united states district court southern of

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

FINGER INTERESTS NUMBER ONE LTD.,

On Behalf of Itself and All Others SimilarlvSituated,

Plaintiff,

- against -

BANK OF AMERICA CORPORATION,

KENNETH D. LEV/IS, JOHN A. THAIN,WILLIAM BARNET, III, FRANK P. BRAMBLE,

SR., JOHN T. COLLINS, GARY L.

COUNTRYMAN, TOMMY R. FRANKS,

CHARLES K. GIFFORD, MOMCA C. LOZANO,

V/ALTER E. MASSEY, THOMAS J. MAY,PATRICIA E. MITCHELL, THOMAS M. RYAN,

O. TEMPLE SLOAN, JR., ROBERT L.

TILLMAN, JACKIE M. WARD, CAROL T.

CHRIST, ARMANDO M. CODINA, JUDITHMAYHEW, VIRGIS V/. COLBERT, ALBERTO

CRIBIORE, AULANA L. PETERS, CHARLES O.

ROSSOTTI, JOHN D. FINNEGAN, JOSEPH W.

PRUEHER. ANN N. REESE.

No. 09 CV 00606

(AND RELATED CASES)

SECURITIES CLASS ACTIONS

Defendants.

PLAINTIFF FINGER INTERESTS NUMBER ONE LTD.'S CONSOLIDATEDRESPONSE TO MOTIONS FOR APPOINTMENT OF LEAD PLAINTIFF

943256v11011170

Table of Contents

Table of Contents ................. i

Table of Authorities............. ................. ii

Preliminary Statement.. ........1

Argument ...........3

L The Pension Fund Movants, As Former Merrill Shareholders Seeking Relief

Under Section 10(b), Will Not Adequately Represent The Section l4(a)

Shareholder Class....... ................3

III. The Sectionl4(a) Shareholder Class Seeks Relief That Conflicts Directly WithThe Interests of The Pension Fund Movants and The Section 10!) Class .......9

ru. Having Benefitted From The Merger, The Pension Fund Movants Cannot

Adequately Represent the Section 14(a) Shareholder Class......... ...................11

Conclusion .......12

Certificate of Service .........I4

943256v1/011170

Table of Authorities

Cases

Abrahamson v. Fleschner,568F.2d862 (2dCir. 1977) ...........5

Birnbaumv. Newport Steel Corp.,l93F.2d46l (2d,Cir.1952) .................5

Blue Chip Stømps v. Manor Drug Stores,42l U.S. 723 (1975) ..................5

Chillv. Greentree Fin. Corp.,181 F.R.D.398 (D. Minn. 1998)......... ........9

Dura Pharms., Inc., v. Broudo,544 U.S. 336 (2005) ................6

In re Cendant Corp. Litig.,182 F.R.D. 144 (D.N.J. 1998)...... ..............9, 11

In re McKesson HBOC, Inc. Securities Litig.,97 F. Supp.2d993 (N.D. Cal. 1999) ...................12

In re Nanophase Tech. Corp. Litig.,1999 WL 965468 (N.D. Ill) (Sept. 30, 1999) ........................9

In re Oxford Health Plans, Inc. Sec. Litig.,182 F.R.D. 42 (S.D.N.Y. 1998) ................9

In re Real Estate Assocs. Ltd. Partnership Litig.,223F. Supp. 2dll42 (C.D. CaL2002)............9

In re Salomon Analyst Metromedia Litig., 544,F.3d,474 (2d Cir. 2008). .....................6

Schlickv. Penn-Dixie Cement Corp.,507 F.2d374 (zdCir.1974). ......6, 10

Virginia Banl<shares, Inc., v. Sandberg, 501 U.S. 1083 (1991) ............... .....................6

Statutes

15 U.S.C. $ 772-r(a)(3XBXiiiXII)............... ..2,7 , t0

15 u.S.C. $ 78j(b) ................1

15 U.S.C. $ 78n(a) ...............1

il943256v1/011170

Preliminary Statement

Plaintiff and Lead Plaintiff Movant Finger Interests Number One Ltd. ("Finger Interests")

respectfully submits this consolidated opposition to the motions seeking appointment as lead

plaintiff filed by three groups (collectively the "Pension Fund Movants").

1. The California State Teachers' Retirement System ("CaISTRS") and the CalifomiaPublic Employees' Retirement System ("CaIPERS").

2. The "Public Pensions Funds," a group comprised of the State Teachers' Retirement

System of Ohio ("OhioTRS"), the Ohio Public Employees' Retirement System

("OhioPERS"), the Teachers' Retirement System of Texas ("Texas TRS"), a Dutchpension fund apparently being represented by its investment manager, PGGMVermogensbeheer B.V. ("PGGM"), and Fj¿irde Ap-Fonden ("4P4"), a Swedish

pension fund.

3. The "lnstitutional Investor Group," which is the West Virginia lnvestment

Management Board and the Central States, Southeast and Southwest Area Pension

Fund.

