1 United States District Court District of Massachusetts 2
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1 1 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS 2 3 * * * * * * * * * * * * * * * * * * *ARKANSAS TEACHER RETIREMENT * 4 SYSTEM, on behalf of itself and * all others similarly situated * 5 Plaintiffs * CIVIL ACTION vs. * No. 11-10230-MLW 6 * *STATE STREET CORPORATION, * 7 STATE STREET BANK AND TRUST * COMPANY, AND STATE STREET GLOBAL * 8 MARKETS, LLC, * Defendants * 9 * * * * * * * * * * * * * * * * * * 10 11 Related cases: 11-cv-12049-MLW 12-cv-11698-MLW 12 13 14 BEFORE THE HONORABLE MARK L. WOLF UNITED STATES DISTRICT JUDGE 15 HEARING May 30, 2018 16 17 18 19 Courtroom No. 10 20 1 Courthouse Way Boston, Massachusetts 02210 21 22 JAMES P. GIBBONS, RPR/RMR Official Court Reporter 23 1 Courthouse Way, Suite 7205 Boston, Massachusetts 02210 24 [email protected] 25 2 1 APPEARANCES: 2 DONOGHUE BARRETT & SINGAL, (By William F. Sinnott, Esq., and Amy McEvoy, Esq. ), One Beacon Street, Suite 3 1320, Boston, Massachusetts 02108-3106, on behalf of the Hon. Gerald E. Rosen, Special Master 4 CHOATE, HALL & STEWART, LLP, (By Joan A. Lukey, 5 Esq., and Justin J. Wolosz, Esq.), 100-150 Oliver Street, Boston, Massachusetts 02110, on behalf of 6 Labaton Sucharow, LLP 7 NIXON PEABODY, LLP, (By Brian T. Kelly, Esq.), 100 Summer Street, Boston, Massachusetts 02110, on behalf 8 of the Thornton Law Firm, LLP 9 LIEFF CABRASER HEIMANN & BERNSTEIN, (By Richard M. Heimann, Esq.), 275 Battery Street, 30th Floor, San 10 Francisco, California 94111-3339, on behalf of Plaintiffs 11 12 WILMER HALE, LLP, (By William H. Paine, Esq., and Daniel W. Halston, Esq.), 60 State Street, Boston, 13 Massachusetts 02109, on behalf of Defendants 14 McTIGUE LAW, LLP, (By J. Brian McTigue, Esq.), 4530 Wisconsin Ave., N.W., Washington, D.C. 20016, on behalf 15 of various ERISA Funds 16 ZUCKERMAN SPAEDER, LLP, (By Carl S. Kravitz, Esq.), 1800 M Street, N.W., Washington, D.C. 20036, on behalf 17 of various ERISA Funds 18 KELLER ROHRBACK, LLP, (By Laura R. Gerber, Esq., via phone), 1201 Third Avenue, Suite 3200, Seattle, 19 Washington 98101, on behalf of The Andover Companies and James Pehoushek-Stangeland 20 21 ALSO PRESENT: George Hopkins 22 23 24 25 3 1 P R O C E E D I N G S 2 THE CLERK: All rise for this Honorable Court. 3 (Whereupon, the Court entered the courtroom.) 4 THE CLERK: This is Civil Action No. 11-10230, 5 Arkansas Teacher Retirement System versus State Street 6 Corporation. 7 Court is open. You may be seated. 8 THE COURT: Good afternoon. 9 There's Mr. Sinnott. 10 MR. SINNOTT: You may not have recognized me. 11 THE COURT: Would counsel please identify 12 themselves for the record. 13 MR. SINNOTT: Good afternoon, your Honor. My name 14 is William Sinnott, and I'm counsel to the Special Master. 15 MS. McEVOY: Good afternoon, your Honor. Elizabeth 16 McEvoy, also counsel to the Special Master. 17 MR. KELLY: Good afternoon, your Honor. Brian 18 Kelly on behalf of the Thornton Law Firm. 19 MR. WOLOSZ: Good afternoon, your Honor. Justin 20 Wolosz on behalf of Labaton Sucharow. 21 MS. LUKEY: Good afternoon, your Honor. Joan 22 Lukey, also on behalf of Labaton Sucharow. 23 MR. HEIMANN: Good afternoon, your Honor. Richard 24 Heimann, on behalf of Lieff Cabraser Heimann & Bernstein. 25 MR. PAINE: Bill Paine and Dan Halson from Wilmer 4 1 Hale for State Street. 2 THE COURT: Okay. 3 MR. KRAVITZ: Your Honor, Carl Kravitz, one of the 4 ERISA counsel for the amicus plaintiffs. 5 THE COURT: You can come in. What are you doing 6 out there? 7 MR. KRAVITZ: I don't know. 8 (Laughter.) 9 THE COURT: Who just came into the enclosure? 10 MR. McTIGUE: Brian McTigue, representing several 11 of the ERISA plaintiffs. 12 THE COURT: And Mr. Kravitz also for the some ERISA 13 plaintiffs? 14 MR. KRAVITZ: Yes, your Honor. 15 THE COURT: And who is on the phone, please? 16 MS. GERBER: Good afternoon. This is Laura Gerber 17 at Keller Rohrback for the Andover Companies, and James 18 Pehoushek-Stangeland. 19 THE COURT: All right. 20 I apologize for the delay in starting. I wanted to get 21 a little further organized. 22 Is Mr. Hopkins here from Arkansas Teachers? 23 MR. HOPKINS: Yes, your Honor. 24 THE COURT: Why don't you come in, and you can sit 25 in the jury box. 5 1 Do you have anybody else from Arkansas Teachers with 2 you? 3 MR. HOPKINS: No, your Honor. 4 (Whereupon, Mr. Hopkins moves to the jury box.) 5 THE COURT: I would like to try to assure that we 6 have a clear and common sense of where we are at the moment. 