In the United States Court of Appeals for the Seventh Circuit

Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (1 of 141) No. 20-____

IN RE KENNY K. WANG, KATHLEEN WANG, AND KENNY W. WANG, Petitioners.

On Petition for a Writ of Mandamus to the United States District Court for the Northern District of Illinois in No. 19-CV-2394, Hon. John J. Tharp, Jr., District Judge

PETITION FOR A WRIT OF MANDAMUS

Lewis S. Kahn Daniel L. Geyser KAHN SWICK & FOTI, LLC GEYSER P.C. 1100 Poydras St., Ste. 3200 One Energy Square New Orleans, LA 70163 4925 Greenville Ave., Ste. 200 Tel.: (504) 455-1400 Dallas, TX 75206 [email protected] Tel.: (214) 800-2660 [email protected] Counsel for Petitioners Appellate Counsel for Petitioners Marvin A. Miller Andrew Szot MILLER LAW LLC 115 S. LaSalle St., Ste. 2910 Chicago, IL 60603 Tel.: (312) 332-3400 [email protected] [email protected]

Local Counsel for Petitioners

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TABLE OF CONTENTS

Page

Introduction ...... 1

Relief sought ...... 4

Issue presented ...... 4

Statement ...... 4

Reasons why the writ should issue ...... 8

I. Mandamus is appropriate to correct the misreading and misapplication of the PSLRA’s scheme for appointing lead plaintiffs ...... 8

II. The district court’s lead-plaintiff analysis violated the PSLRA’s statutory scheme ...... 10

A. Per the PSLRA’s plain text and structure, a lead plaintiff cannot be disqualified based on “questions” or “concerns” alone—the PSLRA requires actual “proof” that a party “will not” adequately represent the class ...... 10

B. The court applied the wrong standard in assessing prima facie “adequacy” under the PSLRA and Rule 23 ...... 15

1. The court wrongly required petitioners to “prove” they satisfied Rule 23, whereas stage one requires only a “prima facie” showing ...... 16

2. The court wrongly raised the adequacy threshold above and beyond Rule 23’s traditional requirements ...... 19

3. The court erred by refusing to provide any opportunity to satisfy its (improper) heightened standard ...... 22 i

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TABLE OF CONTENTS (continued) Page

C. The court’s contrary rationale lacks merit ...... 25

1. The court failed to identify any relevant authority to support its misreading and misapplication of the PSLRA ...... 25

2. The court’s factual findings lacked merit—and were premised on baseless suppositions refuted by actual evidence ...... 27

Conclusion ...... 37

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TABLE OF AUTHORITIES

Page(s)

Cases: Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ...... 20 Beaton v. SpeedyPC Software, 907 F.3d 1018 (7th Cir. 2018) ...... 33 Berger v. Compaq Computer Corp., 257 F.3d 475 (5th Cir. 2001) ...... 22 Berger v. Compaq Computer Corp., 279 F.3d 313 (5th Cir. 2002) ...... 26 Bhojwani v. Pistiolis, No. 06-13761, 2007 WL 9228588 (S.D.N.Y. July 31, 2007) ...... 34 Bieter Co., In re, 16 F.3d 929 (8th Cir. 1994) ...... 9 Brady v. Top Ships Inc., 324 F. Supp. 3d 335 (S.D.N.Y. 2018) ...... 16 Camp v. Qualcomm Inc., No. 18-1208, 2019 U.S. Dist. LEXIS 130746 (S.D. Cal. Aug. 5, 2019) ...... 27 Cavanaugh, In re, 306 F.3d 726 (9th Cir. 2002) ...... passim Cendant Corp. Litig., In re, 264 F.3d 201 (3d Cir. 2001) ...... passim Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367 (2004) ...... 8, 10 City of Sterling Heights Gen. Emps.’ Retirement Sys. v. Hospira, Inc., No. 11-8332, 2012 WL 1339678 (N.D. Ill. 2012) ...... 20 Cohen, In re, 586 F.3d 703 (9th Cir. 2009) ...... 9 Conseco, Inc. Sec. Litig., In re, 120 F. Supp. 2d 729 (S.D. Ind. 2000) ...... 26 Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170 (3d Cir. 2012) ...... 20 DVI Inc. Sec. Litig., In re, 249 F.R.D. 196 (E.D. Pa. 2008) ...... 33 eSpeed, Inc. Sec. Litig., In re, 232 F.R.D. 95 (S.D.N.Y. 2005) ...... 18 Ferrari v. Gisch, 225 F.R.D. 599 (C.D. Cal. 2004) ...... 18, 26, 33 Fuwei Films Sec. Litig., In re, 247 F.R.D. 432 (S.D.N.Y. 2008) ...... 20

iii

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TABLE OF AUTHORITIES (continued) Page(s)

Garbowski v. Tokai Pharm., Inc., 302 F. Supp. 3d 441 (D. Mass. 2018) ...... 34 Gemstar-TV Guide Int’l, Inc. Sec. Litig., In re, 209 F.R.D. 447 (C.D. Cal. 2002) ...... 26 Hedick v. Kraft Heinz Co., No. 19-1339, 2019 WL 4958238 (N.D. Ill. Oct. 8, 2019) ...... 20 Hudson, In re, 710 F.3d 716 (7th Cir. 2013) ...... 10 Johnson v. Tellabs, 214 F.R.D. 225 (N.D. Ill. 2002) ...... 19 Karkus, In re, No. 09-1500, 2010 WL 358974 (10th Cir. Jan. 27, 2010) ...... 8 Karp v. Diebold Nixdorf, Inc., No. 19-6180, 2019 WL 5587148 (S.D.N.Y. Oct. 30, 2019) ...... 26, 27 Karp v. Diebold Nixdorf, Inc., No. 19-6180, 2019 WL 6619351 (S.D.N.Y. Dec. 5, 2019) ...... 15 Kellogg Brown & Root, Inc., In re, 756 F.3d 754 (D.C. Cir. 2014) ...... 9 Koon v. United States, 518 U.S. 81 (1996) ...... 9 Lacy v. Cook County, 897 F.3d 847 (7th Cir. 2018) ...... 20 Li Hong Cheng v. Canada Goose Holdings Inc., No. 19-8204, 2019 U.S. Dist. LEXIS 209946 (S.D.N.Y. Dec. 5, 2019) ...... 34 Lifson v. Assisted Living Concepts, Inc., No. 12-884, 2012 WL 12929878 (E.D. Wis. Nov. 14, 2012) ...... 20 Micholle v. Ophthotech Corp., No. 17-0210, 2018 U.S. Dist. LEXIS 41120 (S.D.N.Y. Mar. 13, 2018) ...... 34 Morris v. Wachovia Sec., Inc., 223 F.R.D. 284 (E.D. Va. 2004) ...... 22 Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Labranche & Co., 229 F.R.D. 395 (S.D.N.Y. 2004) ...... 22

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TABLE OF AUTHORITIES (continued) Page(s)

Piven v. Sykes Enters., Inc., 137 F. Supp. 2d 1295 (M.D. Fla. 2000) ...... 22, 27 Plaut v. Goldman Sachs Grp., Inc., No. 18-12084, 2019 U.S. Dist. LEXIS 160255 (S.D.N.Y. Sep. 19, 2019) ...... 34 Reitan v. China Mobile Games & Entm’t Group, Ltd., 68 F. Supp. 3d 390 (S.D.N.Y. 2014) ...... 20, 34 Rolls Royce Corp., In re, 775 F.3d 671 (5th Cir. 2014) ...... 9 Shah v. Zimer Biomet Holdings, Inc., No. 16-815, 2017 WL 1207158 (N.D. Ind. Apr. 3, 2017) ...... 20 Star Gas Sec. Litig., In re, No. 04-1766 , 2005 U.S. Dist. LEXIS 5827 (D. Conn. Apr. 8, 2005) ...... 34 Stein v. KPMG, LLP, 486 F.3d 753 (2d Cir. 2007) ...... 9 Varghese v. China Shenghuo Pharm. Holdings, Inc., 589 F. Supp. 2d 388 (S.D.N.Y. 2008) ...... 17 Wagner v. Spectrum Brands Legacy, Inc., No. 19-0178, 2019 U.S. Dist. LEXIS 98251 (W.D. Wis. June 12, 2019) ...... 17 Wolfe v. AspenBio Pharma, Inc., 275 F.R.D. 625 (D. Colo. 2011) ...... 20

Statutes and rule: Private Securities Litigation Reform Act of 1995 (PSLRA), Pub. L. No. 104-67, 109 Stat. 737 ...... passim 15 U.S.C. 78u-4(a)(2)(A) ...... 34 15 U.S.C. 78u-4(a)(2)(A)(i) ...... 32 15 U.S.C. 78u-4(a)(2)(A)(ii) ...... 32 15 U.S.C. 78u-4(a)(2)(A)(iii) ...... 32 15 U.S.C. 78u-4(a)(2)(A)(iv) ...... 32

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TABLE OF AUTHORITIES (continued) Page(s)

15 U.S.C. 78u-4(a)(2)(A)(vi) ...... 32 15 U.S.C. 78u-4(a)(3)(B)(iii) ...... passim 15 U.S.C. 78u-4(a)(3)(B)(iii)(I) ...... passim 15 U.S.C. 78u-4(a)(3)(B)(iii)(I)(bb) ...... passim 15 U.S.C. 78u-4(a)(3)(B)(iii)(I)(cc) ...... passim 15 U.S.C. 78u-4(a)(3)(B)(iii)(II) ...... passim 15 U.S.C. 78u-4(a)(3)(B)(iv) ...... passim 15 U.S.C. 78u-4(b)(3)(B) ...... 8 15 U.S.C. 78u-4(e)(1)-(2) ...... 33 15 U.S.C. 78u-4(e)(2) ...... 33 Fed. R. Civ. P. 23 ...... passim

Miscellaneous: 7 Newberg on Class Actions § 22.74 ...... 20

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INTRODUCTION

This petition arises from a putative class action asserting securities fraud against Boeing and its executives regarding the safety of its 737 MAX aircraft. The petition presents critical federal issues that have divided the circuits, generated confusion in district courts, and interfered with the proper appointment of lead plaintiffs under the Private Securities Litigation Reform

Act of 1995 (PSLRA). The decision below frustrates Congress’s careful design for selecting lead plaintiffs, and eliminates petitioners’ statutory right to lead this litigation as the party indisputably with the largest financial interest in the case. Absent this Court’s intervention now, the issue will be effectively im- mune from appellate review, leaving the PSLRA’s proper construction in the hands of lower courts alone. Mandamus is warranted.

This petition presents legal questions of “great importance” regarding the PSLRA’s “detailed and interrelated procedures for choosing a lead plaintiff.” In re Cendant Corp. Litig., 264 F.3d 201, 218 (3d Cir. 2001). Despite their modest lifestyle, petitioners are a family of substantial wealth. They invested

$40 million in Boeing stock over the class period, and lost significantly more than any other movant for lead plaintiff. They submitted declarations

1 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (9 of 141) certifying their losses, and confirming their desire and ability to lead the class and represent its interests.

Yet the district court disqualified petitioners from the role of lead plaintiff due to a series of perceived “questions,” “concerns,” and “red flags,” all turning predominantly on the court’s own sense of the “implausib[ility]” of petitioners’ sworn declarations. Doc. 109 at 11, 15. The court’s analysis is premised on manifest legal and factual errors. It flouts the PSLRA’s text and structure, and its ultimate holding turns on “concerns” and “questions” directly at odds with reality—as the court would have discovered had it permitted a hearing or fact-based submissions before making fact-based rulings. It considered the wrong factors at the wrong time, and it disqualified a presumptive lead plaintiff based on admitted speculation alone—which is perhaps sufficient under the PSLRA to order discovery, but insufficient to displace a party’s presumptive leading role. And the court further erred in setting aside the minimal proof necessary to satisfy the PSLRA’s threshold burden, all while faulting petitioners for failing to submit robust evidence (without any formal notice) that is legally unnecessary at this stage.

The PSLRA sets out a clear scheme: a presumptive lead plaintiff is disqualified only upon actual “proof” that it in fact “will not” adequately

2 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (10 of 141) represent the class, and in fact “is” subject to specified defenses. 15 U.S.C.

78u-4(a)(3)(B)(iii). That clear text requires affirmative findings, not mere “red

flags.” Reasonable concerns may warrant discovery (15 U.S.C. 78u-

4(a)(3)(B)(iv)), but they do not warrant (or permit) disqualification (15 U.S.C.

78u-4(a)(3)(B)(iii))—and the district court unambiguously confused those two

critical standards. Had the court instead followed the statutory scheme, it

would have developed the facts and discovered, inevitably, that petitioners in-

deed are sophisticated investors with substantial wealth, who did indeed ac-

quire the exact shares (and suffer the greatest losses) affirmed under oath,

repeatedly, in multiple court filings.

The district court wrongly brushed petitioners aside despite their stat-

utory right to lead this litigation. The court’s findings fail the PSLRA’s oper-

ative requirements on every level, and its statutory reading invites a direct

conflict with other circuits. This petition presents pure legal issues of excep-

tional importance and extraordinary practical significance. The Court should

grant mandamus, and instruct the district court to appoint petitioners as lead

plaintiff under the proper legal standard.

3 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (11 of 141)

RELIEF SOUGHT

Petitioners seek a writ of mandamus vacating the court’s lead-plaintiff

orders and directing it to appoint petitioners as lead plaintiff; alternatively,

those orders should be vacated, and the court should be instructed to follow

the PSLRA’s mandatory process for appointing lead plaintiffs.

ISSUE PRESENTED

Whether, under the PSLRA, a court may disqualify a presumptive lead

plaintiff based on “concerns” and “red flags” alone, where the plaintiff is prima

facie “adequate” but fails, without notice, to “prove” it satisfies a higher “ade-

quacy” threshold beyond Rule 23’s traditional requirements.

STATEMENT

1. Congress enacted the PSLRA to “establish[] a detailed and integrated

procedure for selecting a lead plaintiff” in “securities class actions.” Cendant,

264 F.3d at 262. The Act divides the process into two stages.

First, Congress instructs courts to identify the “presumptively most adequate plaintiff”:

[T]he court shall adopt a presumption that the most adequate plaintiff in any private action arising under this title is the person or group of persons that— * * * (bb) in the determination of the court, has the largest financial interest in the relief sought by the class; and

4 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (12 of 141)

(cc) otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure.

15 U.S.C. 78u-4(a)(3)(B)(iii)(I).

Second, once that party is identified, the process “give[s] other plaintiffs

an opportunity to rebut the presumptive lead plaintiff’s showing” (In re

Cavanaugh, 306 F.3d 726, 729-730 (9th Cir. 2002)):

The presumption described in subclause (I) may be rebutted only upon proof by a member of the purported plaintiff class that the presumptively most adequate plaintiff— (aa) will not fairly and adequately protect the interests of the class; or (bb) is subject to unique defenses that render such plaintiff incapable of adequately representing the class.

15 U.S.C. 78u-4(a)(3)(B)(iii)(II). Congress authorized limited “discovery” at

this second stage, but “only if the plaintiff first demonstrates a reasonable ba-

sis for a finding that the presumptively most adequate plaintiff is incapable of

adequately representing the class.” 15 U.S.C. 78u-4(a)(3)(B)(iv).

2. a. Two class actions were filed against Boeing and its executives for

securities fraud regarding the 737 MAX’s safety. After the cases were consol-

idated, seven applicants sought appointment as lead plaintiff. Doc. 109 at 1-2.

Petitioners bought $40 million of shares during the class period and cer-

tified losses of $4.7 million (Doc. 45-1), “almost twice” that of the next candi-

date, the Public Employees Retirement System of Mississippi (MPERS). Doc.

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109 at 7. With the greatest losses, petitioners would qualify as presumptive lead plaintiff by satisfying Rule 23’s “adequacy and typicality” requirements.

Id. at 3-4.

While no one contested typicality, MPERS challenged petitioners’ “presumptive status” by attacking their claimed losses and their “adequacy.” Doc.

109 at 7-8. MPERS privately investigated petitioners, their neighbors, and their colleagues, and highlighted their modest lifestyle, ordinary jobs, and lack of obvious wealth. Id. at 10-11.

Petitioners responded with sworn declarations:

 Wang Sr. is a 30-year investor and retired philanthropist.

 Petitioners understood their fiduciary duties to the class.

 Petitioners were “committed to vigorously prosecut[e] this litigation” and “provide fair and adequate representation.”

 Petitioners retained expert securities counsel and “negotiated a very favorable retainer agreement.”

 Petitioners’ lifestyle does not reflect “the[ir] wealth” “accumulated over decades of hard work, savings and investments.”

 Petitioners would submit their trading confirmations “in camera if requested by the Court.”

Doc. 100 at 1-2.

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b. Notwithstanding these under-oath affirmations, the court disqualified petitioners. Without “mak[ing any] finding[s],” the court cited a series of “red flags,” “doubts,” “concerns,” and “implausible and uncorroborated explanation[s],” questioning both petitioners’ “adequacy” and “the bona fides of their claimed investments.” Doc. 109 at 7-16. The court stated petitioners’ perceived

“reluctance to provide basic information” suggests petitioners valued “privacy” over serving as lead plaintiff. Id. at 14. The court instead appointed

MPERS lead plaintiff.

c. Petitioners sought reconsideration, controverting the court’s concerns with Wang Sr.’s recent tax returns (reflecting $9.5 million in capital gains), his success in real-estate, investment strategies, and investment sophistication; their trading records; biographical information, including Mrs. Wang’s past as a realtor and longtime employment in a Nevada licensing division, and Wang

Jr.’s co-ownership of a pest-control business; and their commitment to supervise and participate in the litigation. Doc. 132-1, 132-2, 132-3.

The court denied reconsideration: “[t]he Court did not err in requiring

[petitioners] to provide some meaningful information about their backgrounds, financial, and litigation experience.” Doc. 140 at 12. It reiterated earlier “doubt[s]” and “red flags”; faulted petitioners for not previously

7 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (15 of 141) substantiating “their financial experience,” “trading histories,” “financial sophistication,” or “ability to manage and direct complex” litigation; and criticized petitioners for a minor error in their “loss charts” and not disclosing that some Boeing stock was purchased on “margin.” Id. at 2, 4-5, 7, 9-10.

d. The case is still pending at its earliest stages, awaiting Boeing’s motion to dismiss. See 15 U.S.C. 78u-4(b)(3)(B) (staying “discovery and other proceedings” pending such motions).

REASONS WHY THE WRIT SHOULD ISSUE

I. MANDAMUS IS APPROPRIATE TO CORRECT THE MISREADING AND MISAPPLICATION OF THE PSLRA’S SCHEME FOR APPOINTING LEAD PLAINTIFFS

Mandamus can correct a “judicial ‘usurpation of power’” or “‘clear abuse of discretion.’” Cheney v. U.S.D.C., 542 U.S. 367, 380 (2004). The standard is

“demanding” but “not insuperable.” Id. at 381. Indeed, courts have already recognized mandamus’s role in “vacat[ing] lead-plaintiff appointments made in disregard of the [PSLRA]” (In re Karkus, No. 09-1500, 2010 WL 358974, at

*1 (10th Cir. Jan. 27, 2010)), especially involving “‘new and important problems” or legal issues of “first impression.’” Cavanaugh, 306 F.3d at 728-729.

This case is a strong candidate for mandamus. Mandamus may address a court’s abuse of discretion, and a “court by definition abuses its discretion

8 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (16 of 141) when it makes an error of law.” Koon v. United States, 518 U.S. 81, 100 (1996);

In re Rolls Royce Corp., 775 F.3d 671, 681 (5th Cir. 2014). While some lead- plaintiff disputes are fact-bound, this case presents pure legal questions regarding the PSLRA’s “standards for appointing lead counsel.” Cavanaugh,

306 F.3d at 740 (Wallace, J., concurring). Those questions are exceptionally important and have divided the courts, and there is an obvious need for further guidance. E.g., In re Kellogg Brown & Root, Inc., 756 F.3d 754, 763 (D.C. Cir.

2014); In re Bieter Co., 16 F.3d 929, 931 (8th Cir. 1994).

Legal certainty is paramount here. “‘[M]andamus is particularly appropriate” when courts are required to construe “a federal procedural rule in a new context.’” In re Cohen, 586 F.3d 703, 711 (9th Cir. 2009); Stein v. KPMG,

LLP, 486 F.3d 753, 759 (2d Cir. 2007). Congress created a specific process for selecting lead plaintiffs in securities cases, and granted those parties a statutory right to “direct and oversee the litigation.” Cavanaugh, 306 F.3d at 740

(Wallace, J., concurring). As here, these cases often have millions or billions at stake. The proper standards are often heavily contested, and the existing confusion will continue to consume judicial and party time and resources absent appellate intervention.

9 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (17 of 141)

This vehicle provides an ideal opportunity to resolve important ques-

tions of federal securities law, and petitioners otherwise lack “an adequate

remedy” for review. Cavanaugh, 306 F.3d at 740 (Wallace, J., concurring). The

PSLRA’s proper construction should not be immunized from appellate scru-

tiny, and mandamus is the “appropriate” means for resolving these critical

questions. Cheney, 542 U.S. at 381; In re Hudson, 710 F.3d 716, 717 (7th Cir.

2013).

II. THE DISTRICT COURT’S LEAD-PLAINTIFF ANALYSIS VIOLATED THE PSLRA’S STATUTORY SCHEME

A. Per The PSLRA’s Plain Text And Structure, A Lead Plaintiff Cannot Be Disqualified Based on “Questions” Or “Concerns” Alone—The PSLRA Requires Actual “Proof” That A Party “Will Not” Adequately Represent The Class

The district court’s analysis is incompatible with the PSLRA. Congress

divided the process for selecting lead plaintiffs into two stages. The first re-

quires only an initial, prima facie showing from the party’s own pleadings and

declarations; that prima facie showing is not tested until the second stage, where Congress authorized discovery (into “reasonable” concerns) followed by

actual findings and affirmative proof. Any concerns or red flags warrant dis-

covery in the second phase, not disqualification in the first. As the PSLRA un-

mistakably provides, the statutory right to lead the litigation cannot be set

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aside absent actual “proof” of inadequacy under Rule 23’s minimal require-

ments. There is no authority to disqualify a lead plaintiff based on “red flags” alone.

The district court flipped this “mandatory” process on its head.

Cavanaugh, 306 F.3d at 729. It disqualified petitioners based on unsubstanti- ated guesswork, without discovery, without an opportunity to respond, and certainly without any “proof” of inadequacy. If the court had concerns, Con- gress made clear it had to order discovery, make findings, and identify actual

“proof.” It instead disqualified petitioners based on a collection of “doubts” that, as it turns out, were entirely unfounded—indeed, contradicted by petitioners’ sworn certifications that readily satisfied stage one’s threshold requirements. Had the court followed the PSLRA’s plain scheme, it would have avoided these errors; it instead flouted the Act’s text and structure, and de- prived petitioners of their statutory right as lead plaintiff. That clear legal error warrants mandamus.

1. The PSLRA enumerates a two-step process for selecting lead plaintiffs: (i) an initial stage for determining the “presumptive” lead plaintiff (15

U.S.C. 78u-4(a)(3)(B)(iii)(I)), and (ii) a “rebuttal” stage where others can seek to disqualify that party (15 U.S.C. 78u-4(a)(3)(B)(iii)(II)).

11 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (19 of 141)

In stage one, Congress imposed “a presumption that the most adequate

plaintiff” is the party with “the largest financial interest” who “otherwise sat-

isfies” Rule 23. 15 U.S.C. 78u-4(a)(3)(B)(iii)(I)(bb)-(cc). That standard is met

by a “preliminary,” “prima facie” showing with the applicant’s own “pleadings

and declarations.” Cavanaugh, 306 F.3d at 729. It does not require extrinsic or corroborating evidence, and it is not open to third-party challenge at this stage. Id. at 729-730.

Once the presumptive lead plaintiff is identified, the court addresses any doubts or concerns at stage two. Parties can attack the lead plaintiff’s threshold showing, seek discovery, and ultimately move to disqualify the presumptive lead plaintiff. But the standard is high: it requires “proof” that the lead plaintiff in fact “will not” (not “might not”) “fairly and adequately” represent the class; “questions” or “concerns” are not enough. 15 U.S.C. 78u-

4(a)(3)(B)(iii)(II).1

1 The text confirms that discovery is limited to the rebuttal phase. The court cannot authorize discovery until a “plaintiff first demonstrates” “reasonable” concerns with the “presumptively most adequate plaintiff,” and the presumptively most adequate plaintiff is not selected until the end of stage one. This underscores Congress’s understanding that the time for real evidence is after the prima facie showing is made, not before; if parties were expected to sub- stantiate their threshold showing with a detailed record, Congress presumably would have authorized discovery during the initial process, not only after the presumptive lead plaintiff is identified. 15 U.S.C. 78u-4(a)(3)(B)(iv).

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2. The district court departed from the PSLRA’s statutory scheme.

a. Petitioners’ “pleadings and declarations” satisfied their initial prima facie showing. Cavanaugh, 306 F.3d at 729. Their submission, under oath, revealed they suffered the largest loss; noted their background and qualifications, including Wang Sr.’s investment and philanthropic experience; attested they understood their fiduciary obligations and role; expressed their willingness to participate in the litigation and monitor class counsel; and confirmed their selection of expert securities counsel on a “very favorable” retainer. Doc.

100 at 1-2; Doc. 45-1. There was no hint of any class conflict—which is unsur- prising, given that petitioners, and the class, all purchased Boeing stock at inflated prices due to the same fraud.

This showing established what all sides agreed was required for a prima facie case. “[B]ased on the information * * * provided in [their] pleadings and declarations” (Cavanaugh, 306 F.3d at 729), petitioners (i) had the largest “financial interest”; and (ii) otherwise satisfied the threshold showing of “adequacy” under Rule 23—their claims were “‘not antagonistic or in conflict with those of the class,’” they “ha[d] sufficient interest in the outcome of the case to ensure vigorous advocacy,’” and they were “‘represented by competent,

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experienced counsel’” (Doc. 55 at 7-8). Petitioners thus met the qualifications

of presumptive lead plaintiff. 15 U.S.C. 78u-4(a)(3)(B)(iii)(I)(bb)-(cc).

b. Yet the court still disqualified petitioners, citing perceived “red flags,”

“questions,” and “concerns.” Doc. 109 at 11, 15. The court did not authorize

discovery, direct petitioners to provide more information, accept petitioners’

offer to provide more information, or hold a hearing to probe its “concerns” on

the record. Indeed, the court did not even purport to identify actual disqualifying “proof.” Instead, it merely noted doubts about petitioners’ wealth, the

“bona fides” of petitioners’ losses, and petitioners’ adequacy, and therefore rejected petitioners’ statutory right to lead the class based on speculation alone.

The court’s analysis contravenes the statutory scheme. Under the

PSLRA’s “straightforward” command (Cavanaugh, 306 F.3d at 729), courts may not disqualify a lead plaintiff based on mere concerns—the text requires

“proof.” 15 U.S.C. 78u-4(a)(3)(B)(iii)(II). “[R]easonable” concerns might warrant discovery (15 U.S.C. 78u-4(a)(3)(B)(iv)), but actual disqualification requires affirmative findings (not “questions” or “red flags”) that statutory requirements are unmet (15 U.S.C. 78u-4(a)(3)(B)(iii)).

The court admitted (twice) that it did not make the requisite findings.

Nor did it demand evidence or make responsible, informed determinations of

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the issues. It ignored the clear distinction between the findings necessary to

disqualify a party and the findings necessary to justify discovery to further

examine the lead-plaintiff issue. If the court felt that certain circumstances

justified a closer look, its proper course was—to order a closer look. But the

PSLRA does not authorize striking a party based on speculation or concerns

about what the actual “proof” might ultimately show. 15 U.S.C. 78u-

4(a)(3)(B)(iii)(II)(aa); see Cendant, 264 F.3d at 270 (“[a]llegations of impropri-

ety are not proof of wrongdoing”); Karp v. Diebold Nixdorf, Inc., No. 19-6180,

2019 WL 6619351, at *2 (S.D.N.Y. Dec. 5, 2019) (“this requires something be-

yond mere speculation”).

