# Supplemental Brief — Credit Suisse Securities (USA) LLC v. Billing

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Supplemental Brief
- **Published:** January 1, 2007
- **Citation:** 551 U.S. 264

## Text

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No. 05-1157

In the Supreme Court of the Anited States

CREDIT SUISSE FIRST BOSTON LTD., ET AL.,

Petitioners,

V.

GLEN BILLING, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to
the United States Court of Appeals
for the Second Circuit

SUPPLEMENTAL BRIEF
FOR PETITIONERS

Supreme Court, U.S.
FiLE))

NOV 27 2006

OFFICE OF THE CLERK

ROBERT B. MCCAW

Louis R. COHEN

ALI M. STOEPPELWERTH

FRASER L. HUNTER, JR.

NOAH A. LEVINE

WILMER CUTLER PICKERING
HALE & DORR LLP

399 Park Avenue

New York, New York 10022

(212) 230-8800

Attorneys for Petitioner

STEPHEN M. SHAPIRO
Counsel of Record
KENNETH S. GELLER
TIMOTHY S. BISHOP
JOHN P. SCHMITZ
MAYER, BROWN, ROWE &
MAW LLP
1909 K Street, N.W.
Washington, D.C. 20006
(202) 263-3000
Attorneys for Petitioner

Citigroup Global Markets Inc. Merrill Lynch, Pierce,

Fenner & Smith Incorporated

Counsel for Petitioners
[Additional Counse/ Listed On Signature Page]

TABLE OF CONTENTS

SUPPLEMENTAL BRIEF FOR PETITIONERS ................

The immunity analysis presented by the
United States requires dismissal of these claims....... alas

The arguments presented by the United States

Immunity issues are properly resolved on a motion
i acestitiinaiiniissbsnintninepiniinimintncnieisimnes

The amicus brief filed by the United States confirms
the need for this Court’s review .............cccsseseceseeeeeesees

SIN <cnvssnsennsuneunenastanesnetonsmniasmanminesnasiatensenstnnsts 10

TABLE OF AUTHORITIES

Case: Page
Barry Aviation v. Land O'Lakes Mun. Airport Comm'n,

pg RF een 7
Brown v. Pro Football, Inc., 518 U.S. 231 (1996)............ 3,9
City of Sherrill, New York v. Oneida Indian

Nation of New York, 544 U.S. 197 (2005) ..............c00000 6
Crawford-El v. Britton, 523 U.S. 574 (1998) .......cccccssecceeeee 7

Department of Enforcement v. Invemed Associates,
No. CAF030014 (NASD Office of Hearing Officers

Bly Sis A inpnansinenneententnninsegticencnainniimestteneinenneed 4
Gordon v. New York Stock Exch., 422 U.S. 659

SETI PaiN hccrciubataiummetinbinetinininieaimnatnieneeineemeetd passim
Harris Trust & Savings Bank v. Salomon Smith Barney,

Fe ccetessicncenscnntstisninneianiniienmmncinesd 6
Hughes Tool Co. v. Trans World Airlines, 409 U.S. 363

Sart sataihestlsitaielbdiseeghniieiiparpaasiaeibiciniiiamatanainaaiaenned 9
Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips

ig, Se ey Be Oe cttsncicsnsenrinemnecesesenweninsmneel 6
Merrill Lynch, Pierce, Fenner & Smith, Inc. v.

Sy ERS EE, WI EI cccerinnsnittccinteintcnensscnsenntennenss 5
Mitchell v. Forsyth, 472 U.S. 511 (1985) .........cc0ccecceeeeeeseeees 7
Pan American World Airways, Inc. v. United States,

ee Ce I ccteceestriesincdabchiiiiinbiniinpedininiiatniaiganisl S
United States v. National Ass'n of Sec. Dealers,

a ee TE wicccesetctssnsedetetineastibinteanienennens passim

Van Buskirk v. New York Times Co., 325 F.3d 87
as NUT itisscesindachcnaiitcciaicnictpiasianlabeaniepbinsiciabialiuaupenetniidi 8

