Case 1:13-cv RJS Document 24 Filed 09/06/13 Page 1 of 15 : : : :

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1 Case 113-cv RJS Document 24 Filed 09/06/13 Page 1 of 15 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x THE OTOE-MISSOURIA TRIBE, a federallyrecognized Indian Tribe; GREAT PLAINS LENDING, LLC, a wholly-owned tribal limited liability company; AMERICAN WEB LOAN, INC., a wholly-owned tribal corporation; OTOE- MISSOURIA CONSUMER FINANCE SERVICES REGULATORY COMMISSION, a tribal regulatory agency; LAC VIEUX DESERT BAND OF LAKE SUPERIOR CHIPPEWA INDIANS, a federally-recognized Indian Tribe; RED ROCK TRIBAL LENDING, LLC, a wholly-owned tribal limited liability company; and LAC VIEUX DESERT TRIBAL FINANCIAL SERVICES REGULATORY AUTHORITY, a tribal regulatory agency, Plaintiffs, vs. NEW YORK STATE DEPARTMENT OF FINANCIAL SERVICES; and BENJAMIN M. LAWSKY, in his official capacity as Superintendent of the New York State Department of Financial Services, Defendants x NO. 13-CV-5930-RJS ECF Case Electronically Filed REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PLAINTIFFS MOTION FOR A PRELIMINARY INJUNCTION

2 Case 113-cv RJS Document 24 Filed 09/06/13 Page 2 of 15 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... i INTRODUCTION... 1 I. NEW YORK FAILS TO GRASP THAT THIS CASE INVOLVES SOVEREIGN RIGHTS THAT ARE ENTITLED TO SPECIAL PROTECTION UNDER THE CONSTITUTION, FEDERAL POLICY AND SUPREME COURT PRECEDENT... 1 II. III. NEW YORK S ASSERTION OF CONCURRENT JURISDICTION IS NOTHING LESS THAN A RE-LABELLED ABROGATION OF TRIBAL SOVEREIGNTY... 3 A. The Taxation Precedents Are Facially Inapposite... 3 B. Moreover, Any Bracker Analysis Clearly Would Support The Tribes Case All Tribal Activities Are On Tribal Land And, In Today s World, So Is The Consumer New York s Interests Are Remote, Internally Conflicted, At Odds With Most of the Other States, And Are Being Used To Simply Destroy Crucial Tribal Businesses... 5 a. New York s Interest Is Insufficient To Justify Its Assertion of Authority... 5 b. The Consequence of Concurrent Jurisdiction Will Be, Not Just Infringement But The Utter Destruction of Sovereignty... 6 NEW YORK CANNOT JUSTIFY ITS CAMPAIGN OR EVADE RESPONSIBILITY FOR ITS IMPACT... 6 A. No Court Has Sanctioned Such State Destruction Of A Tribal Business... 6 B. New York Would Leave Plaintiffs Without Any Recourse... 8 IV. PLAINTIFFS HAVE SUFFERED IRREPARABLE HARM... 9 V. BALANCE OF THE EQUITIES AND THE PUBLIC INTEREST i-

3 Case 113-cv RJS Document 24 Filed 09/06/13 Page 3 of 15 TABLE OF AUTHORITIES CASES California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987)...1, 2, 8 Dean v. Blumenthal, 577 F.3d 60 (2d Cir. 2009)...8 FTC v. Payday Fin., LLC, No , 2013 WL (D.S.D. Mar. 28, 2013)...4 Mashantucket Pequot Tribe v. Town of Ledyard, 722 F.3d 457 (2d Cir. 2013)...8 Massachusetts v. E.P.A., 549 U.S. 497 (2007)...8 Mescalero Apache Tribe v. New Mexico, 630 F.2d 724 (10th Cir. 1980), aff d, 462 U.S. 324 (1983)...8 Natural Arch & Bridge Soc y v. Alston, 209 F. Supp. 2d 1207 (D. Utah 2002), aff d, 98 F. App x 711 (10th Cir. 2004)...9 Natural Res. Def. Council, Inc. v. Watkins, 954 F.2d 974 (4th Cir. 1992)...7 Nemer Jeep Eagle, Inc. v. Jeep-Eagle Sales Corp., 992 F.2d 430 (2d Cir., 1993)...10 New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983)...2, 4, 5, 6, 8 Ramah Navajo Sch. Bd. v. Bureau of Revenue, 458 U.S. 832 (1982)...4 Student Press Law Ctr. v. Alexander, 778 F. Supp (D.D.C. 1991)...9 Tozzi v. Dep t of Health & Human Servs., 271 F.3d 301 (D.C. Cir. 2001)...8 Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980)...3 -ii-

