Motion to Consolidate Cases, Motion to Appoint Counsel and to Appoint Individual Investors. Robert A. Brown is appointed lead plaintiff in this action, and Berger & Montague (together with Mr. Gorby as local counsel) is appointed lead counsel. In Vahdat v. NetBank, Inc., No. 07-cv-2631-BBM (N.D. Ga.), the Motion of Robert A. Brown to Consolidate Related Cases, Appoint Lead Plaintiff and Approve Lead Plaintiff's Choice of Counel (Doc. No. 2) is granted. The Motion of the Individual Investors for Consolidation, Appointment of Lead Plaintiffs and Approval of Lead Plaintiff's Selection of Lead Counsel (Doc. No. 3) is granted in part and denied in part. Signed by Judge Beverly B. Martin on 4/21/08. (ekb) (Entered: 04/22/2008)

MOTION to Reopen Case and for Rule 16 Conference with Brief In Support

N.D. Ga.September 25, 2009

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ____________________________________ ) IN RE NETBANK, INC. ) Civil Action No. SECURITIES LITIGATION ) 1:07-cv-2298-BBM ____________________________________) MOTION TO REOPEN CASE AND FOR RULE 16 CONFERENCE Defendants Steven F. Herbert, Douglas K. Freeman, James P. Gross, Thomas H. Muller, Jr., Eula L. Adams, and David W. Johnson, Jr. respectfully move this Court to reopen proceedings in this case and schedule a conference pursuant to Federal Rule of Civil Procedure 16 to address pressing issues that must be resolved promptly in order to facilitate the orderly and efficient conduct of discovery in this case.1 1 Defendants are mindful of the text of the Court’s September 4, 2009 Order stating: “The Plaintiffs may move to reopen this action any time within 30 days of the conclusion of the mediation.” Docket No. 113. Defendants respectfully submit, however, that, in light of the conclusion of the mediation without an agreement to resolve the case and the operative discovery and scheduling deadlines, there is no reason to further delay reopening the proceedings. During a September 22, 2009 telephone call, Defendants communicated this position to Plaintiff and inquired when Plaintiff intended to move to reopen the case. On the call, Plaintiff refused to commit to move to reopen the case prior to the expiration of the thirty-day period referenced in the Court’s September 4 Order. Accordingly, Defendants advised Plaintiff that they would move the Court this week to reopen the case. Just this day, Plaintiff sent a letter changing course and apparently Case 1:07-cv-02298-BBM Document 115 Filed 09/25/2009 Page 1 of 4 The grounds for the motion are set forth in Defendants’ Memorandum in support of the motion, filed contemporaneously herewith. Dated: September 25, 2009. s/ Michael R. Smith Michael R. Smith Georgia Bar No. 661689 Benjamin Lee Georgia Bar No. 443082 KING & SPALDING LLP 1180 Peachtree Street N.E. Atlanta, GA 30309-3521 404.572.4600 (Telephone) 404.572.5100 (Facsimile) mrsmith@kslaw.com blee@kslaw.com Attorneys for Defendants attempting to forestall any action by Defendants with the vague suggestion that he intends to move to reopen the case sometime “next week.” Case 1:07-cv-02298-BBM Document 115 Filed 09/25/2009 Page 2 of 4 CERTIFICATE OF COMPLIANCE Pursuant to Rule 7.1(D) of the Local Rules of the Northern District of Georgia, the undersigned counsel for Defendants hereby certifies that the foregoing document was prepared in a font and point selection approved by this Court and authorized in Local Rule 5.1(C). s/ Michael R. Smith Michael R. Smith Georgia Bar No. 661689 Case 1:07-cv-02298-BBM Document 115 Filed 09/25/2009 Page 3 of 4 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following attorneys of record: Michael J. Gorby mgorby@gorbypeters.com Mary Donne Peters mpeters@gorbypeters.com GORBY, PETERS, & ASSOCIATES, P.C. Two Ravinia Drive, Suite 1500 Atlanta, GA 30346-2104 Merrill G. Davidoff mdavidoff@bm.net Michael Dell’Angelo mdellangelo@bm.net Lane L. Vines lvines@bm.net BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103-6365 Attorneys for Lead Plaintiff Robert A. Brown This 25th day of September, 2009. s/ Michael R. Smith Michael R. Smith Georgia Bar No. 661689 Attorney for Defendants Steven F. Herbert, Douglas K. Freeman, James P. Gross, Thomas H. Muller, Jr., Eula L. Adams, and David W. Johnson, Jr. Case 1:07-cv-02298-BBM Document 115 Filed 09/25/2009 Page 4 of 4