Plaintiff, MEMORANDUM DECISION AND ORDER

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1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK TRUK INTERNATIONAL FUND, LP, -against- Plaintiff, MEMORANDUM DECISION AND ORDER DAVID W. WEHLMANN; GERALD W. 08 Civ (PUG) HADDOCK; RANDALL BOYD; DONALD W. NIEMIEC; ROBERT L. GAUDIN; WILLIAM 0. POWELL, III; CANACCORD ADAMS, INC.; and CANACCORD CAPITAL CORPORATION, Defendants. PAUL G. GARDEPHE, U.S.D.J.: Before the Court is a motion filed by David W. Wehlmann, Gerald W. Haddock, Randall Boyd, Donald W. Niemiec, Robert L. Gaudin, and William 0. Powell, III's ("Individual Defendants") to transfer this securities class action to the Northern District of Texas pursuant to 28 U.S.C. 1404(a). 1 For the reasons set forth below, the motion is GRANTED. BACKGROUND Truk International Fund, LP ("Truk") is a Cayman Islands limited partnership that has offices in New York and is managed by a New York-based management company. (Cmplt., lf 5; Daniel Hume Declaration dated December 29, 1 By Notice of Joinder dated January 14, 2009, Defendant Canaccord Adams, Inc. joined the Individual Defendants' motion to transfer. (Notice of Joinder dated Jan. 14, 2009, Docket No. 28) Although Canaccord Capital Corporation was served with the Summons and Complaint on February 17, 2009, it has not made an appearance in this action. (Request for Service Abroad of Judicial or Extrajudicial Documents, Docket No. 29) 1

2 2008, lf 2 ("Hume Decl."); Declaration of Jonathan J. Lerner dated November 25, 2008, Ex. 2 )("Lerner Decl.") Truk seeks to certify a class of purchasers of Cano Petroleum, Inc.'s ("Cano") common stock issued pursuant to a registration statement and prospectus filed in connection with a June 26, 2008 secondary public offering. (Cmplt. tf 1, 16) Cano sold approximately seven million shares during this secondary offering, and Truk estimates that thousands of investors will be eligible to join their class. (Id. lf 17) Truk's Complaint alleges that the registration statement and prospectus filed in connection with the secondary public offering contains "statements concerning proved reserve amounts and standards that were materially false and overstated Cano's proved reserves." (Id. lf 26) Truk brings claims under Sections 11, 12(a)(2), and 15 of the Securities Act of (Id. tf 28, 37, 46) The Individual Defendants allegedly served on Cano's Board of Directors during the relevant class period, resided in Texas while they served on Cano's Board, and signed the registration statement for the secondary public offering. (Id., tf 6-11; Declaration of Phillip B. Feiner dated November 25, 2008, lf 5) ("Feiner Decl.") Canaccord Adams, Inc. and Canaccord Capital Corporation ("Underwriting Defendants") are Canadian corporations that served as underwriters for Cano's secondary offering. (Cmplt., tf 13, 14) One of the Underwriting Defendants, Canaccord Adams, Inc., maintains offices in New York and Texas. (Id. lf 13) Cano, the securities issuer, is not a party to this action. Cano is "an independent oil and gas company organized under the laws of Delaware with its executive offices in Fort Worth, Texas." (Feiner Decl., lf 2) All of Cano's employees, including the six managers identified in the prospectus and prospectus supplement, are 2

3 located in Fort Worth, Texas. (Id. lf 6) Three of Cano's six active project sites are located in Texas, and the "proved reserves" at issue are located in Texas, Oklahoma, and New Mexico. (Id., lf 2) DISCUSSION The Individual Defendants argue that this action should be transferred to the Northern District of Texas because crucial party witnesses, non-party witnesses, and the locus of operative facts are all located in Texas. Truk contends that its choice of forum is entitled to deference, and that the locus of operative facts is evenly split between the Northern District of Texas and the Southern District of New York. Transfer to the Northern District of Texas is appropriate here because (1) the case "might have been brought" in that district; (2) critical non-party witnesses are located in that district; (3) the locus of operative facts is in that district; and (4) the remaining interest of justice factors are either neutral or do not strongly favor retention of this action in this district. I. LEGAL ANALYSIS Title 28, United States Code, 1404(a) states that "[for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." "[T]he purpose of [28 U.S.C. 1404(a)] is to prevent the waste 'of time, energy and money' and 'to protect litigants, witnesses and the public against unnecessary inconvenience and expense.' Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (quoting Continental Grain Co. v. Barge F.B.L U.S. 19, 21 (1960)). When making a motion under 28 U.S.C. 1404(a), the movant "has the burden of making out a strong case for a transfer." 3

