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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. MARK CUBAN, Defendant.

: : : : : : : : : : : :

Civil Action No.: 3-08-CV-2050-D (SAF)

PLAINTIFF SECURITIES AND EXCHANGE COMMISSION’S MEMORANDUM IN SUPPORT OF ITS MOTION TO COMPEL RESPONSES TO INTERROGATORIES AND PRODUCTION OF DOCUMENTS

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TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES……………………………………………………..…………..…ii PLAINTIFF SECURITIES AND EXCHANGE COMMISSION’S MEMORANDUM IN SUPPORT OF ITS MOTION TO COMPEL RESPONSES TO INTERROGATORIES AND PRODUCTION OF OCUMENTS…………………………………………………..…....1 BACKGROUND……………………………………………………………………...……….…1 LEGAL STANDARD…………………………………………………………………..………. 3 ARGUMENT……………………………………………………………………………..….…...3 I. Cuban Should be Required to Produce or Log All Responsive Documents and Identify All Responsive Communications, Not Just Those He Deems “Relevant.” ………………………………………………………………………3 Cuban Should be Required to Provide a Privilege Log ………………………8 Cuban Should be Required to Identify All Responsive Oral Communications ………………………………………………………………...9 If Cuban is Permitted to Interject new Factual Allegations, He Should be Requited to Produce All Documents and Information Relevant to those Allegations ……………………………………………………………………...10

II. III.

IV.

CONCLUSION…………………………………………………………………………………12

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TABLE OF AUTHORITIES Page FEDERAL CASES Beattie v. Madison County Sch. District, 254 F.3d 595 (5th Cir. 2001)………………………………………………………………2 Export Worldwide, Ltd. v. Knight, 241 F.R.D. 259 (W.D. Tex. 2006)………..……………………………………………….2 CC-Aventura, Inc. v. Weitz Co., LLC, No. 06-21598-CIV, 2008 WL 691687 (S.D. Fla. Mar. 12, 2008)………………………..9 Kelly v. Syris Shell Petroleum Dev. B.V., 213 F.3d 841, 855 (5th Cir. 2000)………………..………………………………………..2 In re Netbank, Inc. Sec. Litigation, 259 F.R.D. 656 (N.D. Ga. 2009)…………………………………….……………………9 Scott v. Leavenworth Unified Sch. District Number 453, 190 F.R.D. 583 (D. Kan. 1999)………………………………………..…………………..7 SEC v. AmeriFirst Funding, Inc. No. 3:07-CV-1188-D, 2008 WL 926587 (N.D. Tex. Apr. 7, 2008)………………………3 Sheldon v. Vermonty, 204 F.R.D. 679 (D. Kan.) 2001)……………………………………………..……………7

FEDERAL STATUTES AND REGULATORY MATERIALS Federal Rule of Civil Procedure 26(b)(5) …………...……………………………………............9 Federal Rule of Civil Procedure 37(a)(3)(B)(iii),(iv)…...…………………………………...……3

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PLAINTIFF SECURITIES AND EXCHANGE COMMISSION’S MEMORANDUM IN SUPPORT OF ITS MOTION TO COMPEL RESPONSES TO INTERROGATORIES AND PRODUCTION OF DOCUMENTS The Securities and Exchange Commission (“SEC” or “Commission”) herein moves to compel Defendant Mark Cuban (“Cuban”) to, as specified below, (i) identify all communications responsive to the SEC’s Interrogatories, (ii) produce all documents responsive to the SEC’s Document Requests or confirm that all such documents have already been produced to the Commission, and (iii) if assertedly protected from disclosure by privilege, identify such communications and describe such documents on a privilege log. BACKGROUND The Court’s December 4, 2009 Order providing for discovery expressly contemplated that the SEC might seek discovery relevant to the claims in Cuban’s motion. Order at 6 n.3. The Commission believes that Cuban has undertaken substantial factual investigation to determine the veracity of his allegations and, having now received the Commission’s responses to his interrogatories and documents requests, knows that the claims in his motion for fees (“Motion”) are meritless. The Commission’s discovery requests narrowly focus on what Cuban did to investigate his allegations and what information he possesses concerning the allegations in his Motion that: (1) Jeffrey Norris participated in the investigation that led to the filing of this action or otherwise played a role in the decision to authorize the filing of this action; (2) the Commission staff closed an earlier investigation related to Mamma.com (HO-09900) to obtain favorable testimony to support its claims in this action; and (3) the Commission’s filing of this action was based on Cuban’s public notoriety. The Commission has identified no documents that support these allegations in its review of the approximately 150 pages produced by Cuban in

