UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK
MYRON and SANDY CANSON, Jointly and on
Behalf of All Others Similarly Situated,
Plaintiffs,
v.
WEBMD HEALTH CORP., WAYNE T.
GATTINELLA and ANTHONY VUOLO,
Defendants.
Case No: 1:11-CV-05382-JFK
ECF CASE
STEVEN MALLAND, Individually and On
Behalf of All Others Similarly Situated,
Plaintiff,
vs.
WEBMD HEALTH CORP., WAYNE T.
GATTINELLA and ANTHONY VUOLO,
Defendants.
Case No: 1:11-CV-06031-JFK
ECF CASE
MEMORANDUM OF LAW IN SUPPORT OF THE MOTION OF
THE MICHIGAN FUNDS FOR CONSOLIDATION,
APPOINTMENT OF LEAD PLAINTIFF AND APPROVAL OF LEAD COUNSEL
Case 1:11-cv-05382-JFK Document 7 Filed 10/03/11 Page 1 of 15
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Table of Contents
Page
I. PRELIMINARY STATEMENT ............................................................................................ 1
II. STATEMENT OF FACTS ..................................................................................................... 2
III. OVERVIEW OF APPLICABLE LAW.................................................................................. 5
IV. THE ACTIONS SHOULD BE CONSOLIDATED ............................................................... 6
V. THE MICHIGAN FUNDS SHOULD BE APPOINTED LEAD PLAINTIFF FOR
THE CLASS ........................................................................................................................... 8
A. The Michigan Funds’ Motion to Serve as Lead Plaintiff Is Timely............................. 8
B. The Michigan Funds Are Believed to Have the Largest Financial Interest in the
Relief Sought by the Class............................................................................................ 8
C. The Michigan Funds Satisfy the Typicality and Adequacy Requirements of
Rule 23 ........................................................................................................................ 10
1. The Michigan Funds’ Claims Are Typical of the Claims of the Class.....................10
2. The Michigan Funds Will Fairly and Adequately Represent the Interests of
the Class ......................................................................................................................................11
VI. THE COURT SHOULD APPROVE THE MICHIGAN FUNDS’ CHOICE OF LEAD
COUNSEL ............................................................................................................................ 11
VII. CONCLUSION..................................................................................................................... 12
Case 1:11-cv-05382-JFK Document 7 Filed 10/03/11 Page 2 of 15
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TABLE OF AUTHORITIES
Cases Page(s)
Albert Fadem Trust v. Citigroup Inc.,
239 F. Supp. 2d 344 (S.D.N.Y. 2002) ............................................................................... 6, 9, 10
In re Drexel Burnham Lambert Group, Inc.,
960 F.2d 285 (2d Cir.1992) ....................................................................................................... 10
Johnson v. Celotex Corp.,
899 F.2d 1281 (2d Cir.) ........................................................................................................... 6, 7
In re Olsten Corp. Sec. Litig.,
3 F. Supp. 2d 286 (E.D.N.Y. 1998) ............................................................................................. 7
Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. LaBranche & Co.,
229 F.R.D. 395 (S.D.N.Y. 2004)......................................................................................... 10, 11
Primavera Familienstiftung v. Askin,
173 F.R.D. 115, 129 (S.D.N.Y. 1997)......................................................................................... 7
Sofran v. LaBranche & Co.,
220 F.R.D. 398 (S.D.N.Y. 2004)........................................................................................... 9, 11
Statutes
15 U.S.C. § 78u-4 ........................................................................................................................... 7
15 U.S.C. § 78u-4(a)(1) .................................................................................................................. 8
15 U.S.C. § 78u-4(a)(3) ......................................................................................................... passim
15 U.S.C. § 78u-4(e)(1) .................................................................................................................. 9
15 U.S.C. § 78u-4(e)(2) .................................................................................................................. 9
Rules
Fed. R. Civ. P. 23(a) ............................................................................................................... 10, 11
Fed. R. Civ. P. 23(a)(4)................................................................................................................. 11
Fed. R. Civ. P. 42(a) ................................................................................................................... 6, 7
Case 1:11-cv-05382-JFK Document 7 Filed 10/03/11 Page 3 of 15
