Colley v. Orexigen Therapeutics, Inc. et al

Filing 139

ORDER (1) Granting in Part and Denying in Part Moving Defendants' Request to Consider Materials Incorporated by Reference, and (2) Granting Moving Defendants' Partial Motion to Dismiss (ECF No. 114 ). The Court GRANTS IN PART AND DENIES IN PART Moving Defendants' Request to Consider Materials Incorporated by Reference (ECF No. 114 -9) and GRANTS Moving Defendants' Motion (ECF No. 114 ). Lead Plaintiff MAY FILE an amended consolidated complaint within thirty (30) days of the date on which this Order is electronically docketed. Should Lead Plaintiff fail to file an amended complaint by this date, this action will proceed on his surviving causes of action. Signed by Judge Janis L. Sammartino on 11/2/2020. (tcf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KARIM KHOJA, on behalf of himself and
all others similarly situated,

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ORDER (1) GRANTING IN PART
AND DENYING IN PART MOVING
DEFENDANTS’ REQUEST TO
CONSIDER MATERIALS
INCORPORATED BY REFERENCE,
AND (2) GRANTING MOVING
DEFENDANTS’ PARTIAL MOTION
TO DISMISS

Plaintiff,

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Case No.: 15-CV-540 JLS (JLB)

v.
OREXIGEN THERAPEUTICS, INC.,
JOSEPH P. HAGAN, MICHAEL A.
NARACHI, and PRESTON KLASSEN,
Defendants.

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AND ALL CONSOLIDATED CASES

(ECF No. 114)

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Presently before the Court is Moving Defendants Joseph P. Hagan, Michael A.

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Narachi, and Preston Klassen, M.D., M.H.S.’s Partial Motion to Dismiss Consolidated

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Amended Complaint for Violation of the Federal Securities Laws (“Mot.,” ECF No. 114), 1

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as well as Lead Plaintiff Karim Khoja’s Opposition to (“Opp’n,” ECF No. 115) and

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Moving Defendants’ Reply in Support of (“Reply,” ECF No. 116) the Motion.

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Defendant Orexigen Therapeutics, Inc., filed a voluntary petition for bankruptcy under Chapter 11, see
In re Orexigen Therapeutics, Inc., No. 18-10518-KG (Bankr. D. Del. filed Mar. 12, 2018); consequently,
pursuant to the automatic bankruptcy stay, see 11 U.S.C. § 362(a), Orexigen is not a party to this Motion,
which was filed before the automatic stay was lifted.
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15-CV-540 JLS (JLB)

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Also before the Court are Moving Defendants’ Request to Consider Documents

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Incorporated by Reference into the Consolidated Amended Complaint for Violation of the

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Federal Securities Laws in Support of Defendants’ Partial Motion to Dismiss (“Defs.’

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Req.,” ECF No. 114-9), Lead Plaintiff’s Notice of Supplemental Authority in Support of

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Opposition to Defendants’ Partial Motion to Dismiss the Consolidated Amended

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Complaint (“1st Not. of Supp. Auth.,” ECF No. 118), Moving Defendants’ Response to

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Lead Plaintiff’s Notice of Supplemental Authorities (“Resp. to 1st Not. of Supp. Auth.,”

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ECF No. 119), Lead Plaintiff’s Notice of Supplemental Authorities in Support of

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Opposition to Defendants’ Partial Motion to Dismiss the Consolidated Amended

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Complaint (“2d Not. of Supp. Auth.,” ECF No. 126), Moving Defendants’ Response to

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Lead Plaintiff’s Notice of Supplemental Authorities (“Resp. to 2d Not. of Supp. Auth.,”

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ECF No. 127), Lead Plaintiff’s Third Notice of Supplemental Authorities in Support of

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Opposition to Defendants’ Partial Motion to Dismiss the Consolidated Amended

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Complaint (“3d Not. of Supp. Auth.,” ECF No. 128), Lead Plaintiff’s Notice of Recent

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Controlling Authority (“4th Not. of Supp. Auth.,” ECF No. 136), Moving Defendants’

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Response to Lead Plaintiff’s Notice of Recent Controlling Authority (“Resp. to 4th Not. of

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Supp. Auth.,” ECF No. 137), and Lead Plaintiff’s Reply to Defendants’ Response to Lead

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Plaintiff’s Notice of Recent Controlling Authority (“Reply ISO 4th Not. of Supp. Auth.,”

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ECF No. 138).

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The Court vacated the hearing and took the Motion under submission without oral

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argument pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 117. Having carefully

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considered Lead Plaintiff’s Consolidated Amended Complaint (“CAC,” ECF No. 111) and

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the material appropriately incorporated by reference, the Parties’ arguments, and the law,

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including the cases identified in Lead Plaintiff’s Notices of Supplemental Authority, the

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Court GRANTS IN PART AND DENIES IN PART Moving Defendants’ Request to

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Consider Documents Incorporated by Reference and GRANTS Moving Defendants’

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Motion.

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15-CV-540 JLS (JLB)

BACKGROUND 2

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The factual and procedural background of this case was set forth in detail in this

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Court’s September 23, 2019 Order (1) Granting in Part and Denying in Part the Moving

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Defendants’ Request for Judicial Notice, (2) Denying Lead Plaintiff’s Request for Judicial

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Notice, and (3) Granting in Part and Denying in Part the Moving Defendants’ Motion to

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Dismiss. See ECF No. 110 at 2–14. To the extent relevant, the Court incorporates that

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recitation into this Order. Accordingly, the Court sets forth below only those facts relevant

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to the instant Motion 3 and the procedural history since the issuance of this Court’s

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September 23, 2019 Order.

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I.

Factual Background

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Orexigen, “a developmental stage biotechnology firm,” has a collaboration

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agreement with Takeda Pharmaceutical Company Limited (“Takeda”) to develop and

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commercialize Orexigen’s “primary product candidate,” a drug for the treatment of obesity

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called Contrave, in the United States, Canada, and Mexico. CAC ¶ 7. Phase III clinical

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trials have been completed, and Contrave “was being studied in a drug trial known as the

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The facts alleged in Plaintiff’s Consolidated Amended Complaint are accepted as true for purposes of
Moving Defendants’ Motion. See Vasquez v. Los Angeles Cnty., 487 F.3d 1246, 1249 (9th Cir. 2007)
(holding that, in ruling on a motion to dismiss, the Court must “accept all material allegations of fact as
true”). The Court also considers those materials outside the Consolidated Amended Complaint that are
properly incorporated by reference. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir.
2018), cert. denied, 139 S. Ct. 2615 (2019); see also infra pages 7–12.
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The Parties agree that the sole issue raised by the present Motion is whether “the Amended Complaint
fails to plead with particularity that Defendants’ allegedly fraudulent statements on March 3, 2015 have
any casual connection to the losses purportedly suffered by Plaintiff on May 12, 2015.” ECF No. 114
(“Not. of Mot.”) at 1; see also Opp’n at 1 (“Defendants do, however, suggest that Plaintiff has not
adequately pled loss causation in connection with the May 12, 2015 announcement that Takeda
Pharmaceutical Co. (“Takeda”) — Orexigen’s own business partner — disclosed for the first time that it
was initiating a $200 million claim against Orexigen due to Defendants’ misconduct in revealing the 25%
data LIGHT Study in the March 3, 2015 Form 8-K.”). Although several of the new or revised allegations
in the Consolidated Amended Complaint (“CAC”) are intended to strengthen Lead Plaintiff’s loss
causation allegations as to Defendants’ May 8, 2015 statements, “[Moving] Defendants did not challenge
the Original Complaint on this ground, and do not challenge the adequacy of Plaintiff’s loss causation
allegations as to the May 8 statements here.” Mot. at 2. Accordingly, the Court omits those facts from its
recitation of the relevant facts.
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LIGHT Study.” Id. The Light Study’s Executive Steering Committee, Data Monitoring

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Committee, and Orexigen entered into a data access plan (“DAP”), pursuant to which all

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agreed to limit the number of people within Orexigen who had access to the interim results

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of the LIGHT Study to just those individuals who needed to facilitate submission of

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Orexigen’s marketing application to the United States Food and Drug Administration

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(“FDA”). Id. ¶ 53 & n.11.

