Facebook Motion

7/31/2019 Facebook Motion

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BEFORE THE UNITED STATES JUDICIAL PANEL ON

MULTIDISTRICT LITIGATION

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IN RE FACEBOOK, INC. IPOSECURITIES & DERIVATIVE

LITIGATION

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MDL NO. ____

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DEFENDANTS BRIEF IN SUPPORT OF THEIR MOTION

TO TRANSFER ACTIONS TO THE SOUTHERN DISTRICT OF

NEW YORK PURSUANT TO 28 U.S.C. 1407 FOR COORDINATED

AND/OR CONSOLIDATED PRETRIAL PROCEEDINGS

WILLKIE FARR & GALLAGHER LLPRichard D. Bernstein ([email protected])Tariq Mundiya ([email protected])Todd G. Cosenza ([email protected])Sameer Advani ([email protected])787 Seventh AvenueNew York, New York 10019Telephone: (212) 728-8000Facsimile: (212) 728-8111

KIRKLAND & ELLIS LLPAndrew B. Clubok ([email protected])Brant W. Bishop, P.C.

([email protected])601 Lexington AvenueNew York, New York 10022Telephone: (212) 446-4836Facsimile: (212) 446-4900

Thomas D. Yannucci([email protected])

Susan E. Engel ([email protected])655 15th Street, NWWashington, D.C. 20005Telephone: (202) 879-5000Facsimile: (202) 879-5200

Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Sheryl K. Sandberg,

David A. Ebersman, David M. Spillane, Marc L. Andreessen, Erskine B. Bowles,

James W. Breyer, Donald E. Graham, Reed Hastings, and Peter A. Thiel

DAVIS POLK & WARDWELL LLPJames P. Rouhandeh ([email protected])

Charles S. Duggan ([email protected])Andrew Ditchfield ([email protected])450 Lexington AvenueNew York, New York 10017Telephone: (212) 450-4000Facsimile: (212) 701-5800

Attorneys for Defendants Morgan Stanley & Co. LLC, J.P.

Morgan Securities LLC, and Goldman, Sachs & Co.

Case Pending No. 76 Document 1-1 Filed 06/14/12 Page 1 of 24


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TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT .....................................................................................................1BACKGROUND .............................................................................................................................5

A. Factual Background .................................................................................................5B. Litigation Related To The IPO ..............................................................................10

ARGUMENT .................................................................................................................................12I. THE ACTIONS SHOULD BE CENTRALIZED IN ONE DISTRICT. ...........................12II. THE ACTIONS SHOULD BE CENTRALIZED IN THE SOUTHERN DISTRICT OF

NEW YORK. .....................................................................................................................14A. Transfer To The Southern District Of New York Will Best

Facilitate Efficient Discovery In The Actions. ......................................................14B. Transfer To The Southern District Of New York Will Ensure

Consistent Rulings On Critical Issues....................................................................17C. The Southern District Of New York Has Distinct Strengths For

Handling Complex Multidistrict Securities Litigation. .........................................18CONCLUSION ..............................................................................................................................19



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TABLE OF AUTHORITIES

Cases Page

City of Omaha, Neb. Civilian Emps. Ret. Sys. v. CBS Corp.,No. 11-2575, 2012 WL 1624022 (2d Cir. May 10, 2012) .................................................17

Dura Pharm., Inc. v. Broudo,544 U.S. 336 (2005) ...........................................................................................................14

In re Adelphia Commcns Corp.,273 F. Supp. 2d 1353 (J.P.M.L. 2003) ...............................................................................18

In re AOL Time Warner Sec. Litig.,235 F. Supp. 2d 1380 (J.P.M.L. 2002) ...............................................................................12

In re Bank of Am. Corp., Sec., Derivative & ERISA Litig.,

626 F. Supp. 2d 1327 (J.P.M.L. 2009) ...............................................................................18

In re Bank of N.Y. Mellon Corp. Foreign Exchange Transactions Litig.,MDL No. 2335, 2012 U.S. Dist. LEXIS 53533 (J.P.M.L. Apr. 16, 2012) ........................13

In re The Bear Stearns Cos., Inc. Sec., Derivative & ERISA Litig.,572 F. Supp. 2d 1377 (J.P.M.L. 2008) ...............................................................................12

In re Cygnus Telecomm. Tech., LLC,177 F. Supp. 2d 1375 (J.P.M.L. 2001) ...............................................................................13

In re Fannie Mae Sec. & ERISA Litig.,598 F. Supp. 2d 1374 (J.P.M.L. 2009) ...............................................................................18

In re Fed. Home Loan Mortg. Corp. (Freddie Mac) Sec. Litig.,643 F. Supp. 2d 1378 (J.P.M.L. 2009) .........................................................................12, 18

In re Global Crossing Ltd. Sec. & ERISA Litig.,223 F. Supp. 2d 1384 (J.P.M.L. 2002) ...............................................................................18

In re IPO Sec. Litig.,277 F. Supp. 2d 1375 (J.P.M.L. 2003) ...............................................................................18

In re Janus Mut. Funds Inv. Litig.,310 F. Supp. 2d 1359 (J.P.M.L. 2004) ...................................................................12, 13, 14

In re Mun. Derivatives Antitrust Litig.,560 F. Supp. 2d 1386 (J.P.M.L. 2008) .........................................................................16, 18

In re Res. Exploration, Inc. Sec. Litig.,483 F. Supp. 817 (J.P.M.L. 1980) ......................................................................................14



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In re Reserve Fund Sec. & Derivative Litig.,598 F. Supp. 2d 1370 (J.P.M.L. 2009) .........................................................................11, 12

In re Revlon Inc. Sholders Litig.,990 A.2d 940 (Del. Ch. 2010)............................................................................................12

In re Superior Offshore Intl, Inc. Sec. Litig.,Civ. A. No. 08-0687, 2010 WL 2305742 (S.D. Tex. June 8, 2010) ..................................17

In re WorldCom, Inc. Sec. & ERISA Litig.,226 F. Supp. 2d 1352 (J.P.M.L. 2002) ...................................................................12, 15, 18

In re Xerox Corp. Sec. Litig.,211 F. Supp. 2d 1382 (J.P.M.L. 2002) ...............................................................................13

