UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO. Plaintiffs, Defendants.

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1 1 BERNSTEIN LIEBHARD & LIFSHITZ, LLP Sandy A. Liebhard U. Seth Ottensoser Joseph R. Seidman, Jr. East 0th Street New York, NY 0 Telephone: () - Facsimile: () - seidman@bernlieb.com GLANCY BINKOW & GOLDBERG LLP Lionel Z. Glancy Michael Goldberg 01 Avenue of the Stars Los Angeles, CA 00 Telephone : () 1-0 Facsimile : () info@glancylaw.com Attorneys for Lead Plaintiff Movant Intrepid Capital Management, Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO,-T PRENA SMAJLAJ, Individually And On Behalf Of All Others Similarly Situated, vs. Plaintiffs, BROCADE COMMUNICATIONS SYSTEMS, INC., GREGORY L. REYES, and ANTONIO CANOVA, [Additional Captions Below ] Defendants. SURREPLY BRIEF OF ICM CORRECTING MATERIAL Index No. :0-CV- (CRB) SUR-REPLY BRIEF OF INTREPID CAPITAL MANAGEMENT, INC. CORRECTNG MATERIAL INACCURACIES IN COMPETING MOVANTS' SUBMISSIONS Case No. :0-CV- CRB

2 1 HAI-NING HUANG, On Behalf Of Himself And A ) Index No. :0-CV- (CRB) Class of Persons Similarly Situated, ) } Plaintiffs, ) vs. ) BROCADE COMMUNICATIONS SYSTEMS, INC., ) GREGORY L. REYES, and ANTONIO CANOVA, ) Defendants. ) } FREDERICK WITT, Individually And On Behalf Of ) Index No. :0-CV- (SBA) All Others Similarly Situated, ) Plaintiffs, ) vs. ) ) BROCADE COMMUNICATIONS SYSTEMS, INC., ) GREGORY L. REYES, and ANTONIO CANOVA, ) Defendants. ) Case No. :0-CV- CRB

3 1 INTRODUCTION It is time to put these lead plaintiff issues to rest. APERS and Oklahoma have wasted thi s Court's time for months - refusing to see what is plain as day. They have attacked Intrepid with groundless speculation about hedge funds. They have requested discovery - and misrepresented what they found. Now they have gone beyond the pale and accused Intrepid of lying. Though Intrepid is loathe to take up any more of the Court's time, this Court should not countenance APERS' and Oklahoma 's blatant distortion of the facts and their impugning of the character o f Intrepid's principals ; thus, their filings cannot go unanswered.' ARGUMENT 1. APERS AND OKLAHOMA BRAZENLY MISREPRESENT THE FACT S Intrepid has cited chapter and verse demonstrating its authority to litigate this action o n behalf of the Funds. Intrepid, manager of Intrepid QP and Intrepid LP, and IFM, manager o f Intrepid Offshore, are all managed by Steven Shapiro. (Shapiro is also the General Partner of Intrepid QP and Intrepid LP). See Zweig Tr. (Ex. C to Seidman Decl.) at,, -0; Zweig Ex. (Ex. B to Seidman Decl.) at 000, 00, 0, 01. In a meeting prior to the lead plaintiff filing date, Shapiro explicitly gave Matthew Zweig, on behalf of Intrepid, authority to litigate thi s action for Intrepid and IFM on behalf of the Funds. Zweig Tr. at, -0. Intrepid had the righ t to litigate on behalf of its two funds under its management agreement. Likewise, under IFM' s I All capitalized terms have the same definitions as in Intrepid 's last submission. Citations to "APERS" and "Oklahoma" at are to their October 1h submissions. See Zweig Exhibit at 000, 00, 0 and 0. These partnerships, inter alia, may "exercise all rights, powers, privileges and other incidents of ownership or possession with respect to Securities held or owned by the Partnership with the ultimate objective of the preservation, protection, improvement and enhancement in value thereof and to hold such Securities in the name of the Partnership...." Zweig Tr. at 1-; Zweig Exhibit at 00 and 0. Limited Partnership Agreement, Article II, Section.1(b) (emphasis added). The General Partner has authority to exercise these rights and powers. See Intrepid 00, Limited Partnership Agreement, Article II, Section.(a). ' ' Case No. :0-CV- CRB

4 management agreement, IFM could delegate its right to litigate to other Intrepid entities.' IFM did 1 so when Shapiro gave Zweig, on behalf of Intrepid, authority to litigate this action for IFM. Zweig Tr. at, -0. From the amount of briefing here, APERS and Oklahoma should have understood this b y now. But they either rehash the same arguments or skew the facts and accuse Intrepid of lying. Their baseless attacks on Intrepid's credibility are nothing more than the frantic attempts of counse l trying to confuse any issue in order to obtain a lead counsel position. Thus, the real "shell game" here is the fact that each of APERS' and Oklahoma's claims are empty when examined : "ICM claimed that IFM had granted ICM authority to act on behalf of [Intrepid Offshore]. As it would turn out, this was yet another false claim by ICM." APERS at (citation omitted). "[I]t is clear that Intrepid Capital does not have the authority to represent at least one of the hedge funds, Intrepid [Offshore]." Oklahoma at. "On July, 0, Intrepid Capital files its first sworn certification which included trading data for Intrepid [Offshore], a fund it has no authority to represent,..." Id. at. "The partnership agreements confirm that Intrepid [] had no authority to represent Intrepid [Offshore]." Id. at. There "is no document by which IFM" ceded authority to pursue this litigation to Intrepid. APERS at. "ICM has never produced proof that it has authority to pursue this litigation..." Id. at. THE FACTS : As discussed above, Shapiro granted Zweig, on behalf of Intrepid, authorit y to litigate this action on behalf of 1FM. Zweig Tr. at, -0. This isproofof Intrepid's IFM's management agreement states that "[t]he Investment Manager shall be permitted to (i) assign its rights and obligations hereunder to any firm consented to by the Fund, or to any firm controlled directly or indirectly by Steven Shapiro without the consent of the Fund, and/or ii) contract with another person, firm or entity (whether or not controlled by it) for the performance b y such person, firm, or entity on behalf of the Investment Manager of the services to be provided by the Investment Manager hereunder." See Intrepid Case No. :0-CV- CRB

