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1 Case 1:10-cv PGG Document 43 Filed /19/12 Page 1 of 21 UNITED STATES DISTRICT COURT SOUTHERNDISTRICTOFNEWYORK InreANADARKOPETROLEUMCORP CLASSACTIONLITIGATION DOCUMENT ELECTRONICALLY FILED DOC 4 : DATE FILED:jJjIJi h Lead Case No. 10 Civ (PGG) j JERRYD.GOODWIN, IndividuallyandOnBehalfofAllOthers SimilarlySituated, Plaintiffs, V. 10Civ (PGG) ANADARKOPETROLEUMCORP.,etal., Defendants. SHIRLEYHARRIS, IndividuallyandOnBehalfofAllOthers SimilarlySituated, Plaintiffs, V. ANADARKOPETROLEUMCORP.,etal., 1111 I] 10Civ (PGG) Defendants. PAULG.GARDEPHE,U.S.D.J,: ThisactionarisesfromtheApril20,2010MacondoWell/DeepWaterHorizonoil rigexplosioninthegulfofmexicoandthesubsequentdropinsharepriceofcommonstockin AnadarkoPetroleumCorporation("Anadarko"),a 25% ownerofthemacondooilwell. TheConsolidatedClassActionComplaintallegesviolationsofSections10(b)and 20(a)oftheSecuritiesExchangeActof1934andnamesasdefendantsAnadarko - apublicly tradedcompanyheadquarteredinthewoodlands,texas - andthefollowinganadarkoofficers: JamesT.Hackett,RobertG.Gwin,andRobertP.Daniels.(Consol.Cmplt. J21-24) OnNovember16,2010,thisCourtconsolidatedthevariousactionsandappointed Lead Plaintiffs and Lead Counsel, Lead Plaintiffs - the Pension Trust Fund for Operating

2 Case 1:10-cv PGG Document 43 Filed 03/19/12 Page 2 of 21 Engineers and the Employees Retirement System of the Government of the Virgin Islands - now move, pursuant to 28 U.S.C. 1404(a), to transfer the consolidated class action to the United States District Court for the Southern District of Texas. (Dkt. No. 22) Defendants have moved to strike certain allegations in the Consolidated Class Action Complaint and to dismiss the Complaint. (Dkt. No. 34) As explained below, the Court concludes that the Southern District of Texas is a proper venue and that the interests of justice and judicial economy are served by granting Lead Plaintiffs' motion to transfer. Because this case will be transferred, the Court does not reach Defendants' motion to strike and motion to dismiss. BACKGROUND AND PROCEDURAL HISTORY The oil rig explosion at issue took place on April 20, 2010 at the "Macondo Prospect," an oil well located forty-one miles off the Louisiana coast in the Gulf of Mexico. Anadarko, an oil and gas production company, holds a 25% interest in the Macondo well. BP holds a 65% interest in that well. (Consol. Cmplt. J 2, 35) Transocean Ltd. owned, designed, and operated the Deepwater Horizon oil rig. At all relevant times, Transocean had leased the Deepwater Horizon oil rig to BP, and under a drilling contract with BP, Transocean continued to operate the rig. jçj, On June 23, 2010, Jeffrey Goodwin - through his counsel Kahn, Swick, & Foti - filed a class action complaint against Anadarko and certain individual defendants in this district (Dkt. No. 10 cv 4905) alleging that Defendants had disseminated materially false and misleading statements concerning, inter alia, whether Anadarko had en effective oil spill response plan, whether BP had implemented drilling procedures that "cut costs at the expense of safety," and whether Anadarko had adequate insurance reserves to address the foreseeable risks associated 2

3 Case 1:10-cv PGG Document 43 Filed 03/19/12 Page 3 of 21 with deepwater drilling. (Goodwin Cmplt. 5) The Goodwin Complaint raised claims under Sections 10(b) and 20(a) of the Exchange Act, 15 U.S.C. 78j(b) and 78t(a), and Rule lob-5, 17 C.F.R Ob-5. On August 4, 2010, Shirley Harris through her counsel Murray, Frank & Sailer LLP - filed a class action complaint in this district (Dkt. No. 10 cv 5894) setting forth similar allegations and claims. (Harris Cmplt.) On August 23, 2010, the International Union of Operating Engineers Pension Plan, Hallandale Beach Police Officers' and Firefighters' Personnel Retirement Fund and Miramar Police Officers' Retirement Plan and Trust Fund ("Pension Funds Investors") - through their counsel Shepard, Finkelman, Miller & Shah - filed motions to consolidate these two actions and for appointment as lead plaintiff and approval as lead counsel. (Dkt. No. 5) That same day, the Pension Trust Fund for Operating Engineers ("Operating Engineers") and Employees' Retirement System of the Government of the Virgin Islands ("Virgin Islands") - through its counsel Bernstein Litowitz - filed a competing motion to be appointed lead plaintiff and for approval as lead counsel. (Dkt. No. 8) On September 3, 2010, the Pension Funds Investors - in recognition of the larger losses reported by Operating Engineers and Virgin Islands - agreed that Operating Engineers and Virgin Islands should be appointed Lead Plaintiffs. (Dkt. No. 14) In a November 15, 2010 Order, this Court appointed Operating Engineers and Virgin Islands as Lead Plaintiffs, and approved their selection of Bernstein Litowitz as Lead Counsel. (Dkt. No. 16) On January 31, 2011, Lead Plaintiffs filed a Consolidated Class Action Complaint. (Dkt. No. 20) 3

