Case 1:09-md LAK Document 73 Filed 04/13/2009 Page 1 of 3

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1 Case 1:0-md-001-LAK Document Filed 0/1/00 Page 1 of UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK In re: LEHMAN BROTHERS SECURITIES AND ERISA LITIGATION x : Civil Action 0 MD 01 :(LAK) This Document Applies to: ALL CASES x DECLARATION OF ROGER A. COOPER IN SUPPORT OF DEFENDANTS' OPPOSITION TO THE MOTION BY ARKANSAS PLAINTIFFS TO MODIFY PRETRIAL ORDER NO. 1 TO PERMIT PROSECUTION OF CLAIMS ON LEHMAN BONDS ISSUED PRIOR TO FEBRUARY 1. 00

2 Case 1:0-md-001-LAK Document Filed 0/1/00 Page of I, ROGER A. COOPER, declare as follows: 1. I am an attorney admitted to practice before this Court and an associate at the law firm of Cleary Gottlieb Steen & Hamilton LLP, counsel to certain of the Defendants in the above-captioned case.. I submit this declaration in support of Defendants' Memorandum of Law in Opposition to the Motion by Arkansas Plaintiffs to Modify Pretrial Order No. 1 to Permit Prosecution of Claims on Lehman Bonds Issued Prior to February 1, 00 ("Defendants' Memorandum").. Attached hereto are true and correct copies of the following documents, which are referenced in Defendants' Memorandum: EXHIBIT A: EXHIBIT B: EXHIBIT C: EXHIBIT D: EXHIBIT E: Plaintiff s Notice of Pendency of Class Action, Fogel Capital Management, Inc. v. Fuld. et al., No. 0 Civ. (LAK), published on Business Wire on September, 00. Plaintiff s Notice of Pendency of Class Action, Stark v. Callan, et al. No. 0 Civ. (LAK), published on PR Newswire on December, 00. Hearing Transcript dated January, 00, Rinehart v. Lehman Brothers Holdings, Inc., et al., No. 0 Civ. (LAK). Arkansas Plaintiffs' Opposition to Motion to Transfer and Coordinate Pursuant to U.S.C., In re Lehman Brothers Holdings, Inc., Securities & Employee Retirement Income Security Act (ERISA) Litigation, MDL 01, dated December, 00, including service list. Hearing Transcript dated March, 00, In re Lehman Brothers Securities & ERISA Litigation 0 MD 01 (LAK). 1

3 Case 1:0-md-001-LAK Document Filed 0/1/00 Page of of my knowledge and belief. I declare under penalty of perjury that the foregoing is true and correct to the best Dated: New York, New York April 1, 00 gewra o/coper

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8 //00 Attorneys Announce Notice of Class Action Lawsuit on Behalf of Purchasers of Lehman... Page 1 of Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of Learn why it pays to be lazy... More Enter Symbol(s) or Keyword(s) SEARCH Welcome, please sign in. My Portfolio Community VSE Alerts FRONT PAGE NEWS & COMMENTARY Columnists First Take Special Reports Blogs Podcasts Industry News Economy & Politics Newsletters Obama's Challenge INVESTOR ALERT Dow industrials fall below,000 LATEST NEWS [INTC] Intel to broaden market opportunities for Atom SoCs PRESS RELEASE Attorneys Announce Notice of Class Action Lawsuit on Behalf of Purchasers of Lehman Brothers Holdings, Inc. Securities Last update: :0 p.m. EST Dec., 00 NEW YORK, Dec 0, 00 /PRNewswire via COMTEX/ -- The following was issued today by law firms Grant & Eisenhofer P.A., Kirby McInerney LLP, Gardy & Notis, LLP, and Law Offices Bernard M. Gross, P.C.: Notice is hereby given that on December, 00, an amended class action complaint ("Complaint") was filed in the United States District Court for the Southern District of New York on behalf of a class (the "Class") consisting of all persons who, between July 1, 00 and September 1, 00 inclusive (the "Class Period") purchased debt, preferred stock or other securities (other than common stock), including structured notes, of Lehman Brothers Holdings, Inc. ("Lehman" or the "Company") in or traceable to any public offerings conducted by Lehman (the "Public Offerings") against certain officers and directors of Lehman and certain Underwriters, alleging claims under Sections, 1(a)() and 1 of the Securities Act of 1, respectively 1 U.S.C. Sections k, 1(a) () and o. Lehman is not named as a defendant since it has filed for bankruptcy. The case is styled Jeffrey Stark, et al. v. Erin Callan, et al., No. 0 Civ. (S.D.N.Y.). A copy of the Complaint is available from the Clerk of the Court. The Complaint asserts that Defendants failed to disclose the true nature and extent of Lehman's exposure to losses resulting from trading in risky mortgagebacked securities and proper values of its assets, and that the registration statements and prospectuses contained both material misstatements and omissions regarding the financial health of the Company which Plaintiffs and the Class relied on to their detriment. The Complaint further alleges that Defendants could have -- and should have -- discovered the material misstatements and omissions in the Company's prospectuses and registration statements prior to filing them with the SEC and distributing them to the investing public. Instead, they failed to do so as a result of a negligent and grossly inadequate due diligence investigation. On September 1, 00, Lehman filed a voluntary petition to reorganize under Chapter of the Federal Bankruptcy Code in the U.S. Bankruptcy Court for the Southern District of New York in the largest bankruptcy filing in history; largely wiping out the investment interests of the Class. As a result of the dissemination of the false and misleading statements set forth in the Complaint, the market price of Lehman debt, preferred stock or other securities including structured notes (the "Lehman securities") was artificially inflated during the Class Period. Unaware of the false and misleading statements described in the Complaint, Plaintiffs and other members of the Class relied, to their detriment, on the integrity of the market price of the Lehman securities. Had Plaintiffs and the other members of the Class known the truth, they would not have purchased said securities, or would not have purchased them at the inflated prices that were paid. Before the Bell E-newsletter Get a daily, pre-market look at all the stocks expected to move, plus all the early news and action in Europe and Asia. Enter your address Sign up Privacy policy MOST POPULAR READ ED EDITOR'S PICK 1. Position yourself now for $00 a barrel oil. March Madness: Be prepared for a 0% move. Stock futures indicate Dow to fall below,000. Worst job losses in 0 years expected. Berkshire's Buffett cops to mistakes, likes longterm horizon. HSBC to shutter U.S. branches, raise $1. billion. Status of the market-timing popularity indicator. Stock slide sends Dow under,000 for first time since 1. U.S. to provide another $0 billion to AIG. Oil drops % on economic worries, falling stocks Get the Latest MarketWatch News >> Plaintiffs seek to recover damages on behalf of class members. The class is represented by the law firms of Grant & Eisenhofer P.A., Kirby McInerney LLP, Gardy & Notis, LLP, and Law Offices Bernard M. Gross, P.C., premier law firms that represent institutional and individual investors from the United States and around the world in class action, complex securities and corporate governance litigation. PARTNER CENTER Switch to Scottrade, get up to $0 back Get 0 Free Trades. E*TRADE Securities. If you purchased any of the Lehman securities described above during the Class

9 //00 Attorneys Announce Notice of Class Action Lawsuit on Behalf of Purchasers of Lehman... Page of Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of period, you may request that the Court appoint you as lead plaintiff no later than 0 days from today, or February, 00. In order to serve as lead plaintiff, however, you must meet certain legal requirements. To be a member of the proposed Class, as distinct from lead plaintiff, you need not take any action at this time. Get 0 Free Trades. Up to $0 back when switch Trade free for 0 days at TD AMERITRADE. For additional information, contact: James J. Sabella, Grant & Eisenhofer P.A., Lexington Avenue, New York, NY 01, --00 (jsabella@gelaw.com); Mark A. Strauss, Kirby McInerney LLP, Third Avenue, New York, NY 0, (mstrauss@kmllp.com); Mark C. Gardy, Gardy & Notis, LLP, 0 Sylvan Avenue, Suite 1, Englewood Cliffs, New Jersey 0, 01-- (mgardy@gardylaw.com); or Deborah R. Gross, 0 Penn Square East, Philadelphia, PA 1, (debbie@bernardmgross.com). Press inquiries: Allan Ripp 1-- arippnyc@aol.com SOURCE Grant & Eisenhofer Copyright (C) 00 PR Newswire. All rights reserved Sponsored Links Buy Stocks for $ No Account or Investment Minimums. No Inactivity Fees. Start Today! $1,000 Stimulus Checks I Got a $1,000 Stimulus Check in Less Than Days. Get Yours! How To Invest In Stock Learn Details Of Which Online Stock Course Is a Good Fit For You! Top stories minutes ago S&P 00 runs through November lows; ten issues mostly to blame :1 AM today U.S. to provide another $0 billion to AIG :00 AM today Capital worries may yet linger over HSBC after share issue Site Index Topics Archive Help Feedback Media Archive Premium Products Mobile RSS Podcasts Company Info Advertising Media Kit The Wall Street Journal Digital Network: WSJ.com Barron's Online BigCharts Virtual Stock Exchange All Things Digital MarketWatch Community RealEstateJournal.com Financial News Online WSJ.com Small Business FiLife Personal Finance License our Content Copyright 00 MarketWatch, Inc. All rights reserved. By using this site, you agree to the Terms of Use and Privacy Policy. MarketWatch.com: Stock Market Quotes - Business News - Financial News Intraday data provided by Interactive Data Real Time Services, a division of Interactive Data Corp. and subject to terms of use. Historical and current end-of-day data provided by Interactive Data Pricing and Reference Data. More information on NASDAQ traded symbols and their current financial status. Intraday data delayed 1 minutes for Nasdaq, and 0 minutes for other exchanges. Dow Jones Indexes(SM) from Dow Jones & Company, Inc. SEHK intraday data is provided by Comstock and is at least 0-minutes delayed. All quotes are in local exchange time. Real-time last sale data provided by NASDAQ.