TABLE OF AUTHORITIES-Continued

Page

Verizon Comms. v. Law Offices of Curtis V. Trinko, LLP,

ge 1,4, 8,9
Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899

SIE TIE TE tcicsscateninesiietasniiasttanisabnienentnapagaadainteisiiiiitstdies 7
Yee v. City of Escondido, 503 U.S. 519 (1992).........::2ccceeees 6
Statute and Rule:
iis i I icprcctcnssshnbinciciintciieimncstapionninnapsiseaiiinsianeiiannies 5
| ES a ee oR ETE 6
Miscellaneous:
PHILLIP AREEDA & HERBERT HOVENKAMP, ANTITRUST

Be I Ge ccnncntcinsncstsnecnscseessenmntenensiiinemens 3,5

ROBERT L. STERN, EUGENE GRESSMAN, ET AL., SUPREME
COURT PRACTICE (8th ed. 2002).............ccccssrscessereereeees 5

SUPPLEMENTAL BRIEF FOR PETITIONERS

The United States has filed a brief signed by both the SEC
and the Antitrust Division urging this Court to grant certio-
rari a..d reverse the Second Circuit’s ruling denying antitrust
immunity. The United States explained in its brief that the
court of appeals’ erroneous decision “failed to give adequate
effect to the securities laws” and as a result threatens to “un-
dercut critical national regulatory policies and interfere with
the capital formation process.” U.S. Br. 8, 19. The United
States demonstrated that, “[a]s a practical matter,” the erro-
neous immunity standards adopted by the Second Circuit will
govern IPOs throughout the country because venue “will
generally lie within the Second Circuit.” /d. at 9. And it em-
phasized the “paramount importance” of avoiding disruption
of the “Nation’s vitally important financial markets” caused
by an immunity standard that will “chill legitimate activity.”
Accordingly, the Solicitor General has concluded that “cer-
tiorari should be granted” to resolve immunity issues as to
which “clarity” is “critical.” Ibid. The same conclusion was
previously expressed in amicus filings by the National Asso-
ciation of Securities Dealers and the New York Stock Ex-
change, self-regulatory organizations that, along with and
closely overseen by the SEC, have regulatory authority over
IPOs. See also Pet. Supp. Br. (June 12, 2006) (quoting SEC
Commissioner Paul Atkins).

Plaintiffs’ response to the United States confirms that this
Court’s review is necessary to overturn a denial of implied
immunity that is inconsistent with this Court’s decisions in
Gordon v. New York Stock Exch., 422 U.S. 659 (1975),
United States v. National Ass'n of Sec. Dealers, 422 U.S. 694
(1975), and Verizon Comms. v. Law Offices of Curtis V.
Trinko, 540 U.S. 398 (2004). Plaintiffs cite not one of those
controlling precedents in their supplemental submission and
do not attempt to address the United States’ showing that the
court of appeals’ ruling is a direct threat to the operation of
public securities markets regulated by the SEC.

2

Plaintiffs quote at length from the submissions of the Anti-
trust Division below arguing against immunity, without ac-
knowledging that the SEC was equally vigorous in urging
that immunity here is essential to the functioning of the secu-
rities regulatory regime in which it supervises all of the al-
leged conduct. The Solicitor General’s brief to this Court
“reflects the considered view of the United States.” U.S. Br.
4 n.2. The SEC and Antitrust Division now speak with one
voice in urging that certiorari should be granted to reverse an
erroneous decision on an “important and recurring” issue that
has produced “confusion in the lower courts”—an error that
threatens to gut “the statutory scheme for regulating public
offerings of securities.” Jd. at 7, 9. While plaintiffs quarrel
with the Solicitor General on the merits issues, they have no
answer to his showing that this case imperatively calls for
further review.

1. The immunity analysis presented by the United
States requires dismissal of these claims. Plaintiffs object
that the immunity standard set forth in the brief of the United
States—that securities market participants are immune from
antitrust suits that “ultimately rest on collaborative activities
that are either permitted under the securities laws or inextri-
cably intertwined with such permitted activities” (U.S. Br.
8)}—is a “new argument” that differs from petitioners’ immu-
nity arguments and has not previously been presented. But
the United States has properly focused on an important as-
pect of the repugnance analysis, which petitioners presented
in the petition for certiorari.

