Free Letter - District Court of Delaware - Delaware

Case 1:05-cv-00008-JJF-LPS

Document 26

Filed 10/21/2005

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Richard L. Horwitz

1313 North Market Street P.O. Box 951 Wilmington, DE 19899-0951 302 984-6000 www.potteranderson.com

Partner Attorney at Law [email protected] 302 984-6027 Direct Phone 302 658-1192 Fax

October 21, 2005 VIA E-FILING The Honorable Kent A. Jordan United States District Court for the District of Delaware 844 North King Street Room 6325, Lockbox 10 Wilmington, DE 19801 Re: FTR Consulting, Inc. v. Soin et al C.A. No. 05-00008 (KAJ)

Dear Judge Jordan: Defendants have reviewed Your Honor's October 13, 2005 letter, and jointly request that the Court defer entry of a Scheduling Order until after ruling on defendants' motion to dismiss. No discovery is necessary for the Court to rule on the motion. Defendants' motion to dismiss simply points out that the Securities and Exchange Commission's newly-adopted clarifying amendment to Rule 16b-3 is dispositive, and should lead to the dismissal of the plaintiff's complaint. In fact, this Court previously obviated the need for a Scheduling Order when it entered a stay in this case pending the SEC's formal adoption of amended Rule 16b-3. Now that the SEC has clarified its pre-amendment interpretation of Rule 16b-3 by formally adopting the proposed amendment, the same reasons justifying the stay -- conserving the parties resources and promoting judicial economy and efficiency -- support postponing the Scheduling Order until after the Court rules on defendants' motion to dismiss. If defendants' motion is granted, then no Scheduling Order would be necessary. Only if the motion is denied will the parties need to confer and recommend a schedule for proceeding through discovery and trial. That process can be conducted just as easily, if necessary, after Your Honor rules on whethe r SEC Rule 16b-3 completely disposes of plaintiff's case. We also note for the Court that Judge Sleet has scheduled oral argument for November 1, 2005, on the identical issue, in Levy v. Sterling Holding Company et al (see attached Order). Therefore, defendants request that the case scheduling procedure set forth by Your Honor's October 13, 2005 letter to counsel be postponed until a ruling is reached on

Case 1:05-cv-00008-JJF-LPS The Honorable Kent A. Jordan October 21, 2005 Page 2

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defendants' motion to dismiss, and we have been informed by plaintiff's counsel that plaintiff does not oppose this request. Counsel are available at the Court's convenience if Your Honor has any questions. Respectfully, /s/ Richard L. Horwitz Richard L. Horwitz Enclosure
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cc:

Theodore J. Taconelli (via facsimile) Paul D. Wexler (via facsimile) Robert J. Stearn, Jr. (via facsimile) Glenn F. Ostrager (via facsimile) Geoffrey J. Ritts (via facsimile)

Case 1:05-cv-00008-JJF-LPS

Document 26

Filed 10/21/2005

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Case 1:05-cv-00008-JJF-LPS

Document 26

Filed 10/21/2005

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