schedule for submission and/or completion of motions to dismiss in those Pension Fund Cases Filed In The District of Colorado and Pension Fund Cases Filed Outside where such matters remain unresolved20; and c. To consider how discovery should proceed in these cases following resolution of motions to dismiss.21 Underscoring the need for a unified, efficient pre-trial plan in these cases is the fact that Qwest has been required to file this motion ­ a motion seeking a simple status conference ­ in six separate actions. Significantly, establishing a unified schedule for motions to dismiss will permit the parties to comply with Paragraph 7 of this Court's September 11, 2006 Order, which provides: "If counsel for more than one party plan to file substantially identical pleadings or papers, then they shall confer and shall join in the submission of such papers and shall file only one paper on behalf of all so joined." Currently, motion to dismiss deadlines are suspended in some of the cases while not in others. If these deadlines were unified and sufficiently extended, the parties anticipate being able to reduce significantly the total volume of pleadings through joinder per the Court's September 11 Order. Those cases in which motions to dismiss remain unresolved are subject to the automatic stay established by the Private Securities Litigation Reform Act of 1995. See 15 U.S.C. 78u-4(b)(3)(B) ("In any private action arising under this chapter, all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss, unless the court finds upon the motion of any party that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party."). 7
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8.

In advance of the requested Global Status Conference, Qwest would

request the opportunity to submit a status report and proposed scheduling order. 9. Undersigned counsel has conferred with opposing counsel pursuant to

D.C.Colo.L.R. 7.1. All counsel in the various actions cited above have consented to the requested relief. WHEREFORE, Qwest respectfully requests that this Court schedule a Global Status Conference in the Class Action, the Pension Fund Cases Filed In The District of Colorado, and Pension Fund Cases Filed Outside The District of Colorado to address these matters and such other matters as this Court deems appropriate.

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DATED: September 15, 2006 Respectfully submitted, __/s/ Alfred P. Levitt_____________ Jonathan D. Schiller David Boyd Alfred Levitt BOIES, SCHILLER & FLEXNER LLP 5301 Wisconsin Avenue, N.W. Washington, DC 20015 Telephone: (202) 237-2727 Facsimile: (202) 237-6131 Terence C. Gill SHERMAN & HOWARD, L.L.C. 633 Seventeenth Street, Suite 300 Denver, CO 80202 Telephone: (303) 297-2900 Facsimile: (303) 298-0940 Attorneys for Qwest Communications International Inc.

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CERTIFICATE OF SERVICE I hereby certify that on this 15th day of September, 2006, a copy of the foregoing QWEST'S UNOPPOSED MOTION TO SET GLOBAL SCHEDULING/STATUS CONFERENCE IN QWEST SECURITIES LITIGATIONS ASSIGNED TO THE HONORABLE ROBERT E. BLACKBURN was electronically filed with the Clerk of the Court using the USDC CM/ECF system, which will send notification of such filing to the following e-mail addresses: X. Jay Alvarez Timothy G. Atkeson [email protected] [email protected] Counsel for Lead Plaintiffs Counsel for Defendants Arthur Andersen & Iwan Counsel for Plaintiff Stichting Pensioenfonds ABP Local Counsel for Lead Plaintiffs Counsel for Defendant Szeliga Counsel for Defendants Arthur Andersen & Iwan Counsel for Lead Plaintiffs Counsel for Defendant Woodruff Counsel for Defendants Arthur Andersen & Iwan Counsel for Defendant Woodruff

Michael J. Barry

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

Jeffrey A. Berens Terry W. Bird Jessica Brody

Spencer A. Burkholz John K. Carroll Kwame A. Clement

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

David L. Cook

[email protected]

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Jennifer L. Coon Merrill G. Davidoff

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

Counsel for Defendant Szeliga Counsel for Plaintiff New Jersey Dept. of Treasury Counsel for Lead Plaintiffs Counsel for Defendant Szeliga Counsel for Defendant Smith Counsel for Lead Plaintiffs Counsel for Defendant J. Kozlowski in the SEC matter Local Counsel for Plaintiff Stichting Pensioenfonds ABP Local Counsel for Plaintiff Stichting Pensioenfonds ABP Counsel for Defendants Arthur Andersen & Iwan Local Counsel for Defendant Qwest Communications Int. Inc.

Michael J. Dowd Mark T. Drooks Stephanie E. Dunn Thomas E. Egler Kevin D. Evans

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

Clyde A. Faatz, Jr.

[email protected]

Christopher J. W. Forrest John A. Freedman

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

Terence C. Gill

[email protected]

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Marcy M. Heronimus

[email protected] [email protected]

Local Counsel for Defendant Qwest Communications Int. Inc. Counsel for Defendants Anschutz & Slater Counsel for Defendants Anschutz & Slater Counsel for Defendants Arthur Andersen & Iwan Counsel for Defendant Casey Counsel for M. Schumacher Counsel for Defendant Szeliga

Michael J. Hofmann

[email protected]

Kevin B. Huff

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

Shelby Hunt

Richard Jacobson Gary M. Kramer Vincent J. Marella David Meister James D. Miller Robert N. Miller Barbara C. Moses Edward S. Nathan James E. Nesland Sharan Nirmul

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

[email protected] Counsel for Defendant Woodruff [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Counsel for Defendant Woodruff Counsel for Defendant Smith Counsel for Defendant Mohebbi Counsel for Defendant Nacchio Counsel for Defendant Tempest Counsel for Plaintiff

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[email protected] Robin L. Nolan [email protected] [email protected] [email protected] [email protected]

Stichting Pensioenfonds ABP Local Counsel for Plaintiff Stichting Pensioenfonds ABP Counsel for Defendants Arthur Andersen & Iwan Counsel for Defendant Woodruff Counsel for Defendant Szeliga Local Counsel for Defendant Nacchio Counsel for Defendants Arthur Andersen & Iwan Counsel for Defendant Mohebbi Counsel for Lead Plaintiffs Counsel for Defendants Arthur Andersen & Iwan Counsel for Defendant Tempest Counsel for Defendants Anschutz & Slater Counsel for Defendant Nacchio Counsel for Defendant Tempest

Elissa J. Preheim

Kimberly W. Price Thomas V. Reichert John M. Richilano Eric T. Rillorta Ashley Rupp Scott Saham Scott Schreiber Paul H. Schwartz

[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]

David L. Schwarz Joel M. Silverstein Jeffrey A. Smith

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Jeffrey Speiser Herbert J. Stern Michael Trager Kevin Traskos

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

Counsel for Defendant Nacchio Counsel for Defendant Nacchio Counsel for Defendant Casey Counsel for Intervenor Plaintiff - The United States Dept. of Justice Counsel for Alvarado, Haines, Hellman, & Stephens

Jesus M. Vazquez, Jr.

and, I also certify that I have served same by depositing in the U.S. Mail, first-class postage prepaid, addressed to the following: Joe R. Whatley, Jr. Glen Connor Whatley Drake, LLC 2323 Second Avenue North Birmingham, AL 35202 Counsel for Plaintiff in ERISA matter Phone: 205.328.9576 Fax: 205.328.9669 [email protected] [email protected] C. Mylett PO Box 1031 Coleman, FL 33521 Plaintiff in Rogers, Mylett Matter William M. Rogers 606 S. Military Trail Deerfield Beach, FL 33442 Plaintiff in Rogers, Mylett Matter

/s/ Jed Donaldson Jed Donaldson

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