Fosbre v. Las Vegas Sands Corp. et al

MOTION to Enforce Stay of Discovery

D. Nev.October 16, 2012

i MORRIS LAW GROUP Steve Morris, Bar No. 1543 2 Email: sm@morrislawgroup.com Akke Levin, Bar No. 9102 Email: al@morrislawgroup.com 4 Raleigh C. Thompson, Bar No. 11296 Email: rct@morrislawgroup.com - 900 Bank of America Plaza 6 300 South Fourth Street Las Vegas, NV 89101 ‘ Telephone: (702) 474-9400 8 Facsimile: (702) 474-9422 9 Walter C. Carison (Admitted Pro Hac Vice) 10 Email: wcarlson@sidley.com Courtney A. Rosen (Admitted Pro Hac Vice) ii Email: crosen@sidley.com Meredith J. Laval (Admitted Pro Hac Vice) 12 Email: mlaval@sidley.com 13 SIDLEY AUSTIN LLP 1 South Dearborn 14 Chicago, IL 60603 Telephone: (312) 853-7734 15 Facsimile: (312) 853-7036 16 *See Signature Block for Additional Counsel 17 Attorneys for Defendants Las Vegas Sands Corp. and Sheldon G. Adelson UNITED STATES DISTRICT COURT 20 DISTRICT OF NEVADA 21 FRANK J. FOSBRE, JR., Individually ) Case No. 2:10-cv-00765-KJD-GWF 22 and On Behalf of All Others similarly ) Situated, ) CLASS ACTION 23 ) Plaintiff, ) MOTION TO ENFORCE THE24 ) PSLRA’S MANDATORY STAY 25 v. ) OF DISCOVERY PENDING ) ADJUDICATION OF 26 LAS VEGAS SANDS CORP., et al., ) DEFENDANTS’ MOTIONS TO ) DISMISS THE SECOND Defendants. ) AMENDED COMPLAINT 28 __________________________________________ ) Case 2:10-cv-00765-KJD-GWF Document 96 Filed 10/16/12 Page 1 of 14 1 SHIRLEY and WENDELL COMBS, ) Consolidated with: On Behalf of Themselves and All ) Case No. 2:10-cv-00120-KJD-GWF 2 Others Similarly Situated, ) 3 )Plaintiffs, 4 ) v. ) 5 ) 6 LAS VEGAS SANDS CORP., et al., ) 7 Defendants. 8 Defendants Las Vegas Sands Corp. (“LVS” or the “Company”) z 9 and Sheldon G. Adelson (together, the “LVS Defendants”), and William P. 10 Weidner (collectively, “defendants”) move the Court for an order enforcing 11 the Private Securities Litigation Reform Act’s (“PSLRA”) mandatory stay of 12 discovery pending adjudication of the defendants’ motions to dismiss the 13 Second Amended Complaint (the “Second Amended Complaint” or “SAC”) 14 with prejudice for failure to state a claim upon which relief can be granted 15 pursuant to Federal Rules of Civil Procedure 9(b), 12(b)(6) and the PSLRA. 16 This motion is based on the following points and authorities. MORRIS LAW GROUP 18 19 By /5/ Raleigh C. Thompson 20 Steve Morris, Bar No. 1543 Akke Levin, Bar No. 9102 21 Raleigh C. Thompson, Bar No. 11296 Z 22 900 Bank of America Plaza 300 South Fourth Street 23 Las Vegas, NV 89101 24 25 26 27 28 2 Case 2:10-cv-00765-KJD-GWF Document 96 Filed 10/16/12 Page 2 of 14 Walter C. Carlson (Pro Hac Vice) Courtney A. Rosen (Pro Hac Vice) 2 Meredith J. Laval (Pro Hac Vice) 3 SIDLEY AUSTIN LLP 1 South Dearborn 4 Chicago, IL 60603 Attorneys for Defendants Las Vegas Sands 6 Corp. and Sheldon G. Adelson BROWNSTEIN HYATT FARBER 8 SCHRECK, LLP 9 By Is! Tamara Beatty Peterson Tamara Beatty Peterson, Bar No. 5218 100 North City Parkway, Suite 1600 ii Las Vegas, NV 89106-4614 Telephone: (702) 464-7046 12 Email: tpeterson@bhfs.com 13 William F. Sullivan (Admitted Pro Hac Vice) 14 D. Scott Carlton (Admitted Pro Hac Vice) PAUL HASTINGS LLP 15 515 South Flower St., Twenty-Fifth Floor 16 Los Angeles, CA 90071 Telephone: (213) 683-6000 17 Email: williamsullivan@pauthastings.com 18 Email: scottcarlton@pauthastings.com 19 Attorneys for Defendant William P. Weidner 20 POINTS AND AUTHORITIES 21 I. INTRODUCTION 22 On September 25, 2012, the Court granted the defendants’ 23 motion for an extension of time within which to move to dismiss the 24 Second Amended Complaint. In the Second Amended Complaint, 25 plaintiffs attempt to replead allegations that the Court previously 26 dismissed and amend other allegations as to which the Court previously 27 28 3 Case 2:10-cv-00765-KJD-GWF Document 96 Filed 10/16/12 Page 3 of 14 i expressed serious reservations. See August 24, 2011 Order (#55) at 4, 7, 8.1 2 Plaintiffs’ new Second Amended Complaint fails to state any claim and the 3 Defendants moved to dismiss the Second Amended Complaint in its 4 entirety on October 15, 2012.2 5 The PSLRA mandates that “all discovery ... shall be stayed 6 during the pendency of any motion to dismiss, unless the court finds upon the motion of any party that particularized discovery is necessary to .1 -, .1 8 preserve evidence or to prevent undue prejudice to that party.” 