Declaration of Peter Safirstein in Support of Plaintiffs' Opposition to Apex's Motion to Dismiss the Amended Other Broker Tranche Complaint — In re January 2021 Short Squeeze Trading Litigation (Dkt. 435-1, S.D. Fla.)

Summary

A Declaration of Peter Safirstein in Support of Plaintiffs' Opposition to Apex's Motion to Dismiss the Amended Other Broker Tranche Complaint in In re: January 2021 Short Squeeze Trading Litigation, Case 1:21-md-02989-CMA (Case No. 21-2989-MDL-ALTONAGA/Torres, Document 435-1, 4 pages), in the Southern District of Florida, entered November 5, 2021. Peter Safirstein of Safirstein Metcalf LLP, Lead Counsel in the Other Broker Tranche, states that during an August 18, 2021 call Jack E. Pace III said Apex would consent to transfer of the negligence action to the MDL Court, and that the Amended Complaint was served directly on Apex after Apex's counsel refused to accept service. The declaration adds that Apex produced its March 22, 2021 letter only on August 26, 2021, although the Court ordered production on June 3, 2021, and is dated November 5, 2021 in New York.

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Date: 2021-04-20

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“Declaration of Peter Safirstein in Support of Plaintiffs' Opposition to Apex's Motion to Dismiss the Amended Other… (Dkt. 435-1).” Original at archive.org, dated 2021-04-20. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-04-20-covid-era-misc-3d17fff2-1/, SHA-256 3d17fff22dcbd014bea16214062a9ce325f9425c669d92170954d1cff5459506.

Full text

Case 1:21-md-02989-CMA Document 435-1 Entered on FLSD Docket 11/05/2021 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-2989-MDL-ALTONAGA/Torres

IN RE:

JANUARY 2021 SHORT SQUEEZE
TRADING LITIGATION
_____________________________________/

This Document Relates to All Claims Included
In the Other Broker Tranche

DECLARATION OF PETER SAFIRSTEIN IN SUPPORT OF PLAINTIFFS’
OPPOSITION TO APEX’S MOTION TO DISMISS THE AMENDED OTHER
BROKER TRANCHE COMPLAINT PURSUANT TO RULES 12(B)(1) AND
12(B)(6)

I, PETER SAFIRSTEIN, hereby declare under the penalty of perjury, as follows:

1. I am an attorney duly authorized to practice law in the State of New York

and filed a Certificate of Understanding in this Court on April 20, 2021. (Doc. No. 212). I

am a Partner in the law firm of Safirstein Metcalf LLP, counsel for Plaintiffs in the above

captioned matter and appointed Lead Counsel in the Other Broker Tranche pursuant to this

Court’s Order dated May 18, 2021 (Doc. No. 310). I submit this Declaration in support of

Plaintiffs’ Opposition to Apex’s Motion to Dismiss Complaint Pursuant to Rules 12(b)(1)

and 12(b)(6). I am familiar with the facts set forth herein, based on my personal knowledge

of the material referenced herein.

2. On August 18, 2021, I, together with other Plaintiffs’ Counsel, held a

telephonic conference with Mr. Jack E. Pace III and Ms. Kelly Newman of White & Case

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Case 1:21-md-02989-CMA Document 435-1 Entered on FLSD Docket 11/05/2021 Page 2 of 4

LLP, counsel for Defendant Apex Clearing Corp. (“Apex”). The purpose of the telephone

call was to discuss correspondence sent earlier by Apex counsel to Plaintiffs’ counsel

addressing their claim that Plaintiffs’ negligence claim was improperly brought for the first

time in the MDL court. During that call I asked Mr. Pace how he proposed that Plaintiffs

address his concerns to his satisfaction. Mr. Pace replied that he recommended that: 1)

Plaintiffs dismiss their complaint in the MDL Court; 2) file a new complaint in a “home

forum”, and; 3) petition the JPML for transfer to this MDL Court. Mr. Pace stated during

the telephone call that he, on behalf of Apex, would consent to the transfer of the negligence

action to this MDL Court. The Amended Complaint has been timely served directly on

Apex following Apex’s counsel’s refusal to accept service of the Amended Complaint.

3. Attached hereto as Exhibit 1 is a true and correct copy of a document

produced in this litigation by DTCC (DTCC_MDL_00000326-7). This document is

referenced in ¶ 79 of Plaintiffs’ Complaint.

4. Exhibit 6 to the Declaration of Jack E. Pace III submitted in support of

Apex’s Motion To Dismiss is dated March 22, 2021. Apex only produced that document

in this litigation on August 26, 2021. Plaintiffs’ initial complaint in this MDL was filed

on July 27, 2021(Document 359). This Court ordered the production of this document on

June 3, 2021 (Document 323).

5. Apex has offices in several U.S. cities including New York City with

offices at 888 7th Avenue, 32nd Floor, New York, NY 10106. See, https://

www.apexclearing.com/. Last visited, November 2, 2021.

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Case 1:21-md-02989-CMA Document 435-1 Entered on FLSD Docket 11/05/2021 Page 3 of 4

6. The common stock of AMC Entertainment Holdings Inc. (ticker: AMC) is

listed on the New York Stock Exchange. The common stock of GameStop Corporation

(ticker: GME) is listed on the New York Stock Exchange. New York Stock Exchange

Listings are available for review at https://www.nyse.com/listings_directory/stock. The

New York Stock Exchange is located at 11 Wall Street, New York, NY 10005.

7. The common stock of Koss Corporation (ticker: KOSS) Entertainment

Holdings Inc. (ticker: AMC) is listed on NASDAQ. This NASDAQ listing is available for

review at https://www.nasdaq.com/market-activity/stocks/koss. NASDAQ, Inc.’s

principal executive offices are located at 151 W. 42nd Street, New York, New York 10036.

8. The Depository Trust & Clearing Corporation (“DTCC”) is headquartered

at 55 Water Street, New York, NY 10041. See,

https://www.bloomberg.com/profile/company/ 592256Z:US.

9. Attached as Exhibit 2 is a true and correct copy of the Linked-In profile of

Apex CEO William Capuzzi, listing “New York City Metropolitan Area” for “Contact

Info.” Last visited on October 22, 2021.

10. Attached as Exhibit 3 is a true and correct copy of the Linked-In profile of

Apex Chief Administrative Officer William Brennan listing “Summit, New Jersey” and

“Chief Administrative Officer Sep 2019-Present 2 years 3 months Greater New York

City Area” and “Chief Operating Officer & Chief Financial Officer May 2016-Present –

5 years 7 months Dallas, TX” Last visited November 2, 2021.

11. Attached as Exhibit 4 is a true and correct copy of an internet employment

listing for “Apex” “Chief Compliance Officer” at “Apex, 28 Liberty Street, Suite 3060,

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Case 1:21-md-02989-CMA Document 435-1 Entered on FLSD Docket 11/05/2021 Page 4 of 4

New York, NY 10005). This position was listed at https://careers.peak6.com. This site

was last visited on October 22, 2021.

12. I have reviewed the document production produced by Apex and by DTCC

and information relating to Apex-DTCC communications on January 28, 2021 as reflected

in Paragraph 3 above was provided by DTCC and not Apex.

Declared, pursuant to 28 U.S.C. §1746, under the penalty of perjury, this 5 th day

of November, 2021 in New York, New York.

/s/Peter Safirstein__
Peter Safirstein

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