Each of the three groups included in the Pension Fund Movants seeks to be appointed as

lead plaintiff for a single class of Bank of America stockholders alleging various claims for

violations of the federal securities laws. These securities claims include (1) violations of Section

10(b) of the1934 Securities ExchangeAct, 15 U.S.C. $ 78j(b), andRule 10b-5 thereunder, for

false or misleading statements in connection with the purchase or sale of a security; and (2)

violations of Section 14(a) of the Exchange Act, 15 U.S.C. $ 78n(a), and Rule l4a-9 thereunder,

for false or misleading proxy disclosures.

ln seeking to serve as lead plaintiff for a single class, the Pension Fund Movants each

include in their respective Bank of America "financial interest" and damage calculations the

Bank of America shares they acquired by exchanging their prior Merrill Lynch stock when the

merger closed on January I, 2009. In fact, a huge portion of the Section 10(b) loss claimed by

the Pension Fund Movants stems from the millions of Merrill Lvnch shares the Pension Fund

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Movants owned and exchanged for Bank of America shares as part of the merger. Apparently,

the Pension Fund Movants will seek to claim that, as a result of the merger, Merrill Lynch

shareholders were harmed and can recover for such harm under Section 10(b).

By contrast, Finger lnterests has moved to be appointed lead plaintiff for a class

consisting only of Bank of America shareholders pursuing direct claims for violations of Section

l4(a) and Rule 14a-9 thereunder (and Section20(a) control-person violations) based on Bank of

America's false and misleading disclosures regarding Merrill Lynch's financial condition in the

merger proxy materials. The Section 14(a) shareholder class would be limited to persons or

entities who owned Bank of America cofirmon or Series B preferred stock as of October 10,

2008, the record date for voting on the merger, and were eligible to vote on the merger. Finger

Interests is only a member of the Section 14(a) putative class because it did not acquire Bank of

America stock during the Section 10(b) class periods. The sole theory behind the Section 14(a)

claim is that the merger was a disaster for pre-existing Bank of America shareholders and

conveyed a windfall on Merrill Lynch shareholders, like the Pension Fund Movants.

This Court should not appoint a single lead plaintiff for all securities claims because there

are conflicting interests between the various claimants that require diverse representation. The

Pension Fund Movants and the Section 10(b) shareholder class they seek to represent "will not

fairly and adequately protect the interests" of the Section 14(a) shareholder class. See 15 U.S.C.

$ 772-l(a)(3XBXii"(ID. That is because each of the Pension Fund Movants is a large, former

Merrill Lynch shareholder pursuing claims under Section lO(b) with respect to the Bank of

America shares they received by exchanging their Merrill Lynch shares when the merger closed.

As Finger Interests demonstrates below, there is an inherent and intractable conflict

between the Section 10(b) theory the former Merrill shareholders will have to pursue to state a

943256v1/0lll70

viable claim and the proxy violations being pursued by the Section 14(a) shareholder class. In

addition, because the Merrill shareholders actually benefitted from the merger, the Pension Fund

Movants' interests are antagonistic to the interests of the Section 14(a) shareholder class with

respect to seeking equitable relief, such as adjusting the exchange ratio used in the merger. In

short, the Section 14(a) shareholder class needs separate representation.

Argument

I. The Pension Fund Movants, As Former Merrill Shareholders Seeking Relief UnderSection 10(b)" V/ill Not Adequately Represent The Section 14(a) Shareholder Class

As the Court is aware, a Section 10(b) claim exists only for shares that are acquired by

the plaintiff pursuant to a misleading statement or omission. Here, the Pension Fund Movants

"acquired" large blocks of Bank of America stock by exchanging their Merrill Lynch shares

when the merger closed on January I,2009. All Bank of America stock subsequently declined

in value when Bank of America began to reveal the true consequences of the merger on January

16,2009, and the Pension Fund Movants seek to recover the difference under Section 10(b). As

outlined below, the only way the Pension Fund Movants can recover this amount is by pleading

and proving that the merger harmed Merrill Lynch shareholders, who were misled into agreeing

to a merger that was not favorable to Merrill Lynch.

Such a theory - while beneficial to the old Merrill shareholders - is directly adverse to

the interests of the pre-existing Bank of America shareholders' Section 14(a) claim. The entire

point of the Section 14(a) claim is that Bank of America shareholders who held shares and were

entitled to vote as of October 10, 2009 were misled into approving the acquisition of Merrill

Lynch because Defendants failed to tell pre-existing Bank of America shareholders that Merrill

Lynch was a financial time-bomb. While the merger was terrible for pre-existing Bank of

943256v1/011170

America shareholders, who have suffered historic dilution in value, it greatly benefitted Merrill

Lynch shareholders, such as the Pension Fund Movants.