Petitioners have explained that immunity from plaintiffs’
suits flows directly from the standards sct forth by this Court
in Gordon and NASD. Scrutiny by an antitrust jury in a treble
damages action is plainly repugnant to the securities regula-
tory scheme because the SEC and SROs have by regulation
and enforcement action exercised “direct regulatory power”
over exactly the same tie-in and commission practices plain-
tiffs allege, and because exercise of regulatory authority is

3

“sufficiently pervasive” to oust the antitrust laws. See Pet.
20-24; Pet. Reply to Billing 2-4; Gordon, 422 U.S. at 682,
685; NASD, 422 U.S. at 730-734. But petitioners also agree
with the United States that immunity may be conferred here
under the rationale that all the conduct alleged is either per-
mitted by SEC regulation or is “directly related to” or “inex-
tricably linked” with permitted conduct (U.S. Br. 9, 11}—
formulations that rephrase the criteria set out in Gordon and
NASD but similarly seek to identify whether antitrust scru-
tiny may “conflict” with the administrative scheme.

The complaints, plaintiffs concede (at 3, 9), refer to a host
of joint activities that are permissible and encouraged by the
SEC, such as the operation of underwriting syndicates, con-
duct of road shows, and building the IPO book. The tie-in
and commission practices that plaintiffs allege are inextrica-
bly intertwined with those permitted activities. For example,
the United States has pointed out that the SEC has “specifi-
cally approved” book-building inquiries into a customer’s
long-term interest in an IPO stock and the price at which it
might accumulate a position in the aftermarket “as important
in determining the size and price of the offering” and “the
allocation of shares.” U.S. Br. 15. Distinguishing “legitimate
book-building” from attempts “to induce a bid or purchase,”
SEC guidance indicates, “depends on the particular facts and
circumstances” of each communication. Pet. App. 225a.

Whether particular conversations crossed the lines drawn
by the SEC under securities laws standards is inextricably
linked with book-building conduct approved by the agency.
A lay jury’s consideration of that question under competi-
tion-first antitrust principles would inevitably lead to conflict
with the SEC’s expert judgment and undermine the congres-
sional goal of consistent administrative supervision. See Pet.
App. 129a n.2, 156a, 196a-197a; Brown v. Pro Football, 518
U.S. 231, 240-242 (1996); AREEDA & HOVENKAMP, ANTI-
TRUST LAW 4 243a, at 77 (Supp. 2006) (“permitting the anti-
trust challenge [in these cases] permits a jury to decide an

4

issue that gave the SEC’s own experts considerable diffi-
culty”). The risk of jury condemnation and treble damages
awards to huge classes of investors based on the interpreta-
tion of a word or phrase uttered during book-building con-
versations would, the United States recognizes, “chill
legitimate activity” approved by the SEC and “effectively
Vitiate the immunity for the authorized conduct and thus con-
flict with the regulatory scheme.” U.S. Br. 9, 11. The fact
that plaintiffs are attacking permissible book-building prac-
tices and regulated practices directly linked to them lies at the
heart of petitioners’ case for immunity. See Pet. 9, 27-30;
Pet. Reply to Billing 6-9; see also Pet. App. 193a-194a.

The conduct plaintiffs allege with regard to commissions
is likewise “inextricably intertwined” with conduct permitted
by the SEC. Whether a commission payment is proper under
the securities laws is a complex question. See Pet. 8. The dif-
ficulty of parsing the facts concerning commission payments
and the need to apply securities standards in conducting that
inquiry is illustrated by Jnvemed Assocs., where an NASD

~~panel determined that higher-than-normal commissions paid

by customers seeking IPO allocations did not violate NASD
rules. See Pet. Reply to Pfeiffer 3-4. After a detailed review
of testimony concerning particular customer relationships
and commission payments, as well as expert evidence, the
hearing panel held that none of the 700 payments in question
was unlawful. There is no reason to expect that a lay jury ap-
plying general antitrust criteria would reach the same result.
As with plaintiffs’ tie-in allegations, fear of “mistaken infer-
ences” and “false condemnations” leading to open-ended
class action liability would cause market participants to re-
frain from engaging in permissible activities (Trinko, 540
U.S. at 414), making immunity essential to protect the regu-
latory scheme. See Gordon, 422 U.S. at 685, 690 (finding
immunity where SEC had “direct regulatory power” over
“rules and practices” regarding commissions); Pet. 26-28.

