Declaration Of Helen J. Hodges In Support Of Lead Counsel's ...

dated June 5, 2006 as It Pertains to Affiliated Ute (Docket No. 4898). The Response argued that
Lead Plaintiff had standing to pursue claims concerning the Foreign Debt Securities, and that Lead
Plaintiff were entitled to the presumption of reliance under Affiliated Ute. As mentioned above, the
Court denied Lead Plaintiff’s motion for reconsideration. With regard to the financial institutions
defendants’ submission, the Court denied the cross-motion, preserving its ruling on the application
of Affiliated Ute for a presumption of reliance on claims under Rule 10b-5(a) and (c). See 2/8/07
Opinion and Order re Motion for Reconsideration (Docket No. 5391) at 44-45.
270. On July 17, 2006 and July 18, 2006, defendants Credit Suisse, V&E, Barclays and
Merrill Lynch filed petitions in the Fifth Circuit Court of Appeals seeking interlocutory review under
Rule 23(f) of the Court’s order granting class certification. In the petitions, Credit Suisse argued that
an appeal was warranted because it would resolve the controlling and unsettled question of a
secondary actor’s primary liability, provide guidance on the issue of joint and several liability and
the Court erred in applying the Affiliated Ute presumption of reliance; V&E argued for appeal
because the Court’s application of the fraud-on-the-market presumption of reliance rested on a
flawed theory of liability, later review was threatened by the amount of damages claimed, and Lead
Plaintiff lacked standing to sue the defendant for Enron’s statements; Barclays argued for appeal
because the Court’s class certification decision was based on an incorrect interpretation of Central
Bank and the PSLRA, the Court erroneously held that two presumptions of reliance were applicable,
and the Court misinterpreted the scope of joint-and-several liability; Merrill Lynch argued for appeal
to review the Court’s ruling on the question of primary liability, because the Affiliated Ute
presumption did not apply, the requirements of Greenberg were not met, and addressing the
application of joint-and-several liability would resolve a novel question of law fundamental to class
certification. On July 28, 2006, Lead Counsel filed Plaintiffs’ Combined Answer in Opposition to
Credit Suisse’s, Merrill Lynch’s, Vinson & Elkins’ Petitions for Permission to Appeal (Fed. R. Civ.
- 149 -