4 Case 1:10-cv PGG Document 43 Filed 03/19/12 Page 4 of 21 The Deepwater Horizon explosion and subsequent oil spill has spawned other litigation. Securities fraud, ERISA, and shareholder derivative actions against BP have been filed in the Southern District of Texas and consolidated in that district for pretrial purposes as an MDL. In re BP Securities Litigation, MDL No Oil-spill related litigation has been venued in the Eastern District of Louisiana. In re Oil Spill by the Oil Rig'Deepwater Horizon," 731 F. Supp.2d 1352 (J.P.M.L. 2010). In June and July 2010, securities fraud class actions were filed in the Southern District of New York against Transocean and certain of its officers and directors. Johnson Investment Counsel Inc. v. Transocean Ltd., 10-cv-5233 (NRB) (S.D.N.Y.). DISCUSSION I. LEGAL STANDARD FOR TRANSFER MOTIONS Section 1404(a) provides 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." 28 U.S.C. 1404(a). "The purpose of 1404(a) is 'to prevent waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense." In re Stillwater Mm. Co. Sec. Litig., No. 02 Civ. 2806(DC), 2003 WL , at *2 (S.D.N.Y. May 12, 2003) (quoting Trehern v. OMI Corps, No. 98 Civ. 0242(RWS), 1999 WL 47303, at *1 (S.D.N.Y. Feb. 1, 1999) (internal quotations omitted)). The burden is on the moving party to make a "clear and convincing showing that transfer will serve the interests of convenience and fairness." CapioI Records, LLC v. VideoEgg, Inc., 611 F.Supp.2d 349,368 (S.D.N.Y. 2009). "A court performs a two-part inquiry to determine whether transfer is appropriate. First, the court must determine whether the action sought to be transferred is one that 'might have been brought' in the transferee court." In re Collins & Aikman Corp. Sec. Liti, 438 F. 4

5 Case 1:10-cv PGG Document 43 Filed 03/19/12 Page 5 of 21 Supp. 2d 392, 394 (S.D.N.Y. 2006). In conducting this inquiry, the court must determine whether the proposed transferee jurisdiction had personal jurisdiction over the defendant when the action was filed: "The threshold question for a court considering a [transfer] under 1404(a) is whether the action could have been brought in the district to which the moving party seeks to transfer the action." Alexander Ins. Ltd. v. Executive Life Ins. Co., No. 90 Civ. 8268, 1991 WL , at *2 (S.D.N.Y. July 29, 1991). "[A]n action might have been brought in another forum if, at the time the action was originally filed, the transferee court would have had subject matter jurisdiction and personal jurisdiction over the defendants, and if venue would have been proper in the transferee court." PosvenC.A.y. Liberty Mut. Ins. Co., No. 02 Civ. 0623, 2004 WL 63497, at *7 (S.D.N.Y. Jan. 12, 2004). Grace v. Bank Leumi Trust Co. of N.Y., No. 02 Civ (RMB), 2004 WL , at *3 (S.D.N.Y. Mar. 31, 2004) (alterations in original). In determining whether a proposed transferee court has personal jurisdiction over a defendant, courts must look to the "state of affairs" when the action was filed: [i]n Hoffman v. Blaski, 363 U.S. 335, 342 (1960), the Supreme Court ruled that in considering where an action "might have been brought," the district court must look to the state of affairs "at the time of the bringing of the action." That is, subject matter jurisdiction, personal jurisdiction, and venue would have had to have been proper in the transferee court at the time the action was filed. See Posven, C.A., 303 F. Supp. 2d at 401 ("For the purposes of section 1404(a), an action might have been brought in another forum if, at the time the action was originally filed, the transferee court would have had subject matter jurisdiction and personal jurisdiction over the defendants, and if venue would have been proper in the transferee court."). Ivy Soc'y Sports Group,LLC v. Baloncesto Superior Nacional, No. 08 Civ (PGG), 2009 WL , at *3 (S.D.N.Y. July 28, 2009). These requirements cannot be waived by the party seeking the transfer. Hoffman, 363 U.S. at 335; see also Schertenleib v. Traum, 589 F.2d 1156, 1161 (2d Cir. 1978) (noting that 1404(a) "authorize[s] transfer only to an alternative forum in 5