The declarations submitted by the Pension Fund Movants demonstrate that their claimed

Section 10(b) losses are driven in significant part by their prior Merrill shareholdings.

o CaISTRS received 5,002,770 shares of Bank of America stock in exchange for its Merrillstock when the merger closed. ,See Exhibit 2 (Levine Declaration). It has a damage

claim under Section lO(b) of approximately $46,150,000 based on these shares, which

represent CaISTRS' single largest transaction (on a per share basis) in Bank of America

stock during any class periods.

o CaIPERS is similarly situated: It received 3,433,820 shares of Bank of America stock inexchange for its Merrill Lynch stock when the merger closed, and has a Section 10(b)

claim of approximately $31,694,158 based on these shares. See Exhibit 3 (Levine

Declaration). The merger exchange also was CaIPERS' largest per share transaction inBank of America stock during any class periods.

Likewise for the "Public Pension Fund" Group: OhioTRS received 2,040,022 shares ofBank of America stock in exchange for its Merrill Lynch stock when the merger closed,

see Exhibit A (Fox Declaration); OhioPERS received 2,517,169 shares (Exhibit B); TRS

of Texas received 1,696,896 shares (Exhibit C); PGGM of Sweden received 800,699

shares (Exhibit D); and AP4 of Sweden received 579,560 shares (Exhibit E).

For both Ohio funds and for the Texas fund in the "Public Pension Fund" group, the

Merrill-exchanged were their single largest per transaction. For the two Swedish funds,

the Menill-exchanged shares were their second largest transaction in Bank of America

stock. SeeExhtbíts A-E (Fox Declaration).

o "Institutional Investors" Group: Central States Pension Fund received 385,486 Bank ofAmerica shares in the merger; West Virginia Investment Management Board received

142,075 shares. For both funds, the Merrill-exchanged shares were their largest per share

transaction in Bank of America stock during arry of the class periods. See Exhlbit 2(Rosenfield Declaration).

As explained below, to make out a cognizable claim for relief under Section 10(b) with

respect to the Bank of America shares acquired by exchanging Merrill Lynch shares upon the

merger closing, the Pension Fund Movants will be forced to pursue a theory that will directly

conflict with the interests of the Section 14(a) shareholder class, which consists only of pre-

existing Bank of America shareholders who held shares six weeks before the merger closed.

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The starting point for understanding why this is so is to understand that the decision to

acquire Bank of America stock in exchange for Merrill Lynch stock occurred on December 5,

2008, when the Merrill Lynch shareholders approved the merger. As this Court is well-aware, a

party cannot sue under Section 10(b) because he was misled to hold stock. Blue Chip Stamps v.

Manor Drug Stores,42l U.S. 723,754-55 (1975); see also Abrahamson v. Fleschner, 568 F.2d

862, 868 (2d Cir. 1977) ("[T]he requirement of fraud in connection with the purchase or sale of a

security is not satisfied by an allegation that plaintifß were induced fraudulently not to sell their

securities."); Birnbaum v. Newport Steel Corp., 193 F.2d 461, 464 (2d Cir. 1952) (holding that

Rule 10b-5 "extended protection only to the defrauded purchaser or seller"). A party can sue

under Section 10(b) only for the decision to acquire (or sell) stock. Here, Merrill Lynch

shareholders made the decision to acquire Bank of America stock when they voted to approve

the merger. As a result, Merrill Lynch shareholders have a Section 10(b) claim only to the extent

they claim that they were not told facts about the merger that would have caused Merrill Lynch

shareholders to refuse to approve the merger and hence would have caused them not to acquire

Bank of America shares (i.e., transaction causation).

Thus, Merrill Lynch shareholders must allege and ultimately prove that Bank of America

made actionable misstatements before the merger closed with respect to why the merger was

attractive to Merrill shareholders - which would have to be misstatements about Bank of

America's financial condition. The former Menill shareholders also must allege and prove that

such misstatements caused them to approve the merger and acquire the Bank of America shares

(i.e., transaction causation),l and they must allege and prove a causal connection between the

alleged Bank of America misstatements concerning its own financial condition and their losses

I Because the "price" at which the Merrill Lynch shareholders acquired Bank of America shares

was set by the exchange ratio in the merger agreement, see Finger lrterests' Complaint atfl36, Merrillshareholders could not change the price; the could only not sell by rejecting the merger.

943256v1/011170

(i.e., loss causation). Dura Pharms., Inc., v. Broudo,544 U.S. 336,341(2005); see also In re

salomon Analyst Metromedia Litig.,544, F.3d 474, 478 n.l (2d Cir. 2008) (elements of section

10(b) claim). This is the only possible non-holder theory under Section 10(b) for the former

Merrill shareholders; Finger Interests must presume the Pension Fund Movants recognize this.