4 Case 113-cv RJS Document 24 Filed 09/06/13 Page 4 of 15 Watkins v. Guardian Loan Co., 240 B.R. 668, 671 (E.D.N.Y. 1999)...7 White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (U.S. 1980)...4, 5 STATUTES 25 U.S.C U.S.C. 458aa et. seq U.S.C. 461 et. seq U.S.C U.S.C U.S.C. 5481(27) U.S.C. 5493(c)(2)(B)...3 OTHER AUTHORITIES Consumer Financial Protection Agency Act, 122(g), available at, http// Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No (2010)...2 House Financial Services Committee (Sept ), available at http// Congressional Record, available at http// 11/pdf/CREC pt1-PgH14762.pdf...3 N.Y. Dep t of Fin. Servs., Banking Interpretations NYBL 340 (Dec. 16, 2011)...6 N.Y. Dep t of Fin. Servs., Banking Interpretations NYBL 340 & 555 (Sept. 7, 2007)...6 N.Y. Dep t of Fin. Servs., Banking Interpretations NYBL 14-a, 340 (Nov. 30, 2004)...6 -iii-

5 Case 113-cv RJS Document 24 Filed 09/06/13 Page 5 of 15 INTRODUCTION The fundamental issue in this case is whether a State acting unilaterally and contrary to Congressional intent can mount a campaign tailor-made for the destruction of legitimate tribal businesses, when those businesses operate lawfully pursuant to duly enacted tribal law. According to New York, the answer is yes, but it can reach that result only by fundamentally misunderstanding the facts of this case, the core tribal sovereignty issues they present, and the utter destruction of tribal sovereignty that would occur if it prevails. As a result, New York has invited the Court to apply a profoundly incorrect legal framework. Under the correct and controlling federal policy and U.S. Supreme Court precedent, New York s campaign to destroy the Tribes lending businesses is plainly unlawful and should be enjoined. I. NEW YORK FAILS TO GRASP THAT THIS CASE INVOLVES SOVEREIGN RIGHTS THAT ARE ENTITLED TO SPECIAL PROTECTION UNDER THE CONSTITUTION, FEDERAL POLICY AND SUPREME COURT PRECEDENT New York ignores both the Supreme Court s assiduous efforts to examine the facts of each case in determining the scope of Tribal sovereignty and the heightened protection that the Court has applied to new Tribal commercial enterprises that promise to make them selfsufficient, in a word, to allow them to benefit from value generated on their lands, see California v. Cabazon Band of Mission Indians, 480 U.S. 202, 220 (1987). This special protection stands out from the many Tribal Sovereignty cases addressed by the Court in the last 50 years. The protection emanates both from the Tribes inherent sovereignty and from a clearly-articulated, overriding goal of modern federal policy to break the grinding cycle of dependence by encouraging tribal self-sufficiency and economic

