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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

In re ADVANCED BATTERY TECHNOLOGIES, INC. SECURITIES LITIGATION

: : : : : :

Master File No.: 11 Civ. 2279 (CM)

LEAD PLAINTIFFS COMBINED REPLY MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO FILE SECOND AMENDED CONSOLIDATED CLASS ACTION COMPLAINT

POMERANTZ GROSSMAN HUFFORD DAHLSTROM & GROSS LLP 600 Third Avenue New York, NY 10016 Telephone: (212) 661-1100 Fax: (212) 661-8665 Lead Counsel and Proposed Class Counsel

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TABLE OF CONTENTS TABLE OF CONTENTS................................................................................................................. i TABLE OF AUTHORITIES .......................................................................................................... ii I. INTRODUCTION ................................................................................................................... 1

II. ARGUMENT .......................................................................................................................... 2 A. Plaintiffs Have Adequately Alleged Scienter As To The Auditor Defendants ..........................................................................................................................2 1. Bagell Josephs .............................................................................................................4 2. EFP..............................................................................................................................8 B. The Complaint Sufficiently Pleads Loss Causation .........................................................10 III. CONCLUSION ..................................................................................................................... 11

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TABLE OF AUTHORITIES CASES Anwar v. Fairfield Greenwich Ltd., 728 F. Supp. 2d 372 (S.D.N.Y. 2010)................................................................................. 6 Dura Pharms., Inc. v. Broudo, 544 U.S. 336 (2005) .................................................................... 10 In re Advanced Battery Techs., Inc. Sec. Litig., No. 11 Civ. 2279, 2012 U.S. Dist. LEXIS 123757 (S.D.N.Y. Aug. 29, 2012) ...................................... 2, 8, 10 In re Beacon Assoc. Litig., 745 F. Supp. 2d 386 (S.D.N.Y. 2010) ................................................. 2 In re Bear Stearns Cos., Inc. Sec., Deriv., & ERISA Litig., 763 F. Supp. 2d 423 (S.D.N.Y. 2011)............................................................................... 10 In re Doral Fin. Corp. Sec. Litig., 563 F. Supp. 2d 461(S.D.N.Y. 2008)............................................................................ 4, 10 In re J.P. Jeanneret Assocs., 769 F. Supp. 2d 340 (S.D.N.Y. 2011) .............................................. 6 In re MRU Holdings Sec. Litig., 769 F. Supp. 2d 500 (S.D.N.Y. 2011)................................................................................. 6 In re Philip Services Corp. Sec. Litig., F. Supp. 2d 463 (S.D.N.Y. 2004)........................................................................................ 3 In re Refco, Inc. Sec. Litig., 503 F. Supp. 2d 611 (S.D.N.Y. 2007)................................................ 4 In re Scottish Re Group Sec. Litig., 524 F. Supp. 2d 370 (S.D.N.Y. 2007)................................................................................. 9 In re Suprema Specialities, Inc. Sec. Litig., 438 F.3d 256 (3d Cir. 2006)............................................................................................... 4 In re Tremont Secs. Law, 703 F. Supp. 2d 362 (S.D.N.Y. 2010) ................................................... 6 Katz v. Image Innovations Holdings, Inc., 542 F. Supp. 2d 269 (S.D.N.Y. 2008)................................................................................. 4 Penn Ave. Funds v. Inyx, Inc., No. 08 Civ. 6857, 2010 U.S. Dist. LEXIS 19177 (S.D.N.Y.) ......................................................................... 9 Roth v. Jennings, 489 F.3d 499 (2d Cir. 2007) ............................................................................... 7 Rothman v. Gregor, 220 F.3d 81 (2d Cir. 2000)............................................................................. 6

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Scott v. ZST Digital Networks, Inc., No. CV 11-0353, 2012, U.S. Dist. LEXIS 19392 (C.D. Cal. Feb. 14, 2012) ............................................................ 5 South Cherry St., LLC v. Hennessee Group LLP, 573 F.3d 98 (2d Cir. 2009).................................................................................................. 6 Stephenson v. Pricewaterhousecoopers, LLP, 768 F. Supp. 2d 562 (S.D.N.Y. 2011)................................................................................. 6 The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932) ................................................................................. 7 RULES Fed. R. Civ. P. 12(b)(6)............................................................................................................... 1, 7 Fed. R. Civ. P. 12(d) ....................................................................................................................... 7 Fed. R. Civ. P. 8 ............................................................................................................................ 10