4 Filmline (Cross-Country) Prods., Inc. v. United Artists Corp., 865 F.2d 513, 521 (2d Cir. 1989). -A motion to transfer venue requires a two-part inquiry: first, whether the action to be transferred might have been brought in the transferee court; and second, whether considering the convenience of parties and witnesses, and the interest of justice, a transfer is appropriate." Fuji Photo Film Co., Ltd. v. Lexar Media, Inc., 415 F. Supp. 2d 370, 373 (S.D.N.Y. 2006) (quotations omitted). In determining whether the interest of justice favors transfer, courts consider the following nine factors: "(1) the convenience of the witnesses, (2) the convenience of the parties, (3) the location of relevant documents and the relative ease of access to sources of proof, (4) the locus of operative facts, (5) the availability of process to compel the attendance of unwilling witnesses, (6) the relative means of the parties, (7) the forum's familiarity with governing law, (8) the weight accorded to plaintiffs choice of forum, and (9) trial efficiency." Id. A. This Action Might Have Been Brought in the Northern District of Texas The parties agree that this action "might have been brought" in the Northern District of Texas. (Pltff. Supplemental Br. 2, 7; Def. Supplemental Br. 1-4) "Under the federal securities acts... federal courts have personal jurisdiction over any defendant who is a United States resident or otherwise has minimum contacts with the United States" Collier v. Stuart-James Co. Inc. No. 89 Civ (LLS), 1990 WL 55798, at *3 (S.D.N.Y. Apr. 26, 1990). The Individual Defendants are residents of the United States and the Underwriting Defendants have minimum contacts with the United States by virtue of their participation in the secondary public offering. (Cmplt., tf 6-11, 4

5 13-14) Canaccord Adams, Inc. also maintains offices in Texas and New York. (Id. lf 13) Accordingly, there is no issue as to jurisdiction. Venue in this action is governed by 15 U.S.C. 77v(a), which states that venue is proper where a defendant "is found or is an inhabitant or transacts business, or in the district where the offer or sale took place, if the defendant participated therein." "Given the nature of securities fraud actions, it is well-established that the special venue provisions should be liberally construed." S.E.C. v. 800america.com, Inc. No. 02 Civ (HB), 2006 WL , at *5 (S.D.N.Y. Nov. 28, 2006). Venue is proper in the Northern District of Texas because all of the Individual Defendants transacted business in that district each attended "numerous meetings" at Cano's Forth Worth offices in connection with the secondary public offering and four of the Individual Defendants also resided in the Northern District of Texas. (Phillip B. Feiner Supplemental Declaration dated May 7, 2009, tf 2, 3) ("Feiner Supp. Decl.") The Underwriting Defendants also transacted business in the Northern District of Texas, because their representatives attended meetings in Forth Worth with Cano executives to discuss the underwriting for the prospective secondary public offering with Cano executives, and it was this underwriting that gave rise to the instant action. (Id. lf 4) The Underwriting Defendants' representatives also had extensive contact with Cano executives in the Northern District of Texas via telephone. (Id.); see also Brown v. Am. Broad Co., 704 F.2d 1296, 1302 (4th Cir. 1983) (finding defendant was subject to personal jurisdiction in Virginia because defendant attended one meeting in Virginia that gave rise to her cause of action); Sokol Holdings, Inc. v. BMB Munai, Inc., No. 05 Civ (KMW), 2007 WL , at *2 (S.D.N.Y. June 15, 2007), vacated in part on other grounds 542 F.3d 5