N.J. Carpenters Health Fund v. Rali Series 2006-QO1 Trust,No. 11-1683, 2012 WL 1481519 (2d Cir. Apr. 30, 2012) .................................................17

Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,259 F.3d 154 (3d Cir. 2001)...............................................................................................13

Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc.,552 U.S. 148 (2008) ...........................................................................................................18

Statutes

28 U.S.C. 1407(a) .......................................................................................................................12

Other Authorities

David A. Westenberg,Initial Public Offerings: A Practical Guide to Going Public,(PLI Sept. 2011) ...................................................................................................................5

Charles J. Johnson, Jr. & Joseph McLaughlin, Corporate Finance and the Securities Laws,(4th ed. 2011 Supp.) .............................................................................................................9

Manual of Complex Litigation (4th ed.) ........................................................................................19

Securities Offering Reform, S.E.C. Release No. 33-8591, Release No. 34-52056,70 Fed. Reg. 44,722 (Aug. 3, 2005).....................................................................................8



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Defendants Facebook, Inc. (Facebookor the Company), Mark Zuckerberg,

Sheryl K. Sandberg, David A. Ebersman, David M. Spillane, Marc L. Andreessen, Erskine B.

Bowles, James W. Breyer, Donald E. Graham, Reed Hastings, Peter A. Thiel (collectively, the

Facebook Defendants), and the three lead underwriter defendants (collectively, the Lead

Underwriter Defendants)1 respectfully submit this brief in support of their motion to transfer

pursuant to 28 U.S.C. 1407 the actions set forth in the Schedule of Actions2(the Actions) to

the Southern District of New York for consolidated and/or coordinated pretrial proceedings.

PRELIMINARY STATEMENT

More than 40 lawsuits in various federal and state courts have been filed in the

last three weeks concerning Facebooks May 18, 2012 initial public offering (the IPO). This

multiplicity of proceedings makes this the quintessential case for centralized MDL treatment.

All of the factors enunciated by this Panel overwhelmingly point to the Southern District of New

York as the most appropriate, convenient, and efficient forum to centralize pretrial proceedings

in the civil litigation concerning the IPO.

1 The three Lead Underwriter Defendants are: Morgan Stanley & Co. LLC, J.P. MorganSecurities LLC, and Goldman, Sachs & Co. The other underwriters, who are jointly representedwith the Lead Underwriter Defendants and are named as defendants in various combinations incertain of the Actions, concur in this motion to transfer. Those other underwriter defendants are:Merrill Lynch, Pierce, Fenner & Smith Inc., Barclays Capital Inc., Allen & Company LLC,Citigroup Global Markets Inc., Credit Suisse Securities (USA), LLC, Deutsche Bank SecuritiesInc., RBC Capital Markets, LLC, Wells Fargo Securities, LLC, Blaylock Robert Van LLC, BMOCapital Markets Corp., C.L. King & Associates, Inc., Cabrera Capital Markets, LLC, CastleOakSecurities, L.P., Cowen and Company, LLC., E*TRADE Securities LLC, Ita BBA USASecurities, Inc., Lazard Capital Markets LLC, Lebenthal & Co., LLC, Loop Capital MarketsLLC, M.R. Beal & Company, Macquarie Capital (USA) Inc., Muriel Siebert & Co., Inc.,Oppenheimer & Co. Inc., Pacific Crest Securities LLC, Piper Jaffray & Co., Raymond James &Associates, Inc., Samuel A. Ramirez & Co., Inc., Stifel, Nicolaus & Co., Inc., The WilliamsCapital Group, L.P., and William Blair & Company, L.L.C. (together with the Lead UnderwriterDefendants, the Underwriter Defendants).

2 Submitted concurrently herewith is a Schedule of Actions that includes the informationrequired by Rule 6.1(b)(ii) of the Rules of Procedure of the Judicial Panel on MultidistrictLitigation.



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Within days of the IPO, shareholder class action and derivative lawsuits were

filed in the Southern District of New York, the Northern District of California, and California

State court, against Facebook, its directors, certain of its officers, and the Underwriter

Defendants.3 These lawsuits purport to challenge certain disclosures in advance of Facebooks

IPO. In particular, on May 9, 2012, Facebook publicly disclosed in writing that, based on early

data in the second quarter, the trend had continued of the growth in daily average Facebook users

outpacing growth in the number ofads delivered to its users. Facebooks May 9 disclosure

identified certain product decisions and the increased usage of mobile devices as likely causes

for this continued trendrisk factors that Facebook had also disclosed in its initial Registration

Statement and Prospectus on February 1, 2012, and all amendments.

Facebooks May 9 disclosure and final effective prospectus were widely reported

and analyzed in the media in the week leading up to its May 18 IPO. Facebook also followed

customary practice in having follow-up conversations with the underwriters analysts about the

May 9 disclosure and about Facebooks forward-looking projections. According to the plaintiffs,

certain of these analysts then discussed their forward-looking forecasts with certain institutional

investors. Over 30 copy-cat securities and derivative lawsuits against all (or some combination

of) the Facebook and Underwriter Defendants now assert the theory that Facebooks

conversations with the underwriters analysts and the analysts subsequent conversations with

certain investors create liability under federal securities laws (the 1933 Act Lawsuits). The

plaintiffs allege that after the May 18 IPO date, Facebooks stock price declined when the public

3 The Facebook and Underwriter Defendants vigorously dispute the claims against them. Thefacts set forth in this motion are based on allegations in the complaints, press articles, andcounsels understanding. Consistent with Section 4.15 of the Multidistrict Litigation Manual, wedo not burden the Panel with fact witness affidavits at this time, but reserve the right to providesuch affidavits in the event any respondent disputes pertinent facts.



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allegedly first learned about these prior discussions.