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11 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 z lehc Conference 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -- - X ALEX E. RINEHART, et al., Plaintiffs, V. 0 CV (LAK) LEHMAN BROTHER HOLDINGS, INC., et al., Defendants. January, 00 :0 p.m. Before: 1 1 APPEARANCES 1 MILBERG LLP Attorneys fo Plaintiffs Brooks Group 1 BY: ROBERT A. WALLNER PETER E. SEIDMAN 1 BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1 Attorneys for Lead Plaintiffs in Operati e Plasterers Consolidated Class Action 1 BY: JOHN P. COFFEY DAVID STICKNEY 0 BARROWAY TOPAZ KESSLER MELTZER CHECK LLP 1 Attorneys for Lead Plaintiffs in Operative Plasterers Act ion BY: JOHN A. KEHOE GRANT & EISENHOFER P.A. Attorneys for Plaintiff Belmont Holdings BY: JAMES J. SABELLA KEITH FLEISCHMAN (1) 0-000

12 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 zlehc Conference a 1 1 a l APPEARANCES: (continued) GIRARD GIBBS LLP Attorneys for Plaintiff Steven Gott BY: DANIEL C. GIRARD LEV1 & KORSINSKY, LLP Attorneys for Mizrahi and Lalwani BY: JUAN E. MONTEVERDE SIMPSON THACHER & BARTLETT Attorneys for Defendants, except Mr. Fuld and Ms. Callan BY: MICHAEL CHEPIGA ERIC ALBERT CLEARY GOTTLIEB STEEN & HAMILTON LLP Attorneys for Most of the investment banks BY: MITCHELL A. LOWENTHAL GIBSON, DUNN & CRUTCHER Attorneys for Defendant UBS Financial Services BY: MARSHALL R. KING WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP Attorneys for ERISA plaintiffs BY: SCOTT J. FARRELL SCHOENGOLD SPORN LAITMAN & LOMETTI Attorneys for New Jersey Carpenters and Operating Engineers Locals 0 and 1 BY: CHRISTOPHER LOMETTI MAYER BROWN Attorneys for Ernst & Young LLP BY: ANDREW J. CALICA 0 1 (1) 0-000

13 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 lehc Conference THE DEPUTY CLERK: All rise, Please be seated. (Case called) THE DEPUTY CLERK: Counsel, please state your name for the record. 1 MR. WALLNER: Robert Wallner from Milberg for the plaintiffs Brooks Group. MR. SEIDMAN: Peter Seidman with Milberg for the plaintiffs Brooks Group. MR. COFFEY: Good afternoon, your Honor. John Coffey from Bernstein Litowitz Berger & Grossmann on behalf of the Pension Fund Group that was appointed lead plaintiffs in the Operative Plasterers consolidated class action. THE COURT: Can't resist, can you MR. KEHOE: Good afternoon, your Honor. John Kehoe from Barroway Topaz Kessler Meltzer and Check on behalf of the lead plaintiffs in the Operative Plasterers action. MR. SABELLA: Your Honor, Jim Sabella from Grant Eisenhofer on behalf of plaintiff Belmont Holdings. THE COURT: Good afternoon. MR. GIRARD: Good afternoon, your Honor. Dan Girard from Girard Gibbs. I'm here on behalf of plaintiff Steven Gott, I'll also be speaking for all of the so-called Structured Note plaintiffs. MR. FLEISCHMAN: Good afternoon, your Honor, Keith Fleischman from Grant & Eisenhofer. I also represent, along (1) 0-000

14 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 zlehc Conference with Mr. Sabella, Belmont Holdings. 1 MR. MONTEVERDE: Good afternoon, Judge, Juan Monteverde from Levi & Korsinsky, movant for Ronald Mizrahi and Harry Lalwani. MR. STICKNEY: Good afternoon, your Honor. David Stickney with Bernstein, Litowitz, Berger and Grossman, also on behalf of the lead plaintiff in the Operative Plasterers case. MR. CHEPIGA: Good morning -- good afternoon, your Honor, Michael Chapiga from Simpson Thacher & Bartlett for all the individual defendants, except Mr. Fuld and Ms. Callan. MR. ALBERT: Eric Albert with Simpson Thacher & Bartlett for the same individual defendants, other than Fuld and Callan MR. LOWENTHAL: Your Honor, Mitch Lowenthal from Cleary Gottlieb for most of the investment banks. THE COURT: Shorter -- MR. LOWENTHAL: Much shorter than the names. MR. KING: Good afternoon, your Honor. Marshall King from Gibson, Dunn & Crutcher for defendant UBS Financial Services. MR. FARRELL: Good afternoon, your Honor. Scott Farrell from Wolf Haldenstein on behalf of the ERISA plaintiffs. MR. LOMETTI: Good afternoon, your Honor. Chris Lometti from Schoengold Sporn Laitman & Lometti on behalf of SOUTHERN DISTRICT REPORTERS, P. C. (1) 0-000

15 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1zlehc Conference the New Jersey Carpenters and the Operating Engineers Locals 1 0 and 1. THE COURT: Good afternoon. MR. CALICA: Good afternoon, your Honor. Andrew Calica from Mayer Brown on behalf of Ernst & Young. THE COURT: Nobody else? Okay. All right. Well, is there some kind of an arrangement; did I hear a rumor to that effect or -- MR. COFFEY: Your Honor, John Coffey on behalf of the lead plaintiffs. Your Honor, I'm pleased to be able to report what I think is a resolution that would be acceptable to the Court, which has been endorsed by most, but not all in the room There's a group that's supporting it which represents the vast major of the players, certainly the vast majority of the losses at issue. There's the Brooks plaintiffs, which I understand oppose this resolution, and there is the group, mostly in the jury box, where I'm not quite sure where they are because I think some of them have abandoned their effort to be lead plaintiff so I, frankly, don't know where they are, but I think the resolution would be acceptable to them. As your Honor knows, currently before the Court are a whole host of actions related to Lehman. There are also a number of motions. There's a fully briefed motion by lead plaintiffs in the consolidated class action to consolidate a (1) 0-000

16 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1zlehc Conference number of actions. There's a competing motion to consolidate that's in the works, not fully briefed yet. There's a motion -- THE COURT: That is which one? MR. COFFEY: That's by the Stark plaintiffs represented by Grant & Eisenhofer to consolidate a subsection of those cases separately from the pending consolidated class action. THE COURT: And the subset is the Preferreds? MR. COFFEY: The Preferreds, yes, your Honor, and other -- and other offerings. THE COURT: That is to say the Preferreds and what else? MR. COFFEY: And the notes, right. THE COURT: So it's the Preferreds and the debt. MR. COFFEY: Yes, your Honor, it's -- it is. Then in work on that score is a, excuse me, fully briefed is also a motion for lead plaintiff, pursuant to the notice in the Fogel case. That's fully submitted. And in work are lead plaintiff motions for a number of other cases which have not either -- have not been fully briefed yet, or at least one case are not even due yet. And what I'm happy to report is I believe, after extensive consultations among most of the counsel here, we have come to a resolution that we believe will advance the interest (1) 0-000

17 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1zlehc Conference first and foremost of the investors who were affected by what's happened here, comport with the PSLRA, and have a very efficient management procedure for the case going forward, as opposed to what could be a real sticky and unwieldy situation. So I'd like to report on that. There is a wrinkle, which is a result of the Brooks plaintiff's refusal at this point to sign on. But the plaintiff in the Belmont case, which has the largest loss on the J Series, is prepared to do the following, if this is acceptable to the Court: They're prepared to withdraw their opposition to lead plaintiffs' fully briefed motion to consolidate the Fogel, Brooks, and Tolin cases into the Operative Plasterers consolidated class action. THE COURT: Give me the three cases again. MR. COFFEY: Fogel, Brooks and Tolin Now, the Court -- there is a lot of paper here. just remind the Court that Fogel, which was the first -- THE COURT: Fogel is consent, I understand that. MR. COFFEY: Very good. THE COURT: And Tolin hasn't opposed. MR. COFFEY: That's right. So the plaintiffs in are prepared to voluntarily dismiss their complaint and Ill1 Stark withdraw their PSLRA notice, and would likewise withdraw their motion to consolidate the Stark Series J, and three of the note cases. And Belmont would also be prepared to withdraw its lead (1) 0-000

