UNTED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

MINNEAPOLIS FIREFIGHTERS’ RELIEF 

ASSOCIATION, on behalf of itself and all others 

similarly situated, 

 Plaintiff, 

 vs. 

BRISTOL-MYERS SQUIBB COMPANY, 

PETER R. DOLAN, and ANDREW R.J. 

BONFIELD, 

 Defendants. 

Case No. 07-CV-5867 (PAC) 

ELECTRONICALLY FILED

JEAN LAI, Individually and On behalf of All 

Others Similarly Situated, 

 Plaintiff, 

 vs. 

BRISTOL-MYERS SQUIBB COMPANY, 

PETER R. DOLAN and ANDREW R. J. 

BONFIELD, 

 Defendants.

Case No. 07-CV-6259 (PAC) 

MEMORANDUM OF LAW IN SUPPORT OF THE MOTION OF ONTARIO 

TEACHERS’ PENSION PLAN BOARD FOR (1) APPOINTMENT AS LEAD 

PLAINTIFF; (2) APPROVAL OF ITS SELECTION OF COUNSEL AS LEAD 

COUNSEL FOR THE CLASS; AND (3) CONSOLIDATION OF ALL RELATED 

ACTIONS 

Case 1:07-cv-05867-PAC Document 11 Filed 08/27/2007 Page 1 of 14
TABLE OF CONTENTS

 Page

Preliminary Statement......................................................................................................... 1

Factual and Procedural Background ................................................................................... 2 

ARGUMENT...................................................................................................................... 5

I. Ontario Teachers Should Be Appointed Lead Plaintiff ............................................. 5 

 a. Ontario Teachers Believes That It Has The Largest 

 Financial Interest in the Relief Sought by the Class......................................... 5 

 b. Ontario Teachers Otherwise Satisfies the Requirements of Rule 23................ 7 

II. The Court Should Approve Ontario Teachers’ Selection of Lead Counsel............. 10 

III. The Related Actions Should be Consolidated ......................................................... 11 

CONCLUSION................................................................................................................. 11 

Case 1:07-cv-05867-PAC Document 11 Filed 08/27/2007 Page 2 of 14
Ontario Teachers’ Pension Plan Board (“Ontario Teachers”) respectfully submits 

this memorandum in support of its motion (i) to be appointed as Lead Plaintiff pursuant 

to Section 21D(a)(3)(B) of the Securities Exchange Act of 1934 (the “Exchange Act”), 15 

U.S.C. § 78u-4(a)(3)(B), as amended by the Private Securities Litigation Reform Act of 

1995 (the “PSLRA”), (ii) for approval of its selection of the law firm of Bernstein 

Litowitz Berger & Grossmann LLP (“Bernstein Litowitz”) as Lead Counsel for the Class, 

and (iii) for consolidation of all related securities class actions pursuant to Fed. R. Civ. P. 

42(a). 

PRELIMINARY STATEMENT

This federal securities class action lawsuit arises from allegations concerning 

violations of the federal securities laws by Bristol-Myers Squibb Co. (“Bristol-Myers” or 

the “Company”) and certain of its officers (collectively, “Defendants”). During the 

period from March 22, 2006 through August 8, 2006 (the “Class Period”), Defendants 

made materially false and misleading statements about, and suppressed information 

known to them concerning, the proposed settlement of an intellectual property dispute 

related to the Company’s most important product—the cardiovascular drug sold by 

Bristol under the trade name Plavix. Defendants’ misstatements artificially inflated the 

price of Bristol securities and caused substantial damage to the Company’s investors. 

Ontario Teachers believes that it is the “most adequate plaintiff” under the 

PSLRA to serve as the Lead Plaintiff on behalf of investors harmed by that fraud. 