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Lead Plaintiff Ruble Sanderson and Proposed Plaintiff Federico Schmid (Plaintiffs) respectfully submit this Reply Memorandum in further support of their Motion for Leave to File their Second Amended Consolidated Class Action Complaint (Dkt. No. 96) and in response to the memoranda by Bagell, Josephs, Levine & Company, LLC and Friedman LLP (collectively, Bagell Josephs or Bagell) and EFP Rotenberg (EFP) (collectively, the Auditor Defendants) in opposition to same (Dkts. Nos. 100 & 101, respectively). I. INTRODUCTION

Following the Courts guidance, Plaintiffs have supplemented their Corrected First Amended Consolidated Class Action Complaint (Dkt. No. 52) (the First Amended Complaint or FAC) and further buttressed their allegations against the Auditor Defendants through the use of a highly-qualified accounting expert. In determining whether Plaintiffs should be granted leave to file their Second Amended Consolidated Class Action Complaint (the SAC), the Court must consider whether the factual allegations contained in the SAC, and which the Court must accept as true, make a plausible, non-futile showing that Plaintiffs will be entitled to relief. The Court should answer that question in the affirmative. In re-pleading scienter and loss causation against the Auditor Defendants, Plaintiffs have marshaled the appropriate auditing standards, facts, and expert findings sufficient to allege the Auditor Defendants respective involvement in Advanced Battery Technologies, Inc.s (ABAT or the Company) securities fraud. Even though the Auditor Defendants have conceded the falsity of their audit opinions, they continue to argue that Plaintiffs have not demonstrated scienter and/or loss causation.1

As discussed, infra, the futility of a proposed amendment to a pleading is governed by Fed. R. Civ. P. 12(b)(6). Accordingly, Plaintiffs request that the Court treat the Auditor Defendants briefs in opposition to the proposed amendment as motions to dismiss for failure to state a claim and, should the SAC be upheld, bar the Auditor Defendants from a second bite at the apple via any future Rule 12(b)(6) motions directed at the SAC.
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These arguments miss their mark. For its part, Bagell Josephs goes beyond particularity by issuing erroneous demands that Plaintiffs prove when and where its auditors reviewed specific documents. In fact, Plaintiffs allegations have placed Bagells auditors in the same room with those documents and adequately plead that Bagells failure to act on those documents amounted to their having done no audit at all, specifically when considered in the context of the appropriate professional standards that govern auditors. Furthermore, as this Court has recognized, Bagells attempts to make Plaintiffs prove loss causation are premature as a matter of law. Meanwhile, EFP wrongly relies on the possibility of a competing inference to escape liability, when Plaintiffs well-pleaded allegations (which must be accepted as true) show that the most plausible scenario is that EFP conducted an utterly deficient audit that failed to uncover a massive insider fraud that even the most minimal effort would detect. Plaintiffs motion should be granted. II. A. ARGUMENT

Plaintiffs Have Adequately Alleged Scienter As To The Auditor Defendants As this Court noted in the August 29, 2012 Order, a strong inference of scienter can be