But pleading and proving this theory creates a direct conflict with the theory being

advanced by the Section 14(a) shareholder class. The Section 14(a) shareholder class seeks to

establish that the significant decline in Bank of America's stock price following the revelation of

Merrill Lynch's fourth quarter losses was, in fact, caused by the disclosure of Merrill's poor

financial condition. See Complaint at TI 57, 72-73, 76-77; see also Schlick v. Penn-Dixie

Cement Corp.,507 F.2d 374,381 (2d Cir. 1974) (holding that allegations that false proxy

resulted in "an unequal, unfair, and disadvantageous merger ratio" "quite plainly'' satisfies loss

causation element of Section 14(a) claim), overruled on other grounds by Virginia Bankshares,

Inc., v. Sandberg,50l U.S. 1083 (1991). This follows naturally from the Section 14(a) liability

theory, which is that the proxy disclosures to Bank of America shareholders were false and

misleading in light of material facts that Bank of America unlawfully concealed regarding

Merrill's true financial condition - including the existence of billions of dollars in Merrill's

fourth quarter losses that occurred before the shareholder vote on December 5, 2008, and the

payment of billions of dollars in bonuses to Merrill Lynch executives. See Complaint at 'ffll 1,

47-58. By contrast, the Section 10(b) theory that the former Merrill shareholders must pursue

requires they allege and prove that Merrill shareholders (not Bank of America) were fraudulently

induced to execute the merger by Bank of America's false statements about its own financial

condition.

6943256v1/0ll170

The conflict between these two theories is readily apparent. The Section la(a)

shareholders are interested in pleading and proving that Bank of America's huge stock drop was

caused exclusively by Bank of America's belated disclosure of Merrill Lynch's true financial

condition. If, however, the former Merrill shareholders plead and prove that Bank of America

misrepresented material facts about its own poor financial condition - facts that purportedly

induced Merrill's shareholders to consummate the merger - then the Section 14(a) shareholder

class is negatively impacted because the losses for which it seeks to recover would have been

caused, at least in part, by those misstatements about Bank of America's own financial condition.

Stated differently, if the former Merrill shareholders plead and prove their Section 10(b) theory,

then much of the decline in Bank of America's stock price would have injured Bank of

America's longstanding shareholders regardless of the Merrill acquisition and Bank of

America's proxy violations in connection with that acquisition. As a result, the Section 14(a)

shareholders are harmed if the former Merrill shareholders establish their non-holder Section

10(b) theory, because the damages caused by the proxy violations and the fraudulently procured

merger transaction would be reduced.

Moreover, the lead plaintiff and class representative for the Section 10(b) shareholder

class will have a fiduciary obligation to maximize the recovery for the Section 10(b) class,

including the former Merrill shareholders. In doing so, however, the Section 10(b) class will be

adverse to the interests of the Section 14(a) shareholder class. Given the merger, Bank of

America ultimately will be liable for both the Section lO(b) and Section 14(a) claims. Hence, if

the Section 10(b) class prevails, Bank of America will have to make a significant payment to

former Merrill Lynch shareholders. As a result, pre-existing Bank of America shareholders, who

943256v11011170

exclusively make up the Section 14 class, would be forced to give even more of the company's

value away to Merrill Lynch shareholders.

Accordingly, the Pension Fund Movants "will not fairly and adequately protect the

interests" of the Section 14(a) shareholder class. ,See 15 U.S.C. $772-I(a)(3XBXii"(II). Unlike

the members of the Section 14(a) shareholder class, the Pension Fund Movants actually

benefitted as Merrill shareholders from the merger; they were able to exchange their Merrill

stock for an unduly large ownership stake in Bank of America. Further, unlike the Section 14(a)

shareholder class, the Pension Fund Movants do not have an interest in placing complete

responsibility for Bank of America's stock price decline on the false and misleading proxy

disclosures concerning Merrill's financial condition. Rather, the former Merrill shareholders

must advance a Section 10(b) theory that relies in part on pre-closing allegedly false statements

regarding Bank of America's own financial condition. In other words, the former Merrill

shareholders will want to prove that part of the loss caused by the merger was a result of poor

performance at Bank of America that was not disclosed. Because members of the Section 14(a)

class already owned Bank of America stock, any effort to prove that part of the loss from the

merger was caused by Bank of America's financial performance before the merger will

automatically reduce the Section 14(a) damages.

In these circumstances, the Court should protect the interests of long-term Bank of

America shareholders by appointing a separate lead plaintiff for a class of Section 14(a)

claimants. The Section l4(a) shareholder class is entitled to be represented by a lead plaintiff

whose undivided loyalties are with that class. Here, that means the Section 14(a) class should be

represented by a lead plaintiff that did not actually benefit from the merger that was

accomplished through the challenged proxy violations, and that is not seeking to recover

943256v1/011170

damages as part of the Section 10(b) class on a theory that is in conflict with the theory being

pursuedbythe Section l4(a) class.

By appointing a separate lead plaintiff for the Section 14(a) shareholder class who will

have separate counsel, the Court will further the goals of the PSLRA and Rule 23 by ensuring

that the interests of all class members will be fairly and adequately represented. See In re Oxford

Health Plans, Inc. Sec. Litig., 182 F.R.D.42,49 (S.D.N.Y. 1998) (appointing multiple lead

plaintifß and explaining that "diverse representation . . . ensures that the interests of all class

members will be adequately represented in the prosecution of the action"); In re Cendant Corp.