Ontario Teachers believes that it has the largest financial interest in the relief sought in 

this action by virtue of, among other things, the more than $1.7 million loss on its 

Case 1:07-cv-05867-PAC Document 11 Filed 08/27/2007 Page 3 of 14
2

investment in Bristol-Myers securities.1

 Ontario Teachers further satisfies the relevant 

requirements of Rule 23 of the Federal Rules of Civil Procedure as an adequate class 

representative with claims typical of the other Class members. Ontario Teachers is, 

moreover, a sophisticated public institutional investor, highly experienced in conducting 

and supervising counsel in complex securities litigation, and is therefore a paradigmatic 

Lead Plaintiff under the PSLRA. 

FACTUAL AND PROCEDURAL BACKGROUND

Bristol-Myers is one of the world’s largest pharmaceuticals companies. The 

Company is based in New York City and its stock trades on the New York Stock 

Exchange under the symbol “BMY.” It has nearly two billion shares outstanding and 

held by public investors. 

On March 22, 2006, Bristol-Myers announced that it had reached a settlement 

agreement in a lawsuit with a generic manufacturer named The Apotex Group (“Apotex”) 

concerning Apotex’s challenge to the validity of Bristol’s patent for Plavix. Plavix is a 

blood thinning agent—used principally in the prevention of heart attack and stroke as 

well as to inhibit blood clots from forming on arterial stents—and, as the second most 

prescribed drug in the world, is a highly material component of Bristol’s earnings, 

responsible for approximately 20% of Bristol’s earnings in the previous fiscal year. If 

approved, the settlement would assure Bristol’s exclusive right to distribute Plavix in the 

United States until late 2011, thereby maintaining the lucrative profit stream produced by 

the blockbuster drug. News of the settlement was well received by the investing public 

 

1

 A copy of the Certification of Ontario Teachers is attached as Exhibit A to the Declaration of Gerald H. 

Silk (the “Silk Decl.”). This Certification sets forth the transactions of Ontario Teachers in Bristol-Myers 

stock during the Class Period. 

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3

and the market price of Bristol’s common shares experienced a single day increase of 

almost $2.50 per share or more than 10% of the stock’s value, closing at $25.24 per 

share. 

Throughout the Class Period, the Company issued numerous statements 

concerning the settlement agreement, repeatedly assuring investors that it would 

vigorously enforce its rights to the Plavix patent if the settlement agreement was not 

approved. Bristol-Myers did not, however, disclose critical terms of the settlement 

agreement that were clearly material to investors. Among other things, Bristol-Myers did 

not reveal that it had contracted away its rights to sue Apotex for treble damages under 

the federal patent laws in the event the settlement was not approved. Nor did Bristol 

reveal that it had agreed not to seek any injunction against Apotex for five business days, 

which would allow Apotex to flood the market with its generic version of Plavix. 

Further, Bristol-Myers concealed from investors secret side agreements that Defendants 

had negotiated with Apotex, under which Bristol agreed to honor numerous terms that 

were not revealed to regulators. These side agreements included various benefits to 

Apotex, such as Bristol’s undertaking not to launch an “authorized generic” to compete 

with Apotex’s generic once the patent had expired—a critical concern for regulators. 

The investing public first began to learn of the misconduct at Bristol when it was 

disclosed that the Department of Justice had commenced an investigation into the 

settlement agreement and that agents of the Federal Bureau of Investigation (“FBI”) had 

raided Bristol’s headquarters in New York City on July 26, 2006 to gather evidence of 

Bristol’s secret side deals with Apotex. The news commenced a steep decline in the 

Company’s stock price with a single day stock price drop from $25.99 per share to 

Case 1:07-cv-05867-PAC Document 11 Filed 08/27/2007 Page 5 of 14
4

$24.04. Continued revelations culminated on August 8, 2006, when Apotex did, in fact, 

begin flooding the market with generic Plavix and Bristol was forced to disclose the 

actual text of its settlement agreement, revealing that Bristol had contracted away its 

ability to effectively enforce its patent, despite its repeated assurances to the contrary. 

The stock bottomed out upon the market’s close for that business week at $20.24 per 

share, an over 22% drop since the highs before the FBI raid. 

