Daniel C. Girard (State Bar No. 114826) Stewart H. …securities.stanford.edu/filings-documents/1040/BAC_01/201089_r02x... · OBJECTION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE

Daniel C. Girard (State Bar No. 114826) Stewart H. Foreman (State Bar No. 61149)1 [email protected] [email protected] Jonathan K. Levine (State Bar No. 220289) FREELAND COOPER & FOREMAN [email protected]

Aaron M. Sheanin (State Bar No. 214472) 150 Spear Street, Suite 18003 [email protected] San Francisco, CA 941044 Christina H. C. Sharp (State Bar No. 245869) Telephone: (415) 541-0200

[email protected] Facsimile: (415) 495-4332GIRARD GIBBS LLP

5 601 California Street, Suite 1400 Edward S. Wactlar (ESW-4978)San Francisco, CA 94108 ewactlar mwwellp' com6 Telephone: (415) 981-4800 @Facsimile: (415) 981-4846 Jill T. Braunstein (JTB-00237)

7 [email protected] Counsel for Plaintiffs and the Proposed MOOMJIAN, WAITE, WACTLAR

8 Class & COLEMAN, LLP

9 100 Jericho Quadrangle, Suite 225Jericho, NY 11753

10 Telephone: (516) 937-5900Facsimile: (516) 937-5050

11

12Attorneys for PlaintiffAeroflex, Inc.

13

14 UNITED STATES DISTRICT COURT

15FOR THE NORTHERN DISTRICT OF CALIFORNIA

16 )

17 In re Bank of America Corp. Auction Rate ) MDL No. 3:09-md-2014 (JSW)Securities Marketing Litigation )

18 ) PLAINTIFFS’ OBJECTIONS TO) DEFENDANTS’ REQUEST FOR

19This Document Relates to: ) JUDICIAL NOTICE AND

) DECLARATIONS OF STEPHEN R.20 Bondar v. Bank of America Corp., et al.

) MOONEY AND JASON GLIDDEN

21 No. C 08-2599 (JSW) )22 Aeroflex Inc. v. Bank ofAmerica Corp., et al. )

23 )No. C 09-5245 (JSW) )

24 )

25

26

27

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MDL No. 3:09-md-2014 (JSW) Case Nos. C 08-2599 (JSW) and C 09-5245 (JSW)OBJECTION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE AND DECLARATIONS OF MOONEY AND GLIDDEN

1 I. INTRODUCTION

2 Lead Plaintiffs N.R. Hamm Quarry, Inc. (“Hamm”) and Ed O’Gara in the class action and

3 plaintiff Aeroflex, Inc. (“Aeroflex”) in the individual action (collectively, “Plaintiffs”) object to

4 Exhibits 3-6, 15-19, 21 and 24-28 to Bank of America Corporation’s (“BAC”) and Banc of America

5 Securities LLC’s (“BAS”) (collectively, “Defendants”) request for judicial notice (“RJN”) and the

6 declarations of Stephen R. Mooney and Jason Glidden filed in support of Defendants’ motion to

7 dismiss Plaintiffs’ Consolidated Class Action And Individual Complaint For Violations Of Federal

8 Securities Laws (“Complaint”). (See Dkt. Nos. 122, 125 and 136-30.) Exhibits 3-6, 15-19, 21 and 24-

9 28 to the RJN are news media articles that are not relevant to the Complaint or that pertain to facts that

10 are subject to reasonable dispute. As such, judicial notice of those articles is not properly taken. 1 The

11 Mooney and Glidden declarations are extrinsic evidence that is not properly considered on a motion to

12 dismiss for failure to state a claim.