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On July 2, 2014, Orexigen filed patent application number 14/322,810 (the “’810

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Application”), which “included specific quantitative 25% interim LIGHT Study data,”

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“pursuant to a statutory ‘nonpublication’ request.” Id. ¶ 12. In early January 2015,

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Orexigen rescinded the nonpublication request. Id. ¶ 14. On March 3, 2015, the United

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States Patent and Trademark Office (“USPTO”) issued U.S. Patent No. 8,969,371 (the

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“’371 Patent”) from the ’810 Application. Id. ¶ 15; see also Defs.’ Req. Ex. B.

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That same day, Orexigen filed a Form 8-K with the United States Securities and

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Exchange Commission (“SEC”) announcing the publication of the ’371 Patent and

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releasing the 25 percent interim LIGHT Study results. CAC ¶¶ 15, 87; see also Defs.’ Req.

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Ex. C. The Form 8-K noted that the ’371 Patent “incorporate[d] data from [the LIGHT

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Study],” and that the ’371 Patent “contain[s] claims related to a positive effect of Contrave

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on [cardiovascular (“CV”)] outcomes” based on an “analysis . . . conducted based on 94

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observed and adjudicated major adverse cardiovascular events (“MACE”), which was

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approximately 25% of the planned MACE for the Light Study.” CAC ¶ 87; see also Defs.’

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Req. Ex. C. The Form 8-K further explained that the interim analysis “was prospectively

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designed to enable an early and preliminary assessment of safety to support regulatory

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approval” and that “[a] larger number of MACE are required to precisely determine the

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effect of Contrave on CV outcomes.” Id. Orexigen did not consult the FDA, Dr. Nissen,

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or Takeda prior to filing the Form 8-K. CAC ¶ 15.

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Also on March 3, 2015, Forbes released an article reporting that the FDA had been

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unaware that the ’810 Application contained the interim data and was “very disappointed

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by Orexigen’s actions.” Id. ¶ 93. That same day, Orexigen issued a press release stating
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that “the USPTO published the patent and supporting documentation,” id. ¶ 94, but the

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press release failed to disclose that “the USPTO only published what Orexigen itself

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needlessly put into the 2014 Patent Application” or that Orexigen “had rescinded its earlier

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request that the 2014 Patent Application remain unpublished,” id. ¶ 95.

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On March 2, 2015, Orexigen’s common stock had closed at $5.79 per share. Id.

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¶ 89. However, the March 3, 2015 publication of the “misleading” interim LIGHT Study

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data and the “misleading” response to the FDA’s statements the same day “artificially

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inflat[ed] the price of Orexigen’s securities” and “deceiv[ed] analysts and investors.” Id.

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¶¶ 17, 97. That same day, common stock shares “soared almost 32% to close at $7.64 . . .

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on enormous trading volume of more than 95.8 million shares,” id. ¶ 16, with trading as

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high as $9.37 per share, id. ¶ 89. On March 4, 2015, Orexigen common stock “rose an

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additional 11% on massive volume, to close at $8.49 per share.” Id. ¶ 16; see also id. ¶ 97.

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In Section VI of the CAC, titled “Loss Causation and Economic Loss,” Lead

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Plaintiff alleges, in relevant part:
131. On May 12, 2015, it was also disclosed for the first
time in a Bloomberg article, called “Takeda Threatened to End
Orexigen Partnership as Study Halted,” that Takeda – Orexigen’s
commercialization partner for Contrave – had initiated dispute
resolution proceedings against Orexigen demanding it pay the
full cost – estimated at $200 million – of a new cardiovascular
outcomes trial due to Orexigen’s materially misleading March 3,
2015 statements and omissions regarding Contrave’s purported
heart benefit. In a May 12, 2015 email to Bloomberg, Takeda
spokesperson Sandy Rodriguez stated that “Takeda sent a
dispute letter to Orexigen on May 12 whereby Takeda seeks
termination of its collaboration agreement with Orexigen based
on Orexigen’s material breach of the agreement …” A May 13,
2015 article appearing in the Wall Street Journal titled “Orexigen
and Takeda Feud Over Cost of a Controversial Diet Drug Trial”
confirmed, inter alia, that: “[t]he disclosure is causing Orexigen
shares to drop, since the cost of the trial is estimated to be about
$200 million, according to RBC Capital Markets analyst Simos
Simeonidis, who calculates that Orexigen would be on the hook
for as much as an extra $100 million if it loses the dispute.”

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Similarly, a May 13, 2015 article appearing in Biospace.com
added that “the company stock took a big hit, dropping from a
high of $6.93 per share on May 12, the day the partnership [with
Takeda] was terminated, to today’s low [on May 13, 2015] of
$5.48 per share.”

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132. As a direct result of the May 12, 2015 disclosures
alleged in ¶[ . . .] 131, supra, which disclosed the truth for the
first time regarding: . . . (iii) Takeda’s initiation of a $200 million
action against Defendants (which revealed for the first time that
Defendants had failed to disclose that they had filed the March
3, 2015 Form 8-K revealing the dubious 25% heart benefit data
without first informing Takeda as alleged in ¶¶15-17, 87-89,
supra) the price of Orexigen’s common stock fell from an
opening price on May 11, 2015 of $6.75 per share to close on
May 13, 2015 at $5.02 per share on massive trading volume as
investors digested the full impact of Defendants’ materially
misleading statements and deliberately reckless acts. Together,
the revelations and disclosures alleged in ¶[ . . .] 131, supra
caused the Company’s share price to drop approximately 25% in
a single day between May 12 and May 13, 2015 on unusually
high trading volume.

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133. The timing and magnitude of Orexigen’s common
stock price declines between May 12 and May 13, 2015 negates
any inference that the losses suffered by Plaintiff and the other
members of the Class were caused by changed market
conditions, macroeconomic or industry factors, or even
Company-specific facts unrelated to Defendants’ fraudulent
conduct. The Company’s share price dropped from a high of
$6.93 per share on May 12, 2015 to a low of $5.48 per share on
May 13, 2015 – a sharp decline of approximately 25%. The
Company’s share price never recovered and Orexigen was
thereafter delisted from NASDAQ. Chapter 11 bankruptcy later
ensued.

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CAC ¶¶ 131–33 (emphasis in original); see also id. ¶ 5 (alleging that “the loss causing

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disclosures on May 12, 2015 revealed the truth to the market about Defendants’ materially

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false and misleading statements and omissions on March 3, 2015 . . . .”); id. (““In response

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to the disclosures on . . . May 12, 2015, Orexigen’s share price fell precipitously.”) (citing

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id. § VI).

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II.

Procedural Background

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On September 23, 2019, this Court issued its Order (1) Granting in Part and Denying

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in Part the Moving Defendants’ Request for Judicial Notice, (2) Denying Lead Plaintiff’s

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Request for Judicial Notice, and (3) Granting in Part and Denying in Part the Moving

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Defendants’ Motion to Dismiss. See ECF No. 110. As relevant to the pending Motion, the

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September 23, 2019 Order determined that a May 12, 2015 press release authored by Dr.

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Nissen “was not a corrective disclosure as to the alleged misrepresentations from March 3,

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2015,” and accordingly Lead Plaintiff had failed to adequately allege loss causation for a

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portion of his claims. Id. at 37–38.

