US District Court Civil Docket as of August 16, 2010

Retrieved from the court on August 18, 2010

U.S. District Court
Southern District of New York (Foley Square)
CIVIL DOCKET FOR CASE #: 1:10-cv-00271-RJH

Schwack v. Direxion Shares ETF Trust et al
Assigned to: Judge Richard J. Holwell
Lead case: 1:09-cv-08011-RJH
Member case: (View Member Case)

Related Cases:	1:09-cv-08011-RJH
	1:10-cv-01273-RJH

Cause: 15:77 Securities Fraud

Date Filed: 01/13/2010
Date Terminated: 08/12/2010
Jury Demand: Plaintiff
Nature of Suit: 850 Securities/Commodities
Jurisdiction: Federal Question

Plaintiff
Howard Schwack on behalf of himself and all others similarly situated	represented by	Mark C. Rifkin Wolf Haldenstein Adler Freeman & Herz LLP 270 Madison Avenue New York, NY 10016 212-545-4600 Fax: 212 545-4653 Email: rifkin@whafh.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Gustavo Fabian Bruckner Wolf Haldenstein Adler Freeman & Herz LLP 270 Madison Avenue New York, NY 10016 212.545.4600 Fax: 212.545.4653 Email: Bruckner@whafh.com ATTORNEY TO BE NOTICED Scott Jason Farrell Wolf Haldenstein Adler Freeman & Herz LLP 270 Madison Avenue New York, NY 10016 (212) 545-4600 Fax: (212) 545-4653 Email: farrell@whafh.com ATTORNEY TO BE NOTICED
Plaintiff
William Lee	represented by	David A.P. Brower Robbins Umeda, LLP 600 "B" Street Suite 1900 San Diego, CA 92101 (619) 525-3990 Fax: (619) 525-3991 Email: brower@browerpiven.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
V.
Defendant
Direxion Shares ETF Trust	represented by	Joanna Andrea Diakos K&L Gates LLP (NYC) 599 Lexington Avenue New York, NY 10022-6030 212-536-4807 Fax: 212-536-3901 Email: joanna.diakos@klgates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Defendant
Daniel O'Neill	represented by	Joanna Andrea Diakos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Defendant
Todd Kellerman
Defendant
Daniel J. Byrne	represented by	Joanna Andrea Diakos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Defendant
Gerlad E. Shanley, III	represented by	Joanna Andrea Diakos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Defendant
John Weisser	represented by	Joanna Andrea Diakos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Defendant
Rafferty Asset Management, LLC	represented by	Joanna Andrea Diakos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed	#	Docket Text
01/13/2010	1	COMPLAINT against John Weisser, Rafferty Asset Management, LLC, Direxion Shares ETF Trust, Daniel O'Neill, Todd Kellerman, Daniel J. Byrne, Gerlad E. Shanley, III. (Filing Fee $ 350.00, Receipt Number 891058)Document filed by Howard Schwack.(ama) (Entered: 01/14/2010)
01/13/2010		SUMMONS ISSUED as to John Weisser, Rafferty Asset Management, LLC, Direxion Shares ETF Trust, Daniel O'Neill, Todd Kellerman, Daniel J. Byrne, Gerlad E. Shanley, III. (ama) (Entered: 01/14/2010)
01/13/2010		CASE REFERRED TO Judge Richard J. Holwell as possibly Related to 1:09-cv-8011. (ama) (Entered: 01/14/2010)
01/13/2010		Case Designated ECF. (ama) (Entered: 01/14/2010)
01/26/2010		CASE ACCEPTED AS RELATED. Create association to 1:09-cv-08011-RJH. Notice of Assignment to follow. (ldi) (Entered: 01/28/2010)
01/26/2010	3	NOTICE OF CASE ASSIGNMENT to Judge Richard J. Holwell. Judge Unassigned is no longer assigned to the case. (ldi) (Entered: 01/28/2010)
01/26/2010		Magistrate Judge Andrew J. Peck is so designated. (ldi) (Entered: 01/28/2010)