13 II. ARGUMENT

14 A. Judicial Notice Of The News Articles Is Not Properly Taken

15 Rule 201 of the Federal Rules of Evidence permits the taking of judicial notice of “facts

16 ‘capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be

17 questioned.’” Doe v. Willits Unified Sch. Dist., 2010 U.S. Dist. LEXIS 33152, at *6 (N.D. Cal. Mar. 8,

18 2010) (White, J.). Judicial notice, however, is not properly taken of facts that are not relevant to

19 matters before a court. See Chatman v. Early, 2010 U.S. App. LEXIS 15174, at *4 (9th Cir. July 22,

20 2010) (“The district court did not abuse its discretion by denying . . . requests for judicial notice where

21 the news articles at issue did not contain adjudicative facts relevant to the parties’ dispute.”); Santa

22 Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006) (declining

23 to take judicial notice of documents that were not relevant to the resolution of the appeal). A court may

24

1 Plaintiffs do not object to the remaining exhibits, Nos. 1-2, 7-14, 20, 22-23, to the RJN, except25 that Aeroflex objects to Exhibits 1, 2, and 20. These documents pertain to transactions that Aeroflex did26 not participate in. Defendants refer to these documents in connection with portions of the Complaint

that are not part of Aeroflex’s pleading, and were not adopted or incorporated by Aeroflex in its claims27 contained in the Complaint. Accordingly, as to Aeroflex, Exhibits 1, 2 and 20 are irrelevant and its

claims did not “necessarily rely” on them.

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MDL No. 09-2014 (JSW); Case Nos. C 08-2599 (JSW) and C 09-5245 (JSW)OBJECTION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE AND DECLARATIONS OF MOONEY AND GLIDDEN

1 not take judicial notice of facts recited in extraneous documents or a party’s characterization of them, if

2 they are subject to a reasonable dispute. See Swartz v. KPMG LLP, 476 F.3d 756, 758 n.3 (9th Cir.

3 2007) (citing Fed. R. Evid. 201(b)); Willits Unified Sch. Dist., 2010 U.S. Dist. LEXIS 33152, at *6

4 (citing Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001) and Fed. R. Evid 201(b));

5 Copple v. Astrella & Rice, P.C., 442 F. Supp. 2d 829, 835 (N.D. Cal. 2006) (White, J.) (same); United

6 States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003) (“The underlying facts relevant to the adjudication

7 of this case . . . do not remotely fit the requirements of Rule 201.”).

8 Here, the news articles put forward by Defendants are not relevant to the parties’ dispute. None

9 of these articles mention BAC, BAS, or the auction rate securities for which BAS served as broker-

10 dealer. Moreover, as is clear from Defendants’ index of exhibits, several articles address events that

11 occurred years before (RJN Ex. 21) or significantly after (RJN Exs. 24-25, 27-28) any relevant time

12 period alleged in the Complaint. As such, Defendants’ request for judicial notice of these articles

13 should be denied for lack of relevance. See Chatman, 2010 U.S. App. LEXIS 15174, at *4; Santa

14 Monica Food Not Bombs, 450 F.3d at 1025 n.2; Calpine, 288 F. Supp. 2d at 1076-77.

15 Defendants improperly request that the Court take judicial notice of the factual accounts

16 contained in the challenged exhibits to support their argument that broader international economic

17 conditions, and not Defendants’ violations of federal securities law, caused Plaintiffs’ injuries. The

18 Complaint does not necessarily rely on these articles, and Plaintiffs’ opposition to Defendants’ motion

19 to dismiss specifically disputes the “facts” purportedly contained within them. Judicial notice is

20 therefore not proper. See Willits Unified Sch. Dist., 2010 U.S. Dist. LEXIS 33152, at *6; Copple, 442

21 F. Supp. 2d at 835; Ritchie, 342 F.3d at 909; see also In re Calpine Corp. Secs. Litig., 288 F. Supp. 2d

22 1054, 1076-77 (N.D. Cal. 2003) (Armstrong, J.) (denying request for judicial notice: “It is difficult to

23 understand how documents not referenced in a complaint and on which the allegations of the complaint

24 do not necessarily rely can be relevant to the Court’s determination [of a motion to dismiss under the

25 PSLRA].”).

26 Moreover, the articles are not a source of information that is beyond reasonable dispute.

27 Defendants’ characterization of them as showing that Plaintiffs’ losses were caused by broader

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MDL No. 09-2014 (JSV); Case Nos. C 08-2599 (JSV) and C 09-5245 (JSV)OBJECTION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE AND DECLARATIONS OF MOONEY AND GLIDDEN

1 financial and economic events is belied by the articles themselves. As detailed in the examples listed

2 below, the articles contain contradictory and incomplete accounts of the conditions in the auction-rate

3 securities market:

4 n Exhibit 3 is a March 24, 2005 article from the Wall Street Journal. That article does not

5 mention BAS, but does note that accounting firms stopped treating auction rate securities as “cash

6 equivalents,” and that the SEC was investigating “the possibility that some brokers who run

7 auctions may have tipped their client to other investors’ bids.” That conduct is not at issue here.