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On October 17, 2019, Lead Plaintiff filed his CAC. See ECF No. 111. On November

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15, 2019, Moving Defendants filed the instant Motion. After briefing was complete, Lead

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Plaintiff filed four notices of supplemental authority on January 24, May 27, June 12, and

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October 12, 2020. See ECF Nos. 118, 126, 128, 136. Moving Defendants filed responses

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to the first, second, and fourth. See ECF Nos. 119, 127, 137.

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Meanwhile, on April 28, 2020, the Ninth Circuit issued an order lifting the

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administrative closure of the appeal as to Orexigen and substituting Wind-Down

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Administrator Province, Inc., in the place and stead of Orexigen as Defendant-Appellee.

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See ECF No. 125. On May 19, 2020, in light of the bankruptcy court’s lifting of the § 362

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automatic stay, the Ninth Circuit issued an order “fully adopt[ing its] opinion in [Khoja v.]

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Orexigen [Therapeutics, Inc.], 899 F.3d 988 [(9th Cir. 2018)], to resolve Plaintiff’s appeal

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as against Defendant Orexigen.” See ECF No. 134 at 3. The Ninth Circuit’s judgment

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took effect on June 10, 2020. Id. at 1.

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REQUEST TO CONSIDER MATERIALS INCORPORATED BY REFERENCE
I.

Legal Standard

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“Generally, district courts may not consider material outside the pleadings when

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assessing the sufficiency of a complaint under Rule 12(b)(6) of the Federal Rules of Civil
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Procedure.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018)

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(citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)). “There are two

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exceptions to this rule: the incorporation-by-reference doctrine, and judicial notice

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under Federal Rule of Evidence 201.” Id.

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Pursuant to Federal Rule of Evidence 201(b), “[t]he court may judicially notice a

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fact that is not subject to reasonable dispute because it: (1) is generally known within the

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trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from

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sources whose accuracy cannot reasonably be questioned.” “Accordingly, ‘[a] court may

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take judicial notice of matters of public record without converting a motion to dismiss into

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a motion for summary judgment.’” Khoja, 899 F.3d at 999 (quoting Lee, 250 F.3d at 689).

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“But a court cannot take judicial notice of disputed facts contained in such public

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records.” Id. (citing Lee, 250 F.3d at 689).

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“Even if a document is not attached to a complaint, it may be incorporated by

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reference into a complaint if the plaintiff refers extensively to the document or the

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document forms the basis of the plaintiff’s claim.” United States v. Ritchie, 342 F.3d 903,

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908 (9th Cir. 2003) (citing Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980

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(9th Cir. 2002); Branch v. Tunnell, 14 F.3d 449, 453–54 (9th Cir. 1994), overruled on other

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grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); Venture

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Assoc. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431(7th Cir. 1993)). “‘[T]he mere

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mention of the existence of a document is insufficient to incorporate the contents of a

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document’ under Ritchie.” Khoja, 899 F.3d at 1002 (quoting Coto Settlement v. Eisenberg,

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593 F.3d 1031, 1038 (9th Cir. 2010)). Nonetheless, a document may still form the basis of

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the plaintiff’s claim where “the claim necessarily depended on the[ document].” Id. (citing

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Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005)). “However, if the document merely

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creates a defense to the well-pled allegations in the complaint, then that document did not

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necessarily form the basis of the complaint.” Id.

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When a document is incorporated by reference, “the district court may treat such a

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document as part of the complaint, and thus may assume that its contents are true for
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purposes of a motion to dismiss under Rule 12(b)(6).” Ritchie, 342 F.3d at 908; see also

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Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (“The court may treat . . . a document

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[incorporated by reference] as ‘part of the complaint, and thus may assume that its contents

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are true for purposes of a motion to dismiss under Rule 12(b)(6).’”) (citing Ritchie, 342

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F.3d at 908). Nonetheless, “it is improper to assume the truth of an incorporated document

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if such assumptions only serve to dispute facts stated in a well-pleaded complaint.” Khoja,

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899 F.3d at 1003.

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II.

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Analysis
Moving Defendants ask the Court to incorporate by reference six documents:
(1)

“Food and Drug Administration’s (‘FDA’) September 10, 2014 ‘Center for
Drug Evaluation and Research Summary Review,’ which is publicly available
at
https://www.accessdata.fda.gov/drugsatfda_docs/nda/2014/200063Orig1s00
0SumR.pdf (the ‘2014 FDA Review’),” “for background facts about the Light
Study and the FDA’s regulatory process with respect to Contrave,” Defs.’
Req. at 1, 4; see id. Ex. A;

(2)

“United States Patent No. 8,969,371, which is publicly available at
http://portal.uspto.gov/pair/PublicPair (the ‘’371 patent’),” “for background
facts about Orexigen’s U.S. patent application and the issuance of the ’371
patent,” Defs.’ Req. at 1, 4; see id. Ex. B;

(3)

“Orexigen Therapeutics, Inc.’s (‘Orexigen’) Form 8-K filed with the
Securities Exchange Commission (‘SEC’) on March 3, 2015, which is
publicly
available
at
http://www.sec.gov/edgar/searchedgar/companysearch.html (the ‘March 3 8K’),” “so the Court has a complete picture of the information provided to
investors on March 3, 2015,” Defs.’ Req. at 1, 4–5; see id. Ex. C;

(4)

“Carlone Chen’s www.bloomberg.com article on May 12, 2015, titled
‘Takeda Threatens to End Orexigen Partnership as Study Halted,’ which is
available at https://www.bloomberglaw.com/document/NO9IEU6JTSE8 (the
‘May 12 Bloomberg Article’),” on which Moving Defendants purport Lead
Plaintiff relies “to form the basis of his new loss causation theory,” Defs.’
Req. at 1, 5 (citing CAC ¶¶ 131, 132); see id. Ex. D;

(5)

“Ed Silverman’s www.wsj.com article on May 13, 2015, titled, ‘Orexigen and
Takeda Feud Over Cost of a Controversial Diet Drug Trial,’ which is publicly

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available at https://blogs.wsj.com/pharmalot/2015/05/13/orexigen-andtakeda-feud-over-cost-of-a-controversial-diet-drug-trial/ (the ‘March 13 WSJ
Article’),” on which Moving Defendants purport Lead Plaintiff relies “to form
the basis of his new loss causation theory,” Defs.’ Req. at 2, 5 (citing CAC ¶¶
131, 132); see id. Ex. E; and

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(6)

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“Alex Keown and Riley McDermid’s www.biospace.com article on May 13,
2015, titled, ‘Takeda Threatens to End Orexigen Partnership Over Stopped
Obesity
Study,’
which
is
publicly
available
at
https://www.biospace.com/article/takeda-threatens-to-end-orexigenpartnership-over-stopped-obesity-study-/ (the ‘May 13 BioSpace Article’),”
on which Moving Defendants purport Lead Plaintiff relies “to form the basis
of his new loss causation theory,” Defs.’ Req. at 2, 5 (citing CAC ¶¶ 131,
132); see id. Ex. F.

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Lead Plaintiff argues that Moving Defendants impermissibly are “offering these

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exhibits for the truth of the underlying facts they contain,” Opp’n at 19, because, for

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example, the language from the March 3, 2015 8-K cited in Moving Defendants’ Motion

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“is the same language that Defendants relied on to argue that the statements they made on

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March 3 were not false – a theory which was squarely rejected by the Ninth Circuit,” and

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accordingly “[i]t is unclear why Defendants would have cited to this language if not to try

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to impermissibly contradict Lead Plaintiff’s well-pled allegations,” id. (emphasis in

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original) (citing Mot. at 5; Khoja, 899 F.3d at 1003, 1010). Lead Plaintiff further “disputes

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that incorporating Ex. F is permissible, as it is only referred to briefly and for the prospect

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that Takeda’s disclosure caused Orexigen’s stock price to fall.” Id. (citing CAC ¶ 131).