Had the court followed the PSLRA’s directives, it would have resolved

these issues based on actual evidence, and it would have, at a minimum, pro-

vided petitioners a fair opportunity to address its “concerns.” And that oppor-

tunity would have revealed the state of the real world—where the facts readily

support petitioners as lead plaintiff. The court’s conflicting analysis violates

the PSLRA and warrants mandamus.

B. The Court Applied The Wrong Standard In Assessing Prima Fa- cie “Adequacy” Under The PSLRA And Rule 23

The court also violated the PSLRA in assessing petitioners’ adequacy, making three critical errors. First, it required petitioners to prove adequacy

15 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (23 of 141)

at stage one, whereas the PSLRA requires only a preliminary showing. Sec- ond, it departed from Rule 23’s traditional standards, imposing additional requirements (without notice) not required by the PSLRA or Rule 23. Finally, the court compounded these errors by refusing to grant petitioners an opportunity to meet its new test—while faulting petitioners for failing to foresee the court’s (extra-statutory) demands. Each failure constitutes clear error.

1. The court wrongly required petitioners to “prove” they satisfied Rule 23, whereas stage one requires only a “prima facie” showing

The court erred by effectively requiring petitioners to prove adequacy, contrary to the minimal showing necessary at stage one.

a. As other circuits have confirmed, the PSLRA requires only a “prima facie showing” to trigger the initial “presumption” under Subsection

(a)(3)(B)(iii)(I). Cavanaugh, 306 F.3d at 730-731 & n.6; Cendant, 264 F.3d at

263-264 (“the court’s initial inquiry should be confined to determining whether such movants have stated a prima facie case”). “[B]oth the statutory structure and the legislative history suggest” the “initial inquiry * * * need not be extensive.” Cendant, 264 F.3d at 264; Brady v. Top Ships Inc., 324 F. Supp. 3d 335,

350 (S.D.N.Y. 2018). The showing is made with “pleadings and declarations” that address Rule 23’s basic requirements; detailed information and evidence

16 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (24 of 141)

are not required. Cavanaugh, 306 F.3d at 730; see also Cendant, 264 F.3d at

264; Varghese v. China Shenghuo Pharm. Holdings, Inc., 589 F. Supp. 2d 388,

397 (S.D.N.Y. 2008).

This construction is necessary to “harmonize[]” the PSLRA’s neighbor-

ing provisions. Cavanaugh, 306 F.3d at 731 n.6. On its face, the statute “sim- ultaneously appears to make ‘typicality’ and ‘adequacy’ both part of the threshold identification of the presumptive lead plaintiff and the sole means of rebut- ting the lead plaintiff presumption.” Cendant, 264 F.3d at 263. But it makes little sense to say that the lead plaintiff has to prove adequacy at stage one when other parties then immediately seek to rebut adequacy at stage two. Id. at 263-264. This “apparent incongruity is easily resolved”: if the first stage

“requires only a prima facie showing,” then “the two subsections are reasona- bly harmonious.” Cavanaugh, 306 F.3d at 730; Wagner v. Spectrum Brands

Legacy, Inc., No. 19-0178, 2019 U.S. Dist. LEXIS 98251, at *9 (W.D. Wis. June

12, 2019).

Consequently, petitioners were required only to meet each factor necessary for a prima facie case. Cendant, 264 F.3d at 264-265. If the court or other parties had concerns given the surrounding circumstances, those concerns could be raised and resolved during stage two’s rebuttal phase, just as the

17 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (25 of 141)

statutory design contemplates. But the initial phase is satisfied based on a

“preliminary” showing of adequacy, and petitioners’ pleadings and declara-

tions easily surpassed that low threshold.

b. The court erred by requiring more than a prima facie case. Doc. 109

at 16. Refusing to accept petitioners’ sworn statements at face value, it de-

manded (post-hoc) additional evidence, faulting petitioners for not submitting

actual proof confirming their purchase of Boeing stock or substantiating their

wealth. It likewise refused to accept petitioners’ declaration that they under-

stood their fiduciary role and were prepared to actively litigate the case; in-

stead, the court concluded petitioners’ failure to submit additional evidence

suggested petitioners valued their privacy more than their role as lead plain-

tiff. Doc. 109 at 14-16.

It was error to demand this type of proof at stage one. Petitioners’ cer-

tifications and declarations “stated a prima facie case of typicality and ade-

quacy” (Cendant, 264 F.3d at 264), and nothing more was required at the initial stage. In re eSpeed, Inc. Sec. Litig., 232 F.R.D. 95, 102 (S.D.N.Y. 2005); Fer- rari v. Gisch, 225 F.R.D. 599, 606 (C.D. Cal. 2004). There was time enough to submit substantiating proof at stage two, where the prima facie case is tested by other parties. By requiring petitioners to preempt any concerns and prove

18 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (26 of 141)

adequacy at the outset, the court ran headlong into the problem flagged by

Cendant and Cavanaugh—it collapsed the PSLRA’s two stages into a single step, inviting a circuit conflict in the process. A threshold showing is possible without the detail or evidence the court demanded. Its analysis conflicts with the PSLRA.

2. The court wrongly raised the adequacy threshold above and beyond Rule 23’s traditional requirements

a. The court declared petitioners inadequate based on factors unnecessary under the PSLRA and Rule 23. This was error: “the Reform Act did not change the standard for adequacy,” but left the inquiry “the same” for selecting “lead plaintiff[s] in securities cases” as in “other cases.” Cavanaugh, 306

F.3d at 736. Courts applying the PSLRA thus should “apply traditional Rule

23 principles.” Cendant, 264 F.3d at 264-265.

Under the “traditional” framework, a minimal showing surpasses the

“adequacy” threshold: according to MPERS itself, “[a]dequacy is established where the proposed lead plaintiff: (1) has claims that ‘are not antagonistic or in conflict with those of the class; (2) has sufficient interest in the outcome of the case to ensure vigorous advocacy; and (3) is represented by competent, experienced counsel who [is] able to prosecute the litigation vigorously.’” Doc.

55 at 7-8 (quoting Johnson v. Tellabs, 214 F.R.D. 225, 228-229 (N.D. Ill. 2002)

19 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (27 of 141)

(St. Eve, J.)); accord, e.g., Hedick v. Kraft Heinz Co., No. 19-1339, 2019 WL

4958238, at *9 (N.D. Ill. Oct. 8, 2019); Shah v. Zimer Biomet Holdings, Inc.,

No. 16-815, 2017 WL 1207158, at *2 (N.D. Ind. Apr. 3, 2017); Reitan v. China

Mobile Games & Entm’t Group, Ltd., 68 F. Supp. 3d 390, 400 (S.D.N.Y. 2014);

Lifson v. Assisted Living Concepts, Inc., No. 12-884, 2012 WL 12929878, at *2

(E.D. Wis. Nov. 14, 2012); City of Sterling Heights Gen. Emps.’ Retirement

Sys. v. Hospira, Inc., No. 11-8332, 2012 WL 1339678, at *9 (N.D. Ill. 2012) (St.

Eve, J.); Wolfe v. AspenBio Pharma, Inc., 275 F.R.D. 625, 628-629 (D. Colo.

2011); In re Fuwei Films Sec. Litig., 247 F.R.D. 432, 437 (S.D.N.Y. 2008); see

also Lacy v. Cook County, 897 F.3d 847, 866-867 (7th Cir. 2018) (adequacy is

satisfied where representatives had no conflicts and “sufficient interest in the

outcome” to “ensure vigorous advocacy”).2

Under settled law below, petitioners thus satisfied Rule 23’s modest bar for establishing adequacy: petitioners had no conflicts with the class;

2 The Supreme Court has arguably limited “adequacy” to “uncover[ing] conflicts of interest between named parties and the class they seek to represent,” while “also factor[ing] in competency and conflicts of class counsel.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625-626 & n.20 (1997) (emphasis added); see Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170, 183-184 (3d Cir. 2012); 7 Newberg on Class Actions § 22.74 (“adequacy is usually not a major barrier to class certification in any case”).

20 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (28 of 141)

petitioners had the greatest losses, generating a substantial interest to “ensure vigorous advocacy”; and petitioners retained competent, experienced counsel.

b. Yet the court assessed adequacy under a more stringent standard. It questioned petitioners’ “level of financial sophistication”; “the general source

of their wealth”; “their backgrounds, education, employment, or investment

experience”; “their familiarity with Boeing or the investigations arising from

the crashes of the 737 MAX aircraft”; “their litigation experience generally”;

and “their ability to control and manage complex class action securities litiga-

tion.” Doc. 109 at 9. And it faulted petitioners for not establishing “their financial sophistication, experience, and ability to effectively manage and direct the

activities of class counsel.” Id. at 10. All of these factors go beyond the tradi-

tional three-factor test.

This was legal error. Congress adopted Rule 23’s requirements “in haec

verba” as the PSLRA’s benchmark; it did not adopt some heightened version

of Rule 23. Cavanaugh, 306 F.3d at 736, 738-739. The same minimal standards

for establishing “adequacy” elsewhere apply here, and nothing in the

PSLRA’s text raises the bar. Id. at 737. Congress endorsed Rule 23 as written, and the court had no basis for demanding a showing beyond its ordinary

21 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (29 of 141)

threshold. E.g., Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v.

Labranche & Co., 229 F.R.D. 395, 414-415 (S.D.N.Y. 2004); Morris v. Wa- chovia Sec., Inc., 223 F.R.D. 284, 296 (E.D. Va. 2004); Piven v. Sykes Enters.,

Inc., 137 F. Supp. 2d 1295, 1306 (M.D. Fla. 2000).3

In short, the court required more than necessary and then faulted peti-

tioners for not producing unnecessary material. Petitioners satisfied Rule 23’s

ordinary factors, and that was enough to qualify as presumptive lead plaintiff

under the PSLRA.

3. The court erred by refusing to provide any opportunity to satisfy its (improper) heightened standard

The court violated the PSLRA’s text and structure, disqualifying peti-

tioners under the wrong standard and refusing to credit an obvious prima facie

3 The Fifth Circuit reached the opposite conclusion in Berger v. Compaq Com- puter Corp., 257 F.3d 475 (5th Cir. 2001). According to Berger, Congress wanted “securities class actions [to] be managed by active, able class representatives who are informed and can demonstrate they are directing the litigation”—“[i]n this way,” the court found, Congress “raise[d] the standard adequacy threshold.” 257 F.3d at 483. This view has been roundly rejected by other courts. The Fifth Circuit failed to identify “any language in the statute that * * * ‘raises the standard adequacy threshold,’” “cite[d] no authority for its assertions,” and ultimately “rel[ied] on legislative history to add provisions Congress did not put into the statute [and] to ignore provisions Congress did put there.” Cavanaugh, 306 F.3d at 737-738. “Although Congress made several important changes in the [PSLRA], it pointedly did not change the requirements of Rule 23.” Id. at 738-739.

22 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (30 of 141)

showing. The court then compounded those errors by refusing to provide petitioners any opportunity to meet its (gratuitous) demands. If the court wished to impose additional requirements at the initial stage, it should have at least provided petitioners fair notice—and allowed an appropriate window for fact development. Had the court provided an opportunity to address its concerns, it would have learned that petitioners were indeed “adequate” representatives, even under its elevated standard.

For example, the court found petitioners’ Boeing investment “implausible” (Doc. 109 at 15-16), when, in fact, petitioners’ claim was not only plausible but true; indeed, it was corroborated by the very documents petitioners of-

fered to submit in camera to the court. (Inexplicably, the court refused.) The

court presumed petitioners cared more about their privacy than leading the

class; this was emphatically disproved by petitioners’ public submission of

their trading records and even excerpts of personal tax returns. The court

questioned petitioner’s commitment to the case, which was refuted by petition-

ers’ (repeated) declarations, under oath, that they will do what is necessary to

protect the class—consistent with Congress’s “common-sense notion that the

plaintiff with the largest personal stake in the controversy will have the incen-

tive to obtain the best possible result.” Cavanaugh, 306 F.3d at 737 n.20.

23 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (31 of 141)

Petitioners, in short, were prepared to submit whatever the court required—

as petitioners proved on reconsideration. The court simply refused to provide

petitioners any opportunity to satisfy its concerns.

Nor was it proper for the court to fault petitioners for failing to supply

the “missing” evidence in advance. A robust submission was not required at

the prima facie stage. And it was not petitioners’ statutory responsibility to

predict, ex ante, what the court would find “implausible” without substantiat-

ing proof. The PSLRA contemplates an iterative process where the court or-

ders discovery to address “reasonable” questions regarding a movant’s ade-

quacy. It is not the movant’s burden to guess in advance what the court might

require beyond stage one’s “preliminary” showing. Cendant, 264 F.3d at 264.4

Put simply, “[b]efore disqualifying a presumptive lead plaintiff”—and

“thus rejecting the statutory preference for the plaintiff with the largest stake

4 The Third Circuit suggested that a court “would be well within its discretion in requiring that competing movants submit documentation” or “in seeking further information if it deems the original submissions to be an inadequate basis for an informed decision.” Cendant, 264 F.3d at 262 (emphases added). At no point, however, did the Third Circuit suggest that a court could simply raise doubts and strike a movant without any opportunity to shore up an alleged deficiency. See id. at 264 (permitting the court to consider “any other information that the court requires to be submitted”) (emphasis added). The decision below is out of step with the “detailed procedures for courts to follow in making these decisions.” Id. at 222.

24 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (32 of 141)

in the controversy”—a court “should, at the very least, advise the plaintiff about its doubts and ask him” to address its concerns. Cf. Cavanaugh, 306

F.3d at 733 n.12 (emphasis added). The court below contravened the PSLRA

by demanding unnecessary information at the threshold stage and then refus-

ing to give petitioners a meaningful opportunity to respond. The court’s mis-

take is made worse by the fact that the court doubted claims that were unde-

niably true—as petitioners have since established via simple fact development.

Had the court followed the PSLRA’s mandatory progression, it would have

avoided these obvious errors. Mandamus is warranted.

C. The Court’s Contrary Rationale Lacks Merit

The court adopted a scheme incompatible with the PSLRA’s plain text,

structure, and purpose, and its analysis otherwise fails on every conceivable

level. It misunderstood the law, misstated the facts, and relied on cases and

arguments that are irrelevant or indeed affirm petitioners’ suitability as lead

plaintiff.

1. The court failed to identify any relevant authority to support its misreading and misapplication of the PSLRA

The court’s legal support for its position is underwhelming. It relied on

outlier decisions that are distinguishable, wrong, discredited—or were simply

misunderstood by the district court.

25 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (33 of 141)

Some of those cases, for example, engaged in a comparative analysis

(asking which plaintiff is more adequate), contrary to the PSLRA’s text and structure. E.g., In re Conseco, Inc. Sec. Litig., 120 F. Supp. 2d 729, 732-733

(S.D. Ind. 2000); contrast Ferrari, 225 F.R.D. at 605 (rejecting Conseco). It makes no difference “[t]hat the district court believes another plaintiff may be

‘more typical’ or ‘more adequate’”; “[s]o long as the plaintiff with the largest losses satisfies the typicality and adequacy requirements, he is entitled to lead plaintiff status, even if the district court is convinced that some other plaintiff would do a better job.” 306 F.3d at 732; accord Cendant, 264 F.3d at 268.

Other cases misread the PSLRA as raising Rule 23’s adequacy standard, requiring a showing beyond “traditional Rule 23 principles” (Cendant, 264

F.3d at 264-265). E.g., Karp v. Diebold Nixdorf, Inc., No. 19-6180, 2019 WL

5587148, at *6 (S.D.N.Y. Oct. 30, 2019); In re Gemstar-TV Guide Int’l, Inc. Sec.

Litig., 209 F.R.D. 447, 452 (C.D. Cal. 2002). As noted earlier, the Fifth Circuit adopted a similar position before backtracking on rehearing. See Berger v.

Compaq Computer Corp., 279 F.3d 313, 313-314 (5th Cir. 2002) (per curiam).

Either way, the position is incompatible with the PSLRA’s text, and it has been rejected for that reason. E.g., Cavanaugh, 306 F.3d at 736-739.

26 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (34 of 141)

And still other cases were distinguishable—such as the movant did not have the largest losses (e.g., Piven, 137 F. Supp. 2d at 1302, 1305), or was disqualified for additional reasons (e.g., Karp, 2019 WL 5587148, at *6 (“exag- gerat[ing] loss totals” by 34%); Camp v. Qualcomm Inc., No. 18-1208, 2019

U.S. Dist. LEXIS 130746, at *5 (S.D. Cal. Aug. 5, 2019) (“willingness to make false statements under oath”; “minor miscalculations of losses was not a legitimate basis for disqualification,” but “that determination changes when the errors are multiplied”)).

Most importantly, the court’s atextual analysis is irreconcilable with

Cavanaugh and Cendant; that circuit-level authority is more compelling than a sprinkling of district-court decisions. The decision below does not make the case for a circuit conflict.

2. The court’s factual findings lacked merit—and were premised on baseless suppositions refuted by actual evidence

The court’s factual findings were unsupportable. It premised its analysis on baseless speculation, which has since been proven wrong. Petitioners have unequivocally established their bona fides; confirmed their ability to lead the litigation; and proven, concretely, their willingness to provide necessary information to protect their interests and the class.

27 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (35 of 141)

a. First, the court ignored evidence submitted in petitioners’ pleadings and declarations (including on rehearing) that refuted the court’s guesswork.

The court declared petitioners’ investment losses “implausible”—even though petitioners’ losses were indisputable and real. Doc. 132-1 at Ex. B (reproduc- ing actual trade records). The court worried about petitioners’ “financial wherewithal” and “wealth” (Doc. 109 at 16 n.10; Doc. 140 at 10)—even after

Wang Sr. established he made $9.5 million in capital gains in the preceding two years. Doc. 132-1 at Ex. A. The court doubted petitioners’ sophistication— despite Wang Sr.’s extraordinary success as an investor and petitioners’ combined experience in real estate, government employment, and business ownership. And the court presumed that petitioners would not reliably supervise the litigation—even after petitioners declared, unambiguously, that they understood their fiduciary role, had the organizational skills and bandwidth to supervise counsel, and were motivated to achieve the optimal result given their massive losses—starting by retaining competent counsel at a favorable fee.

Docs. 100, 132-1-132-3.

That the court chose (for whatever reason) not to believe petitioners’ sworn statements does not change the fact that those statements supplied eve- rything necessary for petitioners’ prima facie case. If the court felt petitioners

28 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (36 of 141)

had lied under oath, it was authorized to enter stage two and order discovery.

15 U.S.C. 78u-4(a)(3)(B)(iv). It was not authorized to disqualify the lead plain-

tiff without requisite “proof.” 15 U.S.C. 78u-4(a)(3)(B)(iii)(II).

b. The court stated that petitioners “place priority on their privacy over

leading this litigation.” Doc. 109 at 15-16; see also Doc. 140 at 4 (inferring, in-

correctly, that petitioners were “unwilling[] to shoulder the discovery bur-

dens”). The court premised this finding on what petitioners did not disclose during the initial lead-plaintiff briefing. Yet no one ordered petitioners to produce anything. Petitioners disclosed on rehearing precisely the same material they would have willingly disclosed earlier had the court simply asked—or followed the PSLRA’s mandatory process and ordered discovery. The fact that a party elects not to preemptively “[]corroborate[]” its sworn statements (Doc.

109 at 15) is hardly grounds for assuming the party will not perform its duties as lead plaintiff.

c. The court faulted petitioners for seeking state-court relief to termi- nate MPERS’ private investigation (including extensive surveillance and mon- itoring of petitioners, their neighbors, their friends, and their business part- ners). According to the court, the investigation was conducted professionally, and petitioners should not have tried to shield themselves from scrutiny by “a

29 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (37 of 141)

rival candidate for Lead Plaintiff.” Doc. 109 at 11-13. This fails on multiple

levels.

First, petitioners were not trying to cut off all discovery—they were try-

ing to block an extra-judicial, unsupervised, abusive private investigation.

State-court relief would not have affected future court-ordered discovery un-

der the PSLRA, which petitioners understood could occur at stage two of the process. So this was not some ill-advised plan to avoid scrutiny, and it would not have interfered with the court’s ability to authorize full discovery of any information deemed necessary to resolve the lead-plaintiff issue. It was a legitimate effort to seek protection from an overzealous private investigation.

Cendant, 264 F.3d at 270 n.49 (noting that courts must “take care to prevent the use of discovery to harass presumptive lead plaintiffs, something that the

Reform Act was meant to guard against”).5

Second, the court had no basis for crediting MPERS’ self-serving char-

acterization of its own investigation as “professional[].” Doc. 109 at 12-13 (stat-

ing petitioners’ complaints “appear to have been based on exaggeration and

mischaracterization”). The court did not conduct discovery, hold hearings,

5 Petitioners acted at a time when discovery is not even authorized, and would later become authorized “only if the plaintiff first demonstrate[d] a reasonable basis” for it. 15 U.S.C. 78u-4(a)(3)(B)(iv) (emphasis added).

30 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (38 of 141)

hear testimony, or develop a record suitable for basic fact-finding on the issue.

MPERS had every incentive to discount misconduct by its investigators, and its version of events was controverted by petitioners and third-party wit- nesses.6 The court had no basis for resolving this factual dispute on one side’s say-so.

Finally, the court faulted petitioners for filing the Nevada action without notifying the court. Doc. 109 at 13. But the court admits the state-court action was “not * * * improper,” and nothing “preclude[d]” petitioners from seeking such relief. Ibid. The court’s “view” that “it would nevertheless have been ap-

propriate” to provide notice is not grounds for striking petitioners’ statutory

right to lead the class.

d. The court declared (in a footnote) that petitioners’ PSLRA certifica-

tions were “technically inadequate.” Doc. 109 at 9 n.6. According to the court,

the PSLRA requires prospective lead plaintiffs to disclose “‘all of the transac-

tions’” in a security, while petitioners listed their transactions without includ-

ing the word “all” or explicitly “certif[ying] that the list * * * is complete.” Ibid.

6 Wang Jr.’s neighbor, for example, stated that he observed the investigators for two days in a “black car with tinted windows,” and “had a reasonable concern for [his] safety and that of the neighborhood.” This declarant has a “military background” and is “retired from the United States Army Military Po- lice.” Doc. 132-7 at 1.

31 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (39 of 141)

This is meritless. First, the court misread the provision, which requires

only that parties “set[] forth all of the transactions of the plaintiff in the security” (15 U.S.C. 78u-4(a)(2)(A)(iv) (emphasis added)); a party complies with that requirement by setting forth all of the plaintiff’s transactions in the security. While other certification provisions require that the party expressly

“state[]” certain things (15 U.S.C. 78u-4(a)(2)(A)(i)-(iii), (vi)), this provision

does not. It is satisfied so long as all transactions are disclosed—and petition-

ers indisputably disclosed all Boeing transactions in the class period.

Second, it is odd for the court to single out petitioners for this “failure”

when MPERS itself used the same basic formulation. Doc. 56-1 (MPERS’ certification lacking the “all” language); see also Docs. 29-1 (Alibrahim, same), 35-

1 (Kegley Trust, same), 38-1 (Boeing Investor Group, same), 46-3 (Canada

Pension, same). If this were a legitimate basis to “question” petitioners’ “adequacy to serve as lead plaintiff,” the same defect would infect every other pri- mary applicant. The court did not explain its uneven treatment of different parties on the same issue.

e. On rehearing, the court faulted petitioners for a minor error in their loss charts, which ultimately understated their total damages by an insignifi- cant amount. Doc. 140 at 10-11.

32 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (40 of 141)

There is a reason the court buried this discussion near the end of its opinion. While petitioners did not sell any shares during the class period, they sold $7.5 million of those shares during the 90-day period after corrective disclosures had reached the market. Doc. 140 at 10. That fact has no bearing on petitioners’ ability or incentive to represent the class, prove any claims, or establish any losses. It is relevant only for the PSLRA’s statutory cap on awarded damages, which varies based on whether a security is held or sold during the 90-day period. 15 U.S.C. 78u-4(e)(1)-(2) (providing that “the award of damages to the plaintiff shall not exceed” the difference between the amount paid and the “mean trading price” during certain periods).

Minor mistakes do not justify striking a party’s statutory right to direct the litigation. See Beaton v. SpeedyPC Software, 907 F.3d 1018, 1028 (7th Cir.

2018); Ferrari, 225 F.R.D. at 605. Congress preferred the plaintiff with the largest losses to lead the class. Cavanaugh, 306 F.3d at 733 n.12. In this case,

petitioners are that party: any discrepancy here understated their loss, which

was already nearly twice that of any other movant. Courts routinely excuse

similar quibbles with no bearing on material issues. See, e.g., In re DVI Inc.

Sec. Litig., 249 F.R.D. 196, 206 & n.16 (E.D. Pa. 2008); In re Star Gas Sec.

33 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (41 of 141)

Litig., No. 04-1766 , 2005 U.S. Dist. LEXIS 5827, at *15 (D. Conn. Apr. 8,

2005).7

“The goal of the PSLRA was not to select individuals for lead plaintiff who make no mistakes.” Reitan, 68 F. Supp. 3d at 399. The goal was to secure motivated and effective parties by using the greatest loss as the touchstone of the analysis. See, e.g., Cavanaugh, 306 F.3d at 733 n.12; Cendant, 264 F.3d at

264. Just as parties routinely amend their complaints, petitioners would have

7 The court cited several outliers where errors in a movant’s mandatory statutory certifications (not a demonstrative loss chart) contributed to a court’s adequacy assessment. See 15 U.S.C. 78u-4(a)(2)(A) (requiring “sworn certification[s]” covering specified disclosures); see also, e.g., Li Hong Cheng v. Can- ada Goose Holdings Inc., No. 19-8204, 2019 U.S. Dist. LEXIS 209946, at *17 n.7 (S.D.N.Y. Dec. 5, 2019) (movant without the greatest loss also failed to disclose a previous attempt to be appointed lead plaintiff in a securities case— one of the PSLRA’s mandatory disclosures); Garbowski v. Tokai Pharm., Inc., 302 F. Supp. 3d 441, 450-451 (D. Mass. 2018) (coupled with multiple errors and deficiencies, movant testified he had not seen and could not recollect sign- ing his PSLRA sworn certification); Micholle v. Ophthotech Corp., No. 17- 0210, 2018 U.S. Dist. LEXIS 41120, at *25-*26 (S.D.N.Y. Mar. 13, 2018) (identifying multiple errors in listed dates and share prices in PSLRA certification as evidence that movant failed to “select[] counsel that is qualified and experienced as required under Rule 23”). The court’s remaining authority generally turned on concerns about manipulation worse than innocent errors in a single chart. E.g., Plaut v. Goldman Sachs Grp., Inc., No. 18-12084, 2019 U.S. Dist. LEXIS 160255, at *14-*15 (S.D.N.Y. Sep. 19, 2019) (movant with understated losses also attempted to amend complaint to obfuscate calculation errors); Bhojwani v. Pistiolis, No. 06-13761, 2007 WL 9228588, at *3 (S.D.N.Y. July 31, 2007) (rejecting movant as lead plaintiff at stage two, not stage one, because his combined group was a “‘lawyer driven’ plaintiff”).

34 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (42 of 141)

amended their loss charts in due course; while all parties strive for perfection,

this insubstantial variance does not undermine any factor at the core of the

adequacy analysis.8

f. Finally, the court criticized petitioners for failing to note that part of

their Boeing investment was on margin. According to the court, petitioners’

“margin borrowing reveals their wealth to be significantly lower than implied

by their prior declaration,” frustrating the court’s assessment of their “finan-

cial wherewithal.” Doc. 140 at 9-10.