6 354 (2d Cir. 2008) (finding defendant transacted business in New York for purposes of the long-arm statute because defendant travelled to New York to attend meetings and because its agent also travelled to New York); JFP Touring LLC v. Polk Theatre Inc., 07 Civ (CM), 2007 WL , at *11 (S.D.N.Y. July 12, 2007) ("Thus, while electronic communications, telephone calls, faxes or letters, in and of themselves, are generally not enough to establish jurisdiction, they may be sufficient if used by the defendant deliberately to project itself into business transactions occurring within [the] State ") (quotation omitted). Accordingly, the Individual Defendants have established that this action might have been brought in the Northern District of Texas, and it is necessary to consider whether transfer is in the interest of justice. B. Interest of Justice Factors 1. The Convenience of the Non-party Witnesses Stronply Favors Transfer "The convenience of the witnesses is generally considered the most important factor in deciding a motion to transfer venue." In re Stillwater Mining Co. Sec. Litig. No. 02 Civ (DC), 2003 WL , at *4 (S.D.N.Y. May 12, 2003); see also Oubre v. Clinical Supplies Mgmt. Inc. 05 Civ (LLS), 2005 WL , at *2 (S.D.N.Y. Nov. 17, 2005) ("The convenience of witnesses is a major factor in evaluating a transfer motion."); In re Nematron Corp. Sec. Litig., 30 F. Supp. 2d 397, 400 (S.D.N.Y. 1998) ("The convenience of parties and witnesses is considered the essential criteria under the venue statute, and the most significant factor.") (quotations omitted). Moreover, "ft]he convenience of non-party witnesses is accorded more weight than that of party witnesses." Indian Harbor Ins. Co. v. Factory Mut. Ins. Co., 419 F. Supp. 2d 395, 402 (S.D.N.Y. 2005); Fifth Ave. of Long Island Realty Assocs. v. Caruso Mgmt. 6

7 Co. Ltd. No. 08 Civ. 384, 2009 WL , at *15 (E.D.N.Y. Feb. 17, 2009) (quoting Indian Harbor). "When assessing the convenience of witnesses, a court does not merely tally the number of witnesses who reside in the current forum in comparison to the number located in the proposed transferee forum." Herbert Ltd. P'ship v. Elec. Arts Inc. 325 F. Supp. 2d 282, 286 (S.D.N.Y. 2004). "Instead, the court must qualitatively evaluate the materiality of the testimony that the witnesses may provide." Id. "To obtain a transfer based on convenience, the moving party must specifically list the witnesses on whom he intends to rely in the transferee district, along with a general statement of the topics on which each witness is expected to testify." Mears v. Montgomery No. 02 Civ (BSJ) (MHD), 2004 WL , at *8 (S.D.N.Y. May 5, 2004); see also Orb Factory Ltd. v. Design Sci. Toys Ltd. 6 F. Supp. 2d 203, 208 (S.D.N.Y. 1998) (explaining "[t]he movant must support the transfer application with an affidavit containing detailed factual statements relevant to the factors [to be considered by the court in its transfer decision], including the potential principal witnesses expected to be called and a general statement of the substance of their testimony). Contrary to Truk's arguments (Truk Br. 6-7), the Individual Defendants have adequately identified multiple non-party witnesses and explained why their testimony will be essential to this litigation. For example, it is clear that the six members of non-party Cano's management team who are identified in the prospectus and prospectus supplement are likely to be important witnesses. (Feiner Decl., lf 6) All work in the Northern District of Texas. (Feiner Supp. Decl., lf 3) Cano itself is located in Fort 7

8 Worth in the Northern District of Texas and has no offices, employees or operations in the Southern District of New York. (Feiner Decl., tf 2, 6) Other critical non-party witnesses include employees of Forest A. Garb & Associates, Inc. ("Garb"), a petroleum engineering consulting firm Cano hired to provide an opinion concerning the "proved reserves" at issue. (Id., lf 7) Garb and its employees are based in Dallas, within the Northern District of Texas. (Id.) Employees of non-party Hein & Associates, LLP ("Hein") are also likely to be called as witnesses. Hein was identified in the prospectus supplement as having audited Cano consolidated balance sheets, statements of operations, and other Cano financial statements and reports incorporated by reference in the prospectus supplement that Truk claims was "materially false." 2 (Id.) Finally, the Dallas-based law firms of Haynes and Boone and Bracewell & Giuliani advised Cano and the Underwriting Defendants in connection with their due diligence and in the preparation of the prospectus and prospectus supplement. (Id., lf 4) In response, Truk has vaguely identified several non-party witnesses who are located in New York, including individuals who were involved in the preparation of an analyst report and employees of a company that issued a press release regarding Cano's securities. (Truk Br. 8) Truk's showing does not rebut the Individual Defendants' detailed presentation demonstrating that the majority of non-party witnesses 2 Truk argues that the convenience of Garb and Hein employees is of little significance, citing a case which states that "the convenience of expert witnesses is entitled to little weight or no weight in deciding a transfer motion." (Truk Br. 7 (quoting McCrystal v. Barnwell County, S.C., 422 F. Supp. 219, 224 (S.D.N.Y. 1976)). The Garb and Hein employees at issue here are not the type of "expert witnesses" that the McCrystal court had in mind, however. These witnesses were not hired for purposes of this litigation. Instead, they are more in the nature of fact witnesses whose expertise Cano relied on in preparing the filings that are at issue in this litigation. As such, their convenience is relevant to this Court's Section 1404(a) analysis. 8