6 Case 113-cv RJS Document 24 Filed 09/06/13 Page 6 of 15 development. Id. at 216 (quotation marks omitted); accord New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 335 (1983). 1 The present action presents the next chapter in this small collection of cases. As the declarations submitted to the Court attest, the online lending businesses at issue have been developed because the tribal gaming enterprises that have been so successful over the last twenty years are feasible only for a small number of tribes. Brandon Decl. 21. The fact of both Tribal control over the lending and the value generation of lending on-reservation are beyond dispute. These are Tribal businesses owned, controlled, and operated by the Tribe itself. (Shotton Decl. 20; Williams Decl. 19). Tribal employees, under the Tribes direction, play critical roles in supplying these lending services, and they perform substantial operations of the lending businesses from Tribal land. (Shotton Decl. 21; Williams Decl. 19). All officers of the Tribal Corporate Plaintiffs are Tribal members, and the ultimate decision whether to fund a loan is made by Tribal members on Tribal land. Id. In short, the value in the Tribes lending products arises from activities that Tribal businesses themselves engage in on Tribal land. To be sure, the Tribes have used the internet to build virtual highways to Tribal land, but even these websites are hosted and operated by the Tribes. The case for protection of the Tribes consumer lending businesses is further strengthened by Congress s decision to both empower Indian tribes to act as regulators of consumer loans and not grant the States regulatory power over tribal lending activities. In 2010, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act to protect consumers from abusive financial practices. Pub. L. No (2010). In the Act, Congress 1 See, e.g., Indian Reorganization Act, 48 Stat (1934), 25 U.S.C. 461 et. seq; Indian Self Determination and Education Assistance Act of 1975, 25 U.S.C. 450; Tribal Self-Governance Act of 1994, 108 Stat (1994), 25 U.S.C. 458aa et. seq. 2

7 Case 113-cv RJS Document 24 Filed 09/06/13 Page 7 of 15 refused to impose any interest rate caps because it recognized the benefits of short-term lending. 2 Congress also explicitly refused to subjugate Tribal lenders to the jurisdiction of the States. Specifically, Dodd-Frank defines state to include any federally recognized Indian tribe, which includes the Tribes. 12 U.S.C. 5481(27). Thus, Dodd-Frank recognizes and affirms Tribes sovereign rights to regulate Tribal lending activities; it does not make the Tribes subject to regulation by the States. 3 II. NEW YORK S ASSERTION OF CONCURRENT JURISDICTION IS NOTHING LESS THAN A RE-LABELLED ABROGATION OF TRIBAL SOVEREIGNTY New York s response to tribal self-sufficiency is to offer the bear hug of concurrent jurisdiction. Its argument can only be fairly described as specious, both in law and in fact. A. The Taxation Precedents Are Facially Inapposite New York misses the crux of this case when it relies extensively on taxation cases. See Opp. at Many of those cases involved tribes buying cigarettes and then reselling them on the reservation without collecting state taxes. E.g., Colville, 447 U.S. at 144. On those facts, the Supreme Court has held that a state may tax sales to non-tribal members because the tribes are merely marketing a tax exemption rather than any value that was actually created by the tribe. See id. at 155. Thus, these cases actually weigh against the State here, because the Tribes 2 For instance, Representative Barney Frank recognized that nonbank lenders are honorable, but it s a largely unregulated operation, [so] we give [the CFPB] specific authority to regulate. Congressional Record http// /pdf/CREC pt1-PgH14762.pdf. 3 New York argues that Dodd Frank reveals a federal policy of allowing concurrent state and tribal regulation of consumer lending. Opp. Brief at 13. New York is wrong. Dodd-Frank contemplates co-regulation by States and the Consumer Financial Protection Bureau. See, e.g., 12 U.S.C. 5493(c)(2)(B). It does not contemplate concurrent regulation by States and tribes. Rather, Congress intended tribes to step into the shoes of states wherever the Act mentions states. 3

8 Case 113-cv RJS Document 24 Filed 09/06/13 Page 8 of 15 indisputably are creating value on their reservations, and it is those value-generating activities that the State improperly seeks to regulate. The cigarette cases are not, by any stretch, about developing self-sufficient, value-generating enterprises. B. Moreover, Any Bracker Analysis Clearly Would Support The Tribes Case 1. All Tribal Activities Are On Tribal Land And, In Today s World, So Is The Consumer As the Supreme Court has instructed even in the absence of self-sufficiency interests, [w]hen on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State s regulatory interest is likely to be minimal and the federal interest in encouraging tribal self government is at its strongest. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144 (U.S. 1980). Although some of the borrowers of the Tribal Corporate Plaintiffs may be located in New York, those borrowers voluntarily seek out the Tribes by going to the Tribes websites. In our commercial world today, the websites offer potential borrowers efficient access to Tribal businesses which, on Tribal land, perform the work of evaluating borrowers applications and deciding whether to extend them credit) ( Shotton Decl. 19; Williams Decl. 16). See, e.g., FTC v. Payday Fin., LLC, No , 2013 WL , at *11 (D.S.D. Mar. 28, 2013) (focusing solely on a borrower s physical location ignores the realities of our modern world. ). In this case, New York is, in practical effect, unlawfully regulating the Tribes operations and activities on Tribal land. And although state laws can, in some circumstances, be applied to on-reservation conduct, see Mescalero, 462 U.S. at , the Supreme Court has vigilantly enforced Congress s policy of furthering tribal self-sufficiency by, when necessary, invalidating state laws that unlawfully infringe on the tribes rights of self-governance, see Ramah Navajo Sch. Bd. v. Bureau of Revenue, 458 U.S. 832, 845 (1982) (invalidating a state tax partly because 4