Investors have also sued NASDAQ, the stock exchange on which Facebooks

shares are listed. Six putative class actions were filed in the Southern District of New York (the

NASDAQ Lawsuits) against NASDAQ Stock Market LLC and its affiliates (collectively,

NASDAQ) alleging that technical problems and other trading-related errors affecting

Facebooks stockwhich NASDAQ has subsequently admittedcreated market uncertainty and

caused investor losses. (See Jenny Strasburg, et al.,Nasdaq CEO Offers Facebook Apology,

WALL ST.J.,A1 (June 7, 2012) (Nasdaqs chief executive said he and other exchange officials

owe the industry an apology for the technical problems that marred Facebook Inc.s highly

anticipated stock offering last month [c]learly we didn't succeed here, Mr. Greifeld said in

his office at Nasdaqs MarketSite in New Yorks Times Square.) (Cosenza Decl., Ex. R).)

Thus, both the 1933 Act Lawsuits and the NASDAQ Lawsuits seek recovery on behalf of

overlapping putative classes of investors for overlapping losses.

Because of overlapping issues, centralization of the 1933 Act Lawsuits and the

NASDAQ Lawsuits (collectively, the Facebook IPO Actions) is warranted. As demonstrated

below, the Southern District of New York is the most appropriate and convenient forum to

oversee these coordinated and/or consolidated proceedings.

First, the events challenged in the Facebook IPO Actions occurred largely in New

York.4 The 1933 Act Lawsuits, for example, focus on alleged conversations with the

underwriters analysts and the analysts subsequent revisions and discussions of their forward-

looking forecasts. Most analysts received and processed Facebooks forward-looking

4 The Facebook and Underwriter Defendants believe that the 1933 Act Lawsuits should bedismissed under Fed. R. Civ. P. 12. This motion nevertheless addresses, as this Paneltraditionally does, what discovery would occur ifthe complaints are not dismissed.



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projections, and made their own forecasts, predominantly in New York, where they are located.

According to the complaints, the analysts also allegedly orally shared their forecasts with certain

institutional investors, also located predominantly in New York or nearby. Likewise, the

NASDAQ Lawsuits focus on New York conduct. Thus, in all of the Facebook IPO Actions,

witnesses and documents located largely in New York would be the focus of discovery.

Second, centralization of all Facebook IPO Actions should also occur in the

Southern District of New York because it is the sole federal forum where plaintiffs have brought

the NASDAQ Lawsuits. The 1933 Act Lawsuits and the NASDAQ Lawsuits raise overlapping

issues, such as causation and class certification. The plaintiffs in the NASDAQ Lawsuits

contend that investor losses were caused by NASDAQs trading errors. In contrast, plaintiffs in

the 1933 Act Lawsuits contend that the Facebook and Underwriter Defendants caused investor

losses. Coordination of all Facebook IPO Actions in the Southern District of New York is the

best way both to streamline discovery and to eliminate the risk of inconsistent rulings on

potentially critical issues.

Third, most plaintiffs have selected the Southern District of New York as the

more appropriate forum. Twenty-two of the 26 Facebook IPO Actions pending in federal court

are in the Southern District of New York. In particular, 16 of the 20 federal court 1933 Act

Lawsuits were commenced in the Southern District. In addition, all six of the federal court

NASDAQ Lawsuits have been commenced in the Southern District, along with the only action

asserting claims against certain of the underwriters under the Securities Exchange Act of 1934

(the 1934 Act Lawsuit) and the only derivative action commenced in federal court.

Fourth, the Southern District of New York has the resources and experience to

manage multi-party, multi-district securities litigation. For all of these reasons, this Panel should



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order (i) transfer to the Southern District of New York of all 1933 Act Lawsuits filed in other

federal courts; and (ii) pretrial consolidation and/or coordination in the Southern District of New

York of the 1933 Act Lawsuits, the NASDAQ Lawsuits, and the 1934 Act Lawsuit.

BACKGROUND

A. Factual BackgroundOn February 1, 2012, Facebook filed its initial registration statement in

connection with the IPO on Form S-1 (the S-1). (Cosenza Decl. 3.) The IPO was

underwritten by a syndicate of 33 financial institutions. (Seesupra, at n.1) Twenty-three of

those 33 underwriters have their U.S. headquarters in New York, including all three of the Lead

Underwriter DefendantsMorgan Stanley & Co. LLC, J.P. Morgan Securities LLC, and

Goldman, Sachs & Co. In contrast, only two of the 33 underwriters are headquartered in

California. New York is thus where most analyst witnesses are located and a very significant

part of the underwriting activity occurred.

As part of the process leading up to the IPO, Facebook had meetings with

analysts employed by the Underwriter Defendants. As is customary and as the media coverage

reflected, Facebook discussed certain forward-looking projections with the analysts. (See David

A. Westenberg,Initial Public Offerings: A Practical Guide to Going Public, 19:7.2[B] (PLI

Sept. 2011) (analyst pre-IPO diligence includes discussions with management concerning the

companys financial model so that analysts can develop earnings forecasts) (Cosenza Decl.,

Ex. A); see also Kayla Tausche, Facebook to Hold Additional IPO Briefing with Analysts in

April: Sources, CNBC.com, (March 21, 2012) (Holding [analysts] discussions before an IPO is

a commonplace practice that often touches on forward-looking information for the purposes of

allowing sell-side analysts to build research models.) (Cosenza Decl., Ex. B).)



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Beginning on May 7, 2012, presentations for potential investors, known as the

roadshow, kicked off in New York. (Jessica Guynn,Mark Zuckerberg kicks off Facebook

roadshow to pitch IPO, L.A.TIMES (May 7, 2012) (Cosenza Decl., Ex. C).) The opening

session, held at the Sheraton Hotel in New York City, was attended by [h]undreds of

institutional investors. (Id.) As the roadshow continued, meetings on five more days occurred

in New York. (Cosenza Decl. 6.)

On May 9, 2012, Facebook filed an amendment to the S-1, along with a free

writing prospectus (the May 9 Amendment), which disclosed, inter alia, that the trend of

Facebooks daily average user growth outpacing growth in the number of ads delivered had

continued during the start of the second quarter of 2012. (Twining Compl. 71; Cosenza Decl.

7.) The May 9 Amendment ascribed that trend to the increased usage of Facebook on mobile

devices, in which display advertising was limited at the time, as well as certain product changes

that affected the volume of advertising that could be displayed. (Twining Compl. 71.) The

May 9 Amendment also warned about the negative impact ofthe trend on the Companys

revenues and financial results. (Id.) As is customary, and like the original S-1, the May 9

Amendment did not include forward-looking projections.