5 1 authority to litigate for IFM. Further, under its management agreement, IFM can delegate the right to litigate to another Intrepid entity. See fn.. "[I]n the first and second [Zweig] Declarations[,...] Zweig claimed in both instances that Intrepid Capital is the authorized investment manager for all three hedge funds., These facts are not true." Oklahoma at (emphasis in original). "Moreover, the Investment Management Agreement also designates Intrepid Fund [IFM] as the investment manager of the [Offshore] fund, not Intrepid Capital as previously represented in Zweig's First and Second Declarations." Id. at. "Intrepid Capital also filed the First Zweig Declaration which falsely stated that Intrepid [] is the investment manager of Intrepid [Offshore]." Id. at. "On August, 0, Intrepid... falsely stated that [Intrepid] was the agent and attorney-infact for all three hedge funds." Id. "On August 1, 0, Intrepid Capital filed the Second Zweig Declaration which falsely stated that Intrepid Capital is the investment manager of Intrepid [Offshore]." Id. at. THE FACTS : Zweig's first declaration stated that "ICM and IFM are investment managers for the three entities whose trading...underlies ICM's motion.... These three entities operate as three separate hedge funds." Zweig Decl. (emphasis added). Zweig's second declaration stated that "Intrepid, which is the manager for Intrepid [QP] and Intrepid [LP], along with Intrepid Fun d Management ("IFM"), which is the investment manager for Intrepid [Offshore], are the three entities whose trading... underlies Intrepid's motion for lead plaintiff." Second Zweig Decl. (emphasis added). On August 1, 0, "ICM disclosed that IFM, not ICM [Intrepid ], is the general manager for [Intrepid Offshore]." APERS at. THE FACTS : Zweig, in his first declaration filed August, 0, stated that "ICM and IF M are investment managers for the three entities whose trading... underlies ICM's motion...to wit, ^- SURREPLY BRIEF OF ICM CORRECTING MATERIAL -- Case No. :0-CV- CRB

6 I 1 Intrepid Capital Fund (QP), LP, Intrepid Capital Fund (Offshore), Ltd., and Intrepid Capital Fund, L.P." Zweig Dec].. "Zweig could not explain why the partnership agreements were not produced previously despite the fact that he knew his previous certifications were confusing." Oklahoma at. THE FACTS : There was no requirement to proffer the documents earlier ; they were produced at the deposition pursuant to a formal document request. Thus, APERS' claims that Intrepid has been "hid[ing] the truth," and has been "less than candid with this Court," (see APERS at 1-), and Oklahoma' s claims that Intrepid has filed "misleading and inconsistent submissions," simply do not bear scrutiny. Intrepid does not take lightly accusations of lying and neither should the Court. CONCLUSIO N For the reasons set forth herein, and in the other submissions by Intrepid concerning its motion for lead plaintiff, Intrepid and/or the Funds should be appointed as lead plaintiff(s) in this litigation, and Bernstein Liebhard appointed as lead counsel in this litigation. DATED : November 1, 0 Respectfully submitted, GLANCY BINKOW & GOLDBERG LL P /s/lionel Z. Glancy Lionel Z. Glancy (0) Michael Goldberg (#) Even removing the losses of Intrepid Offshore ($,,0), Intrepid still has far and away the largest financial interest (Intrepid QP lost $,,1 and Intrepid LP lost $,). APERS' and Oklahoma's case citations are all irrelevant. For example, in Carson v. Clarent Corp., No. C-01-01, 01 WL 1, at * (N.D. Cal. Dec., 01), this Court rejected a movant who filed its initial motion two weeks late "without reasonable explanation". Here, Intrepid filed a timely motion and if the Court so directs, it will, as other courts have allowed, file an amended certification for related parties. The rest of APERS' authorities fare no better. See Intrepid's Oct. t' submission at. SURREPLY BRIEF OF ICM CORRECTING MATERIAL -- Case No. :0-CV- CRB

7 1 01 Avenue of the Stars, Suite Los Angeles, CA 00 Telephone: () 1-0 Facsimile: () Liaison Counsel for Intrepid Capital Management, Inc. and Proposed Liaison Counsel for Plaintiffs and the Clas s Sandy A. Liebhard U. Seth Ottensoser Joseph R. Seidman, Jr. BERNSTEIN LIEBHARD & LIFSHITZ, LLP East 0th Street, nd Floor New York, NY 0 Telephone: () - Facsimile: () - seidman@bernlieb.com Counsel for Intrepid Capital Management, Inc. and Proposed Lead Counsel for Plaintiffs and the Clas s -- Case No. :0-CV- CRB f