8 Defendants twice cite the following language from this article in support of their motion to

9 dismiss—“investors rely on the broker-dealers who conduct the auctions to provide liquidity” (Def.

10 Mem. 2 at 2, 9)—but they fail to mention that the sentence ends with the phrase, “rather than the

11 issuers themselves.” (RJN Ex. 3.) At best, this sentence conveyed to the market that broker-

12 dealers “provided liquidity” by running the auctions, because the issuers did not facilitate trades

13 themselves (as with an open-ended mutual fund), and the securities did not trade on an exchange

14 (as with common stock). Nothing about this sentence suggested that BAS systematically placed

15 support bids for the full amount in every auction or that the market would collapse once it stopped

16 doing so. Although the article did not mention support bids at all, it did convey that the auction

17 rate securities market was efficient: “The auction mechanism is designed to reflect, in the dividend

18 or interest rates, all market developments. In the absence of manipulation, it’s a responsive

19 security.” (Id.)

20 n Exhibit 4, a July 27, 2006 article in the Wall Street Journal, stated both that the Big

21 Four accounting firms stopped classifying auction rate securities as cash-equivalents, and that “they

22 are auctioned in frequent batches, helping to create a deep market for the securities. Given their

23 liquidity, most companies have classified the securities as cash.” (RJN Ex. 4 (emphasis added).)

24 n Exhibit 15, an August 13, 2007 article in the Wall Street Journal, stated: “The market

25 for asset-backed securities, where consumer debt from home loans to credit cards is packaged, has

26

27 2 “Def. Mem.” refers to Defendants’ Memorandum Of Points And Authorities in support of theirmotion to dismiss.

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1 been hit hard by the fallout in the subprime-mortgage market. ... Still, with the American consumer

2 holding up relatively well, the parts of this market backed by nonhousing-related loans remain in

3 good shape.” (RJN Ex. 15.) It is unclear how this article supports any proposition by Defendants,

4 as the auction rate securities at issue here, including the securities purchased by Plaintiffs, were

5 backed by student loans or municipal bonds, not subprime mortgages. The article suggests that the

6 market for those types of debt “remain[ed] in good shape” in mid-August 2007. (Id.)

7 n Exhibit 18, a September 17, 2007 article in Financial Week, noted the August 2007

8 auction failures involving select securities tied to subprime mortgages. The article simultaneously

9 informed the market: “Auction failures are rare. The last major failure occurred in 2002....

10 [L]ately buyers have avoided auction-rate securities that are linked to anything with the taint of

11 subprime mortgages, including those backing collateralized debt obligations and commercial

12 paper.” (RJN Ex. 18 (emphasis added).) Nothing in this article placed investors on notice of

13 weaknesses in the market for securities backed by student loans or government bonds. In fact, the

14 article suggested that analysts and broker-dealers continued to encourage investment in auction rate

15 securities: “Clearly, however, banks are not afraid to market such securities to investors. In a

16 research report last month, Merrill strategist Kevin J. Conery acknowledged that several auctions

17 failed at a few broker-dealers, but wrote that ‘turmoil in the auction market should lead to

18 opportunities for short-term investing.’” (Id.)

19 n Exhibit 19 is an October 5, 2007 article in the Wall Street Journal. While that article

20 notes, “parts of this $300 billion market froze up because some of the securities are backed by

21 mortgages and other assets hit by the global credit crunch,” it also states, “some investors have

22 already started to step back into the auction-rate securities market in the last week or so.” (RJN Ex.