18 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 z lehc Conference plaintiff motion. And before I turn to the wrinkle which requires me to say what they're prepared to do, I should elaborate more on what this would result in. Lead plaintiffs have already begun the process of conferring with counsel for the aforementioned parties, the Stark and Belmont parties, to evaluate whether the existing complaint should be amended to incorporate additional claims, plaintiffs, et cetera. At the present time, we do anticipate that we would want to amend the complaint, and we would propose to do so within 0 days. I have discussed this with counsel for the Lehman 1 a l defendants, most of the Lehman individual defendants, Paul Curnin, and also counsel for most of the underwriters, Mr. Lowenthal, and they have informed me that they would consent to that 0 day -- THE COURT: The bottom line of all of the to'ing and fro'ing here would be, we would have an ERISA case, we would have a common stock and preferred case, and what else? MR. COFFEY: And a series of note cases. The current -- THE COURT: But the notes and Preferreds would be rolled into the common stock case, right? MR. COFFEY: Correct your Honor. The current -- the pending consolidated amended complaint filed by the Pension Fund Group as lead plaintiffs has a series of bond offerings in (1) 0-000

19 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 z lehc Conference it. And what is happening is the folks who brought the cases 1 on, under for the J's, there are basically three players. There's Fogel, which had a $1. million loss, which sometime ago said I've read your complaint, I'm happy to have you on the case. There's Belmont, which has a $ million loss, which is today prepared to say you have -- we're agreeable to having the current lead plaintiffs and current lead counsel handle that; we ask that you evaluate what we've had to say. And they've started to make a pitch to us about modifications we should make to the complaint. They've agreed to the extent they're -- it's work that they would work under our direction. What's left is a plaintiff with a $0,000 loss, the Brooks plaintiff represented by Milberg. They do not like this arrangement. They don't want this arrangement. And so I -- SO to address that briefly, that's the wrinkle. You have a million -- a million dollars -- $1. million loss, $ million loss, agreed -- THE COURT: But I'm still trying to understand what the bottom line of all this. MR. COFFEY: The bottom line is there will be an amended complaint, and in it there would be the stock claims, the Series J claims and others series. There would be a number, approximately two dozen, bond offerings, and that would be in a consolidated amended complaint led by the current lead plaintiffs structure. (1) 0-000

20 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 z lehc Conference There would, in addition, be a separate complaint that Mr. Girard would serve as coordinating counsel for, involving what we call the Structured Notes. And lead plaintiff and lead counsel have evaluated those cases and conclude that they are 1 sufficiently different, for reasons that Mr. Girard can elaborate on, that it makes sense to have them in a separate pleading, which would be coordinated with our case, and, again, under the overall lead structure of the existing court appointed lead plaintiffs and lead counsel. And so what that means is your Honor would have two complaints. There would be an amendment of the existing consolidated amended complaint, which I don't believe would be very different THE COURT: What about the mortgage backed securities? MR. COFFEY: I have nothing to say about them. They're -- we view them as a separate case, and this would not contemplate incorporating them into our case in any way, shape or form. I imagine we would coordinate with them on common issues of discovery, et cetera, but we do not contemplate folding them into our case. THE COURT: All right. So the bottom line -- the bottom line of your proposal, though I realize part of what I'm about to say is not an element of your proposal, is that you have four bundles of cases under the overall structure; a General Equity and Debt case, a Mortgage Backed case, a (1) 0-000

21 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page 1 of 1 zlehc Conference Structured Note case, and the ERISA litigation. 1 MR. COFFEY: Yes, your Honor. THE COURT: Okay. That's close to where I had come out in my own thinking about this. I'd like to understand better why the Structured Notes case doesn't belong rolled in with the Stock Preferreds and the Debt. MR. COFFEY: I'll give you a preview and then let Mr. Girard elaborate. And the preview is from our perspective as lead plaintiff and lead counsel. In evaluating these cases, we found them to be sufficiently different species of case with issues, aspects, characteristics that we did not feel we would want to assume, given our directly -- THE COURT: I'm sorry, given your what? MR. COFFEY: Given our responsibilities to the securities. THE COURT: What's different, that's what I want -- MR. COFFEY: I'm going -- if I may turn it over to Mr. Girard? Thank you, Judge. THE COURT: Sure. MR. GIRARD: Good afternoon. Thank you. Your Honor, my name is Dan Girard. I am representing Mr. Gott and the other Structured Note plaintiffs. The particular instrument my client bought was called (1) 0-000

22 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page 1 of 1 zlehc Conference a Principal Protection Note. It's one of a numerous series of notes. THE COURT: He wound up with neither principal nor protection. MR. GIRARD: Neither principal -- it was actually called a hundred percent protection, so it turned out it was zero principal protection. And so these cases typically are essentially a median term note that has a derivative twist to it. So you're promised your principal back, plus an additional return based on the performance of some extrinsic index. The notes were marketed at retail. Our case is essentially a pure Act case. We do not intend to plead any (b) () claims. There are (b) () claims in the other complaint. From our perspective, it's a difference. The pitch with respect to these securities was almost entirely retail. We haven't seen any institutional buyers in this particular market, so they were sold to individuals. The focus of the Operative Plasterers complaint has been exclusively publicly traded securities. These were offered privately without a public market at all. And just in terms of sheer volume, the way these were offered is they were making separate offerings in some cases as often as every week. So what we have to manage is as much as 00 separate offerings within a single complaint. And, in addition to the perspective Mr. Coffey (1) 0-000

23 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page 1 of 1 z lehc Conference 1 offered, I think just in terms of what would be talking about 1 managing here in terms of the numbers of plaintiffs and the number of offerings, we're getting to a point where I think it just makes more sense to divide and conquer. I think there are areas of overlap, and I intend to work very closely with Mr. Coffey and his group to avoid duplicating. That overlap lies primarily in the proof of the truth or falsity of the statements in the May 0, 00 Shelf Registration Statement and a number of incorporated financial statements that are filed after that. But the specific characteristics of these securities trend more towards a consumer side angle in terms of the principal protection hook that was used. And so we all have the same reaction, that these were fundamentally separate, and you could only pile so much baggage into the wagon that they're pulling down the road. And so I think both from the prospective our clients have that their case is going to get lost in terms of the particular features that they think they were mislead led by, and from the perspective of case management, that it's just going to be easier if we do this in the form of two separate complaints, and I think we can do it without stepping on each other or adding to the already considerable burden the Court has. THE COURT: Well, believe me, you're going to add to the burden no matter what. Maybe more so if you're separate than otherwise. (1) 0-000

24 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page 1 of 1 zlehc Conference 1 But the gravamen of your client's claim is exactly what? MR. GIRARD: The gravamen of their claim is that they purchased securities that were sold in violation of the Securities Act of 1, and in the sense that -- THE COURT: Help me out -- MR. GIRARD: The representation that the notes were principal protected was false and misleading, and they are entitled to -- that representation is incorporated by reference as part of the registration statement, so it's actionable under the Act under Section and 1(). And our primary focus is UBS; that is, they were the chief marketing agent for these notes. As far as our clients were concerned, a lot of them didn't even know that they -- what they were buying was a Lehman note because it wasn't -- it's not the security, it's not immediately apparent. So it really does have a different focus from the perspective of the investors. And the reaction we had was that they would be prejudiced if they were having their claims presented in the same complaint. THE COURT: Were they sold on a private placement memo; is that the way they were sold? MR. GIRARD: No. It was a registered offering under the Act so it's not an exempt offering, but it was not publicly traded by public -- (1) 0-000

25 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page 1 of 1 z lehc Conference 1 1 THE COURT: So there is a prospectus? MR. GIRARD: There is a prospectus. It's a -- the way it worked technically was that there was a shelf registration statement on S with a prospectus supplement, then a third document called a pricing supplement, which is about a five page thing that is really the marketing piece, and that's what has 0 percent principal protection note on it. That's what our clients got and that's all they saw. THE COURT: That's all they saw? MR. GIRARD: That's all they saw Now, you know, if the client in theory had 0 years of securities practice experience, they could have gone to a Bloomberg terminal and extracted the underlying registration documents on Edgar and figured it all out and eventually gotten back. What they saw was this pricing supplement. THE COURT: When they bought, they presumably got confirmations, right? MR. GIRARD: They got a trade confirm. THE COURT: Right. And the trade confirm, I presume, said you've got so many days to undo this once you've seen the prospectus, right? MR. GIRARD: There was not a prospectus delivered out after the fact. THE COURT: Whatever the disclosure document was. MR. GIRARD: Yeah. I don't believe that statement was SOUTHERN DISTRICT REPORTERS, P-C. (1) 0-000

26 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page 1 of 1zlehc Conference 1 on the trade confirmations. I'd have to go back and look at that to confirm. THE COURT: Had they gone back and looked at the underlying filing, would they have found out what they were buying was ultimately a Lehman note and a Lehman promise to pay 0 percent of the principal at the appropriate time? MR. GIRARD: A perfectly informed -- I have to answer that question that a perfectly informed buyer would have ultimately been able to conclude that it was Lehman, a Lehman unsecured debt obligation, yes. From a, you know, practical point of view, what people 1 a l thought they were buying was a structured derivative transaction brought down to the retail level. That's the way it was made to look. MR. COFFEY: Your Honor, may I -- John Coffey. May I modify my short answer to your description of the four bundles? Actually, I think it's three. It's -- because there would be a lead plaintiff that would have oversight of both the, what we'll call the classic securities case and the Structured Notes. But in our determination we think it would be more efficient to have Mr. Girard and his group handle that for the reasons you've heard and for the analysis we brought, so. THE COURT: But you're talking about separate complaints with separate lawyer for the Structured Notes. MR. COFFEY: We are, your Honor. (1) 0-000

