Opinion
02 Civ. 3288 (DLC), 03 Civ. 1052 (DLC), 03 Civ. 1897 (DLC)
August 8, 2003
ORDER
Plaintiffs in the above-captioned class actions allege claims arising from the purchase of GOALs notes issued by UBS AG PaineWebber ("PaineWebber") that were linked to the common stock of WorldCom, Inc. ("WorldCom") ("GOALs Actions"). The claims in the GOALs Actions arise from the same nucleus of facts surrounding the collapse of WorldCom as alleged in the In re WorldCom, Inc. Securities Litigation ("Securities Litigation").
Plaintiffs in Tuttelman moved for consolidation of the GOALs Actions, for appointment as lead plaintiffs in the consolidated action and for approval of their selection of Abbey Gardy, LLP as lead counsel. Having held a conference on July 30, 2003 ("July 30 Conference") to address whether the GOALs Actions should be (1) litigated as a sub-class in the Securities Litigation or (2) litigated as a separate class action and consolidated for pre-trial purposes, it is hereby, ORDERED as follows:
I. CONSOLIDATION
1. Tuttelman and Sky are consolidated for all purposes pursuant to Rule 42(a), Fed.R.Civ.P. They shall be referred to collectively as In re PaineWebber GOALs Securities Litigation, Master File No. 03 Civ. 1052 (DLC) ("GOALs Litigation").
2. The GOALs Litigation shall be consolidated with the Securities Litigation under the Master File No. 02 Civ. 3288 for pretrial purposes only.
3. No action taken hereunder shall have the effect of making any person, firm or corporation a party to any action in which the person or entity has not been named, served, or added as such in accordance with the Federal Rules of Civil Procedure.
II. MASTER DOCKET AND SEPARATE ACTION DOCKETS
4. A Master Docket is hereby established for the consolidated proceedings in the actions consolidated herein and any other actions subsequently consolidated with them either for all purposes or for pretrial purposes (the "Consolidated GOALs Actions"). Entries in said Master Docket shall be applicable to the Consolidated GOALs Actions, and entries shall be made therein in accordance with the regular procedures of the Clerk of this Court, except as modified by this Order.
5. When a pleading is filed and the caption, pursuant to this Order, shows that it is applicable to "All Actions," the Clerk shall file such pleading in the Master File and note such filing in the Master Docket. No further copies need be filed nor other docket entries made.
6. When a pleading or paper is filed and the caption shows that it is applicable to less than All Actions, the Clerk shall file the original of the paper in the Master File and a copy in the file of each separate action to which it applies and shall note such filing in the Master Docket and in the docket of each such separate action. The party filing such paper shall supply the Clerk with sufficient copies of any paper to permit compliance with this paragraph.
III. NEWLY FILED OR TRANSFERRED ACTIONS
7. When an action that relates to the same subject matter as the Consolidated GOALs Actions is hereafter filed in or transferred to this Court and assigned to the undersigned, it shall be consolidated with these actions in the same manner as the cases identified in Section I above (provided that any case transferred to this Court solely for pretrial proceedings shall be consolidated only to that extent absent further order of this Court), except as provided below, and the Clerk of Court shall:
a. File a copy of this Order in the separate file for such action; and b. Make an appropriate entry in the Master Docket.
8. Any defendant who has notice of the filing in or transfer to this Court of a related case shall a. Mail a copy of this Order to the attorneys for the plaintiff(s) in the newly filed or transferred case; and b. File a notice of service of this Order with the Clerk of Court to be docketed and filed in the Master File.
9. The Court requests the assistance of counsel in calling to the attention of the Clerk the filing or transfer of any case which might properly be consolidated with these actions.
IV. APPLICATION OF THIS ORDER TO SUBSEQUENT CASES
10. This Order shall apply to each action brought alleging claims arising from the purchase or sale of PaineWebber GOALs and assigned to the undersigned which is subsequently filed in or transferred to this Court, and which is assigned to the undersigned unless a party objecting to the consolidation of that action or to any other provision of this Order serves an application for relief from this Order or from any of its provisions within ten (10) days after the date on which the Clerk mails a copy of this Order to counsel for that party. The provisions of this Order shall apply to such action pending the Court's ruling on the application.
11. Unless a plaintiff in a subsequently filed or transferred case is permitted by the Court to use a separate complaint, defendants shall not be required to answer, plead or otherwise move with respect to that complaint in any such case.
If a plaintiff in any such case is permitted to use a separate complaint, each defendant shall have thirty days from the date the Court grants such permission within which to answer, plead or otherwise move with respect to any such complaint.
V. CAPTIONS
12. Every pleading filed in the Consolidated GOALs Actions, and in any separate action included therein, shall bear the following caption:
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IN RE PAINEWEBBER GOALS SECURITIES LITIGATION MASTER FILE 03 Civ. 1052 (DLC)
This Document Relates To:
13. When a pleading is intended to be applicable to all actions to which this Order applies, the words "All Actions" shall appear immediately after the words "This Document Relates To:" in the caption. When a pleading is intended to apply only to less than all of such actions, the docket number for each individual action to which it is intended to apply and the name of the plaintiff in said action shall appear immediately after the words "This Document Relates To:" in the caption.
