Brown v. Biogen Idec Inc. et alMEMORANDUM in Opposition re MOTION for Clarification re Order on Motion to Dismiss,,, Pursuant to F.R.Civ.P. 59D. Mass.October 4, 2007UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x IN RE BIOGEN IDEC, INC. SECURITIES LITIGATION : : Civil Action No. 05-10400-WGY - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR "CLARIFICATION" Defendants Biogen Idec, Inc., James Mullen, Burt Adelman, Peter Kellogg, William Rastetter and William Rohn ("Defendants") respectfully submit this opposition to Plaintiffs' Motion For "Clarification" (Docket No. 112). Plaintiffs' motion should be denied for the following reasons: 1. No clarification is needed. Defendants' motion to dismiss (Docket No. 82) explicitly requested dismissal with prejudice. The Court's September 14, 2007 Order allowed that motion. There is no ambiguity. The Court's denial of Plaintiffs' request for leave to amend their complaint -- a request made only in a footnote on the last page of a thirty-page brief -- was plainly appropriate. See, e.g., Carney v. Cambridge Tech. Partners, Inc., 135 F. Supp. 2d 235, 257 (D. Mass. 2001) ("plaintiffs' request for leave to amend their complaint further, contained in a footnote in their memorandum in opposition to the motion to dismiss, is denied"). It is not Defendants' (or the Court's) role to effectively comment on draft complaints seriatim to assist Plaintiffs in meeting their pleading burden. Indeed, Judge Woodlock recently rejected such an approach as inappropriate and wasteful of judicial resources: I find it an affront, frankly, to read through a lengthy brief, some 45 pages long, only to be told if for any reason the Court finds the allegations insufficient, we respectfully request leave to amend, not because we have found something new, but simply because we want a chance to engage in an interim process with the Court. And that, it seems to me, is a very substantial presumption upon resources of the Court. Case 1:05-cv-10400-WGY Document 114 Filed 10/04/2007 Page 1 of 4 2 Hearing Transcript dated June 1, 2005 at 30:13-20 (excerpt attached hereto as Exhibit A). This case was filed in March 2005. Plaintiffs have had plenty of time to amend (again). This Court soundly rejected Plaintiffs' request to engage in such a process in this case. 2. Plaintiffs' renewed request in their motion for "clarification" to file yet another amended complaint should be rejected (again). As grounds for that belated request, Plaintiffs assert that "amendment is necessary to allow Plaintiffs the opportunity to re-plead the Complaint in conformity with the Supreme Court's decision in Tellabs."1 Plaintiffs also claim that they would be "unfairly prejudiced if never given the opportunity to comply with the controlling authority by which [scienter] is evaluated." (Id. at 4-5.) Plaintiffs' argument is specious. The Supreme Court's Tellabs decision was decided on June 21, 2007, more than two months before oral argument on Defendants' motion to dismiss. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499, 2504-05 (2007). Plaintiffs had ample opportunity to file a complaint "in conformity with the Supreme Court's decision in Tellabs" if they believed it to be necessary. (Pls.' Motion at 4.) Indeed, on August 22, 2007, Plaintiffs filed a motion seeking leave to file a "conformed" complaint pursuant to their understanding of this Court's order in Lirette v. Shiva Corp., 99 F. Supp. 164 (D. Mass. 1998). (Docket No. 110.) Conspicuously, Plaintiffs' motion did not reference Tellabs -- decided months earlier, and well publicized -- nor did any other of Plaintiffs' intervening filings with the Court. (See Docket Nos. 105, 108.) The "Tellabs" excuse rings hollow. 