UNITED STATES DISTRICT COURT SOUTHERN DISTRICT … [Dkt. 1020] Reply ISO... · Plaintiffs in fact...

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

In re LEHMAN BROTHERS SECURITIES AND ERISA LITIGATION This Document Applies To:

In re Lehman Brothers Equity/Debt Securities Litigation, 08-CV-5523-LAK

Case No. 09-MD-2017 (LAK) ECF CASE

REPLY IN FURTHER SUPPORT OF THE STRUCTURED PRODUCT PLAINTIFFS’ MOTION FOR RECONSIDERATION PURSUANT TO

FEDERAL RULE OF CIVIL PROCEDURE 54(b)

Case 1:09-md-02017-LAK-GWG Document 1020 Filed 10/19/12 of 12

1

PRELIMINARY STATEMENT

In July 2011, this Court adopted over plaintiffs’ objection UBS’s argument that Article

III standing principles required a separate class plaintiff for each of the 80-plus offerings of

Lehman-issued structured offerings sponsored by UBS. The Court dismissed claims based on

the structured product offerings in which the representative plaintiffs had not invested. In

NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145 (2d Cir. 2012), the

Second Circuit reversed a decision premised on the same argument UBS made to this Court.

Given the Second Circuit’s ruling, the Court should reconsider its ruling on the motion to dismiss

under Rule 54(b) and reinstate the claims based on those 53 offerings because they raise the

same set of concerns as the claims based on the offerings the plaintiffs purchased. UBS offers no

persuasive argument to the contrary.

Plaintiffs allege that the offering documents contained false and misleading statements

and omissions about Lehman’s business practices and solvency and about the “principal

protection” feature of many of the notes. The Lehman-related statements appear in twelve SEC

filings, one or more of which was incorporated into the offering documents for each of the 84

structured product offerings. The existing class representatives allege injuries based on the

misrepresentations and omissions in each of the twelve SEC filings, so they have class standing

to represent investors in the offerings they did not purchase that are based on the identical

misrepresentations and omissions. The same is true for the misleading statements about

principal protection because the same statements appear in the pricing supplements for both the

offerings plaintiffs purchased and those they did not.

Reinstating the dismissed offerings will not introduce any new misstatements or

omissions to the case or require the jury to consider any additional evidence. In fact, NECA-


2

IBEW simplifies the class certification analysis and enhances the manageability of class

treatment of plaintiffs’ claims because fewer class representatives may be required and

subclasses may no longer be necessary. Plaintiffs will demonstrate that the class certification

requirements are satisfied for a class of all 84 offerings in supplemental briefing.

Plaintiffs respectfully request that the Court grant their motion for reconsideration and

reinstate the 53 offerings it previously dismissed from the case.

THE COURT SHOULD RECONSIDER ITS PRIOR RULING

UBS argues, without citing authority, that NECA-IBEW did not change controlling law

because the Second Circuit did not say that it was changing the law and because it relied on

Supreme Court precedent. Opp. at 4, n.3. As other district courts have recognized, a change in

the law may occur without an express pronouncement by the Second Circuit. In In re Deutsche

Bank AG Securities Litigation, for example, the court granted the defendants’ motion for

reconsideration because in Fait v. Regions Financial Corp., 655 F.3d 105 (2d Cir. 2011), “the

Second Circuit, for the first time, held that valuation decisions such as goodwill and statements

of loan loss reserves are ‘opinions’ rather than facts ….” No. 09 Civ. 1714 (DAB), 2012 WL

3297730, at *2 (S.D.N.Y. Aug. 10, 2012). In Fait, the Second Circuit did not announce that it

was changing the law and, as in NECA-IBEW, relied upon Supreme Court precedent (Virginia

Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 111 S. Ct. 2749 (1991)) in reaching its decision.

Fait, 655 F.3d at 110-13.