Litig.,182 F.R.D. T44, 149-50 (D.N.J. 1998) (appointing separate lead plaintiff and counsel as to

a particular class of security where movant with the largest financial interest had a conflict as to

pursuing relief against a particular defendant); In re Nanophase Tech. Corp. Litig., 1999 WL

965468 at *5-6 (N.D. Ill) (Sept. 30, 1999) (appointing separate lead plaintiff and counsel for

Section 11 claimants who held preferred stock that was converted into common stock in the IPO,

as distinct from Section 10(b) claimants who purchased common stock in the IPO); Chill v.

Greentree Fin. Corp.,181 F.R.D. 398, 402 (D. Minn. 1998) (appointing separate lead plaintiffs

and counsel for class ofoption purchasers and securities purchasers).

il. The Section 14(a) Shareholder Class Seeks Relief That Conflicts Directly V/ith The

Interests of The Pension Fund Movants and The Section l0(b) Class

The Pension Fund Movants also will not adequately represent the Section ru@)

shareholder class because of sharply conflicting interests with respect to equitable relief.

Specifically, the Section 14(a) shareholder class has an interest in seeking to restructure the

stock-for-stock exchange ratio used by Bank of America and Merrill Lynch in the merger

transaction. See In re Real Estate Assocs. Ltd. Partnership Litig.,223 F. Supp. 2dll42,II52

(C.D. Cal. 2002) ("Another measure of damages (at least in the controlled merger context) under

9943256v1/011170

Rule 14a-9 is what would have been a fair exchange upon full disclosure."). The Pension Fund

Movants have no interest in seeking such relief - indeed, as former Merrill shareholders, they

have a substantial interest in opposing such relief.

'When the merger closed, each of the Pension Fund Movants received 0.8595 shares of

Bank of America stock for each share of Menill stock owned - an approximately 70%o premium

to the closing price of Merrill Lynch's stock on the last trading day before the merger agreement

was executed. See Finger lnterests' Complaint at !J 36. Of course, the theory of the Section

14(a) shareholder class is that, if Bank of America had disclosed the truth about Merrill's

financial condition, the merger would not have been approved or, at a minimum, the exchange

ratio would have been different (i.e., fewer Bank of America shares exchanged for each Merrill

share). Id. at 1[1] 56, 72. Consequently, the Section 14(a) shareholders seek to prove that Merrill

shareholders received an unduly high value for their Merrill stock and, as a result, more Bank of

America stock than they should have.

Despite the importance of this fact to the Section 14(a) shareholder class, the Pension

Fund Movants do not have an interest in developing such proof. To the contrary, they benefitted

from what the Bank of America shareholders regard as an "unequal, unfair and disadvantageous

exchange ratio." Schlick,507 F.2d at 381. Hence, unlike the Section l4(a) shareholder class, the

Pension Fund Movants would be iniured if the exchange ratio was adjusted to reduce the amount

of Bank of America stock exchanged for each share of Merrill stock.

The upshot is that the Section 14(a) shareholders' interest in seeking to restructure the

merger exchange ratio puts them in direct conflict with the Pension Fund Movants and the

Section 10(b) class. As a consequence of their former Merrill Lynch shareholdings, and the

benefit they received through the merger, there is substantial reason to believe the Pension Fund

943256v1/Qll170 10

Movants 'kill not fairly and adequately protect the interests" of the Section 14(a) class in

seeking this relief. 15 U.S.C. $ 772-1(a)(3XBXii"(ID. Because of these conflicting interests

regarding restructuring the exchange ratio, the Section 14(a) shareholder class requires separate

representation. See, e.g., In re Cendant Corp. Litig., 182 F.R.D. at 149-50.

m. Having Benefitted From The Merger, The Pension Fund Movants Cannot Adequately

Represent the Section 14(a) Shareholder Class

Finally, the conflict between the Section 14(a) class, on the one hand, and the Pension

Fund Movants and the Section 10(b) class, on the other, is not limited to the conflict over

seeking equitable relief to adjust the exchange ratio. Indeed, the very fact that the Pension Fund

Movants held large positions in Merrill Lynch and benefitted from the merger prevents them

from fairly and adequately protecting the interests of the Section 14(a) shareholder class.

But for the merger transaction, the Lead Plaintiff Movants almost certainly would have

been in worse shape, a direct conflict with the Section 14(a) shareholder class. The merger

agreement between Bank of America and Merrill Lynch was reached hurriedly over the same

weekend in September 2008 that Lehman Brothers failed. ,See Complaint at !f 35. It has been

widely reported that but for the merger agreement with Bank of America, Merrill's stock price

would have collapsed and it would have suffered the same fate as Lehman Brothers. fd. n 35.

Through Bank of America's proxy violations and omissions regarding Merrill's true financial

condition and substantial operating losses before the shareholder vote, however, Bank of

America shareholders approved the merger and Merrill shareholders received a substantial

premium on their shares. Id. atl36.