23 19.) The article cannot be read conclusively to say that the market for all auction rate securities

24 (including student loans and municipal bonds) would collapse as a result of the credit crisis, let

25 alone that investors should have recognized as much four months before the vast majority of the

26 auctions failed.

27

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1 The factual accounts contained in the articles and Defendants’ characterizations of them are the subject

2 of a reasonable dispute and go to the underlying facts relevant to the adjudication of this case. As

3 such, judicial notice is not proper. See Swartz, 476 F.3d at 758 n.3; Ritchie, 342 F.3d at 909.

4 The authorities Defendants rely upon to support their request are factually distinguishable. In

5 In Re Am. Funds Sec. Litig., 556 F. Supp. 2d 1100, 1107 (C.D. Cal. 2008), the court took judicial

6 notice of news articles that discussed the same transactions and defendants at issue in the complaint.

7 The court did so because it concluded that the articles put plaintiff on inquiry notice for purposes of the

8 applicable statutes of limitation. In Contreras v. Metro. Life Ins. Co., 2007 U.S. Dist. LEXIS 90295, at

9 *6 (N.D. Cal. Nov. 29, 2007) (White, J.), this Court took judicial notice of a defendant’s company

10 profile from a recognized industry insurance report, AM Best’s Insurance Report, for the purpose of

11 establishing the defendant’s principal place of business and state of incorporation. Heliotrope Gen.,

12 Inc. v. Ford Motor Co., 189 F.3d 971 (9th Cir. 1999) and Ritter v. Hughes Aircraft Co., 58 F.3d 454

13 (9th Cir. 1995) involved similar discrete factual issues. See Heliotrope, 189 F.3d at 976 (news articles

14 reporting that defendant holding company formed for tax purposes); Ritter, 58 F.3d at 457-58 (news

15 article reporting lay-off at major aerospace employer). None of these cases suggest that judicial notice

16 of the challenged documents is appropriate here.

17 Accordingly, Plaintiffs object to and oppose Defendants’ request for judicial notice of Exhibits

18 3-6, 15-19, 21 and 24-28 on the following grounds:

19EXHIBIT PLAINTIFFS’ OBJECTIONS

20 No. 3 -- March 24, 2005 Wall Street Journal The information in the article is irrelevant to(“WSJ”) article re: accounting treatment of the allegations of the Complaint, which do not

21 ARS as short–term investments and not cash necessarily rely on it. The information in theequivalents. article and Defendants’ characterization thereof

22 is subject to reasonable dispute.

23No. 4 – July 27, 2006 WSJ article re: treating The information in the article is irrelevant to

24 ARS as short term debt and not cash the allegations of the Complaint, which do notequivalents. “necessarily rely” on it. The information in the

25 article and Defendants’ characterization thereof

26is subject to reasonable dispute.

27No. 5 – September 19, 2005 Bond Buyer The information in the article is irrelevant toarticle re: broker-dealer intervention in ARS the allegations of the Complaint, which do not

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1 EXHIBIT PLAINTIFFS’ OBJECTIONS

auctions. necessarily rely on it. The information in the

2 article and Defendants’ characterization thereofis subject to reasonable dispute.

3

4 No. 6 – March 25, 2005 CFO.com article re: The information in the article is irrelevant to

ARS auctions conducted by broker-dealers, the allegations of the Complaint, which do not

5 not issuers. necessarily rely on it. The information in thearticle and Defendants’ characterization thereof


7 No. 15 – August 13, 2007 WSJ article re: The information in the article is irrelevant toasset backed securities “hit hard” by fallout in the allegations of the Complaint, which do not

8 subprime mortgage market. necessarily rely on it. Plaintiffs did not

9 purchase subprime-backed auction ratesecurities. The information in the article and

10 Defendants’ characterization thereof is subjectto reasonable dispute.

11No. 16 – December 18, 2007 Dow Jones Wire The information in the article is irrelevant to

12 re: “credit crunch” impact on auctions. the allegations of the Complaint, which do not

13necessarily rely on it. The information in thearticle and Defendants’ characterization thereof


15 No. 17 – December 19, 2007 Business Wire The information in the article is irrelevant toarticle re: lack of liquidity in credit markets, the allegations of the Complaint, which do not

16 and auction rate spreads widen. necessarily rely on it. The information in the

17article and Defendants’ characterization thereofis subject to reasonable dispute.