The court is confused. Petitioners’ margin trading is irrelevant. Petition-

ers invested those funds and were on the hook for the full investment. Nothing

about “margin borrowing” changes that key fact. This is why courts typically

do not ask if movants have any general outstanding loans—even though money

is fungible and loaned funds (from any source) could have been used to pur-

chase stock. The entire point is that anyone buying stock is on the hook for

buying that stock. See Doc. 134-1 at 2.

8 Besides, the PSLRA sets a “limit[] on damages”—the total award cannot “exceed” the statutory amount. 15 U.S.C. 78u-4(e)(1)-(2) (emphasis added). By claiming the lower amount, petitioners were thus technically compliant with the statutory command, while avoiding potential disputes from other parties had they used the greater measure.

35 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (43 of 141)

Indeed, if anything, this point cuts in petitioners’ favor: trading on mar-

gin is typically reserved for sophisticated investors (see Doc. 134-1 at 2), and

these trades confirm that a major platform (TD Ameritrade) voluntarily made

millions available to Wang Sr. Brokerages are not known for letting paupers

invest on margin. The fact that Wang Sr. was permitted to invest on this scale

underscores his vast wealth and trading experience.

In any event, it is curious for the court to worry about the “financial re-

sources” (Doc. 140 at 10) of a family who invested tens of millions of their own

money and tens of millions more on margin in a single stock. To state the

point is to answer whether petitioners have the “financial wherewithal” to su-

pervise competent counsel in protecting a $40 million investment.9

* * *

This case presents exceptionally important questions regarding the proper scope and interpretation of the PSLRA. Petitioners satisfied the actual

9 The court also misread petitioners’ declaration, which did not say that petitioners “purchased $40 million of Boeing shares with ‘wealth our family has accumulated over decades of hard work, savings and investments.’” Doc. 140 at 9. Rather, the declaration stated that MPERS was wrong to presume petitioners “could not have lost as much money as we did * * * based simply upon their analysis of the home we reside in, our jobs and the cars we drive—which in no manner serves as evidence of the wealth our family has accumulated over decades of hard work, savings and investments.” Doc. 100 at 2 (emphasis added). The two points are not the same.

36 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (44 of 141)

statutory criteria to be named presumptive lead plaintiff, and the court erred

in its profound departure from the PSLRA’s mandatory scheme. Its ruling

invites a circuit conflict over key issues that arise all the time in significant securities cases, and this Court’s urgent guidance is necessary to correct the clear error below and prevent similar errors in future cases.

CONCLUSION

The Court should issue a writ of mandamus directing the district court to vacate its lead-plaintiff orders and to appoint petitioners as lead plaintiff.

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Respectfully submitted.

/s/ Daniel L. Geyser Lewis S. Kahn Daniel L. Geyser KAHN SWICK & FOTI, LLC GEYSER P.C. 1100 Poydras St., Ste. 3200 One Energy Square New Orleans, LA 70163 4925 Greenville Ave., Ste. 200 Tel.: (504) 455-1400 Dallas, TX 75206 [email protected] Tel.: (214) 800-2660 [email protected] Counsel for Petitioners Appellate Counsel for Petitioners Marvin A. Miller Andrew Szot MILLER LAW LLC 115 S. LaSalle St., Ste. 2910 Chicago, IL 60603 Tel.: (312) 332-3400 [email protected] [email protected]

Local Counsel for Petitioners

March 10, 2020

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APPENDIX Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (47 of 141)

APPENDIX—TABLE OF CONTENTS

Exhibit

Memorandum Opinion & Order Appointing Lead Plaintiff, Doc. 109 (Nov. 15, 2019) (N.D. Ill.) ...... A

Memorandum Opinion & Order Denying Reconsideration, Doc. 140 (Jan. 28, 2020) (N.D. Ill.) ...... B

Petitioners’ PSLRA Sworn Certifications, Doc. 45-1 (Jun. 10, 2019) (N.D. Ill.) ...... C

Petitioners’ Declaration In Support Of Their Motion For Appointment As Lead Plaintiff, Doc. 100 (Aug. 2, 2019) (N.D. Ill.) ...... D

Kenny Wang, Sr.’s Declaration In Support Of Petitioners’ Motion For Appointment As Lead Plaintiff, Doc. 132-1 (Dec. 6, 2019) (N.D. Ill.) ...... E

Kathleen Wang’s Declaration In Support Of Petitioners’ Motion For Appointment As Lead Plaintiff, Doc. 132-2 (Dec. 6, 2019) (N.D. Ill.) ...... F

Kenny Wang, Jr.’s Declaration In Support Of Petitioners’ Motion For Appointment As Lead Plaintiff, Doc. 132-3 (Dec. 6, 2019) (N.D. Ill.) ...... G

Civil Docket Sheet, Case No. 1:19-cv-02394 ...... H

Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (48 of 141)

EXHIBIT A Case: 1:19-cv-02394 Document #: 109 Filed: 11/15/19 Page 1 of 24 PageID #:2414 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (49 of 141)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

IN RE THE BOEING COMPANY ) No. 19 CV 2394 AIRCRAFT SECURITIES ) LITIGATION ) Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER

In this putative class action, five plaintiffs are vying for appointment as Lead Plaintiff and

to approve their selection of counsel to represent the class. For the reasons set forth below, the

Court appoints the Public Employees Retirement System of Mississippi as Lead Plaintiff and

approves its selection of the law firm of Bernstein Litowitz Berger & Grossman LLP as Lead

Counsel.

I. BACKGROUND

This matter involves securities fraud claims predicated on statements issued by The Boeing

Company regarding the safety of its 737 MAX aircraft. In a nutshell, the complaints filed to date

allege that during the first part of 2019, Boeing misled investors about the financial prospects for

its commercial airplanes business by misstating and concealing information about safety problems

with the 737 MAX in the wake of investigations of the crashes of Lion Air Flight 610 in October

2018 and of Ethiopian Airlines Flight 302 in March 2019.

Two class action complaints have been filed. The initial complaint (Case No. 19 CV 2394;

the “Seeks” action) was filed on April 9, 2019, by plaintiff Richard Seeks on behalf of a class

comprising purchasers of Boeing securities between January 8, 2019 and March 21, 2019. A

subsequent complaint was filed by plaintiff Mercer Busch (Case No. 19 CV 3548; the “Busch”

action) on May 28, 2019 on behalf of a class of persons who acquired Boeing securities between Case: 1:19-cv-02394 Document #: 109 Filed: 11/15/19 Page 2 of 24 PageID #:2414 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (50 of 141)

January 8, 2019 and May 8, 2019. The defendants named in the two suits include: Boeing; Dennis

Muilenburg, its Chairman, CEO, and President; Gregory Smith, its CFO and Executive Vice

President of Enterprise Performance and Strategy; and Kevin McAllister, President and CEO of

Boeing Commercial Airplanes.1

By order of June 21, 2019, this Court consolidated the cases and set a briefing schedule on

the various motions for appointment as Lead Plaintiff submitted by members of the putative class.

II. DISCUSSION

Neither of the plaintiffs who filed the complaints consolidated in this matter have moved for appointment as Lead Plaintiff. There is, however, no shortage of interest in the job. A collection of seven individuals, groups, and institutions moved for appointment as Lead Plaintiff in the consolidated action:

 Ali Alibrahim [27], represented by Cafferty Clobes Meriwether & Sprengel LLP and Levi & Korsinsky, LLP;

 Robert W. Kegley, Sr., as Trustee of the Robert W. Kegley Sr. Revocable Living Trust [32], represented by Kessler Topaz Meltzer & Check, LLP;

 “The Boeing Investor Group” (comprising Richard Eads, Joseph Fields, John Armstrong, Richard Miller, and Pierre Givenchy) [36], represented by Hagens Berman Sobol Shapiro LLP (“TBIG-I”);

 The Wang Family (comprising Kenny K. Wang, Kathleen Wang, Kenny W. Wang) [41], represented by Kahn Swick & Foti, LLC and Miller Law LLC

 Labourers’ Pension Fund of Central and Eastern Canada [46], represented by Robbins Geller Rudman & Dowd LLP (“Labourers”);

 “The Boeing Investor Group” (comprising Darrell Stock and Kin-Yip Chun) [49], represented by Pomerantz LLP (“TBIG-II”); and

 The Public Employees Retirement System of Mississippi [52], represented by Bernstein Litowitz Berger & Grossman LLP (“MPERS”).

1 Mr. McAllister is named only in the Busch complaint.

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Plaintiffs Alibrahim and The Boeing Investor Group II subsequently withdrew their

motions. ECF Nos. 75, 76. The remaining movants have filed further briefs on behalf of their

candidacies and in response to the submissions of the other candidates.

A. Lead Plaintiff Standards

The Private Securities Litigation Reform Act (PSLRA) sets forth the procedures that govern securities class actions. Once cases have been consolidated, the Court is required to

“appoint the most adequate plaintiff as lead plaintiff for the consolidated actions.” 15 U.S.C. § 78u-

4(a)(3)(B)(ii). Under the PSLRA, there is a rebuttable presumption that the most adequate plaintiff

to serve as lead plaintiff is the person or group of persons that:

(aa) has either filed the complaint or made a timely motion in response to a notice under subparagraph (A)(i);

(bb) in the determination of the court, has the largest financial interest in the relief sought by the class; and

(cc) otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure.

15 U.S.C. § 78u-4(a)(3)(B)(iii)(I). In that regard, the relevant Rule 23 criteria are typicality and adequacy: the claims and defenses of the lead plaintiff must be “typical of the claims or defenses

of the class,” Rule 23(a)(3), and applicants must provide a basis to conclude that they “will fairly

and adequately protect the interest of the class,” Rule 23(a)(4). This presumption may be rebutted

only by proof by a member of the purported plaintiff class that the presumptively most adequate

plaintiff: (aa) will not fairly and adequately protect the interests of the class; or (bb) is subject to

unique defenses that render such plaintiff incapable of inadequately representing the class. 15

U.S.C. § 78u-4(a)(3)(B)(iii)(II).

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The requisite notice concerning the filing of the Seeks action2 was made within 20 days of its filing and each of the movants thereafter timely filed their lead plaintiff motions.3 The Court

therefore turns to the questions of which of the lead plaintiff candidates has the largest financial

interest in the relief sought by the putative class and which otherwise satisfies the requirements of

adequacy and typicality under Federal Rule of Civil Procedure 23.

Determining the relevant financial interest in the relief sought by the putative class

requires, at the threshold, a determination of the appropriate class period to set the boundaries of

that measurement. Here, the two operative complaints plead different, but overlapping, class

periods. The Seeks complaint alleges that the class period began on January 8, 2019 and ended on

March 21, 2019, when the New York Times reported that the planes that crashed lacked two safety features that Boeing sold as options on the 737 MAX aircraft. The Busch complaint also alleges that the class period should begin on January 8, 2019, but alleges that Boeing continued making false statements after March 21, 2019, and that the inflation in Boeing’s stock price was not fully purged until May 8, 2019, when Bloomberg Businessweek reported that intense competition with

Airbus led Boeing to rush the 737 MAX aircraft to market rather than designing a new, safe commercial aircraft. The determination of which is the appropriate class period by which to measure the movants’ respective financial interests in the class claims is a significant one here, because the purchases of several of the movants, including the two institutional investors (MPERS and Labourers) fall largely outside the class period defined by the Seeks complaint.

2 Only notice of the first filed action need be published. 15 U.S.C. § 78u-4(a)(3)(A)(ii). 3 In addition to representing TBIG-1, Hagens Berman represented Richard Seeks and filed the complaint in the Seeks action on his behalf.

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The movants’ submissions appear to assume that the longer class period alleged in the

Busch complaint is the appropriate period by which to measure their respective financial interests.4

This is consistent with the approach most courts take when confronted with this question. See, e.g.,

Hardy v. MabVax Therapeutics Holdings, No. 18-cv-1160, 2018 WL 425345, **4-5 (S.D. Ca.

Sep. 6, 2018) (rejecting argument advocating use of shorter period to avoid potential

“gamesmanship”); Miami Police Relief & Pension Fund v. Fusion-io, Inc., No. 13-cv-05368-LHK,

2014 WL 2604991, at *1 n.3 (N.D. Cal. June 10, 2014) (“For purposes of appointing a lead plaintiff, the longest class period governs.”); In re BP, PLC Securities Litig., 758 F. Supp. 2d 428

(S.D. Tex. Dec. 28, 2010) (using “the longest noticed class period unless the factual allegations supporting that period are ‘obviously frivolous’”); In re Bank of Am. Corp. Sec. Derivative and

Emp’t Ret. Income Sec. Act (ERISA) Litig., 258 FRD 260, 269 (SDNY 2009) (applying longest- pled class period); Plumbers & Pipefitters Local 562 Pension Fund v. MGIC Inv. Corp., 256

F.R.D. 620, 624–25 (E.D. Wis. 2009); Eichenholtz v. Verifone Holdings, Inc., No. C 07-6140

MHP, 2008 WL 3925289, *2 (N.D. Ca. Aug. 22, 2008) (“Though a shorter class period may simplify the litigation, no benefits accrue by shortening the class period at this stage in the litigation.”); Miller v. Dyadic Int'l, Inc., 2008 WL 2465286, at *4 (S.D. Fla. Apr. 18, 2008); In re

4 All of the initial motions for appointment as Lead Plaintiff filed by the remaining candidates employed loss figures based on trades spanning the larger class period alleged in the Busch complaint. See Kegley Memorandum, ECF No. 34, at 1 n.2 (“At the lead plaintiff stage, the longest-pled class period controls.”); TBIG-1 Memorandum, ECF No. 40, at 5 (using “Class Period, in total” to measure financial interest); Wang Memorandum, ECF No. 43, at 5 (appropriate to use the longest-pled class period as it is the most inclusive); Labourers Memorandum, ECF No. 48, at 7 (using expanded class period); MPERS Memorandum, ECF No. 55, at 6-7 (using expanded class period). TBIG-1 has argued that the concentration of purchases by the institutional investors after March 21 may create standing or incentive issues if the class is defined more narrowly but does not argue that financial interest should not be measured by reference to the longest-pled class period.

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Doral Fin. Corp. Sec. Litig., 414 F. Supp. 2d 398, 402–03 (S.D.N.Y.2006) (“use of the longer, most inclusive class period ... is proper, as it encompasses more potential class members”).

For much the same reasons that the court set forth in the BP Securities Litigation, this Court agrees that the appropriate period over which to measure the financial interests of the movants is

the full class period alleged in the Busch complaint:

For purposes of selecting a lead plaintiff, the Court will use the longest noticed class period unless the factual allegations supporting that period are obviously frivolous. This standard achieves a proper balance, discouraging plaintiffs from manipulating the class period so that they have the largest financial interest but substantially avoiding the merits of the claims without the benefit of adversarial briefing. The Court agrees with the district courts … who have found it generally inappropriate to narrow the class period at this stage of the litigation. … Moreover, plaintiffs are further discouraged from manipulating the class period by the possibility of sanctions if after further litigation the court learns that the allegations were made in bad faith.

In re BP, PLC Sec. Litig., 758 F. Supp. 2d at 433–35. Accordingly, for purposes of assessing which lead plaintiff applicant has the greatest financial interest in this litigation, the Court considers their transactions in Boeing securities from January 8, 2019 through May 8, 2019.

With the parameters of the class period defined (for present purposes), the Court turns to the assessment of which movant has the greatest financial interest in the claims of the putative class. “Which plaintiff has the largest financial interest may not be immediately apparent; the statute does not define the term, and the size of a shareholder's financial interest can depend on how many shares were purchased and sold, when, and at what price, as well as the order in which the losses are tallied.” China Agritech, Inc. v. Resh, 138 S. Ct. 1800, 1808 n.3 (2018). That said, the movants here have not disputed that the phrase “largest financial interest” is generally understood to mean “suffered the greatest loss.” Takara Trust v. Molex Inc., 229 F.R.D. 577, 579

(N.D. Ill. 2005); In re Bally Total Fitness Sec. Litig., No. 04C3530, 2005 WL 627960, at *4 (N.D.

Ill. Mar. 15, 2005) (“the best yardstick by which to judge ‘largest financial interest’ is the amount

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of loss, period”).5 Loss may also be a function of the methodology employed to calculate it, but

here none of the movants have disputed the loss calculation methodologies employed by other

movants, so the court takes the movants’ calculations at face value for purposes of assessing the

greatest loss during the relevant period, as follows:

Plaintiff Wang Family MPERS Kegley Labourers TBIG-1 Claimed Loss $4,700,000 $2,500,000 $885,000 $865,000 $751,000

B. The Wang Family

Based on claimed losses, the Wang Family plainly appears to be the lead plaintiff applicant

with the greatest financial stake. Its claimed losses of $4.7 million on purchases during the class

period of approximately $40 million are almost twice the losses incurred by the next closest

candidate, MPERS, and nearly equal the combined losses ($5 million) of all four of the remaining

candidates. The Wangs have executed the certifications required by 15 U.S.C. § 78u-4(a)(2)(A),

including affirmations that they did not purchase Boeing securities at the direction of counsel or

to participate in a law suit. Id. at (a)(2)(A)(ii). They maintain as well that, as purchasers of Boeing

stock during the class period, their claims are typical of other Boeing shareholders in the class and

that they are adequate representatives of the class given their substantial losses, the absence of any

potential conflicts with other class members and their selection of qualified counsel. On this basis,

they maintain, they qualify as the presumptive lead plaintiff in this action.

5 Among the factors that most courts consider in determining the largest financial interest are: “(1) the total number of shares purchased during the class period; (2) the net shares purchased during the class period (in other words, the difference between the number of shares purchased and the number of shares sold during the class period); (3) the net funds expended during the class period (in other words, the difference between the amount spent to purchase shares and the amount received for the sale of shares during the class period); and (4) the approximate losses suffered,” with “the fourth factor—the approximate losses suffered—[being] the most critical factor.” Chandler v. Ulta Beauty, Inc., No. 18-CV-1577, 2018 WL 3141763, at *2 (N.D. Ill. June 26, 2018).

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But MPERS (cheered on by several of the other movants) has challenged the Wangs’

presumptive status under 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I) by questioning both the amount of the

Wang Family’s loss claim and the Wangs’ adequacy to serve as lead plaintiff. With respect to the former, MPERS contends that there are “serious questions concerning the Wangs’ purported investments in Boeing stock.” MPERS Memorandum in Opposition, ECF No. 93, at 1. It starts with the fact that the Wangs’ purchases of Boeing stock between January 31, 2019 and March 31,

2019 were larger than the purchases of all but about 1% of institutional investors over the same period. They note that according to their certifications, the Wangs did not sell a single share of those purchases during the class period, “an unusual trading pattern for an investment of this size.”

Id. at 5. The Wangs’ purchases, moreover, begin and end abruptly within the class period; their class period transactions in Boeing stock, in other words, do not appear to be a continuation of regular trading program in Boeing stock. Rather, on January 31, 2019, the Wangs launched into a frenzy of large purchases of Boeing stock which continued for about 10 weeks, through April 8, and then stopped completely (at least during the balance of the class period, through May 8, 2019).

More peculiar still, the Wangs’ purchases stopped altogether on April 8, 2019, the day before the

Seeks action was filed. This transaction history is sufficiently quirky to prompt concern that there may be some explanation for the Wangs’ frenzy of purchases beyond the sudden onset of intense confidence in Boeing’s prospects.

The somewhat peculiar course of the Wangs’ purchases of Boeing stock during the class period might be dismissed as a curiosity in the context of an individual investor known to have substantial means and a track record that provides some assurance that the claimed investments are bona fide, but the Wangs’ motion provides virtually no information about the family. Indeed,

the only information provided in their motion beyond that required by their certifications (see 15

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U.S.C. § 78u-4(a)(2)(A)6) is that they live in Las Vegas.7 The application provides no information

about the Wangs’ level of financial sophistication or about the general source of their wealth; no

general information about their backgrounds, education, employment, or investment experience;

no information about their litigation experience generally or any basis to gauge their ability to

control and manage complex class action securities litigation; and no information about their

familiarity with Boeing or the investigations arising from the crashes of the 737 MAX aircraft.

Reciting this litany is relevant not because the Wangs were required to provide all of this

information but because they provided none of it. The complete dearth of information

accompanying the Wangs’ lead plaintiff motion leaves the Court with virtually no basis to assess

their adequacy to lead and direct litigation potentially involving thousands of claims for tens, or

perhaps hundreds, of millions of dollars and provides no assurance to the Court that the concerns

prompted by the unusual course of the Wangs’ trading activity are unwarranted.

Although it generally suffices for a lead plaintiff movant to make a prima facie showing of

adequacy, see Johnson v. Tellabs, Inc., 214 F.R.D. 225, 228 (N.D. Ill.) (2002), to do so a movant

must supply some information about its ability to perform the role of lead plaintiff diligently and

effectively. See, e.g., Camp v. Qualcomm Inc., No. 18-CV-1208, 2019 WL 277360, *3 (S.D. Ca.

6 The Wangs’ certifications are technically inadequate. They have certified that they executed the transactions set forth, but do not state that the list of transactions includes “all of the transactions of the plaintiff in the security,” as required by § 78u-4(a)(2)(A)(iv). In other words, they have not certified that the list of transactions they provided is complete. This may just be a semantic issue that could be easily cured, rather than a cagey attempt to omit other transactions in Boeing securities, but it is one more question mark in considering the Wangs’ adequacy to serve as lead plaintiff. Cf. Plaut v. Goldman Sachs Group, Inc., No. 18-CV-12084, 2019 WL 4512774, *5 (S.D.N.Y. Sep. 19, 2019) (errors in certification called into question the adequacy and sophistication of individual with largest financial interest to serve as lead plaintiff); Tomaszewski v. Trevena, Inc., 383 F. Supp. 3d 409, 415 (E.D. Pa. May 29, 2019) (same). 7 And that claim is inaccurate to the extent that Mr. Wang Sr. appears to spend half the year—from April to Thanksgiving—in Shanghai, China.

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Jan. 22, 2019) (declining to appoint individual with largest financial interest as lead plaintiff in

light of his failure “to include any basic details about himself”). Accordingly, most movants—and

particularly individual investors—embrace the opportunity to advise the Court about their financial

sophistication, experience, and ability to effectively manage and direct the activities of class

counsel. See, for example, the declarations (filed with their opening motions) of TBIG-1, ECF No.

38-5, Exhibit E (providing background information as to each of the individuals in the group

regarding education credentials including advanced degrees, work and business management

experience (including within the aerospace industry), and expertise in finance) and Kegley, ECF

No. 35-3, Exhibit C (providing background information regarding relevant education, decades of

experience as a business owner, service as a corporate director, oversight of litigation matters and

attorneys (including prior service as a lead plaintiff in a securities fraud class action), management

of personal investments, and familiarity with the facts and circumstances of the claims asserted on

behalf of the putative class). The Wangs, by contrast, provided no such information.

Seeking to fill this informational void, MPERS has attempted to obtain information about

the Wangs and their financial means. The information obtained, though far from comprehensive

and some of which is of uncertain reliability (at least as presented to date),8 nevertheless provides

8 The Wangs maintain that some of the information MPERS has obtained is neighborhood gossip and hearsay-on-hearsay, but they have not contested the accuracy of MPERS’ central point, namely that they live a modest working-class lifestyle. In any event, the rules of evidence do not limit the information the court may consider in evaluating lead plaintiff applications; indeed, in contesting MPERS’ adequacy, the Wangs also rely on allegations lodged in other complaints that would not, in the form presented, be admissible in a trial. See infra at 18-19 and n.11 The Court finds the evidence presented by MPERS, which includes declarations from the investigators that support the reliability of their reports, sufficiently reliable to consider in connection with its evaluation of the Wangs’ lead plaintiff application. As noted in the text, the relevance of the information at this stage is that the incongruity between the Wangs’ apparently modest working- class lifestyle and their claim to possess the extraordinary wealth that would be necessary to invest on the scale set forth in their motion raises legitimate questions about the Wangs’ bona fides— concerns that the Wangs have only exacerbated by their recalcitrant reticence.

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additional reason for concern as to whether the Wang Family has the financial wherewithal to

have invested $40 million in Boeing stock over the course of a ten-week period. MPERS represents

that its investigation of the Wang family has revealed that the Wangs live modestly in Las Vegas;

that Kenny Wang Sr. has no evident current employment and spends half the year in China; that

Kathleen Wang (the two are married) is employed as a pest control testing and licensing employee for the Nevada Department of Agriculture earning approximately $60,000 per year; and that Kenny

Wang Jr., their son, holds several jobs, including work as a pest exterminator, which together provide a similarly modest income. Mr. and Mrs. Wang are reported to own a home purchased a

decade ago for about $630,000; Mr. Wang Jr. reportedly owns another home purchased for about

$360,000. MPERS reports that its investigators have interviewed a number of people who profess

to know the Wangs well, including neighbors, coworkers, and employers, who have uniformly

attested to the Wangs’ modest lifestyle and who have expressed disbelief that the Wangs have tens

of millions of dollars to invest. Said one: “I don’t know where you guys are getting this $40

million-dollar number from but you’re wrong. . . . I’ve known the family for decades and they

don’t have that kind of money.” Reply Decl. of Avi Josefson, ECF No. 103, at Ex. C ¶ 10. Coupled

with the Wangs’ curious trading history in Boeing securities, this information raises legitimate

questions about the bona fides of the Wangs’ reported transactions in Boeing securities and, as a

result, their position of having the largest financial interest.

The Wangs’ reaction to MPERS’ challenge has only heightened the Court’s concerns.

Rather than seizing the opportunity to tout their financial acumen and sophistication, the Wangs

have attempted to thwart MPERS’ efforts to obtain additional information. They did so first in a

motion filed in this court seeking to expedite the briefing schedule on the pending motions for

appointment as lead plaintiff on the premise that MPERS’ investigators were conducting a “highly

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abusive harassment and intimidation campaign” against the Wang family. Motion to Modify, ECF

No. 84, at 1. After this Court ruled that there needed to be an adequate opportunity for investigation

and briefing as to competing lead plaintiff claims, ECF No. 88, the Wangs then sought a protective

order in Nevada state court to enjoin MPERS’ investigative efforts, alleging that the MPERS

investigators were stalking and harassing them. Before the Nevada court ruled, that motion was withdrawn as moot when the MPERS investigators responded that their investigation had been completed.

The Wangs’ efforts to foreclose inquiry into the bona fides of their reported Boeing transactions are troubling on at least three levels. First, there is nothing improper per se about an investigation relating to the claimed investments in the securities at issue or the adequacy of a rival movant for appointment as lead plaintiff. Although the PSLRA does not expressly authorize such investigation, acknowledgment of the propriety of such investigation is implicit in the statute’s provision for an opportunity to rebut a movant’s status as the presumptive lead plaintiff, § 78u-

4(a)(3)((B)(iii)(II), and the opportunity to conduct formal discovery where there is “a reasonable basis for a finding that the presumptively most adequate plaintiff is incapable of adequately representing the class,” § 78u-4(a)(3)(B)(iv).

Second, the Wang family’s complaints about the MPERS investigation appear to have been based on exaggeration and mischaracterization. On the record before this Court, MPERS’ efforts to develop information about the Wangs’ financial wherewithal has not involved the use of personal investigators “to personally harass and intimidate the Wang Family, their associates and neighbors,” as the Wangs claim. Wang Omnibus Memo., ECF No. 90, at 5. The Wangs have offered no support at all for such a claim, and the affidavits of the investigators, submitted in the

Nevada proceeding, provide substantial evidence that the investigation conducted by MPERS was

12 Case: 1:19-cv-02394 Document #: 109 Filed: 11/15/19 Page 13 of 24 PageID #:2414 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (61 of 141) conducted professionally and in a manner that involved no abuse or harassment of anyone contacted by the investigators, much less of the Wang family, none of whom were contacted during the investigation. Indeed, the principal subject of the investigation, Mr. Wang Sr., was not even in the country when the investigation was conducted.