6 Case 1:10-cv PGG Document 43 Filed 03/19/12 Page 6 of 21 which jurisdiction over the defendant could have been obtained at the time suit was brought regardless of his consent") The second part of the inquiry requires a court to "evaluate whether transfer is warranted using several factors relating to the convenience of transfer and the interests of justice." In re Collins & Aikmanorp. Sec. Litig., 438 F. Supp. 2d at 394 (citing In re Nematron Corp. Sec. Litig., 30 F. Supp. 2d 397, 400 (S.D.N.Y. 1998); Lewis v. C.R.I.jnc., No. 03 Civ. 651(MBM), 2003 WL , at *2 (S.D.N.Y. Apr. 17, 2003)). These factors are: (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 and the interests of justice. In re Collins & Aikman Corp. Sec. Litig., 438 F. Supp. 2d at 394 (citing Fuji Photo Film Co. v. Lexar Media, Inc., 415 F. Supp. 2d 370, 373 (S.D.N.Y. 2006); In re Nematron Corp. Sec. Litig., 30 F. Supp. 2d at 400; Lewis, 2003 WL , at *2)). II. LEAD PLAINTIFFS NEED NOT SHOW A CHANGE IN CIRCUMSTANCES As an initial matter, Defendants argue that Lead Plaintiffs' motion to transfer should be denied because - although they never filed a complaint in this district - "they ratified the decisions of those who did by taking deliberate steps to litigate in this forum.... Plaintiffs moved for lead plaintiff status in August 2010 without concurrently seeking transfer or otherwise suggesting that they wished to proceed in Texas...." (Def. Br. 13) "A motion to transfer venue is not ordinarily granted at the request of the party who chose the forum in the first place." Stroud Prods. & Enters., nc. v. Castle Rock Eni't, Inc., No. 07 Civ. 8638(HB), 2009 WL , at *2 (S.D.N.Y. Aug. 4, 2009) (internal citations omitted) (citing Sodepac, S.A. v. ChoyangPark, 02 Civ. 3927(SAS), 2002 WL , at *6

7 Case 1:10-cv PGG Document 43 Filed 03/19/12 Page 7 of 21 (S.D.N.Y. Oct. 10, 2002)). Accordingly, where a plaintiff files a transfer motion, generally "the threshold question... is whether... plaintiff has shown that a change in circumstance since the complaint was filed warrants a transfer." Anglo American Ins. Group,.L.C. v. CalFed Inc. 916 F.Supp. 1324, 1328 (S.D.N.Y. 1996); see also Stroud, 2009 WL , at *2. Lead Plaintiffs argue that this standard is not relevant here because they did not file a complaint in this district, and thus did not choose this forum. (Lead Pltfs. Br at 21, Lead Pltfs. Reply Br. at 4) Defendants have not cited any authority suggesting that the "change in circumstances" standard applies where a lead plaintiff who did not file a complaint in the district seeks a transfer. The logic behind the "changed circumstances" rule is that "the plaintiff initially has the choice of forum," and thus it is "sensible" to require a plaintiff who initially chooses a forum to explain why it is not in the interests of justice for the case to proceed in that forum. Anglo American Ins. Grp., 916 F.Supp. at That logic does not apply where, as here, a lead plaintiff did not file a complaint in the forum but instead - as required by the Private Securities Litigation Reform Act ("PSLRA") - merely filed a motion for appointment as lead plaintiff. In any event, even where a lead plaintiff has filed a complaint in the forum, courts have not hesitated to grant a lead plaintiff's transfer motion where transfer is in the interests of justice. See Reese v, Malone, No (C.D. Cal. June 18, 2008) (slip op.) (granting lead plaintiffs' transfer motion where lead plaintiffs had filed complaint in the district and filed motion in the district seeking appointment as lead counsel; "Defendants fail to cite any authority supporting the proposition that filing a complaint in one district precludes a plaintiff from later transferring to another district"; filing motion to serve as lead plaintiff is required by PSLRA and does not weigh against transfer motion; where no evidence of forum-shopping, transfer granted in the "interests of justice"). ea