27 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page 1 of 1 lehc Conference 1 THE COURT: So it's four. Okay, Mr. Chepiga. MR. CHEPIGA: Your Honor, Michael Chepiga for the individual defendants. Your Honor, that is not what I had understood. I understood we'd be going forward as your Honor thought, and, according to our letter of December 1th, with three separate buckets of cases. The first would be stocks and bonds and notes, and the second would be the mortgage backed securities and the third would be ERISA. These are, as your Honor's aware, Lehman notes and Lehman Securities, and they were based on the same shelf registration that many of the other offerings were done from 1 a and they would -- THE COURT: Mr. Girard's. MR. CHEPIGA: Yes. And so they would have that in common with the securities complaint as it already exists, and as it, presumably, would be amended, and they would be relating to the same alleged misstatements and omissions concerning Lehman Securities. So I think the fact that they're not indexed -- what they're indexed to is irrelevant. It was the Lehman Securities and the Lehman statements and omissions that would be at issue in that case. THE COURT: Well, but -- and I hope to be corrected if I've got this wrong -- in some significant degree what I'm hearing from Mr. Girard is he's got a sales practice complaint -- that's not to exclude your point, that's also (1) 0-000

28 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page 1 of 1 lehc Conference true -- but part of his claim is a sales practices claim, right? MR. GIRARD: That's true. And within the context of a Act claim, because the document is incorporated into the registration statement technically, so the short answer is yes. MR. CHEPIGA: Well, your Honor, a sales practice case to me means high pressured tactics or oral misrepresentation. I think he's talking about omissions or misstatements in the prospectus under the Act, and that's exactly what the other cases are about. And there is a common nucleus of facts here. There will both be briefing and will be briefing and arguing the same alleged misstatements and omissions relating to the strength of Lehman, not to any underlying security or derivative or indexed security in the principal protection cases. MR. GIRARD: My answer to that, though, is it's not the same. Because the specific document that the Court is going to have to decide, that we're going to premise our case on, is this pricing supplement, which is unique to the specific note issuance underlying our case. And we said this in our papers, there is a common element with their case, with Mr. Coffey's case, which is whether the registration statements includes false disclosures with respect to Lehman's financials. But a component of our case and the chief component is this prospectus pricing supplement, which is the marketing document. (1) 0-000

29 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page 0 of ehc Conference 1 MR. CHEPIGA: Your Honor, I don't believe 1 consolidation requires a complete factual overlap. There is substantial factual overlap here. There are (b) () claims would be, will be different from the Act claims. That's not to say that in fact they're being proposed they be consolidated. So of course there will be differences in different offerings at different times and, in and Act claims. But there is a common core nucleus of facts here that would be identical, and those would be the issues we'd be litigating on the Act claims. And he -- basically, it is a Act claim Mr. Girard -- not basically, it is a Act claim that Mr. Girard would be bringing. And it would just make the world, at least our job and your job, a lot easier if we're dealing with one complaint for In Re: Lehman Brothers Securities Litigation. MR. GIRARD: A final point. I appreciate your hearing us out here. Just on a manageability level. We've got something like 00 offerings that we have to bring into the case to account for all of these note offerings. If the concern is that there is going to be some kind of duplication of effort, one possibility is, since we have a lot of work to do to pull this together and get it organized, is to keep them separate, let their case go first, have ours follow. As far as the ruling on the motion to dismiss, get the benefit of that. (1) 0-000

30 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page 1 of 1 zlehc Conference 0 Ours has a separate component, which is with respect to the pricing supplements. And I think that way the Court avoids having to do anything twice and we keep the process moving. I think it's going to be a lot easer to divide this and not try to load these additional 00 offerings into a complaint that's already I think reaching fairly unwieldy proportions. I think we're going to end up with a 00 page document. THE COURT: No we're not. MR. GIRARD: If you say we're not -- THE COURT: I promise you, you're not. MR. GIRARD: At least we won't be by the time the 1 a l Court's ruled on it. I do think that there is -- THE COURT: I put up with Mr. Sabella and his colleagues on Parmalat, I'm not putting up with it any more. MR. GIRARD: They're on notice at this point, I guess. I think it can be done without adding to the Court's burden. I think it would address concerns we have about the unique aspects of these claims getting lost. And these are folks that have -- they're like a lot of others, retirement caught up here and very concerned about these claims getting folded into a big case that loses the -- THE COURT: These claims are folded into a big case whether they like it or not. MR. GIRARD: I understand that. THE COURT: They have absolutely no choice in the (1) 0-000

31 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 zlehc Conference 1 matter. They can't have their own case. 1 MR. GIRARD: We've told them that that's the way it's going to be. THE COURT: So what we're really practically talking about is whether I'm going to have four egregiously long and burdensome complaints to read, or three. That's essentially what we're talking about. MR. GIRARD: I think -- I think that's right. And what I'm suggesting -- I recognize this is your call. I think what we're saying is that, that it's a call you can make on the side of allowing us to have a separate complaint without adding considerably to the burden you have. But it allows these, the unique aspects of these claims to be set forward and does it in a way I think that ultimately proved to be more manageable than trying to load these into the existing Operative Plasterers case, and that's what all of us concluded looking at the claims. I think probably the most familiar with them in the sense on the plaintiffs' side spending a lot of time analyzing these on both sides of the case. THE COURT: All right. MR. GIRARD: So I thank your Honor for hearing me. THE COURT: Thank you. Putting that issue to one side for a minute, I take it you rise on behalf of the Belmont people, right? MR. WALLNER: On behalf of Brooks Group, your Honor, (1) 0-000

32 0 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 zlehc Conference 1 Robert Wallner. Thank you, your Honor. THE COURT: All right. Now, what's wrong with the 1 0 l proposed schedule? MR. WALLNER: Your Honor, there is nothing wrong with coordination, and we fully endorse coordination, your Honor. But we are here because, among other things, because there was a lead plaintiff notice issued in the Fogel case on behalf of the Preferred J class. Mr. Coffey's clients were never appointed lead plaintiff for that security because the notices in that case -- THE COURT: Let me cut you off at the pass. I'm not ready to talk about that. I understand the argument you make, but on the face of it, it seems to me that the question of whether and to what extent I consolidate all these disparate groups is entirely separate from the question of who winds up with which piece of the pie, and you're talking about who winds up with which piece of the pie. There isn't anything, assuming there was a notice issue, that can't be cured either by the fact that everybody now knows whatever needs to be known, and I could, if need be, reconsider the lead plaintiff issue, insofar as it relates to the debt and the equity case, or by renoticing the whole thing and considering the whole thing anew as the lead counsel. So 0 let's put that to one side and just focus on consolidation. MR. WALLNER: Sure. Your Honor, we have filed an (1) 0-000

33 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 lehc Conference opposition to consolidation. And the principal reason that we 1 are concerned here, your Honor, is because every complaint that your Honor made reference to today involved in the equity and the preferred shares are very long, and I think there was some concern that these cases not have complaints that are hundreds of pages long. Obviously that makes sense. The J complaint, your Honor, on behalf of the Brooks Group and the proposed J Class is about 1 pages long. The issue emanates from the Second Circuit's decision in Rornbach, which your Honor applied in the case called OS Recovery. And the issue there is if a Act claim -- THE COURT: I understand the issue entirely. MR. WALLNER: And we believe, your Honor, that the way that the other, the other plaintiffs have pled their case sounds in fraud because they allege that the offering documents were false and misleading. We do not make that allegation. The Supreme Court of the United States -- THE COURT: Saying it's false and misleading doesn't mean it sounds in fraud. MR. WALLNER: Your Honor, the Rombach decision -- and we submit, your Honor, that the way it has been applied is when the plaintiff alleges that the document is, quote, false and misleading, then under Rombach and under your Honor's decision in OS Recovery, it sounds in fraud, and then is subject to the heightened pleading standards -- (1) 0-000

34 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 lehc Conference THE COURT: I don't agree with you. MR. WALLNER: Pardon me? THE COURT: Let's just be clear, you've lost that argument. MR. WALLNER: Okay. THE COURT: You may be right, but you haven't persuaded me, and you're very unlikely to persuade me. Now, if for some reason the consolidated amended complaint has been sloppy with respect to pleading Act claims, or if a subsequent amended complaint has been sloppy about that and has crossed the line, it can be cured by 1 a l amendment. There is no excuse, in my mind, for setting up a whole series of Act cases over the question of whether or not (b)() plaintiffs have inadvertently alleged, for example, in a Act count, that they're repeating and realleging an allegation from a (b) () Act -- a (b) () rule count, an assertion that there was culpable knowledge. MR. WALLNER: Your Honor, that is not what has happened here. Because in Mr. Coffey's complaint, even in the Act section, he lists the documents which he calls false and misleading. THE COURT: Okay, let me be clear. Alleging that a document is false and misleading does not, in my court, sound in fraud. It sounds in fraud if there is an allegation that it was false and misleading, and that the proponent of it knew it (1) 0-000