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response to the Commission’s discovery requests or in the documents the Commission collected and reviewed in order to respond to Cuban’s discovery requests. After the parties’ exchange of discovery requests, and in some cases after the party’s discovery responses, Cuban produced documents related to allegations nowhere found in his Motion or reply thereto, but of which he has been aware for more than two years. Cuban now claims that these newly-raised events support additional allegations of bad faith against the Commission. If the Court permits Cuban to proceed on these newly-raised (but certainly not new) allegations of bad faith – something the Court should not permit given its clear admonition that the issues raised in Cuban’s Motion were the presumptive limit and that “fishing” would not be permitted, and that Cuban never saw fit to raise in his original Motion or Reply – the Commission seeks all documents and information relating to those allegations as well. Cuban’s Objections and Responses to Document Requests and to Interrogatories were served on the Commission on March 9, 2010. Copies of relevant portions of those Objections and Reponses are attached hereto as Exhibit A. Counsel for the parties engaged in a telephonic meet and confer on March 24, 2010. In anticipation of that meet and confer, the Commission provided Cuban’s counsel with a letter setting forth the deficiencies in Cuban’s responses and objections. See March 19, 2010 letter from Thomas J. Karr to Lyle Roberts, attached hereto as Exhibit B. In that meet and confer, Cuban’s counsel responded to the issues raised in the Commission’s March 19, 2010 letter. The Commission limits this motion to compel to those issues on which counsel agreed there was a continuing dispute. The Commission reserves the right to move to compel at a later date if – or to the extent – it has misunderstood counsels’ representations about the completeness of Cuban’s document production, or if counsel fails to follow through on its agreement made in the course of the meet and confer to produce (or log) previously undisclosed responsive documents. 2

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LEGAL STANDARD “‘[A] district court has broad discretion in all discovery matters….’” Beattie v. Madison County Sch. Dist., 254 F.3d 595, 606 (5th Cir. 2001) (quoting Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 855 (5th Cir. 2000)). “[Rule] 37(a)[(3)(B)(iii) and (iv)] empowers the court to compel the production of documents and complete responses to interrogatories upon motion by the party seeking discovery.” Export Worldwide, Ltd. v. Knight, 241 F.R.D. 259, 263 (W.D. Tex. 2006). Exercise of the Court’s discretion to compel is appropriate where the discovery sought is relevant to a claim or defense or, when accompanied by good cause, relevant to the subject matter involved in the action. See, e.g., SEC v. AmeriFirst Funding, Inc., No. 3:07-CV-1188-D, 2008 WL 926587, at *2 (N.D. Tex. Apr. 7, 2008). ARGUMENT I. Cuban Should be Required to Produce or Log All Responsive Documents and Identify All Responsive Communications, Not Just Those He Deems “Relevant.” The SEC’s interrogatories and document requests were narrowly tailored to obtain the production of information relevant to Cuban’s claims or the SEC’s defenses thereto. See Exhibit C (SEC Interrogatories and Document Requests served on Mark Cuban). For example, Interrogatory 1 1 requests “all communications that you have had with anyone regarding any email exchange or other interaction that you had with Jeffrey Norris;” Interrogatory No. 2 requires Cuban to “[i]dentify all communications you had with anyone regarding your claims that the Commission staff engaged in misconduct in conducting the investigation that led to the filing of this action;” and Request No. 3 requires Cuban to produce “[a]ll witness statements that relate to or concern your allegations that the Commission brought this action in bad faith.” It is

1

The Commission’s Document Request No. 7 requires the production of all documents identified in response to any interrogatories and “all documents containing information sought by those interrogatories.” See Exhibit C.