The May 9 Amendment received prompt and extensive media coverage. Reports

in many journals focused on the additional warning concerning the negative impact of increased

mobile usage of Facebook on the Companys revenues. (See, e.g., VentureBeat.com, Facebook

warns potential investors that mobile is an even bigger risk than originally disclosed, WASH.

POST (May 10, 2012) (Facebookamended its prospectus to warn potential investors that mobile

is an even bigger risk than originally disclosed. . .The revised mobile warning seems especially

pertinent after Facebook reported a disappointing first quarter.) (emphasis added) (Cosenza



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Decl., Ex. D); April Dembosky, Facebook admits to mobile weakness, FINANCIAL TIMES (May 9,

2012) (Facebook said the migration of its users to mobile platforms is compromising its ability

to make money from them, according to additions the company made to its IPO regulatory filing

on Wednesday. . . .The new information echoes a common refrain from Facebook executives,

both historically, and recently, in the companys IPO road show video.) (Cosenza Decl., Ex.

E).)5

Plaintiffs allege that, on or about May 9, 2012, Facebook also called analysts

employed by the underwriters concerning revised forward-looking projections. (Alexander

Compl. 21; Braun Compl. 39; Roffe Compl. 25; Lightman Compl. 73; Reichenbaum

Compl. 29.) Of the 21 analysts who were allegedly called, 14 were based in the New York

area. (Cosenza Decl. 8.) Plaintiffs also allege that certain of the analysts revised their forecasts

as a result of the discussions with Facebook and provided those lower revenue forecasts orally

to certain preferred investors but not to plaintiffs. (Braun Compl. 38, 40; Roffe Compl.

5 See also Shayndi Rice, Facebook Reveals Vulnerability in Mobile,WALL ST.J. (May 9, 2012)(But Facebook acknowledged that it has limited ads on its mobile site, so that user growth

hasnt led to an increase in ad revenue. . . . [Facebook] has warned that as more people useFacebook on mobile phones rather than personal computers, that trend may negatively affectfinancial results.) (Cosenza Decl., Ex. F); Nick Bilton, Facebook Says, Lower Your

Expectations About Mobile, N.Y.TIMES(May 9, 2012) (The company also warned that ifFacebook users continued to gain access to the social network on mobile devices, instead ofcomputers, and if Facebook was unable to successfully implement monetization strategies for

our mobile users, the companys revenue growth could be harmed.) (Cosenza Decl., Ex. G);

Steven Russolillo, Facebook Bull Shows Cautious Side, WALL ST.J. (May 11, 2012) ([I]n afiling on Wednesday, Facebook offered a word of caution about advertising revenue, and, as a

result, Ken Sena, a tech analyst at Evercore Partners, [r]educ[ed] his valuation range by $10billion. . . . Sena also cut his full-year revenue estimate by 6%, given the companys commentsaround the potential for near term impact from accelerated mobile transition.) (emphasisadded) (Cosenza Decl., Ex. H); Josh Constine, Facebook Amends IPO S-1 to Admit AdvertisingBiz Hurt by Increasing Shift to Mobile, TechCrunch (May 9, 2012) (Specifically, Facebook is

warning investors that daily active user count is rising faster than the number of ads the site isshowing, which it predicts will lead to a lower average revenue per user.) (Cosenza Decl., Ex.I).



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26; Twining Compl. 74; Lazard Compl. 71.)

Plaintiffs rely heavily on post-IPO articles as sources for their allegations, but

they ignore that what Facebook and the Underwriter Defendants allegedly did both followed

customary practices and did not violate any rules. (See Lightman Compl. 73.) Indeed, as one

article put it, it is industry convention in IPOs that: (1) Forward-looking estimates are usually

developed through close collaboration between the underwriters research analysts and company

management. (2) These estimates are conveyed verbally to institutional investors who are

considering investing in the IPO. (3) Importantly, these estimates are not published

anywhere. (BUSINESS INSIDER (May 22, 2012) (emphasis in original) (Cosenza Decl., Ex. J).)

This article, cited extensively by the plaintiffs, in arguing against this customary practice, also

states that [t]he SEC needs to change the rules here. (Id.)

As recently as 2005, however, the SEC declined to amend the rules to require

projections or other forward-looking information to be included in initial public offering

registration statements. 70 Fed. Reg. 44,722, 44,739 (Aug. 3, 2005). The SEC added: Oral

communications of an issuer made in connection with a registered offering after the registration

statement is filed will continue not to be subject to any filing or public disclosure requirements.

. . . [W]e continue to believe that subjecting oral communications that occur in connection with a

registered offering in a capital formation transaction to a public disclosure requirement could

adversely affect the capital formation process. Id. at 44,760. Likewise, Regulation FD does not

apply to an oral communication made in connection with the registered securities offering after

the filing of the registration statement for the offering under the Securities Act. Id.6

6 Indeed, a leading treatise states that [i]n the case of IPOs, . . . issuers generally refuse toinclude projections in the prospectus, but because Regulation FD does not apply to IPOcandidates, analysts are permitted to have access to the issuers internal projections. (Charles



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Moreover, in this IPO, contemporaneous media coverage reflected the substance

of the alleged oral communications. For example, on May 9, 2012, a media report stated:

BREAKING NEWS: Facebook Admits Mobile Shift Damaging Business Faster Than Expected

In New SEC Filing; Will Miss Q2 Projections. PRIVCO (May 9, 2012) (emphasis added)

(Cosenza Decl., Ex. N). Indeed, many of the 1933 Act Lawsuit complaints quote an article

admitting that before the May 18 IPO, scattered reports appeared that Facebook had reduced the

earnings guidance it was giving research analysts. (See, e.g., Alexander Compl. 21 (quoting

BUSINESS INSIDER (May 19, 2012)).)