9 are located in the Northern District of Texas. Accordingly, this Court finds that the vast majority of non-party witnesses are located in the Northern District of Texas where Cano, Garb, Hein and Cano's law firms are based, and that this factor strongly favors transfer. 2. The Convenience of the Parties Is a Neutral Factor Truk is a Cayman Islands fund which has offices in New York and is managed by a New York-based firm. (Cmplt., lf 5; Hume Decl., lf 2; Lerner Decl., Ex. 2) Four of the Individual Defendants reside in the Northern District of Texas; two live in Houston. (Feiner Supp. Decl., lf 2) The Underwriting Defendants are based in Canada, with Canaccord Adams, Inc. maintaining offices in New York and Texas. (Cmplt., tf 13, 14) Because it would be most convenient for Truk to litigate this action in New York, and most convenient for the Individual Defendants to litigate in the Northern District of Texas, the Court finds that either side will be inconvenienced no matter where this case proceeds. Accordingly, this factor is neutral. 3. The Location of Documents and Relative Ease of Access to Sources of Proof Favors Transfer The vast majority of Cano's corporate documents and records, including many of the documents relating to the preparation of the prospectus and prospectus supplement, are located at Cano's headquarters in Fort Worth, Texas. (Feiner Decl., lf 9) Additionally, three of Cano's active project sites are located in Texas, and all of Cano's proved reserves are located in Texas, Oklahoma, and New Mexico. (Id., lf 2) Truk properly argues, however, that the location of physical documents is no longer a factor given great weight in a Section 1404(a) analysis. See, e.g. Oubre 2005 WL , at *3 (In today's era of photocopying, fax machines, Federal Express, and electronic document transmission, the location of documents is entitled to little 9

10 weight unless the movant makes a detailed showing of the burden it would incur absent transfer.") (quotations omitted); Lynch v. Nat'l Prescription Adm'rs, 03 Civ (GBD), 2004 WL , at *3 (S.D.N.Y. Mar. 1, 2004) ("[T]he location of documents factor is neutral [in] today's era of photocopying, fax machines and Federal Express.") (quotations omitted). Accordingly, this factor only slightly favors transferring this action to the Northern District of Texas. 4. The Locus of Operative Facts Strongly Favors Transfer The Individual Defendants allege that "Cano's Prospectus and its Prospectus Supplement were prepared primarily at Cano's office in Forth Worth, Texas." (Feiner Decl., lf 4) Moreover, the Individual Defendants allege that "[p]age 20 of the Prospectus and page S-2 of the Prospectus Supplement incorporate by reference certain other Cano public filings. Each of these documents was primarily prepared... in Fort Worth, Texas." (Id. lf 9) In addition, "[d]ue diligence activities by Canaccord Adams, Inc.'s employees and agents occurred at, and documents reviewed during that diligence are located at... Fort Worth, Texas." (Affidavit of Christian B. Gibson dated January 12, 2009, lf 4) ("Gibson Aff.") Truk concedes that "the preparation of the materials for the Secondary Offering and other relevant filings and financial statement[s] apparently occurred in Texas," but maintains that the "operative events occurred equally in New York and Texas." (Truk Br. 13) In support of this argument, Truk alleges that: the secondary offering occurred in New York; certain press releases were issued in New York; 3 3 Exhibit 3 to Daniel Hume's Declaration contains a copy of a notice that was apparently released over the Bloomberg financial news service. The release reads: "FORT WORTH, TEXAS (BUSINESS WIRE) June 25, 2008 Cano Petroleum, Inc.. 10

