Case 1:09-md LAK Document 772 Filed 03/05/12 Page 1 of 12

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1 Case 1:09-md LAK Document 772 Filed 03/05/12 Page 1 of 12 FILED IN SUPPORT OF MDL ECF DKT. NOS. 570, 572 & IN RESPONSE TO NO. 718 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x In re: LEHMAN BROTHERS SECURITIES AND Civil Action 09 MD 2017 ERISA LITIGATION (LAK) This Document Applies to: State Compensation Insurance Fund v. Richard S. Fuld et al., 11I Civ (LAK) x BANK DEFENDANTS' REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT CLEARY GOTTLIEB STEEN & HAMILTON LLP One Liberty Plaza New York, NY (212)

2 Case 1:09-md LAK Document 772 Filed 03/05/12 Page 2 of 12 The Bank Defendants' submit this reply memorandum in further support of their motion to dismiss the Amended Complaint and in response to Plaintiffs opposition brief ("P1. Br."). ARGUMENT 1. ALL OF SCIF'S CLAIMS ARE TIME-BARRED A. SCIF's Securities Act Claims Are Barred By The Statute Of Repose SCIF concedes that its Securities Act claims are time-barred under the Court's ruling that the Securities Act's statute of repose cannot be tolled. See Pl. Br. 22. SCIF nonetheless argues that the Court should reconsider its ruling "[iln light of two Southern District of New York. decisions issued subsequent to the Court's ruling, as well as the fact that class plaintiffs failed to respond to this argument in briefing." Id. The Court should not do so. SCIF's contention that this issue was not fully briefed before the Court reached its decision is incorrect. The Court first adopted its holding that the statute of repose could not be tolled in the Lehman Holdings' mortgage-backed securities class action, where the Court stated that this issue was "fully briefed and ripe for disposition," and that plaintiffs had "responded to the argument on the merits" in a brief and also submitted a letter specifically addressing the issue. In re Lehman Bros. Sec. & ERISA Litig., 800 F. Supp. 2d 477, 481 n. 18 (S.D.N.Y. 2011) ("Lehman MBS"). Moreover, the Court had the full benefit of the "persuasive" analysis of the issue in Judge Castel's decision in Footbridg~e Ltd. Trust v. Countrywide Fin. Cop., 770 F'. Supp. 2d 618 (S.D.N.Y. 2011). See Lehman MBS, 800 F. Supp. 2d at 481. Whether the plaintiffs in the subsequent Lehman Holdings' equity/debt decision also responded to the argument is thus irrelevant. Moreover, the two recent district court decisions cited by SCIF do not support Terms defined in the Bank Defendants' opening brief ("Banks Br.") are similarly employed herein. I

3 Case 1:09-md LAK Document 772 Filed 03/05/12 Page 3 of 12 reconsideration because they merely adopt arguments that this Court has already considered and rejected. See P1. Br As SCIF acknowledges, those decisions held that American Pip tolling applies to statutes of repose because they considered such tolling to be "'legal rather than equitable in nature." Id. But as the Court has found-regardless of the adjective used to describe its tolling rule-american Pipe is not "a legislatively sanctioned means of extending a statute of repose." Lehman MBS, 800 F. Supp. 2d at 482 (stating that American Pipe tolling merely "arises from, or is a logical corollary to" Rule 23, which "makes no mention whatsoever of the tolling principle announced in that case," and interpreting the rule to "include or imply such a tolling rule" would violate the Rules Enabling Act). SCIF's additional contention that the limitations provision at issue in American Pipe "4was even 'more emphatically absolute"' than the language of the Securities Act's statute of repose (P1. Br. 23 (quoting Int'l Fund Mgmt. S.A. v. Citigroup, Inc., - F. Supp. 2d _, 2011 WL , at *8 (S.D.N.Y. Sept. 30, 2011))) is also irrelevant: the limitations provision at issue in American Pipe was a statute of limitations, which may be tolled "in appropriate circumstances."~ Lehman MBS, 800 F. Supp. 2d at The statute of repose at issue here is "fundamentally different" from a statute of limitations in that it is "absolute, subject [only] to legislatively created exceptions.... set forth in the statute of repose." Lehman MBS, 800 F. Supp. 2d at (citing P. Stolz Family P'ship L.P. v. Daum, 335 F.3d 92, 102 (2d Cir. 2004)). Therefore, when it comes to a statute of repose "this Court must apply the statute as written." Lehman MBS, 800 F. Supp. 2d at 483. B. SCIF's State Law Claims Are Time-Barred Under California Law SCIF's state law claims are similarly time-barred under California's two-year statute of 2 See also In re Mor an Stanley Momtg Pass-Through Certificates Litig., 8 10 F. Supp. 2d 650, (S.D.N.Y. 2011); Int'l Fund Mgmt. S.A. v. Citigroup. Inc., Nos. 09 Civ (SHS), 10 Civ (SHS), 10 Civ (SHS), I11 Civ. 314, F. Supp. 2d _,2011 WL (S.D.N.Y. Sept. 30, 2011)).

