POTTER v. VALEANT PHARMACEUTICALS INTERNATIONAL, INC. et al

REPLY BRIEF to Opposition to Motion

D.N.J.February 13, 2019

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY IN RE: VALEANT PHARMACEUTICALS INTERNATIONAL, INC. SECURITIES LITIGATION _____________________________________ THIS DOCUMENT RELATES TO: 18-cv-10246-MAS-LHG (Timber Hill LLC) Civil Action No. 15-7658 JUDGE MICHAEL A. SHIPP JUDGE LOIS H. GOODMAN (ORAL ARGUMENT REQUESTED) Motion Day: February 19, 2019 REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT UNDER RULE 12(b)(6) AND STRIKE THE CLASS ALLEGATIONS UNDER RULES 12(f), 23(a)(1)(A) AND 23(d)(1)(D) Richard Hernandez McCARTER & ENGLISH, LLP Four Gateway Center 100 Mulberry Street Newark, New Jersey 07102 Telephone: (973) 848-8615 Facsimile: (973) 297-6615 Paul C. Curnin (pro hac vice) Craig S. Waldman (pro hac vice) Daniel J. Stujenske (pro hac vice) SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, NY 10017-3954 Telephone: (212) 455-2000 Facsimile: (212) 455-2502 Attorneys for Defendants Valeant Pharmaceuticals International, Inc., Robert L. Rosiello, and Ari S. Kellen (Additional counsel listed on signature page) Case 3:15-cv-07658-MAS-LHG Document 420 Filed 02/13/19 Page 1 of 15 PageID: 13025 i TABLE OF CONTENTS Page PRELIMINARY STATEMENT .................................................................................................... 1 ARGUMENT .................................................................................................................................. 1 I. TIMBER HILL CANNOT PROCEED AS AN INDEPENDENT CLASS ACTION ............................................................................................................................. 1 A. Lead Plaintiff Contends Timber Hill’s Complaint Is A Legal Nullity ................... 2 B. If Timber Hill’s Complaint Is Deemed Operable, It May Only Be Maintained As An Individual Opt-Out ................................................................... 3 II. TIMBER HILL’S FEDERAL CLAIMS ARE UNTIMELY .............................................. 5 A. The Securities Fraud Claims Fail Under The Statute Of Limitations ..................... 5 B. China Agritech Establishes That A Class Action Does Not Toll The Statute Of Limitations For A Subsequent Class Action ......................................... 7 C. American Pipe Tolling Only Applies To Claims Of Plaintiffs Who File After A Class Certification Decision ...................................................................... 8 D. The Statute Of Repose Limits Plaintiff’s Claims ................................................. 10 CONCLUSION ............................................................................................................................. 10 Case 3:15-cv-07658-MAS-LHG Document 420 Filed 02/13/19 Page 2 of 15 PageID: 13026 ii TABLE OF AUTHORITIES Page(s) Cases American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974) ........................................................................................................ 8, 9 BlackRock Glob. Allocation Fund, Inc. v. Valeant Pharm. Int’l, Inc., 2018 WL 4401727 (D.N.J. Sept. 14, 2018) ........................................................................ 7 China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018) .......................................................................................... 7, 8, 9, 10 City of Pontiac Gen. Emps.’ Ret. Sys. v. MBIA, Inc., 637 F.3d 169 (2d Cir. 2011)................................................................................................ 5 Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983) ............................................................................................................ 8 In re Hanford Nuclear Reservation Litig., 534 F.3d 986 (9th Cir. 2008) .............................................................................................. 9 In re Initial Pub. Offering Sec. Litig., 224 F.R.D. 550 (S.D.N.Y. 2004) ........................................................................................ 4 In re Initial Public Offering Sec. Litig., 214 F.R.D. 117 (S.D.N.Y. 2002) ........................................................................................ 