11 analysts' coverage of the secondary offering took place in New York; Cano's stock is traded on the American Stock Exchange in New York; and Cano participated in a road show and an industry conference in New York. 4 (Id.) Under similar factual circumstances, courts in this district have found that transfer is appropriate. See In re Global Cash Access Holding Inc. Sec. Litig. No. 08 Civ (SWK), 2008 WL , at *6 (S.D.N.Y. Sept. 18, 2008) (transferring a securities litigation to the District of Nevada despite plaintiff's argument that certain aspects of the IPO and the secondary offering occurred in New York because the registration statement and prospectus were prepared in Nevada); Laborers Local 100 & 397 Pension Fund v. Bausch & Lomb Inc., Nos. 06 Civ.1942 (HB), 06 Civ.2025 (HB), 06 Civ (HB), 06 Civ. 2916(HB), 06 Civ. 2918(HB), 06 Civ. 3106(HB), 06 Civ. 3653(HB), 2006 WL , at *5 (S.D.N.Y. June 5, 2006) (finding that the locus of operative facts favored transferring this securities case to the Western District of New York because the "key facts in this case involve the allegedly false and misleading statements issued by the Company from their Rochester headquarters"); In re AtheroGenics Sec. Litig. No. 05 Civ (RJH), 2006 WL , at *3-4 (S.D.N.Y. Mar. 31, 2006) (finding that the locus of operative facts favored transfer even though the sale and purchase of stock occurred in New York; the press release was disseminated in announced today that is has offered to sell 7,000,000 shares of its common stock..." There is no evidence on the face of the press release where it was issued, other than the dateline, which references Fort Worth, Texas, and does not reference New York. 4 Truk also alleges that the underwriting activities took place in New York (Truk Br. 1, 12), but offers no facts to back up this assertion. The Hume Declaration the only sworn testimony Truk offered in support of its motion only describes certain marketing activities that took place in New York. (Hume Decl., tf 3, 4) In addition, Christian B. Gibson, a lead investment banker responsible for Cano's underwriting, testified that no underwriting activities occurred in New York. (Gibson Aff., tf 1, 2) 11

12 New York; and the defendant CEO made two study-related appearances in New York); In re Stillwater Mining Co. Sec. Litig WL , at *4 (transferring action to Montana where quarterly reports and press releases were issued in Montana, two conference calls took place in Montana, and all decisions involving reserve estimates were made in Montana but the Company's stock was traded on the NYSE and an important institutional investor meeting took place in New York); In re Nematron Corp. Sec. Litig. 30 F. Supp. 2d at 404 (finding that the transferee forum "bears a much more intimate connection to the events underpinning this case than does New York" even though the purchase and sale of the common stock occurred in New York). In this action, Truk concedes that relevant secondary offering submissions and financial statements were prepared in the Northern District of Texas (Truk Br ; Feiner Decl., lf 4), and due diligence activities took place in the Northern District of Texas. (Gibson Aff., lf 3) Accordingly, the Northern District of Texas is the forum that "bears a much more intimate connection to the events underpinning this case than does New York," see In re Nematron Corp. Sec. Litig. 30 F. Supp. 2d at 404, and thus this factor strongly favors transfer. 5. The Availability of Process to Compel the Attendance of Unwilling Witnesses Is a Neutral Factor The availability of process to compel the attendance of witnesses is a neutral factor here because the Individual Defendants have not identified any witnesses who would be unwilling to testify without compulsion. 5 See Price v. Stossel No. 07 Civ. 5 Fed. R. Civ. P. 45(c)(3)(A)(ii) provides that a "court must quash or modify a subpoena that requires a person who is neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person...." 12

13 11364 (SWK), 2008 WL , at *6 (S.D.N.Y. June 4, 2008) (determining defendant "has made only a weak preliminary showing of potential subpoena difficulties" because it has failed to demonstrate, or even allege, that any of them would be unwilling to testify should this matter proceed to trial"); Colabufo v. Cont'l Cas. Co. No. 04 Civ (TCP) (MLO), 2006 WL , at *4 (E.D.N.Y. Apr. 27, 2006) (finding the ability to compel the attendance of witnesses was not a "determinative factor" partially because Inieither Defendants nor Plaintiffs have identified any witness who would be unwilling to attend the trial of this action absent the compulsion of a subpoena"). Additionally, the Individual Defendants have not explained why depositions could not be used as a substitute for live testimony. See Ernes N.V. v. Citgo Asphalt Ref Co., 08 Civ (VM), 2009 WL , at *7 (S.D.N.Y. Mar. 16, 2009) (finding the availability of process to compel witnesses to be a neutral factor because "there has been no indication that deposition testimony is not a viable alternative"). Thus, this factor is neutral. 6. The Relative Means of the Parties Is a Neutral Factor In analyzing whether the relative means of the parties favors transfer, a court should determine whether a party's "financial situation would meaningfully impede its ability to litigate this case in either forum." In re Collins & Allman Sec. Litig., 438 F. Supp. 2d 392, 397 (S.D.N.Y. 2006). In this action, neither side has alleged that it does not have the financial resources to litigate this action in either forum. (Def. Br. 8 n.1; Pltff. Br. 15) Accordingly, this factor is neutral. 13

