Free Reply to Response to Motion - District Court of Colorado - Colorado

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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 COMMUNICATIONS INTERNATIONAL INC.'S REPLY TO PLAINTIFF FIRE AND POLICE PENSION ASSOCIATION OF COLORADO'S OPPOSITION TO QWEST'S MOTION TO CONSOLIDATE (DOCKET NO. 1024, FILED MAY 30, 2006)

Relying on a series of distorted and incorrect factual assertions, the Fire & Police Pension Association of Colorado ("the Association") maintains that, despite the near total overlap of issues with In re Qwest Communications International Inc. Securities Litigation, its lawsuit should proceed before the Honorable Phillip S. Figa, rather than the Honorable Robert E. Blackburn. The Association advances this argument despite the fact that Judge Blackburn has efficiently presided over nearly identical consolidated and coordinated cases for more than four years. The Association's position is meritless. As it has done in similar cases before, this Court should consolidate for all pre-trial purposes Fire and Police Pension Association of Colorado v. Qwest Communications International Inc., et al., 06-CV-732PSF-MEH ("FPPA Action") with In re Qwest Communications International Inc. Securities Litigation, Civil Action No. 01-CV-1451-REB-PAC ("Class Action").

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I. CONSOLIDATION WILL FACILITATE THE EFFICIENT ADMINISTRATION OF JUSTICE. A. The Proposed Partial Settlement In The Class Action Does Not Limit The Efficiencies From Consolidation. The Association's opposition boils down to its flawed contention that consolidation would "serve no legitimate purpose" because Qwest will no longer be a defendant in the Class Action if the proposed partial settlement of that case is approved. (Opp'n at 2-5.) In fact, even if the proposed partial settlement of the Class Action were approved, Qwest will remain a defendant in the four pension fund cases currently proceeding before Judge Blackburn. Among those is Stichting Pensioenfonds APB v. Qwest, et al., a case that this Court has formally consolidated with the Class Action ("Stichting"; the Class Action and Stichting, collectively "the Consolidated Proceeding"). See In re Qwest Communications International Inc. Sec. Litig., 01-CV-1451-REB-PAC, Docket No. 610, Order Granting Defendants' Motion To Consolidate (D. Colo. Mar. 29, 2005) ("Stichting Consolidation Order"). Thus, despite the Association's assertions to the contrary, even if the proposed partial settlement in the Class Action were approved, Qwest will remain a defendant in the Consolidated Proceeding. Furthermore, Qwest will remain a defendant in the three other pension fund cases ­ NYCERS,1 Shriners,2 and Louisiana Teachers3 ­ proceeding before Judge Blackburn and formally coordinated

New York City Employees' Retirement System, et al., v. Qwest Communications International Inc., et al., 04-CV-1964-REB-PAC. Shriners Hospitals for Children v. Qwest Communications International Inc., et al., 04-CV-781-REB-PAC. Teachers' Retirement System of Louisiana v. Qwest Communications International Inc., et al., 04-CV-782-REB-PAC.
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with the Class Action. Additionally, as this Court is well aware, even if the proposed partial settlement of the Class Action were approved, that case will proceed against Messrs. Nacchio and Woodruff. Put simply, the Association's suggestion that its lawsuit ­ a lawsuit with nearly total factual and legal overlap with the Coordinated Proceeding ­ should proceed before a judge other than Judge Blackburn makes no sense. B. Consolidation Is Efficient And Appropriate. The Association asserts nearly the same claims against the same persons who were named, at various times, in the Consolidated Proceeding. The various decisions of this Court in the Consolidated Proceeding will therefore be directly relevant to the nearly identical issues that will be presented in the Association's case. Additionally, discovery issues, including the coordination of parallel civil and criminal proceedings, will be identical for the Association's case and the Consolidated Proceeding as the cases involve near identical claims and allegations. For example, Stichting alleges the precise Colorado state law claims that the Association suggests differentiate its case from the Consolidated Proceeding. Indeed, the only remarkable aspect of the FPPA Action is the relatively small size of its claimed losses. The class alleges losses in the billions. Stichting claims losses of over $100 million. NYCERS, Shriners, and Louisiana Teachers claim aggregate losses of several times that amount. By contrast, the Association claims losses of approximately $1.5 million (Opp'n at 1), a tiny fraction of the overall claims in the related proceedings before this Court. The Association's relatively modest claim merely

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underscores why it would be inefficient to have this case proceed outside the structure of consolidation. As discussed in more detail in Qwest's opening brief, this Court has broad discretion to consolidate actions involving common questions of law or fact for trial or pretrial purposes to facilitate the efficient administration of justice. Fed. R. Civ. P. 42(a); Katz v. Realty Equities Corp. of New York, 521 F.2d 1354, 1358 (2d Cir. 1975); Breaux v. Amer. Family Mut. Ins. Co., 220 F.R.D. 366, 367 (D. Colo. 2004). Because the Association's claims "involve proof of the same type" as the claims at issue in the Consolidated Proceeding, such that there are "questions of law and fact [in] common," this Court should consolidate this action with the Consolidated Proceeding. See Stichting Consolidation Order at 2. II. MODIFICATION OF THE COORDINATED DISCOVERY ORDER IS NOT NECESSARY OR APPROPRIATE AT THIS TIME. In a novel "in the alternative" argument, the Association asks the Court to "significantly modify" the Coordinated Discovery Order, affecting the rights of all parties bound by that order in unspecified ways. (Opp'n at 5-7.) The Association's attempt to advance this argument in the context of an opposition to consolidation is procedurally defective. Further, the attempt is improper. The Association will be subject to the PSLRA stay when defendants respond to its complaint. Until those matters are resolved, it will be in no position to seek to lead any discovery effort, as the Association proposes.