Even when the Second Circuit clarifies, rather than changes, controlling law, courts

reconsider their prior decisions if “failure to do so would result in clear error” given the new

precedent. Cobalt Multifamily Investors I, LLC v. Shapiro, No. 06 Civ. 6468 (KMW), 2009 WL

2058530, at *1, 5-6 (S.D.N.Y. July 15, 2009); see also SPL Shipping Ltd. v. Gujarat Cheminex


3

Ltd., No. 06 Civ. 15375 (RJS), 2008 WL 4900770, at *2 (S.D.N.Y. Sept. 10, 2008). When this

Court entered its order on defendants’ motion to dismiss on July 27, 2011, there was no Second

Circuit (or Supreme Court) decision that addressed whether a class plaintiff has standing to assert

claims on behalf of investors in securities the plaintiff did not purchase. Now that the Second

Circuit has disapproved of the analysis this Court relied upon when it held that “a plaintiff does

not suffer injury in fact—and therefore has no standing to assert claims—in consequence of false

or misleading statements in offering materials for securities that it did not purchase,”1 the Court

should reconsider its ruling.

UBS also argues that the Second Circuit misapplied Supreme Court precedent in reaching

its decision. But whether or not UBS agrees with its outcome, NECA-IBEW is controlling

authority. See, e.g., Heffernan v. Straub, 655 F. Supp. 2d 378, 380 (S.D.N.Y. 2009)

(“Controlling decisions include decisions from the United States Court of Appeal for the Second

Circuit ….”). District courts “cannot ignore Second Circuit precedent unless it is expressly or

implicitly overruled.” Newton v. City of New York, No. 07 Civ. 6211 (SAS), 2010 WL 329891,

at *2 (S.D.N.Y. Jan. 27, 2010) (citing World Wrestling Entm’t, Inc. v. Jakks Pacific, Inc., 425 F.

Supp. 2d 484 (S.D.N.Y. 2006); U.S. v. Russotti, 780 F. Supp. 128, 131 (S.D.N.Y. 1991)).

THE FALSE AND MISLEADING STATEMENTS ABOUT LEHMAN IMPLICATE THE SAME SET OF CONCERNS

At the core of plaintiffs’ claims are alleged misrepresentations and omissions in twelve of

Lehman’s SEC filings concerning (1) Lehman’s use of Repo 105 transactions to artificially

reduce its net leverage ratio at the end of quarterly reporting periods; (2) Lehman’s routine

disregard of its risk limits, its use of stress testing to evaluate risks associated with its real estate

1 In re Lehman Bros. Sec. & ERISA Litig., 799 F. Supp. 2d 258, 274 (S.D.N.Y. 2011).


4

portfolio, and the number of days on which Lehman exceeded its Value-at-Risk limits; and

(3) Lehman’s significant concentrations of credit risk in global real estate and Alt-A mortgages.2

One or more of the twelve SEC filings are incorporated into the offering documents for each of

the structured product offerings. Appendix A is a chart that shows the SEC filings that are

incorporated into the offering documents for each of the offerings. Appendix B identifies the

offerings by CUSIP number and name and lists the plaintiffs who purchased each offering.3

UBS does not refute that the claims for all 84 offerings are based on the same

misrepresentations and omissions in these twelve SEC filings. Each plaintiff contends that he or

she suffered injury as a result of the false and misleading statements and omissions in the SEC

filings that were incorporated into the offering (or offerings) he or she purchased. Under NECA-

IBEW, a plaintiff whose offering documents incorporated Lehman’s 10-Q for the third quarter of

2007 has class standing to represent investors in other offerings with offering documents that

incorporated the same 10-Q, because they were allegedly injured by identical misrepresentations

and omissions. 693 F.3d at 163-64 (“Sections 11 and 12(a)(2) claims brought by a purchaser of

debt from” one of “a series of corporate debt offerings, issued over the course of a year, all of

which contained an identical misrepresentation about the issuing company’s impending

insolvency … would raise a ‘set of concerns’ nearly identical to that of a purchaser from another

offering”). The same is true for each of the other SEC filings.

2 UBS incorrectly asserts that plaintiffs do not allege that Lehman misstated its use of Repo 105 transactions prior to the second quarter of 2007, or its adherence to its Value-at-Risk limits prior to August 2007. Plaintiffs in fact allege that Lehman used Repo 105 in the first quarter of 2007 and misrepresented the company’s adherence to its risk policies, including VaR, in its March 14, 2007 Form 8-K and April 9, 2007 Form 10-Q. See TAC ¶ 117. 3 These charts omit the security identified by CUSIP 52522L368, which, as UBS noted, was called prior to Lehman’s bankruptcy.