15 U.S.C. § z 9 78u-4(b)(3)(B) (2010) (emphasis added). Courts apply this unambiguous io language to stay all discovery with respect to any issue or any party during ii the pendency of any motion to dismiss, including successive motions. See, 12 e.g., In re Finisar Corp. Derivative Litig., No. C-06-07660 RMW, 2012 WL f 3 609835, at *3 (N.D. Cal. Feb. 24, 2012) (motion to lift PSLRA stay denied 14 pending resolution of motion to dismiss second amended complaint); I :: McGuire v. Dendreon Corp., No. C-07-800-MJP, 2009 WL 666863, at *1 (W.D.1 Specifically, the Second Amended Complamt seeks to expand the class 17 period by approximately six months re1eads many statements previousl 1. . 1 jI . .1 1 1 N dismissed by this Court, seeks to challenge many new statements that were 18 not part of the Amended Complaint, ancUalters many of the previously sustained allegations by referrmg to approximately 60 documents 19 produced by the Company and third parties in discovery. The Second Amended Complaint contains 442 paragraphs, 242 of which contain new 20 allegations. 21 2 The LVS Defendants and Mr. Weidner separately moved to dismiss the Second Amended Complaint on October 15, 2012. Collectively, defendants 22 moved to dismiss based on several grounds. First, despite the Court’s reasoned dismissal in two orders of many statements as inactionable 23 because they were forward-looking statements protected by the PSRLA’s safe harbor or inactionable optimism plaintiffs again include those 24 allegations in the Second Amended iomplaint. Plaintiffs also challenge new forward-looking statements that are similar to the ones previously 25 dismissed by this Court, and new statements that contain nearly identical language to those which this Court has previously dismissed as 26 inactionable optimism. Plaintiffs also incorporate approximately 60 documents info the new complaint, which contradict and show that there is 27 no factual basis for their claims. The remaining statements must be dismissed because plaintiffs have not pled falsity or scienter. 28 4 Case 2:10-cv-00765-KJD-GWF Document 96 Filed 10/16/12 Page 4 of 14 1 Wash. Mar. 11, 2009) (enforcing the PSLRA stay during the pendency of a 2 motion to dismiss a second amended complaint); In re S. Pac. Funding Corp. 3 Sec. Litig., 83 F. Supp. 2d 1172, 1175 n.1 (D. Or. 1999) (PSLRA discovery stay 4 during pendency of motion to dismiss a fourth amended complaint).3 5 Therefore, because there are pending motions to dismiss, and there is no 6 need to “preserve evidence” nor the existence of “undue prejudice,” all 7 discovery is automatically stayed under the PSLRA. 8 On October 8, 2012, the parties met and conferred, during 9 which the LVS Defendants informed plaintiffs that defendants would be 10 moving to dismiss the entire Second Amended Complaint and that the ii PSLRA mandates a stay of discovery pending the Court’s decision on that 12 motion. See Ex. A, Declaration of Meredith J. Laval (“Laval Decl.”) ¶913, 4•4 13 Nevertheless, plaintiffs stated that discovery should proceed, see id. ¶ 5, cH 14 which necessitates this motion. Accordingly, pursuant to the PSLRA’s is unambiguous statutory language and case law, the defendants move the r.J) 16 Court to enforce the PSLRA’s stay of discovery pending adjudication of the 17 defendants’ motions to dismiss the Second Amended Complaint. 