9 Case 113-cv RJS Document 24 Filed 09/06/13 Page 9 of 15 it burdened the express federal policy of encouraging Indian self-sufficiency in the area of education ). 2. New York s Interests Are Remote, Internally Conflicted, At Odds With Most of the Other States, And Are Being Used To Simply Destroy Crucial Tribal Businesses In asserting that New York can apply its law to on-reservation conduct, the State attempts to side-step the two independent but related barriers to the assertion of state regulatory authority over tribal reservations and members. See Bracker, 448 U.S. at The first barrier preempts state regulatory authority by the operation of federal law if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the State interests at stake are sufficient to justify the assertion of State authority. Mescalero, 462 U.S. at 334. The second barrier preempts state regulatory authority if it may unlawfully infringe on the right of reservation Indians to make their own laws and be ruled by them. Bracker, 448 U.S. at 142 (internal quotations omitted). Neither barrier can be cleared here. a. New York s Interest Is Insufficient To Justify Its Assertion of Authority. New York s interest in regulating the Tribes activities is remote at best. New York s views on short-term lending should not be permitted to preclude the Tribes from serving New York residents who voluntarily reach out to obtain such services, just as a State s anti-gambling laws cannot forbid Tribal casinos from serving New York residents who travel to those casinos. Indeed, other out-of-state lenders are already permitted to offer shorter-term, higherinterest loans to New York residents. Under federal law, banks chartered in such states are entitled to apply their home states interest rates to transactions nationwide, regardless of where the borrower is located. See 12 U.S.C. 85, 521. As a result, the New York Department of 5

10 Case 113-cv RJS Document 24 Filed 09/06/13 Page 10 of 15 Financial Services has repeatedly confirmed that out-of-state lenders may charge rates that far exceed those permitted under New York s restrictive laws. 4 b. The Consequence of Concurrent Jurisdiction Will Be, Not Just Infringement But The Utter Destruction of Sovereignty New York is left with the argument that it and every other State has carte blanche to trump established federal policy and basic principles of tribal sovereignty simply because borrowers may be physically located in New York when they access the Tribally-hosted websites and apply for loans. See Opp. Brief at 12. This argument utterly fails to account for the death blow it would deliver to tribal sovereignty. Indeed, the facts on the ground today are that New York s application of its state law is not merely augmenting tribal law, it is replacing it altogether. Mescalero, 462 U.S. at 338 (precluding application of state law that would effectively nullify the Tribe s authority ). III. NEW YORK CANNOT JUSTIFY ITS CAMPAIGN OR EVADE RESPONSIBILITY FOR ITS IMPACT A. No Court Has Sanctioned Such State Destruction Of A Tribal Business New York has used its unique position as a regulator of banks and financial services to simply drive Tribes located half way across the country out of business, proclaiming its intentions loudly along the way. In doing so, it unilaterally arrogated itself to a position precisely 4 See N.Y. Dep t of Fin. Servs., Banking Interpretations NYBL 340 (Dec. 16, 2011) (allowing a Georgia-chartered insured depository institution to offer loans to individuals in New York with interest rates that violate the New York usury limit, in compliance with 1831d); N.Y. Dep t of Fin. Servs., Banking Interpretations NYSBL 340 & 555 (Sept. 7, 2007) ( a duly chartered banking institution located in another state is not subject to New York usury law limits); and N.Y. Dep t of Fin. Servs., Banking Interpretations NYSBL 14-a, 340 (Nov. 30, 2004) (noting that payday loans may be made in New York by a bank located in another state in which said loans are legal ). Indeed, even under New York law, licensed lenders are permitted to exceed New York s 16% statutory interest rate cap. See N.Y. Banking Law 340; Watkins v. Guardian Loan Co., 240 B.R. 668, 671 (E.D.N.Y. 1999). 6