4 Case 1:09-md LAK Document 772 Filed 03/05/12 Page 4 of 12 limitations, as those claims were filed more than two years after Lehman Holdings declared bankruptcy and have not been tolled. See Banks Br Seeking to avoid this result, SCIF argues that: (1) the question of whether it was placed on inquiry notice by Lehman Holdings' bankruptcy "should be deferred to a later stage of the litigation" (P1. Br ); (2) the Court should ignore controlling Ninth Circuit authority holding that California would not recognize cross-jurisdictional tolling (id. at 43 n.36); and (3) even if the Court followed the Ninth Circuit's holding, as it must, it should nonetheless apply cross-jurisdictional class action tolling under the guise of "equitable tolling" (id. at ). The Court should reject these arguments. 1. SCIF Received Inquiry Notice Before May 2009 As A Matter Of Law SCIF concedes that its state law claims against the Bank Defendants are subject to a twoyear statute of limitations, which begins to run upon inquiry notice. See P1. Br. 43. Under California law, inquiry notice arises "when circumstances suggest to an investor of ordinary intelligence the possibility that he has been defrauded." Banks Br. 5 n.7 (quoting Deveny v. Entropin, Inc., 42 Cal. Rptr. 3d 807, 817 (Cal. Ct. App. 2006)). Here, Lehman Holdings' bankruptcy in September 2008, which reduced the value of SCIF's investments to "pennies on the dollar," undeniably would have suggested to an investor of ordinary intelligence the possibility that Lehman Holdings' prior disclosures did not present an accurate picture of the company's financial condition. See Banks Br. 5 & n.7. Indeed, numerous Lehman Holdings investors made such allegations in lawsuits filed shortly thereafter (if not earlier). See. In re 3 Critically, the only state law claims SCIF brings against the Bank Defendants are under California Corporations Code and 25501, which impose liability for securities transactions by means of communications that "include[] an untrue statement of a material fact or omit[] to state a material fact," Cal. Corp. Code 25401, and do not require proof of scienter. As such, SCIF did not need to discover facts concerning scienter for the statute of limitations on these claims to begin to run.