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difficult to imagine how communications or documents responsive to Interrogatory Nos. 1, 2 and 3 and Document Request No. 3 would not be relevant to the claims and defenses implicated by Cuban’s Motion. Yet, Cuban’s written objections to the interrogatories offer no rationale in support of his relevance objection and Cuban’s response to Request No. 3 limits his production to “relevant” documents. See Exhibit A. As explained below, there is a fundamental disagreement between the parties about the scope of relevancy that, if unaddressed, may substantially impede resolution of the issues raised in Cuban’s Motion. Despite objections asserted in their written discovery responses, Cuban’s counsel stated during the March 24, 2010 meet and confer that (1) Cuban and his counsel have produced all information and documents in their possession “relevant” to Cuban’s claims concerning the Commission’s conduct, (2) Cuban and his counsel possess no privileged documents – including any that discuss or characterize the facts underlying their claims – that are relevant to Cuban’s claims, and (3) Cuban and his counsel have not withheld relevant documents based on a limitation of the temporal scope of discovery or the identity of the investigation which led to the filing of this action. However, Cuban’s position appears to be that only documents purportedly demonstrating Commission wrongdoing are relevant and that documents discussing or tending to show the falsity of Cuban’s allegations are not relevant and, therefore, any exculpatory documents are not the proper subject of discovery. Three examples illustrate the inappropriate limitations of Cuban’s definition of relevancy. First, as Cuban’s counsel made clear during the parties’ meet and confer, in responding to Interrogatory 1, 2 Cuban did not produce (or log) communications between Cuban and his counsel or between Cuban and third parties concerning his email interactions with Jeffrey Norris.
Interrogatory 1 requests “all communications that [Cuban or his agents, representatives, attorneys, etc.] had with anyone regarding any email exchange or other interaction that [Cuban] had with Jeffrey Norris[.]”
2

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This interrogatory concerns a major allegation in Cuban’s Motion – that Norris was involved in the SEC’s investigation of Cuban’s trading either when he engaged in email communications with Cuban in March, April and early May 2007 or at some later point in time. While such communications and documents may be privileged, whether and when they were made and their content are all clearly relevant to Cuban’s claims and the Commission’s defenses herein. For instance: ● If Cuban did not alert his counsel to these emails, it would be probative of his understanding that – as is the case – Norris’s emails were unrelated to the Commission’s investigation. If Cuban alerted his counsel that a Commission enforcement attorney was emailing him directly, the fact that they did not raise it for several months with the Commission investigative team 3 would be probative that Cuban’s counsel, contrary to their current charges, knew that Norris’s emails were unrelated to the investigation. If Cuban’s counsel were aware of Norris’s emails before May 2007, when Cuban threatened to raise the emails with SEC Chairman Christopher Cox, it is conceivable that Cuban or his counsel were trying to goad Norris into sharing his email communications with Chairman Cox for strategic reasons.

In addition, on September 24, 2007, only days after Cuban’s counsel first alleged that Norris was involved in the SEC’s investigation of Cuban, an SEC Associate Director informed Cuban’s counsel that Norris was not involved in the investigation. 4 Documents and information reflecting Cuban’s or his counsels’ response to this letter, while potentially privileged, should nonetheless be identified. In sum, documents or other communications that, even by their mere existence, reflect Cuban’s or his counsels’ “beliefs” with respect to Norris or Cuban’s intentions

3

Moreover, if Cuban had reported Norris’s emails to his counsel, and if his counsel truly thought that Norris was a member of the HO-10576 investigation team and was making an ex parte contact with their client, one might expect them to refer this issue to bar authorities. Thus, the presence (or absence) of such a referral would be relevant to whether Cuban’s counsel sincerely believed their allegations regarding Norris. See Exhibit H.

