kyung cho, et al. v. ucbh holdings, inc., et al. 09-cv...
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Case3:09-cv-04208-JSW Documentl 76 Fileddl /07/11 Pagel of 18
Laurence M. Rosen (SBN # 219683)1 THE ROSEN LAW FIRM, P.A.2 333 South Grand Avenue, 25 th Floor
Los Angeles, CA 900713 Telephone: (213) 785-2610
Facsimile: (213) 226-46844 Email: [email protected]
5and
6Phillip Kim, Esq. (pro hac vice)
7 THE ROSEN LAW FIRM, P.A.8 275 Madison Avenue, 34th Floor
New York, New York 100169 Telephone: (212) 686-1060
Facsimile: (212) 202-382710 Email: pkintleirosenleoal.com
11Lead Counsel for Lead Plaintiff
12UNITED STATES DISTRICT COURT
13 NORTHERN DISTRICT OF CALIFORNIA
14 SAN FRANCISCO DIVISION
15 KYUNG CHO; REX DECHAKUL; AND DAVID )HWANG, INDIVIDUALLY AND ON BEHALF ) Case No. CV-09-4208-JSW
16 OF ALL OTHERS SIMILARLY SITUATED, ) CV-09-4429-JSW
17 Plaintiffs,) CV-09-4449-JSW) CV-09-4505-JSW
18 vs. ) CV-09-451345W)
19 ) PLAINTIFFS' OPPOSITION TO20 UCBH HOLDINGS, INC.; THOMAS S. WU; ) DEFENDANTS DANIEL M.
EBRAHIM SHABUDIN; CRAIG ON; DENNIS ) GAUTSCH'S, DOUGLAS21 WU; ROBERT NAGEL; JOHN M. KERR; ) MITCHELL'S, AND ROBERT
DANIEL M. GAUTSCH; DOUGLAS ) NAGEL'S MOTION TO DISMISS22 MITCHELL, BURTON D. THOMPSON; JOHN )
23CLASS ACTION CINDEREY; JOSEPH J. JOU; PIN PIN CHAU; )
LI-LIN KO; JAMES KWOK; QINGYUAN WAN; )24 GODWIN WONG; DAVID NG; DANIEL P. )
Hon. Jeffrey S. WhiteRILEY; and RICHARD LI-CHUNG WANG ) Hearing Date: February 18, 2011
25 ) Courtroom: 11, 19th Floor
26Defendants. ) Time: 9:00 a.m.
)27
28 0
Plaintiffs' Opposition to Defendant Daniel M. Gautsch, Douglas Mitchell, and Robert Nagel Motion to Dismiss CivilAction No. 09-04208-JSW
Case3:09-cv-04208-JSW Document176 Filed01/07/11 Page2 of 18
1 TABLE OF CONTENTS
2 Page
3 ISSUES TO BE DECIDED
4 SUMMARY OF THE ARGUMENT iv
5 I. STATEMENT OF FACTS 1
6 II. DEFENDANTS MADE FALSE STATEMENTS 1
7 A. Defendants Substantially Participated or Had Intricate Involvement in
8 Making UCBH's Concededly False Statements 2
9 1. Mitchell 210
2. Gautsch & Nagel 411
B. Mitchell Statements During Conference Calls Were False 412
III. DEFENDANTS ACTED WITH SCIENTER 413
IV. MITCHELL, GAUSTCH AND NAGEL ARE CONTROL PERSONS 714
V. CONCLUSION 715
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28Plaintiffs' Opposition to Defendant Daniel M. Gautsch, Douglas Mitchell, and Robert Nagel Motion to Dismiss Civil
Action No. 09-04208-JSW
Case3:09-cv-04208-JSW Document176 Filed01/07/11 Page3 of 18
1 TABLES OF AUTHORITIES
2 Cases Page(s)
3 Howard v. Everex Sys., Inc.,
4 228 F.3d 1057, 1061, n. 5, 1062 (9 th Cir. 2000) 2
5 In re Complete Management Inc. Securities Litigation,
6 153 F. Supp. 2d 314 (S.D.N.Y. 2001) 7
7 In re Moody 's Corp. Securities Litigation,
8 599 F. Supp. 2d 493 (S.D.N.Y. 2009) 7
9 In re Refco, Inc. Sec. Litig.,
10 503 F.Supp.2d 611 (S.D.N.Y. 2007) 6
ii In re Washington Mut. Inc. Sec., Den y. & ERISA Litig.,
12 259 F.R.D. 490 (W.D. Wash. 2009) 7
13 Patel v. Parnes,
14 253 F.R.D. 531 (C.D. Cal. 2008) 6
15 See No. 84 Employer-Teamster Joint Council Pension Trust Fund v. America West
16 Holding Co.,
17 320 F.3d 920 (9th Cir. 2003) 7
18 Siracusano v. Matrixx Initiatives, Inc.,
19 585 F.3d 1167 (9th Cir. 2009) 5
20 Von Saher v. Norton Simon Museum of Art at Pasadena,
21 592 F.3d 954 (9th Cir. 2010) 6
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28Plaintiffs' Opposition to Defendant Daniel M. Gautsch, Douglas Mitchell, and Robert Nagel Motion to Dismiss Civil
