Filed December 20, 2013
See Police & Fire Ret. Sys. of Detroit v. IndyMac MBS, Inc., 721 F.3d 95 (2d Cir. 2013). Case 1:13-cv-01094-ER Document 25 Filed 12/20/13 Page 29 of 32 -24- In re Refco, 503 F. Supp. 2d at 658 (quoting S.E.C. v. Price Waterhouse, 797 F. Supp. 1217, 1240 (S.D.N.Y. 1992)) (internal quotation omitted); Varghese, 672 F. Supp. 2d at 609-10. Plaintiffs easily satisfy this test here.
Filed November 25, 2013
Varghese, 672 F. Supp. 2d at 609-10; see also China Mediaexpress Holdings, Inc., 927 F. Supp. 2d at 127-28. Furthermore, the magnitude of the fraud in this case—overstatement of revenue by a factor of not less than 623—is another factor that weighs in favor of finding a strong inference of scienter.
Filed December 2, 2013
Plaintiffs’ inability to adequately plead scienter against Mr. Cole is equally glaring in Plaintiffs’ Consolidated Complaint and Plaintiffs’ Memorandum in Opposition. For example, Plaintiffs’ Memorandum in Opposition advances the argument that Mr. Cole “ignored copious red flags” that should have “been sufficient to put [Mr.] Cole on notice to ‘investigate the doubtful.’” Memorandum in Opposition 9-10 (citing Varghese, 672 F. Supp. 2d at 609-610). Unfortunately for Plaintiffs, allegations must still satisfy PSLRA when they are particular and suggest that defendants had actual access to the disputed information or, “in rare circumstances” where the nature of the relevant fact is so prominent that it would be absurd to suggest that management was without knowledge.
Filed July 12, 2010
In re Gilead Sciences Sec. Litig., 536 F.3d 1049, 1057 (9th Cir. 2008); Varghese, 672 F. Supp. 2d at 609; Openwave, 528 F. Supp. 2d at 252-53.30 Defendants argue that plaintiffs have not sufficiently alleged loss causation because defendants’ announcements on January 18, 2008, August 13, 2008, April 26, 2009, and those contained within the Company’s 2008 Form 20-F, purportedly do not constitute corrective disclosures that demonstrate the falsity of prior false statements. Motion at 23-24.
Filed June 3, 2016
Litig., 524 F. Supp. 2d 370, 394 n.76 (S.D.N.Y. 2007) (“[A]lthough not sufficient in and of themselves, [resignations] add to the overall pleading of circumstantial evidence of fraud.”); Varghese v. China Shenghuo Pharm. Holdings, Inc., 672 F. Supp. 2d 596, 603, 608 (S.D.N.Y. 2009). 4.
Filed October 28, 2015
. Significantly, this is not a case where the misrepresentation itself is about the state of the company’s internal controls, as was the situation in Verghese v. China Shenghou Pharmaceutical Holdings, Inc., 672 F. Supp. 2d 596, 608 (S.D.N.Y. 2009) (cited by Plaintiff at P. Mem. at 28).
Filed May 29, 2015
C. Cohen’s Resignation Supports An Inference Of Scienter The “highly unusual and suspicious” resignation of Defendant Cohen also constitutes circumstantial evidence of fraud. See, e.g., In re Scottish Re Group, 524 F. Supp. 2d at 394 n.76; Varghese v. China Shenghuo Pharm. Holdings, Inc., 672 F. Supp. 2d 596, 603, 608 (S.D.N.Y. 2009). Here, Defendant Cohen abruptly resigned in the midst of ongoing Investigations concerning transactions which he oversaw and approved before any details concerning either the Check Point Software Tech.
Filed December 2, 2013
9-10 (citing Varghese, 672 F. Supp. 2d at 609-610).
Filed September 17, 2012
See also Daou, 397 F.3d at 709, 720 (considering proceeds); No. 84 Emp’r-Teamster Joint Council Pension Trust Fund v. Am. W. Holding Corp., 320 F.3d 920, 939 (9th Cir. 2002) (same); In Re Cabletron Sys., 311 F.3d 11, 27, 40 (1st Cir. 2002) (same); Batwin, 2008 U.S. Dist. LEXIS 52365, at *43 (same); Marksman, 927 F. Supp. at 1313 (same). 19 See also Varghese v. China Shenghuo Pharm. Holdings, Inc., 672 F. Supp. 2d 596, 608 (S.D.N.Y. 2009); In re Sadia, S.A. Sec. Litig., 643 F. Supp. 2d 521, 534 (S.D.N.Y. 2009); Hall v. The Children’s Place Retail Stores, Inc., 580 F. Supp. 2d 212, 233 (S.D.N.Y. 2008) 20 Defendants cite Glaser, 772 F. Supp. 2d at 598, which held that resignations must be “highly unusual and suspicious” to create a strong inference of scienter.
Filed May 14, 2012
B. PLAINTIFFS’ IMPROPER RELIANCE ON CITED CASE LAW IN SUPPORT OF ITS ASSERTIONS AGAINST DEFENDANT ROBBINS In the five-page Opposition to Robbins’ Motion to Dismiss, Plaintiffs cite this Court to nine (9) judicial opinions in an effort to bolster their claims against Defendant Robbins. Quite naturally, they attempt to rely most heavily upon this Court’s Opinion in Beno Varghese et al. v. China Shenghuo Pharmaceutical Holdings, Inc., et al., 672 F. Supp. 2d 596 (S.D.N.Y. 2009). However, Plaintiffs seem to have missed the crucial distinction that the individual defendants charged, collectively known as the CSP Defendants, admitted that disclosed financial results were false and presented in violation of GAAP.