5 Case 1:09-md LAK Document 772 Filed 03/05/12 Page 5 of 12 Lehman Bros. Eqiuity/Debt Sec. Litig., No. 08 Civ (S.D.N.Y. filed June 18, 2008).' Tellingly, SCIF never denies that Lehman Holdings' bankruptcy placed it on inquiry notice. That ends the matter. SCIF just contends that, as an abstraction, the Court should defer resolution of this issue because courts "usually" view inquiry notice as a question of fact. P1. Br Numerous courts (including this Court), however, have resolved issues concerning inquiry notice at the motion to dismiss stage. See, e.g., Freidus v. ING Groep N.V., 736 F. Supp. 2d 816, 828 (S.D.N.Y. 2010).5 Moreover, the facts here are uniquely susceptible to resolution on the pleadings because there can be no dispute that an investor of ordinary intelligence would have been aware of Lehman Holdings' bankruptcy, which was front-page news and had a devastating effect on the entire economy. 6 The filing of numerous lawsuits by other investors further confirms the obvious conclusion that the Lehman Holdings' bankruptcy triggered notice of SCIF's claims. See, e.g., Stichting Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125, (C.D. Cal ).7 4 See also Fogel Capital Mgmt.. Inc. v. Fuld, No. 08 Civ (S.D.N.Y. filed Sept. 24, 2008); Swiskay v. Citigroup Global Mkts., No. 09 Civ (S.D.N.Y. filed Oct. 7, 2008); Mease v. Fuld, No. 09 Civ, 1231 (S.D.N.Y. filed Oct. 21, 2008); Warden v. Fuld,' No. 09 Civ (S.D.N.Y. filed Oct. 22, 2008); Stark v. Callan, No. 08 Civ (S.D.N.Y. filed Oct. 27, 2008); Deathrow v. Fuld, No. 09 Civ, 1230 (S.D.N.Y. filed Nov. 4, 2008); Napierala v. Fuld, No. 09 Civ (S.D.N.Y. filed Nov. 4, 2008); Shipley v. Fuld, No. 09 Civ (S.D.N.Y. filed Nov. 4, 2008); Tolin v. Fuld, No. 08 Civ (filed Nov. 18, 2008); Brooks Family P'ship. L.L.C. v. Fuld, No. 08 Civ (S.D.N.Y. filed Nov. 24, 2008). 5 See also Lentell v. Merrill Lynch & Co.,' 396 F.3d 161, 168 (2d Cir. 2005) (observing that courts have resolved inquiry notice on motions to dismiss "in a vast number of cases"); Stichting Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125, 1141 (C.D. Cal. 2011) (dismissing California Corporations Code claims as untimely); Sitrick v. Citigroup Global Mkts.. Inc., No. CV AHM (PJWx), 2009 WL , at *13 (C.D. Cal. Apr. 30, 2009) (same). 6 Inquiry notice has been found as a matter of law based on much less. See. e.g., LC Capital Partners, LP v.y Frontier Ins. Gip.. Inc., 318 F.3d 148, 155 (2d Cir. 2003) (affirming dismissal because one press article and one lawsuit triggered inquiry notice); In re Global Crossinp. Ltd. Sec. Litig., 313 F. Supp. 2d 1 89, 200 (S.D.N.Y. 2003) (a single magazine article was enough to put plaintiff investors on inquiry notice); Inre~ Ultrafem Inc. Sec. Litig., 91 F. Supp. 2d 678, 692 (S.D.N.Y. 2000) (one article and one public filing triggered inquiry notice). 7 See also In re Direxion Shares ETF Trust, No. 09 Civ. 801 l(kbf), 2012 WL , at * 13 (S.D.N.Y. Jan. 27, 2012) ("The filing of a complaint (and PSLRA notice) relating to [other securities] issued pursuant to the very same offering documents certainly would suggest to an investor of ordinary intelligence the

6 Case 1:09-md LAK Document 772 Filed 03/05/12 Page 6 of 12 SCIF's additional contention that this action should be considered timely because certain allegations in the Amended Complaint only came to light with the release of the Examiner" s Report in March 2010 (Pl. Br. 45), is similarly unavailing. As this Court recently recognized, "[i]t is well-established... that the facts placing one on inquiry notice need not detail every aspect of the alleged fraudulent scheme, but only enough in the totality of the circumstances to establish a probability of the alleged claim." Freidus, 736 F. Supp. 2d at Thus, SCIF had inquiry notice of its state law claims well before May 2009, and those claims are time-barred unless a tolling doctrine applies. 2. SCIF Has Not Identified A Valid Basis For Tolling SCIF argues that two forms of tolling save its untimely state law claims: class action and equitable tolling. P1. Br Under California law, however, neither doctrine applies here. 9 With respect to class action tolling, the Ninth Circuit has squarely held that the Californiia Supreme Court would not apply such tolling in the cross-jurisdictional context. See Banks Br. 5-6 (citing Clemens v. DaimlerChrfysler Corp., 534 F.3d 1017, 1025 (9th Cir. 2008)). That decision is binding here. See Banks Br. 6 n.8. In a footnote (P1. Br. 43 n.36), SCIF nonetheless asks the Court to disregard Clemens and "independently determine the applicability of American Pipe tolling" because one earlier "California intermediate court decision" tolled state law claims based on a federal class action. Under Second Circuit authority, however, a single decision by an intermediate state court is not sufficient authority to ignore the ruling of a federal Court of probability that he has been defrauded."); Canada. Inc. v. Aspen Tech.. Inc., 544 F. Supp. 2d 199, 213 (S.D.N.Y. 2008) (same). 8 See also Staehr v. Hartford Fin. Servs. GU2.. Inc., 547 F.3d 406, 427 (2d Cir. 2008) ("An investor does not have to have notice of the entire fraud being perpetrated to be on inquiry notice."); Stichtin, 802 F. Supp. 2d at 1140 ("[U]nder California law, a plaintiff need not be aware of every fact that it ultimately relies upon in its pleadings before the statute begins to run."). 9 SCIF concedes that the Court must look to California law to determine whether its state law claims have been tolled. See P1. Br. 41.