7 On March 8, 2017, I appointed retired Judge Gerry Rosen 8 to serve as Master in connection with investigating and 9 providing a Report and Recommendation on issues relating to 10 the $75 million in attorney's fees that I awarded in this 11 class action. 12 On May 14, 2018, the Master filed his Report and 13 Recommendations and an executive summary temporarily under 14 seal to permit the interested parties to propose redactions. 15 On May 16, I issued an order relating to a process for 16 presenting proposed redactions. I described the applicable 17 standards as I understand them. Essentially, judicial 18 records, or records on which judicial decisions are based, 19 are, presumptively, public. In some circumstances 20 redactions may be justified, and I mentioned properly 21 invoked attorney-client privilege and certain privacy 22 interests. 23 I ordered the parties to file any motions for 24 redactions, memos, and affidavits by May 31 under seal, and 25 I directed that redacted copies of those submissions be made 6 1 for the public record. 2 Labaton, Thornton, and Lieff, who I will refer to as 3 "the Lawyers" with a capital L, filed a motion for 4 clarification regarding what should be included in the 5 record to be filed in support of the Report and 6 Recommendation. 7 I ordered the parties to confer and report by May 24 on 8 that issue. 9 On May 24, the Lawyers filed a motion for a revised 10 schedule regarding redactions and unsealing of the Report 11 and Recommendation. 12 On May 25, I issued an order scheduling today's hearing 13 to address issues relating to redactions, to unsealing, to 14 the record to be filed by the Master, and to discuss whether 15 Arkansas Teacher should be replaced as lead plaintiff based 16 on the information in the Report and Recommendation; whether 17 there is now a conflict of interest between the Customer 18 Class counsel, Labaton, Thornton, and Lieff, and the class; 19 and whether new class counsel should be appointed to provide 20 independent advice to the lead plaintiff regardless whether 21 Arkansas Teacher continues in that role. 22 The Lawyers had asked for an extension of time to make 23 their submissions concerning redactions to June 11. In my 24 order I provide an extension to June 5 without prejudice to 25 granting a further extension to June 11 as requested. 7 1 So it is my intention to discuss these matters today. 2 Is there anything else that should be on the agenda? 3 MS. LUKEY: I don't believe so from our 4 perspective, your Honor. 5 MR. SINNOTT: Nothing from the Special Master, your 6 Honor. 7 THE COURT: All right. 8 I would like to start by telling you what my general 9 interests are and then hearing what yours are before we get 10 to the specifics. 11 My interests are in resolving the issues presented by 12 the Report and Recommendation fairly and as expeditiously as 13 reasonably possible. 14 I have an interest in recognizing the presumption of 15 public access to judicial records and proceedings. I think 16 it's particularly pronounced or important in this case that 17 there be maximum appropriate public access. This case 18 essentially was triggered by media interest, and 19 investigations and the adversary process did not work 20 previously. Now there is somewhat of an adversary process 21 with the Special Master, perhaps, but there may be relevant 22 information that should be brought to the Court's attention 23 that is known to members of the public or others who might 24 be interested that has not been presented. And I want to 25 use a fair process to make informed decisions concerning 8 1 whether any exceptions to the presumption of public access 2 to judicial records and proceedings are justified. 3 I also want to ensure that the interests of the class 4 are properly represented by a lead plaintiff who at this 5 point, as the case has evolved, satisfies the Rule 23 6 requirements of typicality and adequacy, and will vigorously 7 represent the interests of the class, and I want to make 8 sure that there is suitable counsel for the lead plaintiff. 9 So those are essentially my interests, my goals. 10 Perhaps we start with Labaton, since it seems to have 11 taken a leading role in some of the submissions to me. What 12 are Labaton's interests at this point? 13 MS. LUKEY: Your Honor, I would say that our 14 interests do not differ materially, but we do wish to be 15 sure that you understand certain context as we go forward. 16 First, I would like to be sure that you are aware that 17 the -- that many of the findings recommended, the findings 18 of fact and rulings of law, are very vigorously disputed.