shown by (1) demonstrating that a defendant had motive and opportunity to commit fraud, or (2) providing evidence of conscious recklessness. (Aug. 29, 2012 Decision and Order (Dkt. No. 90) at 19 (the Order)); In re Advanced Battery Techs., Inc. Sec. Litig., No. 11 Civ. 2279, 2012 U.S. Dist. LEXIS 123757, at *31-32 (S.D.N.Y. Aug. 29, 2012) (citing In re Beacon Assoc. Litig., 745 F. Supp. 2d 386, 404 (S.D.N.Y. 2010)). For Section 10(b) claims against auditors, the scienter requirement is met by alleging, as it is alleged here, that the accounting practices were so deficient that the audit amounted to no audit at all, or an egregious refusal to see the obvious, or investigate the doubtful, or that the accounting judgments which were made were such that no reasonable accountant would have
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made the same decisions if confronted with the same facts. In re Philip Services Corp. Sec. Litig., 383 F. Supp. 2d 463, 475 (S.D.N.Y. 2004) (citations omitted) (emphasis added). Here, the SAC sufficiently alleges that the auditor defendants behavior constituted no audit at all and an egregious refusal to see the obvious or investigate the doubtful. The SAC includes the analysis of Dr. Barry Jay Epstein, an expert in accounting matters, who explained that under these circumstances it was extremely reckless for Bagell to fail to obtain and review the Companys AIC filings in China: no reasonable auditor would have failed to obtain ABATs AIC filings and reconcile them with ABATs wildly divergent SEC filings. Bagell Josephs failure to do so was an extreme departure from the reasonable standards of care it was obligated to meet as ABATs auditor and constituted a willful disregard of the professional standards and a breach of the duty to conduct the examinations with due professional care and attitude of professional skepticism. [ 149 (emphasis added).] Moreover, the SAC alleges, and Bagell Josephs admits, staff auditors [who were based in the suburbs of southern New Jersey], including some native Chinese [speaking] auditors, travelled to ABATs facilities in China to conduct the audit . . . . (Bagell Opp. at 12 (citing 146)). The SAC further alleges that these auditors presumably relied on the same underlying financial records and data, such as documents necessary to substantiate ABATs claimed revenues, that had formed the basis for ABATs AIC filings, but that the same underlying financial records and data inexplicably yielded dramatically different results for ABATs U.S. SEC filings. 166. The same underlying financial data simply cannot generate two wildly inconsistent sets of financial reports, particularly given the lack of any material differences between U.S. and Chinese accounting standards with respect to the areas at issue here. 167. It therefore defies common sense to infer that, in such circumstances, Bagell did not see evidence making it

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obvious that ABAT was reporting different financial results to different regulators. That the disparities were so massive makes the inference even less plausible. Further, there is no evidence that ABAT withheld the true facts or the underlying financial data from Bagell, and Bagell does not argue otherwise. This was not a situation excusing the auditor from liability based on client deception. In re Doral Fin. Corp. Sec. Litig., 563 F. Supp. 2d 461, 465-66 (S.D.N.Y. 2008). 1. Bagell Josephs Bagell Josephs argues that Plaintiffs allegations against it are premised on mere access to AIC filings as opposed to whether Bagell Josephs was aware of the AIC filings[.] (Bagell Opp. at 11). However, actual awareness is not necessary for auditor liability to attach if an auditors actions lack reasonable basis, where, as here, the SAC alleges facts strongly suggesting that the audits at issue amounted to no audit at all. See, e.g., In re Refco, Inc. Sec. Litig., 503 F. Supp. 2d 611, 657 (S.D.N.Y. 2007) (auditors ignorance of fraud could only have happened as a result of audit procedures that were so substandard that the auditors would have to have known they were substandard); see also In re Suprema Specialities, Inc. Sec. Litig., 438 F.3d 256, 27980 (3d Cir. 2006) (financial shenanigans were hiding in plain sight, and even a cursory inquiry would have disclosed that the address for [the audit clients largest customer] in [the audit clients] business records was not the same as [the customers] address available in public records . . . ) (emphasis added). Katz v. Image Innovations Holdings, Inc., 542 F. Supp. 2d 269 (S.D.N.Y. 2008) is particularly instructive. There, the court found that the auditor was in a position at the time of the original audit to validate sales based on shipping documentation, invoices, and other available information . . . , yet most of the sales lacked shipping documentation and many purported customers had no knowledge of the sales, which alerted or should have alerted [the auditor], absent recklessness, to the fictitious sales. Id. at 271, 275 (emphasis added). Likewise,
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if Bagell Josephs did not know about the inconsistent AIC/SEC filings alerting it to overstated revenues and net income ( 64),2 then Bagell was reckless in not doing so. Bagells reliance on Scott v. ZST Digital Networks, Inc., No. CV 11-0353, 2012 U.S. Dist. LEXIS 19392 (C.D. Cal. Feb. 14, 2012) (cited in Bagell Opp. at 11), which also featured divergent AIC and SEC filings, is unavailing. In ZST Digital Networks, plaintiff was unable to allege that the auditor had any knowledge of the existence of the SAIC reports, nor that it ignored their divergent revenue figures, nor that being ignorant of their existence constituted an egregious refusal to see the obvious, or to investigate the doubtful. Id. at *31. Here, by contrast, the SAC alleges that the auditors failure to review the AIC filings was an extreme departure from the reasonable standards of care it was obligated to meet as ABATs auditor and constituted a willful disregard of the professional standards and a breach of the duty to conduct the examinations with due professional care and attitude of professional skepticism, ( 149), allegations that satisfy the standard set forth in ZST Digital Networks. Moreover, the plaintiffs in ZST Digital Networks lacked the additional allegation that is present here, i.e., that a team of their U.S. auditors (including native Chinese speaking auditors) traveled to China for the express purpose of carrying out an audit there, and did so. Id. In sum, [a]s a result of the Auditor Defendants failure to perform its audits in accordance with PCAOB standards, its audits did not provide a reasonable basis for its opinions. 108. If Bagell had done its job in China at all, it must have reviewed the AIC filings. The other cases cited by Bagell Josephs, where the plaintiffs failed to identify reports or statements containing contrary information, are distinguishable because the information was not

Unless otherwise noted, all references are to paragraphs in the SAC.

