Free Brief - District Court of California - California

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1 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 2 DENNIS J. HERMAN (220163) DANIEL J. PFEFFERBAUM (248631) 3 100 Pine Street, Suite 2600 San Francisco, CA 94111 4 Telephone: 415/288-4545 415/288-4534 (fax) 5 [email protected] [email protected] 6 Lead Counsel for Plaintiffs 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 OAKLAND DIVISION 10 JERRY TWINDE, On Behalf of Himself and ) No. 4:07-cv-04972-CW 11 All Others Similarly Situated, ) ) CLASS ACTION 12 Plaintiff, ) ) 13 vs. ) ) 14 THRESHOLD PHARMACEUTICALS, INC., ) et al., ) 15 ) Defendants. ) 16 ) ) No. 4:07-cv-04971-CW RAYNOLD L. GILBERT, On Behalf of 17 Himself and All Others Similarly Situated, ) ) CLASS ACTION 18 ) Plaintiff, ) 19 ) vs. ) DATE: June 12, 2008 20 THRESHOLD PHARMACEUTICALS, INC., ) TIME: 2:00 p.m. ) COURTROOM: Hon. Claudia Wilken et al., 21 ) ) Defendants. 22 ) 23 24 25 26 27 28 PLAINTIFFS' RESPONSE TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS

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1 I. 2

INTRODUCTION In connection with defendants' Motion to Dismiss Plaintiffs' Consolidated Amended

3 Complaint for Violation of the Federal Securities Laws ("Motion to Dismiss"), defendants have 4 asked the Court to take judicial notice of 14 documents, including Securities and Exchange 5 Commission ("SEC") filings, audio recordings, transcripts, and analyst reports. See Request for 6 Judicial Notice in Support of Defendants' Motion to Dismiss Plaintiffs' Consolidated Amended 7 Complaint for Violation of the Federal Securities Laws ("Request"). Defendants' Request is 8 misplaced because: (i) the authenticity of certain documents is not established; (ii) none of the 9 submitted materials can be accepted as true or used to contradict the pleadings at the motion to 10 dismiss stage of the litigation; and (iii) to the extent that certain documents can be properly 11 considered, the "incorporation doctrine" provides the Court with ample grounds to do so, without 12 taking judicial notice or accepting the truth of the proffered documents. 13 Judicial notice is a limited doctrine intended to permit courts to accept the truth of facts

14 whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b). Judicial notice is only 15 appropriate where the authenticity of the document proffered "is not contested." Lee v. City of Los 16 Angeles, 250 F.3d 668, 688 (9th Cir. 2001). Here, defendants have sought judicial notice for two 17 unmarked and unauthenticated audio recordings and their transcripts. Because defendants have 18 failed to meet their burden that these audio recordings are accurate, authentic or trustworthy, the 19 Court should deny their Request as to these exhibits. Subject to certain caveats and exceptions 20 described below, plaintiffs do not generally dispute the authenticity of the other exhibits submitted 21 with defendants' Request (i.e., that the various press releases, SEC filings, and journal articles are 22 what they purport to be). However, that the documents are authentic does not mean that they are 23 true. Because the truth of many of the documents attached to the Request are in dispute, judicial 24 notice is improper. 25 The incorporation doctrine provides adequate ground for the Court to look to those

26 documents that are quoted in, or form the basis of, the allegations in the complaint for purposes of 27 determining whether those allegations are pled with sufficient particularity. Lee, 250 F.3d at 688-89. 28 Unlike the doctrine of judicial notice, however, the incorporation doctrine is not intended to permit
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1 the Court to accept the truth of such documents, or authorize it to make factual findings based on the 2 contents of such documents. Id. (when facts contained in a document are disputed, a court may only 3 consider the document for the limited purpose of recognizing the fact that the document exists and 4 not for the truth of such documents); In re Metawave Commc'ns Corp. Sec. Litig., 298 F. Supp. 2d 5 1056, 1061 n.1 (W.D. Wash. 2003) (considering documents under the doctrine of incorporation but 6 not for the truth of the statements therein because plaintiffs disputed their truth). At most, the Court 7 can take judicial notice of "the fact that these documents [] were publicly-filed and for the fact that 8 the statements made therein were made to the public on the dates specified." Shurkin v. Golden 9 State Vintners, Inc., 471 F. Supp. 2d 998, 1011 (N.D. Cal. 2006). Defendants' Request, here, goes 10 well beyond these limits. 11 A judicially noticed fact "must be one not subject to reasonable dispute" because it can be