8 Case 1:10-cv PGG Document 43 Filed 03/19/12 Page 8 of 21 More broadly, "in appropriate circumstances, courts have not hesitated to grant motions to transfer venue filed by a plaintiff." Stroud, 2009 WL , at *2 (citing Martin v. United States, No (JDB), 2008 WL (D.D.C. Dec. 11, 2008); Tucker Anthony Inc. v. Bankers Trust Co., 93 Civ. 0257, 1994 WL 9683 (S.D.N.Y. Jan. 10, 1994)); ex rel. Smith v. Yale University, No. 3:02 Civ. 1205(PCD), 2006 WL (D.Conn. 2006) (citing Corke v. Sameiet M.S. Song, 572 F.2d 77, 80 (2d Cir. 1978)). "The plaintiff's burden may be met by showing that transfer would satisfy the interests of convenience and justice." Fairfax Dental (Ireland) Ltd. v. S.J. Filhol Ltd., 645 F. Supp. 89,92 (E.D.N.Y. 1986). "Ultimately, the determination on a motion for transfer rests 'within the broad discretion of the district court and [is] determined upon notions of convenience and fairness on a case-by-case basis." Stroud, 2009 WL , at *2 (quoting In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir.1992) and citing Posven,C.A., 303 F.Supp.2d at 401. Accordingly, Lead Plaintiffs will not be required to show a change of circumstances in order to prevail on their transfer motion. III. LEAD PLAINTIFFS ARE NOT ESTOPPED FROM SEEKING TRANSFER Defendants argue that because Virgin Islands, before the Judicial Panel on Multidistrict Litigation (JPML), opposed the transfer of Foley v. Transocean Ltd., No. 10-cv (NRB) (S.D.N.Y) to the Southern District of Texas, and because of arguments made by Lead Plaintiffs' law firm before Judge Buchwald in that action, Lead Plaintiffs are estopped from seeking transfer here. As discussed below, this Court concludes that judicial estoppel is not applicable. While motions to appoint lead plaintiff were pending in Transocean, Johnson Investment Counsel, Inc. ("Johnson") - one of the plaintiffs in that action - brought a motion

9 Case 1:10-cv PGG Document 43 Filed 03/19/12 Page 9 of 21 before the JPML seeking to have Transocean transferred to the Southern District of Texas and centralized with an identical case that Johnson had filed in that district.' See In re Transocean Ltd. Sec. Litig., MDL No. 2201, 2010 WL , at *1 (J.P.M.L. Nov. 30, 2010). Johnson argued that judicial efficiency would be served by transferring the New York Transocean matter to the Southern District of Texas. Virgin Islands submitted a brief to the JPML opposing Johnson's motion, arguing that [t]here are no overlapping legal and factual issues between the Transocean Actions and the BP Action. Indeed, the Transocean Actions include claims brought by Transocean shareholders as a result of Transocean' s false and misleading statements and omissions before the Horizon explosion. The ffle and Transocean Actions are each brought on behalf of wholly different classes of investors and involve different defendants and different alleged misconduct. The only related element of these two distinct actions is the April 20, 2010 revelation which took the form of the Horizon disaster. (Kasner Decl., Ex. A at 4) After the JPML denied Johnson's transfer motion (see In re: Transocean Ltd. Sec. Lit., MDL No. 2201, 2010 WL (J.P.M.L. Nov. 30, 2010)), but before a lead plaintiff had been appointed, Johnson made a motion before Judge Buchwald to transfer the New York Transocean action to the Southern District of Texas. (Kasner DecI. Ex. M) Plaintiff Danica Pension A/S ("Danica") and its local counsel in New York, Bernstein Litowitz, filed papers opposing Johnson's transfer motion. Danica argued that "[t]o the extent there is any center of gravity for spill-related actions, that center is in [the Southern District of New York] and not in Texas." (Browne Decl., Ex. M at 6) Danica also argued that "Anadarko will be litigated in the Southern District of New York." (Browne Deci., Ex. M at 5) Judge Buchwald denied Johnson's Although Johnson originally sought to have both of its cases heard in the Southern District of New York, it later changed course and argued that its actions should be litigated in the Southern District of Texas. (Kasner Deci., Ex. A at 4; In re: Transocean Ltd. Sec. Lit., MDL No. 2201, 2010 WL (J.P.M.L. Nov. 30, 2010)).

10 Case 1:10-cv PGG Document 43 Filed 03/19/12 Page 10 of 21 transfer motion, noting that it had made a series of conflicting venue choices "designed to ensure [counsel's] selection as lead counsel [above] all else." 2 (Kasner Decl., Ex. C at 5-6) "Judicial estoppel is a 'discretionary doctrine' that 'precludes a party that successfully maintained a particular position in one legal proceeding, from assuming a contrary position in a later proceeding solely because of a change in interest." In re WorldComjnc, Securities Litigation, 308 F.Supp.2d 236, 248 (S.D.N.Y. 2004) (quoting Mulvaney Mechanical, Inc. v. Sheet Metal Workers Intern. Assoc., Local 38, 288 F.3d 491, 504 (2d Cir. 2002) (citing New Hampshire v. Maine, 532 U.S. 742 (2001)). "[A] party requesting judicial estoppel must demonstrate both that (1) the party against whom estoppel is sought has pursued an inconsistent factual position in an earlier proceeding, and (2) this prior inconsistent position was somehow adopted by the first court." Id. (quoting Mulvaney, 288 F.3d at 504). "There must be a true inconsistency between the statements in the two proceedings. If the statements can be reconciled there is no occasion to apply an estoppel." Id. (quoting Wight v. Bankamerica Corp., 219 F.3d 79, 90 (2d Cir.2000) (citation omitted)). The Second Circuit has noted that the doctrine of judicial estoppel is limited "to situations where the risk of inconsistent results with its impact on judicial integrity is certain." Uzdavines v. Weeks Marine, nc., 418 F.3d 138, 148 (2d Cir. 2005). Because Lead Plaintiffs did not take an "inconsistent position" in the Transocean litigation, there is no basis for applying judicial estoppel against them here. Virgin Islands' brief opposing transfer in Transocean does not mention the Anadarko case. While Virgin Islands sought to distinguish Transocean from the BP case, those statements are not "clearly Judge Buchwald noted that Johnson had originally filed the Transocean case in New York, then filed the same case in Texas, then withdrew the Texas case, and then sought to have the New York action transferred to Texas. (Kasner Decl., Ex. C at 5) 10

