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

Case 1:04-cv-00781-REB-KLM

Document 93

Filed 09/15/2006

Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Case No. 04-cv-0781-REB-PAC SHRINERS HOSPITALS FOR CHILDREN, a Colorado Corporation, Plaintiff, v. QWEST COMMUNICATIONS INTERNATIONAL INC., a Delaware Corporation having its principal office and place of business in Denver, et al., Defendants.

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 related 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 action, there are currently ten additional

lawsuits proceeding before this Honorable Court involving claims of securities fraud.

Concurrently with the filing of this motion, Qwest is separately filing substantially identical motions in each of the related actions.

1

Case 1:04-cv-00781-REB-KLM

Document 93

Filed 09/15/2006

Page 2 of 11

These federal cases2 fall into three general categories. First, there is the 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 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 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. In re Qwest Communications International Inc. Securities Litigation, Civ. A. No. 01-CV-1451-REB-PAC. 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 Class 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
5 4 3 2

Case 1:04-cv-00781-REB-KLM

Document 93

Filed 09/15/2006

Page 3 of 11

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-CV17880-REB-PAC (MDL Docket no. 1788). A copy of this Court's September 11, 2006 Order is attached as Exhibit B to this motion.

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
7

6

Case 1:04-cv-00781-REB-KLM

Document 93

Filed 09/15/2006

Page 4 of 11

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 (Class Action 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 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.). 4
10 9

8

Case 1:04-cv-00781-REB-KLM

Document 93

Filed 09/15/2006

Page 5 of 11

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

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
14 13 12

11

Case 1:04-cv-00781-REB-KLM

Document 93

Filed 09/15/2006

Page 6 of 11

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
18 17 16

15

Case 1:04-cv-00781-REB-KLM

Document 93

Filed 09/15/2006

Page 7 of 11

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
21 20 19

Case 1:04-cv-00781-REB-KLM

Document 93

Filed 09/15/2006

Page 8 of 11

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.

8

Case 1:04-cv-00781-REB-KLM

Document 93

Filed 09/15/2006

Page 9 of 11

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.

9

Case 1:04-cv-00781-REB-KLM

Document 93

Filed 09/15/2006

Page 10 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 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: 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] [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 Richard L. Weston 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 James E Scarboro M. Robert Thornton

10

Case 1:04-cv-00781-REB-KLM

Document 93

Filed 09/15/2006

Page 11 of 11

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

11