Action No. 09-04208-JSW
Case3:09-cv-04208-JSW Document176 Filed01 /07/11 Page4 of 18
1 ISSUES TO BE DECIDED
2 1. Does the CAC adequately allege that defendants Daniel M. Gautsch, Douglas
3 Mitchell, and Robert Nagel made false or misleading statements?
4 2. Does the CAC adequately allege facts, that individually or holistically, create a
5 strong inference that defendants Daniel M. Gautsch, Douglas Mitchell, and Robert Nagel acted
6 with scienter, i.e. knowingly or with deliberate recklessness?
7 3. Does the CAC adequately allege control person liability against defendants
8 Daniel M. Gautsch, Douglas Mitchell, and Robert Nagel?
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28Plaintiffs' Opposition to Defendant Daniel M. Gautsch, Douglas Mitchell, and Robert Nagel Motion to Dismiss Civil
Action No. 09-04208-JSW
Case3:09-cv-04208-JSW Document176 Filed01 /07/11 Page5 of 18
1 SUMMARY OF THE ARGUMENT
2 Defendants Mitchell, Nagel, and Gaustch repeat the same implausible arguments advanced
3 by the other defendants in this case. Defendants seek to evade responsibility for UCBH's
4 concededly false SEC filings and press announcements under their watch. However, the CAC
5 demonstrates that each of these defendants knowingly and substantially participated in, or had
6 intricate involvement in, the preparation of the Company's fraudulent statements, and, are thus
7 liable for securities fraud.
8 Mitchell was the officer in charge of the Company's ALL methodology and risk
9 management relating to it. Nagel was the Company's top audit executive, and Gautsch was the
10 Company's Chief Risk and Compliance Officer.
11 According to the MLR, the deliberate misconduct involved delaying risk rating downgrades
12 and minimizing the bank's overall loan loss allowance, and involved "senior executives." The
13 deliberately fraudulent actions of "senior executives" included misconduct concerning the
14 Company's loan portfolio and reserves, lending and loan operations, certain "illegal acts," and
15 lack of internal controls. These indisputably fraudulent acts could not have occurred without the
16 knowing participation or deliberately reckless indifference of the Company's senior executives
17 who developed the ALL methodology or were charged with risk and compliance functions and
18 the Company's audit function. Attribution of false statements and scienter are further
19 established by the fundamental importance of these matters to the Company. The credit crisis,
20 which occurred within the Class Period, could only have heightened the Defendants' awareness
21 of their respective functions — each of which touches on credit risk. This mandates application
22 of the core operations inference against the defendants for acts that are fundamental to his
23 corporation's business.
24 Because Mitchell, Nagel and Gautsch were high-ranking officers of the Company and/or the
25 events that give rise to this action arise from each of these Defendants' area of responsibility,
26 Plaintiffs have adequately alleged control person liability.
27 For these reasons, the motion should be denied.
28 iv Plaintiffs' Opposition to Defendant Daniel M. Gautsch, Douglas Mitchell, and Robert Nagel Motion to Dismiss Civil
Action No. 09-04208-JSW
Case3:09-cv-04208-JSW Document176 Filed01 /07/11 Page6 of 18
1 I. STATEMENT OF FACTS'
2 Mitchell joined UCB in 2004. According to the Company's 2008 10K filed March 16,
3 2009, he has since been "a major contributor in improving the Bank's operations." Pls. RJN,
4 Ex.2. On March 3, 2008 through the end of the Class Period he served as the Company's
5 Senior Vice President and Director of Corporate Development and Investor Relations. 2 1j38, Pls.
6 RJN, Ex.2. The 2008 10K, states that 1*er the past three years, he has helped the Bank
7 implement many risk management solutions, including the Allowance of Loan Loss
8 Methodology and Country Risk Management." Pls. RJN, Ex.2. Prior to joining the Company,
9 he spent seven years helping large and small banks and financial services companies with
10 technical accounting issues while working for Deloitte & Touche and Arthur Andersen. Id.