11 Case 1:10-cv PGG Document 43 Filed 03/19/12 Page 11 of 21 inconsistent" with the statements that Lead Plaintiffs now make regarding the similarities between Anadarko and BP and the judicial efficiencies to be gained in transferring this case to the Southern District of Texas. Cf. A&E Television Networks, LLC v. Pivot Point Entertainment,LLC, No. 10 Civ. 9422(PGG), 2011 WL , at *6 (defendant estopped from arguing that New York was an improper forum and action should be litigated in California where it had previously argued in California that the same action should be litigated in New York); Bates v. Long Island R. Co., 997 F.2d 1028, (2d Cir. 1993) (plaintiff estopped from arguing that he is not permanently disabled after arguing in a prior proceeding that he was permanently disabled). Lead Plaintiffs point to the joint operating agreement between Anadarko and BP - to which Transocean was not a party (Browne Deci., Ex. D at 2-3) - which suggests that the liability of the two companies may be "intertwined." (Lead Pltfs. Moving Br ) Lead Plaintiffs have acknowledged, however, that - because both cases will focus on the allegedly false statements made by the respective defendants - "there is not a complete overlap of issues" between BP and this case. (id. at 13) In arguing that the Anadarko action should be transferred to the Southern District of Texas, Lead Plaintiffs have relied on, inter alia, Defendants' numerous connections to that district, including that all defendants reside there, and the fact that numerous party and non-party witnesses reside there. (Id. at 4-5, 16-17) In contrast, Transocean is headquartered in Switzerland. (Browne Dee!. Ex. D at 3; No. 10-cv (NRB), Dkt. No. 1 (Complaint) 14.) In sum, Lead Plaintiffs' arguments for transfer here do not contradict arguments they made in Transocean. In denying Johnson's motion to centralize the Transocean litigations in the Southern District of Texas, the JPML did not rely on the arguments referenced above from 11

12 Case 1:10-cv PGG Document 43 Filed 03/19/12 Page 12 of 21 Virgin Islands' brief. Instead, the JPML's decision was based largely on the fact that Johnson itself had created the multi-district litigation by filing a second action in Texas. The JPML found centralization in Texas improper given that Johnson - the moving party - "was previously willing to litigate in, and indeed [had] sought centralization in," the Southern District of New York. In re: Transocean Ltd. Sec. Lit., MDL No. 2201, 2010 WL (J.P.M.L. Nov. 30, 2010). To the extent that Bernstein Litowitz - while representing Danica, a different client - signed onto a brief written by others that contains arguments inconsistent with those made here, that fact may reflect on the credibility of Bernstein Litowitz' s arguments, but provides no basis for this Court to apply judicial estoppel against Lead Plaintiffs. Moreover, there is no evidence that Judge Buchwald, in denying Johnson's transfer motion in Transocean, relied on anything that was said about the Anadarko action. As noted above, the decision to deny Johnson's transfer motion was based in large part on evidence of Johnson's blatant forumshopping. (Kasner Deci., Ex. C at 5) For all of these reasons, the Court finds that Lead Plaintiffs are not estopped from seeking transfer. IV. CONSIDERATION OF SECTION 1404(a) FACTORS A. This Action Mi2ht Have Been Brought in the Southern District of Texas Section 27 of the Securities Exchange Act of 1934 provides that an action may be brought "in the district wherein any act or transaction constituting the violation occurred... or in Bernstein Litowitz states that it acted as local counsel in the Transocean matter and that it was not responsible for drafting the brief in which the inconsistent statements were made. (Lead Pltfs. Moving Br. 23) 12