4 In re OSB Antitrust Litig., 2007 WL 2253425 (E.D. Pa. Aug. 3, 2007) ....................................................................... 4 In re Qwest Commc’ns Int’l, Inc. Sec. Litig., 283 F.R.D. 623 (D. Colo. 2005) ......................................................................................... 2 In re Terayon Commcn’s Sys., Inc., 2004 WL 413277 (N.D. Cal. Feb. 23, 2004) ...................................................................... 4 In re Valeant Pharm. Int’l, Inc. Sec. Litig., 2017 WL 1658822 (D.N.J. Apr. 28, 2017) ......................................................................... 5 In re WorldCom Sec. Litig., 496 F.3d 245 (2d Cir. 2007)................................................................................................ 9 Lord Abbett Inv. Tr.-Lord Abbett Short Duration Income Fund v. Valeant Pharm. Int’l, Inc., 2018 WL 3637514 (D.N.J. July 31, 2018) .......................................................................... 7 Case 3:15-cv-07658-MAS-LHG Document 420 Filed 02/13/19 Page 3 of 15 PageID: 13027 iii Merck & Co. v. Reynolds, 559 U.S. 633 (2010) ............................................................................................................ 5 Merino v. Wells Fargo & Co., 2017 WL 3908670 (D.N.J. Sept. 6, 2017) .......................................................................... 3 Pension Tr. Fund for Operating Eng’rs v. Mortg. Asset Securitization Transactions, Inc., 730 F.3d 263 (3d Cir. 2013)............................................................................................ 5, 7 Pentwater Equity Opportunities Master Fund Ltd v. Valeant Pharm. Int’l, Inc., 2018 WL 4401722 (D.N.J. Sept. 14, 2018) ........................................................................ 7 Senzar Healthcare Master Fund, LP v. Valeant Pharm. Int’l, Inc., 2018 WL 4401730 (D.N.J. Sept. 14, 2018) .................................................................... 6, 7 State Farm Mut. Auto. Ins. Co. v. Boellstorff, 540 F.3d 1223 (10th Cir. 2008) .......................................................................................... 9 Stichting Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125 (C.D. Cal. 2011) .............................................................................. 6 Thomas v. Corr. Med. Servs., Inc., 2009 WL 737105 (D.N.J. Mar. 17, 2009) ....................................................................... 8, 9 Wallach v. Eaton Corp., 837 F.3d 356 (3d Cir. 2016)................................................................................................ 9 Weitzner v. Sanofi Pasteur Inc., 2018 WL 6175580 (3d Cir. Nov. 27, 2018) ...................................................................... 10 Statutes 28 U.S.C. § 1658 ............................................................................................................................. 5 Rules 1Federal Rules of Civil Procedure 4(a)(1)(E) ................................................................................... 1 Federal Rules of Civil Procedure 12(a)(1)(A)(ii) ........................................................................... 1 Case 3:15-cv-07658-MAS-LHG Document 420 Filed 02/13/19 Page 4 of 15 PageID: 13028 1 PRELIMINARY STATEMENT Plaintiffs have filed two contradictory oppositions. Lead Plaintiff TIAA says that Timber Hill has no separate Complaint at this point because Timber Hill is part of the consolidated class. Timber Hill says its Complaint is operative and it can proceed either as a class action or as an opt-out. Both cannot be right. Defendants do not disagree that the Timber Hill Complaint is consolidated and therefore can be dismissed on that basis. In any event, Timber Hill’s class allegations must be stricken, as Timber Hill concedes in its Opposition that it has not been appointed as a lead plaintiff under the PSLRA. In addition, on the merits, Timber Hill’s claims are time-barred as there is no viable dispute that Timber Hill’s Complaint was filed more than two years after a reasonably diligent plaintiff publicly filed similar claims. ARGUMENT I. TIMBER HILL CANNOT PROCEED AS AN INDEPENDENT CLASS ACTION After the Court denied Timber Hill’s motion for deconsolidation