01/27/2010	2	NOTICE OF APPEARANCE by Joanna Andrea Diakos on behalf of John Weisser, Rafferty Asset Management, LLC, Direxion Shares ETF Trust, Daniel O'Neill, Daniel J. Byrne, Gerlad E. Shanley, III (Diakos, Joanna) (Entered: 01/27/2010)
02/08/2010	4	STIPULATION WAIVING SERVICE AND EXTENDING TIME TO RESPOND TO SUMMONS AND COMPLAINT; that this action is subject to the Private Securities Litigation Reform Act ("Reform Act"), which requires the designation by the Court of a lead plaintiff as a prerequisite to further proceedings. See generally, 15 U.s,C. §§ 77z-l(a). Defendants Direxion Shares ETF Trust, Daniel D. O'Neill, Daniel J. Bryne, Gerald E. Shanley, III, John Weisser and Rafferty Asset Management, LLC hereby waive service, or any objection 10 service previously made, as applicable. Within 45 days of his, her, or its appointment by the Court, the lead plaintiff(s) shall file with the Court either a consolidated complaint or a notice confirming that such plaintiff will proceed on an existing complaint. Defendants shall have no obligation to answer, move or otherwise respond to any pleading in this action until 45 days from the date on which the Court- appointed lead plaintiff(s) takes either step outlined in paragraph 3. No defendant is presently obligated to respond to the Complaint. No previous requests for an extension have been made, and all parties hereto consent to the stipulation. (Signed by Judge Denny Chin on 1/29/10) (pl) (Entered: 02/08/2010)
03/15/2010	5	MOTION to Consolidate Cases 1:10-cv-00271, 1:10-cv-01273., MOTION to Appoint Howard Schwack to serve as lead plaintiff(s)., MOTION to Appoint Counsel -- Wolf Haldenstein Adler Freeman & Herz LLP as Lead Counsel. Document filed by Howard Schwack. (Attachments: # 1 Declaration of Service)(Bruckner, Gustavo) (Entered: 03/15/2010)
03/15/2010	6	MEMORANDUM OF LAW in Support re: 5 MOTION to Consolidate Cases 1:10-cv-00271, 1:10-cv-01273. MOTION to Appoint Howard Schwack to serve as lead plaintiff(s). MOTION to Appoint Counsel -- Wolf Haldenstein Adler Freeman & Herz LLP as Lead Counsel. MOTION to Appoint Howard Schwack to serve as lead plaintiff(s).. Document filed by Howard Schwack. (Bruckner, Gustavo) (Entered: 03/15/2010)
03/15/2010	7	DECLARATION of Gustavo Bruckner in Support re: 5 MOTION to Consolidate Cases 1:10-cv-00271, 1:10-cv-01273. MOTION to Appoint Howard Schwack to serve as lead plaintiff(s). MOTION to Appoint Counsel -- Wolf Haldenstein Adler Freeman & Herz LLP as Lead Counsel. MOTION to Appoint Howard Schwack to serve as lead plaintiff(s).. Document filed by Howard Schwack. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Bruckner, Gustavo) (Entered: 03/15/2010)
03/15/2010	8	MOTION to Consolidate Cases 10-cv-1273., MOTION to Appoint William Lee to serve as lead plaintiff(s)., MOTION to Appoint Counsel. Document filed by William Lee.(Brower, David) (Entered: 03/15/2010)
03/15/2010	9	MEMORANDUM OF LAW in Support re: 8 MOTION to Consolidate Cases 10-cv-1273. MOTION to Appoint William Lee to serve as lead plaintiff(s). MOTION to Appoint Counsel.. Document filed by William Lee. (Brower, David) (Entered: 03/15/2010)
03/15/2010	10	DECLARATION of Kenneth G. Gilman in Support re: 8 MOTION to Consolidate Cases 10-cv-1273. MOTION to Appoint William Lee to serve as lead plaintiff(s). MOTION to Appoint Counsel.. Document filed by William Lee. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Brower, David) (Entered: 03/15/2010)