12 determined from sources "whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b); 13 United States v. Mariscal, 285 F.3d 1127, 1131 (9th Cir. 2002); Bryant v. Avado Brands, Inc., 187 14 F.3d 1271, 1275-80 (11th Cir. 1999). The Ninth Circuit has held that a district court may judicially 15 notice "undisputed matters of public record" but not "disputed facts stated in public records." Lee, 16 250 F.3d at 690 (emphasis in original); see also In re NorthPoint Commc'ns Group, Inc., Sec. Litig. 17 & Consol. Cases, 221 F. Supp. 2d 1090, 1095 (N.D. Cal. 2002) (refusing to consider SEC filings 18 that defendants wanted judicially noticed because they contained disputed facts); Bryant, 187 F.3d at 19 1277-78 (SEC filings "should be considered only for the purpose of determining what statements the 20 documents contain, not to prove the truth of the documents' contents") (citation omitted); In re 21 Adaptive Broadband Sec. Litig., No. C 01-1092 SC, 2002 U.S. Dist. LEXIS 5887, at *61 (N.D. Cal. 22 Apr. 2, 2002) (taking judicial notice that statements were made in a Form 10-K referenced in the 23 complaint but not judicial notice of the truth of the statements). 24 25 26 27 28
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1 II. 2 3

ARGUMENT A. Audio Recordings and Transcripts (Exs. H, I, L, and M1)

The Court cannot consider two unauthenticated audio recordings purportedly containing

4 defendants' March 1, 2006 and May 11, 2006 conference calls, or transcripts of these audio 5 recordings. Authenticity is "a condition precedent to admissibility [and] is satisfied by evidence 6 sufficient to support a finding that the matter in question is what its proponent claims." Fed. R. 7 Evid. 901(a). In particular, with regard to audio recordings, "the trial court, in the exercise of its 8 judicial discretion, must be satisfied that the recording is accurate, authentic, and generally 9 trustworthy. The burden is properly on the offering party." United States v. King, 587 F.2d 956, 961 10 (9th Cir. 1978). 11 Defendants have provided no evidence of the source of the recordings, the identity of the

12 individuals making the recording or that the audio recordings in question are actually the investor 13 conference calls that they purport to be. The Lyon Decl. describes each audio-CD as a "true and 14 correct copy of an audio recording of a March 1, 2006 [and a May 11, 2006] investor conference call 15 hosted by Threshold." Lyon Decl. at 2-3. This is wholly inadequate. Cf. Orr v. Bank of Am. NT & 16 SA, 285 F.3d 764, 774 (9th Cir. 2002) (attorney's statement that a deposition extract was "a true and 17 correct copy," was inadequate for authentication). Mr. Lyon has not supplied plaintiffs or the Court 18 with any evidence that he has personal knowledge that the audio recordings are what they purport to 19 be or that he has personal knowledge of whether the recordings were contemporaneous with the 20 conference calls, who made the recordings, the recordings' original format or the chain of custody 21 leading up to defendants' use of the recordings. Cf. United States v. Ford, 632 F.2d 1354 (9th Cir. 22 1980) ("As foundation for the tape recording, the custodian of the tape testified about the time, place, 23 and manner of its creation, and of its continual custody in the archives of the national foundation for 24 25 26 Exhibit ("Ex.") references refer to defendants' Request and the Declaration of Alexander M.R. Lyon in Support of Defendants' Motion to Dismiss Plaintiffs' Consolidated Amended Class 27 Action Complaint for Violation of the Federal Securities Laws ("Lyon Decl."), filed March 7, 2008. 28
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1 trustees."). Mr. Lyon's declaration does not adequately demonstrate that the recordings are accurate, 2 authentic or trustworthy. King, 587 F.2d at 961. 3 The Court should not take judicial notice of the transcripts of the unauthenticated audio