And finally on this point, it also bears noting that the Wang family initiated a court proceeding in Nevada after this Court declined their request to curtail the MPERS investigation by accelerating the briefing schedule on the lead plaintiff motions. While this Court’s ruling did not, of course, preclude the Wangs from seeking protection from allegedly criminal behavior in a state court and was not, therefore, improper, it would nevertheless have been appropriate, in this Court’s view, for the Wangs to provide notice to this Court of its initiation of a proceeding that might result in an order affecting the resolution of the competing lead plaintiff motions. The Wangs provided no such notice, however, and even in reply have not addressed or defended their initiation of the state court proceeding. Along with the evident lack of merit of their claims concerning the manner in which the investigation was conducted, the Wangs’ failure to advise this Court that they were seeking to restrict a rival candidate for Lead Plaintiff from obtaining information that might affect the resolution of motions pending in this case casts doubt on both their judgment and their fealty to the duty of candor to the Court.

The Wangs’ resistance to providing information about their financial status is particularly difficult to understand given that, as Lead Plaintiff, they would be required not just to make a prima facie case as to their typicality and adequacy, but to prove as much in the context of a class certification motion. Relatedly, in advance of a motion to certify the class, the Wangs would likely be subject to searching discovery as to their financial condition and experience, investing methodologies, and transactions in Boeing securities during discovery conducted by the

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defendants. See, e.g., Villella v. Chemical & Mining Co. of Chile Inc., No. 15 Civ. 2106, 2018 WL

2958361, *6 (S.D.N.Y. June 13, 2018) (authorizing discovery regarding reliance on integrity of market at class certification stage; citing cases); In re Northfield Labs. Inc. Sec. Litig., 264 F.R.D.

407, 409 (N.D. Ill. 2009) (ordering production of account statements to corroborate trade confirmations as defendants were entitled to test the accuracy of Plaintiffs’ trade confirmations).

Given this prospect, it is difficult to fathom the Wangs’ reluctance to provide basic information that bears on their adequacy now. Their present reticence casts further doubt on their adequacy because it suggests that they will be unable or unwilling to carry out the duties of a lead plaintiff, which include responding to discovery and providing deposition testimony. These are significant responsibilities in any case, and all the more so in one, like this one, arising from highly publicized global tragedies. This litigation will be very much in the public eye; a lead plaintiff preoccupied with its own privacy is unlikely to be an adequate representative of the class.

The Wangs do not seem to understand, or accede to, the obligations of a lead plaintiff in this regard. In their reply brief, they offer to make their Boeing trading confirmations available— but only for in camera review by the Court. Why these records should be submitted in camera and shielded from the view of rival movants for lead plaintiff status (and from the public’s view) the

Wangs do not say and this Court can see no reason that these records should be proffered in secret.

The trading records of a lead plaintiff are quite unlikely to remain private; the defendants will be entitled to review them and, it is reasonable to presume, will go through them with a fine-toothed comb. See, e.g., Tomaszewski, 383 F. Supp. 3d at 411 (ordering production and briefing based on movant’s trade records). Bearing the brunt of this sort of discovery on behalf of the class is one of the lead plaintiff’s duties. The Wangs, however, appear unwilling to shoulder that obligation.

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Rather than contest the accuracy of the information MPERS obtained through its

investigative efforts, or provide additional information that would offer some confirmation of the

Wangs’ ability to plunk down $40 million on a single stock in the span of just over two months,

the Wangs rest on their claim that they are indeed a family of modest means who have amassed

this kind of wealth by scrimping and saving over the years and investing wisely. MPERS argues,

and this Court agrees, that this claim is too incredible to accept at face value.9 The Wangs may

well have the wealth they claim, and may nevertheless live a commendably modest lifestyle, but

the claim that their wealth is the product of that modest lifestyle is so implausible that, in the

absence of some evidence to support the claim, the Court cannot credit it. The claim would

presumably be easy to document, but rather than provide basic additional information to

corroborate their path to incredible wealth, the Wangs have offered only a bare assertion that they

lost $4.7 million on Boeing stock they purchased during the class period with “wealth our family

has accumulated over decades of hard work, savings and investments.” Wang Declaration, ECF

No. 100, at ¶¶ 3, 9. In relying solely on that implausible and uncorroborated explanation, the

Wangs have raised so many red flags that the Court cannot in good conscience appoint them to

lead this complex, significant, and highly public litigation on behalf of thousands of Boeing

investors. Whatever the reasons for the Wangs’ reticence about their background, their

unwillingness to provide any significant information about themselves has made clear that they

9 The claim becomes all the more incredible when one considers that, unless the Wangs’ opted in early 2019 to eschew all tenets of financial diversification and to invest all of their wealth in the shares of a single company, their claim to have invested $40 million in Boeing stock implies the existence of substantially greater wealth.

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place priority on their privacy over leading this litigation. As a result, it would be imprudent to

appoint them as Lead Plaintiff.10

To be clear, in denying the Wangs’ motion, the Court makes no finding that their claimed

Boeing investments and losses are not legitimate. This ruling is predicated on the Wangs’ inability

(or refusal) to provide sufficient information to permit the court to make an informed judgment as to their adequacy to serve as Lead Plaintiff and as to the bona fides of their claimed investments in Boeing stock. The Wangs’ reticence in this regard precludes the Court from finding that the

Wangs satisfy the criteria as presumptive lead plaintiff, particularly in view of their unusual

purchase history of Boeing stock, their facially implausible and uncorroborated explanation of

their wealth, and their efforts to prevent investigation and discovery of information to address

those issues. Based on these factors, the Court cannot be confident that the losses claimed by the

Wang family are bona fide or that they will adequately represent the interests of the class.

Accordingly, the Court denies the Wang Family’s motion for appointment as Lead Plaintiff.

C. MPERS

At approximately $2.5 million, MPERS suffered, by a considerable margin, the next largest

loss on Boeing stock during the putative class period. Given denial of the Wang Family’s motion,

then, MPERS should be appointed as the lead plaintiff if it satisfies the Rule 23 criteria of typicality

10 The court has considered whether to conduct an evidentiary hearing to address the questions relating to the Wangs’ investments. Had the Wangs timely offered some evidence to support the bona fides of their Boeing investments, an evidentiary hearing may have been warranted. But it is incumbent on the Wangs to make a preliminary showing of their adequacy to serve as representatives of the putative class and their proffer of a facially incredible explanation of their wealth, unsupported by any evidence, convinces the court that that the Wangs are not able or willing to carry out the duties of a lead plaintiff in a securities fraud class action. At this point in the process, an evidentiary hearing would not alleviate the Court’s concerns in that regard; a viable candidate for Lead Plaintiff would understand the need to make a more fulsome preliminary showing of adequacy from the outset of the lead plaintiff selection process.

16 Case: 1:19-cv-02394 Document #: 109 Filed: 11/15/19 Page 17 of 24 PageID #:2414 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (65 of 141) and adequacy. The principal problem that MPERS runs into in that regard is, to a large degree, the antithesis of the issues afflicting the Wang candidacy. Whereas there is virtually no evidence to support the Wangs’ adequacy to represent the class, several candidates argue that there is too much evidence of MPERS’ adequacy: MPERS, they maintain, has been appointed as a lead plaintiff too many times. Specifically, they invoke the PSLRA’s presumptive “5-in-3” limit on appointments as lead plaintiff. Also known as the “professional plaintiff” bar, that provision provides:

Except as the court may otherwise permit, consistent with the purposes of this section, a person may be a lead plaintiff, or an officer, director, or fiduciary of a lead plaintiff, in no more than 5 securities class actions brought as plaintiff class actions pursuant to the Federal Rules of Civil Procedure during any 3-year period.

15 U.S.C. § 78u-4(a)(3)(B)(vi). Several movants (the Wangs and Labourers) argue that this provision renders MPERS ineligible to serve as lead plaintiff because it has done so 11 times in the past three years. ECF 56-1; ECF 84 at 2.

Contrary to the arguments invoking it, however, the “5-in-3” provision plainly does not bar the appointment of institutional investors as lead plaintiff more than five times in three years.

Rather, it expressly permits the court to disregard the limitation when doing so would be

“consistent with the purposes” of the PSLRA. As Judge Dow observed in rejecting a similar argument in a recent case, “[a]lthough the 5-in-3 provision does not expressly exclude institutional investors from its scope, it gives the Court discretion to waive the provision when “consistent with the purposes of [the PSLRA].” 15 U.S.C. § 78u-4(a)(3)(B)(vi). The text of the statute thus allows the Court to make exceptions to the 5-in-3 provision consistent with the purposes of the PSLRA.

As many courts have noted, that provision “was largely directed at private individuals” and courts thus “have routinely waived the restriction in the case of qualified institutional investors.” Hedick v. Kraft Heinz Co., No. 19-CV-1339, 2019 WL 4958238, at *10 (N.D. Ill. Oct. 8, 2019). See also, e.g., Iron Workers Local No. 25 Pension Fund v. Credit-Based Asset Servicing & Securitization,

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LLC, 616 F. Supp. 2d 461, 467 (S.D.N.Y. 2009) (Rakoff, J.) (“as many courts have noted, the

provision of the PSLRA restricting the use of professional plaintiffs was largely directed at private individuals, and courts have routinely waived the restriction in the case of qualified institutional investors”; collecting cases). And, indeed, the PSLRA Conference Committee report expressly explains that courts were given this discretion “to avoid the unintended consequences of

disqualifying institutional investors from serving more than five times in three years.” See H.R.

Conf. Rep. No. 104–369 at *35, reprinted in 1995 U.S.C.C.A.N. 730, 734. Consistent with this

view, and as MPERS reports in its reply brief, “at least seven courts have appointed Mississippi

as lead plaintiff after expressly rejecting this very argument.” ECF No. 101 at 10. This Court agrees

that applying the “5-in-3” limitation to bar MPERS from serving as lead plaintiff would be inconsistent with the PSLRA’s purpose of promoting institutional investors as lead plaintiffs in

securities fraud class actions.

While acknowledging that many courts have exercised their discretion not to apply the “5-

in-3” limitation to bar MPERS’ appointment as lead plaintiff, Labourers maintains that the case

for doing so is diminished where there is another viable institutional investor seeking to serve as

lead plaintiff that would not be subject to the presumptive bar. But why? Labourers points to no

evidence suggesting that Congress intended to grant courts discretion to exempt an institutional investor from the bar only when no other institutional investor is seeking appointment as lead plaintiff. That would exalt the “5-in-3” bar over the other requirements governing the selection of the lead plaintiff, a result that finds support neither in the language of the statute nor its logic. As the Conference Committee explained, Congress did not intend for the “5-in-3” provision “to operate at cross purposes with the ‘most adequate plaintiff’ provision.” See H.R. Conf. Rep. No.

104–369 at *35, reprinted in 1995 U.S.C.C.A.N. 730, 734. Yet that would be the result if the “5-

18 Case: 1:19-cv-02394 Document #: 109 Filed: 11/15/19 Page 19 of 24 PageID #:2414 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (67 of 141) in-3” provision were applied to bar MPERS from serving as lead plaintiff: the presumptively most adequate plaintiff, with losses in excess of $2.5 million during the class period, would be excluded in favor of another institutional investor with losses barely a third of that figure. That is not an outcome that would be “consistent with the purposes” of the PSLRA.

TBIG-1 contests the adequacy of MPERS to represent the class because MPERS purchased most of its shares after March 21, 2019, when the Seeks class period ended. Of the 68,062 shares

MPERS bought during the class period, only 383 (just six-tenths of one percent) were purchased during the class period alleged in the Seeks action. TBG-I argues that this makes MPERS inadequate representative because, should the Court reject the additional disclosures alleged in the

Busch action, MPERS will have minimal incentive to prosecute the class’s claims. ECF 92 at 2.

But as discussed above, courts have consistently held that the longest-pled class period should be used to measure financial interest in the putative class claim asserted; it is premature, at this juncture to base a judgment about the adequacy of a lead plaintiff with the greatest loss over the putative class period on an assessment of the substantive merit of the allegations that bear on the boundaries of the class period. TBIG-1’s concern about MPERS’ adequacy if the class period is deemed to end before April 4, 2019, when MPERS’ significant purchases began, is nothing but speculation at this time; one might as easily posit that a plaintiff whose purchases were concentrated at the beginning of the class period would have no incentive to advance the class claims if the class period were found to have begun later than advertised. There is no requirement that a lead plaintiff’s purchases have been uniformly distributed over the course of a putative class period. At this stage, it is enough to note that MPERS has the incentive to prove what every other plaintiff in the longest-pled class period seeks to prove: that Boeing made false and misleading statements in the class period that inflated the price of its stock when purchased and that the value

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of the stock thereafter declined when accurate information became known. The fact that most of

MPERS’ purchases of Boeing stock came toward the end of the class period may be relevant if

partially corrective disclosures decreased the amount of inflation in the share price at the point

when MPERS purchased its shares, and thereby decreased its losses on a per share basis, but that

possibility is already reflected in MPERS’ loss calculation. Even if its losses on a per share basis

turn out to be lower, MPERS still claims, by substantial margin, the largest total loss in the class

period of any investor other than the Wangs.

In a bit of tit-for-tat, the Wangs also argue that MPERS is not adequate to serve as Lead

Plaintiff because of the “serious alleged misconduct that was just recently independently unearthed

by another court considering its lead plaintiff motion.” Wang Omnibus Memo, ECF No. 90, at 4

(citing Cambridge Retirement Sys. v. Mednax, Inc., 2018 WL 8804814, *15 (S.D. Fl. Dec. 6, 2018)

(“Mednax”)). The alleged misconduct the Wangs refer to involves allegations that MPERS’

counsel, the Bernstein Litowitz firm, paid kick-backs to relatives and friends of attorneys in the

Mississippi Attorney General’s office who were responsible for litigation in which the Bernstein

Litowitz firm was representing MPERS. The former attorney at Bernstein Litowitz who made

these allegations in a complaint subsequently dismissed that complaint and signed a statement, in

February 2015, conceding that he had received “information that seriously challenges my claims,”

and that the information “presents insurmountable factual and legal challenges to my ability to

recover.” In re Merck & Co. Securities, Derivative & ERISA Litig., 2016 WL 8674608, at *2

(D.N.J. Dec. 23, 2016).11 And since that time, so far as the record presented in this case shows,

11 The abandonment of these allegations was thus of public record at least two years before the Magistrate Judge “unearthed” them in 2018 in Mednax. The Court notes as well that while the Magistrate Judge’s Report and Recommendation in Mednax stated that “[t]he Bernstein firm apparently did not deny that it made the payment,” 2018 WL 8804814, *15, the Second Circuit opinion on which the Magistrate Judge based her report (which was addressing a motion to seal

20 Case: 1:19-cv-02394 Document #: 109 Filed: 11/15/19 Page 21 of 24 PageID #:2414 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (69 of 141) every court (other than the Mednax court) that has been presented with arguments about MPERS and/or Bernstein Litowitz’s adequacy on this basis has rejected the challenge. And, again, the strongest challenge to MPERS candidacy comes not from rulings that it is not an inadequate representative but from the fact that so many courts have found it appropriate to appoint MPERS as lead plaintiff. MPERS reports, without contradiction, that “since the allegations cited in Mednax were made public by the Second Circuit Court of Appeals in 2016, Mississippi and Bernstein

Litowitz have been appointed to leadership positions in 17 PSLRA cases in that Circuit [alone].”

MPERS Reply, ECF No. 101, at 13. On this record, the Court is satisfied that MPERS’ selection of the Bernstein Litowitz firm does not undermine MPERS’ adequacy to serve as Lead Plaintiff and that its choice of Bernstein Litowitz as Lead Counsel should be approved.12

D. TBIG-1

Having concluded that MPERS qualifies as the presumptive Lead Plaintiff, it is not necessary to consider the applications of the remaining movants as to that role. Recognizing that its claimed losses of about $751,000 effectively take it out of the running for appointment as the sole Lead Plaintiff, however, TBG-I asserts that it should be appointed as Co-Lead Plaintiff because it is the only movant that can effectively represent the interests of class members who purchased Boeing options. This argument is unpersuasive.

the complaint, not the merits of the kickback claim) actually states that the “defendants spend much of their brief arguing that the complaint is unreliable and contesting the truth of the allegations in the complaint.” Bernstein v. Bernstein Litowitz Berger & Grossman LLP, 814 F.3d 132, 143 (2d Cir. 2016); see also id. at 136 (“We emphasize, however, that at this point in the proceeding the facts alleged are exactly that—simply allegations, the truth of which has not been proven.”). At this juncture, the court sees no basis to credit these abandoned allegations. 12 No other challenge to approval of Bernstein Litowitz to serve as Lead Counsel has been made and in approving MPERS’ selection of the firm as Lead Counsel the Court notes the firm’s extensive experience and record of success on behalf of investors in many substantial securities fraud class actions.

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First, courts routinely reject petitions for appointment as co-lead plaintiffs to represent the

interests of various varieties of claimants and claims, however, as inconsistent with the PSLRA’s

focus on appointing as lead plaintiff an entity or person capable of exercising overall control of

the litigation. As the Second Circuit has explained, “[n]othing in the PSLRA indicates that district

courts must choose a lead plaintiff with standing to sue on every available cause of action.... [I]t is

inevitable that, in some cases, the lead plaintiff will not have standing to sue on every claim.”

Police & Fire Ret. Sys. of City of Detroit v. IndyMac MBS, Inc., 721 F.3d 95, 112 (2d Cir. 2013).

Nor is it necessary “that a different lead plaintiff be appointed to bring every single available claim, as such a requirement would contravene the main purpose of having a lead plaintiff—namely, to empower one or several investors with a major stake in the litigation to exercise control over the litigation as a whole.” Id. See also Hevesi v. Citigroup Inc., 366 F.3d 70, 82-83 (2d Cir. 2004).

Typicality required of lead plaintiffs necessitates only that “the defendants committed the same

wrongful acts in the same manner against all members of the class.” Id.

To the extent that class members have distinct claims, it suffices if there is a named plaintiff with standing to pursue that claim. IndyMac MBS, 721 F.3d at 112. “Being a lead plaintiff is not the same thing as being a class representative.” Bodri v. Gopro, Inc., No. 16-CV-00232-JST, 2016

WL 1718217, at *6 (N.D. Cal. Apr. 28, 2016). The role of a lead plaintiff is to exercise control of the litigation as a whole, not to represent the interests of different constituencies within the class.

That is the role of named plaintiffs, or class representatives; apart from the appointment of a lead plaintiff, “additional named plaintiffs may be added later to represent subclasses of plaintiffs with distinct interests or claims. Indeed, the lead plaintiff in a securities class action has a responsibility to identify and include named plaintiffs who have standing to represent the various potential

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subclasses of plaintiffs who may be determined, at the class certification stage, to have distinct

interests or claims.” Id.

TBIG-1 also asserts that, without a lead plaintiff who owned options, there is a risk that the

lead plaintiff could define the class to exclude options investors and thereby leave Boeing options

holders with no recourse against the defendants. As an initial matter, this argument is speculative.

A lead plaintiff, to be sure, “is empowered to control the management of the litigation as a whole,

and it is within the lead plaintiff's authority to decide what claims to assert on behalf of the class.”

In re Bank of Am. Corp. Sec., Derivative & Employment Ret. Income Sec. Act (ERISA) Litig., No.

09 MDL 2058 (DC), 2010 WL 1438980, at *2 (S.D.N.Y. Apr. 9, 2010) (Chin, J.) (“In re Bank of

America”). But there seems little reason at this juncture to anticipate that an amended complaint

will exclude options purchasers. Neither of the complaints filed to date does so and TBIG-1

provides no good reason to believe that options purchasers will be excluded from a consolidated

amended complaint.

But even if that scenario might come to pass, that prospect does not warrant a prophylactic

appointment of an option purchaser as a co-lead plaintiff. The premise that, if defined out of the

class in this case, options holders may be left without recourse is flawed. If options holders are

defined out of the class, they remain free to pursue their own claims, either individually or perhaps

as their own class.13 Moreover, they might be able to achieve some degree of consolidation with

the litigation of claims of common stock purchasers notwithstanding exclusion from the class.

They might, for example, seek joinder of their claims with those asserted by the common stock

13 In In re Bank of America, Judge Chin held that excluded securities holders could pursue individual but not class claims. 2010 WL 1438980, at *3. It is not clear to this Court, however, that a distinct class could or should be precluded from asserting its own claims simply because litigation of other class claims arising from the same facts began earlier. This issue need not be resolved until and unless presented.

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purchasers or an MDL designation that would permit consolidation of the cases for pretrial

purposes.

More fundamentally, it is not clear why the possible exclusion of options purchasers bears

on the issue of appointment of lead plaintiff. The argument presumes an entitlement on the part of

options purchasers to participate in this action that does not exist. Both the Seeks and Busch

complaints purport to assert claims on behalf of purchasers of any Boeing securities, but they were

not required to define the class that broadly. The complaints could have been filed on behalf of

common stock purchasers only, in which case options holders would already be on the outside looking in. If the Lead Plaintiff files a consolidated amended complaint that excludes options purchasers, those individuals would be no worse off than if the Seeks and Busch complaints had been more narrowly drawn to exclude them in the first instance.

Accordingly, the Court is not persuaded that there is any need for appointment of TBIG-1 to represent the interests of options holders.

* * * * *

For the foregoing reasons, the court appoints the Public Employees’ Retirement System of

Mississippi as Lead Plaintiff and approves its selection of Bernstein Litowitz Berger & Grossman

LLP as Lead Counsel.

______Dated: November 15, 2019 John J. Tharp, Jr. United States District Judge

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EXHIBIT B Case: 1:19-cv-02394 Document #: 140 Filed: 01/28/20 Page 1 of 12 PageID #:2842 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (74 of 141)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

IN RE THE BOEING COMPANY ) No. 19-cv-02394 AIRCRAFT SECURITIES ) LITIGATION ) Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER ON MOTION FOR RECONSIDERATION

This Court entered an order on November 15, 2019 appointing the Public

Employees Retirement System of Mississippi (“MPERS”) as Lead Plaintiff in this

securities fraud class action arising from two aircraft crashes involving Boeing’s 737 MAX

aircraft (“Order”). The Wang Family, one of the applicants for the Lead Plaintiff

designation not chosen by the Court, has moved pursuant to Federal Rule of Civil

Procedure 54(b) for reconsideration of the Court’s denial of its application and the selection

of MPERS as Lead Plaintiff. For the reasons set forth below, that motion is denied.

The Wang Family’s lead argument is that “reconsideration is warranted by manifest errors of fact regarding [their] wholly correct substantial losses of $4.7 million.” Mem. at

4. The Wang Family fails, however, to explain what the Court’s purported error was in this regard. The argument suggests that the Court found that the Wang’s claimed losses of $4.7

million were false, but in fact the Court expressly stated that it was making no such finding:

“To be clear, in denying the Wangs’ motion, the Court makes no finding that their

claimed Boeing investments and losses are not legitimate.” Order at 16 (emphasis added).

Rather, the Order explained that the Court could not conclude that the Wangs satisfied the

criteria for consideration as the presumptive lead plaintiff because they had failed to

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judgment as to their adequacy to serve as Lead Plaintiff and as to the bona fides of their

claimed investments.”

The fundamental problem with the Wangs’ motion for reconsideration is that it assumes that by now providing evidence to buttress their claimed losses they have demonstrated that they should have been selected as lead plaintiff originally. But the putative cure is incomplete. Even assuming, arguendo, that the additional declarations and the production of documents attesting to their trading history now establish the bona fides of their claimed losses, their production of this information does not resolve the Court’s concerns as to their adequacy to represent thousands of class members in this complex and substantial litigation. Again, the Court made this point in the Order when it explained that an evidentiary hearing as to the Wang Family’s investments in Boeing was unnecessary:

[I]it is incumbent upon the Wangs to make a preliminary showing of their adequacy to serve as representatives of the putative class and their proffer of a facially incredible explanation of their wealth, unsupported by any evidence, convinces the court that the Wangs are not able or willing to carry out the duties of a lead plaintiff in a securities fraud class action. At this point in the process, an evidentiary hearing would not alleviate the Court’s concerns in that regard; a viable candidate for Lead Plaintiff would understand the need to make a more fulsome preliminary showing of adequacy from the outset of the lead plaintiff selection process.

Order at 16 n.10 (emphasis added). Indeed, the Wangs’ production of this information now only highlights the fact that they chose not to make any of this information about their financial experience and trading histories available previously, and reinforces the Court’s conclusion (again, set forth in the Order) that the Wangs’ application demonstrated that

“they place priority on their privacy over leading this litigation,” Order at 15-16, and “a

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lead plaintiff preoccupied with its own privacy is unlikely to be an adequate representative

of the class,” id. at 14.

The Wangs maintain that the Court didn’t give them notice that they needed to

present such information. They base this argument on In re Cavanaugh, 306 F.3d 726, 729

(9th Cir. 2002) and In re Cendant Corp. Litig., 264 F.3d 201, 264 (3d Cir. 2001), in which

those courts held that PSLRA prescribes a three-step process for selecting a lead plaintiff.

Relevant here are the second and third steps. In the second, the applicant with the largest

claimed losses must make prima facie showing, based on the pleadings and declarations it

submits, that it satisfies the typicality and adequacy requirements of Rule 23(a). In the third

step, the Court affords an opportunity to other would-be lead plaintiffs to rebut the

presumptive lead plaintiff’s prima facie showing. The Wangs maintain that this Court

conflated these steps by relying on “rebuttal” evidence submitted by MPERS to conclude

that the Wangs would not be adequate representatives of the class without giving the

Wangs an opportunity to respond. The evidence they have provided with their motion, they

contend, should now allay the Court’s concerns.

That argument misses the mark for several reasons. First, the argument

mischaracterizes the Court’s ruling. The Court’s conclusion that the Wangs failed to make

a prima facie showing that they would be adequate representatives of the class was not

based on information supplied by MPERS; it was based on the Wangs’ motion and

declarations, which provided virtually no information about the Wangs—literally telling

the Court only that the Wangs live in Las Vegas—but revealed a curious trading history

with regard to Boeing shares that the Wangs’ “pleadings and declarations” did nothing to

explain. As the Order explained, the “complete dearth of information accompanying the

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Wangs’ lead plaintiff motion” gave the Court virtually no basis to assess their adequacy

“and provides no assurance to the Court that the concerns prompted by the unusual course

of the Wangs’ trading activity are unwarranted.” Order at 9. Further, even after questions

were raised during briefing on the lead plaintiff motions by MPERS about the seeming

disconnect between the Wangs’ lifestyle and ability to purchase $40 million of Boeing shares, the Wangs offered supplemental declarations that continued to shed virtually no light on the Wangs’ background and rested on the implausible claim—which, as discussed further below, was not entirely accurate—that the Wangs had purchased $40 million of

Boeing shares with “wealth our family has accumulated over decades of hard work, savings and investments.” The Wangs offered to make their trading confirmations available, but only to the Court in camera, an untenable approach that reflected an unwillingness to shoulder the discovery burdens that a lead plaintiff must bear on behalf of the class. The

Court concluded that by offering only this meager and implausible information in support of their application, the Wangs had raised so many red flags that the Court could not “in good conscience appoint them to lead this complex, significant, and highly public litigation on behalf of thousands of Boeing investors.” Order at 15.