On Friday, May 18, 2012, Facebook shares debuted on the NASDAQ stock

exchange. As has been widely reported in the press, the commencement of trading in Facebook

shares was delayed as a result of problems with NASDAQs software systems, which impaired

the orderly execution of trades and price levels. (See, e.g., Rodrigo Campos & John McCrank,

INSIGHT-Minute By Minute, Nasdaq Chaos Engulfed Facebook IPO, REUTERS (May 25, 2012)

(Cosenza Decl., Ex. O).) Press reports suggest that additional NASDAQ trading errors

spurr[ed] a cascade of selling that made it look as if investors suddenly were turning against

Facebook and caused some hedge funds to sell their entire positions because of the confusion.

(See Jenny Strasburg, et al.,Nasdaq CEO Lost Touch Amid Facebook Chaos, WALL ST.J., A1

J. Johnson, Jr. & Joseph McLaughlin, Corporate Finance and the Securities Laws, 3.04[D](4th ed. 2011 Supp.) (Cosenza Decl., Ex. K).) The treatise also notes the practice of leadunderwriter[s] orally providing projections to investors at road show presentations. (Id.; seealso Kayla Tausche & Jesse Bergman, What Ignited the Facebook-Analyst Fallout?, CNBC.com,

(May 24, 2012) (noting that analysts can be privy to selective financial information regardingearnings guidance in order to begin building models with full-year forecasts and that they aretypically permitted to orally disclose this information to potential IPO investors) (CosenzaDecl., Ex. L); Evelyn Rusli, et al., Questions of Fair Play Arise in Facebooks IPO Process,N.Y.TIMES (May 23, 2012) (As is typical in the I.P.O. process, research analysts at MorganStanley, Goldman Sachs and other firms contacted certain clients to discuss their revisedexpectations, while other big investors called on the banks to get their new take.) (CosenzaDecl., Ex. M).)



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(June 11, 2012) (Cosenza Decl., Ex. P).) The head of NASDAQs trading operations reportedly

responded with shock and aweover a mess out of his control. (Id.)

On Sunday May 20, 2012, NASDAQ reportedly advised that investors who lost

money as a result of certain May 18 trading errors may be eligible for compensation ifthey sold

their shares at a loss and submitted a claim by noon on Monday, May 21, 2012. (See John

Melloy,How Facebooks Stock Selloff Nearly Turned Into a Run, CNBC.com (May 22, 2012)

(Cosenza Decl., Ex. Q).) Commentators have stated thatNASDAQs announcement caused a

rash of stock sales that again drove down the price of Facebook shares. (Id.(Facebooks stock

dropped like a stone at the open Monday, as that alert caused investors to sell shares so they

could file a claim with the Nasdaq . . . by sending that deadline out, the Nasdaq may have

inadvertently caused a domino effect beyond its control.).)7

B. Litigation Related To The IPOBeginning on May 22, 2012, numerous shareholder actions were filed against the

Facebook Defendants, the Underwriter Defendants, and NASDAQ relating to the IPO. There are

currently 23 such actions pending in the Southern District of New York, four actions pending in

the Northern District of California, and 12 actions pending in the Superior Court of California,

San Mateo County.

All of the Facebook IPO Actions are based largely on the same factual

allegations, as discussed above. The legal theories advanced in the Facebook IPO Actions fall

7

OnJune 6, 2012, NASDAQ announced that it had established a fund to compensate investorswho had suffered losses as a result of its trading errors. (See Jenny Strasburg, et al.,NasdaqCEO Offers Facebook Apology, WALL ST.J., A1 (June 7, 2012) (Cosenza Decl., Ex. R); see alsoHerbert Lash,Nasdaqs Facebook move too limited- Ex-SEC chief Pitt, CNBC.com (June 6,2012) (quoting former SEC Chairman Harvey Pitt: Nasdaqs failure to live up to its self-regulatory responsibilities was a blunder of major proportions, which will likely be thesubject of sharp criticism from the SEC, and will hurt Nasdaq in its effort to corral additionallistings and garner more U.S. IPOs) (Cosenza Decl., Ex. S).)



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into four related categories and address the common issue of the cause of the decline in

Facebooks stock price:

1. The largest category by far is the 28 actions asserting 1933 Act securitieslaw claims.

8

These actions allege that although Facebook publiclyannounced that its growth in users had continued to outpace the number ofads displayed on its site, Facebook allegedly had non-public discussionswith the underwriters analysts about the same trend, and certain analysts

allegedly had non-public discussions about their revised earnings forecastswith preferred investors. (See supra, at 7-9.)9

2. Six putative class actions were brought in the Southern District of NewYork (and one in Florida state court) on behalf of Facebook investorsalleging that NASDAQs errors caused them to suffer losses bypurchasing at excessive prices and being precluded from selling at higherprices. (See, e.g., Amin Compl. 3-4.)

3. One putative class action lawsuit was filed in the Southern District of NewYork against the Lead Underwriter Defendants alleging that thosedefendants sold Facebook shares in connection with the IPO whileallegedly in possession of material undisclosed information in violation ofSection 20A of the Securities Exchange Act of 1934. (See CorneckCompl. 4-5.)

4. Four lawsuits styled as derivative actions assert claims against certain ofFacebooks directors and officers that derive from Facebooks alleged

violations of the 1933 Act in connection with the IPO. (See, e.g., Childs

Compl. 60-62, 75.)

8 Nine of the 1933 Act class actions were filed in the Superior Court of California, San MateoCounty. The Facebook and Underwriter Defendants intend to remove all the San Mateo Countyactions to the Northern District of California and seek a stay pending a ruling from the Panel onthe centralization motion. Any motions to remand should be addressed by the transferee courtfollowing an order of transfer by this Panel. See, e.g.,In re Reserve Fund Sec. & DerivativeLitig., 598 F. Supp. 2d 1370, 1371 (J.P.M.L. 2009) (ordering transfer and holding that plaintiffcan present its motion for remand to state court to the transferee judge).

9 On June 6, 2012, an investor filed a petition in the Western District of Texas seeking leave toperpetuate testimony for a potential 1933 Act lawsuit. (SeeRentea v. Facebook, Inc., Civ. No.A-12-MC-492-LY (W.D. Tex. filed June 6, 2012).) On June 13, 2012, that petition was deniedand the case was closed.