13 Case 1:10-cv PGG Document 43 Filed 03/19/12 Page 13 of 21 the district wherein the defendant is found or is an inhabitant or transacts business...." 15 U.S.C. 78aa. Defendants do not dispute that this action could have been brought in the Southern District of Texas. Anadarko is a publicly traded oil company headquartered in The Woodlands, Texas, a suburb of Houston, where it maintains substantial operations. (Consol. Cmplt. J 16, 20) In addition, the individual Defendants all work and reside near Houston. (Id. 16) Therefore, venue would have originally been proper in the Southern District of Texas. B. Interests of Justice Factors Because this action "might have been brought' in the transferee court," this Court must go on to "determine whether, considering the 'convenience of parties and witnesses' and the 'interest of justice,' a transfer is appropriate." Berman v. Informix Corp., 30 F. Supp. 2d 653, 656 (S.D.N.Y. 1998) (quoting Wilshire Credit Corp. v. Barrett Capital Management Corp., 976 F. Supp. 174, 180 (W.D.N.Y. 1997)). The moving party has the burden of demonstrating that transfer is appropriate. See New York Marine & Gen. Ins. Co. v. LaFarge North America, Inc., 599 F.3d 102, 114 (2d Cir. 2010) ("[T]he party requesting transfer [under 1404(a)] carries the 'burden of making out a strong case for transfer.") (quoting Filmline (Cross-Countr) Prods., Inc. v. United Artists Corp., 865 F.2d 513, 521 (2d Cir. 1989). "In making this determination, the Court has 'considerable discretion in adjudicating a motion for transfer according to an individualized, case-by-case consideration of convenience and fairness." Williams v. City of New York, No. 03 Civ. 5342(RWS), 2006 WL , at *3 (S.D.N.Y. Feb. 21, 2006) (quoting In re Coahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992)). 13

14 Case 1:10-cv PGG Document 43 Filed 03/19/12 Page 14 of 21 An analysis of the Section 1404(a) factors shows that the interests of justice and the convenience of the parties and witnesses would be served by transferring this matter to the Southern District of Texas. 1. Convenience of the Parties and Witnesses "The convenience of the forum for witnesses 'is probably considered the single most important factor in the analysis of whether a transfer should be granted." Beatie & Osborn LLP v. Patriot Sci. Corp., 431 F.Supp.2d 367, 396 (S.D.N.Y. 2006) (quoting Scimabel v. Ramsey Quantitative Sys., Inc., 322 F.Supp.2d 505, 516 (S.D.N.Y. 2004)). The Court must consider the convenience of both party and non-party witnesses. 4 Montgomery v. TapEnterpisesjnc., No. 06 CV 5799(HB), 2007 WL , at *3 (S.D.N.Y. Feb. 26, 2007) (... [t}he convenience of party and nonparty witnesses is usually the most important consideration in deciding a motion to transfer venue") (quoting ABC One Stop Grp., Inc. v. CD Listening Bar, Inc., 326 F.Supp.2d 525, 529 (S.D.N.Y. 2004)). "When weighing this factor, courts must consider the materiality, nature, and quality of each witness, in addition to the mere number of witnesses in each district." Beatie & Osborn LLP, 431 F.Supp.2d at 396 (citing Houlihan Lokey Howard & Zukin Capital, Inc. v. The Protective Group, Inc., No. 05 Civ. 4741(DC), 2005 WL (S.D.N.Y. Dec.12, 2005)). "The moving party must specify the witnesses to be called and provide general information as to Some courts have ruled that "[t]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) (citing Royal & Sunalliance, 167 F.Supp.2d at 577 (citing Nieves v. Am. Airlines, 700 F.Supp. 769, 773 (S.D.N.Y.1988))), while others have not distinguished between party and non-party witnesses. Berman, 30 F.Supp.2d at 657 ("[c]onvenience of both the party and non-party witnesses is probably the single []most important factor in the analysis of whether transfer should be granted"). 14

15 Case 1:10-cv PGG Document 43 Filed 03/19/12 Page 15 of 21 what their testimony will cover." Ag Grp. Ltd. v. Regal Logistics Corp., No. 06 Civ. 4328(PKL), 2007 WL , at *4 (S.D.N.Y. Aug.8, 2007). As discussed above, Anadarko is headquartered in the Southern District of Texas and its investor relations department is located there. (Consol. Cmplt. 20) In addition, all of the individual Defendants work and reside in the Southern District of Texas. (Id. J 21-23) It is clear that witnesses in this litigation will include current and former employees of Anadarko residing in the Southern District of Texas. Lead Plaintiffs have likewise identified potential non-party witnesses who are located in the Houston area, including witnesses from BP and Halliburton. (Browne Dccl., Ex. A) Pursuant to a joint operating agreement, BP and Anadarko shared information about the Macondo well and made joint decisions concerning the drilling of the well. (Consol. Cmplt. J 36-47, 69, 71, 83, 91, 93-94) It is likely that BP employees will be called to testify about communications between BP and Anadarko, and about decisions that were made jointly by BP and Anadarko concerning the Macondo well. (Consol. Cmplt. J 25-26) These witnesses include Michael Beirne - BP's Offshore Land Negotiator - and the primary contact between BP and Anadarko concerning the Macondo well (Pltf. Br. 16), and Brian Morel, the BP drilling engineer who authored s regarding safety short cuts that may have been taken, which Lead Plaintiffs claim are central to their case. (Id.; Consol. Cmplt. 68) Similarly, Lead Plaintiffs anticipate calling Jesse Gagliano - a Halliburton engineer who allegedly warned the Macondo co-owners of potential safety problems. (Consol. Cmplt. 83) Lead Plaintiffs also anticipate deposing Rule 30(b)(6) witnesses from BP and Halliburton, which maintain substantial operations in and near Houston. 15