Wayne County Employees’ Retirement System and Carpenters Pension Trust Fund -
Detroit and Vicinity (together, “The Michigan Funds”), respectfully submit this memorandum of
law in support of their motion for: (i) consolidation of the Actions (defined below); (ii)
appointment of Lead Plaintiff in the Actions; and (iii) approval of their selection of Lead
Counsel for the putative class. The Michigan Funds purchased securities of WebMD Health
Corp. (“WebMD” or “the Company”) and suffered damages as a result of the alleged violations
of the federal securities laws by defendants WebMD, Wayne T. Gattinella (“Gattinella”) and
Anthony Vuolo (collectively, the “Defendants”).1
I. PRELIMINARY STATEMENT
This Court should consolidate the pending related securities class actions against the
Defendants (the “Actions”). Consolidating the Actions is appropriate because they involve
common factual and legal issues. This Court should also appoint The Michigan Funds as Lead
Plaintiff for the class. The Michigan Funds’ motion to be appointed Lead Plaintiff is timely
under the Private Securities Litigation Reform Act of 1995 (the “PSLRA”). The Michigan
Funds submit they are also the “most adequate plaintiff” to serve as Lead Plaintiff. In fact, they
satisfy each of the PSLRA’s requirements for appointment as Lead Plaintiff. At this time, The
Michigan Funds believe that they have the “largest financial interest” in the relief sought by the
class, having purchased 24,700 shares of WebMD common stock and suffered estimated losses
of $540,283.49. Brodsky Aff., Exs. C, D and E. Further, The Michigan Funds’ claims
1 The Michigan Funds have submitted certifications setting forth their transactions in WebMD
securities during the relevant period. See Exhibits C and D to the Affidavit of Stephen L. Brodsky in
Support of the Motion of the Michigan Funds for Consolidation, Appointment of Lead Plaintiff and
Approval of Lead Counsel (the “Brodsky Aff.”). The Michigan Funds have also submitted a chart,
pertaining to their transactions in the common stock WebMD, that sets forth The Michigan Funds’
financial interest in the Actions. Brodsky Aff., Ex. E. The Michigan Funds are fully familiar with the
facts and allegations in the cases filed in this District.
Case 1:11-cv-05382-JFK Document 7 Filed 10/03/11 Page 4 of 15
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against the Defendants are typical of the claims of the other class members, and their interests
are aligned with the interests of the class. Finally, The Michigan Funds have retained qualified
counsel and will vigorously prosecute the Actions. Their selection of counsel should be
approved as Lead Counsel for the putative class.
II. STATEMENT OF FACTS
This is a putative class action brought on behalf of a Class consisting of all persons and
entities who purchased the common stock of WebMD during the period from February 23, 2011
through and including July 15, 2011 (the “Class Period”) to recover damages caused by the
Defendants’ violation of the federal securities laws.2 ¶¶ 1, 15. WebMD provides health
information services to consumers, physicians and other healthcare professionals, employers, and
health plans through its public and private online portals, mobile applications, and health-focused
publications in the United States. ¶¶ 21-26. The Company generates revenue from its public
portals primarily through the “sale of advertising and sponsorship products.” ¶ 24. The
Company generates revenue from its private portals through “the licensing of these portals and
related services to employers and health plans either directly or through distributors.” ¶ 26.
On the first day of the Class period, February 23, 2011, WebMD issued a press release
announcing its financial results for the fourth quarter and fiscal year of 2010. For the quarter,
WebMD reported revenues of $168.5 million and net income of $36.6 million or $0.59 per share.
Defendant Gattinella, commenting on the results, said, “WebMD finished 2010 with another
quarter of strong financial and operating performance. We solidified our position as the most
2 “¶” references are to the allegations of the complaint filed in Canson v. WebMD Health Corp.,
Case No. 1:11-CV-05382-JFK (S.D.N.Y.). See Brodsky Aff., Ex. B.
Case 1:11-cv-05382-JFK Document 7 Filed 10/03/11 Page 5 of 15
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recognized and trusted brand of health and wellness information as more than 86 million visitors
are engaging with our content each month on both our desktop and mobile platforms.” ¶ 27.
With regard to the Company’s outlook for 2011, the press release stated in pertinent part
that, “Revenue to be approximately $610 million to $640 million, an increase of 14% to 20%
over 2010. These amounts represent expected growth of approximately 16% to 23% in public
portal advertising and sponsorship revenue over 2010 while private portal services revenue is
expected to be essentially flat compared to 2010.” It further stated, for the first quarter of 2011,
“Revenue to be in excess of $125 million, an increase of at least 16% over the prior year period.