7 Case 1:09-md LAK Document 772 Filed 03/05/12 Page 7 of 12 Appeals on a question of state law; instead, the Court is bound by the Court of Appeals "except [in] the rare instance when it can be said with conviction that the pertinent court of appeals has disregarded clear signals emanating from the state's highest court pointing toward a different rule." Factors Etc.. Inc. v. Pro Arts, Inc., 652 F.2d 278, 283 (2d Cir. 1981) (emphasis added). That exception is not applicable here, and this Court should decline to apply cross-jurisdictional class action tolling under Clemens. California's equitable tolling doctrine is also inapplicable here, as applying equitable tolling in this case would stretch the doctrine well beyond its bounds. California courts apply equitable tolling where an individual plaintiff has attempted to pursue one form of relief against a defendant and files the second action after relief has been denied in the first. See, e.g., Collier v. City of Pasadena, 191 Cal. Rptr. 681, 685 (Cal. 1983) (equitable tolling "applies 'Lw]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one"') (quoting Elkins v. Derby, 115 Cal. Rptr. 641 (Cal. 1974)). Here, by contrast, SCIF is pursuing a claim independent of the Class Action, where relief has never been denied. The Ninth Circuit's decision in Hatfield v. Halifax PLC, 564 F.3d 1177 (9th Cir. 2009)-wrongly relied upon by plaintiffs (P1. Br )-illustrates why this case falls outside equitable tolling. Hatfield, a California resident, filed a class action in New Jersey state court, but the court dismissed her claim (as well as those of others who were not New Jersey residents), holding that they had filed suit in the wrong court. Hatfield, 564 F.3d at Hatfield then promptly filed the same suit in a California federal court. Id. at The Ninth Circuit recognized that Clemens. "forecloseld] application of American Pipe," id. at 1187, but held that equitable tolling "[was] not congruent" with American Pipe, id. at 118 8, and saved Hatfield's claim because, in good faith, she had filed suit in a court that had refused to hear her claim. Id. at 1190 (California "has

8 Case 1:09-md LAK Document 772 Filed 03/05/12 Page 8 of 12 a strong interest in providing a remedy for wrongs committed against its citizens.... particularly here where the previous court refused to vindicate their claims on account of their non-resident status."). Here, the untimeliness of SCIF's claim is not the result of this (or any other) court's refusal to vindicate SCIF's claims, on account of its status as a California resident or otherwise. 11. SCIF'S STATE LAW CLAIMS ARE ALSO PRECLUDED BY SLUSA SLUSA provides that "no 'covered class action' based upon state law and alleging misrepresentations or omissions in connection with the purchase or sale of covered securities may be maintained in any court." Gordon Partners v. Blumenthal, No. 02 Civ. 7377(L.AK), 2007 WL , at *3 (S.D.N.Y. May 16, 2007). By statute, the term "covered class action" is defined to include traditional class actions filed as a "single lawsuit" as well as "any group of lawsuits filed in or pending in the same court and involving common questions of law or fact, in which-(i) damages are sought on behalf of more than 50 persons; and (11) the lawsuits are joined, consolidated, or otherwise proceed as a single action for any purpose." 15 U.S.C. 77p(fJ(2)(A). SCIF's arguments that SLUSA does not preempt its claims here all lack merit. First, SCIF does not contest that this lawsuit is based upon state law, alleges misrepresentations in connection with the purchase of covered securities, and is consolidated with other actions that collectively seek damages on behalf of more than 50 persons. As this Court and others have acknowledged, the "plain language" of SLUSA applies in this situation. Gordon, 2007 WL , at *3*IO SCIF nonetheless argues that SLUSA preemption should 10 See also Amorosa v. Ernst & Youniz LLP, 672 F. Supp. 2d 493, (S.D.N.Y. 2009) (an opt-oult action was a "covered class action" when it procceded as a single action related to multidistrict litigation); Instituto de Prevision Militar v. Merrill Lynch, 546 F.3d 1340, 1347 (11Ith Cir. 2008) (an individual action was a "covered class action" when it was consolidated with two related cases for discovery purposes); In..re Fed. Nat'l Mortg. Ass'n Sec.. Derivative & ERISA Litig., 503 F. Supp. 2d 25, 33 (D.D.C. 2007) (two lawsuits brought by plaintiffs who opted out of a class action were "covered class actions" after they were consolidated with the class action); In re AOL Time Warner. Inc. Sec. Litig., 503 F. Supp. 2d 666, (S.D.N.Y. 2007) (cases consolidated for pretrial purposes qualify as a "covered class action"); In re WorldCom. Inc. Sec. Litig., 308 F. Supp. 2d 236, 246 (S.D.N.Y. 2004) (same).