To be sure, the Court found that the information presented by MPERS concerning the Wangs’ modest lifestyle raised further questions about the bona fides of their application, but—to repeat—the Court made no findings based on that information and explained in the Order that the relevance of the MPERS investigation was not the substance of the information it produced (which, the Court acknowledged, was both incomplete and of questionable reliability) but what it revealed about the Wangs’ willingness and ability to meet the responsibilities of a lead plaintiff—namely, that the Wangs “do not seem to

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understand, or accede to, the obligations of a lead plaintiff” with regard to discovery; that

that they failed to acknowledge or address obvious deficiencies in their application, and

that their actions during the course of briefing on the lead plaintiff motions “cast doubt on

both their judgment and their fealty to the duty of candor to the Court.” Order at 13.

Second, the Court committed no “manifest error of law” in determining that the

Wangs had failed to make a prima facie showing of adequacy on the basis of the

information they supplied (more accurately, on information that they failed to provide).

The Wangs’ briefs repeatedly state that they satisfied the “statutory requirements” for

presumptive lead plaintiff status, by which they appear to mean that they had “executed

certifications required by the PSLRA and alleged ‘typical’ claims.” Wang Mem., ECF No.

131, at 13. The Wangs cite no authority for that proposition, however. Certainly neither

Cavanaugh nor Cendant so hold; saying that adequacy must be measured at the

presumption stage based only on the pleadings and declarations submitted by the applicant

says nothing at all about the substantive content of those pleadings and declarations.

Neither case purports to hold that providing the certifications required by § 78u-4(a)(2)

must be deemed to satisfy the adequacy requirement.1 Such a rule, moreover, would be at

1 This Court’s ruling was therefore entirely consistent with Cavanaugh and In re Cendant Corp, but even were that not so, there would be no “manifest error of law” as the Wangs argue. A manifest error of law “is the wholesale disregard, misapplication, or failure to recognize controlling precedent.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (internal quotation marks omitted). Neither Cavanaugh nor In re Cendant Corp. is binding authority on this Court and, contrary to the implication of the Wangs’ argument, their approach is not universally embraced by other courts in any event. Cavanaugh acknowledges, for example, that the Fifth Circuit has taken a different view. See Berger v. Compaq Comput. Corp., 257 F.3d 475, 483 (5th Cir. 2001) (PSLRA requires “that securities class actions be managed by active, able class representatives who are informed and can demonstrate they are directing the litigation. In this way, the PSLRA raises the standard adequacy threshold.”); Berger v. Compaq Comput. Corp., 279 F.3d 313 313 (5th Cir. 2002) (on rehearing) (PSLRA directs “courts to appoint, as lead plaintiff, the most 5

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odds with the statutory text and structure. The statute makes such certifications a

prerequisite to making an application to serve as lead plaintiff; if those certifications

sufficed as a prima facie showing of adequacy, the statute’s adequacy criterion for

presumptive status would be entirely unnecessary. So too if the only additional information

required was a conclusory self-assessment as to adequacy.

As the Court therefore explained in the Order, to make a prima facie showing of

adequacy, “a movant must supply some information about its ability to perform the role of

lead plaintiff diligently and effectively.” Order at 9. And indeed, every other lead plaintiff

applicant included information in their applications about their financial sophistication,

relevant educational and work experience, litigation experience, and other information that

provided the Court with some basis to assess their adequacy to serve as the representative

of a class of thousands in a complex, highly publicized class action. Only the Wang Family

concluded that merely identifying the city in which they lived would suffice as a prima

facie showing of their adequacy to represent the class. It was not the Court’s duty to offer

a do-over to the Wangs to bolster their deficient presentation; it is the applicant’s burden

to make a prima facie showing of adequacy and “a viable candidate for Lead Plaintiff

would understand the need to make a more fulsome preliminary showing of adequacy from

the outset of the lead plaintiff selection process.” Order at 16 n.10.

In making the seemingly uncontroversial point that even a merely preliminary

showing of adequacy requires a lead plaintiff applicant to provide some information about

their relevant experience, the Court cited one recent case, Camp v. Qualcomm Inc., No. 18-

sophisticated investor available and willing so to serve in a putative securities class action.”). Given this Circuit split, even if this Court’s approach were inconsistent with Cavanaugh and In re Cendant Corp., it could not be deemed a “manifest error of law.”

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CV-1208, 2019 WL 277360, *3 (S.D. Ca. Jan. 22, 2019) (Qualcomm I). The Wangs

maintain that the Court’s reliance on Qualcomm I was misplaced, however, and that on

reconsideration the Qualcomm court “largely abandon[ed] its reliance on the movant’s

failure to provide more information about himself.” That is simply not the case. On

reconsideration, the Qualcomm court reiterated its initial holding that the would-be lead

plaintiff had failed to make a prima facie showing of adequacy based in part on “the lack

of information [he] provided about himself,” Camp v. Qualcomm Inc., 2019 WL 3554798,

*2 (S.D. Ca. Aug. 5, 2019) (Qualcomm II), and concluded that “its prior analysis neither

committed clear error nor was manifestly unjust, and as such does not render

reconsideration necessary.”

In any event, Qualcomm is hardly the only case in which courts have found wanting

lead plaintiff applications that do not provide any meaningful information about the

applicant’s financial sophistication and ability to manage and direct complex class action

litigation. In Karp v. Diebold Nixdorf, Inc., No. 19 CIV. 6180(LAP), 2019 WL 5587148,

at *5–6 (S.D.N.Y. Oct. 30, 2019), for example, Judge Preska held that a married couple

vying to serve as Lead Plaintiff applicant had failed to make a prima facie showing of

adequacy where (notwithstanding claimed losses of almost $1.5 million) those individual

investors “provided the Court with little to go on with respect to their alleged capacity to

manage this litigation.” Id. at *6. Noting that “size, available resources, [and] experience

of a candidate” are “relevant to reaching a determination as to whether a candidate will be

capable of adequately protecting the interests of the class,” the Court specifically

emphasized the investors’ failure to provide information as to whether thy had any

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experience serving as a lead plaintiff as the basis for its skepticism about their adequacy.

Id.

Myriad other cases support the same proposition. In In re Gemstar-TV Guide Int'l,

Inc. Sec. Litig., 209 F.R.D. 447 (C.D. Cal. 2002), the court rejected an application for

designation as Lead Plaintiff on adequacy grounds where the applicants, two individual

investors (Norman and Fran Gad), provided no evidence that they were competent to serve

as lead plaintiffs:

There is no evidence that the Gads possess the requisite sophistication to supervise this litigation. Nor is there any evidence that the Gads have the resources to supervise and participate fully in this litigation. Moreover, the court is unconvinced that the Gads appreciate the nature of the role which they seek to perform in this litigation. In their own sparse declarations, the Gads represent that they have no experience serving as lead plaintiffs in class actions within the past three years. In short, the Gads provide no briefing and proffer no declarations concerning their ability to act as lead plaintiffs.

Id. at 452 (internal citations omitted). See also, e.g., Piven v. Sykes Enterprises, Inc., 137

F. Supp. 2d 1295, 1305 (M.D. Fla. 2000) (“There is a dearth of information regarding

Westwind in the record. It is not even known where Westwind is located, what its business

is, if it is a foreign company, and who controls it. Westwind repeatedly asserts that it is ‘a

large institutional investor,’ but has not proffered any information regarding its identity,

resources, and experience.”); In re Conseco, Inc. Sec. Litig., 120 F. Supp. 2d 729, 733 (S.D.

Ind. 2000) (declining to appoint applicant with largest loss where applicant relied on bare

certification that did not provide “confidence that as a sole individual investor, he is capable

of adequately representing the purported class and controlling lead counsel.”).

In short, the premise of the Wangs’ motion for reconsideration—that the Court

denied their application based on factually inaccurate information supplied by MPERS— 8

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is simply wrong. The Court denied the Wangs’ application because the Wangs provided

virtually no meaningful information about themselves and seemed determined to avoid

having to do so, an approach that fell well short of a prima facie showing of adequacy.

Indeed, in trying to provide as little information to the Court and other class members as

possible, the Wangs have made a prima facie showing that they will not be adequate

representatives of the class.

Accordingly, there is no need to consider the “new information” the Wangs have

now provided to counter MPERS “rebuttal” evidence. It bears noting, however, that review

of that material raises further concerns about the Wangs’ adequacy. Specifically, the

Wangs’ trading records demonstrate that the Wangs’ prior declaration that they purchased

$40 million of Boeing shares with “wealth our family has accumulated over decades of

hard work, savings and investments” was not entirely accurate; the trading records reveal

that the Wangs amassed their $40 million in Boeing shares by substantial borrowing on the

margin. MPERS maintains that the Wangs’ margin borrowing raises the potential for

unique defenses to be asserted against the Wangs, but identifies no case in which a defense

arising from margin trading was mounted, so at this juncture the Court does not credit that

argument. More significant, in the Court’s view, is that the Wangs’ margin borrowing

reveals their wealth to be significantly lower than implied by their prior declaration that

“Kenny Wang Sr. invested over $40 million in Boeing common stock” during the class

period. ECF 100 at ¶ 3. The Court agrees with MPERS that this statement “obscures the

reality that the ‘$40 million’ invested was not the Wangs’ own money”—or at least most

of it was not. The fact that the Wangs’ borrowed much of the money used to fund their

huge purchases of Boeing shares clearly bears on the assessment of the extent of their

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wealth, which was clearly a focus of the lead plaintiff briefing, yet even when supplying a

supplemental declaration to address the point, the Wangs did not see fit to reveal that they

purchased well over half their Boeing shares with borrowed money. Whatever the reason

for this omission, it obscured the Court’s ability to assess and understand the Wangs’

background and financial resources. Failing to provide a clear and accurate picture of their

financial wherewithal represents another reason for the Court to question the Wangs’

“judgment and fealty to the duty of candor to the Court.” Order at 13.

More problematic still is the fact that the Wangs’ trading records reflect that the

loss charts the Wangs’ submitted with their original declarations are patently incorrect.

Those charts indicate that the Wangs sold none of the Boeing shares they purchased during

the class period before filing their lead plaintiff motion (see ECF No. 45-2 at 2-4), but the

Wangs’ trading records reveal that the Wangs sold some $7.5 million of those shares before

the Wangs’ filed their loss charts (see ECF No. 132-1 at Page 100 of 228). The Wangs’

motion offers no explanation for the error but attempts to dismiss it as inconsequential

because had the Wangs used their sale prices to compute their losses, their losses would

have been somewhat higher. Even accepting that representation as accurate, it does nothing

to mitigate the fact that the Wangs submitted information in support of their application as

lead plaintiff that they knew was inaccurate; luck is not an element of adequacy and a poor

substitute for diligence. One of two things happened here: either the Wangs reviewed the

loss charts and neglected to correct them despite errors that should have been obvious to

them based on their own trading, or they didn’t review the loss charts at all. Under either

scenario, their failure to discover these obvious errors independently warrants a

determination that the Wangs will not be adequate representatives of the class. See, e.g., Li

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Hong Cheng v. Canada Goose Holdings Inc., No. 19-CV-8204 (VSB), 2019 WL 6617981,

at *6 (S.D.N.Y. Dec. 5, 2019) “certification errors in [applicant’s] submissions “render

[him] inadequate to serve as lead plaintiff under Rule 23’s adequacy requirement”); Plaut

v. Goldman Sachs Grp., Inc., No. 18-CV-12084 (VSB), 2019 WL 4512774, at *5

(S.D.N.Y. Sept. 19, 2019) (finding applicant lacked adequacy in light of inadvertent

clerical errors even though they understated actual loss shows); Tomaszewski v. Trevena,

Inc., 383 F. Supp. 3d 409, 414-15 (E.D. Pa. 2019) (declining to appoint investor with

largest loss where errors in loss charts including misstated transaction dates “speak to a

level of carelessness” that casts doubt that applicant possesses “the necessary adequacy and

sophistication to be lead plaintiff”); Qualcomm I, 2019 WL 277360, *3-4 (citing single

errors in certification and as to sale price on a single day as additional reasons not to appoint

lead plaintiff applicant with largest financial interest); Garbowski v. Tokai

Pharmaceuticals, Inc., 302 F. Supp. 3d 441, 451-52, 455 (D. Mass. 2018) (citing

applicant’s failure to list post-class period sales as factor calling adequacy into question);

Micholle v. Ophthotech Corp., 2018 WL 1307285, at *9 (S.D.N.Y. Mar. 13, 2018) (date

and price errors in submissions “militate against appointment and render [applicant]

inadequate to serve as lead plaintiff”); Bhojwani v. Pistiolis, No. 06 CIV. 13761 CM NKF,

2007 WL 9228588, at *3 (S.D.N.Y. July 31, 2007) (“the fact that the data still do not quite

add up indicates a certain carelessness about detail that undermines the adequacy of

[investor] as a lead plaintiff”).

* * * * *

In sum: The Court denied the Wang Family’s application to serve as Lead Plaintiff

because their application raised concerns about the bona fides of their trading history and

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because it failed to make a prima facie showing of adequacy. The Court therefore declined

to hold an evidentiary hearing, which would not have addressed the Wangs’ failure to make

a prima facie showing of adequacy. The Wangs have in any event submitted their evidence

and it does not change the Court’s view: even assuming that their claimed losses are bona

fide, the Wangs’ failed to make a prima facie showing of adequacy. The Court did not err

in requiring the Wangs’ to provide some meaningful information about their backgrounds,

financial, and litigation experience. The “new” information that the Wangs have supplied

with their motion to reconsider has only confirmed the Court’s assessment that the Wangs

will not be adequate representatives of the class. Accordingly, the motion for

reconsideration is denied and the Court’s selection of MPERS as Lead Plaintiff is

confirmed.

Date: January 28, 2020 ______

John J. Tharp, Jr. United States District Judge

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EXHIBIT C Case: 1:19-cv-02394 Document #: 45-1 Filed: 06/10/19 Page 2 of 8 PageID #:603 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (87 of 141)

CERTIFICATION PURSUANT TO SECURITIES LAWS

Kenny K. Wang ("Movant") declares, as to the claims asserted under the federal securities law, that:

I. Movant has fully reviewed the facts of the complaint(s) filed in this action alleging violations of the

securities laws, Movant adopts the allegations of the complaint(s), and Movant retains the firm of Kahn

Swick and Foti, LLC, to pursue such actionon a contingent fee basis.

2. Movant did not purchase securities of The Boeing Company at the direction of counsel or in order to

participate in a private action under the federalsecurities laws.

3, Movant is willing to serve as a representative party on behalf of a class, including providing testimony

at deposition and trial, if necessary.

4. During the Class Period, Movant has executed transactions in the securities of The Boeing Company

as follows. See attached Schedule.

5. In the last three years, Movant has not sought to serve as a representative party on behalf of a class in an

action filedunder the federal securities laws, except as indicated herein.

6. Movant will not accept payment for serving as a lead plaintiffbeyond his/her/its pro rata share of any

recovery, except such reasonable costs and expenses (including lost wages) directly relating to the

representation of the Class as ordered or approved by the Court.

I declare under penaltyof perjmy under the laws of the United States of America that the foregoing is trueand correct. 4-2-37Jo!"f Dated:�------' 2019

Movant's Signature

Prikd Name Case: 1:19-cv-02394 Document #: 45-1 Filed: 06/10/19 Page 3 of 8 PageID #:604 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (88 of 141)

Kathleen Wang Case: 1:19-cv-02394 Document #: 45-1 Filed: 06/10/19 Page 7 of 8 PageID #:608 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (89 of 141)

CERTIFICATION PURSUANT TO SECURITIES LAWS

______Kenny W. Wang, Jr. (“Movant”) declares, as to the claims asserted under the federal securities law, that:

1. Movant has fully reviewed the facts of the complaint(s) filed in this action alleging violations of the

securities laws, Movant adopts the allegations of the complaint(s), and Movant retains the firm of Kahn

Swick and Foti, LLC, to pursue such action on a contingent fee basis.

2. Movant did not purchase securities of The Boeing Company at the direction of counsel or in order to

participate in a private action under the federal securities laws.

3. Movant is willing to serve as a representative party on behalf of a class, including providing testimony

at deposition and trial, if necessary.

4. During the Class Period, Movant has executed transactions in the securities of The Boeing Company

as follows. See attached Schedule.

5. In the last three years, Movant has not sought to serve as a representative party on behalf of a class in an

action filed under the federal securities laws, except as indicated herein.

6. Movant will not accept payment for serving as a lead plaintiff beyond his/her/its pro rata share of any

recovery, except such reasonable costs and expenses (including lost wages) directly relating to the

representation of the Class as ordered or approved by the Court.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Dated: ______,April 23 2019

______Movant’s Signature

______Kenny Wang

Printed Name Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (90 of 141)

EXHIBIT D Case: 1:19-cv-02394 Document #: 100 Filed: 08/02/19 Page 1 of 3 PageID #:1917 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (91 of 141)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

RICHARD SEEKS, individually and on ) behalf of all others similarly situated, ) ) No. 1:19-cv-02394 Plaintiff ) (Consolidated) ) v. ) CLASS ACTION ) THE BOEING COMPANY, DENNIS A. ) Judge John J. Tharp, Jr. MUILENBURG, and GREGORY D. ) SMITH, ) ) Defendants ) ) )

THE WANG FAMILY’S DECLARATION IN SUPPORT OF THEIR MOTION FOR APPOINTMENT AS LEAD PLAINTIFF

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Pursuant to 28 U.S.C. § 1746, Kathleen Wang, Kenny Wang Sr. and Kenny Wang Jr. declare as follows: 1. We respectfully submit this Declaration in further support of our application for appointment as lead plaintiff on behalf of the class, and for approval of our selection of Kahn Swick & Foti, LLC (“KSF”) as lead counsel in this securities litigation against The Boeing Company. We have personal knowledge of the facts set forth herein. 2. We are informed of and understand the requirements of serving as a lead plaintiff pursuant to the Private Securities Litigation Reform Act of 1995 (the “PSLRA”). We were informed about the PSLRA and its requirements before we authorized KSF to file our lead plaintiff motion with the Court. 3. Kenny Wang Sr., who has approximately 30 years of investment experience, and is now a retired philanthropist who helps disadvantaged youth through an organization called Shanghai Sunrise, contacted KSF to help us recover our trading losses in Boeing securities. Those losses are approximately $4.7 million. Of that amount, Kenny Wang Jr. lost approximately $20,000. Kenny Wang Sr. invested over $40 million in Boeing common stock during the January

8, 2019 through May 8, 2019 Class Period to incur our collective loss. 4. We have authorized our attorneys to submit our trading confirmations in Boeing common stock during the Class Period to the Court in camera if requested by the Court. 5. The PLSRA Certifications we signed and had our attorneys file with the Court on

June 10, 2019 are, and remain accurate. We understand that the Class Period was expanded to May 8, 2019 after we filed our lead plaintiff motion on June 10, 2019. We had no additional transactions in Boeing securities between March 21, 2019 and May 8, 2019.

6. On behalf of ourselves and the Class we seek to represent, we negotiated a very favorable retainer agreement with KSF which we have authorized our attorneys to submit to this Court in camera if requested. 7. We understand that the PSLRA was intended to encourage investors with meaningful losses to become involved in leading securities class actions. As set forth in the motion

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for appointment as lead plaintiff and supporting papers we filed, we purchased significant amounts of securities issued by Boeing and incurred substantial losses as a result of Defendants’ alleged violations of the federal securities laws. 8. We are committed to vigorously prosecuting this litigation. We also understand that we owe a fiduciary duty to all members of the proposed class to provide fair and adequate representation. 9. Mississippi PERS and their lawyers at Bernstein Litowitz have improperly, and with no evidence, suggested to this Court that we could not have lost as much money as we did in this case based simply upon their analysis of the home we reside in, our jobs and the cars we drive – which in no manner serves as evidence of the wealth our family has accumulated over decades of hard work, savings and investments. 10. We believe that their use of abusive investigative tactics to harass and intimidate us is an abuse of the legal process and should not be tolerated by this Court. 11. We hope that the Court sees fit to admonish Bernstein Litowitz for what they did to our family in trying to intimidate us into withdrawing our lead plaintiff motion. Their tactics have only strengthened our resolve to vindicate the rights of Boeing shareholders in this important case. 12. We declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

DATED: ______

By: Kathleen Wang

______By: Kenny Wang, Jr.

______By: Kenny Wang, Sr.

2 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (94 of 141)

EXHIBIT E Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (95 of 141)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

DECLARATION OF KENNY WANG, SR. IN SUPPORT OF THE WANG FAMILY’S MOTION FOR APPOINTMENT AS LEAD PLAINTIFF Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (96 of 141)

Pursuant to 28 U.S.C. § 1746, I, Kenny Wang, Sr., declare as follows: 1. I am a United States citizen since approximately 1984 who emigrated from Taiwan in approximately 1978. In Taiwan I spent over 10 years in the Army and earned a degree in mass communication. I worked in the broadcasting industry in Taiwan. 2. When I first came to the United States, I moved to the Los Angeles, California area. With my savings from Taiwan, I was able to buy my first house in the Monterey Park area and became a landlord. Over time, I gained success in real estate and owned a number of properties, which I rented and/or sold.

3. As stated in my previously filed Declaration, I have been a successful investor for decades. For example, over the past two years I reported millions of dollars in capital gains income alone. Attached as Exhibit A. I invest in primarily large-cap, Dow 30 companies with solid dividends. I generally utilize a buy and hold strategy and intensively research companies I invest in. I review annual and quarterly reports and stay current on corporate news. To invest the sums of money I invest, one must understand the companies they invest in as I do. Moreover, having made a significant investment in Boeing, I am very familiar with the Company and the recent events surrounding the 737 MAX, which I have followed closely and which will be an asset to the Class. I will continue to stay current on my investment. 4. I am available and in touch with my Counsel often since I work and invest out of my home. Even when in China, through the use of various Internet-based Messenger applications,

I stayed in consistent communication with my Counsel, with minor periods of unavailability -- no longer than a day at most. When and if I travel in the future I will continue to oversee and communicate in this manner. I have retained adequate counsel to advise me. As an investor who has achieved significant market success, I am smart and highly skilled at evaluating complex information. I have no doubt that I will be able to effectively synthesize events in this case and utilize the successful decision-making processes I have utilized in my career for the benefit of the Class.

1 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (97 of 141)

5. Attached as Exhibits B and C are my TD Ameritrade trade statements and trade confirmations for the months of January 2019 through May 2019 for all Boeing transactions during the Class Period, consistent with our sworn Certifications in this matter, in the Kenny and Kathleen

Wang Family Trust, for which myself and my wife Kathleen are the Beneficiaries and Trustees, with the power to institute or compromise any actions or proceedings. Exhibit D. We only transacted in Boeing in this entity and account.

I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct.

DATED: 1/-?.'f-2.0lf

By: Kenny Wang, Sr.

2 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (98 of 141)

EXHIBIT A Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (99 of 141) (99) Department of the Treasury - Internal Revenue Service Form 1040 U.S. Individual Income Tax Return 201 1 I I I 0MB No. 1545-0074 IRS Use Only - Do not write or staple in this space. i i i For the year Jan. 1 Dec.31, 2017, or other tax yearbeg nn ng , 2017, end ng , 20 See se.parate instruct ions. YoLrfirst name arid fnitial Last name Your social socuri!ynumber KENNY WANG If a joint return, spouse's firs! name and inifial Last name Spouse's social security number KATHLEEN WANG Homo address (number and streel). A If you have a P.O. box, see instructions, Apt. no. Make surei the SSN(s) above 8740 DOUBLE EAGLE DRIVE and on l ne 6c are correct. City, town or post office, state, and ZIP code. If you have a foreign address, also complete spaces bolow (see uistrt.etions). Presidential Election Campaign LAS VEGAS NV 8911 7 Check here if you, or your spouse if filing -=;;.;;.;;; -c.=.;;;.;.;;.;c.,_c..;..;._;..;;...c;;..;.;______-----1 ointly, j want $3 to go to this fund. Checking Foreign postal code Foreign country name F01ci9n p1ovlnce/statc/counly a box below will not change your tax or n You n Spouse refund. O i i i Filing Status 1 LJSingle 4 Headi ofi household (w thi quali fy ng person).i i (See 2 i i i i i i nstruct ons.) If the qual fy ng person s a ch ld Marr ed f l ng jo ntly (even f only one had ncome) but not your dependent, enter th is ch ild's 3 i i Marr ed fil ng separately. Enter spouse's SSN above & full name here .. ► Check only � ______i i i -( _ _ (_ _ _ -i - - - - - i one box. name here .. ► 5 0 Qual fy ng w dow- er) see nstruct ons) i Exemptions I so o ca e he x __ -� -�� -�� - ��- -��'.•.�� - �� - · -�� - - ��: : : : : : : : : : : : ]- ��;.;��;:: _ 2_ 6: _.._.._��:��:��-- ______� · · -��- -�� · · -� �� -,------�------�--==--on Ge who: Dependents: (3) Dependent's (4) ✓ c (2) Dependent's if r relationship • ,ved socia security child3 under w., number to you q r th you · · · · · - . ,�,n�f - --- (1) F rst name La s t name �!;J-Ml!A-=- m�t "" ! d1� not __ _ i ______+------+------t -=seet,.nst .. 1t�:'ce r1KFt,ans=��'f,;separationt� or ------1------+------If more than four -+ 4--l--(seeinstructions). ____ dependents, see ------+------+------t---i--.--��t��ris instructions and entered above check here ... ►o Add numbers i onabove lines..... d Total number of exemptions cla med ...... •...•.....•...... •.•.•... ,, ..•. ►I 21 i i '' ········· 7 Income 7 Wages, salar es, t ps, etc. Attach Form(s) W 2...... '. 8a Taxable interest. Attach Schedule B if requ ired...... 8a b Tax-exempt interest. Do not include on l ine Sa ...... I 8bl i i Attach Form(s) 9a Ord nary dividends. Attach Schedule B if requ red ...•...•...... 9a . i i i W-2 here. Also b Qual f ed div dends...... I 9bl . 10 attach Forms 10 Taxable refunds, credits, or offsets of stale and local income taxes ...... W-2G and 1099-R i i - - ..... if tax was withheld. 11 Al mony rece ved ...... ·····•· ...... � ...... - ...... 11 i i 12 Bus ness income or (loss). Attach Schedule C or C EZ...... •...... 12 If you d d not 13 i i i i i D 13 get a W 2, Cap tal ga n or (loss). Attach Schedule D f requ red. If not requ red, check here .. . . . • .. • ► 1 468,404. see instructions. 14 Other gains or (losses). Attach Form 4797 ...... •..•....•..., 14 i i 15a IRA d str butions ...... • 15 a b Taxable amount...... 15b i I 16a Pensions and annuit es...... , 16a I b Taxable amount.•.•.•...•.•. 16b 17 Rental real estate, royalties, partnerships, S corporations, trusts, etc. Attach Schedule E.. 17 i '''''' - '' 18 Farm ncome or (loss). Attach Schedule F ...... 18 19 Unemployment compensation ...... •...... •.•••.•. 19 i 20 a Social secur ty benefits ..•..•.... . I b Taxable amount.•.....•.•... 20b 21 Other income. List type and amount ______21 22 i i i ► 22 Comb ne the amounts in the far right column for l nes 7 through 21. Th s is your total income ..•...... 23 Educator expenses...... ' ....'. ' ...... ' ...... 23 Adjusted 24 Certain bus iness expenses of reservists, performing artists, and fee basis i ' ''''' ' Gross government offic als. Attach Form 2106 or 2106 EZ...... 24 Income i '' 25 Health savings account deduct on.Attach Form 8889 ...... 25 26 Moving expenses. Attach Form 3903 ...... '' .... ' ''. .... 26 i 27 Deduct ble part of self-employment tax. Attach Schedule SE...... 27 28 Self-employed SEP, SIMPLE, and qual ified plans ...... 28 i ' 29 Self-employed health nsurance deduction, •...... 29 30 Penalty on early w ithdrawal of savings ...... 30 i i 31 a Al mony pa d b Recipient's SSN• ...• ► 31 a 32 IRA deduction ...... , ...... 32 33 Student loan interest deduction...... 33 34 i '' ' ' 34 n Tuit on and fees. Attach Form 8917 ...... ' ..... i i i ' 35 Domest c production act vities deduct on.Attach Form 8903 ...... ····· 35 36 i ''''.' '.' ' ' ...... 36 0. Add l nes 23 through 35 ...... ► 37 Subtract l ine 36 from l ine 22. This is your adjusted gross income ...... , ...... 37 BAA For Disclosure, Privacy Act, and Paperwork Reduction Act Notice, see separate mstruct1ons. Form 1040 (2017) FDIA0112L 02/22118 • Form W40 (20'i7) KENNY AND KATHLEEN WANG 38Case: Amount 20-1402 from line 37 (adjusted Document: gross income) 1-1 , •• , •• ,··,,, Filed: ·a· ,·03/10/2020 .. •········ .... •····· Pages: .. 137 (100 of 141) Tax and 39a Check { 8 You were born before January 2, 1953, Blind.LTotal boxes Credits if: Spouse was born before January 2, 1953, Blind._Jchecked ► 39a ------Standard b If your spouse itemizes on a separate return or you were a dual-status alien, check here...... ► 39 b Deduction 40 Itemized deductions (from Schedule A) or your standard deduction (see left margin) ...... , . . • . . . . • • • t-40T.."-+---• for - 41 Subtract line 40 from line 38 . • • • • • • • • • • • . . . . . , . , , •••...... , • . . • ...... • • • 1--4...:.1"--l----"!!!!!!B • People who 42 Exemptions. If line 38 is $156,900 or less, multiply $4,050 by the number on line 6d. otherwise, see instrs . , . , • • 1--4_2_+---====:::::::::::::::::. check any box 43 Taxable income. Subtract line 42 from line ~l. on line 39a or If line 42 is more than line 41, enter -0- . • , •• .. • , • , ••••• •••••••••••••••••• , • .... ••• , ••• , . , • • 1---+---43