14 7. The Forum's Familiarity with the Governing Law Is a Neutral Factor Although Truk argues that the Southern District of New York's expertise in securities law is a factor that weighs in favor of this Court retaining jurisdiction (Truk Br. 15), numerous courts have held, in the context of Section 1404(a) transfer motions, that "fflederal courts throughout the nation are equally capable of applying federal securities laws." In re Global Cash Access Holding, Inc. Sec. Litig., 2008 WL , at *7 (quoting In re Collins & Allman Sec. Litig. 438 F. Supp. 2d at 398); Laborers Local 100 & 397 Pension Fund, 2006 WL , at *6 ("Since all of these cases are brought pursuant to federal law and Defendants seek transfer from one federal court to another, this factor must also be assessed neutral."); In re Stillwater Mining Co. Sec. Litig WL , at *5 ("[Noth the Southern District of New York and the District of Montana are equally capable of applying federal securities law to this action."). Accordingly, this factor is neutral. 8. The Court Accords Less Deference to Truk's Choice of Forum Because It Represents a Putative Class Generally, a plaintiff's choice of forum is "a decision given great weight" in the context of a Section 1404(a) transfer motion. See D.H. Blair & Co., Inc. v. Gottdiener 462 F.3d 95, 107(2d Cir. 2006). Truk's choice of forum is entitled to less deference here, however, because it represents a putative class. See Glass v. S & M NuTec, LLC, 456 F. Supp. 2d 498, 504 (S.D.N.Y. 2006) (a court should give less weight to plaintiff's choice of forum "in a putative class action involving plaintiffs who are scattered throughout the country" because it will be possible for "numerous potential plaintiffs... to make a showing that a particular forum is best suited for the adjudication of the class's claim"); In re Collins & Aikman Sec. Litig., 438 F. Supp. 2d at

15 (plaintiffs choice of forum is entitled to "less deference" when "plaintiff brings the present action on behalf of a purported nationwide class of investors"; "in class actions less weight is given to the plaintiffs choice") (quotations omitted); In re Stillwater Mining Co. Sec. Litig WL , at *5 ("plaintiffs choice of forum is accorded less weight in a class action where the plaintiff may represent a widely dispersed class") (quotations omitted); Shulof v. Westinghouse Elec. Corp., 402 F. Supp. 1262, 1263 (S.D.N.Y. 1975) ("While it is axiomatic that a plaintiffs choice of forum is entitled to great consideration, the adage has little weight in stockholder class actions."). But see In re Geopharma Inc., No. 04 Civ (SAS), 2005 WL , at *1 (S.D.N.Y. May 11, 2005) ("Although less deference is shown to the choice of venue of a class representative than that of an individual plaintiff, that choice should nonetheless be honored unless defendants make a convincing showing that venue should be changed.") (quotations omitted). Because Truk represents a putative class that will potentially be comprised of "thousands of persons" from across the nation (Cmplt., lf 17), this Court will accord less deference to Truk's choice of forum. 9. Trial Efficiency Is a Neutral Factor The Individual Defendants argue that the docket in the Northern District of Texas is less congested than the docket in this district (Lerner Decl., Ex. 1), and that this factor favors transfer. Although this District's docket, as a whole, is more congested that the docket of the Northern District of Texas, my docket is not unduly backlogged. See Oubre, 2005 WL , at *6 ("While there may be greater overall docket congestion in this district than in the District of North Dakota, under our individual calendar system I could likely try this case as soon or sooner than it would be tried in 15