Advertising revenue is expected to increase at least 20% while private portal revenue is expected
to be consistent with the prior year period.” In response, on February 24, 2011, the price of
WebMD stock rose $4.53 per share, or 9%, to close at $56.83 per share. ¶¶ 27, 28.
On March 8, 2011, WebMD issued a press release announcing that it was offering $300
million of Convertible Notes due 2016 in a private placement.3 ¶ 29. On March 9, 2011, the
Company issued a press release announcing that it priced the private placement of $350 million
aggregate principal amount of 2.25% Convertible Notes due 2016. The press release stated that
the notes are convertible into shares of WebMD common stock based on an initial conversion
rate of 13.5704 shares of WebMD common stock per $1,000 principal amount of notes, which is
equivalent to an initial conversion price of approximately $73.69 per share” – “a premium of
3 The release stated that WebMD “also expects to grant the initial purchaser in the proposed
offering an option to purchase up to an additional $50 million aggregate principal amount of notes.” The
notes will be convertible into shares of WebMD’s common stock. Moreover, the Company stated that it
“intends to use up to $50 million of the net proceeds from the sale of the notes to repurchase shares of its
common stock, and to use the remainder of the net proceeds for general corporate purposes, which may
include acquisitions and additional repurchases of its common stock, and for working capital.” ¶ 29.
Case 1:11-cv-05382-JFK Document 7 Filed 10/03/11 Page 6 of 15
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approximately 28% over the closing price of WebMD common stock [] on March, 8, 2011.” The
offering closed on March 14, 2011. ¶ 30.
On April 12, 2011, the Company issued a press release announcing that it “expects that
its results for the quarter ended March 31, 2011 will exceed First Call consensus analyst
estimates of $126.2 million for revenue and $34.0 million for earnings before interest, taxes,
non-cash and other items.” Moreover, the Defendants reaffirmed their financial guidance for
calendar year 2011. In reaction to this announcement, the price of WebMD stock rose $1.92 per
share, or 4%, to close at $51.11 per share. ¶¶ 31, 32.
On May 5, 2011, WebMD issued a press release announcing financial results for the first
quarter of 2011. For the quarter, the Company reported revenues of $131.6 million and net
income of $19.5 million or $0.32 per share. ¶ 34. Following that release, the Company held a
conference call in which it disclosed that “we are seeing an increasing level of marketing
conservatism on the part of big pharma” resulting in “a more cautious and longer approval cycle”
and “situations where large pharma has chosen not to participate in digital platforms . . . until the
FDA provides greater clarity and direction.” Furthermore, the “heightened conservatism” was
“reflected in the full year guidance that we issued earlier this year.” ¶ 35.
Following this news, WebMD’s share price fell 10% ($5.58 per share) closing at $50.96
per share on May 6, 2011. ¶ 36. On July 18, 2011, the full extent of the Defendants’ deception
was revealed when WebMD issued a press release announcing preliminary second quarter
financial results and updated financial guidance for 2011. Following the news of the lower
revisions to the Company’s financial guidance as a result of the previously concealed problems,
WebMD’s share price fell approximately 30% ($14.01 per share), closing at $32.48 per share. ¶¶
37-38.
Case 1:11-cv-05382-JFK Document 7 Filed 10/03/11 Page 7 of 15
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The Defendants’ statements were materially false and misleading and failed to disclose
material facts regarding the Company’s business. Specifically, the Defendants failed to disclose
that: (a) WebMD was experiencing sponsorship cancellations due to extended legal and
regulatory reviews; (b) that WebMD’s customers, including several consumer product
companies, were delaying advertising on the Company’s website as a result of smaller
advertising budgets; and (c) as a result, the Defendants lacked a reasonable basis for their
positive statements about the Company and its prospects. ¶ 33. The Defendants were further
motivated to engage in the fraud to enable the Company to complete the private offering which
closed on March 14, 2011. ¶ 43. Finally, during the Class Period, corporate insiders engaged in
insider selling, profiting from the deception. ¶ 44.
III. OVERVIEW OF APPLICABLE LAW
The PSLRA sets forth the procedure for appointing the lead plaintiff in a securities class
action. The first step requires providing notice to members of the putative class of the pendency
of a class action, the claims asserted, and the purported class period. Specifically, the PSLRA
provides that:
Not later than 20 days after the date on which the complaint is
filed, the plaintiff or plaintiffs shall cause to be published, in a
widely circulated national business-oriented publication or wire
service, a notice advising members of the purported plaintiff class–
(I) of the pendency of the action, the claims asserted therein,
and the purported class period; and
(II) that, not later than 60 days after the date on which the
notice is published, any member of the purported class may
move the court to serve as lead plaintiff of the purported
class.