and for appointment as the PSLRA lead plaintiff for a class of options traders, see Docket No. 392, Timber Hill served waivers of service on Defendants. Remarkably, having done so, Timber Hill now suggests that it was premature for Defendants to respond to its Complaint and TIAA suggests that a response was somehow improper. See TH Opp. at 2; TIAA Opp. at 6. Neither is true. Defendants were, of course, obligated to respond to the Timber Hill Complaint within sixty days of receipt of waivers of service. Fed. R. Civ. P. 4(a)(1)(E), 12(a)(1)(A)(ii). Indeed, the waivers of service served by Timber Hill expressly repeat this requirement. See Ex. 1, Timber Hill LLC v. Valeant Pharm. Int’l, Inc., No. 3:18-cv-10246, Dkt. Nos. 6-10.1 Defendants 1 References to Ex. _ refer to the Declaration of Richard Hernandez, dated February 13, 2019. Case 3:15-cv-07658-MAS-LHG Document 420 Filed 02/13/19 Page 5 of 15 PageID: 13029 2 alerted Plaintiffs to the intention to file this motion well in advance, and Plaintiffs took no steps to resolve the issue without requiring Defendants to move. If Defendants had failed to respond to Timber Hill’s Complaint, Plaintiffs would be seeking default judgments or arguing waiver. A. Lead Plaintiff Contends Timber Hill’s Complaint Is A Legal Nullity Defendants do not challenge TIAA’s assertions that Timber Hill’s Complaint is a legal nullity and that non-lead plaintiffs like Timber Hill have only a “passive role” in the litigation under the PSLRA. See TIAA Opp. at 8; In re Qwest Commc’ns Int’l, Inc. Sec. Litig., 283 F.R.D. 623, 625 (D. Colo. 2005). We respond briefly to TIAA’s other points below. First, TIAA asserts that Defendants “ignore[d]” that the Court denied Timber Hill’s motions for relief from consolidation and appointment as lead plaintiff. TIAA Opp. at 3-4. To the contrary, Defendants’ argument was premised on this fact. See Defs.’ Br. at 7-9. It was Timber Hill that chose to serve waivers of service after the Court’s consolidation order, imposing an obligation on Defendants to respond to the Complaint. Contrary to TIAA’s contentions, it is Timber Hill-not Defendants-that seeks to evade the Court’s consolidation order and “undermine the lead plaintiff provisions of the PSLRA.” See TIAA Opp. at 7, 9. Second, TIAA references the complaints that were filed more than three years ago, before they were consolidated as a single class action and before TIAA was appointed lead plaintiff. See TIAA Opp. at 5-6. TIAA asserts that because Defendants “never answered or otherwise pled in response” to the pre-consolidation class actions, Defendants “know that their motion is unnecessary and wasteful” and are merely bringing it “in order to test the waters on arguments that were already addressed, or that defendants failed to raise, in the Consolidated Action.” TIAA Opp. at 6, 9; see also TH Opp. at 2 n.3. This argument misrepresents the procedural record. More than three years ago, the parties stipulated that Defendants would not answer or Case 3:15-cv-07658-MAS-LHG Document 420 Filed 02/13/19 Page 6 of 15 PageID: 13030 3 move to dismiss the pre-consolidation class action complaints. Ex. 2, In re Valeant Pharm. Int’l, Inc. Sec. Litig., No. 15-cv-7658, Dkt. No. 17. Third and finally, TIAA characterizes Defendants’ opening brief as an “improper attempt to preempt lead plaintiff’s class certification motion and the Court’s subsequent ruling on it,” TIAA Opp. at 11-12, while at the same time asserting that Defendants’ opening brief “‘does not address TIAA’s class action allegations’ but ‘only relates to [Timber Hill’s] complaint.’” TIAA Opp. at 4 (citing Defs.’ Br. at 7 n.5). Once again, both propositions cannot be true. B. If Timber Hill’s Complaint Is Deemed Operable, It May Only Be Maintained As An Individual Opt-Out At various times in its Opposition, Timber Hill maintains that: (a) it is a “member of the putative class alleged” by TIAA (TH. Opp. at 3); (b) the Court might in the future “certify a class or subclass of derivatives traders” with Timber Hill as the class representative (TH. Opp. at 11); and (c) its Complaint is really an opt-out action (TH. Opp. at 2). None of these mutually inconsistent theories justifies allowing Timber Hill’s improper class action allegations to stand. Timber Hill admits that TIAA is lead plaintiff, but suggests that it may, sometime, assert control over the Consolidated Class Action. See TH Opp. at 1. Timber Hill tries to gloss over the fact that the Court denied its motion for appointment as lead plaintiff, characterizing the Court’s order as merely “provisional.” TH Opp. at 1. But since Timber Hill plainly is not a lead plaintiff under the PSLRA, it does not represent the putative class of options traders, and it is clear “from the face of [its] complaint that the requirements for maintaining a class action cannot be met.” Merino v. Wells Fargo & Co., 2017 WL 3908670, at *4 (D.N.J. Sept. 6, 2017). Therefore, Plaintiff’s allegations “brought on behalf of Plaintiff and other similarly situated persons and entities that purchased call options,” Compl. at 1, should be stricken. Case 3:15-cv-07658-MAS-LHG Document 420 Filed 02/13/19 Page 7 of 15 PageID: 13031 4 If Timber Hill believes TIAA is not adequately representing the interests of its putative class of derivatives traders, it can move the Court to disqualify or remove the appointed lead plaintiff, but the operative pleading would still be the Consolidated Class Complaint, not Timber Hill’s separate Complaint. See In re Initial Pub. Offering Sec. Litig., 224 F.R.D. 550, 552 (S.D.N.Y. 2004) (considering motions to withdraw, substitute, and add lead plaintiffs); In re Terayon Commcn’s Sys., Inc., 2004 WL 413277, at *7-9 (N.D. Cal. Feb. 23, 2004) (considering motion to disqualify lead plaintiff); see also In re OSB Antitrust Litig., 2007 WL 2253425, at *5 (E.D. Pa. Aug. 3, 2007) (disqualifying the named plaintiffs as inadequate class representatives and allowing plaintiffs to substitute three new class representatives with members of the putative class). Timber Hill also argues that after certifying TIAA’s putative class, the Court might appoint Timber Hill as a class representative for a sub-class of options traders, so Timber Hill’s class allegations should not be stricken. TH. Opp. at 1. But here too, even if that were to happen, those claims would fall under the Consolidated Class Action Complaint filed by TIAA, not the separate Complaint filed by Timber Hill. And notably, TIAA’s motion for class certification does not seek a separate sub-class of options traders, and does not seek to appoint Timber Hill as a class representative. Timber Hill’s citation to In re Initial Public Offering Sec. Litig., 214 F.R.D. 117, 123 (S.D.N.Y. 2002) is perplexing, since in that consolidated action, plaintiffs sought to substitute new lead plaintiffs pursuant to the PSLRA after the lead plaintiff withdrew from the consolidated action. See TH Opp. at 1 n.2. That is not the case here. TIAA has expressed no desire to substitute new lead plaintiffs. To the contrary, TIAA’s brief argues that it is “clear that Timber Hill is not going to be leading any class action.” TIAA Opp. at 11. Case 3:15-cv-07658-MAS-LHG Document 420 Filed 02/13/19 Page 8 of 15 PageID: 13032 5 II. TIMBER HILL’S FEDERAL CLAIMS ARE UNTIMELY A. The Securities Fraud Claims Fail Under The Statute Of Limitations Timber Hill concedes that the facts alleged in its Complaint are identical to those first asserted back in October 2015 that later comprised the Consolidated Class Action Complaint. TH Opp. at 6. Indeed, as TIAA points out, Timber Hill filed a “duplicative” complaint that “contained neither new allegations nor distinct legal claims.” TIAA Opp. at 3. Timber Hill itself concedes that “this Court has considered the same set of facts multiple times in the context of other motions to dismiss.” TH Opp. at 6. Timber Hill also does not dispute that the two-year statute of limitations for its federal claims runs from the earliest of when it “did discover or a reasonably diligent plaintiff would have ‘discovered the facts constituting the violation.’” Merck & Co., Inc. v. Reynolds, 559 U.S. 633, 653 (2010) (quoting 28 U.S.C. § 1658(b)(1)); TH Opp. at 24. Timber Hill concedes that the time when a fact is “discovered” is when a reasonable plaintiff is able to “adequately plead it in a complaint . . . with sufficient detail and particularity to survive a 12(b)(6) motion to dismiss.” Pension Tr. Fund for Operating Eng’rs v. Mortg. Asset Securitization Transactions, Inc., 730 F.3d 263, 275 (3d Cir. 2013) (quoting City of Pontiac Gen. Emps.’ Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 175 (2d Cir. 2011)); TH Opp. at 24. The inquiry should end here. There is no dispute that other plaintiffs pleaded the same claims asserted back in October 2015, based on the same factual allegations, and that those claims later survived a 12(b)(6) motion to dismiss in the Consolidated Class Action. See In re Valeant Pharm. Int’l, Inc. Sec. Litig., 2017 WL 1658822, at *10-13 (D.N.J. Apr. 28, 2017). Nowhere in the entirety of its Opposition does Timber Hill actually argue that it could not have asserted its claims prior to June 6, 2016 or that a complaint filed before that time would not have survived a motion to dismiss. The statute of limitations runs from the time when a plaintiff has “‘information and evidence Case 3:15-cv-07658-MAS-LHG Document 420 Filed 02/13/19 Page 9 of 15 PageID: 13033 6 sufficient to survive a motion to dismiss,’ not when a plaintiff has every conceivable fact that it will ultimately use to prove its case.” Stichting Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125, 1137-38 (C.D. Cal. 2011) (quoting City of Pontiac, 637 F.3d at 174). Further, Timber Hill does not and cannot argue that any events after June 6, 2016 actually revealed any alleged misstatements not already included in the complaints filed in October 2015. Accordingly, the Timber Hill Complaint, filed on June 6, 2018, is untimely. Timber Hill incorrectly argues that the Court’s prior decisions regarding other plaintiffs’ earlier-filed Section 18 claims establish August 10, 2016, as the date when the statute of limitations began to run and that its claims are “unquestionably not subject to dismissal under the two-year statute of limitations.” TH Opp. at 6 n.9. This argument mischaracterizes the prior decisions. In the action referred to by Timber Hill,2 the parties’ dispute centered on whether a one-year or two-year statute of limitations applied, not the date that the statute began to run. See, e.g., Senzar Healthcare Master Fund, No. 18-cv-2286, Dkt. No. 21-1 (Defs.’ Mem. of Law) at 3-4; Dkt. No. 34 (Pls.’ Mem. of Law) at 4-9. In Senzar, the Court did not need to resolve the issue of when the statute of limitations began to run for Plaintiffs’ Section 18 claims, as Defendants did not challenge the timeliness of the claims if a two-year statute of limitations applied. Accordingly, the Court “[a]ssum[ed] all Section 18 claims accrued on or before August 10, 2016,” and did not determine the date upon which a reasonable plaintiff would have discovered facts sufficient to plead a Section 18 claim. Senzar Healthcare Master Fund, LP v. Valeant Pharm. Int’l, Inc., 2018 WL 4401730, at *3 (D.N.J. Sept. 14, 2018) (emphasis added); see also BlackRock Global Allocation Fund, Inc. v. 2 Senzar Healthcare Master Fund, LP v. Valeant Pharm. Int’l, Inc., 2018 WL 4401730, at *2-3 (D.N.J. Sept. 14, 2018). Case 3:15-cv-07658-MAS-LHG Document 420 Filed 02/13/19 Page 10 of 15 PageID: 13034 7 Valeant Pharm. Int’l Inc., 2018 WL 4401727, at *2-3 (D.N.J. Sept. 14, 2018) (adopting analysis in Lord Abbett Inv. Tr.-Lord Abbett Short Duration Income Fund v. Valeant Pharm. Int’l, Inc., 2018 WL 3637514 (D.N.J. July 31, 2018)); Pentwater Equity Opportunities Master Fund Ltd v. Valeant Pharm. Int’l, Inc., 2018 WL 4401722, at *2-3 (D.N.J. Sept. 14, 2018) (same); Lord Abbett, 2018 WL 3637514, at *8 (finding Defendants’ arguments that statute of limitations began to run no later than June 24, 2016 were moot, given applicability of two-year statute of limitations). There would be no inconsistency between those holdings and a finding that the statute of limitations for Timber Hill’s claims began to run on or before October 30, 2015.3 The unambiguous rule in this Circuit is that the statute of limitations runs from the time when a reasonable plaintiff could have pleaded Section 10(b) claims that would survive a motion to dismiss. Pension Tr. Fund, 730 F.3d at 275. Other plaintiffs did plead Section 10(b) claims that ultimately survived a motion to dismiss once their actions were consolidated. B. China Agritech Establishes That A Class Action Does Not Toll The Statute Of Limitations For A Subsequent Class Action Timber Hill asserts (in one part of its brief) that it should be treated as a class action not an individual action. TH Opp. at 2. In China Agritech, the Supreme Court held that a class action does not toll the statute of limitations for a subsequently filed class action, writing, “[t]he efficiency and economy of litigation that support tolling of individual claims do not support maintenance of untimely successive class actions.” China Agritech, Inc. v. Resh, 138 S. Ct. 1800, 1806 (2018). The Supreme Court noted that, “[a] would-be class representative who commences suit after expiration of the limitation period, however, can hardly qualify as diligent in asserting claims and pursuing relief. Her interest in representing the class as lead plaintiff, 3 Nor would there be any inconsistency with this Court’s prior rulings on loss causation and fraud-on-the market. See Defs.’ Br. at 13 n.7. Case 3:15-cv-07658-MAS-LHG Document 420 Filed 02/13/19 Page 11 of 15 PageID: 13035 8 therefore, would not be preserved by the prior plaintiff’s timely filed class suit.” Id. at 1808. As the Court held: The watchwords of American Pipe are efficiency and economy of litigation, a principal purpose of Rule 23 as well. Extending American Pipe tolling to successive class actions does not serve that purpose. The contrary rule, allowing no tolling for out-of-time class actions, will propel putative class representatives to file suit well within the limitation period and seek certification promptly. For all the above-stated reasons, it is the rule we adopt today: Time to file a class action falls outside the bounds of American Pipe. Id. at 1811. As a subsequently filed putative class action, Timber Hill’s claims are not subject to American Pipe tolling and are time-barred. C. American Pipe Tolling Only Applies To Claims Of Plaintiffs Who File After A Class Certification Decision In a different part of its brief, Timber Hill wants the Court to treat it as an opt-out action, not a class action. But even then, American Pipe still does not apply. Timber Hill attempts to rewrite American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), and Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345 (1983), to salvage its untimely claims but cannot rely on those tolling principles because it filed its action before a decision on class certification. See Thomas v. Corr. Med. Servs., Inc., 2009 WL 737105, at *4 (D.N.J. Mar. 17, 2009). American Pipe and Crown, Cork are limited to individual actions filed after a class certification decision. China Agritech, 138 S. Ct. at 1806 (“American Pipe and Crown, Cork addressed only putative class members who wish to sue individually after a class-certification denial.”) (emphasis added). American Pipe and Crown, Cork do not address the situation where plaintiffs choose to file an individual action before a class certification decision is rendered. While courts in various jurisdictions disagree as to whether the tolling rule applies to those claims, there is no disagreement in this district.4 Every court in this district that has considered 4 The cases Timber Hill cites rely on an overbroad reading of a single sentence in American Pipe: “The commencement of a class action suspends the applicable statute of limitations as to Case 3:15-cv-07658-MAS-LHG Document 420 Filed 02/13/19 Page 12 of 15 PageID: 13036 9 this question holds that the statute of limitations is not tolled for plaintiffs who opt out before a class certification decision. E.g., Thomas, 2009 WL 737105, at *4 (“[T]here is no reason why [the filing of the class action] should toll the statute of limitations for Plaintiff’s claims, which were filed four years before the denial of the class certification.”); Defs.’ Br. at 14-15 (collecting cases). The Third Circuit has not decided this issue. The Third Circuit case upon which Timber Hill primarily relies addressed a different circumstance: plaintiffs who sought to intervene as class representatives because the putative class was inadequate. Wallach v. Eaton Corp., 837 F.3d 356, 363, 371 (3d Cir. 2016). The Third Circuit found that those plaintiffs-who did not file separate actions-benefited from American Pipe tolling. Wallach, 837 F.3d at 363, 371-72 (explaining that plaintiffs would be harmed if they could not intervene because there was a risk that the named representative lacked standing). The Supreme Court’s recent China Agritech decision offers further support for this district’s rule that American Pipe does not extend tolling to plaintiffs who opt out before a class certification decision. In China Agritech, the Court refused to expand American Pipe and Crown, Cork beyond their specific holdings, explaining that those cases “addressed only putative class members who wish to sue individually after a class-certification denial,” and that all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” 414 U.S. at 554. See In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1008-09 (9th Cir. 2008); State Farm Mut. Auto. Ins. Co. v. Boellstorff, 540 F.3d 1223, 1230 (10th Cir. 2008); In re WorldCom Sec. Litig., 496 F.3d 245, 254 (2d Cir. 2007). American Pipe only discussed tolling with respect to class members who filed after class certification. 414 U.S. at 553. While plaintiffs “have a right to file at the time of their choosing,” In re Hanford, 534 F.3d at 1009, they do not have the right to take advantage of a tolling rule meant for those who file after class certification if they file before class certification. All of the above-mentioned cases were decided before the Supreme Court clarified the purpose of American Pipe tolling in China Agritech. See 138 S. Ct. at 1811; Defs.’ Br. at 17 n.10. Case 3:15-cv-07658-MAS-LHG Document 420 Filed 02/13/19 Page 13 of 15 PageID: 13037 10 “[n]either decision so much as hints that tolling extends to otherwise time-barred” claims. 138 S. Ct. at 1806 (emphasis added). Timber Hill thus cannot extend a decision to apply tolling to plaintiffs who file before class certification. The Third Circuit recently relied on China Agritech in refusing to apply American Pipe tolling to class claims brought after a class certification denial. Weitzner v. Sanofi Pasteur Inc., 2018 WL 6175580, at *4 (3d Cir. Nov. 27, 2018). D. The Statute Of Repose Limits Plaintiff’s Claims Timber Hill does not dispute that its claims are barred by the statute of repose to the extent it rests on statements made before June 6, 2013. As such, those claims should be dismissed. CONCLUSION Defendants respectfully request that the Court strike all purported class allegations from the Complaint and dismiss Timber Hill’s Complaint with prejudice. Case 3:15-cv-07658-MAS-LHG Document 420 Filed 02/13/19 Page 14 of 15 PageID: 13038 11 Dated: February 13, 2019 DEBEVOISE & PLIMPTON LLP /s/ Matthew Petrozziello Matthew Petrozziello 919 Third Avenue New York, NY 10022 Telephone: (212) 909-6000 Fax: (212) 909-6836 Jonathan R. Tuttle (pro hac vice) Ada. F. Johnson (pro hac vice) 801 Pennsylvania Avenue, NW Washington, D.C. 20004 Telephone: (202) 383-8000 Fax: (202) 383-8118 Counsel for J. Michael Pearson WINSTON & STRAWN LLP /s/ James S. Richter James S. Richter 200 Park Avenue New York, NY 10166-4193 Telephone: (212) 294-6700 Fax: (212) 294-4700 Counsel for Howard B. Schiller SCHULTE ROTH & ZABEL LLP /s/ Cara David Cara David Barry A. Bohrer (pro hac vice) 919 Third Avenue New York, NY 10022 Telephone: (212) 756-2000 Fax: (212) 593-5955 Counsel for Deborah Jorn McCARTER & ENGLISH, LLP /s/ Richard Hernandez Richard Hernandez Four Gateway Center 100 Mulberry Street Newark, NJ 07102 Telephone: (973) 848-8615 Fax: (973) 297-6615 Local counsel for Valeant Pharmaceuticals International, Inc., Robert L. Rosiello, Ari S. Kellen, and Tanya Carro SIMPSON THACHER & BARTLETT LLP Paul C. Curnin (pro hac vice) Craig S. Waldman (pro hac vice) Daniel J. Stujenske (pro hac vice) 425 Lexington Avenue New York, NY 10017-3954 Telephone: (212) 455-2000 Fax: (212) 455-2502 Counsel for Valeant Pharmaceuticals International, Inc., Robert L. Rosiello, and Ari S. Kellen COOLEY LLP William J. Schwartz (pro hac vice) Sarah Lightdale (pro hac vice pending) 1114 Avenue of the Americas New York, NY 10036 Telephone: (212) 479-6000 Fax: (212) 479-6275 Counsel for Tanya Carro Case 3:15-cv-07658-MAS-LHG Document 420 Filed 02/13/19 Page 15 of 15 PageID: 13039