16 North Dakota."); Funke v. Life Fin. Corp. 99 Civ (CBM), 2003 WL , at *4 (S.D.N.Y. Jan. 28, 2003) ("In terms of trial efficiency, while it is true... that the Central District of California has fewer cases per judge than the Southern District of New York, this particular court... has a comparatively light docket"); Dwyer v. Gen. Motors Corp., 853 F. Supp. 690, 695 (S.D.N.Y. 1994) (explaining "this particular court's docket is not nearly as back-logged as the majority of the docket's in this District" and "this case could conceivably go to trial sooner than it would in Maryland.") Accordingly, this factor is neutral. C. Consideration of the Interest of Justice Factors Indicates that Transfer is Appropriate While most of the interest of justice factors are neutral, consideration of the convenience of critical non-party witnesses and the locus of operative facts, as noted above, indicates that this case should be transferred to the Northern District of Texas. The two principal cases Truk relies upon, In re Geopharma Inc WL and Funke v. Life Fin. Corp WL , are not to the contrary. In Geopharma, the court denied defendants' Section 1404(a) motion to transfer the action to the Middle District of Florida where defendant Geopharma was located in that district, Geopharma's securities were traded on the NASDAQ in New York, and plaintiffs alleged that the false and misleading statements were disseminated in New York. See 2005 WL , at *1. In that case, however, the plaintiff unlike here had sued the issuer, and the court noted that the "convenience of defendants' party witnesses cannot operate to eliminate section 27 [of the Securities Exchange Act of 1934's] explicit provision for jurisdiction wherever any violation occurred." Id. at 2 (emphasis in original). 16

17 Here, in contrast, the securities issuer Cano is not a party to this action and this Court has found that the convenience of non-party witnesses strongly favors transferring the action to the Northern District of Texas. Geopharma does not indicate that transfer here is inappropriate 6 In Funke plaintiffs alleged that a registration statement and prospectus contained false and misleading information. See 2003 WL , at *1. The plaintiffs formed a securities class and sued the securities issuer (located in the Central District of California), the underwriter (headquartered in New York), the accounting firm that audited financial statements in California, and the issuer's individual officers and directors, who resided in the Central District of California. See id. at *1-3. The court denied defendants' motion to transfer, finding that the locus of operative facts was split because the accounting calculations that gave rise to the misstatements occurred in California, but the underwriting and the IPO took place in New York. See id. at *3. Funke is distinguishable on three grounds. First, as explained above, the locus of operative facts in this action is not evenly split, because the prospectus and 6 The Geopharma court also cited the fact that both parties' law firms had offices in the Southern District of New York but only one party's law firm had offices in the Middle District of Florida. See id. at *2. Most courts do not consider the location of counsel to be a relevant consideration in conducting a Section 1404(a) analysis. See Fuji Photo Film Co., Ltd., 415 F. Supp. 2d at 374 ("the convenience of counsel is not an appropriate factor to consider on a motion to transfer") (quotation omitted); Glass 456 F. Supp. 2d at 502 (same); Collins & Allman, 438 F. Supp. 2d at 396 n.5 (same); Varsity Spirit Fashions & Supplies, Inc. v. I.I.P., Inc., 03 Civ (LLS), 2003 WL , at *2 (S.D.N.Y. Nov. 24, 2003) (same); Self Int'l (HK) Ltd. v. La Salle Nat'l Bank, Chicago, 01 Civ (RCC), 2002 WL , at *6 (S.D.N.Y. Mar. 29, 2002) ("counsel's presence is irrelevant to a transfer motion"); see also Wright, Miller & Cooper; Federal Practice and Procedure: Jurisdiction 3d 3850 ("[s]ome cases have taken [the location of counsel] into account, but the great majority of cases have not done so, saying either that it is not to be considered at all, that it is irrelevant or improper to consider, or that it is to be given very little weight"). 17

18 prospectus supplement were prepared in the Northern District of Texas (Feiner Decl., 4), and the due diligence also mostly took place in Texas. (Gibson Aff., ill 3) Second, and contrary to Funke, the underwriting for Cano's secondary public offering did not take place in New York. (Id., if 2) Finally, the Funke court noted that the magistrate judge "was familiar with the facts of this case, should a matter need to be referred to him." 2003 WL , at *4 Here, neither this Court nor the assigned magistrate judge has invested time in learning the facts pertinent to this action. CONCLUSION For the reasons set forth above, the Individual Defendants' motion to transfer this action to the Northern District of Texas pursuant to 28 U.S.C. 1404(a) is GRANTED. The Clerk of the Court is directed to terminate the motion (Docket No. 14), and to transfer the action to the Northern District of Texas.7 Dated: New York, New York May 20, 2009 SO ORDERED. gt,p. Atneheirt Paul G. Gardephe United States District Judge 7 On December 8, 2008, Truk filed an unopposed motion to be appointed lead plaintiff (See Docket No. 6) Because this Court is transferring this action to the Northern District of Texas, it will not address Truk's motion. 18