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15 U.S.C. § 78u-4(a)(3)(A)(i).4
The PSLRA also sets out the requirements for selection of a lead plaintiff to oversee class
actions brought pursuant to the federal securities laws. 15 U.S.C. § 78u-4(a)(3). There is a
rebuttable presumption that the “most adequate plaintiff” to serve as lead plaintiff is the person
who:
(aa) has either filed the complaint or made a motion in response to
[aforementioned] notice . . .;
(bb) in the determination of the court, has the largest financial interest in the
relief sought by the class; and
(cc) otherwise satisfies the requirements of Rule 23 of the Federal Rules of
Civil Procedure.
15 U.S.C. § 78u-4(a)(3)(B)(iii)(I). As set forth below, The Michigan Funds satisfy each of the
PSLRA’s statutory requirements to serve as Lead Plaintiff here.
IV. THE ACTIONS SHOULD BE CONSOLIDATED
The PSLRA establishes a two-step process for resolving lead plaintiff and consolidation
issues when multiple actions asserting substantially the same claims on behalf of a class have
been filed. A court must first decide the consolidation motion and then decide the lead plaintiff
issue “[a]s soon as practicable.” 15 U.S.C. § 78u-4(a)(3)(B)(ii).
Consolidation of actions pursuant to Fed. R. Civ. P. 42(a) is appropriate when the actions
involve common questions of law and fact. See Johnson v. Celotex Corp., 899 F.2d 1281, 1284
(2d Cir.), cert. denied, 498 U.S. 920 (1990); Albert Fadem Trust v. Citigroup Inc., 239 F. Supp.
2d 344, 347 (S.D.N.Y. 2002). Under Rule 42(a), this Court has broad discretion to determine
whether consolidation is appropriate, and in making this determination, should consider whether
judicial economy favors consolidation. See Albert Fadem Trust, 239 F. Supp. 2d at 347;
4 15 U.S.C. § 78u-4 amends the Securities Exchange Act of 1934 (the “Exchange Act”) to adopt the
PSLRA’s provisions.
Case 1:11-cv-05382-JFK Document 7 Filed 10/03/11 Page 9 of 15
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Primavera Familienstiftung v. Askin, 173 F.R.D. 115, 129 (S.D.N.Y. 1997) (“[S]o long as any
confusion or prejudice does not outweigh efficiency concerns, consolidation will generally be
appropriate.”); see also Johnson, 899 F.2d at 1285. It is “well recognized” that the
“consolidation of stockholders’ suits often benefits both the courts and the parties by expediting
pretrial proceedings, avoiding duplication of discovery, and minimizing costs.” In re Olsten
Corp. Sec. Litig., 3 F. Supp. 2d 286, 294 (E.D.N.Y. 1998) (internal quotations and citation
omitted).
Presently, pending before this Court are two related securities class action cases:
Case Name Case No.
Canson v. WebMD Health Corp. 1:11-CV-05382-JFK
Malland v. WebMD Health Corp. 1:11-CV-06031-JFK
The Actions arise from the same set of operative facts and alleged course of conduct by
the Defendants involving purchase of WebMD securities, and raise the same legal issues
pursuant to Sections 10(b) and 20(a) of the Exchange Act. Thus, the Actions, and any related
actions that are subsequently filed in this District or transferred to this District, should be
consolidated.
The selection of lead plaintiff and lead counsel is the necessary first step to begin
prosecution of the Actions. The PSLRA contemplates a ninety-day period from the early notice
publication to the selection of lead plaintiff. 15 U.S.C. § 78u-4(a)(3)(B)(i). Because the PSLRA
explicitly ties the selection of a lead plaintiff to the consolidation of related actions, The
Michigan Funds respectfully request that this Court grant the consolidation motion as soon as
practicable. A prompt determination is reasonable and warranted under Fed. R. Civ. P. 42(a).
Case 1:11-cv-05382-JFK Document 7 Filed 10/03/11 Page 10 of 15
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V. THE MICHIGAN FUNDS SHOULD BE APPOINTED LEAD PLAINTIFF FOR
THE CLASS
The PSLRA provides guidelines for the appointment of a lead plaintiff in “each private
action arising under [the securities laws] that is brought as a plaintiff class action pursuant to the
Federal Rules of Civil Procedure.” 15 U.S.C. § 78u-4(a)(1). Because The Michigan Funds are
the “most adequate plaintiff,” as defined by the PSLRA, 15 U.S.C. § 78u-4(a)(3)(B)(iii), they
should be appointed Lead Plaintiff for the class.