5

Despite UBS’s efforts to complicate it, the analysis in this case is far more

straightforward than in NECA-IBEW, where the alleged misrepresentations were about the

underwriting practices of the lenders who originated the mortgage loans backing the securities.

Id. at 163. There, the “nature and content” of the nearly identical misrepresentations differed

because the “distinct set of loans” backing each offering was “issued by a distinct set of

originators,” and each originator had different underwriting guidelines and acted in different

ways that may or may not have constituted an abandonment of its underwriting guidelines. Id. at

162-63. At trial, the proof would focus on each mortgage originator’s differing guidelines and

conduct and it would therefore differ from offering to offering if the originators were not the

same. Id. at 163. As a result, the “same set of concerns” was raised only as to those certificates

that were backed by mortgages originated by the same lenders that originated the mortgages

backing the plaintiffs’ certificates. Id. at 165.

Unlike NECA-IBEW, no new or different proof will be required if the Court reinstates the

structured product offerings it previously dismissed. Plaintiffs’ evidence will still focus on

whether there were false or misleading statements or omissions in the twelve SEC filings

incorporated into the offering documents and whether those misstatements and omissions were

material to a reasonable investor. See In re Morgan Stanley Info. Fund Sec. Litig., 592 F.3d 347,

360 (2d Cir. 2010) (“In many cases—including this one—two issues are central to claims

under sections 11 and 12(a)(2): (1) the existence of either a misstatement or an unlawful

omission; and (2) materiality.”). Because the proof will be the same for the statements and

omissions in each of the SEC filings, “the establishment of the named plaintiffs’ claims [will]

necessarily establish[] those of other class members.” Plumbers’ Union Local No. 12 Pension

Fund v. Nomura Asset Acceptance Corp., 632 F.3d 762, 770 (1st Cir. 2011).


6

UBS argues that the misstatements vary by offering because “Lehman’s financial

condition and the prevailing market conditions constantly changed over the pertinent 16-month

period as the credit crisis deepened.” Opp. at 8. But UBS ignores that the additional offerings

are interspersed among the offerings that plaintiffs purchased. In fact, of the 53 additional

offerings, 27 occurred on the same day as one of the offerings purchased by plaintiffs, 17

occurred within a week of an offering purchased by plaintiffs, and the remaining 9 occurred

within a month of one of the offerings purchased by plaintiffs. See Appendix B.4

Finally, UBS insists that each reinstated offering must be the mirror image of an offering

purchased by one of the plaintiffs in that it incorporates the same SEC filings and its pricing

supplement includes the same purported disclosures. But the Second Circuit did not impose a

“perfect symmetry” requirement, and UBS cites no authority to support its contention. Instead,

the Second Circuit required only that the misconduct that caused the plaintiffs’ injuries—here,

the false and misleading statements about Lehman’s use of Repo 105, disregard of its risk limits,

use of stress testing, and concentrations of credit risk—raise the same set of concerns as the

conduct alleged to have injured the other potential class members. NECA-IBEW, 693 F.3d at

162. That requirement is satisfied because the dismissed offerings incorporate the same twelve

SEC filings, and therefore turn on the very same false and misleading statements, as the offerings

plaintiffs did purchase.

4 Courts have rejected this argument in the context of class certification. See, e.g., Public Employees’ Retirement System of Miss. v. Merrill Lynch & Co., 277 F.R.D. 97, 113-14 (S.D.N.Y. 2011) (rejecting the argument that the falsity and materiality of the misrepresentations had to be determined on an individual basis because the offerings occurred over a 17-month period “while the mortgage finance market was undergoing dramatic changes”); see also In re IndyMac Mortgage-Backed Sec. Litig., No. 09 Civ. 4583 (LAK), 2012 WL 3553083, at *9 (S.D.N.Y. Aug. 27, 2012) (“Courts in this and other districts have found that such substantial similarity of the allegedly misleading statements in Offering Documents is sufficient for class certification, even where class members purchased different offerings at different times.”).