9 Case 1:09-md LAK Document 772 Filed 03/05/12 Page 9 of 12 not apply here because this action is purportedly not part of a "group of lawsuits," which it contends should only cover situations where "plaintiff s conduct smacks of SLUSA avoidance" because an alternative reading would be inefficient and contrary to the legislative history of the statute. Pl. Br This Court and others, however, have refused to "ignore the language of the statute in favor of [plaintiffs] interpretation of the legislative history." See Gordon, 2007 WL , at *3*12 The only decision SCIF musters in support of its position is a Special Master's report and recommendation in In re Refco Inc. Securities Litigation, Nos. 07-md-l 902 (JSR), 08-cv (JSR), 08-cv-3086 (JSR), 2011 WL (S.D.N.Y. Sept. 6, 2011). SCIF's reliance on Refco is misplaced. As an initial matter, the Refco decision does not represent a substantive decision on SLUSA's application until the district court issues its opinion (which it has yet to do). In any event, Refco affirms the very principle SCIF resists. Like this Court and others, the Special Master in Refco acknowledged that pretrial consolidation "satisfies the grouping requirement." Id. at *6 n. 11. The Special Master's observation concerning "avoidance" arose in his discussion of whether two actions shared "common questions of law or fact" when the "4gravamen" of their complaints was "fundamentally different." See id. at *6. That has no bearing on this case. Second, SCIF's selective citations to SLUSA's legislative history are also unpersuasive. When viewed as a whole, the legislative history of SLUSA "overwhelmingly demonstrates" that, It SCIF's strained textual argument (P1. Br. 3 1) also fails. Under the plain text of SLIJSA, multiple lawsuits qualify under the "group of lawsuits" provision if they seek damages on behalf of 50 or more people and are joined, consolidated, or proceed together for any purpose. See 15 U.S.C. 77p(f)(2)(A). Nothing in the statute requires "intentional group behavior." 12 See also Instituto de Prevision Militar, 546 F.3d at 1347 (rejecting plaintiff's argument that "the Congress that enacted SLUSA intended to preserve bona fide individual actions like this case" because "in light of the provision's unambiguous language, we need not resort to inferences from the Act's overall structure or the results of a hunt through its legislative history").

10 Case 1:09-md LAK Document 772 Filed 03/05/12 Page 10 of 12 "although Congress recognized that it would sometimes be used to preempt individual state law claims, on balance, that was a price worth paying." In re Fed. Nat'l Momt. Ass'n Sec.. Derivative & ERISA Litig., 503 F. Supp. 2d 25, 32 (D.D.C. 2007). For example, the Senate Committee on Banking, Housing, and Urban Affairs explicitly acknowledged that SLUSA would apply to "bona fide individual actions" in instances where, as here, a "court orders that the suits be joined, consolidated, or otherwise proceed as a single action." S. Rep. No , at 7-8 (1998). 1 Opponents of the legislation read the statute the same way, stating that SLUSA "4contains a definition of 'class action' broad enough to pick up individual investors against their will... [e]ven if the lawsuits are brought by separate lawyers, without coordination, and common questions do not predominate." Id. at " Yet this "broad" definition of "class action" was the one that Congress ultimately adopted, even though it considered (and rejected) an amendment that would have limited SLUSA's preclusive reach to traditional class actions. See 144 Cong. Rec. S4778 (daily ed. May 13, 1998). Thus, contrary to SCIF's contention, if anything, the legislative history provides additional support for this Court's prior holding that SLUSA should be applied as written. 1I1. THE AMENDED COMPLAINT SEPARATELY FAILS TO STATE A CLAIM A. SCIF Has Not Established Section 12 Standing To establish standing under Section 12(a)(2), a plaintiff must allege that it purchased 13 See also WorldCom, 308 F. Supp. 2d at 247 (this passage "underscores congressional intent to preempt state court litigation whenever separately filed suits are consolidated, even where the suits are 'bona fide individual actions"'). 14 See also 144 Cong. Rec. H6052, H6056 (daily ed. July 21, 1998) (letter from Government Finance Officers Association, e t al.) ("Th einition of class action.... would allow single suits filed by individual plaintiffs to be rolled into a larger class action that was never contemplated or desired by individual plaintiffs."); 144 Cong. Rec. S 12444, S (daily ed. Oct. 13, 1998) (statement of Sen. Sarbanes) ("The bill's definition of 'class action' will pick up, against their will, individuals who choose to file their own lawsuits under State law."); 144 Cong. Rec. H 10771, H (daily ed. Oct. 13, 1998) (statement of Rep. Dingell) ("[U]nder [SLUSA's] unusual 'grouping' provision....[i]ndividuals who bring suits in state court in their own name may find, if others have brought similar suits, that their claims are preempted.").