04/01/2010	11	RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Document filed by John Weisser, Rafferty Asset Management, LLC, Direxion Shares ETF Trust, Daniel O'Neill, Daniel J. Byrne, Gerlad E. Shanley, III.(Diakos, Joanna) (Entered: 04/01/2010)
04/01/2010	12	RESPONSE to Motion re: 5 MOTION to Consolidate Cases 1:10-cv-00271, 1:10-cv-01273. MOTION to Appoint Howard Schwack to serve as lead plaintiff(s). MOTION to Appoint Counsel -- Wolf Haldenstein Adler Freeman & Herz LLP as Lead Counsel. MOTION to Appoint Howard Schwack to serve as lead plaintiff(s)., 8 MOTION to Consolidate Cases 10-cv-1273. MOTION to Appoint William Lee to serve as lead plaintiff(s). MOTION to Appoint Counsel.. Document filed by John Weisser, Rafferty Asset Management, LLC, Direxion Shares ETF Trust, Daniel O'Neill, Daniel J. Byrne, Gerlad E. Shanley, III. (Diakos, Joanna) (Entered: 04/01/2010)
04/01/2010	13	MOTION to Consolidate Cases 1:09-cv-8011, 1:09-cv-8375, 1:09-cv-8459, 1:10-cv-00271 and 1:10-cv-01273. Document filed by John Weisser, Rafferty Asset Management, LLC, Direxion Shares ETF Trust, Daniel O'Neill, Daniel J. Byrne, Gerlad E. Shanley, III.(Diakos, Joanna) (Entered: 04/01/2010)
04/01/2010	14	MEMORANDUM OF LAW in Support re: 13 MOTION to Consolidate Cases 1:09-cv-8011, 1:09-cv-8375, 1:09-cv-8459, 1:10-cv-00271 and 1:10-cv-01273.. Document filed by John Weisser, Rafferty Asset Management, LLC, Direxion Shares ETF Trust, Daniel O'Neill, Daniel J. Byrne, Gerlad E. Shanley, III. (Diakos, Joanna) (Entered: 04/01/2010)
04/01/2010	15	JOINT MEMORANDUM OF LAW in Support re: 5 MOTION to Consolidate Cases 1:10-cv-00271, 1:10-cv-01273. MOTION to Appoint Howard Schwack to serve as lead plaintiff(s). MOTION to Appoint Counsel -- Wolf Haldenstein Adler Freeman & Herz LLP as Lead Counsel. MOTION to Appoint Howard Schwack to serve as lead plaintiff(s)., 8 MOTION to Consolidate Cases 10-cv-1273. MOTION to Appoint William Lee to serve as lead plaintiff(s). MOTION to Appoint Counsel. HOWARD SCHWACK AND WILLIAM LEE'S JOINT SUBMISSION FOR CONSOLIDATION, APPOINTMENT AS LEAD PLAINTIFF, AND LEAD PLAINTIFF'S SELECTION OF CO-LEAD COUNSEL. Document filed by Howard Schwack, William Lee. (Attachments: # 1 Declaration of Service)(Bruckner, Gustavo) (Entered: 04/01/2010)
04/01/2010	16	DECLARATION of Joanna A. Diakos in Support re: 13 MOTION to Consolidate Cases 1:09-cv-8011, 1:09-cv-8375, 1:09-cv-8459, 1:10-cv-00271 and 1:10-cv-01273.. Document filed by John Weisser, Rafferty Asset Management, LLC, Direxion Shares ETF Trust, Daniel O'Neill, Daniel J. Byrne, Gerlad E. Shanley, III. (Attachments: # 1 Continuation of Declaration of Joanna A. Diakos in Support of Defendants' Motion to Consolidate or Coordinate)(Diakos, Joanna) (Entered: 04/01/2010)
04/19/2010	17	MEMORANDUM OF LAW in Opposition re: 13 MOTION to Consolidate Cases 1:09-cv-8011, 1:09-cv-8375, 1:09-cv-8459, 1:10-cv-00271 and 1:10-cv-01273. PLAINTIFFS' JOINT MEMORANDUM IN RESPONSE TO DEFENDANTS' MOTION TO CONSOLIDATE OR COORDINATE CASES. Document filed by Howard Schwack, William Lee. (Attachments: # 1 Declaration of Service)(Bruckner, Gustavo) (Entered: 04/19/2010)
04/29/2010	18	REPLY MEMORANDUM OF LAW in Support re: 13 MOTION to Consolidate Cases 1:09-cv-8011, 1:09-cv-8375, 1:09-cv-8459, 1:10-cv-00271 and 1:10-cv-01273.. Document filed by John Weisser, Rafferty Asset Management, LLC, Direxion Shares ETF Trust, Daniel O'Neill, Daniel J. Byrne, Gerlad E. Shanley, III. (Diakos, Joanna) (Entered: 04/29/2010)
08/12/2010		CONSOLIDATED MEMBER CASE: Create association to 1:09-cv-08011-RJH.. (jpo) (Entered: 08/12/2010)