18 II. ARGUMENT 19 A. The PSLRA Requires That All Discovery be Stayed Pending the Court’s Decision on the Defendants’ Motion to Dismiss. 20 The meanmgs of the phrases “all discovery” and “any motion to o 21 dismiss” are well-settled in the Ninth Circuit. Indeed, numerous courtsz .< 22 See also Medhekar v. 11.5. Dist. Court for the N. Dist. of California, 99 F.3d 325, 23 328-29 (9th Cir. 1996) (initial disclosures stayed pending motion to dismis); Sedona Corp. v. Ladenburg Thalmann, No. 03-3120, 2005 WL 24 2647945, at *4 (S.D.N.Y. Oct. 14, 2005) (discovery stay also applies to those defendants who did not file motion to dismiss). 25 ‘ It is well-settled that the PSLRA discovery stay applies where a motion to 26 dismiss has not yet been filed but is to be filed. See In re JDS Uniphase Corp. Sec. Litig. 238 F. Supp. 2d 1127, 1133 (N.D. Cal. 2002) (enforcing stay under 27 PSLRA afthough a motion to dismiss was not pending, because the time to respond to the complaint had not yet elapsed). 28 5 Case 2:10-cv-00765-KJD-GWF Document 96 Filed 10/16/12 Page 5 of 14 i have held that those phrases mean what they plainly state: that all 2 discovery of any kind, and against any party, shall be stayed during the 3 pendency of any motion to dismiss, including motions to dismiss with 4 respect to only certain defendants, and second, third, or further successive 5 motions to dismiss. See, e.g., In re Finisar Corp. Deny. Litig., 2012 WL 6 609835, at *3 (motion to lift stay denied pending resolution of motion to 7 dismiss second amended complaint); McGuire, 2009 WL 666863, at *1 8 (extending the PSLRA stay during the pendency of a motion to dismiss a 9 second amended complaint); In re Imperial Credit Indus., Inc. Sec. Litig., 252 10 F. Supp. 2d 1005, 1009 (C.D. Cal. 2003), aff’d sub nom. Mortensen v. Snavely, i 145 F. App’x 218(9th Cir. 2005) (“automatic” discovery stay reinstated 12 when motion to dismiss third amended complaint was filed); In re S. Pac. 13 Funding Corp. Sec. Litig., 83 F. Supp. 2d at 1175 n.1 (staying discovery 14 during pendency of court’s consideration of a motion to dismiss a fourth 15 amended complaint). 9 16 McGuire is illustrative of the straightforward analysis that 17 applies here. In McGuire, plaintiffs filed a first amended class action 18 complaint under the Securities Exchange Act of 1934, to which defendant’s 19 motion to dismiss was granted in part and denied in part. When plaintiffs 20 filed a second amended complaint, defendant moved to dismiss this as 21 well, and also moved for the PSLRA discovery stay to be enforced until the 22 court decided the second motion to dismiss. In extending the stay of 23 discovery, the Court held emphatically that “[tjhe PSLRA clearly requires 24 that discovery shall be stayed when any motion to dismiss is pending.” 25 2009 WL 666863, at *1 (emphasis in original).5 26 That some discovery had taken place with respect to certain allegations in 27 the Amended Complaint is of no moment, as courts apply the mandatory stay regardless of whether discovery had previously commenced. See, e.g., 28 In re Smith Barney Transfer Agent Litig., No. 05 CIV. 7583 WHP, 2012 WL 6 Case 2:10-cv-00765-KJD-GWF Document 96 Filed 10/16/12 Page 6 of 14 i Courts in other circuits agree, and have found the plain 2 language of the statute to act as a bright line rule in similar circumstances. 3 The court in Sedona Corp., 2005 WL 2647945, at *3, also faced with a second 4 round of motions to dismiss, stayed ongoing discovery, stating that: 5 [Tjhere is no ambiguity in the plain language of the PSLRA’s 6 stay provision; the automatic stay applies while “any motion to dismiss” is pending.. . Thus, the stay would apply where there 7 is a pending motion to dismiss brought by either one or all of the defendants and recardless of whether the motion is 8 ‘ Cbrought mitially to dismiss a complamt, or subsequently, m 9 response to an amended complaint. 