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Lead Plaintiff argues that, if incorporation of these articles is proper, the incorporation

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“does not extend to Defendants’ factual conclusions or characterizations of their content,”

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id. at 19–20 (citing Khoja, 899 F.3d at 1006), and thus “asking the Court to incorporate a

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conclusion that these articles ‘do not suggest any connection’ between Defendants’ March

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3, 2015 misleading statements and Takeda’s, Bloomberg’s and the Wall Street Journal’s

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disclosures . . . goes ‘beyond testing the sufficiency of the claims and into the realm of

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factual disputes,’” id. at 20 (quoting Khoja, 899 F.3d at 1006; citing CAC ¶ 131).

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15-CV-540 JLS (JLB)

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The Court previously has incorporated by reference Exhibits A through C. See ECF

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No. 76 at 18; ECF No. 110 at 18–19. In its September 23, 2019 Order, the Court found

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that incorporation by reference of Exhibits A and B, for the same purposes offered here,

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was proper. See ECF No. 110 at 18. The Court again finds incorporation by reference

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proper for Exhibits A and B. With regard to Exhibit C, the Court’s September 23, 2019

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Order noted that Lead Plaintiff’s “Consolidated Complaint refers extensively to the

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March 3, 2015 Form 8-K, see, e.g., CC ¶¶ 87–88, which also forms the basis of Lead

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Plaintiff’s claims predicated upon false and misleading omissions in that very filing. See,

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e.g., id. ¶¶ 87–92.” ECF No. 110 at 18. The Court concluded that, “[a]lthough ‘what

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inferences [the C]ourt may draw from [the] incorporated document should . . . be

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approached with caution,’ see Khoja, 899 F.3d at 1003, Exhibit C is appropriately

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incorporated by reference.” ECF No. 110 at 18–19. The Court again finds it appropriate

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to incorporate Exhibit C by reference, but the Court will not incorporate into the CAC any

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statements therein offered solely to contest any well-pleaded facts in the CAC.

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As for Exhibits D through F, the Court finds that Lead Plaintiff relies on the May

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12, 2015 Bloomberg article to form the basis of his loss causation theory, and therefore the

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Court concludes that it is appropriate to incorporate by reference Exhibit D. Again, the

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scope of the Court’s incorporation by reference will exclude “Defendants’ factual

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conclusions or characterizations of” the document. See Opp’n at 19–20. However, the

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Court agrees with Lead Plaintiff that it is not appropriate to incorporate Exhibits E and F

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by reference. The CAC does not refer extensively to these documents, nor does Lead

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Plaintiff rely on them to form the basis of his claim. As the Ninth Circuit has stated, “[f]or

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‘extensively’ to mean anything under Ritchie, it should, ordinarily at least, mean more than

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once.” See Khoja, 899 F.3d at 1003 (citing Coto, 593 F.3d at 1038). “Otherwise, the rule

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would simply require a complaint to ‘refer’ to the document. In theory, a reference may

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be sufficiently ‘extensive’ if a single reference is relatively lengthy.” Id. However, the

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CAC only refers to each of Exhibits E and F once, and then only for the proposition that

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the share prices dropped on May 13, 2015. See CAC ¶ 131. Thus, the Court sees no reason

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to incorporate these ancillary documents by reference.

3

Accordingly, the Court GRANTS IN PART AND DENIES IN PART Moving

4

Defendants’ Request to Consider Documents Incorporated by Reference (ECF No. 114-9),

5

as outlined above.

6
7

PARTIAL MOTION TO DISMISS
I.

Legal Standard

8

Rule 12(b)(6) permits a party to raise by motion the defense that the complaint

9

“fail[s] to state a claim upon which relief can be granted,” generally referred to as a motion

10

to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and

11

sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a “short and

12

plain statement of the claim showing that the pleader is entitled to relief.” Although Rule

13

8 “does not require ‘detailed factual allegations,’ . . . it demands more than an unadorned,

14

the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

15

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a

16

plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more

17

than labels and conclusions, and a formulaic recitation of a cause of action’s elements will

18

not do.” Twombly, 550 U.S. at 555 (alteration in original). “Nor does a complaint suffice

19

if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S.

20

at 678 (alteration in original) (quoting Twombly, 550 U.S. at 557).

21

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

22

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting

23

Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible

24

when the facts pled “allow[] the court to draw the reasonable inference that the defendant

25

is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). That is not to

26

say that the claim must be probable, but there must be “more than a sheer possibility that a

27

defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). “[F]acts that are

28

‘merely consistent with’ a defendant’s liability” fall short of a plausible entitlement to
12
15-CV-540 JLS (JLB)

1

relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true

2

“legal conclusions” contained in the complaint. Id. at 678–79 (citing Twombly, 550 U.S.

3

at 555). This review requires “context-specific” analysis involving the Court’s “judicial

4

experience and common sense.” Id. at 679. “[W]here the well-pleaded facts do not permit

5

the court to infer more than the mere possibility of misconduct, the complaint has alleged—

6

but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. (quoting Fed. R. Civ.

7

P. 8(a)(2)).

8

Further, “[c]laims brought under Rule 10b-5 . . . must meet Federal Rule of Civil

9

Procedure 9(b)’s particularity requirement that ‘[i]n all averments of fraud or mistake, the

10

circumstances constituting fraud or mistake shall be stated with particularity.’” In re Dura

11

Pharm., Inc. Sec. Litig., 452 F. Supp. 2d 1005, 1016 (S.D. Cal. 2006) (alteration in original)

12

(quoting Fed. R. Civ. P. 9(b)) (citing In re Daou Sys., Inc. Sec. Litig., 411 F.3d 1006, 1014

13

(9th Cir. 2005), cert. denied 546 U.S. 1172 (2006); Yourish v. Cal. Amplifier, 191 F.3d

14

983, 993 (9th Cir. 1999)). “In addition, in 1995, Congress enacted the Private Securities

15

Litigation Record Act of 1995 (PSLRA) and altered the pleading requirements in private

16

securities fraud litigation by requiring a complaint plead with particularity both falsity and

17

scienter.” Id. at 1016–17 (quoting Daou Sys., 411 F.3d at 1014) (internal quotation marks

18

omitted).

19

The Court will grant leave to amend unless it determines that no modified contention

20

“consistent with the challenged pleading . . . [will] cure the deficiency.” DeSoto v. Yellow

21

Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schriber Distrib. Co. v. Serv-

22

Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)).

23

II.

Analysis

24

“Section 10(b) of the . . . 1934 [Act] forbids (1) the ‘use or employ[ment] . . . of any

25

. . . deceptive device,’ (2) ‘in connection with the purchase or sale of any security,’ and

26

(3) ‘in contravention of’ [SEC] ‘rules and regulations.’” Dura Pharm., Inc. v. Broudo, 544

27

U.S. 336, 341 (2005) (quoting 15 U.S.C. § 78j(b)). “Rule 10b-5 forbids, among other

28

things, the making of any ‘untrue statement of a material fact’ or the omission of any
13
15-CV-540 JLS (JLB)

1

material fact ‘necessary in order to make the statements made . . . not misleading.’” Id.

2

(quoting 17 C.F.R. § 240.10b-5). “The basic elements of a Rule 10b-5 claim, therefore,

3

are: (1) a material misrepresentation or omission of fact, (2) scienter, (3) a connection with

4

the purchase or sale of a security, (4) transaction and loss causation, and (5) economic

5

loss.” Daou Sys., 411 F.3d at 1014 (citing Dura Pharms., 544 U.S. at 341–42).