7

THE “PRINCIPAL PROTECTION” STATEMENTS IMPLICATE THE SAME SET OF CONCERNS

UBS also tries to complicate the analysis of the “principal protection” statements. But

the pricing supplements for the principal protection offerings are all very similar. They featured

the terms “principal protection,” “100% principal protection,” or “partial protection” three or

more times on the first page. They included several additional statements that highlighted the

principal protection feature and said that investors would receive at least their principal (either in

full for the 100% principal protection notes or in part for partial protection notes) if they held the

notes to maturity. See Plaintiffs’ Class Cert. Br. (Dkt. No. 691) at 3-4.

UBS has pointed to a couple of statements in the pricing supplements that it contends

constitute sufficient disclosures to offset the repeated representations about principal protection.

One appears in a footnote and references the “creditworthiness of the issuer,” and the other is a

statement at or near the end of a list of “Key Risks” that references “the actual and perceived

creditworthiness of Lehman Brothers Holdings Inc.” See id. at 4-5. Some of the pricing

supplements contain both of these statements, some contain neither, and some contain only one

of them.

Despite this minor variation, the central issue common to all of the principal protection

statements is whether “the repeated and emphasized statements about principal protection were

offset sufficiently … by the inconspicuous and scattered warnings … about Lehman’s solvency.”

In re Lehman, 799 F. Supp. 2d at 315. The analysis can be broken down into four categories for

the fact finder: (1) whether the pricing supplements that contain neither the footnote nor the Key

Risk were misleading to a reasonable investor; (2) whether the pricing supplements that contain

only the footnote were misleading to a reasonable investor; (3) whether the pricing supplements


8

that contain only the Key Risk were misleading to a reasonable investor; and (4) whether the

pricing supplements that contain both statements were misleading to a reasonable investor.

No new proof will be required if the Court reinstates the previously dismissed offerings,

because the pricing supplements for those offerings also fall into these four categories. The

offerings therefore raise the same set of concerns and, under NECA-IBEW, plaintiffs have class

standing to represent investors in the offerings the plaintiffs did not purchase.

CLASS CERTIFICATION

NECA-IBEW simplifies this case for trial on a class basis and reinstating the dismissed

offerings will increase the efficiencies of proceeding with these claims on a class wide basis.

More investors’ claims can be tried using the same evidence that would be required for the

offerings the plaintiffs purchased. The case may be able to proceed with fewer plaintiffs because

a class representative may not be required for each offering. And some of UBS’s challenges to

class certification would be eliminated, such as UBS’s argument that a class action is not

superior because some plaintiffs and class members also purchased notes that were not part of

the proposed class. See UBS Class Cert. Opp. (Dkt. No. 863) at 32.

In addition, the need for subclasses, while still a possibility, is greatly reduced. Plaintiffs’

proposal that the Court could establish a subclass for each offering preceded the Second Circuit’s

ruling that class standing allows a plaintiff to represent investors in different offerings. Now that

the law has changed, the focus will be squarely on the twelve SEC filings that allegedly contain

misstatements and omissions and the four categories of principal protection disclosures. The

jury will not have to consider plaintiffs’ claims on an offering-by-offering basis.


9

Plaintiffs will demonstrate in supplemental briefing that the requirements for class

certification are satisfied for a class consisting of investors in all 84 of the structured product

offerings.5

CONCLUSION

Plaintiffs request that the Court grant their motion and order the parties to file

supplemental briefs addressing class certification or order plaintiffs to file a new motion for class

certification.

Dated: October 19, 2012 Respectfully submitted,

GIRARD GIBBS LLP By: /s/ Daniel C. Girard Daniel C. Girard Jonathan K. Levine Amanda M. Steiner Dena C. Sharp 601 California Street, Floor 14 San Francisco, CA 94108 Tel: (415) 981-4800 Fax: (415) 981-4846 Counsel for Plaintiffs Mohan Ananda, Richard Barrett, Neel Duncan, Nick Fotinos, Stephen Gott, Karim Kano, Barbara Moskowitz, Ronald Profili, Lawrence Rose, Joe Rottman, Grace Wang and Miriam Wolf, and proposed Class Counsel

5 UBS says that plaintiffs should “begin the class certification process anew” (Opp. at 14), and plaintiffs are prepared to file a new motion if the Court is so inclined. Plaintiffs believe that supplemental briefing will be sufficient and will avoid the delay of completely re-briefing class certification.