The Company’s then-CEO—Defendant Peter Dolan—was forced to resign in the 

wake of the Plavix scandal and the Company has since pled guilty to making false 

statements to regulators, admitting that: 

[A] former Bristol-Myers Squibb senior executive made oral 

representations to Apotex for the purpose of causing Apotex to 

conclude that the company would not launch an authorized 

generic in the event that the parties reached a final revised 

settlement agreement. . . . The failure to disclose this information 

to the Federal Trade Commission (FTC) in connection with the 

FTC’s review of the revised settlement agreement operated as 

incomplete and therefore false statements to the FTC. The 

company acknowledged in court today its responsibility for the 

conduct of the former senior officer. 

Further, although the Company has never definitively quantified the impact of Apotex’s 

generic launch, the Company has repeatedly admitted that the “generic launch had a 

significant adverse impact on PLAVIX sales and results of operations in 2006.” The 

National Law Journal estimated that “Apotex had sold enough generic Plavix to cost 

[Bristol] more than $500 million in sales!” 

The first securities class action complaint filed in this action, styled Minneapolis 

Firefighters’ Relief Association v. Bristol-Myers Squibb Co., et al., was filed on June 20, 

2007—several days after Bristol-Myers had entered its guilty plea. As required by the 

PSRLA, notice of the pendency of this action was published on June 27, 2007, alerting 

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5

class members to the August 27, 2007 deadline for motions seeking appointment as Lead 

Plaintiff on behalf of Bristol-Myers’ investors. The first such notice is attached to the 

Silk Decl. as Exhibit B. With the filing of this motion, Ontario Teachers satisfies the 

statutory deadline to move to be appointed as Lead Plaintiff in this action. 

ARGUMENT

I. Ontario Teachers Should Be Appointed Lead Plaintiff

Ontario Teachers respectfully submits that it should be appointed Lead Plaintiff 

because it is the movant “most capable of adequately representing the interests of class 

members.” 15 U.S.C. § 78u-4(a)(3)(B). The PSLRA establishes a presumption that the 

“most adequate plaintiff” is the movant that “has the largest financial interest in the relief 

sought by the class” and “otherwise satisfies the requirements of Rule 23 of the Federal 

Rules of Civil Procedure.” 15 U.S.C. § 78u-4(a)(3)(B); see also Fishbury Ltd. v. 

Connetics Corp., No. 06-CV-11496 (SWK), 2006 U.S. Dist. LEXIS 90696, at *6-7 

(S.D.N.Y. Dec. 14, 2006); Glauser v. EVCI Career Colleges Holding Corp., 236 F.R.D. 

184, 187-89 (S.D.N.Y. 2006); In re eSpeed, Inc. Sec. Litig., 232 F.R.D. 95, 97-98 

(S.D.N.Y. 2005). 

a. Ontario Teachers Believes That It Has The Largest 

Financial Interest in the Relief Sought by the Class

Ontario Teachers should be appointed Lead Plaintiff because it has the largest 

financial interest in the relief sought by the Class. 15 U.S.C. § 78u-4(a)(3)(B)(iii). 

Courts generally look to four factors in determining which movant has the largest 

financial interest in the litigation. These factors—sometimes called the “Lax Factors” 

Case 1:07-cv-05867-PAC Document 11 Filed 08/27/2007 Page 7 of 14
6

after Lax v. First Merchants Acceptance Corp.2

—are (i) the number of gross shares 

purchased during the class period; (ii) the number of net shares purchased during the 

class period; (iii) the total net funds expended during the class period; and (iv) the 

approximate losses suffered. See, e.g., Fishbury, 2006 U.S. Dist. LEXIS 90696, at *7-8;

Glauser, 236 F.R.D. at 187; In re eSpeed, 232 F.R.D. at 100. In light of each of these 

factors, Ontario Teachers believes that it has the largest financial interest in the outcome 

of this lawsuit.