18No. 18 – September 17, 2007 Financial Week The information in the article is irrelevant to

19 article re: risk of failure of auctions for ARS the allegations of the Complaint, which do notnecessarily rely on it. The information in the

20 article and Defendants’ characterization thereof

21is subject to reasonable dispute.

22 No. 19 – October 5, 2007 WSJ article re ARS The information in the article is irrelevant tomarket affected by “global credit crunch” the allegations of the Complaint, which do not

23 necessarily rely on it. The information in thearticle and Defendants’ characterization thereof


25 No. 21 – October 9, 1998 Factiva article re: The information in the article is irrelevant to

26 Student loan back auction rate bonds. the allegations of the Complaint, which do notnecessarily rely on it. The article describes

27 events that purportedly occurred nine yearsbefore the events complained of by Plaintiffs.

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1 EXHIBIT PLAINTIFFS’ OBJECTIONS

The information in the article and Defendants’

2 characterization thereof is subject to reasonabledispute.

3

4 No. 24 – March 15, 2010 Factiva article re: The information in the article is irrelevant to

MOHELA bonds and credit rating. the allegations of the Complaint, which do not

5 necessarily rely on it. The article describesevents that occurred more than two years after

6 the events complained of by Plaintiffs. Theinformation in the article and Defendants’

7 characterization thereof is subject to reasonable

8 dispute.

9 No. 25 – October 23, 2008 CNNMonday.com The information in the article is irrelevant toarticle re: Greenspan “shocked” by “once in a the allegations of the Complaint, which do not

10 century credit tsunami.” necessarily rely on it. The article describesevents that occurred more than two years after

11 the events complained of by Plaintiffs. Theinformation in the article and Defendants’

12 characterization thereof is subject to reasonable

13 dispute.

14 No. 26 – August 17, 2007 WSJ article re: The information in the article is irrelevant toshort term credit problems. the allegations of the Complaint, which do not

15 necessarily rely on it. The information in thearticle and Defendants’ characterization thereof


17 No. 27 – March 17, 2008 Bloomberg article The information in the article is irrelevant to

18 re: Sale of Bear Stearns. the allegations of the Complaint, which do notnecessarily rely on it. The article describes

19 events that occurred after the eventscomplained of by Plaintiffs. The information

20 in the article and Defendants’ characterization

21 thereof is subject to reasonable dispute.

22 No. 28 – September 15, 2008 Bloomberg The information in the article is irrelevant toarticle re: bankruptcy filings by Lehman the allegations of the Complaint, which do not

23 Brothers Holdings, Inc. necessarily rely on it. The article describesevents that occurred after the events

24 complained of by Plaintiffs. The information

25 in the article and Defendants’ characterizationthereof is subject to reasonable dispute.

26

27

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B. The Mooney And Glidden Declarations Are Beyond The Scope Of The1 Consolidated Complaint And Should Be Excluded

2 In deciding a motion to dismiss under Ruler 12(b)(6), the Court’s inquiry is “limited to the

3 allegations in the complaint, which are accepted as true and construed in the light most favorable to the

4 plaintiff.” Agbabiaka v. HSBC Bank USA Nat’l Ass’n, 2010 U.S. Dist. LEXIS 38609, at *8 (N.D. Cal.

5 Apr. 20, 2010) (White, J.) (citing Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008)).

6 As such, the Court should exclude the Mooney and Glidden declarations from its consideration of

7 Defendants’ motion. See Aquair Ventures, LLC v. Gulf Stream Coach, Inc., 2008 U.S. Dist. LEXIS

8 78811, at *7 (N.D. Cal. Sept. 4, 2008) (Conti, J.) (“With limited exceptions, the Court cannot consider

9 material beyond the pleadings in ruling on a Rule 12 motion. . . . The Court therefore declines to

10 consider the declarations submitted . . . .”); accord Vandyke v. Northern Leasing Sys., 2009 U.S. Dist.