A. The Michigan Funds’ Motion to Serve as Lead Plaintiff Is Timely
Within sixty days after the publication of a notice of a class action, any person or group
of persons that is a member of the proposed class may move the Court to be appointed lead
plaintiff. 15 U.S.C. § 78u-4(a)(3)(A)(i)(II). Here, the earliest notice of a class action regarding
Defendants was published on August 2, 2011. See Brodsky Aff., Ex. A. As purchasers of
WebMD securities during the alleged Class Period, The Michigan Funds are members of the
putative class and have timely moved for appointment as Lead Plaintiff within sixty days of the
notice, in compliance with the PSLRA.5 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I)(aa). The Michigan
Funds therefore satisfy the PSLRA’s initial requirement.
B. The Michigan Funds Are Believed to Have the Largest Financial Interest in the
Relief Sought by the Class
Pursuant to the PSLRA, this Court should next determine which lead plaintiff applicant
has the “largest financial interest” in the relief sought by the class. 15 U.S.C. § 78u-
4(a)(3)(B)(iii)(I)(bb). Although the PSLRA does not specifically indicate the manner in which
5 The PSLRA does not require The Michigan Funds to have filed a complaint against the Defendants.
See 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I)(aa) (instructing that the most adequate plaintiff will have either
filed the complaint or made a motion for appointment as lead plaintiff).
Case 1:11-cv-05382-JFK Document 7 Filed 10/03/11 Page 11 of 15
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the “largest financial interest” should be calculated, it provides that a plaintiff’s damages in any
securities fraud class action may not exceed:
[T]he difference between the purchase or sale price paid or received, as
appropriate, by the plaintiff for the security and the mean trading price of
the security during the period beginning immediately after dissemination
of information correcting the misstatement or omission and ending on the
date on which the plaintiff sells or repurchases the security.
15 U.S.C. § 78u-4(e)(2).
Alternatively, when a plaintiff continues to hold the security that is the subject of the
action, damages may not exceed:
[T]he difference between the purchase or sale price paid or received, as
appropriate, by the plaintiff for the subject security and the mean trading
price of that security during the 90-day period beginning on the date on
which the information correcting the misstatement or omission that is the
basis for the action is disseminated to the market.
15 U.S.C. § 78u-4(e)(1).
The Michigan Funds believe at this time that they have the “largest financial interest” in
the relief sought by the class. During the Class Period, they purchased 24,700 shares of WebMD
common stock and suffered estimated losses of $540,283.49. See Brodsky Aff., Exs. C, D and E.
Given their significant financial interest, the Michigan Funds believe that they satisfy the
PSLRA’s second requirement for appointment as Lead Plaintiff. Pursuant to the PSLRA, the
movant with the greatest financial interest is, in fact, presumptively the “most adequate” to serve
as Lead Plaintiff. See Albert Fadem Trust, 239 F. Supp. 2d at 347. Once the movant with the
largest financial interest is determined, the inquiry ends and the Court must look no further at the
other lead plaintiff candidates, unless the adequacy and typicality of the presumptive lead
plaintiff is rebutted. See Sofran v. LaBranche & Co., 220 F.R.D. 398, 402 (S.D.N.Y. 2004).
Case 1:11-cv-05382-JFK Document 7 Filed 10/03/11 Page 12 of 15
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C. The Michigan Funds Satisfy the Typicality and Adequacy Requirements of Rule
23
In addition to meeting the PSLRA’s requisites set forth above, a lead plaintiff must also
satisfy the requirements of Fed. R. Civ. P. 23. See 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I)(cc). Rule
23(a) provides that a party may serve as a class representative only if the following four
requirements are satisfied:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class; (3) the claims
or defenses of the representative parties are typical of the claims or
defenses of the class; and (4) the representative parties will fairly and
adequately protect the interests of the class.
Fed. R. Civ. P. 23(a).
For purposes of appointing a lead plaintiff, however, a wide-ranging analysis under Fed.