11 Certain PRs issued during the Class Period list him as the "contact" for the Company with a
12 different title, "Director of Investor Relations and Capital Management." E.g., Pls. RJN, Ex.3
13 (4/23/09 Q1 2009 earnings PR); Pls. RJN, Ex.4 (8/6/09 Q2 2009 earnings PR). The "Capital
14 Management" aspect of his role concerns the Company's regulatory ratios in determining
15 whether the Bank is well "well capitalized" (i.e. — whether impairments of loans and loan losses
16 has affected the bank's capital base)." Pls. RJN, Ex.3.
17 At all relevant times herein, Defendant Gautsch served as the Company's Executive Vice
18 President and Chief Risk and Compliance Officer. He was appointed in August 2006.1j37.
19 Nagel served as the Company's Senior Vice President and Chief Audit Executive from July
20 14, 2008 through the end of the Class Period. 1f35. Demonstrating his status within the
21 Company, On October 20, 2008, Nagel entered into a change-in-control agreement (i.e., golden
22 parachute ageement) 3 with the Company entitling him to valuable severance. Pls. RJN, Ex. 5.
23 II. DEFENDANTS MADE FALSE STATEMENTS
24
25 Plaintiffs incorporate by reference, as if fully set forth herein, the Statement of Facts in the Shabudin
26 Opp.2 Unless indicated otherwise, Mitchell, Gautsch, and Nagel's positions were at both UCBH and the
27 Bank.3
28These agreements are typically reserved for the Company's key and most senior management
Plaintiffs' Opposition to Defendant Daniel M. Gautsch, Douglas Mitchell, and Robert Nagel Motion to Dismiss CivilAction No. 09-04208-JSW
Case3:09-cv-04208-JSW Document176 Filed01 /07/11 Page7 of 18
1A. Defendants Substantially Participated or Had Intricate Involvement inMaking UCBH's Concededly False Statements
2 Like the other individual defendants in this case, Mitchell, Gautsch and Nagel contend that
3 the Company's concededly false SEC filings and press releases are not attributable to them.
4 Interestingly, no one at UCBH seems to have had any responsibility for proper valuation of
5 loans, assessment of loan impairments and financial reporting. However, the CAC asserts facts
6 that demonstrate that each of these defendants substantially participated or had intricate
7 involvement in the Company's false SEC filings and press announcements. 4 See Howard v.
8 Everex Sys., Inc., 228 F.3d 1057, 1061, n. 5, 1062 (9th Cir. 2000) (holding that "substantial
9 participation" or "intricate involvement" in false SEC filings is sufficient for attribution).
10 1. Mitchell
11 First the Company's own 2008 10K, filed with the SEC on 3/16/09, states that 1*er the
12 past three years, he has helped the Bank implement many risk management solutions, including
13 the Allowance of Loan Loss Methodology and Country Risk Management." Pls. RJN Ex. 2.
14 Mitchell is listed in some of the press releases containing false or misleading information as
15 the Contact person. He is referred to as the Company's "Senior Vice President, Director of
16 Investor Relations and Capital Management" in Q1 2009 earnings PR containing false
17 information issued on April 23, 2009, and the Q2 2009 earnings PR issued on August 6, 2009.
18 See Pls. RJN Exs. 3-4.
19 Second his substantial participation or intricate involvement is further demonstrated by his
20 address to analysts and investors during conference calls concerning the Company's and his
21 efforts to review and assess loans for ALL. 1f143a (5/7/08 analyst conference: addressing
22 analysts at conference about how the management reviewed problem loans during Q1 2008,
23 including executives getting "personally involved" to "help work through issues on workouts
24 and try to get out of particular loans while minimizing ay sort of realized losses"); 1f143b
25
26 4 Plaintiffs incorporate by reference, as if fully set forth herein, the relevant portions of the T. Wu andOn Opps. demonstrating that that the CAC adequately alleges that the Company's periodic reports filed
27 with the SEC and other public statements were materially false and misleading. Plaintiffs furtherincorporate the Shabudin and Ken- Opps addressing falsity.