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ARGUMENT

Section 1407 requires transfer when: (i) actions have one or more common

questions of fact; and (ii) transfer will promote the just and efficient conduct of the action and

further the convenience of parties and witnesses. 28 U.S.C. 1407(a). Under these criteria, (i)

all Facebook IPO Actions should be centralized in one district, and (ii) that district should be the

Southern District of New York.

I. THE ACTIONS SHOULD BE CENTRALIZED IN ONE DISTRICT.All Facebook IPO Actions substantially arise from a common nucleus of facts

concerning the IPO and the decline in the price of Facebook shares following its May 18, 2012

trading debut. The Panel routinely transfers and consolidates for pre-trial purposes securities and

derivative actions that involve common questions of fact.10

Here, the 1933 Act Lawsuits are all copy-cats of each other. So are the NASDAQ

Lawsuits. Importantly, there are critical common issues between all 1933 Act Lawsuits and all

10 See, e.g., In re Reserve Fund Sec. & Derivative Litig. , 598 F. Supp. 2d 1370, 1371 (J.P.M.L.

2009);In re Fed. Home Loan Mortgage Corp. (Freddie Mac) Sec. Litig., 643 F. Supp. 2d 1378,1379 (J.P.M.L. 2009);In re The Bear Stearns Cos., Inc. Sec., Derivative & ERISA Litig., 572 F.Supp. 2d 1377, 1378 (J.P.M.L. 2008); In re Janus Mut. Funds Inv. Litig., 310 F. Supp. 2d, 1359,1361 (J.P.M.L. 2004);In re AOL Time Warner Sec. Litig., 235 F. Supp. 2d 1380, 1381 (J.P.M.L.2002);In re WorldCom.,Inc. Sec. & ERISA Litig., 226 F. Supp. 2d 1352, 1354 (J.P.M.L.2002). Those Facebook IPO Actions that have been styled as derivative lawsuits shouldinitially be coordinated with the other Facebook IPO Actions. Their putative derivative claimsare predicated on the same facts and alleged violations of the 1933 Act. See In re Reserve Fund,598 F. Supp. 2d at 1370 (Whether the actions are brought by Primary Fund holders seekingrelief under various federal securities laws . . . or a shareholder suing derivatively . . . all actionscan be expected to focus on a significant number of common events, defendants and/or

witnesses.);In re WorldCom., 226 F. Supp. 2d at 1354 (transferring to a single judge 39 casesbrought by securities holders seeking relief under the federal securities laws [and] shareholderssuing derivatively on behalf of WorldCom). The FacebookDefendants reserve the right to file,at an appropriate time, a motion to dismiss the derivative actions for improper venue, see Fed. R.Civ. P. 12(b)(3), based on Facebooks Restated Certificate of Incorporation, which provides thatthe Delaware Court of Chancery is the exclusive forum for any action purportedly brought onbehalf of Facebook (which is incorporated in Delaware). See In re Revlon Inc. Sholders Litig.,990 A.2d 940, 960 (Del. Ch. 2010) (citing 8 Del C. 102(b)(1)).

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NASDAQ Lawsuits. Each set of actions shares common, overlapping causation issues. In the

1933 Act Lawsuits, plaintiffs allege that conduct of Facebook and the Underwriter Defendants

caused investor losses. (See, e.g., Lightman Compl. 90; Eannarino Compl. 71.) In contrast,

the plaintiffs in the NASDAQ Lawsuits contend that NASDAQ caused investor losses. (See,

e.g., Amin Compl. 3-4.) The common, overlapping causation issues are pertinent to both the

merits and class certification in each set of actions. See, e.g., Newton v. Merrill Lynch, Pierce,

Fenner & Smith, Inc., 259 F.3d 154, 187-90 (3d Cir. 2001) (denying class certification because

individual causation issues would predominate where investors losses were related to trading

errors). The presence of common issues is confirmed by the fact that in the Southern District of

New York, Judge Sweet is already the judge in fourteen 1933 Act Lawsuits and five NASDAQ

Lawsuits. (See Schedule of Actions.)11

Centralizing all Facebook IPO Actions in one district is essential to avoid

duplication of discovery, prevent inconsistent pretrial rulings and conserve the resources of the

parties, their counsel and the judiciary. In re Xerox Corp. Sec. Litig., 211 F. Supp. 2d 1382,

1383 (J.P.M.L. 2002); accordIn re Janus Mut. Funds Inv. Litig., 310 F. Supp. 2d at 1361

(coordinating and transferring class actions and derivative suits in part to prevent inconsistent or

repetitive pretrial rulings); In re Cygnus Telecomm. Tech., LLC, 177 F. Supp. 2d 1375, 1376

(J.P.M.L. 2001) (same). Motions to dismiss, to compel discovery, for class certification, and for

summary judgment will all address overlapping issues. That the plaintiffs in the 1933 Act

Lawsuits and the NASDAQ Lawsuits attribute alleged losses of overlapping investor classes to

11 Given the common factual issues, it is irrelevant that the NASDAQ Lawsuits assert claimsunder state law and against different defendants. See, e.g.,In re Bank of N.Y. Mellon Corp.Foreign Exchange Transactions Litig., MDL No. 2335, 2012 U.S. Dist. LEXIS 53533, at *3(J.P.M.L. Apr. 16, 2012) (Where common factual issues exist, however, the presence ofdifferent legal theories among the subject actions is not a bar to centralization.); id. at *4(ordering transfer even where the cast of defendants varies from action to action).

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inconsistent causes is but one example.12 Achieving a consistent resolution of such issues

strongly supports centralization. See In re Res. Exploration, Inc. Sec. Litig., 483 F. Supp. 817,

821-22 (J.P.M.L. 1980) (transferring eight actions in three districts to the Southern District of

New York where six of the actions were purportedly brought on behalf of overlapping classes of

plaintiffsbecause [i]t is desirable to have a single judge oversee the class actions issues).

II. THE ACTIONS SHOULD BE CENTRALIZED IN THE SOUTHERN DISTRICTOF NEW YORK.

A. Transfer To The Southern District Of New York Will Best FacilitateEfficient Discovery In The Actions.

The Panel regularly transfers actions to a single jurisdiction to avoid duplication

of discovery. See, e.g.,In re Janus Mut. Funds Inv. Litig., 310 F. Supp. 2d at 1361. Here,

assuming, as this Panel customarily does, that the Facebook IPO Actions would survive

dismissal motions, there are at least two reasons why the best forum to avoid duplicative

discovery is the Southern District of New York.