16 Case 1:10-cv PGG Document 43 Filed 03/19/12 Page 16 of 21 Lead Plaintiffs have also identified several other Texas-based non-party witnesses, including engineers, rig system specialists, and operating managers (Browne Decl., Ex. A), who they argue will provide testimony regarding what information was available to Defendants about the operations at the well. While it may be true, as Defendants point out, that mud loggers and rig workers will play a minimal role in this litigation, it is clear that all key witnesses in this matter will be from Houston or the broader Gulf area. No party or non-party witness has been identified in the Southern District of New York. Indeed, Anadarko argues only that its current employees are amenable to appearing in New York, The Court concludes that the convenience of witnesses factor weighs heavily in favor of transfer. 2. Availability of Process to Compel Attendance of Unwilling Witnesses "The availability of process to compel the testimony of important witnesses is an important consideration in transfer motions." Billing v. Commerce One, Inc., 186 F. Supp. 2d 375, 378 (S.D.N.Y. 2002) (quoting Arrow Electronics v. Ducommun, Inc., 724 F. Supp. 264, 266 (S.D.N.Y. 1989)). Under Federal Rule of Civil Procedure 45, a district court can enforce a trial subpoena served on a witness within the state or within 100 miles of the court. However, a court should consider whether, "even if [a party's] witnesses do refuse to testify, deposition testimony is an acceptable alternative." Farberware Licensing Co. LLC v. Meyer Mktg. Co., No. 09 Civ. 2570(HB), 2009 WL , at *2 (S.D.N.Y. May 14, 2009). Lead Plaintiffs argue that there are third-party witnesses located in the Southern District of Texas who would not be subject to compulsory process in New York. However, they have not produced affidavits or other evidence indicating that any of their anticipated witnesses would be unwilling to testify in New York. They have likewise not explained why deposition 16

17 Case 1:10-cv PGG Document 43 Filed 03/19/12 Page 17 of 21 testimony would not be an acceptable alternative. Defendants have argued that they are willing to travel to New York. The Court concludes that this factor is neutral. 3. Location of Relevant Documents and Relative Ease of Access to Sources of Proof The location of documents is "largely a neutral factor in today's world of faxing, scanning, and ing documents." Am. S.S. Owners Mut. Prot. & Indem. Ass'n v. Lafarge N. Am., Inc., 474 F.Supp.2d 474, 484 (S.D.N.Y. 2007). Lead Plaintiffs nonetheless argue that the overwhelming majority of relevant documents are located in the Gulf Region, including at Anadarko's headquarters outside Houston. Lead Plaintiffs also argue that if this action is transferred, the parties will benefit from easier access to documents that have been produced in the related actions, as well as documents from third parties such as BP and Halliburton. "While it is true that documents can be transported from state to state, for purposes of weighing transfer factors, the fact that the documents are all currently located in [the transferee district] favors transfer." In re Stillwater Mining Co. Sec. Litig., 2003 WL , at Locus of Operative Facts "The locus of operative facts is an 'important factor to be considered in deciding where a case should be tried." Age Group Ltd. v. Regal Logistics, Coro., 2007 WL , at *3 (quoting 800 Flowers, Inc. v. Intercontinental Florist, Inc., 860 F.Supp. 128, 134 (S.D.N.Y.1992)). "To determine where the locus of operative facts lies, courts look to 'the site of events from which the claim arises." id. (quoting 800 Flowers, 860 F.Supp. at 134). In securities fraud cases, courts look primarily to where the alleged fraudulent misrepresentation was made, not where it was received. See Adair v. Microfield, No. 00 Civ. 0629(MBM),

18 Case 1:10-cv PGG Document 43 Filed 03/19/12 Page 18 of 21 WL , at *2 (S.D.N.Y. Nov. 16, 2000) ("Misrepresentations and omissions are deemed to "occur" in the district where the misrepresentations are issued or the truth is withheld, not where the statements at issue are received."); see also In re Nematron Corp. Sec. Litig., 30 F. Supp. 2d at 404. As Lead Plaintiffs point out, Anadarko's headquarters outside Houston is at the factual epicenter of this case, and appears to be the locus of all relevant decision making. The decisions about what disclosures would be made concerning the Macondo well and safety precautions were made at Company headquarters. The statements at issue - the SEC filings, press releases, and conference calls - were all generated and disseminated from Anadarko's headquarters outside Houston. (Consol. Cmplt ) Finally, the spill itself occurred in the Gulf region. In sum, virtually all of the events underlying this action occurred in the Southern District of Texas. See In re Collins & Aikman Corp. Sec. Litig., 438 F.Supp.2d at 397. Defendants argue that New York is relevant to this litigation because Anadarko employees attended analyst conferences in New York, at which they made some of the allegedly false statements. Where relevant decision making occurred at company headquarters in another district, however, statements made at analyst conferences have not driven courts' transfer decisions. See, Elec. Workers Pension Fund v. Nuvelo.jic., Nos. 07 Civ. 975(HB), 07 Civ. 1229(HB), 07 Civ. 1777(HB), 07 Civ.1953(HB), 2007 WL , *5 (S.D.N.Y. July 20, 2007) ("courts have generally not found that statements at analysts' conferences alone warranted transfer where the locus of all relevant decision making emanated from the company's headquarters"); see also Truk Intern. Fund, LP v. Wehlmann, No. 08 Civ. 8462(PGG), 2009 WL , at *6 (S.D.N.Y. May 20, 2009) (locus of operative facts favored transfer from New 18