28 2 Plaintiffs' Opposition to Defendant Daniel M. Gautsch, Douglas Mitchell, and Robert Nagel Motion to Dismiss Civil
Action No. 09-04208-JSW
Case3:09-cv-04208-JSW Document176 Filed01 /07/11 Page8 of 18
1 (1/24/09 earnings conference: touting "weekly monitoring" of distressed real estate markets and
2 that "senior management teams meet weekly on all or our portfolios"); 179 (10/24/08 earnings
3 conference: "we are also employing targeted independent loan reviews of our Construction
4 portfolio to ensure risk ratings, assessments of collateral support, project progress and other
5 items are accurate and reflective of current market conditions."); and 1f81 (10/24/08 earnings
6 conference: explaining to an analyst the process the company uses in assessing loans for
7 reserves, and stating that "we do all this very, very detailed analysis").
8 Third Mitchell's substantial participation or intricate involvement is demonstrated by the
9 nature of the fraud as variously set forth in the Plaintiffs' oppositions, the deliberate misconduct
10 to conceal the "deteriorating financial conditions by deliberately delaying risk rating
11 downgrades and minimizing the bank's overall loan loss allowance" involved individuals
12 variously referred to as "UCB senior executives," "UCB Officials", "UCB Management" MLR
13 p. 7; 1f83g; 1 13, MLR p. 2 of Executive Summary ("UCB officials deliberately misrepresented
14 or omitted relevant loan performance data, altered documents to improve perception of loan
15 quality, and made other misrepresentations that impacted UCBH's financial statements. UCBH
16 reported that its financial statements were materially inaccurate and required revision")
17 (emphasis added).
18 Fourth the lack of internal controls, touching upon nearly every aspect of the Company's
19 risk management, ALL, Provision, internal controls, and monitoring of thereof, were within
20 Mitchell's explicit job duties.
21 Lastly, since the Company's ALL, Provision, loan portfolio, internal controls, and
22 monitoring thereof, were at the core of the Company's operations during the Class Period, it is
23 implausible that Mitchell, the person charged with risk management as it relates to the
24 Company's ALL methodology, did not substantially participate or have intricate involvement in
25 the preparation of the UCBH's concededly false SEC filings and press releases. It is doubly
26 implausible that even as the credit crisis drew scrutiny precisely to risk management of loans,
27
28 3 Plaintiffs' Opposition to Defendant Daniel M. Gautsch, Douglas Mitchell, and Robert Nagel Motion to Dismiss Civil
Action No. 09-04208-JSW
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I and that as the Company responded by touting weekly meetings of senior management teams,
2 Mitchell had no involvement with the false statements.
3 2. Gautsch & Nagel
4 The same points apply to both Gautsch and Nagel. Each was a senior executive officer of
5 the Company charged with primary responsibility over the fraudulent disclosures. Gautsch was
6 the Company's Chief Risk and Compliance Officer. Likewise, Nagel was the Bank's Senior
7 Vice President and Chief Audit Executive. Based on the nature and gravity of the deliberate
8 misconduct involving "senior executives", the actual deliberate misconduct, the lack of internal
9 controls, and their status within the Company, the Court should find that the CAC adequately
10 alleged Gautsch's and Nagel's substantial participation or intricate involvement in making of
11 UCBH's false SEC filings and press announcements.5
12 B. Mitchell's Statements During Conference Calls Were False6
13 Mitchell's statements from the October 24, 2008 and January 23, 2009 calls are false for the
14 same reasons that T. Wu's quoted statements are false.
15 Moreover, Mitchell's statements were made during the period — October 2008 -- which
16 KPMG later determined was the one in which the most serious deliberate misconduct was
17 occurring. E.g. MLR p. 7; 1f83g; 1f13, MLR p. 2; 1f16. As detailed herein, Mitchell's quoted
18 statements concerned the Company's and his efforts to review and assess loans for ALL. fi79,
19 81,143a-b. Mitchell suggests that his October 24, 2008 statements (fi79-81) may not have
20 occurred contemporaneously with UCBH's lack of internal controls and deliberate misconduct.
21 This is incorrect; the FDIC determined that the Company lied in its TARP application when it
22 was submitted on October 21, 2008. MLR pp. 29, 33.