10 The court in In re CFS-Related Sec. Fraud Litig., 179 F. Supp. 2d at 1263-64, 11 similarly relied on the plain language of the statute in holding that the stay 12 remains in place so long as any motion to dismiss is pending. See also Selbst v. McDonald’s Corp., No. 04-2422, 2006 WL 566450, at *1.3 (N.D. Ill. Mar. 1, 14 2006) (enforcing stay during pendency of second motion to dismiss). 15 Because the statute’s language is unambiguous, “the sole function of the 16 courts is to enforce it according to its terms.” United States v. Ron Pair Enters., Inc., 489 U.s. 235, 241 (1989) (quoting Caminetti v. United States, 242 18 U.S.470,485(1917)).6 1438241, at *1 (S.D.N.Y. Apr. 25, 2012) (enforcing stay after a period of 21 discovery); Sedona Corp. v. Ladenburg Thalmann, No. 03 CIV. 3120 LTSTHK, 22 2005 WL 2647945, at *1 (S.D.N.Y. Oct. 14, 2005); In re CFS-Related Sec. Fraud Litig., 179 F. Supp. 2d 1260, 1262 (N.D. Okla. 2001). Costly discovery would 23 be entirely unnecessary if the Court grants the defendants’ motions to 24 dismiss. And plaintiffs are not permitted to “utilize[eJ discovery to formulate a claim.” Sedona, 2005 WL 2647945, at *3• 25 6 See also In re Finisar Corp. Derivative Litig., 2012 WL 609835, at *2 (“The 26 court finds that the plain language of the [statute] requires a stay.”); Swartz 27 v. Deutsche Bank AG, No. C03-1252-MJP, 2008 WL 534535, at *2 (W.D. Wash. Feb. 26, 2008) (“Absent such a showing [of ‘additional circumstances 28 showing undue prejudice in this case’], under the plain language of the Act, 7 Case 2:10-cv-00765-KJD-GWF Document 96 Filed 10/16/12 Page 7 of 14 1 Here, the defendants moved on October 15, 2012 to dismiss the 2 Second Amended Complaint in its entirety, and the PSLRA stay is plainly 3 in force. See In re Smith Barney Transfer Agent Litig., 2012 WL 1438241, at 1- 4 3 (denying application to lift stay during pendency of the court’s 5 consideration of a motion to dismiss a fourth amended complaint even 6 though certain of plaintiffs’ claims had survived an earlier motion to 7 dismiss); McGuire, 2009 WL 666863, at *1 (discovery stay extended pending 8 motion to dismiss second amended complaint after motion to dismiss first z 9 amended complaint was denied in part); Powers v. Eichen, 961 F. Supp. 233, 10 236 (S.D. Cal. 1997) (discovery stayed pending motion for reconsideration ii after motion to dismiss was denied in part). 12 Tn addition to the clear language of the PSLRA, enforcing the 13 discovery stay in this case comports with the congressional intent i underlying the PSLRA. According to the PSLRA’s legislative history, the 15 purpose of the stay is: (1) to prevent the unnecessary imposition of 16 discovery costs on defendants until a court has reviewed the sufficiency of i the allegations; and (2) to ensure that class action complaints stand or fall 18 based on the actual knowledge of the plaintiffs rather than information 19 produced by the defendants after the action has been filed. See In re MGM 20 Mirage Sec. Litig., 2012 WL 2367567, at *1 (D. Nev. June 21, 2012) (citmg SG 21 Cowen Sec. Corp. v. U.S. Dist. Ct., 189 F.3d 909, 9 11-12 (9th Cir. 1999)); see 22 also In re Metro. Sec. Litig., No. CV-04-25-FVS, 2005 WL 940898, at *2 (E.D. 23 Wash. Mar. 31, 2005). Although this Court previously found certain of 24 plaintiffs’ allegations adequate to state a claim, the Second Amended 25 Complaint has substantially altered those allegations and expressly 26 27 the fact that there are pending motions to dismiss in this case necessitates a discovery stay until those motions are resolved.”). 28 8 Case 2:10-cv-00765-KJD-GWF Document 96 Filed 10/16/12 Page 8 of 14 1 incorporated documents which show that the SAC fails to state a claim. 