First, any discovery concerning the common causation issues in both the 1933

Act Lawsuits and the NASDAQ Lawsuits would focus on New York witnesses and documents.

Numerous events at issue occurred in New York: Trading errors caused by NASDAQ

throughout the first day of the IPO; the markets reaction to the uncertainty created by those

errors; NASDAQs announcement of a claims submission deadline at noon on the second trading

day (May 21) that reportedly sparked a selloff of Facebook shares; alleged efforts by one of the

lead underwriters to stabilize the share price after NASDAQs errors; the public apology and

12 Causation is a defense in the 1933 Act Lawsuits regardless of whether the NASDAQ tradingerrors give rise to an investor claim against NASDAQ. Loss causation is a defense whenever afactor other than defendants alleged misstatements caused a loss, even if that factor isinactionable. SeeDura Pharm., Inc. v. Broudo, 544 U.S. 336, 343 (2005) (lower price mayreflect, not the earlier misrepresentation, but changed economic circumstances, changed investorexpectations, new industry-specific or firm-specific facts, conditions, or other events).



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admissions issued by NASDAQs CEO; andNASDAQs offer of compensation to investors who

suffered losses. (See, e.g., Jenny Strasburg & Jacob Bunge, Social Networks Debut on Nasdaq

Disrupted by Technical Glitches, Trader Confusion, WALL ST.J. (May 18, 2012) (Cosenza

Decl., Ex. T); Nadia Damouni & Olivia Oran,Morgan Stanley made big bet on Facebook,

REUTERS, (May 18, 2012) (Cosenza Decl., Ex. U); Rodrigo Campos & John McCrank,

INSIGHT-Minute By Minute, Nasdaq Chaos Engulfed Facebook IPO, REUTERS (May 25, 2012)

(Cosenza Decl., Ex. O); John Melloy,How Facebooks Stock Selloff Nearly Turned Into a Run,

CNBC.com (May 22, 2012) (Cosenza Decl., Ex. Q).)

It is personnel at NASDAQ and the Underwriter Defendants located in New York

that will be witnesses about trading errors caused by NASDAQ and their effects on Facebooks

share price. For example, NASDAQs pertinent officials for technology and trading operations

are located in New York. (See Jenny Strasburg, et al.,Nasdaq CEO Lost Touch Amid Facebook

Chaos, WALL ST.J., A1 (June 11, 2012) (describing involvement oftechnology officials in

Nasdaqs headquarters in lower Manhattan) (Cosenza Decl., Ex. P). NASDAQs mea culpa

was delivered by NASDAQs CEO in his office at Nasdaqs MarketSite in New Yorks Times

Square. (Jenny Strasburg, et al.,Nasdaq CEO Offers Facebook Apology, WALL ST.J.,A1

(June 7, 2012) (emphasis added) (Cosenza Decl., Ex. R).) Thus, the Southern District of New

York is the best forum to minimize both duplicative discovery and inconvenience for the most

witnesses. SeeIn re WorldCom, Inc., 226 F. Supp. 2d at 1355 (actions transferred to the

Southern District of New York where many documents and witnesses would be located).

Second, discovery in the Southern District of New York would be much more

efficient for the alleged conversations that form the heart of theplaintiffs unprecedented theory

asserted in the 1933 Act Lawsuits that it is improper for analysts to discuss their forecasts with



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preferred investors. SeeIn re Mun. Derivatives Antitrust Litig., 560 F. Supp. 2d 1386, 1387-88

(J.P.M.L. 2008) (Southern District of New York chosen because [t]he alleged wrongful

activities are intimately connected to the New York financial markets [and] many of the

defendants are headquartered in New York City). Although Facebook is headquartered and its

executives reside in California, these 1933 Act Lawsuits are very different from typical claims

that an issuer kept information hidden within the company. Rather, here, the 1933 Act

complaints allege that revised forward-looking projections wereprovidedorally by Facebook to

the underwriters analysts after Facebooks May 9 Amendment. (See, e.g., Alexander Compl.

21; Braun Compl. 39; Roffe Compl. 25.) Plaintiffs further allege that, as a result, certain of

the underwriters analysts lowered their forecasts for Facebooks future revenues and earnings

(see, e.g., Lazard Compl. 67, 70), and then discussed their revised forecasts with institutional

investor clients (see, e.g., Braun Compl. 40; Roffe Compl. 26; Twining Compl. 74). In

particular, each of the four complaints filed in the Northern District of California makes express

and prominent allegations of what plaintiffs call selective dissemination. (See Chang Compl.

2; Spatz Compl. 5; Gregory Compl. 7; Offner Compl. 33, 36.)

Discovery into these alleged discussionsif the cases survive dismissalwould

in large part be focused on events, witnesses, and documents in New York. The Lead

Underwriter Defendants are all headquartered in New York, and decisions regarding allocation

of shares in the IPO were made by personnel who work in New York. (See Snodgrass Decl. 3-

5, 8.) Important decisions about the IPO relating to price and size of the Facebook offering were

made in consultation with personnel who work in New York. (Snodgrass Decl. 7.) Most of the

pertinent analysts are based in New York. (Cosenza Decl. 8; Snodgrass Decl. 6.) And many



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communications with investors, including the IPO roadshow, originated or took place in or

around New York. (Cosenza Decl. 6; Snodgrass Decl. 5.)

The New York-focused knowledge, conversations, actions, and customary

practices of the Underwriter Defendants, analysts, investors, and financial media are both central

to all 1933 Act plaintiffs allegations and provide potential defenses. See, e.g., City of Omaha,

Nebraska Civilian Emps. Ret. Sys. v. CBS Corp., No. 11-2575, 2012 WL 1624022, at *3 (2d Cir.