4

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in engaging in an ongoing email dialog with Norris would clearly be relevant to the Commission’s defense. Second, in response to Interrogatory No. 2, after recitation of boilerplate objections, Cuban states that “his attorneys have spoken by telephone and/or in person with the following individuals on limited occasions…: Christopher Aguilar; David Gourevitch, Richard Greenberg, Stephen Saltzburg and Michael Storck.” See Exhibit A. This response is insufficient on its face. Cuban’s response, limited by his undisclosed determinations of relevance and completely bereft of identifying information, is of scant assistance to the SEC in its attempts to determine what information and/or documents he believes support his allegations. In addition, it is quite possible that Cuban or his counsel have had communications with Mamma.com personnel or others that would tend to show that the Commission’s investigation was not conducted in bad faith or that would tend to impeach testimony or other evidence Cuban intends to put forward in support of his claims of bad faith. Again, those documents (or communications) should not be withheld by Cuban on the grounds that they are not “relevant.” Third, Interrogatory No. 3 and Document Request No. 2 seek all communications between Cuban or his agents and Mamma.com or its personnel since Cuban became aware of the investigation that led to the filing of this action, including draft and final releases from contemplated litigation provided by Cuban to these personnel. See Exhibit C. Cuban has refused to identify any communications or produce documents responsive to this interrogatory or request despite having propounded a parallel interrogatory to the SEC. 5 The SEC knows from certain third party productions in the investigative stage of this matter that at least some Mamma.com personnel allowed Cuban’s counsel to interview them in apparent exchange for a release stating that Cuban would not file a contemplated lawsuit against them. Undisclosed
5

See Exhibit D (Cuban’s Interrogatories to SEC, Interrogatory No. 16).

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communications may lead to evidence showing that statements that Mamma.com personnel provided to Cuban’s counsel were made under duress. Moreover, the requested documents are relevant because, as documents from Cuban’s own production demonstrate, 6 they are likely to show that communications between SEC investigative staff and Mamma.com and Mamma.com personnel’s counsel were related to the timing of witness interviews, not to any alleged misconduct or quid pro quo. Finally, Cuban responded to a number of Interrogatories by referring the SEC “to the documents produced in response to the Requests, and to the Motion, the Reply and all exhibits thereto.” See, e.g., Exhibit A (Cuban’s Objections and Responses to Plaintiff Securities and Exchange Commission’s Interrogatories Nos. 2, 4, 5, and 7). The Court should require Cuban to confirm that he has produced all documents responsive to these interrogatories and provide all information required thereby or, if Cuban is unwilling to provide such confirmation, order Cuban to produce the requested documents and information. Rule 26(b)(1) provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” “Relevancy is broadly construed, and a request for discovery should be considered relevant if there is ‘any possibility’ that the information sought may be relevant to the claim or defense of any party.” Sheldon v. Vermonty, 204 F.R.D. 679, 689 (D. Kan. 2001) (quoting Scott v. Leavenworth Unified Sch. Dist. No. 453, 190 F.R.D. 583, 585 (D. Kan. 1999)). Thus, unless it is clear that the information sought can have no possible bearing on the claim or defense of a party, the request for discovery should be allowed. Sheldon, 204 F.R.D. at 689. For these reasons, the Commission moves to compel the production of any documents responsive to the Commission’s interrogatories or requests that have any relevance to the factual
6

See MCSEC0002072 (Exhibit I).

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issues raised in Cuban’s Motion and/or any defenses the Commission might assert to those claims. II. Cuban Should be Required to Provide a Privilege Log In responding to the Commission’s Document Requests, Cuban failed to identify any responsive but privileged documents on a log, asserting that all such documents are “irrelevant.” 7 See Exhibit A (Response to SEC Interrogatory No. 2; Response to SEC Document Requests Nos. 1-4, 6-8). Yet Cuban’s own production belies this broad assertion. For instance, his production contains a redacted version of a memo that was shared with Christopher Aguilar, former Chief Compliance Officer for Merriman Curhan Ford & Co. (“Merriman”), the broker-dealer that handled the Mamma.com PIPE offering. See Exhibit E (MC0001948/1963). Although sharing a document with a third party witness usually destroys any claim of privilege, to the extent Cuban has any legitimate reason for withholding the redacted information, a privilege log is required. 8 During the parties’ meet and confer, after denying that there were any responsive privileged documents, Cuban’s counsel agreed to produce a privilege log for certain privileged documents, oral communications, 9 and redactions made to documents produced to the Commission. The failure to provide a privilege log would be in direct violation of Rule 26(b)(5) of the Federal Rules of Civil Procedure. The Commission asks the Court to require Cuban to

The parties expressly included reciprocal instructions on the production of privilege logs in their document requests, see Exhibit D (Cuban’s Document Requests Instruction H); Exhibit C (SEC Document Requests Instruction H), and counsel for the SEC explicitly informed Cuban’s counsel that the SEC would be producing a privilege log in conjunction with its March 9, 2010 production. See Exhibit B.
8

7

It is clear from Exhibit E that the redacted portions of the memo are likely to contain factual information relevant to the SEC’s defense should Cuban be permitted to amend his motion to add this new claim, an effort the Court should deny.