2 Far from supporting their claims, plaintiffs’ inclusion of documents 3 contradict those claims and show that the claims must be dismissed. It 4 would defy the purposes of the PSLRA to allow plaintiffs’ to continue with 5 far-ranging, costly, and highly burdensome discovery before the Court has 6 had the opportunity to evaluate what has now become a facially and fatally 7 deficient complaint. 8 B. The PSLRA’S Narrow Exceptions to the Mandatory Stay of 9 Discovery “to Preserve Evidence or to Prevent Undue Prejudice Do Not Apply Here. The PSLRA is equally unambiguous that, pending any motion E to dismiss, discovery may only proceed in narrow circumstances where “particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party.” 15 U.S.C. § 78u-4(b)(3)(B) (2010) (emphasis added). This is not the situation here. There is no “particularized” discovery that is “necessary to preserve evidence or to prevent undue C Cl) 10 . . ,, . . . . . .nreiudice and nlaintiffs identified none durmc,r the narties meet andr fi ‘ r 17 confer on this matter. See Ex. A, Laval Decl. ¶5. Further, under applicable case law, the standards of “preserv[ingj evidence” or “prevent[ingj undue prejudice” are stringent ones that plaintiffs cannot meet. 20 To demonstrate that discovery is “necessary to preserve j evidence,” a plaintiff must show that the loss of evidence is imminent, not 23 7See, e.g., MGM Mirage, 2012 WL 2367567, at *2 (purpose of the PSLRA 24 discovery stay is to “protect[] defendants from (i) being coerced into a premature settlement of a frivolous claim to avoid the costs and burdens 25 imposed by discovery; and (ii) a fishing expedition designed to find actionable conduct not pled in the complaint”) (internal citations omitted); 26 141 Cong.Rec. H13691, H13700 (daily ed. Nov. 28, 1995) (purpose of stay 27 provision to minimize costs for defendants during pendency of motion to dismiss) (cited in Medhekar, 99 F.3d at 327). 28 9 Case 2:10-cv-00765-KJD-GWF Document 96 Filed 10/16/12 Page 9 of 14 1 merely speculative. See Saran takis v. Gruttadauria, No. 02-cv-1609, 2002 WL 2 1803750, at *2 (N.D. Ill. Aug. 5, 2002); see also In re JDS Llniphase Corp. Sec. 3 Litig., 238 F. Supp. 2d 1127, 1133 (N.D. Cal. 2002) (finding exception lacking 4 where “there is not a hint of a suggestion in the plaintiff’s papers that there 5 is an urgent need to preserve evidence”); SG Cowen Sec. Corp., 189 F.3d at 6 912; Powers, 961 F. Supp. at 236; Med. Imaging Centers ofAm., Inc. v. 7 Lichtenstein, 917 F. Supp. 717, 720 (S.D. Cal. 1996). Here, plaintiffs have not 8 and cannot suggest the imminent loss of evidence, especially since the 9 defendants have taken the necessary steps to preserve documents and 10 information within their possession, custody, or control that is likely to be ii relevant to plaintiffs’ claims. See, e.g., In re Asyst Techs., Inc. Derivative Litig., 12 No. C-06-04669 EDL, 2008 WL 916883, at *1 (N.D. Cal. Apr. 3, 2008) 13 (finding no unusual or imminent risk of loss of evidence where defendants 14 had imposed a litigation hold). 15 Moreover, plaintiffs face no risk of undue prejudice. Plaintiffs’ 16 only articulated “prejudice,” that a stay could make it difficult to complete 17 fact discovery prior to the deadline set for over seven months from now, see 18 Ex. A, Laval Decl. ¶ 5, is not undue. It is well established that the delay 19 attendant to the Court’s deciding the motion to dismiss is not undue 20 prejudice. Indeed, as the District Court of the Northern District of 21 California held in In re Finisar Corp. Derivative Litig., “[t]he delay of several 22 months and the expense to [plaintiffs]... is not undue prejudice within the 23 meaning of § 78u4(b)(3)(B),” as such a delay “is inherent in every PSLRA 24 mandated discovery stay.” 2012 WL 609835, at *3 (quoting Kuriakose v. 25 Federal Home Loan Mortg. Co., 674 F. Supp. 2d 483, 489 (S.D.N.Y.2009)). 