08/12/2010	19	MEMORANDUM OPINION AND ORDER: For these reasons, above-captioned actions are consolidated for pre-trial purposes. The caption of the Consolidated Action shall be "In re Direxion Shares ETF Trust." All relevant documents and submissions shall be maintained as one file under Master File No. 09-cv-08011(RJH). The Clerk of the Court is directed to close the following four docket entries: 09cv08375, 09cv8459, 10cv00271 and 10cv00273. The parties are directed to submit a joint stipulation concerning the filing of any consolidated amended complaint and a proposed case management plan within thirty (30) days of this Order. Evan Stoopler is hereby appointed as lead plaintiff, and Fedennan & Shenvood is appointed as lead counsel. to represent holders of the FAZ Fund. Howard Schwack and William Lee are appointed as co-lead plaintiffs, and Wolf Haldenstein Adler Freeman & Herz LLP and Gilman and Pastor LLP are appointed as co-lead counsel, to represent holders of the ERY Fund. The Court reserves the right to modify this lead plaintiff structure in the event that it becomes unmanageable. The Clerk of the Court is directed to terminate all pending motions in the five above-captioned actions. (Signed by Judge Richard J. Holwell on 8/12/2010) Filed In Associated Cases: 1:09-cv-08011-RJH, 1:09-cv-08375-RJH, 1:09-cv-08459-RJH, 1:10-cv-00271-RJH, 1:10-cv-00273-SHS(jpo) (Entered: 08/12/2010)
08/16/2010	20	CORRECTED MEMORANDUM OPINION AND ORDER: For these reasons, above-captioned actions are consolidated for pre-trial purposes. The caption of the Consolidated Action shall be "In re Direxion Shares ETF Trust." All relevant documents and submissions shall be maintained as one file under Master File No. 09-cv-08011(RJH). The Clerk of the Court is directed to close the following four docket entries: 09cv08375, 09cv8459, 10cv00271 and 10cv01273. The parties are directed to submit a joint stipulation concerning the filing of any consolidated amended complaint and a proposed case management plan within thirty (30) days of this Order. Evan Stoopler is hereby appointed as lead plaintiff, and Fedennan & Shenvood is appointed as lead counsel. to represent holders of the FAZ Fund. Howard Schwack and William Lee are appointed as co-lead plaintiffs, and Wolf Haldenstein Adler Freeman & Herz LLP and Gilman and Pastor LLP are appointed as co-lead counsel, to represent holders of the ERY Fund. The Court reserves the right to modify this lead plaintiff structure in the event that it becomes unmanageable. The Clerk of the Court is directed to terminate all pending motions in the five above-captioned actions. (Signed by Judge Richard J. Holwell on 8/12/2010) Filed In Associated Cases: 1:09-cv-08011-RJH, 1:09-cv-08375-RJH, 1:09-cv-08459-RJH, 1:10-cv-00271-RJH, 1:10-cv-01273-RJH(jmi) (Entered: 08/16/2010)

Note: Links in this docket are stored in the PACER system (Public Access to Court Electronic Records). PACER is a service of United States Judiciary. To view and retrieve the linked documents from PACER, you must be a registered user. To register, fill out one of the registration forms available on the PACER site. The United States Congress has given the Judicial Conference of the United States, the judicial governing body of the U.S. Federal Courts, authority to impose user fees for electronic access to case information. For more information visit the PACER site at http://pacer.psc.uscourts.gov/pacerdesc.html