Ontario Teachers purchased 1,350,800 shares of Bristol on a gross basis during 

the Class Period. During the same period, Ontario Teachers had net purchases of 

1,334,200 shares. In addition, Ontario Teachers had total net expenditures of 

$33,141,223.15 during the Class Period. As a result of the revelation of Bristol’s 

misconduct, Ontario Teachers suffered approximately $1.7 million in losses, whether 

calculated on a LIFO or FIFO basis.3

 Specifically, Ontario Teachers lost $1,735,223.95 

on a FIFO basis and $1,708,938.77 on a LIFO basis (charts setting forth Ontario 

Teachers’ transactions and losses in Bristol securities on FIFO and LIFO bases are 

attached as Exhibits C and D, respectively, to the Silk Decl.). The magnitude of Ontario 

Teachers’ financial interest in this litigation can be summarized as follows: 

 

2 See Lax v. First Merch. Acceptance Corp., No. 97-Civ-2715, 1997 WL 461036, at *5 (N.D. Ill. 

Aug. 11, 1997). 

3

 Courts in this District and elsewhere rely on two principal methods for calculating approximate 

loss for purposes of Lead Plaintiff motions under the PSLRA. These are the FIFO (first in, first 

out) and LIFO (last in, first out) methods. Under the FIFO method, sales are offset against the 

movant’s inventory of stock acquisitions, starting with the earliest and moving chronologically 

forward (hence, “first in, first out”). Under the alternative LIFO method, the sales are offset 

against the movant’s inventory of stock acquisitions, starting with the latest and moving 

chronologically backward (hence, “last in, first out”). 

Case 1:07-cv-05867-PAC Document 11 Filed 08/27/2007 Page 8 of 14
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Lax Factor Ontario Teachers’ Position 

Gross Purchases: 1,350,800 shares 

Net Purchases: 1,334,200 shares 

Net Expenditures: $33,141,223.15 

Approximate FIFO Loss: $1,735,223.95 

Approximate LIFO Loss: $1,708,938.77 

 

Accordingly, Ontario Teachers believes that it has the largest financial interest of any 

qualified movant seeking appointment as Lead Plaintiff. 

b. Ontario Teachers Otherwise Satisfies the Requirements of Rule 23 

Ontario Teachers should be appointed Lead Plaintiff because it also satisfies the 

requirements of Rule 23 of the Federal Rules of Civil Procedure. On a motion to serve as 

Lead Plaintiff, the movant “need only make a preliminary showing that it satisfies the 

typicality and adequacy requirements of Rule 23.” Glauser, 236 F.R.D. at 188 (quoting 

In re Olsten Corp. Sec. Litig., 3 F. Supp. 2d 286, 296 (E.D.N.Y. 1998)); see also 

Fishbury, 2006 U.S. Dist. LEXIS 90696, at *7 (same); In re eSpeed, 232 F.R.D. at 102 

(same). Ontario Teachers unquestionably satisfies both requirements in this case. 

Ontario Teachers’ claim is typical of the claims of other Class members. 

“Typicality is satisfied where the claims arise from the same conduct from which the 

other class members’ claims and injuries arise.” In re Initial Pub. Offering Sec. Litig., 

214 F.R.D. 117, 121 (S.D.N.Y. 2002). Ontario Teachers’ claims in this action arise from 

the very same course of misconduct at Bristol as the claims of the other Class members—

i.e., the artificial inflation and consequent market correction of Bristol stock caused by 

Defendants’ fraudulent public disclosures. See, e.g., Glauser, 236 F.R.D. at 188-89 

(finding a Lead Plaintiff movant’s claim to be typical where the movant “like all class 

members, (1) purchased or acquired EVCI securities during the proposed class period, (2) 

at prices allegedly artificially inflated by Defendants’ false and misleading statements 

Case 1:07-cv-05867-PAC Document 11 Filed 08/27/2007 Page 9 of 14
8

and/or omissions, and (3) suffered damages thereby.”); In re eSpeed, 232 F.R.D. at 102 

(finding a Lead Plaintiff movant’s claim to be typical where “[m]embers of the class 

claim to have been injured by a fraudulent inflation of eSpeed’s stock price” and the 

movant “makes the same claim.”). 