A jury will not look kindly upon the Pension Fund Movants under these circumstances

when they seek damages on their Section 10(b) claim for the Bank of America shares they

received through the merger. They are essentially "crying foul" from one side of a transaction

943256v1/0lll70 11

when they benefitted on the other. "This hardly seems like a sympathetic case for damages." fn

re McKesson HBOC, Inc. Securities Litig.,97 F. Supp.2d993,999 (N.D. Cal. 1999).

Because they benefitted as Merrill shareholders from the merger, the Pension Fund

Movants will not adequately represent the Section l4(a) shareholder class, which suffered

significant losses as a result of the fraudulently procured merger. This conflict can be avoided

by appointing a separate lead plaintiff for the Section 14(a) shareholder class, one that has only a

Section 14(a) claim

Finger lnterests is an ideal candidate to serve as lead plaintifffor the Section 14(a) class.

It is a very active, long-term holder of Bank of America coûrmon shares, having acquired its

shares in 1996 through a merger of a family-owned bank with NationsBank, a predecessor to

Bank of America. It satisfies the PSLRA requirements for appointment of lead plaintiff and

satisfies the requirements of FRCP 23. And Finger Interests has already undertaken substantial

public efforts, at its own expense, on behalf of all Bank of America shareholders to seek

corporate governance changes at Bank of America, a clear indication that it will fairly and

adequately represent the interests of the pre-existing Bank of America shareholders in the

Section l4(a) class. See Finger lnterests Lead Plaintiff Motion at 8-9; Exhibits 3-4 (Susman

Declaration to Finger lnterests' Lead Plaintiff Motion).

Conclusion

Finger Interests respectfully requests that the Court (1) deny the Pension Fund Movants'

separate requests to be appointed lead plaintiff for a single class of Bank of America

shareholders alleging federal securities claims; and (2) appoint Finger Interests as the lead

plaintiff for the Section 14(a) shareholder class.

Dated: Apnl6,2009

943256v1/011170 12

Respectfully submitted,

SUSMAN GODFREY L.L.P.

/s/ Stenhen D. Susman

Stephen D. Susman (SS8591)

654 Madison Avenue, 5tn Floor

New York, New York 10065-8440

Telephone: (212) 336-83 30

Fax: (212) 336-8330

Email : ssusman@susmangodfrey. com

Hary P. Susman !ro hac vice)

Alexander L. Kaplan (pro hac vice)

SUSMAN GODFREY L.L.P.

1000 Louisiana Street, Suite 5100

Houston, Texas 77 002-5096

Telephone: (7 13) 651-9366

Fax: (713) 654-6666

Email: hsusman@,susmangodfrey.com

Email : akaplan@susman godfrey. com

Attomeys for Plaintiff Finger Interests

Number One Ltd.

t3943256v1/0lll70

Certificate of Service

I certify that on April 6, 2009, this document properly was served on the following

counsel of record via electronic filing in accordance with the SDNY Procedures for Electronic

Filing or by first class mail on April 7,2009.

Plaintiffs' Counsel

Slq¡lar Wexler

V/OLF POPPER LLP SQUITIERI & FEARON, LLP

Lester L. Levy Lee Squitieri

Email: llevy@wol!opper.com Email: [email protected]

James A. Harrod 32Bast 57tn Street, 12'n Floor

Email: jharrod@wol!opper.com New York, New York 10022

Natalie M. Mackiel Tel (212) 42I-6492

Email: [email protected] Fax: (212) 421-6553

845 Third Avenue

New York, New York 10022 Louisiana Municipal Police Employees

Tel: (212) 759-4600 Retirement S:¿stem

Fax: (212) 486-2093 KAHN GAUTHIER SWICK LLCLewis S. KahnPalumbo Albert M. Myers

ZWERLING, SCHACHTER & ZWERLING, Kevin Oufrrac

LLP 650 Poydras Street, suite 2150

Stephanie E. Kirwan New Orleans, Louisiana70t30

Email: [email protected] Tel: (504) 455-1400

41 Madison Avenue Fax: (504) 455-1498

New York, New York 10010

Tel: (212) 223-3900 Michael Swick

Fax: (212) 371-5969 l2"ast4l't Street, 12th Floor


CRIDEN & LOVE, P.A. Tel: (212) 696-3730

Michael E. Criden Fax: (504) 455-1498

Email : mcriden("h anzmanciden. com

73ol S.w. 57th Cou;, Suite 515

South Miami, Florida 33143

Tel: (305) 3s7-9000

Fax: (305) 357-9050

943256v1/0lll70 T4

Fort Worth Emplo:¡ees' Retirement Fund

BERNSTIEN, LITOWITZ, BERGER &GROSSMAN LLPGerald H. Silk

Email: [email protected]

Salvatore J. Graziano

Email : sgraziano@blb glaw. cm

Noam Mandel

Email : noam@blbglaw. com

1285 Avenue of the Americas


Tel: (212) ss4-1400

Fax: (212) 554-1444

ABRAHAM, FRUCHTER & TWERSKY,LLPJeffrey S. Abraham

Emai 1 : j abr ahan@aft law. com

One Penn Plaza, Suite 2805


TeI: (212) 279-5050

Fax: (212) 279-3655

Dailev

HARV/OOD FEFFER LLPRobert L Harwood

Email : rharwood@hfesq. com

Peter'W. Overs, Jr.