35 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 zlehc Conference at the time or acted in reckless disregard of its truth. That's where the line is between (b) and not (b). So your dog won't hunt, at least not here. MR. WALLNER: Thank you, your Honor. THE COURT: Okay. Okay, is there any other reason why I shouldn't adopt this structure? MR. WALLNER: Yes, your Honor. In our brief we point out that are various submissions that Mr. Coffey has made in his complaint that, in our view, could jeopardize the case against the defendants in connection with the J claims. The defendants have the burden of proving negative causation. In our view, Mr. Coffey's complaint has made various submissions, as have some other plaintiffs, that would help the defendants muster up and demonstrate the negative causation defense. That, in our view, is not in the interests of the J class. It is prejudicial to them. That's not to say that the cases can't be coordinated. Obviously there is no reason to subject the defendants to multiple days of discovery for separate cases, but it is a reason not to consolidate, for example, in the complaint the J claims with the other claims. That would be prejudicial in our view, your Honor. THE COURT: Okay. I considered that, and I understand the point. But it is, in my view, not terribly persuasive for a couple of reasons. First of all, it's my recollection that (1) 0-000

36 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 zlehc Conference the so-called admissions -- and they are admissions only in the 1 qualified sense that any statement by a party is an admission, they're not conclusive in any respect -- were made months ago. They were made I think in the initial complaint, am I right? MR. WALLNER: Well, some were -- some were made in Mr. Coffey's amended complaint. THE COURT: All right. The long and short of it is that you and I and everyone else in this room and the entire world has, for the last seven, eight, nine, ten months, been witnessing, in relation to Lehman in particular, and the economy in general, a slow motion train wreck. And whatever may have appeared to have been the case in June, most assuredly appears in an entirely different light today I don't view this as a serious reason not to consolidate. I just don't, at least to the extent of pretrial proceedings, leaving the question of trial, which I think we all know is the most remote possibility after the resurrection of Lehman. So I just don't find it a problem right now. MR. WALLNER: Thank you, your Honor, THE COURT: Okay. All right. So what we'll do is the following, and I'll embody this in an order down the road. I am going to consolidate, for pretrial purposes, all of the stock and debt cases into. I'm going to consolidate the mortgage backed securities cases into, and that consolidation will be for all purposes. (1) 0-000

37 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 zlehc Conference I am going to consolidate, for discovery purposes, the 1 three groups of actions, what will actually be three actions after this order gets entered; the stock debt case, the mortgage backed securities case, and the ERISA case. So there are three levels of consolidation for all purposes, pretrial purposes and discovery. And we'll set up a master docket for the whole thing and we'll deal with trial problems when, as and if that becomes relevant. Now let's turn to the issue of lead counsel. In light of that determination, where do we stand? In light of it, any dispute about who ought to be lead counsel in the what I'm going to call the debt and equity case or not equity and debt case? Everybody agrees it's to be Mr. Coffey's firm or not? MR. WALLNER: Your Honor, we continue to press our position which we set forth in the papers. Robert Wallner. THE COURT: Help me out. Your position on that is the notice position? MR. WALLNER: And the Rombach issue and the admissions and others. THE COURT: The Rombach issue is resolved. It's law of the case. If you ever get a final judgment in this case, take it up with the Court of Appeals. I don't need to hear about it any more. I don't mean to be rude, you know. MR. WALLNER: Your Honor, I understand that. I didn't want to just abandon the position. (1) 0-000

38 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 z lehc Conference a 1 THE COURT: No, no. I understand. But, you know, YOU lost that battle. MR. WALLNER: I did. THE COURT: We're now going to have an equity and debt case. Is there any further dispute about lead counsel -- MR. MONTEVERDE: Your Honor -- THE COURT: -- given that practice? MR. MONTEVERDE: Your Honor, Mr, Mizrahi, who ho, his group holds $,000, has not been approached by ds a Mr. Coffey, as he stated earlier, so we're not sure where we stand. But we certainly want to be a participant and we don't want to stand in the way of what's an efficient structure that your Honor deemed necessary. THE COURT: Okay, all right. Well, maybe before I completely resolve that question, because counsel makes a valid point, I ought to suggest the following: My inclination, unless somebody has a good reason to the contrary, of course, is to create an executive committee that will consist of the lead counsel in each of the three bundles of cases. And I'm open to the possibility that, although I have two minds about it, that maybe there ought to be somebody on it who's from the Structured Notes part of the group. So there will be committee of three or four. There will be an executive committee, and that committee basically runs the case. Nobody does any discovery except that committee or with the committee's (1) 0-000

39 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page 0 of 1 zlehc Conference agreement, subject always to the right of anybody who's been 1 turned down by that committee to come to me and say they've done me wrong, which I think covers your point. And I've used this structure quite effectively in at least one place, and that's the Rezulin Products case where we had no class actions. All we had was 1, separate personal injury actions involving 1,000 plaintiffs, and never once in eight years did I get an application. The executive committee ran the case and it worked just fine. But obviously it doesn't always happen that way. So anybody can come to me. Now with that amendment, can we regard the lead counsel issue as essentially closed; one for each of the three groups of cases, open question as to the Structured Notes people, and that'll be up to the executive committee to figure out appropriate consultative means and so forth to manage the case? Okay, I hear no objection. Any objection to Mr. Coffey's outfit being lead counsel for the equity and debt case? MR. WALLNER: Robert Wallner for the Brooks Group. Your Honor, our position is in the papers. We understand your Honor's ruling. THE COURT: I understand that. But if there's some particular point you want to make, utter it. I have read your papers. I've read them before you heard what happened here today. If there's something you want to say now, please say (1) 0-000

40 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page 1 of 1 lehc Conference 0 it. MR. WALLNER: Your Honor, I -- no, there's nothing to add at this point. THE COURT: What exactly is your position at : p.m. today? MR. WALLNER: Your Honor, our position is that there are -- there are positions and -- legal positions and factual positions in Mr. Coffey's complaint that are prejudicial to the J class. THE COURT: Okay. You have -- I'm sorry, I didn't mean to cut you off. 1 0 l MR. WALLNER: Yes. That Mr. Coffey's client did not seek lead plaintiff status with respect to the J case as required by the PSLRA for the reasons that we set forth in the paper. THE COURT: What do you want me to do about that? Do you want a new notice? MR. WALLNER: No. Your Honor, we think that the Court in this situation should look at the various applicants who sought lead plaintiff status in the J case, and there are three groups, not Mr. Coffey's client, because he never made a motion with respect to the J lead plaintiff case, nor did he file the complaint. The complaint is the Fogel complaint. And we think that the Court should evaluate those three lead plaintiff applications. (1) 0-000

41 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 lehc Conference 1 THE COURT: And who are they? 1 MR. WALLNER: Belmont, the Mizrahi Group and the Brooks Group. THE COURT: Okay. Now you represent Brooks. MR. WALLNER: Yes, sir. THE COURT: So you think you should be lead counsel for the equity and debt case? MR. WALLNER: No. For the J claims, your Honor. THE COURT: There is not a separate J case. MR. WALLNER: We understand the ruling. THE COURT: That ship has sailed. There is going to be a single complaint for all of the equity and debt. That's where we're going Given that fact, who, other than Mr. Coffey's firm, alleges either that there should be a new notice, an amended notice, or that on whatever is before me today they think they ought to be lead counsel? MR. WALLNER: Your Honor, each of the three J applicants has made that argument, that the notices are not sufficient. Now, they may be abandoning that argument. THE COURT: I want to know, sir, do you want a new notice; yes or no? MR. WALLNER: No, your Honor. THE COURT: Okay. So what is it you do want? MR. WALLNER: We want lead plaintiff status for the J (1) 0-000

42 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 z lehc Conference 1 case THE COURT: There is no J case. You can tell me you want lead plaintiff status for the case relating to the abduction of Judge Kramer, but there is no such case. It's not happening. You know I realize I'm getting impatient. I don't like to get impatient, but you're not getting the message. I understand you don't agree with the ruling. It is the rul ng. Now go to the next step. If we ever get to the point where you sum up to the jury in this case, you will not sum up to the jury by saying, we want to be in a separate J case. That issue is over, gone, finito. Are we clear? MR. WALLNER: Yes, your Honor. THE COURT: Okay. Given that, given that you don't want a new notice, what am I supposed to do, in your opinion? MR. WALLNER: Your Honor, at this stage we would think that we should be consulted with respect to the structure of the pleadings insofar as they relate to the J offering. THE COURT: No problem about that. MR. WALLNER: We should be consulted and participate in the discovery process going forward with the claims as they relate to the J case -- to the J Securities, your Honor. THE COURT: I don't see any issue about that. You have a problem with the concept of an executive committee structure? MR. WALLNER: No, your Honor. (1) 0-000