11 Case 113-cv RJS Document 24 Filed 09/06/13 Page 11 of 15 the opposite of the one it occupies under the Constitution first among the Tribes and Congress, rather than last, and even supreme among all of the states. It has acted with a blunt and immediately effective instrument closing off the Tribes from marketing and financing services, by simply scaring off the providers. To find some legal justification for this extraordinary conduct, New York cites as precedent a case in which the state in which a tribe was located seized contraband shipments before they got on tribal land. Oklahoma Tax Comm. v. Potawatomi Indian Tribe, 498 U.S. 505, 514 (1991). But New York did not even purport to be enforcing laws when it threatened the banks and pressured NACHA to act. 5 Nor did it confine its efforts to the specific misconduct it purported to attack. Thus, while New York recites the important goal of addressing fraudulent lending practices, its campaign was nowhere limited to that. More generally, the State s campaign has made no distinction between the Tribal businesses and those of other lenders. Indeed, when it came to the Tribes, even the results of the investigation recounted in New York s apparently were given short shrift. That investigation uncovered but a single complaint against AWL where the consumer states that he or she was mislead about payment of interest. Yet, the AWL contract attached to the same declaration recites in clear detail the terms of AWL loans. No claim is made by New York that the disclosure was inadequate much less unlawful. The same applies to the single complaint produced for Red Rock and the Red Rock website. And again, the Great Plains contract is clear and explicit about the terms of the loans, as well as about the role of the tribes and the applicable law. In the end, 5 New York also claims that NACHA members have independent obligations to comply with NACHA rules, which themselves require compliance with state law. However, it is New York s own improper assertion that its laws apply to the tribal lending transactions that has given rise to this purportedly independent obligation. 7

12 Case 113-cv RJS Document 24 Filed 09/06/13 Page 12 of 15 New York s own papers are some of the best evidence that the Tribes in this case were and are pursuing totally legitimate sovereign businesses that are accurately described to the consumer. B. New York Would Leave Plaintiffs Without Any Recourse. A few pages after trumpeting its efforts to choke off the Tribes, New York claims that it is not accountable for any harm that the Tribes have suffered. New York s standing argument should be rejected. First, the infringement on tribal sovereignty inherent in the cease and desist letters that New York sent to the Tribes is directly traceable to New York s conduct. 6 Second, Plaintiffs are the express target of New York s campaign. Accordingly, Plaintiffs have standing. Mashantucket Pequot Tribe v. Town of Ledyard, 722 F.3d 457, 475 (2d Cir. 2013) (tribe has standing to challenge regulation directed at third parties); Mescalero Apache Tribe v. New Mexico, 630 F.2d 724, 727 (10th Cir. 1980); Tozzi v. U.S. Dep t of Health & Human Servs., 271 F.3d 301, 308 (D.C. Cir. 2001). New York next argues that it is not responsible for voluntary actions taken by the third parties. But there is nothing self-starting about any steps taken by the banks, NACHA, or debt collectors in response to New York s letters. Those letters strongly suggest that bad things will happen if the third parties do not cooperate with New York. The subsequent actions taken by Missouri Bank and by Intercept are evidence that this is how the letters have been perceived in the market. As such, the letters cause real injury which can be redressed. See Tozzi, 271 F.3d at 6 New York argues that the cease and desist letters do not give rise to an actual injury because Plaintiffs do not have a well-founded fear of enforcement. The cases New York cites, however, hold no such thing, as none of them involves a letter of the sort sent here. See Opp. at 21 n. 5. To the extent New York argues that the Plaintiffs would, in any event, be immune from an enforcement action, it is improperly conflat[ing] the requirement for an injury-in-fact with the... validity of [the Tribe's] claim. Dean v. Blumenthal, 577 F.3d 60, 66 n. 4 (2d Cir.2009). 8

