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In re Facebook, Inc.

United States District Court, S.D. New York

August 26, 2014

IN RE FACEBOOK, INC., IPO SECURITIES AND DERIVATIVE LITIGATION

Decided Date: August 22, 2014.

For Lead Plaintiffs: Vincent R. Cappucci, Esq., Jordan A. Cortez, Esq., Evan T. Raciti, Esq., Alexander F. Schlow, Esq., ENTWISTLE & CAPPUCCI LLP, New York, NY; Douglas G. Thompson, Jr., Esq., Michael G. McLellan, Esq., FINKELSTEIN THOMPSON LLP, Washington, D.C.; Christopher Lovell, Esq., Victor E. Stewart, Esq., LOVELL STEWART HALEBIAN JACOBSON LLP, New York, NY.

For Defendants: William A. Slaughter, Esq., Stephen J. Kastenberg, Esq., Paul Lantieri III, Esq., BALLARD SPAHR LLP, Philadelphia, PA.

Page 557

OPINION & ORDER

ROBERT W. SWEET, United States District Judge.

Lead plaintiffs First New York Securities L.L.C., T3 Trading Group, LLC, Avatar Securities, LLC, Philip Goldberg, Steve Jarvis, Atish Gandhi, Colin Suzman, Meredith Bailey, and Faisal Sarni (the " Lead Plaintiffs" ) have moved for an order compelling defendants the NASDAQ OMX Group, Inc. (" NASDAQ OMX" ), the NASDAQ Stock Market LLC (" NASDAQ LLC" and collectively with NASDAQ OMX, " NASDAQ" ), NASDAQ OMX's Chief Executive Officer Robert Greifeld (" Greifeld" ), and NASDAQ OMX's highest-ranking technology officer Anna M. Ewing (" Ewing," collectively with Griefeld and NASDAQ, the " Defendants" ) to produce certain materials, referred to as the " Phase One Discovery Materials," [1] within thirty (30) days of the Court's order, or on such schedule as may be otherwise agreed to by the parties.

Based on the conclusions set forth below, Lead Plaintiffs' motion is denied.

Background and Prior Proceedings

Familiarity with the general background of this case and prior litigation between the parties is assumed and set forth in the December 12, 2013 Opinion (" December 12 Opinion" ) and February 14, 2014 Opinion & Order (Dkt. No. 206) (" February 14 Opinion" ). In re Facebook, Inc., IPO Securities and Derivative Litigation, 986 F.Supp.2d 428 (S.D.N.Y. 2013); Dkt. No. 206. Certain facts and allegations are repeated in part as relevant to the issues presented by the instant motion.

On February 14, 2014, NASDAQ filed a timely notice of appeal from the Court's December 12 Opinion, which was appealable as of right to the extent it denied NASDAQ's claim of immunity. In January 2014, Lead Plaintiffs asked the Court to require production of documents submitted to the Security and Exchange Commission (" SEC" ) during the SEC's investigation of NASDAQ's handling of Facebook, Inc.'s initial public offering and other issues. The Court ruled that " immunity rulings are appealable as of right under the collateral order doctrine and divest the Court of jurisdiction while the appeal is pending." (February 14 Op. at 4.)

The instant motion was filed on April 24, 2014 and was marked fully submitted on May 7, 2014.

Applicable Standard

Motions to compel are " entrusted to the sound discretion of the district court." United States v. Sanders, 211 F.3d 711, 720 (2d Cir. 2000); see also In re DG Acquisition Corp., 151 F.3d 75, 79 (2d Cir. 1998) ...


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