23 III. DEFENDANTS ACTED WITH SCIENTER 7
24
25 5 Plaintiffs incorporate by reference, as if fully set forth herein, the relevant portions of the ThompsonOpp. addressing group pleading.
26 6 Plaintiffs incorporate by reference, as if fully set forth herein, the relevant portions of the T. Wu briefdemonstrating the falsity of his quoted statements.
27 7 Plaintiffs incorporate by reference herein, as if fully set forth herein, the relevant portion of the T. WuOpp. and Directors Opp addressing scienter.
28 4 Plaintiffs' Opposition to Defendant Daniel M. Gautsch, Douglas Mitchell, and Robert Nagel Motion to Dismiss Civil
Action No. 09-04208-JSW
Case3:09-cv-04208-JSW Documentl 76 Filed01/07/11 Pagel 0 of 18
1 In addition to the facts and circumstances demonstrating falsity above, a strong inference of
2 Defendants' scienter is established as follows.
3 Nagel: Defendant Nagel, the Chief Audit Executive, by definition was the senior executive
4 in-charge of the Company's audit, and would have worked with and interfaced with the
5 members of the Audit Committee and the Company's CFO. In that role he would have been
6 charged with information core to the Company's financial accounting. Therefore, for the same
7 reasons the Director Defendants' strong inference of scienter is established, defendant Nagel's
8 is as well.
9 Mitchell: Likewise Mitchell was concededly responsible for the Company's ALL
10 methodology, and his scienter is established for the same reasons a strong inference of scienter
11 is established for the Director Defendants.
12 Defendant Mitchell's scienter is further established because, like T. Wu, he made public
13 statements to investors and analysts during conference calls about the Company's assessment
14 and review of the loan portfolio and ALL. If the Court were to accept Mitchell's explanation
15 that he was not aware of the Company's true state of affairs when he made those statements on
16 October 24, 2008 (fi79, 81) and on January 23, 2009 (1j143b) both during the period when
17 KPMG later determined the deliberate fraud had occurred — then this would constitute an
18 independent basis for finding a strong inference of scienter. See Siracusano v. Matrin
19 Initiatives, Inc., 585 F.3d 1167, 1181 (9th Cir. 2009) (by choosing to speak, the person has a
20 duty not to mislead and be fully informed; failure to be fully informed supports a strong
21 inference of scienter).
22 Gautsch: As Executive Vice President and Chief Risk and Compliance Officer, Gautsch was
23 charged with monitoring and assessing the Company's compliance with its policies and
24 applicable laws and regulations in connection with the Company's operations. For the same
25 reasons the Company's Chief Operating Officer Shabudin's strong inference of scienter is
26 established, the Gautsch's scienter is as well.
27
28 5 Plaintiffs' Opposition to Defendant Daniel M. Gautsch, Douglas Mitchell, and Robert Nagel Motion to Dismiss Civil
Action No. 09-04208-JSW
Case3:09-cv-04208-JSW Documentl 76 Filed01/07/11 Pagel 1 of 18
1 Moreover, the Order to Cease and Desist (CAC, Ex.B) noted numerous operational
2 deficiencies including, "operating in violation of... laws and regulations." CAC Ex.B, at 2-3.
3 The MLR also revealed that in March 2009, "KPMG became suspicious that UCB officials
4 and/or employees had engaged in illegal acts to conceal the bank's true financial condition."
5 CAC, Ex.A (MLR) at p.6; 1f8. The MLR also explained that "kin 2009, examiners also
6 reviewed certain loans that were later believed to have been originated as a result of illegal
7 activities. ... These loans and approximately 150 others, as well as senior UCB management,
8 are being investigated by other units within and outside the FDIC." 1f145.
9 These illegal acts, when considered with the totality of the facts in this case, support a strong
10 inference that the Company's Chief Compliance and Risk Management acted either knowingly
11 or with deliberate recklessness.