43 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 lehc Conference THE COURT: Okay. a MR. WALLNER: But we understand that your Honor is not having a J case, but the J case -- but the J claims, your Honor, the claims with respect to people who bought J shares are extraordinary because it was a $1. billion public offering, and that offering deserves, in our view, special attention that the Brooks Group brings to the table. And we are concerned, your Honor, that as your Honor heard, there are literally hundreds of securities involved. Belmont has filed an amended complaint called the Stark complaint, which in paragraph one, your Honor, asserts claims on behalf of people who purchased from over 00 separate Lehman public offerings. And we believe, your Honor, that given the stature of the claims as they relate to the J shares, those claims should not get lost in the shuffle and that we should play a role in making sure that those claims are adequately prosecuted. THE COURT: Exactly what is the role? MR. WALLNER: A consultative role, a participatory role with respect to drafting the pleading, a participatory role with respect to briefing and discovery on those issues, your Honor. MR. COFFEY: Your Honor, John Coffey. May I be heard on that point. That's not necessary, and highly inefficient. One of the existing lead plaintiffs, Alameda lost -- has twice (1) 0-000

44 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1zlehc Conference a loss as Brooks. THE COURT: Alameda is a plaintiff in which case? MR. COFFEY: It's a member of the Pension Fund Group that was appointed lead plaintiff in the Operative Plasterers case. So they're very interested in prosecuting the claims. The Belmont plaintiff lost 0 times what Brooks lost. Among the amendments we are considering would be to add them as a named plaintiff for the J's. THE COURT: Belmont is Mr. Sabella. MR. COFFEY: Correct. I can assure you, based on the discussions we've had, and on the papers they've written, they're going to be very vigorous advocates for the J investors. So we don't need another hand in the till here. We've got that covered plenty. And so I would not be amenable to having them participate in this. I think it is wasteful. THE COURT: Look, whoever is going to be on the executive committee is going to have to take into account, to the extent it's appropriate, the views of all of the plaintiffs in all of the cases. There's just no doubt about that. But I can't seem to get a straight answer out of counsel for Brooks people. I just -- I get these vague generalizations and I don't know what he's saying. He wants a consultative role. What does that mean, what does it mean? MR. WALLNER: Robert Wallner. When they plead the next complaint, your Honor, we want to be heard in terms of how (1) 0-000

45 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 lehc Conference 1 that claim should be alleged. THE COURT: Okay. You want to be heard. What does that mean? MR. WALLNER: We want to help them draft the allegations as they relate to the J claims. We're not seeking to consult with them in terms of Q claims or mortgage backs or anything else. We believe that we did it the right way in our complaint. When they are examining the offering documents as to which the J shares were issued, we want to participate. 1 1 THE COURT: Is it correct that Alameda has a loss than the people you represent? MR. WALLNER: We understand that to be the c larger se, yes THE COURT: Is it the case that Mr. Sabella's group has a larger loss than your people? MR. WALLNER: Mr. Sabella is Belmont? That is -- that is the case, yes. THE COURT: Okay. So you're a tail wagging the dog, assuming for the sake of argument that there were a J case, right? MR. WALLNER: Right. THE COURT: Okay. So, look, you stand no differently here, in my judgment, than a plaintiff's lawyer in Mississippi did in the Rezulin case when he said there may be 1,000 plaintiffs here, but I want a participatory role in the running (1) 0-000

46 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 zlehc Conference of the Rezulin case against Pfizer, even though there were lawyers in that case who were on the executive committee through a merit process and through consideration of how many plaintiffs they represented and a whole bunch of other factors. You have a right to express yourself. And if you believe something is being done that is prejudicial to your client in a material way, you will have the right to come to me if they're doing something you don't like or they won't do something that you do like. Now I told you that I went through eight years with,000 cases without ever having a lawyer come to me like that, and I'd be surprised if it were to occur in this case, but I'm not foreclosing it, of course. So let's just go through this one at a time. And it's fish or cut bait time. Is there anybody who believes that there should be any further PSLRA notice with respect to any of these cases? All right. Is there anybody who believes that I lack the authority, properly, to appoint lead counsel with respect to any of these cases? No answer. Is there anybody who believes I lack the authority, on the present state of the record, to appoint lead plaintiffs in any of these cases? Okay. Now, let's focus on the equity and debt case. I previously appointed Mr. Coffey's firm. There have been (1) 0-000

47 ~ Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 zlehc Conference developments since that happened. Is there anybody who believes that that designation ought to be changed, which I'm perfectly happy to reconsider on the basis of any subsequent developments? 1 MR. COFFEY: Your Honor, John Coffey. Point of clarification. You appointed both the Bernstein Litowitz firm and the Barroway firm. THE COURT: And the? MR. COFFEY: Barroway firm, my colleague John Kehoe here with me. And I've assumed, as your Honor has referred to my group, you -- THE COURT: Yes. That had slipped my mind. MR. COFFEY: Thank you THE COURT: You simply stood up first, that's all. Okay. Somebody stood up in the back? MR. BASHIAN: Your Honor, James Bashian. I represent Anthony Peyser, one of the Structured Notes cases. I do believe that the Structured Notes should have some separate type of representation. I represent a large number of Structured Note holders who had different issues that came out at varying times. I concur with my colleague from Girard and Gibbs. THE COURT: Who has the largest loss among the Structured Note holders? MR. GIRARD: Our clients do, your Honor. And -- (1) 0-000

48 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 lehc Conference THE COURT: Who are your clients? MR. GIRARD: We've talked in advance of this hearing, and my understanding is there's no opposition to my firm serving in a coordinating capacity on behalf of the Structured Note holders. THE COURT: And your firm is, sir? MR. GIRARD: Girard Gibbs. MR. SPEIRS: Your Honor, Richard SpeLrs, I think your 1 Honor, that the issue that has been raised here whether or not there is a fourth spot in the -- THE COURT: I'm sorry, I can't hear you, sir. MR. SPEIRS: I'm sorry. The issue's been raised as to whether there is going to be an additional spot in the executive committee, something we've not discussed or contemplated, so we probably want to address that issue amongst ourselves as necessary. THE COURT: All right. Okay. Why don't we take five minutes and you can have that consultation and then we'll see if we can wrap this up. THE DEPUTY CLERK: All rise. (Recess taken) THE DEPUTY CLERK: All rise. THE COURT: Okay. We had your break for consultations. So is there any result anybody wants to report to me? (1) 0-000

49 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page 0 of 1zlehc Conference MR. GIRARD: I think I can represent to the Court that 1 there is no objection on the part of any plaintiff counsel or defense counsel to there being a representative of the Structured Notes plaintiffs on the committee, and that my firm serve in that capacity, if that is acceptable to your Honor. THE COURT: Okay, that is acceptable to me. MR. GIRARD: Thank you. THE COURT: So, now just remind me, is there a c,spute as to who are the lead counsel for the mortgage backed securities plaintiffs, or not? MR. LOMETI: Your Honor, Chris Lometti from Schoengold, Sporn Laitman & Lometti. Your Honor, we filed the only motion in that case, your Honor THE COURT: Okay. So I will grant that motion. MR. LOMETI: Thank you, your Honor. THE COURT: Okay. So that takes care of that. MR. COFFEY: Your Honor, John Coffey. There were additional consultations on another matter I can report. THE COURT: Yes. 0 MR. COFFEY: Given that there is going to be one 1 equity debt complaint, and having talked now with Mr. Girard and the defendants, we would amend our 0 day projection and ask for an additional 1 days to file the amended complaint days from now, and going beyond that we would be amenable to days for the defendants to respond to that amended complaint. (1) 0-000

50 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page 1 of 1zlehc Conference 0 THE COURT: That is to move. MR. COFFEY: Your Honor, yes. Of course. THE COURT: Okay. All right. Now, having thought about this some in preparation for this afternoon, it seemed to me that even though the ERISA case is not covered by the PSLRA stay, we might best be served if we just deferred all discovery until pleadings are taken care of, including the motions. Anybody have a problem with that? MR. FARRELL: Your Honor, Scott Farre from Wolf Haldenstein on behalf of the ERISA plaintiffs. We generally agree with your Honor that the interest 1 0 l of efficiency would be served by putting off discovery. We would just ask, and we've coordinated with counsel for the individual defendants, that there be a limited exception for ERISA specific discovery to go forward, your Honor. THE COURT: What does the defense have to say about that? MR. CHEPIGA: Your Honor, we -- I'm not dealing with counsel on that case, but I think we have an agreement we would produce ERISA plan documents to the plaintiffs. Although I don't understand that the plaintiffs intend to amended the complaint if there was a schedule in place for the briefing on that case, and in fact I believe a letter was delivered to your 0 Honor this morning asking for slight extensions to that schedule which would still -- (1) 0-000

51 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 zlehc Conference 1 THE COURT: I'm sure that letter got delivered to the bomb sniffing dogs first and I have not been favored with it. MR. CHEPIGA: That's why I mention it. It just asks for a slight extension of two weeks or so in the ERISA briefing schedule. THE COURT: All right, So tell me what the proposed ERISA briefing schedule is. MR. CHEPIGA: The proposed schedule that we have agreed on is that we would file the response -- the motion on February 1th instead of January rd. THE COURT: And the answer? 1 0 l MR. CHEPIGA: And the opposition briefs March 1th and rep1 April rd. THE COURT: Okay. That's fine. MR. CHEPIGA: Thank you. THE COURT: Okay. So we're going to have an amended complaint in the equity debt case. What about the mortgage backed securities case, any motion of amending that? MR. LOMETTI: Yes, your Honor. Chris Lometti from Schoengold. We'd like to amend the complaint, the complaint -- there was a prior stipulation entered into which gave us 0 days to file that complaint. THE COURT: Sometime ago. MR. LOMETI: Sometime ago. THE COURT: Well, why don't you go on the same (1) 0-000