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actually contrary to the auditors statements,3 the information was unique to the company,4 or the auditor was not engaged to audit the primary violator.5 As discussed above, Bagell Josephs was heavily involved in ABATs Chinese audits, even sending Mandarin-fluent Bagell auditors to China to conduct the audit work, (see Bagell Opp. at 12). Bagell also argues, purportedly based on the growing body of Chinese reverse merger litigation that the SAC is insufficient to actually establish that every reasonable auditor would review the AIC filings. (Bagell Opp. at 10) (emphasis added). In support of its argument, Bagell has included in its opposition papers, as Exhibit A, a list of thirty other lawsuits where plaintiffs alleged differences between AIC and SEC filings as evidence of a material misstatement or fraud. (Bagell Opp. at 14). Bagell suggests that, because the auditors in other cases presumably also failed to reconcile the SEC/AIC filings, Bagell cannot be considered to have unreasonably departed from the applicable standard of care.

In re MRU Holdings Sec. Litig., 769 F. Supp. 2d 500, 518-19 (S.D.N.Y. 2011) (plaintiff failed to allege what the auditor did or failed to do with nebulous information in a closing binder for the clients securitization at issue, or how that would have made any difference given the collapse of the market for the type of securities at issue).

Rothman v. Gregor, 220 F.3d 81, 91 (2d Cir. 2000) (auditor would have been able to detect overstatement of revenue only if it was aware of a unique sales pattern, about which plaintiff failed to allege the auditor had knowledge). Bagell Josephs reliance on Stephenson and similar Madoff decisions is misplaced. There, the plaintiffs tried to attribute liability for the Madoff fraud to auditors that had audited feeder funds that invested in Madoff. Thus, these auditors were one step removed from the underlying Madoff fraud and did not have equivalent access to financial results of firms that it was not engaged to audit. See Stephenson v. Pricewaterhousecoopers, LLP, 768 F. Supp. 2d 562, 624 (S.D.N.Y. 2011); In re Tremont Secs. Law, 703 F. Supp. 2d 362, 370 (S.D.N.Y. 2010) (But most critically, the auditors were never engaged to audit Madoffs business or to issue an opinion on the financial statements of [Madoffs investment company].). See also EFP Opp. at 14 n.5 (additionally citing In re J.P. Jeanneret Assocs., 769 F. Supp. 2d 340, 366 (S.D.N.Y. 2011); Anwar v. Fairfield Greenwich Ltd., 728 F. Supp. 2d 372, 453 (S.D.N.Y. 2010); South Cherry St., LLC v. Hennessee Group LLP, 573 F.3d 98 (2d Cir. 2009).
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As an initial matter, Bagells reliance on Exhibit A is plainly improper because it is outside of the pleadings. See Fed. R. Civ. P. 12(d). If, on a motion under Rule 12(b)(6), matters outside the pleading are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). The Exhibit A submitted by Bagell is not part of the pleadings for purposes of Rule 12(d), and should be disregarded by the Court. Even if the Court did consider Exhibit A, Bagells argument is a red herring. Plaintiffs only seek to establish the reasonableness standard with respect to Bagell itself, not the entire world. The existence of other litigation involving disparate SEC/AIC filings, standing alone, is evidence of nothing and thus cannot dispel the inference regarding Bagell Josephs specific liability in this action. For instance, as Bagell concedes, the auditors were not even sued in many of the cases listed in Exhibit A; thus, no one knows what those auditors did. In fact, they could very well have reconciled the disparate filings. Moreover, the cases listed in Exhibit A, while sharing some basic elementssuch as the existence of disparate SEC/AIC filings and auditors also involve different companies, different auditors, and their own unique iterations of the relevant facts. In any event, an entire industry is entirely capable of acting wrongly. Even custom does not conclusively establish the duty of care standard. See, e.g., The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932) (there are precautions so imperative that even their universal disregard will not excuse their omission.). Finally, Bagell Josephs argues that Plaintiffs re-pleading of ABATs non-ownership of Heilongjiang ZhongQiang PowerTech Co., Ltd. (HLJ ZQPT), and Bagells certifications to the