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ZWERLING, SCHACHTER & ZWERLING, LLP Susan Salvetti Justin M. Tarshis 41 Madison Avenue New York, New York 10010 Telephone: (212) 223-3900 Facsimile: (212) 371-5969 Counsel for Plaintiffs Ed Davis, Rick Fleischman, J. Harry Pickle, Trustee Gastroenterology Associates, Ltd. Profit Sharing Plan FBO Charles M. Brooks M.D., Arthur Simons, Juan Tolosa LAW OFFICES OF JAMES V. BASHIAN, P.C. James V. Bashian 500 Fifth Avenue, Suite 2700 New York, New York 10110 Telephone: (212) 921-4110 Facsimile: (212) 921-4229 Counsel for Plaintiff David Kotz BONNETT FAIRBOURN FRIEDMAN & BALINT, P.C. Andrew Friedman 2901 North Central Avenue, Suite 1000 Phoenix, Arizona 85012 Telephone: (602) 274-1100 Facsimile: (602) 274 1199 TIFFANY & BOSCO P.A. Richard G. Himelrick 2525 East Camelback Road Phoenix, Arizona 85016 Telephone: (602) 255-6000 Facsimile: (602) 255-0103 Counsel for Plaintiff Shea-Edwards Limited Partnership


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CERTIFICATE OF SERVICE

I, Daniel C. Girard, hereby certify that on October 19, 2012, I caused the following

document(s) to be filed electronically with the United States District Court for the Southern

District of New York through the Court’s mandated ECF service:

REPLY IN FURTHER SUPPORT OF THE STRUCTURED PRODUCT PLAINTIFFS’ MOTION FOR RECONSIDERATION PURSUANT TO

FEDERAL RULE OF CIVIL PROCEDURE 54(b)

Counsel of record are required by the Court to be registered e-filers, and as such are

automatically e-served with a copy of the document(s) upon confirmation of e-filing.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this 19th day of October, 2012 at San Francisco, California.

/s/ Daniel C. Girard Daniel C. Girard


APPENDIX A

Case 1:09-md-02017-LAK-GWG Document 1020-1 Filed 10/19/12 Page 1 of 6

APPENDIX A: False or Misleading Statements About Lehman

“C” stands for “common misrepresentations,” which includes: Repo 105s as sales; Repo 105 not in net leverage; failure to disclose Repo 105s; exceeding risk limits; exclusion of risky assets from stress testing; exceeding VaR limits

“GR” stands for concentration of credit risk in global real estate, and applies only to the 2007 10‐K

“Alt‐A” stands for concentration of credit risk in Alt‐A mortgages, and applies only after February 20, 2008

1

Offering 3-14-07 8-K

1Q07 10-Q

6-12-07 8-K

2Q07 10-Q

9-18-07 8-K

3Q07 10-Q

12-13-07 8-K

2007 10-K

3-18-08 8-K

1Q08 10-Q

6-9-08 8-K

6-16-08 8-K

1 C 2 C 3 C C 4 C C 5 C C 6 C C 7 C C 8 C C 9 C C

10 C C C 11 C C C 12 C C C 13 C C C C 14 C C C C 15 C C C C 16 C C C C 17 C C C C 18 C C C C 19 C C C C 20 C C C C 21 C C C C C 22 C C C C C 23 C C C C C 24 C C C C C C 25 C C C C C C 26 C C C C C C 27 C C C C C C 28 C C C C C C 29 C C C C C C 30 C C C C C C 31 C C C C C C 32 C C C C C C






2


1Q07 10-Q

6-12-07 8-K

2Q07 10-Q

9-18-07 8-K

3Q07 10-Q

12-13-07 8-K

2007 10-K

3-18-08 8-K

1Q08 10-Q

6-9-08 8-K

6-16-08 8-K

33 C C C C C C 34 C C C C C C 35 C C C C C C 36 C C C C C C 37 C C C C C C 38 C C C C C C 39 C C C C C C C 40 C C C C C C C 41 C C C C C C C