Ontario Teachers likewise satisfies the adequacy requirement of Rule 23. The 

adequacy requirement is satisfied where “the class members’ interests are not 

antagonistic to one another;” “the class has a sufficient interest in the outcome of the case 

to ensure vigorous advocacy,” and where “class counsel is qualified, experienced, and 

generally able to conduct the litigation.” In re Initial Public Offering Sec. Litig., 214 

F.R.D. at 121. Ontario Teachers satisfies each of these elements of the adequacy 

requirement. 

Ontario Teachers is adequate to represent the Class because its interests are 

perfectly aligned with those of the other Class members and are not antagonistic in any 

way. Indeed, Ontario Teachers seeks identical relief on identical claims based on 

identical legal theories. There are, furthermore, no facts suggesting that any actual or 

potential conflict of interest or other antagonism exists between Ontario Teachers and 

other Class members. 

Ontario Teachers has also submitted a Certification affirming its understanding of 

the duties owed to Class members through its commitment to oversee the prosecution of 

this Class action. See Silk Decl., Exhibit A. Through that Certification, Ontario 

Teachers accepts the fiduciary obligations it will assume if appointed Lead Plaintiff in 

this action. 

Case 1:07-cv-05867-PAC Document 11 Filed 08/27/2007 Page 10 of 14
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Ontario Teachers also has substantial experience overseeing the prosecution of 

complex securities class action lawsuits such as this one. For example, Ontario Teachers 

served as Co-Lead Plaintiff in In re Nortel Networks Corp. Securities Litigation, No. 05-

MD-1659 (LAP) (S.D.N.Y.), in which a $1.3 billion settlement that included extensive 

corporate governance reforms was obtained on behalf of investors. Ontario Teachers’ 

well-established record of success seeking redress on behalf of its fellow investors is also 

reflected in the critical leadership role it played in In re Williams Securities Litigation, 

No. 02-CV-72 (N.D. Okla.), in which Ontario Teachers was specifically selected by the 

District Court for the Northern District of Oklahoma to replace previously appointed lead 

plaintiffs that had withdrawn from the case for undisclosed reasons, threatening to leave 

the Class with no ability to recover its losses. Ontario Teachers’ prosecution of the case 

resulted in a recovery of $311 million for the class following completion of fact 

discovery. Ontario Teachers also currently serves as a Lead Plaintiff in In re Biovail 

Securities Litigation, No. 03-CV-8917 (RO) (S.D.N.Y.). 

Moreover, Ontario Teachers is a classic example of the sort of Lead Plaintiff 

envisioned by Congress in its enactment of the PSLRA—a sophisticated institutional 

investor with a real financial interest in the litigation. See H.R. Conf. Rep. No. 104-369, 

at 34, 104th Cong. 1st Sess. (1995), reprinted in 1995 U.S.C.C.A.N. 679, 690 (explaining 

that “increasing the role of institutional investors in class actions will ultimately benefit 

shareholders and assist courts by improving the quality of representation in securities 

class actions”); see also In re Cendant Corp. Sec. Litig., 404 F.3d 173, 180 (3d Cir. 2005) 

(holding that the PSLRA establishes “a paradigm in which the plaintiff with the largest 

stake in the case, usually a large and sophisticated institution, is accorded the status of 

Case 1:07-cv-05867-PAC Document 11 Filed 08/27/2007 Page 11 of 14
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lead plaintiff and assigned the right to appoint and duty to monitor lead counsel for the 

class”); Glauser, 236 F.R.D. at 188. Finally, Ontario Teachers has demonstrated its 

adequacy through its selection of Bernstein Litowitz as counsel to represent the Class. 