~~bc~~~:~ ~;~ 44 Tax (see instructions). Check if any from: : J:f ;~~~(:~::'.~ ...... -~-~ •... •... •.... 44 ~n~;u~~~~\_see 45 Alternative minimum tax (see instructions). Atta~ Form 6251 ...... • .••.••••••• ,.. 1-4-5-1---- 1---1----- • All others: 46 Excess advance premium tax credit repayment. Attach Form 8962...... 46 Single or 47 Add lines 44, 45, and 46. . • • . • • • • • • ...... • , • , • • • • • • • • • . . • . • • ...... • . • • . • • . . • . ► t-4-=7:--t---.. Married filing separately, 48 Foreign tax credit. Attach Form 1116 if required...... • 48 18 . $6,350 49 Credit for child and dependent care expenses. Attach Form 2441 ...... •• , • t-4_9_1------1 Married filing 50 Education credits from Form 8863, line 19 ...... 5_0_+------t jointly or 51 Retirement savings contributions credit. Attach Form 8880 ••• 1--5.:...1-+------i Qualifying w$ id 0 w(er), 52 Child tax credit. Attach Schedule 8812, if required. , • ... , . • , . 1-5_2_1------1 120700 53 Residential energy credits. Attach Form 5695. . . , , . . . • • • ...5_3_+------t ~ii~e~~ld, 54 other crs from Form: a O3800 b D 8801 c D -----'""""54------; ._$_9"""',3_5_0______. 55 Add lines 48 through 54. These are your total credits .. . , . , , ...... , ••••• , • 1-5_5--11---- 56 Subtract line 55 from line 47. If line 55 is more than line 47, enter -0-...... ► 56 Other 57 Self-employment tax. Attach Schedule SE_ . • ...... • . . . . . • • • • • • • • • • . • • . . • • • • • . • • . • • 1-5.;;..;7'--1------Taxes 58 Unreported social security and Medicare tax from Form: a O4137 b O8919 . •••••• , ••• , ••.•••.• ,. 1--58_.,.______59 Additional tax on IRAs, other qualified retirement plans, etc. Attach Form 5329 if required • , ••• , •• , ••• , • , •• , i--;;.59_-1------60 a Household employment taxes from Schedule H ...... 1--60_a-1------5 6l b ~~:~;~::r:~:~~v~~::t;:i~:i~rii;e(~~:::~~u~~:s:~u:~-~:~~i::~·:r~·g·: '[&l: :::::::::: -:~-b-+------62 Taxes from: a DForm 8959 b ~ Form 8960 c O lnstrs; enter code(s) _ ,__62____ _ 63 Add lines 56 through 62. This is your total tax ...... , ••• , ...... ► 63 Pa ments 64 Federal income tax withheld from Forms W-2 and 1099 ••• ,,, 64 ---ii---- If you have a 65 2017 estimated tax payments and amount applied from 2016 return ...... , l--6_5_i---- qualifying 66a Earned income credit(EIC) ...... , ...... t-66_a______child, attach Schedule EiC. b Nontaxable combat pay election . . • • • ► .,_6_6_b..______--t 67 Additional child tax credit. Attach Schedule 8812 .. ,., ••••••• 1-6_7_1------1 68 American opportunity credit from Form 8863, line 8. • , •• ,.... 1-6_8_+------1 69 Net premium tax credit. Attach Form 8962 . ••••••••• , • • • • • • • 1-6_9;;....._1------1 70 Amount paid with request for extension to file. , . , , . • • • , • , • , 1-7_0_+------1 71 Excess social security and tier 1 RRTA tax withheld ., ••••••• 1-7_1_+------1 72 Credit for federal tax on fuels. Attach Form 4136. . _. • • • • • 1-7;;..2_1------1 73 Credits from Form: a 02439 b OReserved c [] 8885 d [] ___ ~7_3_..______--t 74 Add lines 64, 65, 66a, and 67 through 73. These are your total payments ...... ► 74 Refund 75 If line 74 is more than line 63, subtract line 63 from line 74. This is the amount you overpaid . ••••••••••••• □ -75_+------76a Amount of line 75 you want refunded to you. If Form 8888 is attached, check here... ► r--76_a______- _ ► b Routing number. • • • • • • • ► c Type: Checking OSavings Direct deposit? See instructions. ► d Account number...... 77 Amount of line 75 ou want ~--==------r-~ a Amount 78 Amount you owe. Subtract line 74 from line 63. For details on how to pay, see instructions ,...... ► t-7_8_..__ ___ You Owe 79 Estimated lax enalt see instructio11s ~ - ...... 79 Third Party Do you want to allow another person to discuss this return with the IRS (see instructions)? . ..••. , •••• ~ Yes. Complete below. 0 No Designee Designee's ► J ff M G h EA Phone ► Personal identification ► name e rey ra am, no. number (PIN) Under penallles or p"Jury, I de~lllre lhat I hiive. el@ll1111a(I this rolum and ac(Ompanying schedules and statements, and to the best of my knOwledQe and belief, they Sign ate ltue, correct, and accurately list all amount5 and sources of income I received during the lax year. Declar;ition of preparer (other than laxpayer) is based on all Here inlormal.Jon of which ptel)llfer lias any knowledge. Joint return? Your signature Date Your occupation Daytime phone number See instructions. INVESTOR Keep a copy ► Spouse's signature. If a joint return, both must si Date Spouse's occupation .'' the IRS sem )'(II an Identity Protection PIN, enier 11 for your records. REALTOR here (see inst.) Date Check ~ ~ Paid 4/14/18 self-employed Preparer Use Only Firm's address ►

FDIA0112L 0?/~2/18 Phone no, Form 1040 (2017) ,, • . SCHEDULED Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137OMS No. 1545-0074(101 of 141) (Form 1040) Capital Gains and Losses ► Attach to Form 1040 or Form 1040NR. 2017 Department of the Treasury ► Go to www.irs.gov/ScheduleD for instructions and the latest information. Internal Revenue Service (99) ► Use Form 8949 to list your transactions for lines 1 b, 2, 3, Sb, 9, and 10. Name(s) shown on return KENNY AND KATHLEEN WANG IPart I IShort-Term Capital Gains and Losses - Assets Held One Year or Less

See instructions for how to figure the amounts to (g) (h) Gain or (loss) enter on the lines below. (d) (e) Adjustments Subtract column (e) Proceeds Cost to gain or loss from from column (d) and This form may be easier to complete if you round (sales price) (or other basis) Form(s) 8949, Part I, combine the result with off cents to whole dollars. line 2, column (g) column (g) la Totals for all short-term transactions reported on Form 1099-B for which basis was reported to the IRS and for which you have no adjustments (see instructions). However, if you choose to report all these transactions on Form 8949, leave this line blank and go to line 1b • . , • . • ...... , . , ••• 1b Totals for all transactions reported on Form(s) 8949 with Box A checked . ••••••••.•• 2 Totals for all transactions reported on Form(s) 8949 with Box B checked. ••••••.•••• - 3 Totals for all transactions reported on Form(s) 8949 with Box C checked. ••••••••••• -

4 Short-term gain from Form 6252 and short-term gain or (loss) from Forms 4684, 6781, and 8824 ., ••••••••••• 1--4-+------=IIII==

S Net short-term gain or (loss) from partnerships, S corporations, estates, and trusts from Schedule(s) K-1 ••• , • _s______6 Short-term capital loss carryover. Enter the amount, if any, from line 8 of your Capital Loss Carryover Worksheet in the instructions. . . . . • . . • • ...... • • . • • . , . . . . • . • • • • • • • . . • ...... • • • • • . 1--+------6 7 Net short-term capital gain or (loss). Combine lines 1a through 6 in column (h). If you have any long-term ca ital ains or losses, o to Part II below. Otherwise, go to Part Ill on the back...... 7 IPart II ILong-Term Capital Gains and Losses - Assets Held More Than One Year - See instructions for how to figure the amounts to (g) (h) Gain or (loss) enter on the lines below. (d) (e) Adjustments Subtract column (e) Proceeds Cost to gain or loss from from column (d) and This form may be easier to complete if you round (sales price) (or other basis) Form(s) 8949, Par! II, combine the result with off cents to whole dollars. line 2, column (g) column() Sa Totals for all long-term transactions reported on Form 1099-B for which basis was reported to the IRS and for which you have no adjustments (see instructions). However, if you choose to report all these transactions on Form 8949, leave this line blank and go to line Sb ...... Sb Totals for all transactions reported on Form(s) 8949 with Box D checked , ••••••••• , 9 Totals for all transactions reported on F_9rm(s) 8949 with Box E checked ,, ••••••••• 1O Totals for all transactions reported on Form(s) 8949 with Box F checked , • , • • , ••• 11 Gain from Form 4797, Part I; long -term gain from Forms 2439 and 6252; and long-term gain or (loss) from Forms 4684, 6781 , and 8824 ...... , ...... , • , • • • . • • • • • • • • • • ...... , ...... • .. . , .. . . ••• 1-1_1--t------

12 Net long -term gain or (loss) from partnerships, s corporations, estates, and trusts from Schedule(s) K-1...... 1_2--11--- --

13 Capital gain distributions. See the instrs ...... ••...... •...... •••••• i---13~i------14 Long -term capital loss carryover. Enter the amount, if any, from line 13 of your Capital Loss Carryover Worksheet in the instructions ...... • • • • • • • • • • . . . . • • • • • • ...... • • • • • • 14 1S Net long-term capital gain or (loss). Combine lines Sa through 14 in column (h). Then go to Part 111 on ------the back ...... , ...... 15 BAA For Paperwork Reduction Act Notice, see your tax return instructions. Schedule D (Form 1040) 2017 Fl)l/\0612L 08/16/17 _s.;.ch_e_d_ul_e_D_(;..F_or_m_lCase:04__,;0)-2_0_17_-K;;.;;E;;;;.N;.;.NY 20-1402...... A... N;.;.D___,KA=T~H:..:.L;;;;.E;;;;.E;;;;.N:..:...,_W;,,;,;A:..:.N;.;.G------·--P-a Document: 1-1 Filed: 03/10/2020 Pages: 137 (102 of__~_e_2 141) IPart Ill ISummary

16 Combine lines 7 and 15 and enter the result. ...•••..••••••••••..•.••.•..••.••• ,., ..•.. , .••• , .•••••.•••• 16 1. 468 . 404 . • If line 16 is a gain, enter the amount from line 16 on Form 1040, line 13, or Form 1040NR, line 14. Then go to line 17 below. • If line 16 is a loss, skip lines 17 through 20 below. Then go to line 21. Also be sure to complete line 22 . • If line 16 is zero, skip lines 17 through 21 below and enter -0- on Form 1040, line 13, or Form 1040NR, line 14. Then go to line 22.

17 Are lines 15 and 16 both gains? ~Yes.Go to line 18.

DNo. Skip lines 18 through 21, and go to line 22.

18 If you are required to complete the 28% Rate Gain Worksheet (see instructions), enter the amount, if any, from line 7 of that worksheet ...... • .' ...... , ••.•..••••.•••.•• ► 18 0.

19 If you are required to complete the Unrecaptured Section 1250 Gain Worksheet (see instructions), enter the amount, if any, from line 18 of that worksheet ...... , •.•• ,., ••••.•• , .••••• ► 19

20 Are lines 18 and 19 both zero or blank? ~ Yes. Comfilete the Qualified Dividends and Capital Gain Tax Worksheet in the im;tructions for Form 040, line 44 (or in the instructions for Form 1040NR, line 42). Don't complete lines 21 and 22 below. DNo. Complete the Schedule D Tax Worksheet in the instructions. Don't complete lines 21 and 22 below.

21 If line 16 is a loss, enter here and on Form 1040, line 13, or Form 1040NR, line 14, the smaller of:

• The loss on line 16 or }······· ····················· ······· ············ 21 • ($3,000), or if married filing separately, ($1,500) :

Note: When figuring which amount is smaller, treat both amounts as positive numbers.

22 Do you have qualified dividends on Form 1040, line 9b, or Form 1040NR, line l0b? DYes. Comfilele the Qualified Dividends and Capital Gai n Tax Worksheet in the instructions for Form 040, line 44 (or in the Instructions for Form 1040NR, line 42).

DNo. Complete the rest of Form 1040 or Form 1040NR.

Schedule D (Form 1040) 2017

FDIA0612L 08116117 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (103 of 141) Depar'ttnent of 111c T,oasury - I11\emaJ Revenue Service- (99) Form 1 040 U.S. Individual Income Tax Return 0MB No, 1545-0074 IRS Use Only - Do r>ot WYile o, sIapIe in lnis space. Filing slatas. h Ma, ned 1,1111 j<},01!1 Heild ot t10usotIeokl Yeti first name ocu::I 1n1t@J Last name KENNY WANG You st~o d!!duct,on: Someone can claim yo~ as a insl.): number (1) First narne Last name Chil

Under pen-allies ot l>O'jlt'Y, I declo,c lhill I t1avc c,amln~d th,& return and accompanyr~g schedules a o_d statements, and. to the best of my ~rl111i,11;, Oectarahcn ol p1ep.11e, (other than ta~payer} ,s baseo on all ,nfo,,,,atron of which preparer has any knovAedoe, Here Your signature O~t~ Your occupation II t~o IRS 8'/11 Yl)II an I0"'1tlly Ptotetlio~ Joint return? PIN, enler II See instructions. INVESTOR he1e (see Inst.) Spot,se·s sonalu,c. II a JO•nl mtmn, both mus1 s,gn Date S·poose's occupat ri.tetlrM Keep a copy ► PIN, enter ,, for your records. STATE WORKER here (See ,nst,) Prepar.:1'S nam,e Paid Jeff re 3rd Paity Desiunee Preparer Firrn's name Self,ert1ployed Use Only Furn's address ,..

BAA For Disclosure, Privacy Act, and Paperwork Reduction Act Notice, see separate instructions, FDIA0112L 01/08119 Fo1m 1040 (2018) Form 1040 (;2018) Page 2 Attach Form(s) 1 Wages, salaries, tips, etc. Attach Form(s) W-2 •• . •... •.••• W-2. Also atiaeh Form(s) W-2G 2a Tax-exempt interest...... -1 Za I b Taxable interest. . ... 2b and 1099-R 1f tax was wit~held. 3a Qualified di.vidends...... 3a ~ b Ordinary dividends .. . 3b 4a IRAs, pensions, and annuities .... . 4a . b Taxable amount. ... . 4b Sa Social security benefits...... Sa b Taxable amount. • Sb

6 Total income. Add lines l through 5. Add any amount from Schedule 11 line 22 8, 0 94 1 3 8 0 . . . . 6 7 Adjusted gross income. If you have no adjustments to income, enter the amount from Standard line 6; otherwise, subtract Schedule 1, line 36, from line 6 ...... • ,. , , •••••..•..•.•. 7 Deduction for - 8 Standard deduction or itemized deductions (from Schedule A) ...... 8 • Single or married filing 9 Qualified business income deduction (see instructions) ...... •••••••• , •• 9 separately, $12,000 10 Taxable income. Subtract lines 8 and 9 from line 7. If zero or less, enter -0-...... 10 a Tax (see inst.) check if any from: 1 Form(s) 8814 • Married filing 11 0 jointlx or 2 0 Form 4972 ______) Qualifying w1dow(er). b Add any amount from Schedule 2 and check here. . • .. • • • • . . • • . . • • .. . .. • .. . • • . • • □ 11 $24,000 12 a Child tax credit/credit for other dependents ______• Head ot b Add any amount from Schedule 3 and check here. . . . . • ...... • 12 household, □ $18,000 13 Subtract line 12 from line 11. If zero or less, enter .Q, ...... 13 14 Other taxes. Attach Schedule 4...... 14 • If you checked any 15 Total tax. Add lines 13 and 14...... , •.. 15 box under 16 Federal income tax withheld from Forms W-2 and 1099 ...... •...... , ...... 16 Standard 17 Refundable credits: a EiC (see inst.) deduction, see b Sch. 8812 ______c Form 8863 instructions. Add any amount from Schedule 5 L ,...... _.. ,...... 17 18 Ad d lines 16 and 17. These are your total a ments • ...•••... •.•.•.. 18 Refund 19 II line 18 is more than line 15, subtract line 15 from line 18. This is the amount you overpaid _...... • . 1-1_9__ _ 20a Amount of line 19 you want refunded to ou. If Form 8888 is attached, check here. . . ► D Z0a Direct deposit? ► b Routing number...... ► c Type: IX] Checking D Savings 1---.f---- See instructions. ► d Account number...... 21 Amount or lioe 19 you want applied to your 2019 estimated tax ...... ► 21 Amount You Owe 22 Amount you owe. Subtract line 18 from llne 15. i'or dctalls on how to pay, see instructions.... 1-22______23 Estimated tax penalty (see inslructfons) • • • . . . • . • . . . • 23 Go to wwvws.gov/Forml040for instructions and the latest information. Form 1040 (2018) SCHEDULE1 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 0MB No(104. 1545-0074 of 141) (Form 1040) Additional Income and Adjustments to Income

► Attach to Form 1040. 2018 Department of lhe Treasury Attoclvnent Internal Revenue Service ► Go to www.irs.gov/Form1040 for instructions and the latest information. Sequence No. 01

Narne(s) Sllown oo f orm 1040 er KENNY AND KATHLEEN WANG Additional 1-9b Reserved ...... •...... •...... •...... •...... ·1-9b Income 10 Taxable refunds, c,edits, or offsets of slate and local income taxes ...... 10 11 Alimony received ...... •...... •...... 11 12 Busmess income or (loss). Attach Scheoule C or C·EZ .... .••.••.•••••.••.••••••.••... ..•... . •...• 12 13 Capital !)am or (loss). Attach Schedule D If reQuire

FDIAOl 03L 01/21/19 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (105 of 141)

EXHIBIT F Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (106 of 141)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

DECLARATION OF KATHLEEN WANG IN SUPPORT OF THE WANG FAMILY’S MOTION FOR APPOINTMENT AS LEAD PLAINTIFF Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (107 of 141)

Pursuant to 28 U.S.C. § 1746, I, Kathleen Wang, declare as follows: 1. I work for the Nevada Department of Agriculture. Prior to this position where I work in the state pest control licensure department, I was in the real estate business as a successful real estate agent for close to 20 years. In that capacity, I managed all aspects of the purchase, acquisition and sale of properties for a builder until the market crash in Las Vegas in approximately 2006.

2. In all my career positions, I have been required to be highly organized and meet critical deadlines. In the real estate business, it was critical to pay attention to detail and be highly responsive to assure that deals were successfully concluded. To this end, I have brought these skills to my family's quest to be appointed Lead Plaintiff in this case. I have been the point person for my family in gathering all required documentation and handling the administrative functions necessary for the case. When our Counsel has requested document production, I have made it a priority to gather any documents and send them out timely. I will continue to serve in this role to assure that when this case moves into discovery, the Wangs will timely produce documents and answers timely on behalf of the Class.

3. I have monitored the docket in this case. My Counsel has established a link for our family to review all ECF filings in the federal docket for the Boeing case. I will continue to review filings in this case and timely consult with our Counsel like I have to date, as necessary. While my husband Kenny Wang generally makes our family's investment decisions and is intimately familiar with Boeing, I manage and handle all administrative and bookkeeping issues and liaise with related professionals to support our investments. I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct.

DATED: __\ \_._f_-z.q�\ �-l __ 'I _

1 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (108 of 141)

EXHIBIT G Case: 1:19-cv-02394 Document #: 132-3 Filed: 12/06/19 Page 2 of 39 PageID #:2731 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (109 of 141)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

DECLAAIN F KENN ANG, J. IN F HE ANG FAMIL MOTION FOR APPOINTMENT AS LEAD PLAINTIFF Case: 1:19-cv-02394 Document #: 132-3 Filed: 12/06/19 Page 3 of 39 PageID #:2731 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (110 of 141)

Pursuant to 28 U.S.C. § 1746, I, Kenny Wang, Jr. declare as follows: 1. I am a graduate of University of Nevada, Las Vegas, where I earned a Bachelors Degree in Marketing. 2. Between June 10, 2019 and August 2, 2019, when briefing for Lead Plaintiff occurred in this matter, I worked for Konami Gaming in the gaming industry in Nevada where I held a state license from the Nevada Gaming Control Board to work in the industry and deal with highly sensitive financial information. Additionally, during this period, my gaming license application was pending before the State of Maryland Lottery &

Gaming Control Agency. 3. The gaming industry is a highly regulated industry. To obtain a gaming license, I was subject to detailed background checks and was required to provide strict financial disclosures. My understanding is that the truthfulness of my applications was subject to penalty of perjury and potential criminal penalties. 4. As publicly disclosed in my familys filings, I only lost approximately $20,000.00, compared to my parents loss of approximately $4.7 million.

5. I have direct knowledge that investigators in this matter misrepresented my stake in this litigation to others during their investigation. More, I have spoken to other former co-workers who informed me that investigators were questioning my lifestyle, how lavishly I lived, and whether I bought expensive things, while leading people they

spoke with to believe that I invested “$40 million in Boeing stock, thereby conflating my interest in this case with my parents.

6. To this day, without the benefit of the full investigative file, I have no knowledge how

many people, whether in my industry or not, were told that I had “$40 million in Boeing stock or were led to believe, through suggestive questioning, that my economic

interest in this matter was far greater than it is. 7. Furthermore, on June 23, 2019, a black Kia Cadenza with black tinted windows sat outside my home watching friends enter and leave my house. My friends informed me

1 Case: 1:19-cv-02394 Document #: 132-3 Filed: 12/06/19 Page 4 of 39 PageID #:2731 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (111 of 141)

that the car appeared suspicious, followed them down the road and made them feel uncomfortable. On June 24, 2019, this same car was sitting down the road in front of my house at approximately 5:45 P.M. I noticed two silhouettes behind the dark window tint. I passed the car on two separate occasions to see if I could identify who it might be. The second time, I sped past and pulled into my garage. The car followed me very quickly right up to my driveway as I pulled in and, in fear, I immediately closed the garage door and attempted to evade the car following me. At this point, I believe the driver knew I was aware of him in my gated community.

8. Later, I went back to review my cameras and it appeared that on June 24, 2019, from 8:45 A.M. until approximately 6:00 P.M. this black car with tinted windows surveilled my home. It had NV license # 322-YMV. 9. As of this time, I no longer work in the gaming industry and work full-time in the pest control business I own. 10. Attached as Exhibits A and B are my TD Ameritrade trade statements and trade confirmations for the months of January 2019 through May 2019 for all of my Boeing

transactions during the Class Period, consistent with my sworn Certification in this matter. 11. My Boeing loss is as significant for me as my parents loss is for them. I intend to stay actively engaged in this matter and work with my parents to achieve the best result

possible for the Class. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

DATED: ______

By: Kenny Wang, Jr.