R. Civ. P. 23 is not appropriate at this stage of the litigation. Pirelli Armstrong Tire Corp.
Retiree Med. Benefits Trust v. LaBranche & Co., 229 F.R.D. 395, 412 (S.D.N.Y. 2004). All that
is required is a “preliminary showing” that the proposed lead plaintiff will satisfy the
requirements of typicality and adequacy. Id.; Albert Fadem Trust, 239 F. Supp. 2d at 347. As
discussed below, The Michigan Funds satisfy both the typicality and adequacy requirements of
Rule 23(a), further supporting its appointment as Lead Plaintiff.
1. The Michigan Funds’ Claims Are Typical of the Claims of the Class
Pursuant to Fed. R. Civ. P. 23(a), the claims or defenses of the representative party must
be typical of those of the class. “Typicality exists if claims ‘arise from the same course of events,
and each class member makes similar legal arguments to prove the defendant’s liability.’”
Pirelli, 229 F.R.D. at 412 (quoting In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285,
291 (2d Cir.1992), cert. dismissed sub nom., Hart Holding Co. v. Drexel Burnham Lambert
Group, Inc., 506 U.S. 1088 (1993)). The claims of the lead plaintiff need not be identical to the
Case 1:11-cv-05382-JFK Document 7 Filed 10/03/11 Page 13 of 15
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claims of the class to satisfy typicality. Id.
The Michigan Funds satisfy the typicality requirement of Fed. R. Civ. P. 23(a). The
Michigan Funds’ claims and the class’ claims arise from damages sustained due to the same
alleged course of conduct by the Defendants during the Class Period. Further, The Michigan
Funds and class members assert the same violations of federal securities laws.
2. The Michigan Funds Will Fairly and Adequately Represent the Interests of the
Class
Under Fed. R. Civ. P. 23(a)(4), the representative party must “fairly and adequately
protect the interests of the class.” Pirelli, 229 F.R.D. at 412. To “satisfy the adequacy
requirement . . .” (1) there should be no conflict between the interests of the class and the named
plaintiff nor should there be collusion among the litigants; and (2) the parties’ attorney must be
qualified, experienced, and generally able to conduct the proposed litigation.’” Sofran, 220
F.R.D. at 403. See also Pirelli, 229 F.R.D. at 413.
The Michigan Funds’ interests are aligned with — and certainly are not antagonistic to —
the interests of the other class members. Like the other class members, they are victims of the
Defendants’ alleged fraud and sustained damaged when the truth about WebMD’s business and
prospects was revealed to investors. Due to their significant financial stake in the Actions,
interest in prosecuting the Actions, and choice of proposed Lead Counsel, it is clear that the
Michigan Funds will vigorously prosecute the claims against Defendants and protect the interests
of the class.
VI. THE COURT SHOULD APPROVE THE MICHIGAN FUNDS’ CHOICE OF
LEAD COUNSEL
Pursuant to the PSLRA, the lead plaintiff is permitted, subject to the Court’s approval, to
select and retain counsel to represent the class. 15 U.S.C. § 78u-4(a)(3)(B)(v). The Michigan
Funds have selected and retained Zwerling, Schachter & Zwerling, LLP (“Zwerling, Schachter”)
Case 1:11-cv-05382-JFK Document 7 Filed 10/03/11 Page 14 of 15
12
to represent them and serve as lead counsel for the putative class. Zwerling, Schachter has
extensive experience in the areas of securities class action litigation and other complex litigation,
and has been responsible for significant successful results on behalf of injured investors in
numerous securities class action lawsuits, as well as legal decisions that enable litigation such as
this to be successfully prosecuted. See Brodsky Aff., Ex. F.
VII. CONCLUSION
For the foregoing reasons, the Michigan Funds respectfully request that the Court: (1)
consolidate the Actions; (2) grant their motion for appointment as Lead Plaintiff; and (3) approve
their choice of Zwerling, Schachter as Lead Counsel for the putative class.
Dated: October 3, 2011
Respectfully Submitted,
ZWERLING, SCHACHTER
& ZWERLING, LLP
By: s/ Jeffrey C. Zwerling
Jeffrey C. Zwerling
Stephen L. Brodsky
Justin M. Tarshis
41 Madison Avenue
New York, NY 10010
Tel: (212) 223-3900
Fax: (212) 371-5969
jzwerling@zsz.com
sbrodsky@zsz.com
jtarshis@zsz.com
Attorneys for Lead Plaintiff Movant
The Michigan Funds
Case 1:11-cv-05382-JFK Document 7 Filed 10/03/11 Page 15 of 15