Email : povers@hfesq. com

488 Madison Avenue, 8'n Floor

New York, New Yorkl0022Tel: (212) 935-7400

Fax: (212) 753-3630

MAJOR KAHN, LLCMajor Kahn

20 Bellevue Street

Weehawken, NJ 07086

Tel: (646) s46-5664

Fax: (646) 546-5755

Zitner

COUGHLIN STOIA GELLER RUDMAN &ROBBINS LLPSamuel H. Rudman

Email : [email protected]

David A. Rosenfeld


58 South Service Road, Suite 200

Melville, New York t1747

Tel: (631) 367-7t00Fax: (367-1173

COUGHLIN STOIA GELLER RUDMAN &ROBBINS LLPDarren J. Robbins

Email : darrenr@csglr. com

David C. WaltonEmail: [email protected]

Catherine J. Kowalewski

Email : katek@cs grr. com

655 V/est Broadway, Suite 1900

San Diego, California 92101

Tel: (619) 231-10s8

Fax: (619) 231-7423

HOLZER HOLZER & FISTEL,LLCMichael I. Fistel, Jr.


200 Ashford Center North, Suite 300

Atlanta, Georgia 30338

Tel: (770) 392-0090

Fax: (770) 392-0029

Wilson

SQUITIERI & FEARON,LLPLee Squitieri

Email : Lee(ò,sfclasslaw. com

32Eastsz'h strát. 12th Floor


Tel: (212) 421-6492

Fax: (212) 421-6553

943256v1/0ll170 15

Adams

SCHENGOLD SPORN LAITMANLOMETTI, P.C.

Christopher Lometti

Frank R. SchinipaEmail: Frank @spornlaw.com

19 Fulton Street, suite 406


Tel: (212) 964-0046

Fax: (212)267-8137

HAGENS BERMAN STOBOL SHAPIROLLPSteve W. Berman


Andrew M. VolkNick Styant-Browne1301 Fifth Avenue, Suite 2900

Seattle, V/ashington 98 1 01

Tel: (206) 268-9320

Fax: (206) 623-0594

llaldman

ROY JACOBS & ASSOCIATES

Roy L. Jacobs

Email: Jacobs@j acobsclasslaw.com

60 East 42no Street


Tel: (2t2) 867-1156

Fax: (212) 504-8343

PASKOV/TT Z &, ASSOCIATES

Laurence D. Paskowitz

60 East 42nd Street


Tel: (212) 685-0969

Fax: (212) 753-3630

Stabbert

Michael A. Jacobs

31 Lake Street, P.O. Box 159

Stamford, New York 12167

Tel: (607) 652-751t

Wright

GAINEY & MCKENNAThomas J. McKenna

Email : tjmlaw20O I @yahoo. com

Emai I : tj mckenna@gaineyandmckenna. c om

295 Madison Avenue. 4tn Floor

NewYork,NewYork 10017

Tel: (212) 983-1300

Fax (2t2) 983-0383

Stricker

MURRAY, FRANK & SAILER LLP

Brian P. Murray275 Madison Avenue, Suite 801

New York, New York 10016-1101

Tel: (212) 681-1818

Fax: (212) 682-1892

JOHNSON BOTTINI, LLPFrancis A. Bottini, Jr.

Frank J. Johnson

Brett M. Weaver

655 V/est Broadway, Suite 1400

San Diego, California 92101

Tel: (619) 230-0063

Fax: (619) 233-5535

Hollvwood

LAW OFFICES OF CURTIS V. TRINKO.LLPCurtis V. TrinkoWai K. Chan

16 V/est 46th Street, 7th Floor


Tel: (212) 490-9550

Fax: (212) 986-0158

SAXENA WHITE P.A.

Maya Saxena

Joseph E. White IIIChristopher S. Jones

Lester R. Hooker.2424 N orth Federal Highway, Suite 257

Boca Raton, Florida 33431

Tel: (561) 394-3399

943256v1/011170 T6

Lehman

SCOTT + SCOTT, LLPJoseph P. Guglielmo

Email : i [email protected]

29v/est5ffiNew York, New York 10019

Tel: (212) 223-6444

Fax: (212) 223-6344

SCOTT + SCOTT, LLPDavid R. Scott

Email : drscott@scott-scott. com

108 Norwich Avenue

P.O. Box 192

Colchester, CT 06415

Tel: (860) 537-5537

Fax: (860) 537-4432

DOYLE LOV/THER LLPWilliam J. Doyle II

Email : bill@doylelowther. com

James R. HailEmail : j [email protected]

9466BlackMountain Road, Suite 210

San Diego, CA92I26Tel: (619) s73-1700

Fax: (619) 573-1701

lilelil<son

LAW OFFICE OF KENNETH A. ELANKenneth A. Elan

217 Broadway, Suite 606


Tel: (212) 6t9-0261Fax: (212) 385-2707

LAW OFFICES OF BERNARD M. GROSS

P.C.