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The Association's "hail Mary play," seeking to modify this Court's controlling Discovery Coordination Order, merely underscores the need for consolidation. Consolidation enables a single judge to preside over closely related proceedings, avoiding the risk and inefficiency of inconsistent rulings and schedules, including those related to discovery. If this action is consolidated with the Consolidated Proceeding, all the parties and this Court will have an opportunity to evaluate in an appropriate context the extent to which, if any, existing discovery and pre-trial management orders should be modified. (Of course, an appropriate context would involve all parties concerned, not just those briefing this motion.) Further, the suggestion that Lead Counsel ­ to say nothing of Stichting, plaintiff in the other consolidated proceeding ­ has no incentive to continue to litigate if the partial settlement is approved is nonsense. Lead Counsel has expressed every intention of continuing to pursue claims against Messrs. Nacchio and Woodruff even if the proposed settlement is approved. Indeed, Lead Counsel continues to participate in depositions noticed in the Coordinated Qwest Cases, including one that occurred last week in Atlanta. Accommodation of the U.S. Attorney's requested coordination of discovery between the related civil cases and the pending criminal case is evidence of responsible and informed advocacy, not a lack of interest.

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III. CONCLUSION For the foregoing reasons, Qwest respectfully requests that this case be consolidated with the Class Action for all pre-trial purposes and that the April 20, 2006 minute order entered by Magistrate Judge Hegarty in the FPPA Action be vacated.

DATED: June 14, 2006

Respectfully submitted, _/s/ Alfred P. Levitt______________ Jonathan D. Schiller David R. Boyd Alfred P. Levitt Kenneth F. Rossman IV 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 Counsel for Qwest Communications International Inc.

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CERTIFICATE OF SERVICE I hereby certify that on this 14th day of June, 2006, a copy of the foregoing DEFENDANT QWEST COMMUNICATIONS INTERNATIONAL INC.'S REPLY TO PLAINTIFF'S OPPOSITION TO QWEST'S MOTION TO CONSOLIDATE 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 [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

Timothy G. Atkeson

[email protected]

Michael J. Barry

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

Jeffrey A. Berens

Terry W. Bird

[email protected]

Jessica Brody

[email protected]

Spencer A. Burkholz John K. Carroll

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

Kwame A. Clement

[email protected]

David L. Cook

[email protected]

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Jennifer L. Coon

[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.

Merrill G. Davidoff

Michael J. Dowd

[email protected]

Mark T. Drooks

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

Stephanie E. Dunn

Thomas E. Egler

Kevin D. Evans

Clyde A. Faatz, Jr.

[email protected]

Christopher J. W. Forrest

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

John A. Freedman

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 United States Attorney; Intervenor Plaintiff Counsel for Defendant Szeliga

Michael J. Hofmann

[email protected]

Kevin B. Huff

[email protected] [email protected]

Shelby Hunt

[email protected]

Richard Jacobson Gary M. Kramer William J. Leone

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

Vincent J. Marella

David Meister

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

James D. Miller

Robert N. Miller

[email protected]

Barbara C. Moses

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

Edward S. Nathan

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James E. Nesland

Sharan Nirmul

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

Counsel for Defendant Tempest Counsel for Plaintiff 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

Robin L. Nolan

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

Elissa J. Preheim

Kimberly W. Price Thomas V. Reichert John M. Richilano

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

Eric T. Rillorta

Ashley Rupp

[email protected]

Scott Saham

[email protected]

Scott Schreiber

[email protected]

Paul H. Schwartz

David L. Schwarz

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

Counsel for Defendants Anschutz & Slater

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Joel M. Silverstein

[email protected]

Counsel for Defendant Nacchio Counsel for Defendant Tempest

Jeffrey A. Smith

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

Jeffrey Speiser

Counsel for Defendant Nacchio Counsel for Defendant Nacchio Counsel for Defendant Casey Counsel for Alvarado, Haines, Hellman, & Stephens

Herbert J. Stern

[email protected]

Michael Trager Jesus M. Vazquez, Jr.

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

and, I also certify that I have served same by depositing in the U.S. Mail, first-class postage prepaid, addressed to the following: Richard M. Heimann Joy A. Kruse Bruce W. Leppla Peter E. Leckman Lieff, Cabraser, Heimann & Bernstein, LLP 275 Battery Street; 30th Floor San Francisco, CA 94111-3339 Phone: 415.956.1000 Fax: 415.956.1008 Counsel for Plaintiff FPPAC [email protected] [email protected] [email protected] [email protected] 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]

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Robert F. Hill Ronald L. Wilcox Jennifer H. Hunt Hill & Robbins, P.C. 1441 18th Street; Suite 100 Denver, CO 80202-1256 Phone: 303.296.8100 Fax: 303.296.2388 Counsel for Plaintiff FPPAC [email protected] [email protected] [email protected]

/s/ Jed Donaldson Jed Donaldson

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