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contrary, remain inactionable. (Bagell Opp. at 16). Where Bagell contends that Plaintiffs have not attempt[ed] to improve their allegations concerning HLJ ZQPT (Bagell Opp. at 16), it fails to comprehend that the HLJ ZQPT allegation is predicated on Bagells failure to review relevant documentation [which] would have shown that ABAT did not own HLJ ZQPT between 2004 and 2009, despite representations to the contrary in its filings. 169. And, in fact, that failure-to-review-documents claim has been strengthened through Dr. Epsteins findings reflected in the SAC that such conduct represents such a drastic departure from auditors ordinary standard of care as to be actionable. 148 (Dr. Epsteins analyses are incorporated with respect to all allegations regarding the Auditor Defendants set forth below.). 2. EFP EFP argues that Plaintiffs have failed to bolster significantly their allegations with respect to EFPs scienter of the illegitimacy of the Shenzhen transaction, as required by the [August 29, 2012] Decision and Order (EFP Opp. at 3). But Plaintiffs need not bolster their substantive allegations against EFP. In fact, the Court recognized in its August 29th Decision and Order that: One (potentially) important difference is that EFP, unlike Bagell Josephs, audited ABATs 2010 financial statements that announced the Shenzhen transaction. EFPs duty to familiarize itself with the particulars of that transaction thus differ in important respects from Bagell Josephs duty. Order at 38; Advanced Battery Techs., 2012 U.S. Dist. LEXIS 123757, at *62.6

The dismissal of the portion of the claim relating to EFPs liability for Shenzhen appears to have been based on a procedural issue, namely, that the then-named plaintiffs purchased their ABAT shares before EFP issued its audit of ABATs financial results on March 16, 2011. (Order at 38; Advanced Battery Techs., 2012 U.S. Dist. LEXIS 123757, at *63). This issue has been remedied via the proposed addition of Mr. Schmid, at the Courts invitation. See Order at 39; Advanced Battery Techs., 2012 U.S. Dist. LEXIS 12375, at *65 (EFP has presented me with no reason why I should not allow [Plaintiffs] to name an additional plaintiff, one capable of pleading a stock purchase made after March 16, 2011 in reliance on EFPs allegedly false
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Thus, this Court recognized that liability for the Shenzhen transaction could attach to EFP. While EFP argues that the inference that EFP was kept in the dark, just as investors were, is more compelling than the inference that EFP recklessly disregarded the fraud, (EFP Opp. at 12), there is no evidence that ABAT withheld any information from its auditors concerning the Shenzhen transaction. In fact, the opposite inference is more plausible that the true facts regarding Shenzhen were open and obvious for EFP to see, had it conducted any audit at all. Shenzhen was a highly significant transaction, with ABAT reporting that it paid $20 million for Shenzhen in 2010 ( 78-79), an amount approximating 21% of ABATs purported $97 million in 2010 revenues. 61. The importance of this transaction further strengthens the inference that EFPs failure to uncover the related party nature of the deal was not mere negligence, but rather, extreme recklessness. In re Scottish Re Group Sec. Litig., 524 F. Supp. 2d 370, 394 (S.D.N.Y. 2007) (GAAP violations and applicable auditing standards taken on even more significance given the size, nature, and context of the misapplication of GAAP and misstatements at issue.) Here, had EFP done the bare minimum and obtained the underlying documentation for Shenzhen, it would have observed that Defendant Zhiguo Fu, the Companys Chairman and CEO, was involved in the transaction and profiting mightily from it. For instance, ABAT made a deposit payment relating to this transaction in 2010, which is within EFPs audit period.7 79. Had EFP simply confirmed the payment, it would have seen that the money was going to Fu.

