Free Request for Judicial Notice - District Court of California - California

Case 4:07-cv-04972-CW

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Filed 06/02/2008

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1 MICHAEL L. CHARLSON (Bar No. 122125)
LAURENCE A. WEISS (Bar No. 164638)

2 ALEXANDER M.R. LYON (Bar No. 211274)
HELLER EHRMAN LLP

3 275 Middlefield Road
Menlo Park, California 94025-3506

4 Telephone: (650) 324-7000
Facsimile: (650) 324-0638

5 [email protected]
[email protected]

6 [email protected] 7 Attorneys for Defendants
THRESHOLD PHARMACEUTICALS, INC.,

8 HAROLD E. "BARRY" SELICK
and JANET I. SWEARSON

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ) ) ) Plaintiff, ) ) v. ) ) THRESHOLD PHARMACEUTICALS, INC., ) HAROLD E. "BARRY" SELICK and JANET I. ) SWEARSON ) ) Defendants. ) __________________________________________ ) RAYNOLD L. GILBERT, On Behalf of Himself ) and All Others Similarly Situated, ) ) Plaintiff, ) ) v. ) ) THRESHOLD PHARMACEUTICALS, INC., ) HAROLD E. "BARRY" SELICK and JANET I. ) SWEARSON ) ) Defendants. ) Case No.: 4:07-CV-04972-CW CLASS ACTION SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' CONSOLIDATED AMENDED COMPLAINT FOR VIOLATION OF THE FEDERAL SECURITIES LAWS Hearing Date: Hearing Time: Place: Judge: June 19, 2008 2:00 p.m. Courtroom 2, 4th Floor Hon. Claudia Wilken

JERRY TWINDE, On Behalf of Himself and All 14 Others Similarly Situated,

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DEFENDANTS' SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE CASE NO. 4:07-CV-04972-CW

Case 4:07-cv-04972-CW

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SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE Pursuant to Rule 201 of the Federal Rules of Evidence, Defendants Threshold

3 Pharmaceuticals, Inc. ("Threshold"), Harold E. "Barry" Selick and Janet I. Swearson (collectively 4 "Defendants") hereby request that the Court take judicial notice of following facts referenced in 5 Defendants' Reply Memorandum in Support of Defendants' Motion to Dismiss Plaintiffs' 6 Consolidated Amended Complaint for Violation of the Federal Securities Laws (the "Complaint" or 7 "AC") filed concurrently herewith. All of the documents discussed below have been submitted to 8 the Court as exhibits to the Reply Declaration of Alexander M.R. Lyon ("Reply Lyon Dec."). 9 I. 10
DOCUMENTS REFERENCED IN THE COMPLAINT Defendants request that the Court take judicial notice of the existence, contents and

11 publication dates of the documents listed below on the grounds that they are referenced in the 12 Complaint. Documents whose contents are alleged in a complaint and whose authenticity no party 13 questions, but which are not physically attached to the pleading, may be considered in ruling on a 14 motion to dismiss. See Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994); DeMarco v. 15 Depotech Corp., 149 F. Supp. 2d 1212, 1217-18 (S.D. Cal. 2001). Where a complaint references 16 only excerpts of a document, the Court may consider the entire text. Cooper v. Pickett, 137 F.3d 17 616, 623 (9th Cir. 1997); Depotech, 149 F. Supp. 2d at 1217-18. Plaintiffs have conceded that the 18 existence of such documents, as well as their contents and the dates on which they were published, 19 are a proper subject of judicial notice. See Plaintiffs' Response to Request for Judicial Notice at 2, 20 5-7. 21
Reply Lyon Dec. Ex. O ­ An article entitled Placebo Therapy of Benign Prostatic

22 Hyperplasia: A 25-Month Study by J.C. Nickel cited at ¶ 67 n.5 of the Complaint. 23
Reply Lyon Dec. Ex. P ­ An article entitled The Placebo Effect and Randomized trials:

24 Analysis of Alternative Medicine, by Mark A. Moyad, MPH, cited at ¶ 67 n.5 of the Complaint. 25
Reply Lyon Dec. Ex. Q ­ an article entitled Placebo Effects in the Pharmacological

26 Treatment of Uncomplicated Benign Prostatic Hyperplasia, by Bo Jesper Hansen, et al., cited at ¶ 27 67 n.5 of the Complaint. 28
1 DEFENDANTS' SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE CASE NO. 4:07-CV-04972-CW

Case 4:07-cv-04972-CW

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DOCUMENT NOT CITED IN THE COMPLAINT BUT OTHERWISE A PROPER SUBJECT OF JUDICIAL NOTICE Defendants request that the Court take judicial notice of the daily closing price of

Threshold's stock from October 3 through October 31, 2005. The Court may take judicial notice of historical stock prices because they are not reasonably subject to dispute and their accuracy is capable of ready and accurate determination. See Fed. R. Evid. 201(b); In re Copper Mountain Sec. Litig., 311 F. Supp. 2d 857, 864 (N.D. Cal. 2004) ("Information about the stock price of publicly traded companies [is] the proper subject of judicial notice."). Reply Lyon Dec. Ex. R ­ a printout from the Yahoo Finance website showing the closing stock market price for Threshold's stock from October 3, 2005, through October 31, 2005. *** Defendants respectfully request that the Court take judicial notice of the foregoing for purposes of ruling on Defendants' motion to dismiss the Complaint.

14 Dated: June 2, 2008 15 16 17 18 19 20 21 22 23 24 25 26 27 28

HELLER EHRMAN LLP By /s/ ALEXANDER M.R. LYON Attorneys for Defendants THRESHOLD PHARMACEUTICALS, INC., HAROLD E. "BARRY" SELICK and JANET I. SWEARSON

2 DEFENDANTS' SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE CASE NO. 4:07-CV-04972-CW