1 Memorandum Of Law In Support Of Plaintiffs' Federal Rule Of Civil Procedure 59(e) Motion For Clarification Of The Court's Order Allowing Defendants' Motion To Dismiss at 4 (Docket No. 113) (cited as "Pls.' Motion"). Case 1:05-cv-10400-WGY Document 114 Filed 10/04/2007 Page 2 of 4 3 Plaintiffs should not be rewarded for their "wait-and-see-what-happens approach." In re Stone & Webster, Inc. Sec. Litig., 217 F.R.D. 96, 98 (D. Mass. 2003), aff'd 414 F.3d 187, 215 (1st Cir. 2005). In Stone & Webster, Judge Lindsey denied plaintiffs' request to file an amended complaint after a decision on a motion to dismiss, commenting that such a strategy "smacks of gamesmanship bordering on bad faith." Id. at 99. The court held that amendment was inappropriate, because -- like Plaintiffs here -- "plaintiffs chose to oppose the motions to dismiss on the grounds that their complaint was, in their view, sufficiently pleaded, rather than providing the additional information known to them during the necessarily lengthy period during which the motions to dismiss were being considered." Id. at 98-99. The court found that such conduct warranted denial of the motion: "[t]o hold back facts the plaintiffs now characterize as helpful or even crucial to their case . . . strikes me as precisely the sort of 'undue delay' that should result in a denial of leave to amend." Id. at 99. The same result is warranted here. Not only did Plaintiffs delay in seeking amendment to "conform" their complaint to Tellabs, but their motion also does not specify what an amended complaint would say or how any such amendment would cure the deficiencies in their Amended Complaint. Nothing in Tellabs relieves Plaintiffs from pleading particularized facts demonstrating scienter with respect to each Defendant.2 Such facts simply do not exist. 2 Plaintiffs reliance on Flaherty & Crumrine Preferred Income Fund Inc. v. TXU Corp., No. 06-11093 (5th Cir. Sept. 18, 2007) is misplaced. (Pls.' Motion at 6.) In that case, the Fifth Circuit vacated the district court's dismissal and remanded the case for reconsideration in light of Tellabs. Id. at *1. The Fifth Circuit did not rule that plaintiffs were entitled to file an amended complaint. Id. Further, Tellabs was decided when that case was pending on appeal, not prior to the district court's ruling on the motion to dismiss. Id. In this case, by contrast, Plaintiffs waited to see how the Court would rule on Defendants' motions to dismiss, and only then belatedly raised Tellabs when that ruling did not go their way. That is inappropriate. Case 1:05-cv-10400-WGY Document 114 Filed 10/04/2007 Page 3 of 4 4 3. This case was originally filed in March 2005. There have been a total of five complaints already filed, including the "conformed" complaint filed on August 22, 2007, shortly before oral argument (Defendants did not oppose the filing of that complaint). At some point this case must end, Defendants respectfully submit that time is now. Dated: October 4, 2007 Respectfully submitted, Boston, Massachusetts /s/ James R. Carroll James R. Carroll (BBO #554426) Matthew J. Matule (BBO #632075) Michael S. Hines (BBO #653943) SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP One Beacon Street Boston, Massachusetts 02108 (617) 573-4800 jcarroll@skadden.com mmatule@skadden.com mhines@skadden.com Counsel for Defendants Biogen Idec Inc., James C. Mullen, Burt A. Adelman, Peter N. Kellogg, William H. Rastetter and William Rohn CERTIFICATE OF SERVICE I, Michael S. Hines, hereby certify that a true copy of the foregoing document filed through the ECF system will be electronically sent to the registered participants as identified on the Notice of Electronic Filing, and paper copies will be sent to those indicated as non-registered participants on October 4, 2007. Dated: October 4, 2007 /s/ Michael S. Hines Michael S. Hines Case 1:05-cv-10400-WGY Document 114 Filed 10/04/2007 Page 4 of 4 Case 1:05-cv-10400-WGY Document 114-2 Filed 10/04/2007 Page 1 of 12 Case 1:05-cv-10400-WGY Document 114-2 Filed 10/04/2007 Page 2 of 12 Case 1:05-cv-10400-WGY Document 114-2 Filed 10/04/2007 Page 3 of 12 Case 1:05-cv-10400-WGY Document 114-2 Filed 10/04/2007 Page 4 of 12 Case 1:05-cv-10400-WGY Document 114-2 Filed 10/04/2007 Page 5 of 12 Case 1:05-cv-10400-WGY Document 114-2 Filed 10/04/2007 Page 6 of 12 Case 1:05-cv-10400-WGY Document 114-2 Filed 10/04/2007 Page 7 of 12 Case 1:05-cv-10400-WGY Document 114-2 Filed 10/04/2007 Page 8 of 12 Case 1:05-cv-10400-WGY Document 114-2 Filed 10/04/2007 Page 9 of 12 Case 1:05-cv-10400-WGY Document 114-2 Filed 10/04/2007 Page 10 of 12 Case 1:05-cv-10400-WGY Document 114-2 Filed 10/04/2007 Page 11 of 12 Case 1:05-cv-10400-WGY Document 114-2 Filed 10/04/2007 Page 12 of 12