May 10, 2012) (per curiam) (affirming dismissal where allegedly omitted information was a

matter of public knowledge, including through expectations of analysts). Moreover, that New

York-focused knowledge and activity is also relevant to whether individualized inquiries about

issues such as investor awareness would preclude class certification under Rule 23. SeeNew

Jersey Carpenters Health Fund v. Rali Series 2006-QO1 Trust, No. 11-1683, 2012 WL 1481519,

at *3 (2d Cir. Apr. 30, 2012) (summary order) (affirming denial of class certification where

knowledge defenses would require extensive individual proceedings);In re Superior Offshore

Intl, Inc. Sec. Litig., Civ. A. No. 08-0687, 2010 WL 2305742, at *5 (S.D. Tex. June 8, 2010)

(denying class certification when allegedly misrepresented facts could be widespread

knowledge, including from analyst reports and information presented to investors during IPO

roadshow). The New York-focused core of all 1933 Act Lawsuits thus further supports

centralization in the Southern District of New York.

B. Transfer To The Southern District Of New York Will Ensure ConsistentRulings On Critical Issues.

Consolidation in the Southern District of New York is the best way to achieve

consistency. First, only the Southern District has the full panoply of cases with their overlapping

issues: sixteen 1933 Act Lawsuits (including the only derivative suit filed in federal court), six

NASDAQ Lawsuits, and the 1934 Act Lawsuit. In contrast, the Northern District of California



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has only four 1933 Act Lawsuits, and none of the others.

Second, when circumstances warrant, as here, the Panel has ordered centralization

in the Southern District of New York of cases involving IPOs, 1933 Act claims, or underwriter

defendants, even though the issuer was from another state.13 In such cases, centralization in the

Southern District fosters certainty and predictability that encourages issuers to choose the major

U.S. exchanges (the NYSE and NASDAQ)which are located in New Yorkrather than shift

securities offerings away from domestic capital markets. Stoneridge Inv. Partners, LLC v.

Scientific-Atlanta, Inc., 552 U.S. 148, 164 (2008). The Southern District should be the forum for

centralizing the Facebook IPO Actions as they challenge the largest New York-based IPO in

years, make allegations against New York-focused conduct of Facebook, the Underwriter

Defendants, and NASDAQ, and seek retroactively to change established practices and rules for

IPOs conducted on New York exchanges. (See supra, at 7-9, 16-17.)

C. The Southern District Of New York Has Distinct Strengths For HandlingComplex Multidistrict Securities Litigation.

The Panel has recognized that the Southern District of New York has both unique

expertise in and resources to manage multi-district securities litigations. See, e.g.,In re IPO Sec.

Litig., 277 F. Supp. 2d 1375, 1377 (J.P.M.L. 2003);In re Adelphia Commcns. Corp., 273 F.

Supp. 2d 1353, 1355 (J.P.M.L. 2003). The Southern Districts recent adoption of a Pilot Project

Regarding Case Management Techniques for Complex Civil Cases has enhanced these distinct

13 See, e.g.,In re Adelphia Commcns Corp., 273 F. Supp. 2d at 1353 (Pennsylvania) ;In reWorldCom, Inc., 226 F. Supp. 2d 1352 (Mississippi);In re Fed. Home Loan Mortgage Corp.,643 F. Supp. 2d 1378 (Virginia);In re Bank of Am. Corp., Sec., Derivative & ERISA Litig., 626F. Supp. 2d 1327 (J.P.M.L. 2009) (North Carolina);In re Fannie Mae Sec. & ERISA Litig., 598F. Supp. 2d 1374 (J.P.M.L. 2009) (District of Columbia);In re Global Crossing Ltd. Sec. &ERISA Litig., 223 F. Supp. 2d 1384 (J.P.M.L. 2002) (New Jersey);In re Mun. DerivativesAntitrust Litig., 560 F. Supp. 2d 1386 (issuers from multiple states other than New York).



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strengths. See Judicial Improvements Comm., U.S. Dist. Ct. S. Dist. N.Y., Pilot Project

Regarding Case Management Techniques For Complex Civil Cases (2011).14

CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Panel order (i)

transfer to the Southern District of New York of all 1933 Act Lawsuits filed in other federal

courts; and (ii) pretrial consolidation and/or coordination in the Southern District of New York of

the 1933 Act Lawsuits, the NASDAQ Lawsuits, and the 1934 Act Lawsuit.

14 As demonstrated above, the Southern District of New York is the most efficient forum forcentralization of all Facebook IPO Actions. Nonetheless, centralization somewhere is better thanno centralization. Accordingly, we note the Panel has authority to centralize all Facebook IPOActions, including the NASDAQ Lawsuits in which the movants are not parties, in anotherdistrict if the Southern District of New York is not chosen. See Manual for Complex Litigation(4th ed.) 20.131 n.646.



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Dated: June 15, 2012New York, New York

Respectfully submitted,

WILLKIE FARR & GALLAGHER LLP

Richard D. Bernstein([email protected])

Tariq Mundiya ([email protected])Todd G. Cosenza ([email protected])Sameer Advani ([email protected])787 Seventh AvenueNew York, New York 10019Telephone: (212) 728-8000Facsimile: (212) 728-8111

KIRKLAND & ELLIS LLP

s/ Andrew B. ClubokAndrew B. Clubok ([email protected])Brant W. Bishop, P.C. ([email protected])601 Lexington AvenueNew York, New York 10022Telephone: (212) 446-4836Facsimile: (212) 446-4900

Thomas D. Yannucci ([email protected])Susan E. Engel ([email protected])655 15th Street, NW

Washington, D.C. 20005Telephone: (202) 879-5000Facsimile: (202) 879-5200

Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Sheryl K. Sandberg,

David A. Ebersman, David M. Spillane, Marc L. Andreessen, Erskine B. Bowles,

James W. Breyer, Donald E. Graham, Reed Hastings, and Peter A. Thiel

DAVIS POLK & WARDWELL LLP

s/ James P. Rouhandeh(electronic signature w/ permission)

James P. Rouhandeh ([email protected])Charles S. Duggan

([email protected])Andrew Ditchfield

([email protected])450 Lexington AvenueNew York, New York 10017Telephone: (212) 450-4000Facsimile: (212) 701-5800

Attorneys for Defendants Morgan Stanley & Co. LLC, J.P.

Morgan Securities LLC, and Goldman, Sachs & Co.


Facebook Motion

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Transcript of Facebook Motion