4 recordings because they are no more authentic than the underlying recordings they purport to 5 transcribe. See Exs. I and M. The transcripts themselves raise additional authenticity issues. They 6 were prepared for defense counsel on February 3 and 4, 2008 by Legal-World Interpreting. Exs. I 7 and M at 1. At the top of each transcript, it indicates that they were made from sound files in the 8 .mp3 format named "FINANCIALCONFCALLHELLEREHRMAN[.]MP3" and "HELLER9 EHRMAN2NDCONFCALL.MP3." Id. However, the files contained on the audio-CDs provided to 10 plaintiffs are named 20562thld.asf and 19061thld.asf. This difference in file name suggests that the 11 audio recordings and the transcripts provided to plaintiffs may not have been made from the same 12 audio files. At the very least, this further underscores the lack of adequate authentication provided 13 by Mr. Lyon's declaration. 14 Further, these transcripts conflict with the Bloomberg and Thomson StreetEvents transcripts

15 which plaintiffs, and the market, relied upon. ¶¶87, 105;2 see Herman Decl. ¶¶2-3.3 By attempting 16 to introduce the recently prepared transcripts to contradict the facts pled by plaintiffs, defendants are 17 impermissibly disputing the facts of the case on a motion to dismiss.4 Lee, 250 F.3d at 690; 18 NorthPoint, 221 F. Supp. 2d at 1095. Disputed facts are inappropriate for judicial notice; at most, 19 defendants demonstrate that there may be an issue of fact to be resolved by the jury. Id. Finally, 20 21 Paragraph ("¶") references refer to plaintiffs' Consolidated Amended Class Action Complaint for Violation of the Federal Securities Laws ("Complaint"), filed January 15, 2008. 22 3 "Herman Decl." refers to the Declaration of Dennis J. Herman in Support of Plaintiffs' Brief 23 in Opposition to Defendants' Motion to Dismiss, filed herewith. 24 4 Moreover, to the extent Threshold expressly or impliedly sanctioned the transcripts, they would have had a duty to correct them long before now. See Alfus v. Pyramid Tech. Corp., 764 F. 25 Supp. 598, 603 (N.D. Cal. 1991) ("where a company undertakes to pass on earnings forecasts the company places its 26 through analysts' reports, it must correct figures that are incorrect. If to disclose may arise."). imprimatur, expressly or impliedly, on analysts' projections, such a duty law, defendants did not have 27 Here, the record is insufficient to conclude, as a matter of issuethatfact on the pleadings. a duty to correct the transcripts, nor should the Court resolve this of 28
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1 even if the exhibits were accurate transcriptions of the audio recordings, they lack authenticity for 2 the same reasons as the audio recordings that they purport to transcribe. For all these reasons, the 3 request for judicial notice for Exs. H, I, L, and M must be denied. 4 5 Plaintiffs acknowledge that the Court may consider those documents that are referenced in 6 the Complaint under the incorporation doctrine. Although these exhibits may be considered to put 7 the statements in the Complaint in context ­ e.g., by referencing purported cautionary language ­ 8 they may not be considered for their truth, or to engage in improper fact finding on the pleadings. 9 1. 10 11 Under the incorporation doctrine, the Court may consider the contents of defendants' SEC 12 filings referenced by plaintiffs in their Complaint. Lee, 250 F.3d at 688 (courts cannot consider 13 documents outside the pleadings). Plaintiffs reference the final and effective versions of defendants' 14 IPO registration statement and prospectus, filed February 3 and February 4, 2005, respectively. See, 15 i.e., Complaint at ¶¶40-41, 43, 63. Plaintiffs also reference defendants' final and effective Follow16 On registration statement and prospectus, filed on October 7 and October 12, 2005, respectively. 17 See, e.g., id. at ¶76. 18 The Court should not accept these final effective SEC filings for the truth of the matters 19 20 notice the fact that the statements therein were made, but does not take judicial notice of their 21 truth"); NorthPoint, 221 F. Supp. 2d at 1095 (refusing to consider SEC filings that defendants 22 wanted judicially noticed because they contained disputed facts). While the Court does not have to 23 take judicial notice of the documents to consider them, the Court may take judicial notice that the 24 25 Defendants rely on a preliminary version of Threshold's registration statement, filed on October 3, 2005. See Request at 3. This registration statement was subject to amendment on 26 October 7, 2005, prior to becoming effective. However, because the final amendment is not material to the arguments made by defendants in their motion to dismiss, plaintiffs do not object to judicial 27 notice on these grounds. 28
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B.