52 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1zlehc Conference schedule as the other case. MR. LOMETI: That's fine, your Honor. THE COURT: Okay. Now, let's talk about these amended complaints. I've forgotten how long the current thing is. Mr. Coffey, how long? MR. COFFEY: It's about 10 pages, your Honor. THE COURT: You know, they're totally impossible to deal with at that length, they just are. I try to sit there and say to yourself has a fraud been alleged with particularity, and all you know is something's been alleged at enormous length, but God knows what. You just can't keep it in your head. MR. COFFEY: Your Honor, I assume you're speaking generally and -- THE COURT: Yes. No, I haven't read yours. MR. COFFEY: Well, your Honor -- THE COURT: I'm thinking of Mr. Sabella's complaint. MR. COFFEY: Well, I feel your pain, your Honor. But we obviously feel constrained by the requirements of the PSLRA and the very effective advocacy of the fellows at the back table here. But we're happy to accept guidance. YOU know, we try to make it as tight as we can, but, you know the case law is what it is, and the trends have been what they've been, and it's difficult to do this in what would ordinarily be a reasonable number of pages. (1) 0-000

53 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 zlehc Conference THE COURT: Well, you know -- and I say this without having looked at yours -- but I get these Securities Exchange Act complaints, and if I get a hundred page complaint, sometimes 0 pages are direct quotations out of various SEC filings at enormous length with an occasional sentence bold faced or something. I'm not sure what purpose it serves. And then there's the recapitulation of every newspaper article ever written. MR. COFFEY: Well, and I now know you're not reading our complaint. Your Honor, message received. We will endeavor to be 1 as crisp and as focused as we can be. Maybe there's some things to incorporate by reference to be a little bit leaner and meaner, but we'll do the best we can. THE COURT: You mean to say you get meaner? MR. COFFEY: I was taught well, your Honor. so We hear you and -- but I, having had our discussions with Mr. Girard, the complaint that we contemplated filing in 0 days is now going to be a much heftier piece of work in. We've already had discussions about how to handle that. It's going to be a challenge. But we hear you and we will cut down on the surplusage and rhetoric and get right to it as best we can. e THE COURT: You know, I won't just pull a number out of the air and set a page limit, but I will tell you this. If (1) 0-000

54 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 z lehc Conference I think it's too long, once I get it, I'm just going to dismiss it under Rule with leave to replead, and we can go around that circle as long as you guys want, you know, to a final resting place if that's what has to happen. MR. COFFEY: Your Honor, I for one am happy to accept that challenge, understanding that an argument that our complaint is insufficient for lack of detail. THE COURT: Oh, yeah. Look, I understand the other side of the argument. I do. MR. COFFEY: Okay. THE COURT: I'm not unmindful of it at all, but something's got to change, before all the district judges in America go blind. Okay. Let me see whether I have anything else on my list here. Is it premature to talk about having you consult with one another about document depository or is that now totally obsolete in the age of DVD's and web sites? Anybody thought about that? I know, the settlement value of the case just went I 0 I 1 up. It would be a mistake to think that. All right, just -- MR. CHEPIGA: Your Honor, we can consult about that. I don't know that it's necessary, but we can talk about that. THE COURT: All right. Anything else anybody wants to 0 discuss this afternoon? MR. CHEPIGA: Yes, your Honor. There's one thing I (1) 0-000

55 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 z lehc Conference just want to remind the Court. I don't think it will affect 1 anything you've done today, but there is that MDL motion. It is scheduled for argument on January th. If it goes the way I believe it should, about more cases will be coming your way. I think four of them are individual actions, the others are class actions, but I don't think it should affect us, to remind the Court that's out there and there may be other tagalongs yet to be filed. THE COURT: I'm aware of that and we'll see what happens. Maybe somebody will take this all off my hands. Okay. All right, I thank you all. MR. CHEPIGA: Thank you, your Honor. MR. COFFEY: Thank you, your Honor. 1 1 THE DEPUTY CLERK: All rise. (Adjourned) (1) 0-000

56 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page 1 of 1 EXHIBIT D

57 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 In re: ) ) LEHMAN BROTHERS HOLDINGS, INC. ) SECURITIES & EMPLOYEE RETIREMENT ) INCOME SECURITY ACT (ERISA) ) LITIGATION ) ) MDL Docket No. 01 BEFORE THE JUDICIAL PANEL ON MULTI-DISTRICT LITIGATION PLAINTIFF'S OPPOSITION TO MOTION TO TRANSFER AND COORDINATE PURSUANT TO U.S.C. PRELIMINARY STATEMENT Comes now Glen Deathrow, Madeline Dimodica, Barbara Kattell, Rena Caldwell, Cecil Mease, Henry Napierala, Linda Napierala, Michael Shipley, and Guy Warden (collectively "Plaintiffs" or "Arkansas Plaintiffs"), plaintiffs in the actions brought pursuant to Sections, 1(A)() and 1 of the Securities Act of1 now pending in the United States District Courts for the Eastern District of Arkansas i and the Western District of Arkansas (collectively the "Arkansas Cases") and hereby respectfully submit this opposition to the transfer and coordination of this action Plaintiffs Deathrow, Dimodica and Kattell, Case No. :0-CV-01, have their action pending before the Honorable James Leon Holmes. Plaintiffs Caldwell and Mease, Case No. :0-CV-01, Mease, Case No. :0-CV-01, Napierala, Case No. :0-CV-01, Shipley, Case No. :0-CV-01, and Warden, Case No. :0-CV-01 have their actions pending before the Honorable Jimm Larr Hendren.

58 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 to the United States District Court for the Southern District ofn ew York ("Southern District ofn ew York"), filed by Michael L. Ainslie, John F. Akers, Roger S. Berlind, Thomas H. Cruikshank, Marsha Johnson Evans, Sir Christopher Gent, Roland A. Hernandez, Henr Kaufman, John D. Macomber, and Chrstopher O'Meara (collectively, the "Defendants" or the "Movants"). I. INTRODUCTION Defendants' Motion to Transfer under U. S. C. ("Motion to Transfer") involves nine actions outside the Southern District of New York, with six of those actions originally brought in state court by the Arkansas Plaintiffs. The Motion to Transfer seeks to move all pending actions involving Lehman Brothers Holdings, Inc. ("Lehman") to the Southern District of New York. Currently pending in the Southern District of New York is the Operative Pasterers action, which was brought on behalf of purchasers of Lehman common stock holders and certain bond holders. The Operative Plasterers action alleges claims under the Securities Act of 1 ("1 Act") and the Securities Exchange Act of 1 ("1 Act"). In contrast, the Arkansas Plaintiffs brought claims solely under the 1 Act and allege claims on behalf of specific bond offerings. It can not be reasonably disputed that the claims in the Arkansas Cases are much narrower in scope than contained in the Operative Plasterers action, and that these claims can be litigated more expeditiously in Arkansas as opposed to being mixed with the Operative Plasterers action. No economy or efficiency, for the parties or judiciary, wil be achieved by consolidating the Arkansas Plaintiffs currently have Motions to Remand pending before the United States District Courts for the Eastern and Western District of Arkansas. Operative Plasterers and Cement Masons Int 'l Assoc. Local Annuity Fund v. Fuld, et. al., 0-CV- (LAK)(S.D.N.Y)

59 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 Cases to the Southern District of New York. Two of the nine actions subject to transfer are individual suits pending in the United States District Court for the Northern District of California ("Northern Distrct of California"), and neither ofthose suits are class actions. The one remaining action outside the Southern District of New York is pending in the Eastern District of New York. Defendants have failed to satisfy their heavy burden to show that common questions of fact are so complex and the accompanying discovery so time-consuming that the purposes of would be served thereby. To the contrary, transfer would only serve to materially delay the progress of Plaintiffs' claims. Furthermore, whatever possibilities may exist for duplicative discovery or pretrial proceedings can be minimized by alternatives to transfer. See, e.g., In re Ely Lily and Co. (Cephalexin Monohydrate) Patent Litig., F. Supp., (J.P.M..L. 1); see also Manual for Complex Litigation Fourth, 0.1 (00). II. FACTUAL AND PROCEDURAL BACKGROUND The Arkansas Plaintiffs filed their putative shareholder class action complaints against individual defendants and separate groups of underwriter defendants in state courts in various counties in Arkansas. Each of the Arkansas Cases are brought on behalf of a unique bond offering, underwritten by a unique set of investment banks. Despite having properly been filed in state court, Defendants removed the Arkansas For example, the Eastern District of New York Plaintiffs' claims in Swiskay, do not name any of the individuals who are movants in this Motion for Transfer as defendants and bring their action on behalf of themselves and on behalf of purchasers of Preferred Series J Shares. (Swiskay, Complaint ir -1,1). Those cases were brought individually on behalf of the San Mateo Investment Pool, Case No. :0-CV-0(N.D. CaL.) and Zenith Insurance Co., Case No. :0-CV-0 (N.D. CaL.). Swiskay, et. al. v. Citigroup Global Markets, Inc., et. al., 0-CV-00 (E.D.N.Y.)

