Free Motion to Vacate - District Court of Colorado - Colorado

Case 1:04-cv-00782-REB-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Case No. 04-CV-0782-REB-PAC TEACHERS' RETIREMENT SYSTEM OF LOUISIANA, the Retirement System for Teachers employed by the State of Louisiana, Plaintiff, v. QWEST COMMUNICATIONS INTERNATIONAL INC., a Delaware Corporation having its principal office and place of business in Denver, et al., Defendants. ________________________________________________________________ UNOPPOSED MOTION TO ADJOURN NOVEMBER 13, 2006 SCHEDULING/PLANNING CONFERENCE AND RELATED DEADLINES ________________________________________________________________ Qwest Communications International Inc. ("Qwest") respectfully moves for entry of an order adjourning the November 13, 2006 scheduling/planning conference and related deadlines established by this Court's September 19, 2006 Order Setting Scheduling/Planning Conference (Docket No. 91). This motion is not opposed by any party. As discussed more fully below, Qwest has filed a motion for a status conference ("Global Status Conference") in the above-captioned action, the related federal class action, five other related individual lawsuits pending in the District of Colorado, and four additional individual lawsuits that the Judicial Panel on Multidistrict Litigation ("MDL Panel") recently transferred to the District of Colorado for consolidated/coordinated proceedings before the Honorable Robert E. Blackburn. The purpose of the requested

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Global Status Conference is to address development of a unified, efficient pre-trial plan for these cases. Qwest respectfully submits that it would be inefficient for this Court and the parties to develop in isolation a pre-trial schedule in the above-captioned matter, especially given the MDL Panel's recent finding of substantial overlap among these related proceedings and that "centralization" of these actions "will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation." A copy of the MDL Panel's Order is attached as Exhibit A to this motion. It is Qwest's position that the pre-trial schedule in this case should be developed after the requested Global Status Conference and in conjunction with those related proceedings. As good grounds therefore, Qwest states: 1. This is one of many lawsuits brought by purchasers of Qwest securities

involving claims of securities fraud. Procedurally, the federal cases1 fall into three general categories. First, there is a consolidated class action proceeding before the Honorable Robert E. Blackburn in the District of Colorado under the case caption In re Qwest Communications International Inc. Securities Litigation, Civil Action No. 01-CV1451-REB-PAC ("Class Action").2 Second, there are a series of individual lawsuits (i.e., non-class actions) filed in the District of Colorado by pension funds ("Pension Fund
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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.
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A proposed settlement between the Lead Plaintiffs and class they represent and certain defendants in the Class Action is currently pending before Judge Blackburn for approval. Even if that settlement is approved, the Class Action will continue to proceed against two defendants. 2

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Cases Filed In The District of Colorado") and assigned to Judge Blackburn.3 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").4 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. See Exhibit A. 3. One of the Pension Fund Cases Filed In The District of Colorado has

already been formally consolidated for pre-trial purposes with the Class Action.5 Others (including the above-captioned action) are subject to formal discovery coordination

3

Stichting Pensioenfonds ABP v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 04CV-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-CV-781-REBPAC (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-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.).
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San Francisco Employees Retirement System v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-1790-REB-MEH (D. Colo.); New York State Common Retirement Fund v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-1789-REB-MEH (D. Colo.); Pennsylvania Public School Employees' Retirement System v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-1788-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-4790SAS (S.D.N.Y).
5

Stichting Pensioenfonds ABP v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 04CV-238-REB-PAC (D. Colo.). 3

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pursuant to court order.6 See Exhibit B, January 27, 2005 Order Providing for Coordinated Discovery With Parallel Qwest Litigation (Class Action Docket No. 560). 4. On September 11, 2006, Judge Blackburn consolidated three of the four

Pension Fund Cases Filed Outside The District of Colorado7 and one of the Pension Fund Cases Filed In The District of Colorado8 under the case caption In re Qwest Communications International Inc. Securities and "ERISA" Litigation (No. II), Master Docket No. 06-CV-17880-REB-MEH (MDL Docket no. 1788). A copy of Judge Blackburn's September 11, 2006 Order is attached as Exhibit C to this motion. 5. While tremendous substantive and procedural overlap exists among the