5

These conflicts with the regulatory scheme are of great
practical concern because plaintiffs’ antitrust suits are subject
to none of the limits that Congress and this Court have im-
posed on private securities actions to curb “abuses of the
class action vehicle in litigation involving nationally traded
securities,” including the “targeting of deep-pocket defen-
dants” and extraction of “extortionate settlements.” Merrill
Lynch v. Dabit, 126 S. Ct. 1503, 1510-1511 (2006). Those
safeguards, evaded here, include limiting recovery for “ma-
nipulative and deceptive practices” in public securities mar-
kets to single damages, as well as rigorous pleading, class
action, and discovery rules. 15 U.S.C. § 7ebb; Pet. 29-30; see
AREEDA & HOVENKAMP, supra, § 243, at 76-77 (Supp. 2006)
(observing that many claims of securities fraud or manipula-
tion “can be pled as an antitrust violation”).

2. The arguments presented by the United States are
fairly included in the question presented in the petition.
Plaintiffs are incorrect in asserting (at 4-6) that the United
States’ arguments are barred by Supreme Court Rule 14.1(a).
Under that rule a question presented “is deemed to comprise
every subsidiary question fairly included therein.” The “inex-
tricably intertwined” standard for implied immunity is easily
subsumed in petitioners’ question presented concerning the
circumstances under which courts should imply immunity
from an antitrust suit challenging heavily regulated conduct
during securities offerings. See Pet. 1; STERN, GRESSMAN, ET
AL., SUPREME COURT PRACTICE § 6.25(f), at 413 (8th ed.
2002) (“it is unnecessary to convert into a separate question
every subsidiary issue that is implicit or necessarily involved
in the question presented”). The position of the United States,
moreover, is simply a synthesis of arguments made by the
Antitrust Division and the SEC and considered by the courts
below, and a variation on the immunity arguments made by
petitioners throughout this litigation. U.S. Br. 4 n.2; supra,
pp. 2-4. “Once a federal claim is properly presented,” the
United States as amicus curiae is free to make “any argument

6

in support of that claim.” Harris Trust & Savings Bank v.
Salomon Smith Barney, 530 U.S. 238, 245 n.2 (2000).

The decisions relied on by plaintiffs have no relevance
here. In Yee v. City of Escondido, 503 U.S. 519, 537 (1992),
the regulatory takings claim this Court declined to consider
was legally distinct from the physical takings claim presented
in the petition and “neither of the two questions [was] sub-
sidiary to the other.” In /zumi Seimitsu v. U.S. Philips, 510
U.S. 27, 32 (1994), the question whether courts of appeals
should routinely vacate judgments when cases are settled on
appeal did not fairly include the “analytically and factually”
distinct issue whether the petitioner was improperly denied
leave to intervene. Here, by contrast, the arguments advanced
by the United States address the very same issue raised by
the question presented—the circumstances under which
courts should imply immunity from antitrust law challenges
to highly regulated conduct during securities offerings—and
so are fairly included in that question. See City of Sherrill v.
Oneida Indian Nation, 544 U.S. 197, 214 n.8 (2005).

Beyond this, none of plaintiffs’ arguments in the supple-
mental brief undermines our showing—supported by the
United States—of the certworthiness of these cases. The
United States agrees with petitioners that the Second Cir-
cuit’s decision will undercut the “critical national regulatory
policies” that Gordon and NASD sought to protect, that it is
of “paramount importance” that the court of appeals’ ruling
threatening market participants with treble damages not be
allowed to undermine “the capital formation process in this
country,” and that there is “continuing confusion in the lower
courts” regarding the “recurring” issue of when antitrust im-
munity should be implied. U.S. Br. 9, 11, 19. This case
clearly merits review regardless of the application of Rule
14.1(a) to any particular argument made by the United States.

3. Immunity issues are properly resolved on a motion
to dismiss. Plaintiffs assert (at 6-8) that the United States

7

would hold them to a “heightened pleading standard” that
requires them to negate an affirmative defense, at odds with
the principle that immunity is disfavored and should be im-
plied narrowly. But the Solicitor General nowhere in his brief
suggests that more has to be pled than Rule 8 requires. See
also Br. of the United States as Amicus Curiae in Bell Atlan-
tic v. Twombly, No. 05-1126. He simply contends that plain-
tiffs’ conclusory allegations, which on their face rest on
conduct either permitted by the SEC or intertwined with
permitted conduct, cannot be the basis for massive antitrust
suits that endanger the securities regulatory system and capi-
tal formation process. U.S. Br. 13-15.