42 C C C C C C C C GR
















3


1Q07 10-Q

6-12-07 8-K

2Q07 10-Q

9-18-07 8-K

3Q07 10-Q

12-13-07 8-K

2007 10-K

3-18-08 8-K

1Q08 10-Q

6-9-08 8-K

6-16-08 8-K








C GR

Alt-A


C GR

Alt-A


C GR

Alt-A


C GR

Alt-A


C GR

Alt-A


C GR

Alt-A


C GR

Alt-A






4


1Q07 10-Q

6-12-07 8-K

2Q07 10-Q

9-18-07 8-K

3Q07 10-Q

12-13-07 8-K

2007 10-K

3-18-08 8-K

1Q08 10-Q

6-9-08 8-K

6-16-08 8-K


C GR

Alt-A


C GR

Alt-A


C GR

Alt-A


C GR

Alt-A


C GR

Alt-A

71 C C C C C C C C C Alt-A

C Alt-A


C Alt-A


C Alt-A


C Alt-A


C Alt-A


C Alt-A


C Alt-A


C Alt-A

C Alt-A

C Alt-A


C Alt-A

C Alt-A

C Alt-A






5


1Q07 10-Q

6-12-07 8-K

2Q07 10-Q

9-18-07 8-K

3Q07 10-Q

12-13-07 8-K

2007 10-K

3-18-08 8-K

1Q08 10-Q

6-9-08 8-K

6-16-08 8-K


C Alt-A

C Alt-A

C Alt-A


C Alt-A

C Alt-A

C Alt-A


C Alt-A

C Alt-A

C Alt-A


C Alt-A

C Alt-A

C Alt-A


C Alt-A

C Alt-A

C Alt-A


APPENDIX B


APPENDIX B: UBS-Underwritten Structured Products

1

Issue Date1 Security

(CUSIP) Plaintiff(s)

1 March 30, 2007 100% Principal Protection Notes Linked to a Global Index Basket (52520W564/524908VP2) Mohan Ananda

2 March 30, 2007 Performance Securities with Partial Protection Linked to a Global Index Basket (52520W556/524908VQ0)

3 April 30, 2007 100% Principal Protection Callable Spread Daily Accrual Notes with Interest Linked to the Spread between the 30-year and the 2-year Swap Rates (52517PY21)

4 April 30, 2007 100% Principal Protection Callable Spread Daily Accrual Notes with Interest Linked to the Spread between the 30-year and the 2-year Swap Rates (52517PX63)

Lawrence Rose

5 April 30, 2007 100% Principal Protection Notes Linked to a Currency Basket (52520W549)

6 April 30, 2007 Performance Securities with Partial Protection Linked to a Global Index Basket (52520W515) Ronald Profili

7 May 31, 2007 100% Principal Protection Callable Spread Daily Accrual Notes with Interest Linked to the Spread between the 30-year and the 2-year Swap Rates (52517PY62)

8 May 31, 2007 100% Principal Protection Callable Daily Range Accrual Notes with Interest Linked to the 10-Year Constant Maturity U.S. Treasury Rate (52517PY70)

9 May 31, 2007 100% Principal Protection Notes Linked to a Currency Basket (52520W440)

Grace Wang Lawrence Rose

10 June 22, 2007 100% Principal Protection Notes Linked to a Global Index Basket (52522L202)

11 June 29, 2007 100% Principal Protection Callable Spread DailyAccrual Notes with Interest Linked to the Spread between the 30-year and the 2-year Swap Rates (52517P2P5)

Stephen Gott

1 The “issue date” identified for the structured notes is the settlement date. The pricing date for the structured notes is typically a few days before the settlement date.



2



12 June 29, 2007 100% Principal Protection Notes Linked to an Asian Currency Basket (52520W390)

13 July 31, 2007 100% Principal Protection Callable Spread Daily Accrual Notes with Interest Linked to the Spread between the 30-year and the 2-year Swap Rates (52517P3H2)

Stephen Gott

14 July 31, 2007 Performance Securities with Partial Protection Linked to a Global Index Basket (52520W358)

15 August 31, 2007 Performance Securities with Contingent Protection linked to the S&P 500® Index (52522L129)

16 August 31, 2007 Performance Securities with Contingent Protection linked to the Dow Jones EURO STOXX 50® Index (52522L137)