12 Defendants contend that the lack of stock sales negate scienter. First, the Form 4s
13 submitted by Gautsch (Gautsch RJN, Exs.A-D) are inadmissible for the truth of the matter
14 asserted, i.e. Defendants did not sell stock. Von Saher v. Norton Simon Museum of Art at
15 Pasadena, 592 F.3d 954, 960 (9th Cir. 2010). Rather the Court, can only consider the fact that
16 such Form 4s were filed and cannot infer that they accurately portrayed the Defendants'
17 positions. Patel v. Parnes, 253 F.R.D. 531, 545-46 (C.D. Cal. 2008). Even if the Court were to
18 consider the securities transactions represented in the Form 4s submitted, the Form 4s do not
19 actually document any transactions in UCBH's common stock. They merely indicate the award
20 of stock options to Defendants as part of their compensation. When the options became
21 exercisable, the price of UCBH's stock was far below the exercise price. 8 These transactions,
22 actually demonstrate a pecuniary motive to continue the fraud and keep the Company afloat, so
23 that the options would one day have value. See In re Refco, Inc. Sec. Litig., 503 F.Supp.2d 611,
24 646-47 (S.D.N.Y. 2007) (rejecting argument that defendants' stock purchases were inconsistent
25
26 The following are the dates when the options could be exercised and the UCBH stock price trading
27 price: (a) 1/25/08, $12.30-$13.32; (b) 2/12/09, $2.01-$2.28; and (c) 7/24/09, $.97-$1.10. See Pls. RINIEx. 7.
28 6 Plaintiffs' Opposition to Defendant Daniel M. Gautsch, Douglas Mitchell, and Robert Nagel Motion to Dismiss Civil
Action No. 09-04208-JSW
Case3:09-cv-04208-JSW Document176 Filed01/07/11 Page12 of 18
1 with fraud, because defendants might have believed that uncollectable receivables could be
2 hidden indefinitely). Regardless, motive is not an essential component of scienter. See No. 84
3 Employer-Teamster Joint Council Pension Trust Fund v. America West Holding Co., 320 F.3d
4 920, 944 (9th Cir. 2003).
5 IV. MITCHELL, GAUSTCH AND NAGEL ARE CONTROL PERSONS9
6 As noted, Mitchell's responsibilities at the Company concerned the primary violations he
7 was in charge of the ALL methodology and risk management thereto. Moreover, he made
8 statements about and concerning the same to investors and analysts at conference calls, is listed
9 as a contact on the certain in the Company's false PRs. He variously served as Senior Vice
10 President and Director of Corporate Development and Investor Relations, and Director of
11 Investor Relations and Capital Management. Likewise, Nagel was in charge of the Company's
12 audit, which concerned the primary violations. Nagel was the Company's Senior Vice
13 President and Chief Audit Executive. Gautsch was the Company's Executive Vice President
14 and Chief Risk and Compliance Officer.
15 These facts demonstrate Mitchell's, Gautsch's, and Nagel's control person liability. See, e.g.
16 In re Washington Mut. Inc. Sec., Den y. & ERISA Litig., 259 F.R.D. 490, 509 (W.D. Wash.
17 2009) (finding that director members of the audit and finance committees were control persons
18 because the responsibilities of those committees related to the primary violations arising out of
19 improper lending practices); In re Complete Management Inc. Securities Litigation, 153 F.
20 Supp. 2d 314, 325-26 (S.D.N.Y. 2001) (holding that defendant Executive Vice President had
21 control under Section 20 by virtue of defendant's position alone sufficient to survive 12(b)(6)
22 motion); In re Moody's Corp. Securities Litigation, 599 F. Supp. 2d 493, 517 (S.D.N.Y. 2009)
23 (holding that defendant Chief Compliance Officer had control under Section 20 by virtue of
24 defendant's position alone sufficient to survive 12(b)(6) motion).
25 V. CONCLUSION
26
27 9 Plaintiffs incorporate herein, as if fully set forth herein, the relevant portion of the Directors,Thompson and Ken- Opps. addressing control person liability.
28 7 Plaintiffs' Opposition to Defendant Daniel M. Gautsch, Douglas Mitchell, and Robert Nagel Motion to Dismiss Civil
Action No. 09-04208-JSW
Case3:09-cv-04208-JSW Documentl 76 Filed01/07/11 Pagel 3 of 18
1 For the foregoing reasons Mitchell's, Gautsch's, and Nagel's motion should be denied.
2 Should the court grant their motion, for the same reasons set forth in the Thompson Opp., leave
3 to amend should be granted.
4 Dated: January 7, 2011 Respectfully submitted,
5 THE ROSEN LAW FIRM, P.A.
6/s/ Laurence Rosen .