11 LEXIS 95757, at * 14 n.4 (E.D. Cal. Oct. 14, 2009).

12 The ostensible reason that Defendants submit the Mooney and Glidden declarations is to

13 authenticate Exhibits 9-14 of the RJN. But, the declarations offer improper testimony interpreting and

14 explaining those documents, and the declarants purport to present direct evidence about Defendants’

15 defenses that it outside of the Complaint and unrelated to the RJN itself.

16 Exhibits 9-11 purport to be emails from Mr. Mooney to Aeroflex attaching an Excel

17 spreadsheet of auction rate securities available for purchase by Aeroflex in specific auctions. Exhibits

18 12-14 purport to be similar emails from Mr. Glidden to Hamm, likewise attaching Excel spreadsheets.

19 The declarants state that each document provides “a schedule of ARS auctioning that day, disclosures

20 about ARS, and BAS’s ARS inventory as of that date.” (Mooney Decl., ¶¶ 3-5; Glidden Decl., ¶¶ 3-5.)

21 Plaintiffs object to these characterizations and descriptions as containing improper extrinsic facts.

22 In addition, the declarants testify as to “the par value of BAS’s total ARS inventory” on the date

23 of each email, which they claim “any recipient could have calculated by using Microsoft Excel’s

24 AutoSum function to add inventory levels ... of the ‘INVENTORY’ tab.” (Mooney Decl., ¶¶ 3-5;

25 Glidden Decl., ¶¶ 3-5.) As explained in Plaintiffs’ opposition to Defendants’ motion to dismiss, these

26 emails have no relevance to Plaintiff O’Gara’s claim, as it is beyond dispute that BAS never sent such

27 emails to him or other investors who bought BA ARS from BAS’s distributing firms.

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1 The meaning of the term “inventory” as used in these declarations is in dispute and is extrinsic

2 to the Complaint. The declarants do not testify as to whether the “inventory” included only the auction

3 rate securities for which BAS was the owner and broker-dealer, or whether the inventory included both

4 securities that BAS owned and securities that BAS sold for other broker-dealers. Certain notations (for

5 example, items that say “Dealer”) suggest that BAS merely was a third-party seller, though not an

6 owner or market maker, for much of its “inventory.” The distinction is critical. Auction rate securities

7 that BAS owned—and could not sell—went to its balance sheet. Auction rate securities that BAS

8 simply sold for others presumably never appeared on its balance sheet and were returned to their

9 owners upon a failed auction or termination of BAS’s auction rate securities business.

10 Moreover, Defendants fail to cite any legal authority suggesting that investors like Aeroflex and

11 Hamm were required to tally up BAS’s purported “inventory,” track it over several months, and

12 recognize its significance in light of BAS’s undisclosed internal inventory limits and the history of

13 BAS’s participation in the auction rate securities market. It is unclear from the declarations whether or

14 when the declarants sent additional similar emails to Plaintiffs. The earliest “inventory” email attached

15 to the RJN is dated August 24, 2007 (RJN Ex. 12), following the initial auction failures that month.

16 Vithout historical data preceding those failures, investors had no context to understand whether BAS

17 had regularly achieved the heightened inventory levels purported to be identified in these emails, or

18 whether the extent of BAS’s inventory was a one-time phenomenon, representing greater risk.

19 Defendants may not attempt, as they do in their motion to dismiss, to bolster their arguments

20 concerning Plaintiffs’ purported knowledge or understanding of BAS’s inventory levels based on

21 testimony outside the four-corners of the Complaint that is both extraneous and incomplete. Because,

22 the “facts” that Mr. Mooney and Mr. Glidden purport to establish in their declarations are in dispute

23 and beyond the scope of the Complaint, they may not be considered on a motion to dismiss under Rule

24 12(b)(6).

25 III. CONCLUSION

26 For all of the foregoing reasons, Plaintiffs respectfully request that the Court deny Defendants’

27 request for judicial notice as to Exhibits 3-6, 15-19 and 21-24. Plaintiffs further request that the Court

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1 decline to consider the Mooney declaration (including the testimony and argument presented at 2:2-5,

2 11-14, 21-24, and page 3:1-2) and the Glidden declaration (including the testimony and argument

3 presented at 2: 4-7, 13-15, 21-24, and page 3:1-2).