2 Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (112 of 141)

EXHIBIT H Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages:COLE 137,CONSALL(113, MIDPof 141)

United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 6.3.2 (Chicago) CIVIL DOCKET FOR CASE #: 1:19-cv-02394

Seeks v. The Boeing Company Date Filed: 04/09/2019 Assigned to: Honorable John J. Tharp, Jr Jury Demand: Both related Case: 1:19-cv-03548 Nature of Suit: 850 Securities/Commodities Cause: 28:1331 Fed. Question: Securities Violation Jurisdiction: Federal Question Plaintiff Richard Seeks represented by Elizabeth A. Fegan individually and on behalf of all others Fegan Scott, LLC similarly situated 150 S. Wacker Dr., 24th Floor Chicago, IL 60606 312-741-1019 Email: [email protected] TERMINATED: 06/05/2019 LEAD ATTORNEY

Reed R Kathrein Hagens Berman Sobol Shapiro LLP 715 Hearst Avenue Suite 202 Berkeley, CA 94710 (510) 725-3000 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steve W. Berman Hagens Berman Sobol Shapiro LLP 1301 2nd Ave. Suite 2000 Seattle, WA 98101 (206) 623-7292 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason A. Zweig Hagens Berman Sobol Shapiro Llp 455 N. Cityfront Plaza Dr. Suite 2410 Chicago, IL 60611 (708) 628-4958 Email: [email protected] ATTORNEY TO BE NOTICED Plaintiff Robert W. KegleyCase:, Sr. 20-1402 Document: 1-1 represented Filed: by 03/10/2020Andrew Lane ZivitzPages: 137 (114 of 141) Kessler Topaz Meltzer & Check, LLP 602 Lorine Lane Radnor, PA 19807 (610) 667-7706 Email: [email protected] LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua A. Materese Kessler Topaz Check Meltzer LLP 280 King of Prussia Road 280 King of Prussia Road Radnor, PA 19087 (610) 667-7706 Email: [email protected] LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John C. Browne Bernstein Litowitz Berger & Grossmann LLP 44th Floor 1251 Avenue of the Americas New York, NY 10020 (212) 554-1398 Email: [email protected] ATTORNEY TO BE NOTICED

Plaintiff Bret E. Taggart represented by Andrew Lane Zivitz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua A. Materese (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John C. Browne (See above for address) ATTORNEY TO BE NOTICED Plaintiff City of Warwick Retirement System represented by John C. Browne (See above for address) ATTORNEY TO BE NOTICED Plaintiff William C. HouserCase: 20-1402 Document: 1-1 represented Filed: by 03/10/2020Andrew Lane ZivitzPages: 137 (115 of 141) (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua A. Materese (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John C. Browne (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Boeing Company, The represented by Joshua Z Rabinovitz Kirkland & Ellis LLP 300 North LaSalle Street Chicago, IL 60654 (312) 862-2284 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED

Craig S. Primis Kirkland & Ellis 655 Fifteenth St., NW Washington, DC 20005 (202) 879-5921 Email: [email protected] ATTORNEY TO BE NOTICED

John F. Hartmann Kirkland & Ellis LLP 300 North LaSalle Street Chicago, IL 60654 (312)862-2000 Email: [email protected] ATTORNEY TO BE NOTICED

Defendant Dennis A. Muilenburg represented by Joshua Z Rabinovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Craig S. Primis (See above for address) ATTORNEY TO BE NOTICED Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (116 of 141) John F. Hartmann (See above for address) ATTORNEY TO BE NOTICED Defendant Gregory D. Smith represented by Joshua Z Rabinovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Craig S. Primis (See above for address) ATTORNEY TO BE NOTICED

John F. Hartmann (See above for address) ATTORNEY TO BE NOTICED Movant Mercer Busch represented by Ramzi Abadou Kahn Swick & Foti LLP 912 Cole Street # 251 San Diego, CA 94117 (504) 455-1400 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Szot Miller Law LLC 115 S. Wacker Dr. Suite 2910 Chicago, IL 60603 (312) 332-3400 Email: [email protected] ATTORNEY TO BE NOTICED

Marvin Alan Miller Miller Law LLC 115 South LaSalle Street Suite 2910 Chicago, IL 60603 (312) 332-3400 Email: [email protected] ATTORNEY TO BE NOTICED Movant Ali Alibrahim Movant Robert W. Kegley, Sr. represented by Andrew Lane Zivitz as Trustee of the Robert W. Kegley Sr. (See above for address) Revocable LivingCase: Trust 20-1402U/A DTD Document: 1-1 Filed: 03/10/2020LEAD ATTORNEY Pages: 137 (117 of 141) 04/16/2003 PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua A. Materese (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sharan Nirmul Kessler Topaz Meltzer & Check, LLP 280 King Of Prussia Rd Radnor, PA 19087 (610) 667-7706 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alejandro Caffarelli Caffarelli & Associates Ltd. 224 S Michigan Suite 300 Chicago, IL 60604 (312) 763-6880 Email: [email protected] ATTORNEY TO BE NOTICED

Madeline K. Engel Caffarelli & Associates Ltd. 224 South Michigan Ave Suite 300 Chicago, IL 60604 (312) 763-6880 Email: [email protected] ATTORNEY TO BE NOTICED

Ryan T. Degnan Kessler Topaz Meltzer & Check, LLP 280 King of Prussia Road Radnor, PA 19087 (610) 667-7706 Email: [email protected] PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Richard Eads

Movant Joseph Fields Movant John ArmstrongCase: 20-1402 Document: 1-1 represented Filed: by 03/10/2020Reed R Kathr ein Pages: 137 (118 of 141) (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Movant Richard Miller Movant Pierre Givenchy

Movant Kenny K. Wang represented by Lewis S Kahn Kahn Swick Foti LLC Ste 3200 1100 Poydras St New Orleans, LA 70163 (504) 648-1850 Email: [email protected] LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ramzi Abadou (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Szot Miller Law LLC 115 S. Wacker Dr. Suite 2910 Chicago, IL 60603 (312) 332 - 3400 Email: [email protected] ATTORNEY TO BE NOTICED

Marvin Alan Miller (See above for address) ATTORNEY TO BE NOTICED Movant Kathleen Wang represented by Lewis S Kahn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ramzi Abadou (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Case: 20-1402 Document: 1-1 Filed: 03/10/2020Andrew Szot Pages: 137 (119 of 141) (See above for address) ATTORNEY TO BE NOTICED

Marvin Alan Miller (See above for address) ATTORNEY TO BE NOTICED

Movant Kenny W. Wang represented by Lewis S Kahn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ramzi Abadou (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Szot (See above for address) ATTORNEY TO BE NOTICED

Marvin Alan Miller (See above for address) ATTORNEY TO BE NOTICED Movant Labourers' Pension Fund of Central and represented by Frank Anthony Richter Eastern Canada Robbins Geller Rudman & Dowd 200 S. Wacker 31st Floor Chicago, IL 60606 312-674-4674 Email: [email protected] TERMINATED: 12/03/2019 LEAD ATTORNEY

James E Barz Robbins Geller Rudman & Dowd LLP 200 S. Wacker Drive Suite 3100 Chicago, IL 60606 (312) 674-4674 Email: [email protected] TERMINATED: 12/03/2019 LEAD ATTORNEY

Danielle S. Myers Robbins Geller Rudman & Dowd LLP 655 W Broadway Suite 1900 San Diego, CA 92101 Case: 20-1402 Document: 1-1 Filed: 03/10/2020(619) 231-1058 Pages: 137 (120 of 141) Email: [email protected] TERMINATED: 12/03/2019 Movant Darrell Stock represented by J. Alexander Hood , II Pomerantz Llp 600 Third Avenue, Floor 20 New York, NY 10016 (212) 661-1100 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Kin-Yip Chun represented by J. Alexander Hood , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Movant The Public Employees Retirement System represented by Abe Alexander of Mississippi Bernstein Litowitz Berger & Grossmann LLP 44th Floor 1251 Avenue of the Americas New York, NY 10020 (212) 554-1346 Email: [email protected] LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam David Hollander Bernstein Litowitz Berger & Grossmann LLP 1251 Avenue of the Americas New York, NY 10020 (212) 554-1421 Email: [email protected] LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Avi Josefson Bernstein, Litowitz, Berger & Grossmann LLP 875 North Michigan Avenue Suite 3100 Chicago, Il 60611 312-373-3880 Email: [email protected] LEAD ATTORNEY Case: 20-1402 Document: 1-1 Filed: 03/10/2020ATTORNEY T O Pages: BE NOTICED 137 (121 of 141)

James M Fee Bernstein Litowitz Berger & Grossmann LLP 1251 Avenue of the Americas, 44th FLoor New York, NY 10020 (212) 554-1586 Email: [email protected] LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John C. Browne (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine M. Sinderson Bernstein Litowitz Berger & Grossmann LLP 1251 Avenue of the Americas 44th Floor New York, NY 10020 (212) 554-1392 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text 04/09/2019 1 COMPLAINT filed by Richard Seeks; Jury Demand. Filing fee $ 400, receipt number 0752-15694364. (Attachments: # 1 Civil Cover Sheet)(Fegan, Elizabeth) (Entered: 04/09/2019) 04/09/2019 CASE ASSIGNED to the Honorable John J. Tharp, Jr. Designated as Magistrate Judge the Honorable Jeffrey Cole. Case assignment: Random assignment. (pj, ) (Entered: 04/09/2019) 04/09/2019 2 ATTORNEY Appearance for Plaintiff Richard Seeks by Elizabeth A. Fegan (Fegan, Elizabeth) (Entered: 04/09/2019) 04/09/2019 3 ATTORNEY Appearance for Plaintiff Richard Seeks by Reed R Kathrein (Kathrein, Reed) (Entered: 04/09/2019) 04/09/2019 4 ATTORNEY Appearance for Plaintiff Richard Seeks by Steve W. Berman (Berman, Steve) (Entered: 04/09/2019) 04/09/2019 5 CIVIL Cover Sheet (Fegan, Elizabeth) (Entered: 04/09/2019) 04/09/2019 SUMMONS Issued as to Defendants Dennis A Muilenburg, Gregory D Smith, The Boeing Company (jn, ) (Entered: 04/09/2019) 04/10/2019 6 NOTICE TO THE PARTIES - The Court is participating in the Mandatory Initial Discovery Pilot (MIDP). The key features and deadlines are set forth in this Notice which Case: includes20-1402 a link Document: to the (MIDP) 1-1 Standing Filed: Order 03/10/2020 and a Checklist Pages:for use by137 the parties.(122 In of 141) cases subject to the pilot, all parties must respond to the mandatory initial discovery requests set forth in the Standing Order before initiating any further discovery in this case. Please note: The discovery obligations in the Standing Order supersede the disclosures required by Rule 26(a)(1). Any party seeking affirmative relief must serve a copy of the following documents (Notice of Mandatory Initial Discovery and the Standing Order) on each new party when the Complaint, Counterclaim, Crossclaim, or Third-Party Complaint is served. (pk, ) (Entered: 04/10/2019) 04/18/2019 7 BRIEF OF AMICUS CURIAE Anthony Keyter - In support of Richard Seeks, et al / future Investors, and in support of flight safety. by Richard Seeks (mc, ) (Entered: 04/19/2019) 04/22/2019 8 MINUTE entry before the Honorable John J. Tharp, Jr: The "Brief of Amicus Curiae" 7 is stricken and the motion for leave to file contained therein is denied. While the Court thanks Mr. Keyter for his interest in this matter, to the extent that Mr. Keyster has information and evidence relevant to the pending complaint, he should contact counsel for the parties in the case or appropriate governmental authorities. This Court has no authority to consider unsolicited evidentiary submissions from persons who are not parties in this proceeding. It will be for the parties in the first instance to offer any such evidence, at the appropriate juncture, should they deem the evidence to be admissible in this case, and to object to such evidence if they deem it to be inadmissible. Mailed notice (air, ) (Entered: 04/22/2019) 04/22/2019 9 SUMMONS Returned Executed by Richard Seeks as to Boeing Company, The on 4/12/2019, answer due 5/3/2019. (Kathrein, Reed) (Entered: 04/22/2019) 04/22/2019 10 SUMMONS Returned Executed by Richard Seeks as to Dennis A. Muilenburg on 4/12/2019, answer due 5/3/2019. (Kathrein, Reed) (Entered: 04/22/2019) 04/22/2019 11 SUMMONS Returned Executed by Richard Seeks as to Gregory D. Smith on 4/12/2019, answer due 5/3/2019. (Kathrein, Reed) (Entered: 04/22/2019) 04/23/2019 12 MINUTE entry before the Honorable John J. Tharp, Jr: This case is set for an initial status conference on 5/16/19 at 9:30 a.m. The parties are directed to review the procedures for initial status conferences, located at [https://www.ilnd.uscourts.gov/judge- info.aspx?79eF+7uiX7ewBj/ITKrjoA==], and to submit the required initial status report no later than 5/9/19. Mailed notice (air, ) (Entered: 04/23/2019) 04/26/2019 13 ATTORNEY Appearance for Defendants Boeing Company, The, Dennis A. Muilenburg, Gregory D. Smith by Joshua Z Rabinovitz (Rabinovitz, Joshua) (Entered: 04/26/2019) 04/26/2019 14 MOTION by Defendant Boeing Company, The for extension of time to file response to complaint (Rabinovitz, Joshua) (Entered: 04/26/2019) 04/26/2019 15 NOTICE of Motion by Joshua Z Rabinovitz for presentment of motion for extension of time to file 14 before Honorable John J. Tharp Jr. on 5/8/2019 at 09:00 AM. (Rabinovitz, Joshua) (Entered: 04/26/2019) 04/30/2019 16 MINUTE entry before the Honorable John J. Tharp, Jr:Defendant Boeing Company's unopposed motion for extension of time to respond to the complaint 14 is granted. No appearance on the motion is required. Response due 6/24/19. In light of defendant Boeing Company's indications that defendants Dennis Muilenburg and Gregory Smith waived service of process, their responses are also due 6/24/19. The initial status conference scheduled for 5/16/19 is stricken and reset for 6/27/19 at 9:00 a.m. Initial status report due 6/25/19. Mailed notice (air, ) (Entered: 04/30/2019) 05/01/2019 17 ATTORNEY Appearance for Defendants Boeing Company, The, Dennis A. Muilenburg, Case: Gregory20-1402 D. Smith Document: by John 1-1 F. Hartmann Filed: (Hartmann, 03/10/2020 John) (Entered: Pages: 05/01/2019) 137 (123 of 141) 05/01/2019 18 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752- 15781359. (Primis, Craig) (Entered: 05/01/2019) 05/02/2019 19 MINUTE entry before the Honorable John J. Tharp, Jr: Attorney Craig S. Primis's motion for leave to appear pro hac vice 18 is granted. No appearance on the motion is require. Counsel is directed to file his appearance on behalf of the defendants. Mailed notice (air, ) (Entered: 05/02/2019) 05/02/2019 20 ATTORNEY Appearance for Defendants Boeing Company, The, Dennis A. Muilenburg, Gregory D. Smith by Craig S. Primis (Primis, Craig) (Entered: 05/02/2019) 05/13/2019 21 WAIVER OF SERVICE returned executed by Richard Seeks. Dennis A. Muilenburg waiver sent on 4/26/2019, answer due 6/25/2019; Gregory D. Smith waiver sent on 4/26/2019, answer due 6/25/2019. (Kathrein, Reed) (Entered: 05/13/2019) 05/31/2019 22 MOTION by Attorney Elizabeth A. Fegan to withdraw as attorney for Richard Seeks. No party information provided (Fegan, Elizabeth) (Entered: 05/31/2019) 05/31/2019 23 NOTICE of Motion by Elizabeth A. Fegan for presentment of motion to withdraw as attorney 22 before Honorable John J. Tharp Jr. on 6/12/2019 at 09:00 AM. (Fegan, Elizabeth) (Entered: 05/31/2019) 06/04/2019 24 MOTION by Movant Mercer Busch to reassign case as Related Pursuant to Local Rule 40.4 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Miller, Marvin) (Entered: 06/04/2019) 06/04/2019 25 NOTICE of Motion by Marvin Alan Miller for presentment of motion to reassign case 24 before Honorable John J. Tharp Jr. on 6/11/2019 at 09:00 AM. (Miller, Marvin) (Entered: 06/04/2019) 06/05/2019 26 MINUTE entry before the Honorable John J. Tharp, Jr:Attorney Elizabeth A. Fegan's motion for leave to withdraw as counsel for plaintiff 22 is granted. No appearance on the motion is required. Attorney Elizabeth A. Fegan's appearance as counsel is terminated. Mailed notice (air, ) (Entered: 06/05/2019) 06/07/2019 27 MOTION by Movant Ali Alibrahim to consolidate cases MOTION OF ALI ALIBRAHIM FOR CONSOLIDATION OF THE ACTIONS, APPOINTMENT AS LEAD PLAINTIFF, AND APPROVAL OF SELECTION OF COUNSEL (Fata, Anthony) (Entered: 06/07/2019) 06/07/2019 28 MEMORANDUM by Ali Alibrahim in support of motion to consolidate cases 27 (Fata, Anthony) (Entered: 06/07/2019) 06/07/2019 29 DECLARATION of Anthony F. Fata regarding motion to consolidate cases 27 DECLARATION OF ANTHONY F. FATA IN SUPPORT OF MOTION OF ALI ALIBRAHIM FOR CONSOLIDATION OF THE ACTIONS, APPOINTMENT AS LEAD PLAINTIFF, AND APPROVAL OF SELECTION OF COUNSEL (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Fata, Anthony) (Entered: 06/07/2019) 06/07/2019 30 NOTICE of Motion by Anthony F. Fata for presentment of motion to consolidate cases 27 before Honorable John J. Tharp Jr. on 6/20/2019 at 09:00 AM. (Fata, Anthony) (Entered: 06/07/2019) 06/10/2019 31 MINUTE entry before the Honorable John J. Tharp, Jr: Upon the defendant's telephonic notice that the motion is unopposed, the motion of Mercer Busch to reassign cases number 19 CV 3548 to this Court as related to this case (19 CV 2394) 24 is granted. No hearing on the motion will be held on 6/11/19. Pursuant to Local Rule 40.4, the Clerk is Case: directed20-1402 to reassign Document: case number 1-1 19 CV Filed: 3548 03/10/2020 to this Court's docket. Pages: The 137 motion(124 to of 141) consolidate the cases 27 will be heard as noticed on June 20, 2019. Mailed notice (air, ) (Entered: 06/10/2019) 06/10/2019 32 MOTION by Movant Robert W. Kegley, Sr for Consolidation of Related Actions, Appointment as Lead Plaintiff, and Approval of Selection of Counsel (Nirmul, Sharan) (Entered: 06/10/2019) 06/10/2019 33 NOTICE of Motion by Sharan Nirmul for presentment of motion for miscellaneous relief 32 before Honorable John J. Tharp Jr. on 6/20/2019 at 09:00 AM. (Nirmul, Sharan) (Entered: 06/10/2019) 06/10/2019 34 MEMORANDUM by Robert W. Kegley, Sr in support of motion for miscellaneous relief 32 (Nirmul, Sharan) (Entered: 06/10/2019) 06/10/2019 35 DECLARATION of Sharan Nirmul regarding motion for miscellaneous relief 32 (Attachments: # 1 Exhibit A - Certification, # 2 Exhibit B - Loss Chart, # 3 Exhibit C- Kegley Declaration, # 4 Exhibit D - Notice of Pendency, # 5 Exhibit E - KTMC Firm Resume)(Nirmul, Sharan) (Entered: 06/10/2019) 06/10/2019 36 MOTION by Movants Richard Eads, Joseph Fields, John Armstrong, Richard Miller, Pierre Givenchy to consolidate cases , appoint lead plaintiff and approve selection of counsel (Attachments: # 1 Text of Proposed Order)(Kathrein, Reed) (Entered: 06/10/2019) 06/10/2019 37 MEMORANDUM of law in support of motion of the Boeing Investor Group to consolidate related cases, appoint lead Plaintiff, and approve selection of lead counsel by Movants John Armstrong, Richard Eads, Joseph Fields, Pierre Givenchy, Richard Miller to consolidate cases , appoint lead plaintiff and approve selection of counsel (Kathrein, Reed) (Docket text modified by Clerk's Office) Modified on 6/13/2019 (bg, ). (Entered: 06/10/2019) 06/10/2019 38 DECLARATION of Reed R. Kathrein regarding motion to consolidate cases 36 , motion to consolidate cases 37 , appoint lead plaintiff and approve selection of counsel (Attachments: # 1 Exhibit A (Certifications), # 2 Exhibit B (Loss Charts), # 3 Exhibit C (Notice of Pendency), # 4 Exhibit D (HBSS Resume), # 5 Exhibit E (Joint Declaration)) (Kathrein, Reed) (Entered: 06/10/2019) 06/10/2019 39 NOTICE of Motion by Reed R Kathrein for presentment of motion to consolidate cases 36 before Honorable John J. Tharp Jr. on 6/20/2019 at 09:00 AM. (Kathrein, Reed) (Entered: 06/10/2019) 06/10/2019 40 MEMORANDUM by John Armstrong, Richard Eads, Joseph Fields, Pierre Givenchy, Richard Miller in support of motion to consolidate cases 36 , appoint lead plaintiff and approve selection of counsel (Kathrein, Reed) (Entered: 06/10/2019) 06/10/2019 41 MOTION by Movants Kenny K. Wang, Kathleen Wang, Kenny W. Wang to consolidate cases for Appointment as Lead Plaintiffs and for Approval of Their Choice of Lead and Liaison Counsel (Abadou, Ramzi) (Entered: 06/10/2019) 06/10/2019 42 The Wang Family's NOTICE of Motion by Ramzi Abadou for presentment of (Abadou, Ramzi) (Entered: 06/10/2019) 06/10/2019 43 MEMORANDUM motion to consolidate cases 41 by Kathleen Wang, Kenny K. Wang, Kenny W. Wang and for Appointment as Lead Plaintiffs and Approval of Their Choice of Lead and Liaison Counsel (Abadou, Ramzi) (Entered: 06/10/2019) 06/10/2019 44 ATTORNEY Appearance for Movant Labourers' Pension Fund of Central and Eastern Canada by Danielle S. Myers (Myers, Danielle) (Entered: 06/10/2019) 06/10/2019 Case:45 DECLARA20-1402 TION Document: of Ramzi 1-1 Abadou regarding Filed: 03/10/2020 motion to consolidate Pages: cases 137 41 by(125 the of 141) Wang Family (Attachments: # 1 Exhibit Exhibit A. Certifications, # 2 Exhibit Exhibit B. Loss Chart, # 3 Exhibit Exhibit C. Notice of Action, # 4 Exhibit Exhibit D. KSF Firm Resume, # 5 Exhibit Exhibit E. Miller Firm Resume)(Abadou, Ramzi) (Entered: 06/10/2019) 06/10/2019 46 MOTION by Movant Labourers' Pension Fund of Central and Eastern Canada to consolidate cases , MOTION by Movant Labourers' Pension Fund of Central and Eastern Canada for Appointment as Lead Plaintiff, and Approval of Selection of Lead Counsel (Attachments: # 1 Exhibit A - 4/9/19 PSLRA Notice, # 2 Exhibit B - 5/28/19 Notice, # 3 Exhibit C - Certification, # 4 Exhibit D - Estimate of losses, # 5 Exhibit E - Robbins Geller Rudman & Dowd LLP firm resume)(Myers, Danielle) (Entered: 06/10/2019) 06/10/2019 47 NOTICE of Motion by Danielle S. Myers for presentment of motion to consolidate cases,,, motion for miscellaneous relief,, 46 before Honorable John J. Tharp Jr. on 6/20/2019 at 09:00 AM. (Myers, Danielle) (Entered: 06/10/2019) 06/10/2019 48 MEMORANDUM by Labourers' Pension Fund of Central and Eastern Canada in support of motion to consolidate cases,,, motion for miscellaneous relief,, 46 (Myers, Danielle) (Entered: 06/10/2019) 06/10/2019 49 MOTION by Movants Darrell Stock, Kin-Yip ChunMOTION OF THE BOEING INVESTOR GROUP FOR CONSOLIDATION, APPOINTMENT AS LEAD PLAINTIFF AND APPROVAL OF LEAD COUNSEL (Hood, J. Alexander) (Entered: 06/10/2019) 06/10/2019 50 MEMORANDUM by Kin-Yip Chun, Darrell Stock in support of motion for miscellaneous relief 49 (Hood, J. Alexander) (Entered: 06/10/2019) 06/10/2019 51 NOTICE of Motion by J. Alexander Hood, II for presentment of motion for miscellaneous relief 49 before Honorable John J. Tharp Jr. on 6/20/2019 at 09:00 AM. (Hood, J. Alexander) (Entered: 06/10/2019) 06/10/2019 52 MOTION by Movant The Public Employees Retirement System of Mississippi for Consolidation of Related Actions, Appointment as Lead Plaintiff, and Approval of Its Selection of Lead Counsel (Josefson, Avi) (Entered: 06/10/2019) 06/10/2019 53 DECLARATION of J. Alexander Hood II regarding motion for miscellaneous relief 49 (Attachments: # 1 Exhibit A - Loss Chart, # 2 Exhibit B - Press Release, # 3 Exhibit C - Certifications, # 4 Exhibit D - Joint Declaration, # 5 Exhibit E - Firm Resume)(Hood, J. Alexander) (Entered: 06/10/2019) 06/10/2019 54 NOTICE of Motion by Avi Josefson for presentment of motion for miscellaneous relief 52 before Honorable John J. Tharp Jr. on 6/14/2019 at 09:00 AM. (Josefson, Avi) (Entered: 06/10/2019) 06/10/2019 55 MEMORANDUM by The Public Employees Retirement System of Mississippi in support of motion for miscellaneous relief 52 (Josefson, Avi) (Entered: 06/10/2019) 06/10/2019 56 DECLARATION of Avi Josefson regarding motion for miscellaneous relief 52 (Attachments: # 1 Exhibit A - Certification, # 2 Exhibit B - Loss Chart, # 3 Exhibit C - Ray Declaration, # 4 Exhibit D - Notice of Pendency of Seeks, # 5 Exhibit E - Notice of Pendency of Busch, # 6 Exhibit F - Bernstein Litowitz Resume)(Josefson, Avi) (Entered: 06/10/2019) 06/11/2019 57 ATTORNEY Appearance for Movant Mercer Busch by Marvin Alan Miller (Miller, Marvin) (Entered: 06/11/2019) 06/11/2019 58 ATTORNEY Appearance for Movant Mercer Busch by Andrew Szot (Szot, Andrew) Case: (Entered:20-1402 06/1 Document:1/2019) 1-1 Filed: 03/10/2020 Pages: 137 (126 of 141) 06/11/2019 59 ATTORNEY Appearance for Movant Mercer Busch by Ramzi Abadou (Abadou, Ramzi) (Entered: 06/11/2019) 06/11/2019 60 ATTORNEY Appearance for Movant Robert W. Kegley, Sr by Alejandro Caffarelli (Caffarelli, Alejandro) (Entered: 06/11/2019) 06/11/2019 61 ATTORNEY Appearance for Movant Robert W. Kegley, Sr by Madeline K. Engel (Engel, Madeline) (Entered: 06/11/2019) 06/11/2019 62 MINUTE entry before the Honorable John J. Tharp, Jr:The motions for consolidation of related actions, appointment as lead plaintiff, and approval of lead counsel 27 32 36 37 41 46 49 52 are re-noticed for presentment on 6/21 at 9:30 a.m. Mailed notice (air, ) (Entered: 06/11/2019) 06/11/2019 63 ATTORNEY Appearance for Movants Kin-Yip Chun, Darrell Stock by J. Alexander Hood, II (Hood, J. Alexander) (Entered: 06/11/2019) 06/11/2019 64 ATTORNEY Appearance for Movants Kathleen Wang, Kenny K. Wang, Kenny W. Wang by Ramzi Abadou (Abadou, Ramzi) (Entered: 06/11/2019) 06/11/2019 65 ATTORNEY Appearance for Movant Robert W. Kegley, Sr by Sharan Nirmul (Nirmul, Sharan) (Entered: 06/11/2019) 06/13/2019 66 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752- 15925684. (Kahn, Lewis) (Entered: 06/13/2019) 06/14/2019 67 MOTION by Defendants Boeing Company, The, Dennis A. Muilenburg, Gregory D. Smith for extension of time to respond to the complaint (Rabinovitz, Joshua) (Entered: 06/14/2019) 06/14/2019 68 NOTICE of Motion by Joshua Z Rabinovitz for presentment of extension of time 67 before Honorable John J. Tharp Jr. on 6/21/2019 at 09:30 AM. (Rabinovitz, Joshua) (Entered: 06/14/2019) 06/14/2019 69 MINUTE entry before the Honorable John J. Tharp, Jr:Lewis S. Kahn's motion for leave to appear pro hac vice 66 is granted. No appearance on the motion is required. Lewis S. Kahn is directed to file his appearance on behalf of Kenny K. Wang, Kathleen Wang, and Kenny W. Wang. Mailed notice (air, ) (Entered: 06/14/2019) 06/14/2019 70 ATTORNEY Appearance for Movants Kathleen Wang, Kenny K. Wang, Kenny W. Wang by Lewis S Kahn (Kahn, Lewis) (Entered: 06/14/2019) 06/14/2019 71 ATTORNEY Appearance for Movants Kathleen Wang, Kenny K. Wang, Kenny W. Wang by Marvin Alan Miller (Miller, Marvin) (Entered: 06/14/2019) 06/14/2019 72 ATTORNEY Appearance for Movants Kathleen Wang, Kenny K. Wang, Kenny W. Wang by Andrew Szot (Szot, Andrew) (Entered: 06/14/2019) 06/14/2019 73 ATTORNEY Appearance for Movants Kathleen Wang, Kenny K. Wang, Kenny W. Wang by Lewis S Kahn Corrected Attorney Appearance (Kahn, Lewis) (Entered: 06/14/2019) 06/18/2019 74 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752- 15942510. (Degnan, Ryan) (Entered: 06/18/2019) 06/19/2019 75 Notice of Withdrawal of Motion of The Boeing Investor Group for Consolidation, Appointment as Lead Plaintiff and Approval of Lead Counsel by Kin-Yip Chun, Darrell Stock (Hood, J. Alexander) (Entered: 06/19/2019) 06/19/2019 76 WITHDRAWAL OF ALI ALIBRAHIMS MOTION FOR CONSOLIDATION OF THE Case: ACTIONS,20-1402 APPOINTMENT Document: 1-1 AS LEAD Filed: PLAINTIFF 03/10/2020, AND APPROVPages: 137AL OF (127 of 141) SELECTION OF COUNSEL by Ali Alibrahim (Tourek, Christopher) (Entered: 06/19/2019) 06/20/2019 77 MINUTE entry before the Honorable John J. Tharp, Jr:Ryan T. Degnan's motion for leave to appear pro hac vice 74 is granted. No appearance on the motion is required. Ryan T. Degnan is instructed to file his appearance on behalf of Robert W. Kegley Sr. Mailed notice (air, ) (Entered: 06/20/2019) 06/20/2019 78 ATTORNEY Appearance for Movant Robert W. Kegley, Sr by Ryan T. Degnan (Degnan, Ryan) (Entered: 06/20/2019) 06/20/2019 79 ATTORNEY Appearance for Movant Labourers' Pension Fund of Central and Eastern Canada by James E Barz (Barz, James) (Entered: 06/20/2019) 06/20/2019 80 ATTORNEY Appearance for Movant Labourers' Pension Fund of Central and Eastern Canada by Frank Anthony Richter (Richter, Frank) (Entered: 06/20/2019) 06/20/2019 81 ATTORNEY Appearance for Plaintiff Richard Seeks by Jason A. Zweig (Zweig, Jason) (Entered: 06/20/2019) 06/20/2019 82 MINUTE entry before the Honorable John J. Tharp, Jr: Upon receipt of the Boeing Investor Group's notice of withdrawal 75 and Ali Alibrahim's notice of withdrawal 76 their motions to consolidate cases, appoint lead plaintiff, and approve lead counsel, said motions 49 , 27 are denied as moot. Mailed notice (cn). (Entered: 06/20/2019) 06/21/2019 83 MINUTE entry before the Honorable John J. Tharp, Jr: Motion hearing held. The motions for consolidation of related actions, appointment as lead plaintiff, and approval of lead counsel 32 36 41 46 52 are granted in part. The Court orders consolidation of cases 19 cv 3548 and 19 cv 2394 under case number 19 cv 2394. The Court administratively terminates case number 19 cv 3548. All further proceedings will go forward under case number 19 cv 2394. The Court grants defendants' motion to extend defendants' deadline to respond to the complaint 67 . Defendants' responsive pleading is stayed pending further order of the Court. Responses to the pending motions for appointment as lead plaintiff, and approval of lead counsel 32 36 41 46 52 are due by 7/19/2019; replies due by 8/2/2019. Status hearing set for 6/27/19 and initial status report due 6/25/19 16 are stricken. Once the motions are fully briefed, the Court will rule via CM/ECF and set a future date.Mailed notice (cn). (Entered: 06/21/2019) 07/02/2019 84 MOTION by Movants Kathleen Wang, Kenny K. Wang, Kenny W. Wang to reset briefing on lead plaintiff appointment (Abadou, Ramzi) (Entered: 07/02/2019) 07/02/2019 85 DECLARATION of Ramzi Abadou regarding motion to reset 84 briefing for motion to appointment lead plaintiff (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(Abadou, Ramzi) (Entered: 07/02/2019) 07/02/2019 86 NOTICE of Motion by Ramzi Abadou for presentment of motion to reset 84 before Honorable John J. Tharp Jr. on 7/9/2019 at 09:00 AM. (Abadou, Ramzi) (Entered: 07/02/2019) 07/03/2019 87 ATTORNEY Appearance for Movant The Public Employees Retirement System of Mississippi by Avi Josefson (Josefson, Avi) (Entered: 07/03/2019) 07/03/2019 88 MINUTE entry before the Honorable John J. Tharp, Jr: The Wang Family's motion to modify briefing schedule 84 is denied. No hearing on the motion will be held. The motion alleges conduct about which the relevant parties should be permitted to respond. The need to address these issues confirms the need for adequate time for briefing, rather than an acceleration of a schedule entered by agreement of all counsel even after some of Case: the20-1402 events on Document:which the motion 1-1 relies purportedlyFiled: 03/10/2020 occurred. Briefing Pages: will 137 continue(128 as of 141) scheduled. Mailed notice (cn). (Entered: 07/03/2019) 07/11/2019 89 TRANSCRIPT OF PROCEEDINGS held on June 21, 2019 before the Honorable John J. Tharp, Jr. Order Number: 35276. Court Reporter Contact Information: Kelly M. Fitzgerald, [email protected], 312-818-6626.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