Plaintiffs have pled themselves out of court, like the plain-
tiffs in NASD, whose claims were dismissed with prejudice
on implied immunity grounds. 422 U.S. at 697, aff g 374 F.
Supp. 95, 114 (D.D.C. 1973). Even if the threshold issue of
immunity is viewed as a defense, the decisions upon which
plaintiffs rely acknowledge that a defense “may be resolved
definitively on the face of the complaint” when the plaintiff
pleads the basis for the defense. Barry Aviation v. Land
O'Lakes Mun. Airport, 377 F.3d 682, 688 (7th Cir. 2004);
see also Xechem, Inc. v. Bristol-Myers Squibb, 372 F.3d 899,
901 (7th Cir. 2004). And plaintiffs concede (at 7 n.11) that
the district court here “properly held that implied immunity
was ‘an affirmative defense that appears on the face of the
complaint, and as such is properly addressed at the motion to
dismiss stage.’”

Every motion to dismiss on immunity grounds—even the
very different qualified immunity ground at issue in most of
plaintiffs’ authorities—requires the district judge to look at
the facts pled in the complaint to see if immunity applies.
E.g., Mitchell v. Forsyth, 472 U.S. 511, 528 (1985) (“resolu-
tion of these [qualified immunity] issues will entail consid-
eration of the factual allegations that make up the plaintiff's
claims for relief’); Crawford-El v. Britton, 523 U.S. 574, 598
(1998) (“the district court should resolve that threshold ques-

tion [of qualified immunity] before permitting discovery” by
deciding “whether, assuming the truth of the plaintiff's alle-
gations, the official’s conduct violated clearly established
law”). Whether “allowance of an antitrust suit would conflict
with the operation of the regulatory scheme” is a “legal ques-
tion” well suited to determination on the pleadings. Gordon,
422 U.S. at 688; see NASD, 422 U.S. at 700-702. Plaintiffs
allege conduct that is all closely regulated by the SEC and
SROs and that is either permitted by regulators or inextrica-
bly intertwined with permitted activity. It is therefore a
straightforward matter to determine that immunity is required
to allow the securities regulatory scheme to function as Con-
gress intended, whether that question is analyzed under the
principles set forth in Gordon and NASD or the Solicitor
General’s interpretation of them. See supra, pp. 2-5; Van
Buskirk v. New York Times, 325 F.3d 87, 91-92 (2d Cir.
2003) (dismissal with prejudice proper when complaint is
“not reasonably susceptible” to an interpretation that cures
the legal deficiency and provides no “indication that a valid
claim might be stated””’).

4. Plaintiffs’ conspiracy arguments do not overcome
immunity. Citing decisions of this Court which are not rele-
vant because the conduct at issue was not subject to regula-
tory oversight, plaintiffs assert that a “prohibited conspiracy”
or other “prohibited activity” carried out in the course of law-
ful conduct cannot be impliedly immune. PI. Supp. Br. 8-10
& n.14. This Court’s precedents contradict that argument.
For example, by the time Gordon reached this Court the SEC
had outlawed fixed commission rates as horizontal price fix-
ing, yet this Court implied immunity. 422 U.S. at 682. In
NASD plaintiffs alleged horizontal and vertical conspiracies
to fix prices and quash developiaent of a secondary market in
mutual fund shares, yet immunity was implied. 422 U.S. at
701-704. In Trinko this Court observed that had it not been
for an antitrust savings clause the regulatory scheme created
by the Telecommunications Act would have been a “good