Class Action, Pension Fund Cases Filed In The District of Colorado, and Pension Fund Cases Filed Outside The District of Colorado, several important threshold procedural
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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-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.).
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San Francisco Employees Retirement System v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-1790-REB-MEH (D. Colo.); New York State Common Retirement Fund v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-1789-REB-MEH (D. Colo.); Pennsylvania Public School Employees' Retirement System v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-1788-REB-MEH (D. Colo.). The one Pension Fund Case 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 Judge Blackburn'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-MEH (MDL Docket no. 1788).
8

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.). 4

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issues will need to be addressed in order to develop a unified and efficient pre-trial schedule for these cases. For example, while motions to dismiss have been ruled upon in the above-captioned action and two others,9 defendants have yet to answer or file motions to dismiss in two of the Pension Fund Cases Filed In The District of Colorado.10 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),11 while motions to dismiss or answers have yet to be filed in any of the others.12 6. Additionally, in those Pension Fund Cases Filed In The District of

Colorado where Judge Blackburn has already resolved motions to dismiss,13 it may be

9

Stichting Pensioenfonds ABP v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 04CV-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-CV-782-REB-PAC (D. Colo.).
10

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.).
11

New York State Common Retirement Fund v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-1789-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).
12

San Francisco Employees Retirement System v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-1790-REB-MEH (D. Colo.); Pennsylvania Public School Employees' Retirement System v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 06-CV-1788-REBMEH (D. Colo.).
13

Stichting Pensioenfonds ABP v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 04-CV238-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 5

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difficult to establish a scheduling order or set a trial date while many of the key fact witnesses remain unavailable during the pendency of parallel criminal proceedings. 7. Qwest respectfully submits that the complex interrelationship between and

among these cases ­ a complexity that increased exponentially with the recent filing of the various pension fund cases ­ requires that scheduling in these matters be considered on a global basis. It is for this reason that Qwest has sought the Global Status Conference to present Judge Blackburn with the opportunity to assess consolidation of all these related cases and the development of a unified, efficient pretrial plan. 8. Undersigned counsel has conferred with counsel pursuant to

D.C.Colo.L.R. 7.1 and all counsel consent to this motion. WHEREFORE, Qwest respectfully requests that this Court adjourn the November 13, 2006 scheduling/planning conference and related deadlines established by this Court's September 19, 2006 Order Setting Scheduling/Planning Conference (Docket No. 91) pending a ruling on Qwest's pending Motion for a Global Status Conference among the Class Action, Pension Fund Cases Filed In District of Colorado, and Pension Fund Cases Filed Outside District of Colorado.

Louisiana v. Qwest Commc'ns Int'l Inc. et al., Civ. A. No. 04-CV-782-REB-PAC (D. Colo.). 6

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DATED: September 28, 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 28th day of September, 2006, a copy of the foregoing UNOPPOSED MOTION TO ADJOURN NOVEMBER 13, 2006 SCHEDULING / PLANNING CONFERENCE AND RELATED DEADLINES 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: Terence C. Gill [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] Counsel for Qwest Communications Int. Inc. Counsel for Qwest Communications Int. Inc. Counsel for William L. Eveleth Counsel for Richard L. Weston Counsel for William L. Eveleth Counsel for Plaintiff Counsel for John M. Walker Counsel for Douglas K. Hutchins Counsel for Bryan K. Treadway

Marcy M. Heronimus Karoline E. Jackson Douglas P. Lobel Larry A. Mackey Charles G. Michaels Stephen C. Peters John M. Richilano M. Robert Thornton

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and, I also certify that I have served same by depositing in the U.S. Mail, first-class postage prepaid, addressed to the following: I. Walton Bader Bader & Bader, LLP 50 Main Street; PMB 1029 Suite 1000 White Plains, NY 10606 Counsel for Plaintiff

/s/ Jed Donaldson Jed Donaldson

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