60 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 Cases to the United States District Courts for the Eastern and Western Districts of Arkansas. The Arkansas Plaintiffs timely fied Motions to Remand, and are currently awaiting a ruling from those courts. Thereafter, Defendants filed their Motion to Transfer and Coordinate or Consolidate with this PaneL. III. ARGUMENT A. The Arkansas Cases Do Not Involve Extensive Questions of Fact Common to the Cases Pending in the Southern District of New York. Under U.S.C., an action may be transferred to any district for coordinated or consolidated proceedings "upon (the Panel's J determination that transfers for such proceedings wil be for the convenience of parties and witnesses and wil promote the just and effcient conduct of such actions." U.S.C. (a) (emphasis added). Defendants devote considerable argument to characterizing the separate actions as sharing a common nucleus of facts. However, Defendants fail to address the issue that the actions brought by the Arkansas Plaintiffs are the only pending cases asserting 1 Act claims on behalf of these six specific bond offerings brought by purchasers of those bonds. The Operative Plasterers action asserts both 1 and 1 Act claims (with the varying burdens of proof, defendants and discovery) on behalf of common stock purchasers and some bond holders. Similarly, the Eastern District of New York action asserts claims on behalf of preferred stock holders. While the various actions may share a certain core of facts, the fundamental differences in the actions are such that denial of the Defendants' Motion to Transfer the Arkansas Cases is appropriate.

61 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 B. Defendants Do Not Satisfy their Heavy Burden of Showing that the Common Questions of Fact Are Sufficiently Complex and the Accompanying Discovery Wil Be So Time-Consuming that the Purposes of Wil Be Served. The existence of common facts is not determinative of whether transfer occurs. As this Panel has frequently held, "(0 Jf course, transfer for coordinated or consolidated pretrial proceedings is not mandated by a finding that common questions of fact permeate the actions. A transfer wil not be ordered unless the convenience of parties and witnesses is served and the just and efficient conduct of the actions promoted by such a transfer." In re Multidistrict Civil Antitrust Litig. Involving Photocopy Paper, 0 F. Supp. 0,1 (J.P.M.L. 1) (citations omitted). This is particularly true when the number of actions is small, and in such instances movants bear a heavy burden to justify transfer. As the Panel has observed, The principle which emerged from Scotch Whiskey is that in order to demonstrate that the just and efficient conduct of the litigation would be promoted by transfer where only a minimal number of actions are involved, the moving party bears a strong burden to show that the common questions of fact are so complex and the accompanying discovery so time-consuming as to overcome the inconvenience to the party whose action is being transferred and its witnesses. In re Royal Am. Indus., Inc. Sec. Litig.,0 F. Supp., (l.p.m.l. 1), citing In re Scotch Whiskey Antitrust Litig., F. Supp., (J.P.M.L. 1). See also In re Garrison Diversion Unit Litig., F. Supp., (l.p.m.l. 1) (a movant is under "a heavy burden to show that those common questions of fact are suffciently complex and that the accompanying discovery wil be so time-consuming as to further the purposes of Section."); In re Multidistrict Labor Litig. Involving Iowa Beef Packers, Inc., 0 F. Supp. 1, 10 (l.p.m.l. ) ("As this litigation is relatively small in scope, transfer under would be inappropriate unless it involves exceptional cases sharing unusually complex questions offact."); In re Monochloroacetic Acid Antitrust Litig., 1 F. Supp. d (lp.m.l. 00); In re Magic Marker Sec. Litig., 0 F. Supp. (J.P.M.L.

62 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 1); In re Raymond Lee Org., Inc. Sec. Litig., F. Supp. 1 (l.p.m.l. 1); and In re Pension Fund Class Action Litig., 0F. Supp.0 (l.p.m.l. 1). Defendantshavenot alleged, nor have they made any showing, that the issues present here are exceptional and unusually complex. Indeed, transferrng the Arkansas Cases wil only serve to complicate and lengthen these actions by adding additional parties, causes of actions, plaintiffs and discovery to the Arkansas Plaintiffs' straightforward claims. Accordingly, transfer is not warranted. This rule is applicable to securities litigation. For example, in Royal Am. Indus., this Panel denied transfer oftwo securities class actions on the grounds that movants had failed to satisfy their considerable burden of showing complexity and time-consuming discovery, despite the fact that the two actions alleged identical claims under Section 1 O(b) of the Exchange Act of 1. In re Royal Am. Indus., Inc. Sec. Litig.,0 F. Supp. At. Moreover, "in addition to balancing complexity and commonality against the convenience of parties and witnesses, the determination of whether transfer of a minimal number of actions would promote the just and effcient conduct ofthe litigation requires consideration of the relative effect on judicial effort." Royal Am. Indus., 0 F. Supp. at, citing Photocopy Paper Litig., 0 F. Supp. at. "In deciding whether the overall expenditure of judicial energies wil be minimized by transfer, the possibility of cooperation among the judges to whom the constituent actions are assigned must be evaluated as an alternative." Royal Am. Indus., 0 F. Supp. at. Although the actions before this Panel share claims stemming from the Securities Act, Movants have failed to demonstrate that the complexity of these claims wil necessitate time-consuming discovery. To the contrary, the Arkansas Plaintiffs anticipate that discovery in their actions will be relatively simple (as compared to the Southern District of New York actions) and wil be limited in scope to discovery surrounding six Registration Statements and

63 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 Prospectuses. Further, there is no reason to expect the Arkansas Cases to be litigated for a lengthy period given the paucity of issues in dispute. Accordingly, Defendants have failed to satisfy their heavy burden of demonstrating that the judicial energies wil be conserved by the transfer and consolidation of these actions. C. Suitable Alternatives to Transfer are Available There are less radical ways than transfer to insure that duplicative efforts, if any, are kept to a minimum. See In re Eli Lily & Co. Patent Litigation, F. Supp. (l.p.m.l. 1), where the Panel stated, We observe that suitable alternatives to Section transfer are available in order to minimize the possibility of duplicative discovery. For example, notices for a particular deposition could be filed in all actions, thereby making the deposition applicable in each action; the parties could seek to agree upon a stipulation that any discovery relevant to more than one action may be used in all those actions; and any party could seek Orders from the three courts directing the parties to coordinate their pretrial efforts. F. Supp. at. Further, no benefit is obtained in transferrng actions to an inconvenient forum where pre-trial proceedings wil be fundamentally different. Fujitsu, Ltd. v. Competitive Techs., Inc., 1 F. Supp. d 1 (l.p.m.l. Apr. 1,00); accord In re Sears, Roebuck & Co. Bankr. Debtor Redemption Agreements Litig., No. 1,001 U.S. Dist. LEXIS, at * (l.p.m.l. lan. 1,001) (transfer denied where "the factual scenarios in each action differ considerably..."); In re Royal Regency, Mt. Vernon, Bishops Glen, North River & Mount Royal Towers Sec. Litig., No. 0,1 U.S. Dist. LEXIS, at * (l.p.m.l. Aug. 1,1) (nine cases involving securities fraud pending in five districts would not be transferred to a single district where the "great majority" of parties opposed transfer; although "some factual overlap may peripherally link actions in different districts, we are not persuaded that any such common factual questions wil predominate over

64 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 extensive individual factual questions present in the action or actions in each district."). Based upon the foregoing, transfer should be denied. D. Th.eLack of Agreement Among Parties Mitigates Against Transfer The preference of the majority of litigants should be afforded great weight. See In re Asbestos & Asbestos Insulation Material Prod. Litig., 1 F. Supp. 0, (l.p.m.l. 1) (finding that "virtual unanimous opposition ofthe parties to transfer" was a "very persuasive factor" in transfer decisions). Plaintiffs believe that oppositions to the Motion to Transfer wil be filed in all of the actions sought to be consolidated and/or transferred. Indeed, it is only Defendants who are requesting this transfer to promote the just and efficient conduct of the actions. As shown herein, however, there are simpler methods of addressing Defendants' concerns than by moving these substantially different actions into multidistrict litigation proceedings. iv. CONCLUSION Based upon the foregoing, Defendants Motion to Transfer Pursuant to Section should be denied.

65 Case 1:0-md-001-LAK Document - Filed 0/1/00 Page of 1 Dated: December,00 Respectfully Submitted, By: CAULEY BOWMAN CARNEY & WILLIAMS, PLLC f ~JL ie. 'P~ Randall K. Pulliam Marcus N. Bozeman James L. Kauffman Cauley Bowman Carney & Wiliams Arcade Drive, Suite 00 Little Rock, AR. (01) 1-00 Attorneys for Plaintif Glen Deathrow, Madeline Dimodica, Barbara Kattell, Rena Caldwell, Cecil Mease, Henry Napierala, Linda Napierala, Michael Shipley, and Guy Warden