9

candidate for implication of antitrust immunity,” even though
plaintiffs alleged a clear violation of a statutory duty and
Verizon had entered into a consent decree and paid millions
of dollars to the United States and competitors. 540 U.S. at
401, 403-406. In Pan Am. Airways v. United States, 371 U.S.
296 (1963), the Civil Aeronautics Board condemned a joint
ownership arrangement as “disruptive of the regime visual-
ized by” Congress in the Federal Aviation Act and “out of
harmony with the [FAA’s] statutory standards for competi-
tion,” yet this Court held that an antitrust challenge to the
arrangement “should have been dismissed” because whether
“transactions of that character meet the standards of competi-
tion and monopoly provided by the [FAA] is peculiarly a
question for the Board.” /d. at 309-313 & n.19; see id. at 310
(“If the courts were to intrude independently with their con-
struction of the antitrust laws, two regimes might collide”).
See also Hughes Tool Co. v. TWA, 409 U.S. 363, 405 n.18
(1973) (implying immunity although, according to the dis-
senting Justices, the challenged practices were undertaken
“without [regulatory] approval or knowledge’’); Brown, 518
U.S. at 235 (1996) (implying immunity though defendants
“unilaterally implemented” a change in terms of employment
that appeared to violate federal Jabor laws).

It is thus demonstrably false to claim, as plaintiffs do (at
9), that “forming and implementing [al prohibited conspir-
acy” cannot be immune from antitrust scrutiny, even if the
conduct is regulated by an expert agency that takes competi-
tion into account. And it is beside the point here, where the
question whether particular conduct was prohibited depends
on nuanced distinctions drawn under securities law standards.
The fact that antitrust jucies applying competition-first prin-
ciples will not replicate securities regulators’ judgments cre-
ates the potential for conflict that makes implied immunity
necessary to protect the regulatory scheme.

5. The amicus brief filed by the United States confirms
the need for this Court’s review. Contrary to plaintiffs’

10

contention (at 10) that “the United States’ apparent position
that a conspiracy to require tie-ins or laddering does not vio-
late the antitrust laws” provides “no reason” for this Court’s
review, that position is a compelling reason to grant certio-
rari. The Solicitor General has shown that the Second Circuit
erred as a matter of law regarding an issue of enormous im-
portance to the capital formation process. Plaintiffs have not
begun to suggest how their allegations could be viewed as
anything other than a direct attack on conduct that is permit-
ted by the SEC and closely intertwined with permitted activ-
ity. And they have said not a word to refute our showing that
under Gordon, NASD, and Trinko, the danger of conflict with
the securities regulatory scheme is inescapable and severe
when treble damages attacks are made on permissible syndi-
cation practices and directly related underwriting activities
that are closely supervised by the expert agency.

Although plaintiffs assert (at 10) that the question pre-
sented is not a recurring one, they do not deny our show-
ing—reinforced by the United States—that these “epic” class
actions could be refiled whenever the stock market declines.
The same claim could always be made: that underwriters act-
ing together in syndicates “agreed” and made inquiries of
customers about their aftermarket interest in the IPO stock.
Then nationwide class action antitrust proceedings focused
on hundreds of [POs could be utilized to extract immense
settlements, given the inevitable risk of false condemnations
by antitrust juries. The United States is right in saying that
this would cripple our financial markets.

CONCLUSION
The petition for writ of certiorari should be granted.
Respectfully submitted.

ROBERT B. MCCAW

LOUIS R. COHEN

ALI M. STOEPPELWERTH

FRASER L. HUNTER, JR.

NOAH A. LEVINE

WILMER CUTLER PICKERING
HALE & DorR LLP

399 Park Avenue

New York, New York 10022

(212) 230-8800

Attorneys for Petitioner
Citigroup Global Markets
Inc.

ANDREW J. FRACKMAN

Timothy J. MURIS

RICHARD G. PARKER

BRENDAN DOWD

O”’MELVENY & MYERS LLP

Seven Times Square

New York, New York 10036

(212) 326-2000

Attorneys for Petitioner
Robertson Stephens, Inc.

CARTER G. PHILLIPS

A. ROBERT PIETRZAK

JOEL M. MITNICK

SIDLEY AUSTIN LLP

787 Seventh Avenue

New York, New York 10019
(212) 839-5300

Attorneys for Petitioner

Deutsche Bank Securities Inc.

STEPHEN M. SHAPIRO
Counsel of Record

KENNETH S. GELLER

TIMOTHY S. BISHOP

JOHN P. SCHMITZ

MAYER, BROWN, ROWE &
MAW LLP

1909 K Street, N.W.

Washington, D.C. 20006

(202) 263-3000

Attorneys for Petitioner
Merrill Lynch, Pierce,
Fenner & Smith Incorpo-
rated

ANDREW B. CLUBOK
RICHARD A. CORDRAY
BRANT W. BISHOP
KIRKLAND & ELLis LLP
655 15th Street, N.W.
Washington, D.C. 20005
(202) 879-5000
Attorneys for Petitioner
Morgan Stanley & Co. Inc.