As discussed more fully below, Bernstein Litowitz is highly qualified and experienced in 

the area of securities class action litigation and has repeatedly demonstrated its ability to 

conduct complex securities class action litigation effectively. 

II. The Court Should Approve Ontario Teachers’ Selection of Lead Counsel

The Court should approve Ontario Teachers’ choice of the law firm of Bernstein 

Litowitz to serve as Lead Counsel. Pursuant to Section 21D(a)(3)(B)(v) of the PSLRA, 

codified at 15 U.S.C. § 78u-4(a)(3)(B)(v), the Lead Plaintiff is to select and retain Lead 

Counsel to represent the Class, subject to Court approval. Ontario Teachers has selected 

and retained the law firm of Bernstein Litowitz. 

Bernstein Litowitz is among the preeminent securities class action law firms in 

the country, having been appointed sole or co-lead counsel in numerous complex 

securities class actions in this District and around the country. See, e.g., Bernstein 

Litowitz’s Firm Biography attached as Exhibit E to the Silk Decl. Bernstein Litowitz 

served as co-lead counsel in In re WorldCom, Inc. Securities Litigation, No. 02-CV-3288 

(DLC) (S.D.N.Y.), in which settlements totaling in excess of $6 billion—one of the 

largest recoveries in securities class action history—were obtained for the class. 

Bernstein Litowitz was also counsel for Ontario Teachers in the successful prosecution of 

In re Nortel Networks Corp. Securities Litigation, No. 05-MD-1659 (LAP) (S.D.N.Y.). 

Bernstein Litowitz also presently serves as co-counsel in In re Refco, Inc. Securities 

Litigation, No. 05 Civ. 8626 (GEL) (S.D.N.Y.). 

Case 1:07-cv-05867-PAC Document 11 Filed 08/27/2007 Page 12 of 14
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Accordingly, the Court should approve Ontario Teachers’ selection of Bernstein 

Litowitz as Lead Counsel for the Class. 

III. The Related Actions Should be Consolidated

There are at least two securities class action complaints pending in the Southern 

District of New York on behalf of investors in Bristol securities: 

Case Number Abbreviated Case Name Date Filed

07-CV-5687 (PAC) Minneapolis Firefighters’ 

Relief Association v. BristolMyers Squibb Co., et al. 

June 20, 2007 

07-CV-6259 (PAC) Jean Lai v. Bristol-Myers 

Squibb Co., et al. 

July 6, 2007 

These actions present virtually identical factual and legal issues, as they all arise 

out of the same alleged misstatements regarding the financial condition of Bristol. 

Accordingly, consolidation is appropriate here. See, e.g., Weltz v. Lee, 199 F.R.D. 129, 

131 (S.D.N.Y. 2001) (“In securities actions where the complaints are based on the same 

‘public statements and reports,’ consolidation is appropriate if there are common 

questions of law and fact and the defendants will not be prejudiced.”) (internal citation 

omitted). 

CONCLUSION

For the foregoing reasons, Ontario Teachers respectfully requests that the Court: 

(i) appoint Ontario Teachers as Lead Plaintiff pursuant to the PSLRA; (ii) approve 

Case 1:07-cv-05867-PAC Document 11 Filed 08/27/2007 Page 13 of 14
12

Ontario Teachers’ selection of Bernstein Litowitz Berger & Grossmann LLP as Lead 

Counsel for the Class; (iii) consolidate all related actions; and (iv) grant such other and 

further relief as the Court may deem just and proper. 

Dated: August 27, 2007 Respectfully submitted, 

BERNSTEIN LITOWITZ BERGER & 

GROSSMANN LLP 

/s/ Gerald H. Silk 

Gerald H. Silk (GS-4565) 

Salvatore J. Graziano (SG-6854) 

Noam Mandel (NM-0203) 

1285 Avenue of the Americas, 38th Floor 

New York, NY 10019 

(212) 554-1400 

Counsel for Ontario Teachers’ Pension Plan 

Board and Proposed Lead Counsel for the 

Class 

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