26 Moreover, such “prejudice” is easily rectified. There are still over seven 27 months remaining before the May 31, 2013 close of fact discovery, and that 28 date has never been extended. Although defendants do not believe the 10 Case 2:10-cv-00765-KJD-GWF Document 96 Filed 10/16/12 Page 10 of 14 i Second Amended Complaint states any claim, in the event the Court 2 determines that any alleged false statements survive the defendants 3 motions to dismiss, the Court can then set a discovery schedule consistent 4 with what remains in the case. 5 III. CONCLUSION 6 For these reasons, defendants respectfully request that the 7 Court enforce the mandatory PSLRA stay in this case pending adjudication 8 of defendants’ motions to dismiss the Second Amended Complaint. MORRIS LAW GROUP 11 By /5/ Raleigh C. Thompson 12 Steve Morris, Bar No. 1543 0 Akke Levin, Bar No. 9102 Raleigh C. Thompson, Bar No. 11296 14 900 Bank of America Plaza 300 South Fourth Street 15 Las Vegas, NV 89101 Walter C. Carison (Pro Hac Vice) 17 Courthey A. Rosen (Pro Hac Vice) Meredith J. Laval (Pro Hac Vice) 18 SIDLEY AUSTIN LLP 19 1 South Dearborn Chicago, IL 60603 20 21 Attorneys for Defendants Las Vegas Sands Corp. and Sheldon G. Adelson < 22 24 25 26 27 28 11 Case 2:10-cv-00765-KJD-GWF Document 96 Filed 10/16/12 Page 11 of 14 i BROWNSTEIN HYATT FARBER SCHRECK, LLP 2 By Is! Tamara Beatty Peterson 4 Tamara Beatty Peterson, Bar No. 5218 5 100 North City Parkway, Suite 1600 Las Vegas, NV 89106-4614 6 Telephone: (702) 464-7046 Email: tpeterson@bhfs.com 7 8 William F. Sullivan (Admitted Pro 1-lac Vice) z D. Scott Canton (Admitted Pro 1-lac Vice) 9 PAUL HASTINGS LLP 515 South Flower St., Twenty-Fifth Floor Los Angeles, CA 90071 11 Telephone: (213) 683-6000 Email: williamsullivan@pauthastings.com 12 Email: scottcarlton@paulhastings.com 13 Attorneys for Defendant William P. Weidner 14 15iH 16 or > . N 1 j 12 Case 2:10-cv-00765-KJD-GWF Document 96 Filed 10/16/12 Page 12 of 14 QO > z (.1) H CID CERTIFICATE OF SERVICE Pursuant to Fed. R. Civ. P. 5(b) and Section IV of District of Nevada Electronic Filing Procedures, I certify that I am an employee of MORRIS LAW GROUP, and that the following documents were served via electronic service: MOTION TO ENFORCE THE PSLRA’S MANDATORY STAY OF DISCOVERY PENDING ADJUDICATION OF DEFENDANTS’ MOTIONS TO DISMISS THE SECOND AMENDED COMPLAINT TO: C C C C- (-4 C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Spencer A. Burkholz Steven Pepich Christopher D. Stewart Robbins Geller Rudman & Dowd LLP 655 W. Broadway, Suite 1900 San Diego, CA 92101 Email: spenceb@rgrdlaw.com Email: spepich@rgrdlaw.com Email: cstewart@rgrdlaw.com David C. O’Mara The O’Mara Law Firm, P.C. 311 E. Liberty Street Reno, NV 89501 Email: david@omaralaw.net Attorneys for Frank Fosbre Seth Ottensoser Bernstein Liebhard LLP 10 East 40th Street New York, NY 10016 Email: ottensoser@bernlieb.com Attorneys for Defendant Shirley Combs Eric I. Niehaus Brian 0. O’Mara Robbins Geller Rudman & Dowd LLP 655 W. Broadway, Suite 1900 San Diego, CA 92101 Email: ericn@rgrdlaw.com Email: bomara@rgrdlaw.com Attorneys for Pension and Pension and Retirement Group Mark D. Wray Law offices of Mark Wray 608 Lander Street Reno, NV 89509 Email: mwray@markwrayaw.com Attorneys for Alvaro Elizondo 13 Case 2:10-cv-00765-KJD-GWF Document 96 Filed 10/16/12 Page 13 of 14 1 Tamara Beatty Peterson Brownstein Hyatt Farber Schreck, LLP 2 100 North City Parkway, Suite 1600 Las Vegas, NV 89106-4614 Email: TPeterson@bhfs.com William F. Sullivan Daniel Scott Carlton Paul Hastings Janofsky & Walker 6 3579 Valley Center Drive San Diego, CA 92130 7 Email: williamsullivan@paulhastings.com 8 Email: scottcarlton@paulhastings.com z Attorneysfor Defendant William P. Weictner 10 DATED this I (C day October, 2012. IN Z12 C Ht- 13 By \\(: 14 15 JJ Qc C° • N 24 14 Case 2:10-cv-00765-KJD-GWF Document 96 Filed 10/16/12 Page 14 of 14