Redaction Request due 8/1/2019. Redacted Transcript Deadline set for 8/12/2019. Release of Transcript Restriction set for 10/9/2019. (Fitzgerald, Kelly) (Entered: 07/11/2019) 07/19/2019 90 MEMORANDUM by Kathleen Wang, Kenny K. Wang, Kenny W. Wang in Opposition to motion for miscellaneous relief 32 , motion for miscellaneous relief 52 , motion to consolidate cases,,, motion for miscellaneous relief,, 46 and motion for lead plaintiff 36 (Abadou, Ramzi) (Entered: 07/19/2019) 07/19/2019 91 DECLARATION of Ramzi Abadou regarding memorandum in opposition to motion, 90 (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G) (Abadou, Ramzi) (Entered: 07/19/2019) 07/19/2019 92 MEMORANDUM by John Armstrong, Richard Eads, Joseph Fields, Pierre Givenchy, Richard Miller in Opposition to motion for miscellaneous relief 32 , motion for miscellaneous relief 52 , motion to consolidate cases,,, motion for miscellaneous relief,, 46 motion for miscellaneous relief 41 (Kathrein, Reed) (Entered: 07/19/2019) 07/19/2019 93 MEMORANDUM by The Public Employees Retirement System of Mississippi in Opposition to motion for miscellaneous relief 32 , motion to consolidate cases,,, motion for miscellaneous relief,, 46 motion for miscellaneous relief 36 , motion for miscellaneous relief 41 (Josefson, Avi) (Entered: 07/19/2019) 07/19/2019 94 DECLARATION of Avi Josefson regarding memorandum in opposition to motion, 93 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF) (Josefson, Avi) (Entered: 07/19/2019) 07/19/2019 95 RESPONSE by Movant Labourers' Pension Fund of Central and Eastern Canada to notice of motion 42 , motion for miscellaneous relief 32 , notice of motion 39 , notice of motion 51 , motion for miscellaneous relief 52 (Barz, James) (Entered: 07/19/2019) 08/02/2019 96 REPLY by Robert W. Kegley, Sr to memorandum in opposition to motion, 93 , memorandum in opposition to motion, 90 , memorandum in opposition to motion, 92 , Response 95 in Further Support of Motion (Nirmul, Sharan) (Entered: 08/02/2019) 08/02/2019 97 REPLY by John Armstrong, Richard Eads, Joseph Fields, Pierre Givenchy, Richard Miller to memorandum in opposition to motion, 93 , memorandum in opposition to motion, 90 , Response 95 (Kathrein, Reed) (Entered: 08/02/2019) 08/02/2019 Case:98 REPL20-1402Y by Movants Document: Kathleen 1-1 W ang, Kenny Filed: K.03/10/2020 Wang, Kenny Pages:W. Wang 137 to notice(129 of of 141) motion 42 In Support of Their Motion for Appointment as Lead Plaintiff (Abadou, Ramzi) (Entered: 08/02/2019) 08/02/2019 99 DECLARATION of Ramzi Abadou regarding reply 98 In Support of the Wang Family's Reply in Support of Their Motion for Appointment as Lead Plaintiff (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G)(Abadou, Ramzi) (Entered: 08/02/2019) 08/02/2019 100 DECLARATION of The Wang Family regarding reply 98 In Support of Their Reply in Support of Their Motion for Appointment as Lead Plaintiff (Abadou, Ramzi) (Entered: 08/02/2019) 08/02/2019 101 REPLY by The Public Employees Retirement System of Mississippi to memorandum in opposition to motion, 90 , memorandum in opposition to motion, 92 , Response 95 (Josefson, Avi) (Entered: 08/02/2019) 08/02/2019 102 REPLY by Movant Labourers' Pension Fund of Central and Eastern Canada to motion to consolidate cases,,, motion for miscellaneous relief,, 46 in Further Support of Motion (Barz, James) (Entered: 08/02/2019) 08/02/2019 103 DECLARATION of Avi Josefson regarding reply to response to motion 101 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P)(Josefson, Avi) (Entered: 08/02/2019) 08/05/2019 104 MOTION by Movant The Public Employees Retirement System of Mississippi for leave to file Sur-Reply (Attachments: # 1 Proposed Sur-Reply Memorandum of Law, # 2 Proposed Sur-Reply Declaration of Avi Josefson, # 3 Ex. A to the Proposed Declaration of Avi Josefson, # 4 Ex. B to the Proposed Declaration of Avi Josefson)(Josefson, Avi) (Entered: 08/05/2019) 08/05/2019 105 NOTICE of Motion by Avi Josefson for presentment of motion for leave to file, 104 before Honorable John J. Tharp Jr. on 8/8/2019 at 09:00 AM. (Josefson, Avi) (Entered: 08/05/2019) 08/06/2019 106 MINUTE entry before the Honorable John J. Tharp, Jr:The motion by The Public Employees Retirement System of Mississippi for leave to file sur-reply 104 is granted. No hearing on the motion will be held. The surreply is to be filed on the docket as a separate entry. No further briefing on the motions for appointment of lead plaintiff will be permitted. Mailed notice (air, ) (Entered: 08/06/2019) 08/06/2019 107 SUR-REPLY by Movant The Public Employees Retirement System of Mississippi to reply 98 (Josefson, Avi) (Entered: 08/06/2019) 08/06/2019 108 DECLARATION of Avi Josefson regarding sur-reply 107 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Josefson, Avi) (Entered: 08/06/2019) 11/15/2019 109 MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 11/15/2019: For the reasons set forth in the accompanying Memorandum Opinion and Order, the motion for appointment as Lead Plaintiff of the Public Employees' Retirement System of Mississippi ("MPERS") 52 is granted. MPERS is appointed as Lead Plaintiff and its selection of Bernstein Litowitz Berger & Grossmann LLP as Lead Counsel is approved. The motions of other plaintiffs seeking appointment as Lead Plaintiff 32 36 41 46 are denied. Lead Plaintiff and the defendants are directed to confer and submit, within 15 days of the entry of this order, a proposed schedule for the filing an amended Case: consolidated20-1402 complaintDocument: and 1-1 responding Filed: thereto. 03/10/2020 Absent agreement Pages: on a137 proposed(130 of 141) schedule, the parties are directed to contact the Courtroom Deputy to schedule a status hearing. Enter Memorandum Opinion and Order. Mailed notice(air, ) (Entered: 11/15/2019) 12/02/2019 110 MOTION by Movant The Public Employees Retirement System of Mississippi for order regarding filing the Consolidated Class Action Complaint and related briefing. (Attachments: # 1 Text of Proposed Order)(Browne, John) (Entered: 12/02/2019) 12/02/2019 111 NOTICE of Motion by John C. Browne for presentment of motion for order 110 before Honorable John J. Tharp Jr. on 12/17/2019 at 09:15 AM. (Browne, John) (Entered: 12/02/2019) 12/02/2019 112 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752- 16490710. (Browne, John) (Entered: 12/02/2019) 12/02/2019 113 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752- 16490721. (Alexander, Abe) (Entered: 12/02/2019) 12/02/2019 114 MOTION by Movant Labourers' Pension Fund of Central and Eastern Canada to withdraw (Myers, Danielle) (Entered: 12/02/2019) 12/02/2019 115 NOTICE of Motion by Danielle S. Myers for presentment of motion to withdraw 114 before Honorable John J. Tharp Jr. on 12/10/2019 at 09:00 AM. (Myers, Danielle) (Entered: 12/02/2019) 12/03/2019 116 MINUTE entry before the Honorable John J. Tharp, Jr:The motion by movant The Public Employees Retirement System of Mississippi for entry of a scheduling order 110 is granted. No appearance on the motion is required. Enter Scheduling Order. Mailed notice (air, ) (Entered: 12/03/2019) 12/03/2019 117 MINUTE entry before the Honorable John J. Tharp, Jr:Attorney John Browne's motion for leave to appear pro hac vice 112 is granted. No appearance on the motion is required. Counsel is directed to file his appearance on behalf of movant. Mailed notice (air, ) (Entered: 12/03/2019) 12/03/2019 118 MINUTE entry before the Honorable John J. Tharp, Jr:Attorney Abraham Alexander's motion for leave to appear pro hac vice 113 is granted. No appearance on the motion is required. Counsel is directed to file his appearance on behalf of movant. Mailed notice (air, ) (Entered: 12/03/2019) 12/03/2019 119 MINUTE entry before the Honorable John J. Tharp, Jr:Attorneys James E. Barz, Danielle S. Myers, and Frank A. Richter's motion to withdraw as counsel for movant Labourers' Pension Fund of Central and Eastern Canada 114 is granted. No appearance on the motion is required. James E. Barz, Danielle S. Myers, and Frank A. Richter's appearances as counsel are terminated. Mailed notice (air, ) (Entered: 12/03/2019) 12/03/2019 120 STIPULATION and Scheduling Order For Filing The Consolidated Class Action Complaint and Related Briefing Signed by the Honorable John J. Tharp, Jr on 12/3/2019. Mailed notice(air, ) (Entered: 12/03/2019) 12/03/2019 121 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752- 16492720. (Hollander, Adam) (Entered: 12/03/2019) 12/03/2019 122 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752- 16492749. (Fee, James) (Entered: 12/03/2019) 12/04/2019 123 MINUTE entry before the Honorable John J. Tharp, Jr:Attorney Adam D. Hollander's motion for leave to appear pro hac vice 121 is granted. No appearance on the motion is Case: required.20-1402 Counsel Document: is directed 1-1 to file his Filed: appearance 03/10/2020 on behalf ofPages: movant. 137 Mailed(131 notice of 141) (air, ) (Entered: 12/04/2019) 12/04/2019 124 MINUTE entry before the Honorable John J. Tharp, Jr:Attorney James M. Fee's motion for leave to appear pro hac vice 122 is granted. No appearance on the motion is required. Counsel is directed to file his appearance on behalf of movant. Mailed notice (air, ) (Entered: 12/04/2019) 12/04/2019 125 ATTORNEY Appearance for Movant The Public Employees Retirement System of Mississippi by John C. Browne (Browne, John) (Entered: 12/04/2019) 12/04/2019 126 ATTORNEY Appearance for Movant The Public Employees Retirement System of Mississippi by Abe Alexander (Alexander, Abe) (Entered: 12/04/2019) 12/04/2019 127 ATTORNEY Appearance for Movant The Public Employees Retirement System of Mississippi by James Fee (Fee, James) (Entered: 12/04/2019) 12/04/2019 128 ATTORNEY Appearance for Movant The Public Employees Retirement System of Mississippi by Adam David Hollander (Hollander, Adam) (Entered: 12/04/2019) 12/06/2019 129 The Wang Family's NOTICE of Motion by Lewis S Kahn for presentment of before Honorable John J. Tharp Jr. on 12/19/2019 at 09:00 AM. (Kahn, Lewis) (Entered: 12/06/2019) 12/06/2019 130 MOTION by Movants Kathleen Wang, Kenny K. Wang, Kenny W. Wang for reconsideration regarding notice of motion 129 (Kahn, Lewis) (Entered: 12/06/2019) 12/06/2019 131 MEMORANDUM by Kathleen Wang, Kenny K. Wang, Kenny W. Wang in support of motion for reconsideration 130 (Kahn, Lewis) (Entered: 12/06/2019) 12/06/2019 132 DECLARATION of Lewis Kahn regarding motion for reconsideration 130 (Attachments: # 1 Exhibit Decl. of Kenny Wang, Sr., # 2 Exhibit Decl. of Kathleen Wang, # 3 Exhibit Decl. of Kenny Wang, Jr., # 4 Exhibit Miller Decl., # 5 Exhibit Saliga Decl., # 6 Exhibit Newman Decl., # 7 Exhibit Cash Decl.)(Kahn, Lewis) (Entered: 12/06/2019) 12/16/2019 133 MEMORANDUM by The Public Employees Retirement System of Mississippi in Opposition to motion for reconsideration 130 (Josefson, Avi) (Entered: 12/16/2019) 12/16/2019 134 DECLARATION of Avi Josefson regarding memorandum in opposition to motion 133 (Attachments: # 1 Exhibit A - TD Ameritrade Margin Handbook)(Josefson, Avi) (Entered: 12/16/2019) 12/18/2019 135 REPLY by Movants Kathleen Wang, Kenny K. Wang, Kenny W. Wang to memorandum in opposition to motion 133 (Kahn, Lewis) (Entered: 12/18/2019) 12/19/2019 136 MINUTE entry before the Honorable John J. Tharp, Jr:Motion hearing held. The Wang Family's motion for reconsideration 130 is taken under advisement. Mailed notice (air, ) (Entered: 12/19/2019) 01/23/2020 137 MOTION by Movant The Public Employees Retirement System of Mississippi for extension of time to file the Consolidated Class Action Complaint (Browne, John) (Entered: 01/23/2020) 01/23/2020 138 NOTICE of Motion by John C. Browne for presentment of motion for extension of time to file 137 before Honorable John J. Tharp Jr. on 1/28/2020 at 09:00 AM. (Browne, John) (Entered: 01/23/2020) 01/24/2020 139 MINUTE entry before the Honorable John J. Tharp, Jr:Plaintiff Public Employees Retirement System of Mississippi's unopposed motion for extension of time to file the Case: consolidated20-1402 classDocument: action complaint 1-1 137 Filed: is granted. 03/10/2020 No appearance Pages: on 137the motion(132 is of 141) required. Mailed notice (air, ) (Entered: 01/24/2020) 01/28/2020 140 MINUTE entryThe Motion of the Wang Family for Reconsideration of Memorandum Opinion and Order Dated November 15, 2019 130 is denied. Enter Memorandum Opinion and Order. Mailed notice (air, ) (Entered: 01/28/2020) 01/30/2020 141 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752- 16672211. (Sinderson, Katherine) (Entered: 01/30/2020) 01/31/2020 142 MINUTE entry before the Honorable John J. Tharp, Jr:Attorney Katherine M. Sinderson's motion for leave to appear pro hac vice 141 is granted. No appearance on the motion is required. Counsel is directed to file her appearance on behalf of Public Employees Retirement System of Mississippi. Mailed notice (air, ) (Entered: 01/31/2020) 02/12/2020 143 ATTORNEY Appearance for Movant The Public Employees Retirement System of Mississippi by Katherine M. Sinderson (Sinderson, Katherine) (Entered: 02/12/2020) 02/14/2020 144 Consoidated Class Action Complaint AMENDED complaint by The Public Employees Retirement System of Mississippi, Robert W. Kegley, Sr, Bret E. Taggart, City of Warwick Retirement System, William C. Houser against Boeing Company, The, Dennis A. Muilenburg, Gregory D. Smith (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Browne, John) (Entered: 02/14/2020) 02/19/2020 145 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752- 16742257. (Zivitz, Andrew) (Entered: 02/19/2020) 02/19/2020 146 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752- 16742377. (Materese, Joshua) (Entered: 02/19/2020) 02/20/2020 147 MINUTE entry before the Honorable John J. Tharp, Jr: Attorney Andrew L. Zivitz's motion for leave to appear pro hac vice 145 is granted. No appearance on the motion is required. Counsel is directed to file his appearance on behalf of William C. Houser, Bret E. Taggart, and Robert W. Kegley, Sr. Mailed notice (air, ) (Entered: 02/20/2020) 02/20/2020 148 MINUTE entry before the Honorable John J. Tharp, Jr:Attorney Joshua A. Materese's motion for leave to appear pro hac vice 146 is granted. No appearance on the motion is required. Counsel is directed to file his appearance on behalf of William C. Houser, Bret E. Taggart, and Robert W. Kegley, Sr. Mailed notice (air, ) (Entered: 02/20/2020) 02/24/2020 149 ATTORNEY Appearance for Plaintiffs William C. Houser, Robert W. Kegley, Sr, Bret E. Taggart, Movant Robert W. Kegley, Sr by Joshua A. Materese (Materese, Joshua) (Entered: 02/24/2020) 02/24/2020 150 ATTORNEY Appearance for Plaintiffs William C. Houser, Robert W. Kegley, Sr, Bret E. Taggart, Movant Robert W. Kegley, Sr by Andrew Lane Zivitz (Zivitz, Andrew) (Entered: 02/24/2020)

PACER Service Center Transaction Receipt 03/09/2020 09:05:24 PACER kimemiller:4788263:4788472 Client Code: BA Login: Search 1:19-cv- Description: Docket Report Criteria: 02394 Case: 20-1402Billable Document:18 1-1 Filed:Cost: 03/10/20201.80 Pages: 137 (133 of 141) Pages: Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (134 of 141)

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS

1. This brief complies with the type-volume limitation of Fed. R. App.

P. 21(d)(1) because it contains 7,795 words, as determined by the word-count function of Microsoft Word 2010, excluding the accompanying documents required by Fed. R. App. P. 21(a)(2)(C).

2. This brief complies with the typeface requirements of Fed. R. App.

P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word

2010 in 14-point Century Expanded BT font.

/s/ Daniel L. Geyser Daniel L. Geyser GEYSER P.C. One Energy Square 4925 Greenville Ave., Ste. 200 Dallas, TX 75206 Tel.: (214) 800-2660 [email protected]

March 10, 2020

Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (135 of 141)

CERTIFICATE OF SERVICE

I hereby certify that on March 10, 2020, an electronic copy of the fore-

going petition for a writ of mandamus and its accompanying appendix was filed with the Clerk of Court for the U.S. Court of Appeals for the Seventh Circuit, using the Court’s e-mail address for case-initiating documents

([email protected]). I further certify that I have caused the foregoing petition and appendix to be served by e-mail today and Federal Ex- press tomorrow on the counsel listed below:

Avi Josefson BERNSTEIN LITOWITZ BERGER & GROSSMAN LLP 875 N. Michigan Avenue, Ste. 3100 Chicago, IL 60611 Tel.: (312) 373-3880 [email protected]

John C. Browne Gerald H. Silk Michael D. Blatchley BERNSTEIN LITOWITZ BERGER & GROSSMAN LLP 1251 Avenue of the Americas New York, NY 10020 Tel.: (212) 554-1400 [email protected] [email protected] [email protected]

Real Parties in Interest The Public Employees’ Retirement System of Mississippi

Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (136 of 141)

Joshua Z. Rabinovitz John F. Hartmann, P.C. KIRKLAND & ELLIS LLP 300 N. LaSalle Chicago, IL 60654 Tel.: (312) 862-2000 [email protected] [email protected]

Craig S. Primis KIRKLAND & ELLIS LLP 1301 Pennsylvania Ave., N.W. Washington, DC 20004 Tel.: (202) 389-5000 [email protected]

Defendants Boeing Company, Dennis A. Muilenburg, Gregory D. Smith, and Kevin McAllister

[Continued on next page.]

Case: 20-1402 Document: 1-1 Filed: 03/10/2020 Pages: 137 (137 of 141)

I further certify that I have caused the petition and its accompanying appendix to be delivered tomorrow by Federal Express and hand delivery to the district court at the following address:

The Hon. John J. Tharp, Jr. U.S. District Court for the Northern District of Illinois Everett McKinley Dirksen United States Courthouse 219 S. Dearborn Street, Room 1418 Chicago, IL 60604 Tel.: (312) 435-5573

/s/ Daniel L. Geyser Daniel L. Geyser GEYSER P.C. One Energy Square 4925 Greenville Ave., Ste. 200 Dallas, TX 75206 Tel.: (214) 800-2660 [email protected]

March 10, 2020

Case: 20-1402 Document: 1-2 Filed: 03/10/2020 Pages: 2 (138 of 141)

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Office of the Clerk Room 2722 - 219 S. Dearborn Street Phone: (312) 435-5850 Chicago, Illinois 60604 www.ca7.uscourts.gov

NOTICE OF CASE OPENING March 10, 2020

IN RE: No. 20-1402 KENNY WANG, et al., Petitioners

Petition for Writ of Mandamus

District Court No. 1:19-cv-02394 Clerk/Agency Rep Thomas G. Bruton District Judge John J. Tharp

Case filed: 03/10/2020 Case type: op/npman Fee status: Due Date NOA rc'd-AC: 03/10/2020

The above-captioned appeal has been docketed in the United States Court of Appeals for the Seventh Circuit. Deadlines:

Appeal No. Filer Document Due Date

20-1402 Kathleen Wang Fee Due 03/24/2020

20-1402 Kenny Wang Fee Due 03/24/2020

20-1402 Kenny W. Wang Fee Due 03/24/2020 Case: 20-1402 Document: 1-2 Filed: 03/10/2020 Pages: 2 (139 of 141)

NOTE: This notice is issued to counsel of record, in furtherance of the revised Circuit Rule 3(d), to provide necessary information regarding this appeal. Please verify this notice for accuracy. Counsel are encouraged to provide a fax and/or e-mail address to the court. If any corrections are necessary, please indicate those corrections on this notice and return it to the Clerk's Office within ten (10) days.

THIS NOTICE SHALL NOT ACT AS A SUBSTITUTE FOR MOTIONS FOR NON-INVOLVEMENT / SUBSTITUTION OF COUNSEL. COUNSEL ARE STILL REQUIRED TO FILE THE APPROPRIATE MOTIONS.

Important Scheduling Notice!

Hearing notices are mailed shortly before the date of oral argument. Criminal appeals are scheduled shortly after the filing of the appellant's main brief; civil appeals are scheduled after the filing of the appellee's brief. If you foresee that you will be unavailable during a period in which your appeal might be scheduled, please write the clerk advising him of the time period and the reason for your unavailability. The court's calendar is located at http://www.ca7.uscourts.gov/cal/argcalendar.pdf. Once an appeal has been scheduled for oral argument, it is very difficult to have the date changed. See Cir.R. 34(e).

form name: c7_Docket_Notice(form ID: 108) Case: 20-1402 Document: 1-3 Filed: 03/10/2020 Pages: 1 (140 of 141)

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Office of the Clerk Room 2722 - 219 S. Dearborn Street Phone: (312) 435-5850 Chicago, Illinois 60604 www.ca7.uscourts.gov

NOTICE OF DOCKETING - Short Form March 10, 2020

The below captioned appeal has been docketed in the United States Court of Appeals for the Seventh Circuit:

Appellate Case No: 20-1402

Caption: IN RE: KENNY WANG, et al., Petitioners

District Court No: 1:19-cv-02394 Clerk/Agency Rep Thomas G. Bruton District Judge John J. Tharp

If you have any questions regarding this appeal, please call this office.

form name: c7_Docket_Notice_short_form(form ID: 188) Case: 20-1402 Document: 1-4 Filed: 03/10/2020 Pages: 1 (141 of 141)

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Office of the Clerk Room 2722 - 219 S. Dearborn Street Phone: (312) 435-5850 Chicago, Illinois 60604 www.ca7.uscourts.gov

ORIGINAL PROCEEDING CIRCUIT RULE 3(b) NOTICE March 10, 2020

IN RE: No. 20-1402 KENNY WANG, et al., Petitioners

Petition for Writ of Mandamus

District Court No: 1:19-cv-02394 Clerk/Agency Rep Thomas G. Bruton District Judge John J. Tharp Circuit Rule 3(b) empowers the clerk to dismiss a petition if the docket fee is not paid within fourteen (14) days of the docketing of the petition. This petition was docketed and the fee has not been paid as of March 10, 2020. Depending on your situation, you should:

1. Pay the required $500.00 docketing fee to the Clerk of the Court of Appeals.

File a motion to proceed on appeal in forma pauperis with the Court of Appeals. 2. An original and three (3) copies of that motion, with proof of service on your opponent, is required. This motion must be supported by a affidavit in the form of a sworn statement listing the assets and income of the petitioner(s). See Form 4 of the Appendix of Forms to the Federal Rules of Appellate Procedure (as amended 12/01/2013).

If one of the above stated actions is not taken, the petition will be dismissed.

NOTE: On March 2, 2015, the Seventh Circuit began accepting electronic fee payments for originating case filing fees(petitions for review and original petitions) via Pay.gov. Details are available at www.ca7.uscourts.gov.

form name: c7_OP_Fee_Notice_Sent(form ID: 189)