13 Case 113-cv RJS Document 24 Filed 09/06/13 Page 13 of ; Student Press Law Ctr. v. Alexander, 778 F. Supp. 1227, 1232 (D.D.C. 1991); Natural Arch & Bridge Soc y v. Alston, 209 F. Supp. 2d 1207, (D. Utah 2002). 7 Finally, New York points to other authorities that are pursuing various activities relating to short term lending, arguing that enjoining New York will not have any impact. This rather cynical view of the law and the facts is again in error. On the facts, the Department of Justice has mounted no campaign (it is conducting an investigation), has made no announcement that encompasses short term lending that complies with federal law, and has stated that its focus is fraudulent conduct. As to the states, most of the enforcement actions recited involve Western Sky. Unlike the Tribal businesses here, Western Sky is not a tribal business, it is not the arm of any tribe, and its revenues are not used to fund tribal governmental functions. No other state has launched a campaign like New York s. More generally and just as importantly, the state cannot hide behind any company that it has to avoid responsibility. It is a contributor to, if not the principal force behind the market scare. And court action to stop New York will be sure to have an impact on the market. IV. PLAINTIFFS HAVE SUFFERED IRREPARABLE HARM. Plaintiffs harms are twofold neither of which were addressed in New York s response First, the Tribes are facing irreparable deterioration of constitutionally preserved tribal rights of self governance. Second, there are sovereign businesses at stake here. Under Second Circuit 7 New York also argues that Plaintiffs injuries are not redressable because, even if an injunction were granted, other regulators may continue their regulatory and enforcement efforts. Opp. at 20. New York s argument is based on pure speculation. Moreover, to be redressable, New York s actions need not be the sole cause of Plaintiffs harm. Natural Res. Def. Council, Inc. v. Watkins, 954 F.2d 974, 980 (4th Cir. 1992). Here, New York has not argued that its activities have not contributed to the harm suffered by Plaintiffs; nor has it argued that disruption to Plaintiffs business in New York would not be remedied, at least to some extent, if it were enjoined from continuing its campaign. 9

14 Case 113-cv RJS Document 24 Filed 09/06/13 Page 14 of 15 case law, even a threat to the continued existence of a business can constitute irreparable injury. Nemer Jeep Eagle, Inc. v. Jeep-Eagle Sales Corp., 992 F.2d 430, 435 (2d Cir., 1993) (emphasis in original). Here, the purpose of the campaign is to scare service providers. New York cannot and does not say that this has not happened or that its campaign has not worked. See (Shotton Decl. 39.); (Williams Jr. Decl. 32.); (Treppa Decl. 31.) The Tribes have already demonstrated (even as of the time of its motion) that the campaign has had the further effect of actually ending relationships. V. BALANCE OF THE EQUITIES AND THE PUBLIC INTEREST If not enjoined immediately, New York s campaign will likely destroy the Tribes lending businesses. (Shotton Decl. 29; Williams Decl. 23). New York has no countervailing equities on its side of the balance. First, they provide but two consumer complaints involving the Plaintiffs, neither of which squares with the AML and Great Plains contracts or the Red Rock website. Second, New York has produced no evidence of urgency. Regulators have been investigating true payday lenders for years, and New York has been investigating since the early part of the year. See Opp. Brief at 5. Finally, many public interests are served by issuance of the injunction Constitutional and federal interests in Tribal sovereignty and self-sufficiency; avoiding conflicting efforts of states to regulate or Tribal lending remotely; federal agencies focused on consumer lending will have time to make decisions about a business that still exists; and the millions of consumers who look to short term consumer lending will have a place that currently is of their choosing to go for their financial needs. 10

15 Case 113-cv RJS Document 24 Filed 09/06/13 Page 15 of 15 Dated September 6, 2013 Of counsel Robert A. Rosette Saba Bazzazieh ROSETTE, LLP 565 W. Chandler Blvd., Suite 212 Chandler, AZ Telephone (480) Facsimile (480) Attorneys for Plaintiff Michael Doluisio Peter Kreher DECHERT LLP Circa Centre 2929 Arch Street Philadelphia, PA Telephone (215) Facsimile (215) Respectfully submitted, DECHERT LLP /S/ David Bernick David M. Bernick Gordon Sung Avenue of the Americas New York, NY Telephone (212) Facsimile (212) Attorneys for Plaintiff Attorneys for Plaintiff 11