17 August 31, 2007 Performance Securities with Contingent Protection linked to the Nikkei 225SM Index (52522L145)

18 August 31, 2007 100% Principal Protection Notes Linked to an International Index Basket (52522L186) Mohan Ananda

19 August 31, 2007 100% Principal Protection Notes Linked to a Global Index Basket (52522L889) Mohan Ananda

20 September 18, 2007 Autocallable Optimization Securities with Contingent Protection Linked to the S&P 500® Financials Index (52522L251)

21 September 28, 2007 Return Optimization Securities Linked to an International Index Basket (52522L236)

22 September 28, 2007 Performance Securities with Partial Protection Linked to a Global Index Basket (52522L244) Juan Tolosa

23 September 28, 2007 100% Principal Protection Callable Spread Daily Accrual Notes with Interest Linked to the Spread between the 30-year and the 2-year Swap Rates (52517P5K3)

Stephen Gott



3



24 October 31, 2007 Medium-Term Notes, Series I, 100% Principal Protection Notes Linked to an Asian Currency Basket (52520W341)

Neel Duncan Juan Tolosa

25 October 31, 2007 100% Principal Protection Barrier Notes Linked to FTSE/Xinhua China 25 Index (52522L400)

26 October 31, 2007 100% Principal Protection Absolute Return Barrier Notes Linked to the S&P 500 Index (52522L293) Nick Fotinos

27 October 31, 2007 Return Optimization Securities Linked to an Index (52522L301)

28 October 31, 2007 Return Optimization Securities Linked to an Index (52522L319) Arthur Simons

29 October 31, 2007 Return Optimization Securities Linked to an Index (52522L327)

30 October 31, 2007 Return Optimization Securities Linked to an Index (52522L335) Arthur Simons

31 October 31, 2007 Return Optimization Securities with Partial Protection Linked to the S&P 500® Financials Index (52522L384)

32 November 7, 2007 Return Optimization Securities with Partial Protection Linked to the S&P 500 Index (52522L418)

33 November 14, 2007 Performance Securities with Partial Protection Linked to an International Index Basket (52522L426)

34 November 26, 2007 Performance Securities with Partial Protection Linked to a Global Index Basket (52522L475)

35 November 30, 2007 100% Principal Protection Notes Linked to an Asian Currency Basket (52520W333) Richard Barrett

36 November 30, 2007 100% Principal Protection Absolute Return Barrier Notes Linked to the MSCI EAFE Index (52522L376)



4



37 November 30, 2007 Return Optimization Securities Linked to an International Index Basket (52522L392)

38 November 30, 2007 Return Optimization Securities with Partial Protection Linked to the S&P 500® Index (52522L459) Lawrence Rose

39 December 31, 2007 Return Optimization Securities Linked to an International Index Basket (52522L483)

40 December 31, 2007 Return Optimization Securities with Partial Protection Linked to the S&P 500® Index (52522L491)

41 December 31, 2007 Performance Securities with Partial Protection Linked to a Global Basket Consisting of Indices and an Index Fund (52522L533)

42 January 31, 2008 100% Principal Protection Callable Spread Daily Accrual Notes with Interest Linked to the Spread between the 30-year and the 2-year Swap Rates (52517P4N8)

Lawrence Rose

43 January 31, 2008 100% Principal Protection Notes Linked to an Asian Currency Basket (52520W325) Grace Wang

44 January 31, 2008 100% Principal Protection Absolute Return Barrier Notes Linked to the S&P 500® Index (52522L525)

Mohan Ananda Nick Fotinos Stephen Gott

Shea-Edwards LP

45 February 8, 2008 Autocallable Optimization Securities with Contingent Protection Linked to the S&P 500® Financials Index (52522L657)

Joe Rottman

46 February 13, 2008 Return Optimization Securities with Partial Protection (52522L673)





5





51 February 29, 2008 100% Principal Protection Callable Spread Daily Accrual Notes with Interest Linked to the Spread between the 30-year and the 2-year Swap Rates (5252M0CZ8)

Miriam Wolf

52 February 29, 2008 Performance Securities Linked to an Asian Currency Basket (52522L632)

53 February 29, 2008 Return Optimization Securities with Partial Protection Notes Linked to the S&P 500® Index (52522L574)


55 February 29, 2008 100% Principal Protection Absolute Return Barrier Notes Linked to the Russell 2000® Index (52522L566)