9

The parties have agreed that, where they do not have an exact date, they will provide a best estimate of the date of any communications, identify all of the participants in the communication, describe the subject matter of the communication, and identify the claim or claims of privilege in any log entries of oral communications.

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produce a log of all privileged, responsive documents in his possession, custody or control, including any documents relevant to the Commission’s defenses to Cuban’s allegations of bad faith. Because Cuban’s failure to timely identify responsive, privileged documents has deprived the Commission of the ability to evaluate any privilege log and raise challenges to any asserted privilege claims, the Commission asks the Court to permit it to file a motion to compel with respect to documents identified on Cuban’s log after it has had a reasonable time to review the log should the Commission determine such a motion is necessary. 10 III. Cuban Should be Required to Identify All Responsive Oral Communications Courts routinely compel litigants to provide identifying information concerning responsive oral communications. See, e.g., In re Netbank, Inc. Sec. Litig., 259 F.R.D. 656, 682 (N.D. Ga. 2009); CC-Aventura, Inc. v. Weitz Co., LLC, No. 06-21598-CIV, 2008 WL 691687, at *2 (S.D. Fla. Mar. 12, 2008). The parties here included reciprocal instructions concerning oral communications, see Exhibit D (Cuban Interrogatories Definition J) and Exhibit C (SEC Interrogatories Instruction F), which state that responses related to oral communications should include, among other things, the date of the communication, the identities of all persons who participated in the communication, and the substance of the communication. The SEC complied with Cuban’s instruction by making a good faith effort to identify with sufficient specificity the communications responsive to his requests. In his interrogatory responses, Cuban did not identify any oral communications by date or name the participants. Without this basic information, there is no way for the Commission to determine whether discovery of additional witnesses or matters is necessary. At the meet and confer, counsel for Cuban agreed to identify some oral communications, but continued to object on relevancy grounds. The Court should
Of course, it would be the height of inequity for Cuban to be permitted to challenge the Commission’s assertions of privilege while refusing to even provide a privilege log.
10

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compel Cuban to identify immediately all responsive oral communications as contemplated by Instruction F contained in the SEC’s interrogatories. IV. If Cuban is Permitted to Interject New Factual Allegations, He Should be Required to Produce All Documents and Information Relevant to those Allegations Despite Cuban’s multifarious objections to the Commission’s requests directed to the specific allegations of wrongdoing set forth in his motion for attorneys’ fees, Cuban has elected to produce documents concerning allegations of purported bad faith that he did not raise in his Motion. For instance, Cuban has produced a February 12, 2010 declaration by Christopher Aguilar of Merriman. See Exhibit F. Cuban alleges that this declaration demonstrates an effort by Commission staff to purportedly “tamp down” a witness in the summer of 2007. Although Cuban has been aware of this allegation for more than two years, 11 he did not raise it in his Motion. When it permitted discovery on the allegations set forth in Cuban’s Motion, this Court expressly stated that “[t]he grounds on which Cuban relies in his motion should be seen as the presumptive limits on the scope of discovery, not as the starting points.” Order at 9–10. Perhaps because he knows that the facts provide no support for the allegations in his motion, Cuban now attempts to move the goalposts and interject “new” factual issues. Such maneuvering should not be countenanced by the Court. 12 First, the allegations of a “tamp down” are – on their face – meritless. Even considered in the light most favorable to Cuban, Aguilar’s declaration (which differs significantly from the draft Cuban’s counsel provided him) 13 establishes conclusively that the SEC did not engage in misconduct concerning the events

11 12

See Exhibit E (August 15, 2007 memorandum – MC0001954/1957).

This newly-raised (but certainly not new) issue presumably was excluded from Cuban’s original Motion because he believed – correctly – that it was meritless.
13

See Exhibit G at MC0001917-18, MC0001922, and MC0001928-32.