Documents Referenced in the Complaint (Exs. A, C, D, F, G, K, and N)

Threshold Pharmaceuticals, Inc.'s Initial Public Offering Registration Statement and Follow-On Offering Prospectus (Exs. A and G)

asserted therein.5 Adaptive Broadband, 2002 U.S. Dist. LEXIS 5887, at *61 (court took "judicial

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1 statements were made and the dates upon which they were made. To the extent that defendants seek 2 judicial notice for the truth or accuracy of these documents, or attempt to draw inferences from 3 them, the Request must be denied. 4 5 2. Threshold Press Releases (Exs. C and K)

The Court should deny defendants' request for judicial notice of the May 19, 2005 Press

6 Release (Ex. C) and the May 11, 2006 Press Release (Ex. K) because defendants seek judicial notice 7 of the truth of the matters asserted therein and improperly use these statements to make factual 8 arguments on a motion to dismiss.6 Because the truth of the matters asserted in these press releases 9 is in dispute, the Court may only take judicial notice of the fact that these statements were made to 10 the public, and on the dates specified. Shurkin, 471 F. Supp. at 1011. In the alternative, the Court 11 can consider them under the incorporation doctrine. Lee, 250 F.3d at 688-89. 12 Defendants improperly rely on the May 19, 2005 Press Release to establish as fact that the

13 Bari Study report was published on May 19, 2005, and additionally, that the market became aware of 14 the study at this time.7 Motion to Dismiss at 7, 12 ("Threshold actually disclosed the full Bari Study 15 no later than May 19, 2005."). The Court may take notice that, on this date, defendants said the Bari 16 Study would be published in the future. It cannot accept Threshold's press release as evidence that 17 the study was published on that ­ or any other ­ date, or to determine the extent to which the 18 information contained in that report was effectively communicated to the market.8 This is an issue 19 for the finder of fact. See Opp.9 at 15. 20 Plaintiffs do not contest defendants' request for judicial notice of the July 17, 2006 Press Release (Ex. N) because defendants properly rely on this document solely to demonstrate what 22 Threshold communicated to the market ­ i.e., that they were suspending all further clinical trials of TH-070 ­ and not for the truth of the matters asserted therein. 23 7 See Motion to Dismiss at 7 ("[T]he investigator's report on the Bari Study was published in 24 May 2005, about three months after the IPO.") (citing May 19, 2005 Press Release (Ex. C)). Defendants actually emphasize the dispute by noting that plaintiffs' Complaint states the study was published in June 2005. Motion to Dismiss at 7 ("see AC ¶74 (alleging June 2005 26 publication)"). 25 27 28
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21

6

"Opp." refers to Plaintiff's Brief in Opposition to Defendants' Motion to Dismiss, filed herewith.

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1

In the May 11, 2006 Press Release, defendants announced that the FDA had placed the

2 clinical trials on a "partial clinical hold" due to safety concerns about TH-070. Ex. K. Like the 3 May 19, 2005 Press Release, the Court may only consider Threshold's May 11, 2006 Press Release 4 for the statements made to the market and the date which the information was delivered, it cannot 5 consider or take judicial notice of the truth of the matters asserted therein. 6 7 3. Bari Study Report (Ex. D)

Because plaintiffs reference the Bari Study report, the Court can take judicial notice of (or

8 consider under the incorporation doctrine) the contents of the Bari Study report, but cannot consider 9 it for the truth of the matters asserted therein. See Lee, 250 F.3d at 690. 10 11 C. Judicial Notice of Documents Not Cited in the Complaint Is Improper

At the motion to dismiss stage, the Court may only consider material within the four corners

12 of the complaint. Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994); Lee, 250 F.3d at 688-90. 13 There are only two exceptions to this general rule. Lee, 250 F.3d at 688. First, a court may consider 14 documents properly submitted as part of the complaint or, under the incorporation doctrine, 15 documents upon which the complaint necessarily relies and the authenticity of which is not disputed. 16 Id. at 688-89. The purpose for this exception is to allow the court to assess the complaint allegations 17 in context. Second, a court may take judicial notice of facts: (1) generally known within the 18 community; or (2) "capable of accurate and ready determination by resort to sources whose accuracy 19 cannot reasonably be questioned." Fed. R. Evid. 201(b); Lee, 250 F.3d at 689. 20 21 1. Harold E. Selick's Form 3 and Powell's Form 4 (Exs. B and J)

Plaintiffs have not relied on, or referenced, Harold E. Selick's Form 3 (Ex. B) or Michael