SHEPARD GOLDFEIN

PREETA D. BANSAL

JAMES A. KEYTE

SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP

Four Times Square

New York, New York 10036

(212) 735-3000

Attorneys for Petitioner
Janus Capital Management
LLC

RICHARD A. CIRILLO

KAREN R. KOWALSKI

KING & SPALDING LLP

1185 Avenue of the Americas

New York, New York 10036

(212) 556-2100

Attorneys for Petitioner
Credit Suisse First Boston
LLC

MOSES SILVERMAN

PHILIP G. BARBER

PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, New York 10019

(212) 373-3000

Attorneys for Petitioner
Lehman Brothers Inc.

JON R. ROELLKE
JEFFREY H. DRICHTA
CLIFFORD CHANCE US LLP
2001 K Street, N.W.
Washington, D.C. 20006-1001
(202) 912-5000
Attorneys for Petitioner
Merrill Lynch, Pierce,
Fenner & Smith Incorporated

PAUL GONSON
GLENN R. REICHARDT
KIRKPATRICK & LOCKHART
NICHOLSON GRAHAM LLP
1601 K Street, N.W.
Washington, D.C. 20006
(202) 778-9000
Attorneys for Petitioner
Merrill Lynch, Pierce,
Fenner & Smith Incorporated

GANDOLFO V. DIBLASI
PENNY SHANE
DAVID M.J. REIN
RICHARD J.L. LOMUSCIO
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, New York 10004
(212) 558-4000
Attorneys for Petitioners
The Goldman Sachs Group,
Inc. and Goldman, Sachs &
Co.

RANDY M. MASTRO

JOHN A. HERFORT

RICHARD FALEK

GIBSON, DUNN & CRUTCHER
LLP

200 Park Avenue

New York, New York 10166

(212) 351-4000

Attorneys for Petitioner
Bear, Stearns & Co., Inc.

STEYEN WOLOWITZ

MATTHEW INGBER

MAYER, BROWN, ROWE &
MAw LLP

1675 Broadway

New York, New York 10019

(212) 506-2500

Attorneys for Petitioner
Comerica, Inc.

GERALD J. FIELDS

KEVIN C. LOGUE

PAUL HASTINGS JANOFSK /
& WALKER LLP

75 East 55th Street

New York, New York 10022

(212) 318-6000

Attorneys for Petitioners
Van Wagoner Capital
Management, Inc. and Van
Wagoner Funds, Inc.

NOVEMBER 2006

JOHN D. DONOVAN, JR.

ROBERT G. JONES

ROPES & GRAY LLP

One International Place

Boston, Massachusetts 02110

(617) 951-7000

Attorneys for Petitioners
Fidelity Distributors Corp.,
Fidelity Brokerage Services
LLC, and Fidelity
Investments Institutional
Services Co., Inc.

No. 05-1157
Jn the Supreme Court of the United States

CREDIT SUISSE FIRST BOSTON LTD., ET AL., PETITIONERS,
Vv.

GLEN BILLING, ET AL., RESPONDENTS.

On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Second Circuit

CERTIFICATE OF SERVICE

I, Timothy S. Bishop, counsel for petitioners and a member of
the Bar of this Court, certify that on November 27, 2006, I served
three copies of the Supplemental Brief for Petitioners in the above-
captioned case via UPS overnight, addressed to:

Christopher Lovell Russel H. Beatie

Lovell Stewart & Halebian LLP Beatie & Osborn LLP

$00 Fifth Avenue 521 Fifth Avenue

New York, NY 10110 New York, NY 10175

(212) 608-1900 (212) 888-9000

Counsel for Respondents Glen Counsel for Respondent
Billing et al. Milton Pfeiffer

Paul D. Clement

Solicitor General of the United States
Room 5614

Department of Justice

950 Pennsylvania Ave., N.W.
Washington, DC 20530-0001

(202) 514-2217

I certify that all parties required to be served have been served.

. ——_, Bee

Timothy S. Bistrop”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0247%3A23. Public record. Not legal advice.