statements.). Now, with Mr. Schmid in the litigation, the Court can (and should) fully weigh the issue of EFPs liability with respect to Shenzhen.
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EFP cites to Penn Ave. Funds v. Inyx, Inc., No. 08 Civ. 6857, 2010 U.S. Dist. LEXIS 19177 (S.D.N.Y.) for the proposition that there is no auditor scienter where no fraudulent activity occurred during the period for which the auditor issued an audit report. However, here, EFPs audit report covered 2010, a period in which EFP made a deposit relating to Shenzhen, a fraudulent transaction.
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EFPs attempt to analogize this case to In re Doral Fin. Corp. Sec. Litig., 563 F. Supp. 2d at 465-66, in which contrary information was not accessible to the auditor because the clients highest levels of management surreptitiously mask[ed] the true terms and conditions of transactions, is misplaced. In fact, the opposite inference is much stronger here, i.e., that EFP recklessly disregarded information it was duty-bound to obtain, without any need for ABAT to keep it in the dark. B. The Complaint Sufficiently Pleads Loss Causation All that is required to plead loss causation under Fed. R. Civ. P. 8 is a short and plain statement of the claim showing that the pleader is entitled to relief. In re Bear Stearns Cos., Inc. Sec., Deriv, & ERISA Litig., 763 F. Supp. 2d 423, 505 (S.D.N.Y. 2011) (citation omitted). A complaint need only provide the defendant with some indication of the loss and the causal connection that the plaintiff has in mind. Id. (quoting Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005)). Bagell Josephs disclaims responsibility for the stock losses caused by report published by Variant View (Variant Report), for the wholly unsupported reason that only the HLJZQPT allegation in the Report (via the SAC) could apply to it. (Bagell Opp. at 17). Yet the Variant Report broadly attacked the integrity of the Companys financial statements as a whole, which directly implicates the auditor opinions that blessed the falsities. More importantly, this Court has already ruled that the Variant Report was an appropriate corrective disclosure, rejecting similar arguments by the ABAT Defendants. See Order at 22-23; Advanced Battery Techs., 2012 U.S. Dist. LEXIS 123757, at **35-36.

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III.

CONCLUSION

Based on the foregoing, Plaintiffs respectfully request that the Court issue an Order granting Plaintiffs leave to file their Second Amended Consolidated Class Action Complaint and granting such other and further relief as the Court may deem just and proper. Dated: November 5, 2012 Respectfully submitted, POMERANTZ GROSSMAN HUFFORD DAHLSTROM & GROSS LLP /s/ Murielle Steven Walsh Marc I. Gross Murielle Steven Walsh Marie L. Oliver 600 Third Avenue New York, NY 10016 Telephone: (212) 661-1100 Fax: (212) 661-8665 migross@pomlaw.com mjsteven@pomlaw.com mloliver@pomlaw.com

Lead Counsel and Proposed Class Counsel

William B. Federman FEDERMAN & SHERWOOD 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Telephone: (405) 235-1560 Facsimile: (405) 239-2112 - and 2926 Maple Avenue, Suite 200 Dallas, Texas 75201 Laurence Rosen THE ROSEN LAW FIRM, P.A. 275 Madison Avenue, 34th Floor New York, New York 10016 Telephone: (212) 686-1060 Facsimile: (212) 202-3827

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Federal Rule of Civil Procedure 6(a)(3) Statement Pursuant to S.D.N.Y. Local Rule 6.1, replies on non-discovery motions are due seven days after opposition papers are filed. With respect to the present motion, Defendants

opposition papers were filed on October 22, 2012. Accordingly, under Local Rule 6.1, the foregoing reply was initially due on October 29, 2012. However, following the extraordinary damage and disruption in the New York City metropolitan area, caused by Hurricane Sandy, Chief Judge Preska, on October 31, 2012, issued an Order pursuant to Fed. R. Civ. P. 6(a)(3), stating, in pertinent part, that . the clerks office is deemed to be inaccessible from October 29 through and including November 4, 2012, for the purposes of 1) filing any appeal from the United States District Court for the Southern District of New York to the Court of Appeals for the Second Circuit, and 2) filing any paper in a case pending in this Court. [In the Matter of The Extension of Certain Deadlines in Civil Cases as a Result of Hurricane Sandy and Court Closure, at *2 (S.D.N.Y. Oct. 31, 2012) (emphasis added).] The Order goes on to instruct that there is no need to file a motion for extension of deadlines between October 29, 2012 and November 4, 2012, inclusive. Id. Because that period

encompasses the date on which the instant reply was originally due, the undersigned (1) has not filed a motion for extension of time herewith and (2) attests herein that the foregoing is timely filed in accordance with the express guidance of this Court.

/s/ Murielle Steven Walsh Murielle Steven Walsh

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