VI. LEAD PLAINTIFF; LEAD PLAINTIFF'S COUNSEL
14. There being no opposition, Beatrice and Justin Tuttelman and Ronald Aubert are hereby appointed Lead Plaintiffs for the Consolidated GOALs Actions.
15. There being no opposition, Abbey Gardy, LLP shall serve as Lead Counsel for all plaintiffs in the Consolidated GOALs Actions ("GOALs Lead Counsel").
16. GOALs Lead Counsel shall have the following responsibilities:
a. Sign any consolidated complaint, motions, briefs, discovery requests, objections, or notices on behalf of all plaintiffs in the Consolidated GOALS Actions or those plaintiffs in the Consolidated GOALs Actions filing the particular papers. b. Conduct all pretrial proceedings on behalf of plaintiffs in the Consolidated GOALs Actions. c. Brief and argue motions. d. Initiate and conduct any discovery that is unique to the Consolidated GOALs Actions. e. Speak on behalf of plaintiffs in the Consolidated GOALs Actions at any pretrial conference. f. Employ and consult with experts. g. Conduct settlement negotiations with defense counsel on behalf of plaintiffs in the Consolidated GOALs Actions. h. Call meetings of plaintiffs' counsel. i. Distribute to all plaintiffs' counsel in the Consolidated GOALs Actions copies of all notices, orders, and decisions of the Court; maintain an up-to-date list of counsel available to all plaintiffs' counsel on request; keep a complete file of all papers and discovery materials filed or generated in the Consolidated GOALs Actions which shall be available to all plaintiffs' counsel in the Consolidated GOALs Actions at reasonable hours.
VII. SCHEDULE
17. As discussed at the July 30 Conference, a consolidated amended complaint for the Consolidated GOALs Actions shall be filed by August 22, 2003.
18. Defendants shall have no obligation to move, answer, or otherwise respond to any of the complaints in the actions consolidated herein or any actions subsequently consolidated with them. Any defendant named in the Complaint filed in the Securities Litigation shall have no obligation to answer or move with respect to the consolidated amended complaint in the GOALs Litigation until further Order of this Court.
VIII. COORDINATION
19. As discussed at the July 30 Conference, GOALs Lead Counsel and co-Lead Counsel in the Securities Litigation shall coordinate the GOALs Litigation with the Securities Litigation, including by coordinating discovery matters such as the production of documents and the taking of depositions.
20. Co-Lead Counsel in the Securities Litigation shall have the following obligations:
a. Keep GOALs Lead Counsel informed about discovery matters and other issues and proceedings of common interest in the Securities Litigation and the Consolidated GOALs Actions.
b. Consult with GOALs Lead Counsel to obtain the views of plaintiffs' counsel in the Consolidated GOALs Actions on proposed document requests, interrogatories, requests for admissions, depositions, and litigation strategy, and incorporate those views wherever it is appropriate to do so.
c. Should counsel in the Consolidated GOALs Actions identify in connection with a deposition being taken by co-Lead Counsel in the Securities Litigation any discovery that is unique to the Consolidated GOALs Actions, co-Lead Counsel in the Securities Litigation shall devise a process through consultation with GOALs Lead Counsel to permit an attorney from the Consolidated GOALs Actions to participate in the taking of each such deposition.
IX. SERVICE
21. Service by defendants of pleadings and all other papers on GOALs Lead Counsel shall be deemed sufficient service in the Consolidated GOALs Actions.
X. RESTRICTIONS
22. GOALs Lead Counsel may not contact defense counsel regarding discovery without the consent of co-Lead Counsel in the Securities Litigation or, in the absence of such permission, leave of the Court.
23. GOALs Lead Counsel may seek relief from these restrictions and from any of the provisions of this Order by application to the Court upon a showing of good cause. A showing of good cause regarding discovery issues includes a showing that the discovery issue is unique to the Consolidated GOALs Actions.
XI. FUTURE ORDERS
24. All parties are required to check the Court's website on a daily basis in order to obtain notice of any further orders issued by the Court with respect to the Securities Litigation.
The Court's website is available at www.nysd.uscourts.gov through the "CourtWeb" icon. Orders may be found by entering the name "WorldCom" in the "caption search" option. Orders will be listed under the master docket number, No. 02 Civ. 3288.
XII. DISCOVERY
25. All discovery obtained in the Consolidated GOALs Actions may be shared with plaintiffs in the Securities Litigation. All discovery obtained by any defendant in the Consolidated GOALs Actions may be shared with any other defendant.
XIII. PRIVILEGE
26. Cooperation by and among counsel is essential for the orderly and expeditious resolution of this litigation.
Accordingly, the communication of information among and between Lead Counsel in the Securities Litigation, Liaison Counsel and counsel in the Individual Actions, and GOALs Lead Counsel, and among and between defendants' counsel shall not be deemed a waiver of the attorney-client privilege or the attorney work product doctrine.
XIV. RIGHT TO BE HEARD BY THE COURT
27. All counsel shall use their best efforts to avoid duplication, inefficiency and inconvenience to the Court, other parties, other counsel and witnesses. Nothing stated herein, however, shall be construed to diminish the right of any party to be heard by the Court on matters that are not susceptible to joint or common action, or as to which there is a genuine disagreement among counsel.
SO ORDERED