7 Laurence M. Rosen (SBN # 219683)333 South Grand Avenue, 25 th Floor
8 Los Angeles, CA 90071
9 Telephone: (213) 785-2610Facsimile: (213) 226-4684
10 Email: lrosenkitosenleoal.com
11 and
12Phillip Kim, Esq. (pro hac vice)
13 THE ROSEN LAW FIRM, P.A.275 Madison Avenue, 34th Floor
14 New York, New York 10016
15 Telephone: (212) 686-1060Facsimile: (212) 202-3827
16 Email: pkini(Mrosenle gal. corn
17 Lead Counsel for Lead Plaintiff
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28 8 Plaintiffs' Opposition to Defendant Daniel M. Gautsch, Douglas Mitchell, and Robert Nagel Motion to Dismiss Civil
Action No. 09-04208-JSW
Case3:09-cv-04208-JSW Document176 Filed01/07/11 Page14 of 18
1 CERTIFICATE OF SERVICE
2
I, Phillip Kim, pursuant to 28 U.S.C. §1746, hereby declare under penalty of perjury as3follows:4
I am an attorney with the Rosen Law Firm, P.A. I am over the age of eighteen.5
6On January 7, 2011, I electronically filed the following PLAINTIFFS' OPPOSITION
TO DEFENDANTS DANIEL M. GAUTSCH'S, DOUGLAS MITCHELL'S, AND7
8 ROBERT NAGEL'S MOTION TO DISMISS with the Clerk of the Court using the CM/ECF
system which sent notification of such filing to counsel of record set forth in the attached9
service list.10
On the same date I also caused the document to be submitted to the Stanford Law1112 School Class Action Clearinghouse via email to [email protected] .
13Executed on January 7, 2011.
14/s/ Phillip Kim
15 Phillip Kim
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28 9 Plaintiffs' Opposition to Defendant Daniel M. Gautsch, Douglas Mitchell, and Robert Nagel Motion to Dismiss Civil
Action No. 09-04208-JSW
Case3:09-cv-04208-JSW Documentl 76 Filed01/07/11 Page15 of 18
MASTER SERVICE LIST
Laurence M. Rosen Phillip KimThe Rosen Law Firm, P.A. The Rosen Law Firm, P.A.333 South Grand Avenue 275 Madison Avenue, 34th Floor25th Floor New York, NY 10016Los Angeles, CA 90071 212-686-1060213-785-2610 212-202-3827 (fax)213-226-4684 (fax) [email protected]@rosenlegal.com
Lead Counsel for Lead Plaintiff Kyung Cho,Lead Counsel for Lead Plaintiff Kyung Cho, & Named Plaintiffs Rex Dechakul and David& Named Plaintiffs Rex Dechakul and HwangDavid HwangJames Antone Lassart Steven Mark BauerRopers Majeski Kohn & Bentley Timothy Paul Crudo201 Spear Street Matthew HeltonSuite 1000 Latham & WatkinsSan Francisco, CA 94105 505 Montgomery Street415-543-4800 19th Floor415-972-6301 (fax) San Francisco, CA [email protected] 415-391-0600
415-395-8095 (fax)[email protected]@[email protected]
Counsel for Defendant Ebrahim Shabudin Counsel for Defendant Thomas S. Wu
Jordan Eth Thomas Francis KoegelAnna Erickson White Crowell & Moring LLPCraig Martin 275 Battery Street, 23rd FloorMorrison & Foerster LLP San Francisco, CA 94111425 Market Street 415-986-2800San Francisco, CA 94105 415-986-2827 (fax)415-268-6000 [email protected] (fax)[email protected]@[email protected]
Counsel for Defendant Craig On, Denis Wu, Counsel for E. Lynn Schoemnann InterestedJoseph Jou, Pin Pin Chau, Li-Lin Ko, Party/ Bankruptcy Trustee for UCBHGodwin Wong, David Ng, Daniel P. Riely, Holdings, Inc.and Richard Li-Chung Wang
1
Case3:09-cv-04208-JSW Document176 Filed01/07/11 Page16 of 18
Daniel J. Bergeson William P. KeaneGrace Y. Park Anthony P. SchoenbergBergeson, LLP Nell K. Clement303 Almaden Boulevard, Suite 500 FareIla Braun + Martel LLPSan Jose, CA 95110-2712 235 Montgomery Street, 17th FloorTelephone: (408) 291-6200 San Francisco, CA 94104Facsimile: (408) 297-6000 Telephone: (415) [email protected] Facsimile: (415) [email protected] [email protected]
[email protected]@fbm.com
Counsel for defendants Daniel M. Gautsch, Counsel for defendant John M. KerrDouglas Mitchell, and Robert Nagel
Jeffrey L. BornsteinMikal J. CondonClaudia A. QuirozK&L Gates LLP4 Embarcadero Center, Suite 1200San Francisco, CA 94111Telephone: 415.882.8200Facsimile: 415.882.8220
Counsel for defendant Burton D. Thompson
Nicole Catherine Lavallee Ira Neil RichardsAnthony David Phillips Kenneth I. TrujilloJoseph J. Tabacco, Jr. Jennifer AgnewBerman Devalerio Trujillo Rodriguez & Richards LLCOne California Street 1717 Arch StreetSuite 900 Suite 3838San Francisco, CA 94111 Philadelphia, PA 19103415-433-3200 215-731-9004415-433-6382 (fax) 215-731-9044 (fax)[email protected] [email protected]@[email protected]
Counsel for Lead Plaintiff Movants City of Counsel for Lead Plaintiff Movants City ofPhiladelphia Board of Pensions and Philadelphia Board of Pensions and Retirement,Retirement, and Louisiana Municipal Police and Louisiana Municipal Police EmployeesEmployees Retirement System. Retirement System.