4 In the alternative, should both Defendants persist in basing their motion on the disputed exhibits

5 and declarations and the Court be inclined not to exclude these materials, Plaintiffs respectfully request

6 that Defendants’ motion be continued and that Plaintiffs be granted leave to conduct discovery regarding

7 the factually disputed matters discussed herein. See Fed. R. Civ. P. 12(d), 56(f).

8

9 Dated: August 9, 2010 Respectfully submitted,

10 GIRARD GIBBS LLP

11

12By: /s/ Aaron M. Sheanin

Aaron M. Sheanin

13 Daniel C. Girard

14Jonathan K. LevineChristina H. C. Sharp

15601 California Street, 14 th FloorSan Francisco, CA 94108

16Telephone: (415) 981-4800Facsimile: (415) 981-4846

17 Lead Counsel for Plaintiffs and the Proposed Class

18

19FREELAND COOPER & FOREMAN LLP

20By: /s/ Stewart H. Foreman

21 Stewart H. Foreman

22 150 Spear Street, Suite 1800San Francisco, CA 94104

23 Telephone: (415) 541-0200

24Facsimile: (415) 495-4332

25 MOOMJIAN, WAITE, WACTLAR& COLEMAN, LLP

26 Edward S. WactlarJill T. Braunstein

27 100 Jericho Quadrangle, Suite 225

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1 Jericho, NY 11753

Telephone: (516) 937-5900

2 Facsimile: (516) 937-5050

3 Attorneys for Plaintiff Aeroflex, Inc.

4

5 In accordance with General Order 45 of the United States District Court for the Northern District

6 of California, I attest that concurrence in the filing of this document has been obtained from Stewart H.

7 Foreman.

8Dated: August 9, 2010 By: /s/ Aaron M. Sheanin

9 Aaron M. Sheanin

10

11 Additional Counsel for Plaintiffs:

12 Norman E. SiegelSTUEVE SIEGEL HANSON LLP

13 460 Nichols Road, Suite 200Kansas City, MO, 64112

14 Telephone: (816) 714-7100Facsimile: (816) 714-7101

15Christopher A. Seeger

16 Stephen A. WeissDavid R. Buchanan

17 SEEGER WEISS LLPOne William Street

18 New York, NY 10004Telephone: (212) 584-0700

19 Facsimile: (212) 584-0799

20 Jerome M. CongressKent A. Bronson

21 MILBERG LLPOne Pennsylvania Plaza

22 New York, NY 10019Telephone: (212) 594-5300

23 Facsimile: (212) 273-4387

24 Jeff WestermanMILBERG LLP

25 One California Plaza300 South Grand Avenue, Suite 3900

26 Los Angeles, CA 90071-3172Telephone: (213) 617-1200

27 Facsimile: (213) 617-1975

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George A. Shohet1 LAW OFFICES OF GEORGE A. SHOHET2 A Professional Corporation

245 Main Street, Suite 3103 Venice, CA 90291

Telephone: (310) 452-3176

4Facsimile: (310) 452-2270

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1 CERTIFICATE OF SERVICE

2 I, Aaron M. Sheanin, hereby certify that on August 9, 2010, I caused the foregoing document to

3be filed electronically with the United States District Court for the Northern District of California’s

4through the Court’s mandated ECF service. Counsel of record are required by the Court to be registered

56 e-filers, and as such are automatically e-served with a copy of the document(s) upon confirmation of e-

7 filing.

8 I further certify that I caused this document to be forwarded to the following designated Internet

9 site at: http://securities.stanford.edu/.

10I declare under penalty of perjury that the foregoing is true and correct. Executed this 9th day of

11August, 2010 at San Francisco, California.

12

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14 /s/ Aaron M. Sheanin

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CERTIFICATE OF SERVICE

Documents

Daniel C. Girard (State Bar No. 114826) Stewart H. …securities.stanford.edu/filings-documents/1040/BAC_01/201089_r02x... · OBJECTION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE