Rochester Laborers Pension Fund v. Monsanto Company et al

Filing 72

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to supplement the record [# 68 ] is denied. IT IS FURTHER ORDERED that, no later than January 11, 2012, plaintiff shall file a written memorandum advising the Court whether i t intends to seek leave to amend the second amended complaint. Plaintiff waives its right to seek amendment if it fails to comply with this Memorandum and Order. IT IS FURTHER ORDERED that any motion for leave to amend and accompanying proposed amended complaint must be filed by Friday, January 20, 2012. Defendants shall file any opposition to the motion to amend by January 30, 2012 , and any reply brief shall be filed by plaintiff no later than February 6, 2012 . The standard page limitations shall apply. (Response to Court due by 1/11/2012.) Signed by Honorable Catherine D. Perry on January 5, 2012. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROCHESTER LABORERS
PENSION FUND, individually
and on behalf of all others similarly
situated,
Plaintiff,
vs.
MONSANTO COMPANY, et al.,
Defendants.

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Case No. 4:10CV1380 CDP

MEMORANDUM AND ORDER
This matter is before me on plaintiff’s motion to supplement the record.
Defendants’ motion to dismiss the second amended complaint is pending before
me, and plaintiff moves to “supplement the record” with allegations and evidence
that: Monsanto is currently being investigated by the Securities and Exchange
Commission for its customer incentive programs relating to its glyphosate
products in fiscal years 2009 and 2010; Monsanto recently disclosed that it would
restate portions of its financial statements related to the accounting for customer
incentive programs for glyphosate products from the fourth quarter of fiscal year
2009 through the third quarter of fiscal year 2011; on October 5, 2011, Monsanto
disclosed gross profit guidance of approximately $6.5 billion for fiscal 2012; and,

on November 14, 2011, Monsanto filed its restated financial results for its 2009
and 2010 fiscal years and certain quarters of its fiscal 2011 with the SEC. Plaintiff
argues that “the scope and nature of the SEC’s investigation and Monsanto’s
restatement relating to glyphosate sales further support the complaint’s allegations
of falsity and scienter and demonstrate that these financial statements were
materially false and misleading at the time they were filed with the SEC.” Plaintiff
contends that the time frame being investigated by the SEC substantially overlaps
the class period, and that the investigation and restatement concern glyphosate, a
core focus of plaintiff’s allegations.
Defendants oppose this motion as an improper attempt to amend the
complaint without actually seeking leave to do so, and I agree. Plaintiff now
appears to be challenging Monsanto’s customer incentive programs for glyphosate
and the accounting methods used to account for them as false and misleading, but
the operative complaint is devoid of such allegations. Plaintiff’s allegations and
proposed evidence put new statements at issue and raise new issues of falsity,
materiality, and scienter. It is improper for me to consider this evidence in the
manner requested by plaintiff.
However, plaintiff is not precluded from presenting these allegations and
supporting evidence to me through a motion to amend the complaint. Although
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this case and the pending motion to dismiss are undoubtedly already complex,
neither the parties nor the interests of judicial economy are served if plaintiff waits
to seek leave to amend only after I issue my ruling on the motion to dismiss.
Therefore, if plaintiff intends to ask the Court to consider the new evidence and
allegations it must notify the Court of its intention to seek amendment by Tuesday,
January 11, 2012. Any motion to amend and accompanying proposed amended
complaint must be filed by Friday, January 20, 2012. Plaintiff will be deemed to
waive its right to seek amendment if it fails to do so in compliance with this
Memorandum and Order, and I will decide the pending motion to dismiss based
solely on the materials previously filed and without consideration of the evidence
submitted in plaintiff’s motion to supplement.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to supplement the
record [#68] is denied.
IT IS FURTHER ORDERED that, no later than January 11, 2012,
plaintiff shall file a written memorandum advising the Court whether it
intends to seek leave to amend the second amended complaint. Plaintiff
waives its right to seek amendment if it fails to comply with this
Memorandum and Order.
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IT IS FURTHER ORDERED that any motion for leave to amend and
accompanying proposed amended complaint must be filed by Friday, January 20,
2012. Defendants shall file any opposition to the motion to amend by January
30, 2012, and any reply brief shall be filed by plaintiff no later than February 6,
2012. The standard page limitations shall apply.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 5th day of January, 2012.

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