6

Although Moving Defendants claim that their Motion is directed solely to the issue

7

of loss causation, in actuality, the Motion argues that Lead Plaintiff’s CAC fails to

8

adequately plead several of the required elements of a claim for securities fraud. Primarily,

9

Moving Defendants assert that Lead Plaintiff has not adequately pleaded loss causation in

10

alleg[ing] that investors learned on May 12, 2015 that Takeda
Pharmaceutical Co. Ltd. (“Takeda”)—Orexigen’s commercial
partner in conducting the Light Study—initiated a “$200 million
action” against Defendants which purportedly revealed for the
first time that Orexigen disclosed the data underlying the patent
on March 3 without notifying Takeda in advance.

11
12
13
14
15

Mot. at 2 (citing CAC ¶ 132) (footnote omitted). However, Moving Defendants also argue

16

that Lead Plaintiff fails to plead falsity adequately, because Defendants had no duty to

17

inform investors that the March 3, 2015 8-K was filed without first informing Takeda. Id.

18

at 12 (citing CAC ¶ 132). Moving Defendants further claim that the CAC contains no

19

allegations to support the materiality of the allegedly misleading statement or omission.

20

Id. at 13–14 (citations omitted). 4

21
22
23
24
25
26
27
28

4

In a footnote, Moving Defendants assert a fourth argument, that “[t]he Amended Complaint is also bereft
of allegations that Defendants intended to deceive or were deliberately reckless in failing to inform
investors that Takeda allegedly did not have advance notice of the March 3 8-K. Thus, any such claim
should also be dismissed for failure to plead scienter.” Mot. at 14 n.12 (citing Ronconi v. Larkin, 253 F.3d
423, 432 (9th Cir. 2001)). Similarly, Lead Plaintiff responds to the argument in a single sentence in a
footnote in his Opposition. Opp’n at 14 n.7.
The Court declines to address this argument, which was not fully briefed by the Parties. “‘Arguments
raised only in footnotes, or only on reply, are generally deemed waived’ and need not be considered.”
Cheever v. Huawei Device USA, Inc., No. 18-CV-06715-JST, 2019 WL 8883942, at *3 (N.D. Cal. Dec.
4, 2019) (citing Estate of Saunders v. Comm'r, 745 F.3d 953, 962 n.8 (9th Cir. 2014); Sanders v. Sodexo,
Inc., No. 2:15-cv-00371-JAD-GWF, 2015 WL 4477697, at *5 (D. Nev. July 20, 2015) (“Many courts will
14
15-CV-540 JLS (JLB)

1

A.

2

The Court will first address Moving Defendants’ argument that Lead Plaintiff fails

3

to plead a material misrepresentation or omission of fact. Mot. at 12. A statement or

4

omission is misleading “if it would give a reasonable investor the ‘impression of a state of

5

affairs that differs in a material way from the one that actually exists.’” Berson v. Applied

6

Signal Tech., Inc., 527 F.3d 982, 985 (9th Cir. 2008) (quoting Brody v. Transitional Hosps.

7

Corp., 280 F.3d 997, 1006 (9th Cir. 2002)). With regards to an omission, “[d]isclosure is

8

required . . . only when necessary to make . . . statements made, in the light of the

9

circumstances under which they were made, not misleading.” Khoja, 899 F.3d at 1009

10

(internal quotation marks and citations omitted). Thus, “companies can control what they

11

have to disclose under these provisions by controlling what they say to the market.” Id.

12

(citations and internal quotation marks omitted). “But once defendants [choose] to tout

13

positive information to the market, they [are] bound to do so in a manner that wouldn't

14

mislead investors, including disclosing adverse information that cuts against the positive

15

information.” Id. (citations and internal quotation marks omitted) (alterations in original).

16

“[A]n omitted fact is material if there is a substantial likelihood that a reasonable

17

shareholder would consider it important.” Basic Inc. v. Levinson, 485 U.S. 224, 231 (1988)

18

(quoting TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976). “[T]here must be

19

a substantial likelihood that the disclosure of the omitted fact would have been viewed by

20

the reasonable investor as having significantly altered the ‘total mix’ of information made

21

available.” Id. at 231–32 (quoting TSC Indus., 426 U.S. at 449). “At a minimum,

22

‘[p]laintiffs’ allegations must suffice to raise a reasonable expectation that discovery will

23

reveal evidence satisfying the materiality requirement, and to allow the court to draw the

24

reasonable inference that the defendant is liable.’” Khoja, 899 F.3d at 1009 (quoting In re

25

Atossa Genetics Inc. Sec. Litig., 868 F.3d at 794).

Material Misrepresentation or Omission of Fact

26
27
28

disregard arguments raised exclusively in footnotes.” (quoting Bryan Garner, The Redbook: A Manual on
Legal Style 168 (3d ed. 2013)))).
15
15-CV-540 JLS (JLB)

1

Moving Defendants argue that “Plaintiff cannot establish falsity, because

2

Defendants had no duty to inform investors that Orexigen filed the March 3 8-K ‘without

3

first informing Takeda.’” Mot. at 12 (quoting CAC ¶ 132). Moving Defendants analogize

4

to Lead Plaintiff’s former claim that Defendants misled investors by failing to disclose that

5

Orexigen had violated the DAP on March 3, 2015, which information the Ninth Circuit

6

determined Defendants had no duty to share “‘because Orexigen never touted having

7

permission to publish’ the 25% data on that date.” Mot. at 13 (quoting Khoja, 899 F.3d at

8

1011). Finally, Moving Defendants argue that, even if any statement or omission were

9

actionable, it must also be material, but “the [CAC] contains no allegations to suggest that

10

a reasonable investor would even care” about Orexigen’s alleged failure to give Takeda

11

advance notice of the March 3, 2015 8-K. Mot. at 13 (footnote omitted).

12

Lead Plaintiff argues that this argument “conflates the standards for evaluating

13

whether a defendant has a duty to disclose material information with those for proximate

14

cause.” Opp’n at 13. While it is true, as this Court noted supra at 14, that this argument

15

does not relate to loss causation, purportedly the only subject of Moving Defendants’

16

Motion, 5 a material misrepresentation or omission of fact is nonetheless a required element

17

of a claim for securities fraud that Lead Plaintiff must plead in order to state a claim, and

18

Lead Plaintiff was put on notice of this argument by Moving Defendants’ thorough

19

treatment of the issue in their opening brief. See Mot. at 12–14. Indeed, Lead Plaintiff’s

20

Opposition contains a section titled “Defendants’ Violation of Their Duty Not to Mislead

21

the Public Has Been Established and is Law of the Case.” Opp’n at 13. However, the

22

section bearing this heading is largely devoted to the reasonable foreseeability of Takeda’s

23

decision to seek termination of its partnership with Orexigen in light of the alleged March

24

3, 2015 omissions, id., and concedes that the Ninth Circuit “found that Defendants did not

25

have a duty to disclose that it had violated the DAP,” id. (citation omitted).

26
27
28

5

See, e.g., Not. of Mot. at 1 (indicating Moving Defendants move for dismissal in part of the CAC “for
failure to plead loss causation”).
16
15-CV-540 JLS (JLB)

1

The Court agrees with Moving Defendants that Lead Plaintiff fails to plead

2

adequately this element of his claim, to the extent it is premised on the May 12, 2015

3

Bloomberg article correcting any misleading statements or omissions from March 3, 2015.

