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

Case 4:07-cv-04972-CW

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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

9 10 11 12 13
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 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' CONSOLIDATED AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF THE FEDERAL SECURITIES LAWS Hearing Date: Hearing Time: Place: Judge: June 12, 2008 2:00 p.m. Courtroom 2, 4th Floor Hon. Claudia Wilken

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

15 16 17 18 19 20 21 22 23 24 25 26 27 28

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

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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 documents and other 5 evidence referenced in Defendants' motion to dismiss Plaintiffs' Consolidated Amended Class 6 Action Complaint for Violation of the Federal Securities Laws (the "Complaint" or "AC") filed 7 concurrently herewith. All of the documents and other evidence discussed below have been 8 submitted to the Court as exhibits to the Declaration of Alexander Lyon ("Lyon Dec."). 9 I. 10
DOCUMENTS REFERENCED IN THE COMPLAINT Defendants request that the Court take judicial notice of the documents listed below on the

11 grounds that they are referenced in the Complaint. Documents whose contents are alleged in a 12 complaint and whose authenticity no party questions, but which are not physically attached to the 13 pleading, may be considered in ruling on a motion to dismiss. See Branch v. Tunnell, 14 F.3d 449, 14 453-54 (9th Cir. 1994); DeMarco v. Depotech Corp., 149 F. Supp. 2d 1212, 1217-18 (S.D. Cal. 15 2001). Where a complaint references only excerpts of a document, the Court may consider the 16 entire text. Cooper v. Pickett, 137 F.3d 616, 623 (9th Cir. 1997); Depotech, 149 F. Supp. 2d at 17 1217-18. 18
Lyon Dec. Ex. A ­ The registration statement for Threshold's February 2005 initial public

19 offering, filed with the SEC on February 3, 2005. The document is referenced throughout the 20 Complaint, including at AC ¶¶ 61-74, 80. 21
Lyon Dec. Ex. C ­ A May 19, 2005, press release issued by Threshold. The document is

22 referenced in the Complaint at AC ¶ 83. 23
Lyon Dec. Ex. D ­ An article reporting the results of the Bari Study of TH-070, entitled

24 Clinical Evidence Supporting the Role of Lonidamine for the Treatment of BPH, by P. Ditonno, 25 M.D., et al., published in Reviews in Urology, Vol. 7, Suppl. 7, 2005. The document is referenced 26 in the Complaint at AC ¶¶ 53 n.3, 66 n.4, 68-69. 27
Lyon Dec. Ex. F ­ A securities analyst report issued by Fortis Bank on September 20, 2005.

28 The document is referenced in the Complaint at AC ¶ 42. 2
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Lyon Dec. Ex. G ­ The registration statement for Threshold's October 2005 follow-on

2 offering, filed with the SEC on October 3, 2005. The document is referenced throughout the 3 Complaint, including at AC ¶¶ 75-78, 81. 4
Lyon Dec. Exs. H and I ­ An audio recording and certified transcription of a March 1,

5 2006, investor conference call hosted by Threshold. The Complaint references statements made 6 during this conference call at AC ¶¶ 86-87. 7
Lyon Dec. Ex. K ­ A May 11, 2006, press release issued by Threshold. The document is

8 referenced in the Complaint at AC ¶ 102. 9
Lyon Dec. Exs. L and M ­ An audio recording and certified transcription of a May 11,

10 2006, investor conference call hosted by Threshold. The Complaint references statements made 11 during this conference call at AC ¶¶ 39, 71, 73, 105. 12
Lyon Dec. Ex. N ­ A July 17, 2006, press release issued by Threshold. The document is

13 referenced in the Complaint at AC ¶ 117. 14 II. 15 16
Threshold press release listed below. While the documents are not explicitly identified in the DOCUMENTS NOT CITED IN THE COMPLAINT BUT OTHERWISE A PROPER SUBJECT OF JUDICIAL NOTICE Defendants request that the Court take judicial notice of two additional SEC filings and a

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Complaint, the events they disclose are discussed in the Complaint. Such documents, the

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authenticity of which is not in question and on which the Complaint necessarily relies, are judicially

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noticeable and appropriately considered on a motion to dismiss. Parrino v. FHP, Inc., 146 F.3d

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699, 706 (9th Cir. 1998); Glenbrook Capital L.P. v. Kuo, 525 F. Supp. 2d 1130, 1137 (N.D. Cal.

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2007) (a court may take judicial notice of public documents, including documents filed with the

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SEC and press releases, on a motion to dismiss).

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Lyon Dec. Ex. B ­ The Complaint alleges that defendant Harold E. Selick had a pecuniary

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interest in Threshold stock sold by Sofinnova Venture Partners V, L.P. ("Sofinnova") in March

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2006. See AC ¶¶ 133, 135, 137. Lyon Dec. Ex. B is an Initial Statement of Beneficial Ownership

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of Securities (Form 3) filed with the SEC on February 3, 2005, on behalf of Dr. Selick, and which

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discloses Dr. Selick's interest in Threshold stock as of that date.

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Lyon Dec. Ex. E ­ The Complaint alleges that George Tidmarsh, Threshold's founder,

2 resigned from the Company's Board of Directors in March 2006. AC ¶¶ 93, 98, 139-43. The 3 Complaint suggests that Dr. Tidmarsh's resignation was sudden and the announced reason for his 4 resignation ­ that he wished to pursue other ventures ­ pretextual. Lyon Dec. Ex. E is a press 5 release issued by Threshold on August 18, 2005, seven months earlier, which announces that Dr. 6 Tidmarsh was relinquishing his post as Threshold's President to pursue other ventures. 7
Lyon Dec. Ex. J ­ The Complaint alleges that defendant Harold E. Selick had a pecuniary

8 interest in Threshold stock sold by Sofinnova in March 2006. See AC ¶¶ 133, 135, 137. Lyon Dec. 9 Ex. J is a Statement of Changes in Beneficial Ownership of Securities (Form 4) filed with the SEC 10 on March 20, 2006, reporting the sales by Sofinnova on behalf of Threshold Director Michael 11 Powell, which reported the sales of Threshold stock by Sofinnova that are alleged in the Complaint. 12 13
*** Defendants respectfully request that the Court take judicial notice of the foregoing

14 documents for purposes of ruling on Defendants' motion to dismiss the Complaint. 15 16 Dated: March 7, 2008 17 18 19 20 21 22 23 24 25 26 27 28 4
DEFENDANTS' REQUEST FOR JUDICIAL NOTICE CASE NO. 4:07-CV-04972-CW

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