Grace Wang

56 February 29, 2008 Securities Linked to the Relative Performance of the Consumer Staples Select Sector SPDR® Fund vs. the Consumer Discretionary Select Sector SPDR® Fund (52522L772)

57 February 29, 2008 100% Principal Protection Notes Linked to an Asian Currency Basket (52523J412) Harry Pickle

58 March 7, 2008 100% Principal Protection Notes Linked to an Asian Currency Basket (52523J420)

59 March 19, 2008 100% Principal Protection Absolute Return Barrier Notes Linked to the SPDR® S&P® Homebuilders ETF (52523J115)

60 March 25, 2008 Bearish Autocallable Optimization Securities with Contingent Protection Linked to the Energy Select Sector SPDR® Fund (52523J149)



6



61 March 28, 2008 Performance Securities with Partial Protection Linked to a Global Index Basket (52523J131)

62 March 31, 2008 100% Principal Protection Callable Spread Daily Accrual Notes with Interest Linked to the Spread between the 30-year and the 2-year Swap Rates (5252M0EK9)

63 March 31, 2008 100% Principal Protection Notes Linked to an Asian Currency Basket (52523J438)

64 March 31, 2008 Return Optimization Securities with Partial Protection Notes Linked to the S&P 500® Index (52522L806)

Shea-Edwards LP

65 March 31, 2008 Return Optimization Securities with Partial Protection Notes Linked to the MSCI EM Index (52522L814)

Harry Pickle

66 March 31, 2008 Bearish Autocallable Optimization Securities with Contingent Protection Linked to the Energy Select Sector SPDR® Fund (52522L871)

Shea-Edwards LP

67 March 31, 2008 100% Principal Protection Accrual Notes with Interest Linked to the Year-Over-Year Change in the Consumer Price Index (5252M0EV5)

68 March 31, 2008 100% Principal Protection Absolute Return Barrier Notes Linked to the Russell 2000® Index (52522L798)

Barbara Moskowitz

69 April 4, 2008 Return Optimization Securities Linked to a Basket of Global Indices (52522L848)

70 April 4, 2008 100% Principal Protection Absolute Return Barrier Notes Linked to a Basket of Global Indices (52522L830)

71 April 23, 2008 Return Optimization Securities with Partial Protection Linked to a Basket of Global Indices (52523J172)

Rick Fleischman



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72 April 30, 2008 100% Principal Protection Absolute Return Barrier Notes Linked to the Russell 2000 Index (52523J156)

73 May 12, 2008 Return Optimization Securities with Partial Protection (52523J503)

74 May 15, 2008 Return Optimization Securities with Partial Protection Linked to the S&P 500 Financials Index (52523J206)

Karim Kano

75 May 16, 2008 Return Optimization Securities with Partial Protection Linked to a Portfolio of Common Stocks (52523J222)

76 May 21, 2008 Performance Securities with Partial Protection Linked to Global Index Basket (52523J214)

77 May 30, 2008 Return Optimization Securities with Partial Protection Linked to the S&P 500® Financials Index (52523J230)

David Kotz

78 June 16, 2008 100% Principal Protection Absolute Return Notes Linked to the Euro/U.S. Dollar Exchange Rate (52520W283)

79 June 20, 2008 100% Principal Protection Notes with Interest Linked to the Year-Over-Year Change in the Consumer Price Index (5252M0FU6)

80 June 30, 2008 100% Principal Protection Notes with Interest Linked to the Year-Over-Year Change in the Consumer Price Index (5252M0CD7)

81 June 30, 2008 Return Optimization Securities with Partial Protection Linked to the PowerShares WilderHill Clean Energy Portfolio (52523J263)

82 June 30, 2008 Return Optimization Securities with Partial Protection (524935129)



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83 June 30, 2008 100% Principal Protection Absolute Return Barrier Notes (52523J248) Ed Davis

84 June 30, 2008 100% Principal Protection Absolute Return Barrier Notes (52523J255) Ed Davis


UNITED STATES DISTRICT COURT SOUTHERN DISTRICT … [Dkt. 1020] Reply ISO... · Plaintiffs in fact...

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Transcript of UNITED STATES DISTRICT COURT SOUTHERN DISTRICT … [Dkt. 1020] Reply ISO... · Plaintiffs in fact...