4

Although Lead Plaintiff alleges that “Orexigen filed the Form 8-K without first consulting

5

with the FDA, Dr. Nissen or its own business partner, Takeda,” CAC ¶ 15, Lead Plaintiff

6

does not allege that Moving Defendants had a duty to disclose their failure to provide

7

Takeda with advance notice, nor can the Court plausibly infer from the allegations in the

8

CAC that such a duty existed. Rather, the Court agrees with Moving Defendants that this

9

scenario is similar to Lead Plaintiff’s unsuccessful attempt to plead that it was misleading

10

for Defendants to fail to disclose that the publication of the 25% LIGHT Study data violated

11

the DAP. In dismissing this theory, the Ninth Circuit reasoned:

12

16

Although Orexigen touted the interim results and therefore
created a duty to disclose the corresponding adverse information,
Orexigen never touted having permission to publish the results.
Even though violating the DAP could have negative
consequences for Orexigen (and its investors), Orexigen did not
have a duty to share that information. The Complaint does not
identify earlier statements by Orexigen that suggest a duty either.

17

Khoja, 899 F.3d at 1011. Similarly, here, Lead Plaintiff does not allege that Orexigen

18

touted that it had informed Takeda of its intention to publish the 25% LIGHT Study data,

19

or that Takeda had approved of its decision to do so. Absent a duty to disclose, there is no

20

actionable misleading omission. And, while Defendants’ duty to disclose that the 25%

21

LIGHT Study data were unreliable is certainly law of the case, Defendants’ duty to disclose

22

whether or not they had told Takeda of their intention to disclose those data is not.

23

Accordingly, Lead Plaintiff fails to state a claim to the extent he relies on Moving

24

Defendants’ failure to disclose that they did not inform Takeda in advance of their intention

25

to file the March 3, 2015 8-K. 6

13
14
15

26
27
28

6

In light of the Court’s finding that Lead Plaintiff fails to state a claim due to his failure adequately to
allege a misrepresentation or omission, the Court need not address the materiality of the same.
17
15-CV-540 JLS (JLB)

1

B.

2

The Court next addresses Moving Defendants’ argument that Lead Plaintiff fails to

3

adequately plead loss causation. Mot. at 10–12. To demonstrate loss causation, a plaintiff

4

must allege “a causal connection between the material misrepresentation and the loss.”

5

Dura Pharms., 544 U.S. at 342; see also 15 U.S.C. § 78u-4(b)(4). The Ninth Circuit

6

recently held that, to plead loss causation

7

Loss Causation

by relying on one or more corrective disclosures, a plaintiff must
show that: (1) a corrective disclosure revealed, in whole or in
part, the truth concealed by the defendant's misstatements; and
(2) disclosure of the truth caused the company's stock price to
decline and the inflation attributable to the misstatements to
dissipate. At the pleading stage, the plaintiff's task is to allege
with particularity facts “plausibly suggesting” that both
showings can be made.

8
9
10
11
12
13

In re BofI Holding, Inc. Sec. Litig., No. 18-55415, __ F.3d __, 2020 WL 5951150, at *6

14

(9th Cir. Oct. 8, 2020) (citing Twombly, 550 U.S. at 557; Oregon Public Employees

15

Retirement Fund v. Apollo Group, Inc., 774 F.3d 598, 605 (9th Cir. 2014)). Although Rule

16

9(b)’s heightened pleading standard applies to allegations of loss causation, “[t]hat effort

17

‘should not prove burdensome,’ for even under Rule 9(b) the plaintiff’s allegations will

18

suffice so long as they give the defendant ‘notice of plaintiffs’ loss causation theory’ and

19

provide the court ‘some assurance that the theory has a basis in fact.’” Id. at *8 (quoting

20

Dura Pharms., 544 U.S. at 347; Berson v. Applied Signal Technology, Inc., 527 F.3d 982,

21

989–90 (9th Cir. 2008)).

22

Moving Defendants argue that Lead Plaintiff fails to allege that the disclosures in

23

the May 12, 2015 Bloomberg article correct any allegedly false or misleading statement

24

appearing in the March 3, 2015 8-K. Mot. at 10–12. Specifically, Moving Defendants

25

argue that only two statements from March 3, 2015 “remain at issue”: (1) the failure to

26

reveal in the March 3, 2015 8-K that the 25% LIGHT Study results were “unreliable,” and

27

(2) Defendants’ failure to disclose in the March 3, 2015 press release their role in

28

///
18
15-CV-540 JLS (JLB)

1

publishing the ’371 patent. 7 Mot. at 10. Moving Defendants contend that Lead Plaintiff

2

does not allege that these statements were false or misleading “because of anything

3

Defendants said about Takeda, or because of any omission related to Takeda.” Id. at 10–

4

11 (emphasis in original) (citing CAC ¶¶ 92, 95, 98). Moving Defendants further argue

5

that,

6

12

even if there was a statement on March 3 to tie back to, the May
12 articles that disclose Takeda’s initiation of dispute
proceedings against Orexigen do not actually reveal that
“Defendants had failed to disclose” that Orexigen filed the
March 3 8-K “without first informing Takeda.” Thus, Plaintiff
has not even pleaded an alleged corrective disclosure in the first
place. Indeed, those articles do not suggest any connection
whatsoever between Takeda’s claims for breach of the
collaboration agreement and Orexigen’s alleged failure to
provide advance notice of the March 3 8-K.

13

Id. at 11 (citing CAC ¶¶ 131–32; Exs. D, E, F). Finally, even if such a connection were

14

established, Moving Defendants claim, analogizing to cases addressing the revelation of

15

litigation or investigations, that the mere allegation that “Takeda had sued Orexigen for

16

‘material breach’ based on Orexigen’s failure to give notice of the March 3 8-K” is

17

inadequate, standing on its own, to establish loss causation. Id. at 12 n.9 (citations omitted).

7
8
9
10
11

18

Lead Plaintiff responds that:

19

The May 12, 2015 disclosures make clear for the first time that
Takeda wanted to dissolve its partnership with Defendants based
on “Orexigen’s material breach of the agreement.” The facts
before the Court strongly suggest that this breach relates back to
Defendant’s unilateral decisions to: (i) publish the unreliable
25% interim data; and (ii) hide their role in getting the patent
published. These allegations are “inextricably linked” with
Takeda’s announcement that they were seeking to dissolve their
partnership with Orexigen and leave them with the entire cost of
the subsequent safety [sic].

20
21
22
23
24
25
26
27
28

7

Lead Plaintiff appears to agree that these two statements from March 3, 2015 are the only ones relevant
to the loss causation issue. See, e.g., Opp’n at 16.
19
15-CV-540 JLS (JLB)

1

Opp’n at 16 (citing CAC ¶ 131; In re Silver Wheaton Corp. Sec. Litig., 2019 U.S. Dist.

2

LEXIS 59428, at *40 (C.D. Cal. 2019)). Thus,

3

Defendants’ decision to publicize the unreliable 25% interim
data is the proximate cause of: (i) the LIGHT Study’s
cancellation; (ii) the FDA’s warning that Contrave might be
pulled from the market; and (iii) Takeda’s decision to institute
dispute resolution proceedings. Since Takeda had known since
late 2014 that the FDA would require another safety study, there
is no other reason that it would have resorted to such aggressive
tactics at that time. Moreover, Defendants do not offer one here.

4
5
6
7
8
9

Id. at 17 (citing CAC ¶¶ 55, 126). Lead Plaintiff argues that Moving Defendants’ analogy

10

to government investigation cases is inapt because an announcement of an investigation

11

with something more, such as a corrective disclosure, can establish loss causation, and

12

“[h]ere, Takeda’s announcement, along with the news that [the] LIGHT Study had been

13

terminated prematurely, and following Dr. Jenkins’ March 5 warning ‘gave investors the

14

context necessary to interpret [Takeda’s disclosure] as revealing the fraud.’” Id. at 18

15

(citing Evanston Police Pension Fund v. McKesson Corp., 2019 U.S. Dist. LEXIS 188308,

16

at *44 (N.D. Cal. 2019)) (third alteration in original).

