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Copia Claims LLC v. California Infrastructure and Complaint Economic Development Bank

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA (SACRAMENTO DIVISION)


August 4, 2009

COPIA CLAIMS LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
CALIFORNIA INFRASTRUCTURE AND COMPLAINT ECONOMIC DEVELOPMENT BANK, A PUBLIC INSTRUMENTALITY OF THE STATE OF CALIFORNIA; THE BANK OF NEW YORK MELLON, AN ENTITY; ORRICK, HERRINGTON & SUTCLIFFE, LLP, AN ENTITY; AND ACA FINANCIAL GUARANTY CORPORATION, AN ENTITY, DEFENDANTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

STIPULATION AND ORDER REGARDING: (1) DATE BY WHICH LEAD PLAINTIFF'S OPERATIVE COMPLAINT WILL BE FILED; AND (2) DATE BY WHICH DEFENDANTS WILL RESPOND TO LEAD PLAINTIFF'S OPERATIVE

WHEREAS:

1. This case, an alleged class action asserting claims under Section 10(b) of the Securities Exchange Act of 1934, is subject to the requirements of the Private Securities Litigation Reform Act of 1995 ("PSLRA"), including the requirements for appointment of a lead plaintiff;

2. On June 16, 2009, Plaintiff filed its First Amended Complaint;

3. On July 31, 2009, the Court granted Plaintiff's unopposed motion to file a further amended complaint, which will supersede the existing First Amended Complaint;

4. The PSLRA imposes a number of procedural requirements that must occur before the lead plaintiff ultimately appointed by the Court will be in a position to assert an operative complaint, including the following:

a. Plaintiff must publish a notice of pendency of action, pursuant to 15 U.S.C. §78u-4(a)(3)(A), which was done on June 30, 2009;

b. Not later than 60 days after publication of such notice (i.e., by August 29, 2009), any member of the purported class may move the Court for appointment as lead plaintiff, pursuant to 15 U.S.C. §78u-4(a)(3);

c. Not later than 90 days after publication of such notice (i.e., by September 28, 2009), the Court shall consider any motion made by a class member to be appointed lead plaintiff and shall appoint a lead plaintiff, pursuant to 15 U.S.C. §78u-4(a)(3)(B);

d. The appointed lead plaintiff shall, subject to the approval of the Court, select and retain counsel to represent the alleged class;

5. Under the PSLRA, all discovery and other proceedings (including initial disclosures under Fed.R.Civ.Pro. 26(a)) are stayed until and unless it is determined that plaintiff can state a claim capable of surviving a motion to dismiss (15 U.S.C. §78u-4(b)(3); Medhekar v. U.S. District Court, 99 F.3d 325, 328 (9th Cir. 1996));

6. In light of the foregoing requirements, it is customary for the parties in class actions governed by the PSLRA to agree, and for courts in such actions to order, that:

a. The class member ultimately appointed by the Court as lead plaintiff be given an opportunity after its appointment to file a further amended complaint as its operative pleading; and

b. To prevent the Court and the parties from spending time and resources on unnecessary motion practice, defendants are typically not required to respond to any pleading until a lead plaintiff has been appointed by the Court and the Court-appointed lead plaintiff has filed its operative pleading.

THEREFORE, IT IS HEREBY STIPULATED, by and among the undersigned counsel for the parties, that:

1. Within forty-five (45) days from the date that the Court appoints a lead plaintiff in this action pursuant to 15 U.S.C. § 78u-4(3)(B), such lead plaintiff shall file a further amended complaint as its Operative Complaint, or designate the most recent complaint on file as its Operative Complaint;

2. Within forty-five (45) days from the date that the Court-appointed lead plaintiff files or designates its Operative Complaint (pursuant to the preceding paragraph), defendants shall move, answer or otherwise respond to the Operative Complaint;

3. Defendants shall have no obligation to move, answer or otherwise respond to any complaint in this action until the Operative Complaint is designated or filed by the Court-appointed lead plaintiff.

MCGRANE GREENFIELD LLP One Ferry Building, Suite 220 San Francisco, CA 94111 Telephone: (415) 283-1776 Facsimile: (415) 283-1777 E-mail: wmcgrane@mcgranegreenfield.com William McGrane Attorneys for Plaintiff Copia Claims, LLC

NIXON PEABODY LLP One Embarcadero Center, 18th Floor San Francisco, CA 94111-3600 Telephone: (415) 984-8320 Facsimile: (415) 984-8300 E-mail: lcisz@nixonpeabody.com By: Karl D. Belgum

FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP One New York Plaza New York, New York 10004 Telephone: (212) 859-8000 Facsimile: (212) 859-4000 E-mail: douglas.flaum@friedfrank.com Attorneys for Defendants ACA Financial Guaranty Corporation, and The Bank of New York Mellon

FENWICK & WEST LLP 555 California Street, 12th Floor San Francisco, CA 94104 Telephone: (415) 875-2384 Facsimile: (415) 281-1350 E-mail: kmuck@fenwick.com By: Kevin P. Muck Attorneys for Defendant Orrick, Herrington & Sutcliffe LLP

ATTORNEY GENERAL OF CALIFORNIA 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 324-5154 Facsimile: (916) 327-2247 E-mail: Jeffrey.Rich@doj.ca.gov By: Jeffrey A. Rich Deputy Attorney General Attorneys for Defendant California Infrastructure and Economic Development Bank

I certify that a true copy of the foregoing was served electronically via the CM/ECF system on all counsel of record on this ___ day of August, 2009.

ORDER

PURSUANT TO STIPULATION, IT IS ORDERED AS FOLLOWS:

1. Within forty-five (45) days from the date that the Court appoints a lead plaintiff in this action pursuant to 15 U.S.C. § 78u-4(3)(B), such lead plaintiff shall file a further amended complaint as its Operative Complaint, or designate the most recent complaint on file as its Operative Complaint;

2. Within forty-five (45) days from the date that the Court-appointed lead plaintiff files or designates its Operative Complaint (pursuant to the preceding paragraph), defendants shall move, answer or otherwise respond to the Operative Complaint;

3. Defendants shall have no obligation to move, answer or otherwise respond to any complaint in this action until the Operative Complaint is designated or filed by the Court-appointed lead plaintiff.

IT IS SO ORDERED.

20090804

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