19 Case 1:10-cv PGG Document 43 Filed 03/19/12 Page 19 of 21 York to Texas where the preparation of the materials for the relevant filings and financial statements occurred in Texas) (collecting cases). The Southern District of Texas "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. Accordingly, this factor strongly favors transfer. 5. Familiarity with Governing Law Courts in the Southern District of New York and the Southern District of Texas are "equally capable of applying the federal securities laws." In re Collins & Aikman Corp. Sec. Litig., 438 F.Supp. 2d at 398. This is therefore a neutral factor in the court's analysis. See Iaiic Intern. Fund, LP, 2009 WL , at *7; In re McDermott Intern., Inc. Sec. Litig., Nos. 08 Civ. 9943(DC), 08 Civ (DC), 09 Civ. 570(DC), 2009 WL , at *5 (S.D.N.Y. Apr. 13, 2009). 6. Plaintiffs' Choice of Forum Given that Lead Plaintiffs are seeking a transfer and that the class of plaintiffs is likely spread throughout the country, see, In re McDermott Intern., Inc. Sec. Litig., 2009 WL , at *4, this factor is neutral. 7. Judicial Economy "[T]he Supreme Court has held that the consideration of the 'interest of justice' factor encompasses the private and public economy of avoiding multiple cases on the same issues." Williams v. City of New York, 2006 WL , at *3 (S.D.N.Y. Feb.21, 2006) (citing Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26 (1960)). "[C]ourts consistently recognize that the existence of a related action in the transferee district is a strong factor to be We

20 Case 1:10-cv PGG Document 43 Filed 03/19/12 Page 20 of 21 weighed with regard to judicial economy, and may be determinative." Id. This Court concludes that this factor supports transfer to the Southern District of Texas. Lead Plaintiffs point to the pendency of In re BP Securities Litigation in that district. Defendants argue that no efficiencies will result from transfer, because the BP litigation is not related to the instant action. It appears to this Court, however, that there are possible efficiencies to be gained from transferring this case to the Southern District of Texas. First, Lead Plaintiffs will have easier access to relevant documents that have been produced in the BP litigation. It cannot be ignored that at the heart of this case and the BP case are public statements about the Macondo well, which was co-owned by BP and Anadarko. Although the misstatements at issue will not be the same, BP and Anadarko's co-ownership of the well suggests the possibility of overlapping witnesses and evidence. "[O]ne of the most important factors considered by courts in evaluating a motion to transfer is the existence of similar litigation in the transferee district." Berman, 30 F.Supp.2d at 660 (citing Connors v. Lexington Ins. Co., 666 F.Supp. 434, 455 (S.D.N.Y.1987). In short, some measure of coordination between this action and the BP action may be appropriate. This factor thus weighs in favor of transfer. 5 There is no question that this action could have been brought in the Southern District of Texas. As the above analysis demonstrates, the interest of justice factors and judicial efficiency suggest that this case belongs in the Southern District of Texas - the headquarters of Defendants, the location from which the allegedly false statements emanated, the locus of the oil spill, and the venue for related litigation. See In re McDermott Intern., Inc. Securities Litigation, 2009 WL , at *6 (citing In re ArtheroGenics Sec. Litig., 2006 U.S. Dist. LEXIS 15786, The litigants have made no arguments concerning the relative means of the parties. Accordingly, this factor is neutral. 20

21 Case 1:10-cv PGG Document 43 Filed 03/19/12 Page 21 of 21 at * 9 ("While there is no per se rule requiring or presumptively favoring the transfer of a securities-fraud action to the district where the issuer is headquartered, such transfers to the issuer's home district are routine as a practical matter.")). New York has little connection to this action, while the Southern District of Texas appears to be the center of gravity for this litigation. The convenience of witnesses and the parties, as well as the locus of operative facts, weigh strongly in favor of transfer, while none of the Section 1404(a) factors weigh in favor of New York. Lead Plaintiffs have carried their burden to show that the Section 1404(a) factors favor transfer. CONCLUSION For the reasons stated above, Lead Plaintiffs' motion to transfer is GRANTED. The Clerk of the Court is directed to terminate the motion (Dkt No. 22) and to transfer this case to the Southern District of Texas. Dated: New York, New York March 19, 2012 SO ORDERED. pa-j4 t Paul G. Gardephev United States District Judge 21