17

Furthermore, according to Lead Plaintiff, the May 12, 2015 Bloomberg article’s

18

disclosure of Takeda’s actions “was a reasonably foreseeable consequence” of Orexigen’s

19

duty to disclose the unreliability of the 25% interim LIGHT Study data in the March 3,

20

2015 8-K. Id. at 13 (citing Khoja, 899 F.3d at 1012–13). Thus, the Ninth Circuit’s analysis

21

of the DAP issue in Khoja supports his argument because, although the Ninth Circuit found

22

no duty to disclose the alleged violations of the DAP, “it identified potential violations (and

23

thus, the attendant risks) as a reasonably foreseeable outcome of their March 3, 2015

24

misstatements and omissions,” which are “‘likely material to reasonable investors.’” Id.

25

(citing Khoja, 899 F.3d at 1013). Ultimately, “whether Orexigen may not have had an

26

affirmative duty to disclose information about its relationship with Takeda, does not mean

27

that such information does not ‘relate back to the fraud.’” Id. at 14 (footnote omitted).

28

///
20
15-CV-540 JLS (JLB)

1

In their Reply, Moving Defendants argue that none of the reasons why the March 3,

2

2015 misstatements are materially false or misleading, as alleged in the CAC, are related

3

to the purported failure to provide notice of the March 3, 2015 8-K to Takeda. Reply at 2–

4

3. This “failure to allege that the March 3 8-K was false or misleading because of anything

5

said or not said about Takeda is dispositive.” Id. at 4. Moving Defendants further argue

6

that, because Lead Plaintiff’s sole loss causation theory pleaded in the CAC is a market-

7

revelation theory, Lead Plaintiff cannot rely on a foreseeable consequences and/or

8

outcomes theory. Reply at 5; see id. at n.4. Even so, Lead Plaintiff’s argument that the

9

May 12, 2015 Bloomberg article establishes that Takeda’s actions related back to the

10

decision to publish the unreliable interim LIGHT Study data is nothing but unsupported

11

speculation that does not satisfy the pleading requirements of Twombly. Id. at 5–7; see

12

also id. at 7 n.7.

13

Having carefully reviewed the pleadings and the Parties’ arguments, the Court

14

agrees that the facts currently alleged in the CAC, viewed in the light most favorable to

15

Lead Plaintiff, simply do not allege a link sufficient for the Court to find that the May 12,

16

2015 Bloomberg article was a “correction” of any false or misleading statements or

17

omissions made on March 3, 2015, or that the Bloomberg article “relates back” to the

18

March 3, 2015 statements or omissions. The Court agrees with Moving Defendants that

19

Lead Plaintiff’s argument that Takeda’s decision to send a letter on May 12, 2015

20

instituting dispute resolution proceedings against Orexigen necessarily relates back to

21

Orexigen’s failure to disclose the unreliability of the 25% LIGHT Study data is

22

unsupported.

23
24
25
26
27
28

As the Ninth Circuit stated in Metzler Investments GMBH v. Corinthian Colleges,
Incorporated:
[W]hile the court assumes that the facts in a complaint are true,
it is not required to indulge unwarranted inferences in order to
save a complaint from dismissal. The TAC’s allegation that the
market understood the June 24 and August 2 disclosures as a
revelation of Corinthian's systematic manipulation of student

21
15-CV-540 JLS (JLB)

1

enrollment is not a “fact.” It is an inference that Metzler believes
is warranted from the facts that are alleged. But Corinthian
persuasively explains why this is not the case.

2
3
4

540 F.3d 1049, 1064–65 (9th Cir. 2008) (citing In re Syntex Corp. Sec. Litig., 95 F.3d 922,

5

926 (9th Cir. 1996)). On the facts presently alleged in the CAC, the Court simply cannot

6

accept as plausible the chain of inferences necessary to permit the May 12, 2015 Bloomberg

7

article to relate back to the March 3, 2015 statements or omissions at issue. The May 12,

8

2015 Bloomberg article does not identify what “material breach” of Orexigen and Takeda’s

9

agreement led Takeda to institute dispute resolution proceedings against Orexigen. See

10

Reply at 5–6; see also Defs.’ Req. Ex. D. Lead Plaintiff claims there can be “no other

11

reason” why Takeda would have resorted to this action at this time. Opp’n at 17 (emphasis

12

omitted). But the Court does not find this inference credible. More than nine weeks had

13

passed between the March 3, 2015 disclosures and Takeda’s sending of the letter alleging

14

a breach of its agreement with Orexigen on May 12, 2015. See Defs.’ Req. Ex. D. It is

15

unlikely Takeda would have waited more than two months to send a letter alleging a breach

16

were the March 3, 2015 disclosures the trigger for the letter. Accordingly, the Court further

17

finds that Lead Plaintiff has failed to adequately plead that the May 12, 2015 Bloomberg

18

article relates back to the allegedly misleading statements or omissions from March 3, 2015

19

in such a way as to satisfactorily plead loss causation.

20

C.

21

The four notices of supplemental authority filed by Lead Plaintiff do not alter the

22

Court’s view that the allegations of the CAC are insufficient to state a claim to the extent

23

they rely on linking the May 12, 2015 Bloomberg article to any misstatements or omissions

24

from March 3, 2015. 8

Lead Plaintiff’s Notices of Supplemental Authority

25
26
8

27
28

The Court notes that Moving Defendants objected to Lead Plaintiff’s Second Notice for exceeding “[t]he
purpose and permissible scope of a notice of supplemental authorities.” Resp. to 2d Not. of Supp. Auth.
at 1. While Lead Plaintiff does use its Notices to provide further arguments and commentary, Moving
Defendants rebutted those arguments, at least as to the first two Notices and the fourth Notice, and had an
22
15-CV-540 JLS (JLB)

1

Lead Plaintiff’s First Notice concerns Karinski v. Stamps.com, Case No. 19-cv-

2

1828-MWF (SKx), 2020 WL 281716 (C.D. Cal. Jan. 17, 2020). See generally 1st Not. of

3

Supp. Auth. However, Karinski is distinguishable from the facts before this Court. First,

4

in Karinski, the court determined that Stamps.com had a duty to disclose USPS’s

5

opposition to Stamps.com’s reseller program, and therefore had made a misleading

6

statement, because it “touted its strong relationship with USPS and USPS’s approval of

7

Stamps’ business model.”

8

misleading statement because there are not sufficient allegations in the CAC to infer that

9

Orexigen had a duty to disclose whether it had informed Takeda in advance that it was

10

going to publish the 25% interim LIGHT Study results in its March 3, 2015 8-K. See supra

11

at 16–17. Moreover, the corrective disclosures at issue in Karinski pertained directly to

12

the alleged misstatements or omissions, as the first announcement concerned the

13

termination of Stamps.com’s exclusive relationship with USPS, “which itself was the

14

subject of the alleged false statements,” and the second announcement concerned the

15

reseller program that was allegedly fraudulent. 2020 WL 281716, at *17–18. Here, the

16

connection between the alleged misstatements or omissions and the alleged corrective

17

disclosure, however, is too tenuous to adequately plead loss causation. See supra at 18–

18

22.

2020 WL 281716, at *12.

Here, Defendants made no

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Lead Plaintiff’s Second Notice concerns In re Twitter, Inc. Securities Litigation,

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Case No. 16-cv-05314-JST, 2020 WL 4187915 (N.D. Cal. Apr. 17, 2020). See generally

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2d Not. of Supp. Auth. Again, however, the Court finds the facts in Twitter distinguishable.