11 Case 1:09-md LAK Document 772 Filed 03/05/12 Page 11 of 12 securities in an initial public offering. See Yung v. Lee, 432 F.3d 142, 149 (2d Cir. 2005). H~ere, SCIF concedes that it purchased Offerings I and 2 in the aftermarket rather than in an initial public offering. See P1. Br. 29 n.23. SCIF's Section 12(a)(2) claims must therefore be dismissed. See In re Fuwei Films Sec. Litig., 634 F. Supp. 2d 419, 445 (S.D.N.Y. 2009) ("[L]iability pursuant to section 12(a)(2) only attaches to plaintiffs who purchased their shares directly in the initial public offering, and not the so-called 'aftermarket."'). 15 SCIF's argument that a district court in the Ninth Circuit might reach a different result is unavailing, as this Court is required to apply the Second Circuit's interpretation of federal law to this action. See Banks Br. 9 n.13 (citing Menowitz v. Brown, 991 F.2d 36, (2d Cir. 1993)).I16 B. SCIF Relies On Allegations That The Court Has Already Dismissed In its July 2011 opinion in the Class Action, the Court dismissed several of the allegations contained in SCIF's Amended Complaint. SCIF nonetheless asserts in a conclusory fashion that it "has put forth additional allegations supporting liability that were not present in the Lehman Class Action pleadings," but without expressly identifying what they are or hcw they support claims against the Bank Defendants. P1. Br The Bank Defendants respectfully submit that any purported "additional allegations" in SCIF's Amended Complaint fail to overcome the deficiencies previously identified by the Court, and request that the Court dismiss those allegations as it has done before. See Banks Br See also Caiafa v. Sea Containers Ltd., 525 F. Supp. 2d 398, 407 (S.D.N.Y. 2007); In re Cosi. Inc. Sec. Liti&., 379 F. Supp. 2d 580, (S.D.N.Y. 2005); Am. High-Income Trust y. Alliedsignal, 329 F. Supp. 2d 534, 547 n.8 (S.D.N.Y. 2004); In re WorldCom. Inc. Sec. Litig., Nos. 02 Civ (DL1C), 03 Civ (DL1C), 2004 WL , at *4-.5 (S.D.N.Y. June 28, 2004); In re Sterling Foster & Co.. Inc.. Sec. Litig., 222 F. Supp. 2d 216, (E.D.N.Y. 2002); In re Ultrafem, 91 F. Supp. 2d at SCIF's Section 12(a)(2) claims must also be dismissed because it has not specified the Bank Defendants, if any, that sold to it or solicited its purchases. See Banks Br ; see also in re CitiGroup2 Inc. Bonid Litig., 723 F. Supp. 2d 568, 585 (S.D.N.Y ) (a plaintiff must "identify a particular purchase from a particular defendant pursuant to a particular prospectus that it contends contained a particular false or misleading statement").

12 Case 1:09-md LAK Document 772 Filed 03/05/12 Page 12 of 12 CONCLUSION For the foregoing reasons, the Bank Defendants respectfully request that the Court dismiss SCIF's claim against them with prejudice. 17 Dated: New York, New York March 5, 2012 Respectfully submitted, CLEARY GOTTLIEB STEEN & HAMILTON LLP By: /s/ Mitchell A. Lowenthal Mitchell A. Lowenthal (mlowenthal(~cgsh.com) Victor L. Hou (vhouc~cgsh.com) Roger A. Cooper (racoopergdcgsh.com) One Liberty Plaza New York, New York Tel: (212) Fax: (212) Attorneys for the Bank Defendants 17 The Bank Defendants also incorporate to the extent applicable the arguments set forth in the Reply Memorandum of Law in Support of the Individual Defendants' Motion to Dismiss the Amended Complaint filed contemporaneously herewith.