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Case3:09-cv-04208-JSW Document176 Filed01/07/11 Page17 of 18
Lionel Z. Glancy Dustin Lamm SchubertMichael M. Goldberg Schubert Jonckheer Kolbe & Kralowec LLPGlancy Binkow & Goldberg LLP 3 Embarcadero Center1801 Avenue of the Stars, Suite 311 Suite 1650Los Angeles, CA 90067 San Francisco, CA 94111310/201-9150 415-788-4220(310) 201-9160 (fax) 415-788-0161 (fax)[email protected] [email protected]
Counsel for Lead Plaintiff Movant Mark Counsel for Lead Plaintiff Movant DeKalbCooper, Dominique Durbin, Huy Tran County Pension Fund
James M. Wilson Ramzi AbadouChitwood Harley Barnes LLP Erik David Peterson1230 Peachtree Street, NE Barroway Topaz Kessler Meltzer & Check, LLPPromenade II, Suite 2300 580 California StreetAtlanta, GA 30309 Suite 1750404-873-3900 San Francisco, CA 94104404-876-4476 (fax) [email protected] 415-400-3001 (fax)
[email protected]@btkmc.com
Counsel for Lead Plaintiff Movant DeKalb Counsel for Lead Plaintiff Movants SalvadorCounty Pension Fund Perez, and Chite Lai
Darren Jay Robbins Robert S. GreenBrian 0. O'Mara Green Welling, P.C.Shawn A. Williams 595 Market Street, Suite 2750Coughlin Stoia Geller Rudman & Robbins San Francisco, CA 94105LLP 415-477-6700655 West Broadway, Suite 1900 415-477-6710 (fax)San Diego, CA 92101 CAND.USCOURTS@CLAS SCOUNSEL. COM619/231-1058(619) 231-7423 (fax)e file [email protected]'[email protected]@csgr.com
Counsel for Lead Plaintiff Movant Pension Counsel for Lead Plaintiff Movants Lap YinTrust Fund For Operating Engineers, and Chan, and Wai Shan Chan and Plaintiffs DanielPlaintiff Waterford Township General Nygaard, Wendy Fong, and James ElamEmployees Retirement System
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Case3:09-cv-04208-JSW Document176 Filed01/07/11 Page18 of 18
Ralph M. Stone Mark Cotton MolumphyAmanda C. Scuder Cotchett, Pitre & McCarthyShalov Stone Bonner & Rocco LLP 840 Malcolm Road485 Seventh Ave, Suite 1000 Suite 200New York, NY 10018 Burlingame, Ca 94010212-239-4340 (650)697-6000Email: [email protected] 650-697-0577 (fax)Email: [email protected] [email protected]
Counsel for Lead Plaintiff Movants Lap Yin Counsel for Lead Plaintiff Movant the YanChan, and Wai Shan Chan and Plaintiffs GroupDaniel Nygaard, Wendy Fong, and JamesElam
Jacqueline Scott CorleyAdrian James SawyerKerr & Wagstaffe LLP100 Spear Street18th FloorSan Francisco, CA 94105415-371-8500415-371-0500 (fax)[email protected]@kerrwagstaffe.com
Counsel for Lead Plaintiff Movant TheFirefighters' Pension System of the City ofKansas City, Missouri Trust
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