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There, the court concluded that there could be a duty to disclose declining DAU/MAU

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trends in light of Twitter’s statements that, “[i]n our more mature markets, we have very

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high DAU to MAU, 50% plus,” 2020 WL 4187915, at *7 (internal quotation marks

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omitted); “our MAU trend has already turned around,” id. at *9 (same); and “DAU to MAU

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opportunity to do so regarding the third. Ultimately, while the Court has reviewed the Parties’ arguments,
it has conducted its own analysis of the authorities brought to its attention in the Notices.
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ratios in the quarter were similar to what they were by market relative to Analyst Day,” id.

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at *11 (same). Thus, Twitter had touted information that potentially required further

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disclosure. The Court here, on the other hand, has found that not to be the case. See supra

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at 16–17. Moreover, as relevant to loss causation, the corrective disclosures directly

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concerned MAUs and/or DAU/MAU ratios, making clear the relationship of these

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statements to the omission of the declining DAU/MAU trends. See 2020 WL 4187915, at

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*15–18. But, as the Court here has concluded, Lead Plaintiff has failed to adequately allege

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that the disclosures in the May 12, 2015 Bloomberg article adequately relate back to any

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of the alleged omissions or misstatements from March 3, 2015. See supra at 18–22.

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Lead Plaintiff’s Third Notice concerns In re WageWorks, Inc., Securities Litigation,

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Case No. 18-CV-01523-JSW, 2020 WL 2896547 (N.D. Cal. June 1, 2020). See generally

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3d Not. of Supp. Auth. Again, the Court finds the relevant facts to be distinguishable. In

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WageWorks, the lead plaintiffs alleged that, “[b]etween August 2016 and February 2017,

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WageWorks improperly recognized revenue from the OPM contract, even though

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administration of benefits had not begun,” and “failed to write down the value of . . . a

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software platform” that was no longer required by a client. 2020 WL 2896547, at *1. In

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allegedly inflated SEC filings, several of the defendants “made statements highlighting the

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benefits of the OPM contract and certifying that WageWorks’ financial reporting controls

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were adequate.” Id. However, after KPMG refused to certify WageWorks’ 2017 Annual

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Report, WageWorks issued a press release indicating “that WageWorks’ previous controls

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were inadequate due to the ‘tone at the top’ and that previous financial statements ‘should

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no longer be relied upon.’” Id. at *2. And, in its 2017 Form 10-K, WageWorks

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acknowledged that “‘material weaknesses in internal controls’ . . . led to false material

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statements in 2016 and 2017, and “‘[i]n the second quarter of 2016, the client notified

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[WageWorks] that it no longer required the services,’ which rendered the [software

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platform]’s value ‘unrecoverable.’” Id. Thus, in WageWorks, the alleged corrective

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disclosures correlated to the allegedly inflated revenue reporting. That is not the case here.

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See supra at 18–22.
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1

Finally, Lead Plaintiff’s Fourth Notice concerns In re BofI Holding, Inc. Securities

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Litigation, No. 18-55415, __ F.3d __, 2020 WL 5951150 (9th Cir. Oct. 8, 2020). See

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generally 4th Not. of Supp. Auth.; Reply ISO 4th Not. of Supp. Auth. Once more, the

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Court finds the facts of BofI distinguishable. First, in BofI, “the shareholders allege that

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defendants made false or misleading statements touting the bank's conservative loan

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underwriting standards, its effective system of internal controls, and its robust compliance

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infrastructure.” 2020 WL 5951150, at *2. BofI was not accused of misleading omissions,

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so the issue here of a failure to allege adequately a duty to disclose was absent.

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Second, in BofI, the alleged corrective disclosure was “a whistleblower lawsuit filed

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against BofI by Charles Erhart, a former mid-level auditor at the company.” Id. at *3. The

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Ninth Circuit found that “[t]he allegations of egregious wrongdoing in the Erhart lawsuit,

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if accepted as true, unquestionably revealed to the market that at least some of BofI’s

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alleged misstatements were false.” Id. at *6. For instance, one of the allegations was “that

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[Erhart] personally prepared a memorandum . . . which identified roughly 30% of BofI’s

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customers as ‘bad,’ meaning the customers had red flags such as suspiciously high cash

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balances, social security numbers that did not match any public records, and, in one

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instance, the social security number of a dead person,” but “when he gave the list to his

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superior, Senior Vice President John Tolla, Tolla demanded that the audit committee alter

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the list and give the altered version to the OCC.” Id. at *6. Thus, there’s a clear connection

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between the alleged misleading statements and the correcting disclosure. While the Ninth

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Circuit noted that, to relate back, “a corrective disclosure need not be a mirror image of the

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prior misstatement,” id. at *6 n.3 (citing In re Williams Sec. Litig.—WCG Subclass, 558

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F.3d 1130, 1140 (10th Cir. 2009)), the alleged corrective disclosure here bears almost no

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relation to the alleged misstatement or omission, and it would require the Court to accept

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unsupported and implausible inferences to find a causal connection between the alleged

26

loss and the statements. Thus, this is more a case of “‘asserting that where there is smoke,

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there must be fire.’” Id. at *8 (quoting Curry v. Yelp Inc., 875 F.3d 1219, 1225 (9th Cir.

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///
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2017)). Accordingly, BofI does not help Lead Plaintiff on the facts presently pleaded in

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the CAC. 9

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Thus, in light of Lead Plaintiff’s failure to allege adequately that the May 12, 2015

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Bloomberg article relates back to a material misrepresentation or omission of fact from

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March 3, 2015, the Court GRANTS Moving Defendants’ Motion.

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D.

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Moving Defendants urge the Court to deny leave to amend, “as Plaintiff could never

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allege a cognizable fraud claim based on this theory.” Mot. at 14. While the Court is

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skeptical that Lead Plaintiff will be able to allege adequately that the May 12, 2015

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Bloomberg article relates back to the alleged misrepresentations or omissions from March

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3, 2015, the Court also is not convinced that it is an impossibility, and Lead Plaintiff has

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not yet had an opportunity to amend these allegations. Thus, the Court will grant Lead

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Plaintiff one final opportunity to amend. Accordingly, the Court DISMISSES Plaintiff’s

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claims to the extent they rely on a connection between the May 12, 2015 Bloomberg article

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and the March 3, 2015 misleading statements and/or omissions, but will do so WITHOUT

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PREJUDICE.

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Leave to Amend

CONCLUSION

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In light of the foregoing, the Court GRANTS IN PART AND DENIES IN PART

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Moving Defendants’ Request to Consider Materials Incorporated by Reference (ECF No.

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114-9) and GRANTS Moving Defendants’ Motion (ECF No. 114). Lead Plaintiff MAY

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FILE an amended consolidated complaint within thirty (30) days of the date on which this

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///

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Lead Plaintiff also makes much of the fact that, in BofI, the Ninth Circuit held that allegations in a lawsuit
alone can serve as a corrective disclosure, and there need not be an additional disclosure to confirm the
truth of those allegations. See id. at *7. Lead Plaintiff contends that Takeda, like Erhart, had “firsthand
knowledge” of the alleged misconduct. 4th Not. of Supp. Auth. at 1. But the Court finds distinguishable
allegations in a lawsuit, made by a person with firsthand knowledge and publicly filed for all to see, and
an article written by a person without firsthand knowledge reporting on the mere sending of, and not the
specific allegations in, a demand letter, even if the demand letter in question came from someone with
firsthand knowledge of the alleged misconduct.
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Order is electronically docketed. Should Lead Plaintiff fail to file an amended complaint

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by this date, this action will proceed on his surviving causes of action.

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IT IS SO ORDERED.
Dated: November 2, 2020

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