Deborah R. Gross

Robert P. Frutkin100 Penn Square East, Suite 450

Philadelphia, PA 19107

Tel: (215) 561-3600

Fax: (215) 561-3000

Fax: (561) 394-3082

Siesel

THE BRUALDI LAW FIRM. P.C.

Richard B. Brualdi

Sue Lee

29 Broadway,24th Floor


TeI: (212) 9s2-0602Fax (212) 952-0608

Smith

V/EISS & LURIEJoseph H. Weiss

Moshe Balsam

Jack I. Zwick551 Fifth Avenue


Tel: (212) 682-3025

Young

GARWIN GERSTEIN & FISHER LLPScott W. Fisher

Kevin Landau

1501 Broadway, Suite 1416


Tel (2r2) 398-005s

Fax: (212) 764-6620

Gilliam

STULL, STULL & BRODYJules Brody


Edwin J. MillsEmail: [email protected]

Michael J. KleinEmail : [email protected]

6 East 45th Street


Tel: (212) 687-7230

Fax: (212) 490-2022

943256v1/011170 I7

Anderson

LAW OFFICE OF CHRISTOPHER J. GRAYChristopher J. Gray

E-mail : [email protected]

460 Park Avenue, 21" FloorNew York, New York 10022

Tel: (21,2) 838-3221

NICHOLAS KOLUNCICHLaw Offices of Nicholas Koluncich III, LLC6501 Americas Parkway NEOne Park Square, Suite 620

Albuquerque, New Mexico 87110

West Palm Beach Firertghters

COUGHLIN STOIA GELLER RUDMAN &ROBBINS LLPSamuel H. Rudman

David A. Rosenfeld

58 South Service Road, Suite 200

Melville, New York 11747

Tel: (631) 367-7100

Fax: (631) 367-1173

COUGHLIN STOIA GELLER RUDMAN &ROBBINS LLPDaren J. Robbins

David C. Walton

Catherine J. Kowalewski

655 West Broadway, Suite 1900

San Diego, California 92101-3301

Tel: (619) 231-1058

Fax: (619) 231-7423

Fauerback

Michael A. Jacobs

31 Lake Street, P.O. Box 159

Stamford, New York 12167

Tel: (607) 652-75r1

State Teachers Retirement System of Ohio

Ohio Public Emplqtees Retirement Svstem

Teqcher Retirement S))stem of Texas

Stichting Pensioenfonds Zorg en WalzVn

Iij-arde AP-Fonden

KAPLAN FOX & KILSHEIMER LLP

Robert N. Kaplan

Frederic S. Fox

Donald R. Hall850 Third Avenue, 14th Floor

New York, NY 10022

Tel: (212) 687-1980

Fax: (212) 687-77t4

943256v1/0ll170 18

WACHTELL, LIPTON, ROSEN &,KATZPeter C. Hein


Eric M. Roth


Andrew Houston


Jonathan E. GoldinEmail: [email protected]

51 V/est 52no Street


Tel: (212) 403-1000

Fax: (212) 403-2000

DAVIS POLK & WARDV/ELLLawrence Portnoy


Charles S. Dugggan


Douglas K. Yatter


450 Lexington Avenue


Tel: (212) 450-4000

Fax: (212) 450-3800

DEBEVOISE & PLIMPTON LLP

Gary V/. Kubek

Email : gwkubek@debevoise. com

919 Third Avenue

New York, New York t0022

TeI: (2T2) 909-6000

Fax: (212) 909-6836

SULLTVAN & CROMV/ELL LLP

Richard C. Pepperman II125 Broad Street


Tel: (212) 558-3493

Fax: (212) 558-3588

Defendantso Counsel

DECHERT LLPAndrew Levander


David Hoffrrer



New York NY 10036

TeI: (2t2) 698-3500

Fax: (212) 698-3599

CRAVATH, SWAINE & MOORE LLP

Robert D. Joffe

Email : q offe@cr avath. com

Richard W. ClaryEmail : r clary @u avath. com

Julie A. NorthEmail : jnorth@cr avath. com

825 Eighth Avenue

New York, NY 10019

Tel (212) 474-1000

PAUL, V/EISS, RIFKIND, WHARTON &GARzuSON LLPCharles E. Davidow


2001 K Street, N.V/.Washington, D. C. 20006-1047

Tel (202) 223-7300

Fax: (202)223-7420

Brad S. Karp

Email : bkarp @p at lweiss. com



Tel: (212) 373-3000

Fax: (212)757-3900

943256v1/011170 T9

SHEARMAN & STERLING LLP

Stuart Baskin

Email : sbaskin@shearman. com

Adam S. HakkiEmail : [email protected]

Herbert S. Washer

Email : herbert.washer@shearman. com

599 Lexington Avenue


Tel: (212) 848-4000

Fax (212) 848-7179

/s/ Stephen D. Susman

Stephen D. Susman

943256v1/011170 20

united states district court southern of

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