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described therein. 14 Cuban should be prohibited from using the discovery process to insert new claims of misconduct that he could and should have raised in his initial Motion. However, if the Court permits Cuban to interject new issues in this litigation, the SEC must be permitted to take discovery to respond to this and any other newly-raised allegations of misconduct. In addition, Cuban must be required to produce all documents shared with third parties – which are not and cannot be privileged – and to log any privileged materials that are relevant to Cuban’s claims or the Commission’s defenses to those claims. This includes, at a minimum, the following documents or excerpts of documents of which the Commission is aware: 1. Any other notes or memoranda prepared by or for counsel with respect to the May 23 Wells call. 2. All documents provided to Professor Stephen Saltzberg and all records of any communications with Professor Saltzberg. 3. All documents reflecting communications by Cuban or his counsel with Christopher Aguilar, including all documents provided to Aguilar and documents relating to the August 15, 2007 memorandum, including unredacted versions of the memorandum (which, since it was provided to a third party, cannot be claimed as privileged). 4. All notes, memoranda or documents reflecting communications with Mamma.com or Mamma.com personnel, including, but not limited to, releases provided to Mamma.com personnel. 5. All notes, memoranda or other documents reflecting the July 19, 2007 meeting between Cuban’s counsel and the SEC. Among other things, Cuban has indicated that he does not possess the notes of Mr. Mendrygal of that meeting because Mr. Mendrygal and Paul Coggins moved their practice to a new law firm. If Cuban means that the notes no longer exist, he should explain this. But if Cuban means that the notes still reside at Mr. Mendrygal’s prior firm, then he should be required to obtain the notes.

CONCLUSION

Aguilar’s declaration states that an SEC attorney “stated that she would prefer that I not produce Mr. Owen to Mr. Cuban’s counsel for an interview but that I could do what I wanted.” See Exhibit F at MC0001915. Moreover, as the declaration states, just days after the purported “tamp down,” Aguilar proceeded to make Owen available to Cuban’s counsel – something that, by his own admission, he had refused to do for months. Id. at MC0001916.

14

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For the reasons stated above, the Commission asks this Court to enter an order confirming that documents or information is responsive if “there is any possibility that the document or information could be relevant to a claim or defense of any party” and compelling Cuban to provide: (1) a log of any and all documents responsive to the Requests that Cuban has withheld on the basis of an assertion of privilege; (2) any and all information responsive to the Interrogatories and produce any and all documents responsive to the Requests that Cuban has withheld on the basis of his unilateral determination of relevance; (3) any and all communications responsive to Interrogatories Nos. 1-3 and produce any and all documents related to same in accordance with Instruction F contained in the Requests; and, if and to the extent the Court permits Cuban to raise new factual allegations in support of his Motion, (4) compelling Cuban to provide all information and documents relevant to his claims and any potential defenses to those allegations.

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Dated: March 29, 2010

Respectfully submitted, SECURITIES AND EXCHANGE COMMISSION By: ___/s/Thomas J. Karr________________ Kevin P. O’Rourke (pro hac vice) D.C. Bar No. 254920 Julie M. Riewe (pro hac vice) D.C. Bar No. 472470 Adam S. Aderton (pro hac vice) D.C. Bar No. 496247 Thomas J. Karr (pro hac vice) D.C. Bar No. 426340 (202) 551-5163 (Karr) (202) 772-9263 (fax) (Karr) karrt@sec.gov Securities and Exchange Commission 100 F Street, N.E. Washington, D.C. 20549 Toby M. Galloway Texas Bar No. 00790733 Securities and Exchange Commission Burnett Plaza, Suite 1900 801 Cherry Street, Unit 18 Fort Worth, TX 76102 (817) 978-6447 (817) 978-2700 (fax) Attorneys for the Securities and Exchange Commission CERTIFICATE OF SERVICE

On March 29, 2010, I electronically submitted the SEC’s Memorandum in Support of its Motion to Compel with the Clerk of Court for the U.S. District Court, Northern District of Texas, using the electronic case filing system of the court. I hereby certify that I have served all counsel and/or pro se parties of record electronically or by another manner authorized by Federal Rule of Civil Procedure 5(b)(2). /s/Thomas J. Karr___________________________ Thomas J. Karr 13