22 Powell's Form 4 (Ex. J) in their Complaint, rendering judicial notice of these documents improper. 23 Branch, 14 F.3d at 453-54. These documents do not fit under either exception because the truth of 24 the facts contained therein is in dispute. Fed. R. Evid. 201(b); Lee, 250 F.3d at 688. The Court may 25 take judicial notice of the fact that these documents were filed with the SEC, the contents of the 26 statements contained therein, and the date of filing. Shurkin, 471 F. Supp. 2d at 1011. However, the 27 Court should not take judicial notice of the truth of the statements or allow defendants to argue the 28 facts of the case on a motion to dismiss. Plaintiffs argue that Selick's carried interest in Sofinnova
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1 Ventures, Inc. which is disclosed in the IPO registration statements and Follow-On Offering 2 prospectuses, provides some further evidence of scienter. ¶133. Defendants attempt to make a 3 factual argument by pointing to a purported absence of a disclosed interest in Threshold in Selick's 4 Form 3. This is an inappropriate factual argument at the motion to dismiss stage and requires that 5 the Court accept Selick's Form 3 for the truth of the matters asserted therein. Lee, 250 F.3d at 688. 6 Defendants can no more rely on an unreferenced Form 3 to prove that a party has a beneficial 7 interest than they can rely on the absence of such an entry to disprove an interest. Likewise Powell's 8 Form 4 can be considered only for the statements contained therein, but not for the truth of those 9 statements. 10 11 2. August 18, 2005 Press Release (Ex. E)

Judicial notice of the August 18, 2005 Press Release is improper because plaintiffs do not

12 rely on the document. Even if the Court were to consider it, it cannot consider the press release for 13 the truth of the matter asserted therein. Defendants invoke the August 18, 2005 Press Release in an 14 attempt to rebut plaintiffs' argument that George Tidmarsh's reason for leaving the Board of 15 Directors was pretextual, by demonstrating that he gave the same reason for leaving his position as 16 president. Motion to Dismiss at 24. Defendants are attempting to argue the merits of the case on 17 motion to dismiss, which is impermissible. Lee, 250 F.3d at 688. Furthermore, the Court cannot 18 accept the press release as evidence of why Tidmarsh left his position. Shurkin, 471 F. Supp. 2d at 19 1011. The Court should neither consider, nor judicially notice, the August 18, 2005 Press Release. 20 DATED: April 21, 2008 21 22 23 24 25 26 27 28
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Respectfully Requested, COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP DENNIS J. HERMAN DANIEL J. PFEFFERBAUM

s/ Daniel J. Pfefferbaum DANIEL J. PFEFFERBAUM 100 Pine Street, Suite 2600 San Francisco, CA 94111 Telephone: 415/288-4545 415/288-4534 (fax)

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Lead Counsel for Plaintiffs

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1 2

CERTIFICATE OF SERVICE I hereby certify that on April 21, 2008, I electronically filed the foregoing with the Clerk of

3 the Court using the CM/ECF system which will send notification of such filing to the e-mail 4 addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I have 5 mailed the foregoing document or paper via the United States Postal Service to the non-CM/ECF 6 participants indicated on the attached Manual Notice List. 7 I certify under penalty of perjury under the laws of the United States of America that the

8 foregoing is true and correct. Executed on April 21, 2008. 9 10 11 12 13 14 15 E-mail:[email protected] 16 17 18 19 20 21 22 23 24 25 26 27 28 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 100 Pine Street, 26th Floor San Francisco, CA 94111 Telephone: 415/288-4545 415/288-4534 (fax) s/ Daniel J. Pfefferbaum DANIEL J. PFEFFERBAUM

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Mailing Information for a Case 4:07-cv-04972-CW
Electronic Mail Notice List
The following are those who are currently on the list to receive e-mail notices for this case. Kevin Anthony Burke [email protected] Michael L. Charlson [email protected],[email protected],[email protected],sus Marc S. Henzel [email protected] Dennis J. Herman [email protected],[email protected],[email protected],[email protected],[email protected] Alexander M.R. Lyon [email protected],[email protected] Daniel Jacob Pfefferbaum [email protected] Darren Jay Robbins [email protected] Samuel H. Rudman [email protected] Evan J. Smith [email protected] Laurence Andrew Weiss [email protected]

Manual Notice List
The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing). You may wish to use your mouse to select and copy this list into your word processing program in order to create notices or labels for these recipients.
Mary K. Blasy Coughlin Stoia Geller Rudman & Robbins LLP 655 West Broadway Suite 1900 San Diego, CA 92101

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