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NINA F. LOCKER, State Bar No. 123838 STEVEN GUGGENHEIM, State Bar No. 201386 GREGORY L. WATTS, State Bar No. 197126 TIMOTHY A. BALOMBIN, State Bar No. 218069 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants JUNIPER NETWORKS, INC., SCOTT KRIENS, MARCEL GANI, STEVEN HALEY AND PETER L. WEXLER
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
In re JUNIPER NETWORKS, INC. SECURITIES LITIGATION
This Document Relates to: ALL ACTIONS
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Master File No. C 02-0749-SI CLASS ACTION DEFENDANTS REQUEST FOR JUDICIAL NOTICE DATE: TIME: COURTROOM: July 18, 2003 9:00 a.m. The Honorable Susan Illston
DEFENDANTSREQUEST FOR JUDICIAL NOTICE MASTER FILE NO.: C 02-0749-SI
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Defendants Juniper Networks, Inc. (Juniper), Scott Kriens, Marcel Gani, Steven Haley and Peter L. Wexler (collectively Defendants) hereby request the Court to take judicial notice of the following documents attached to the Declaration of Gregory L. Watts in Support of DefendantsMotion to Dismiss the First Amended Consolidated Class Action Complaint (Watts Decl.): A. Documents of Which the Court Has Already Taken Judicial Notice This Court has already taken judicial notice of these documents in connection with the first motion to dismiss.1 On March 4, 2003, the Court granted Defendantsrequest for judicial notice. See Order Granting DefendantsMotion to Dismiss With Leave to Amend (Order), at 8. Accordingly, this Court can and should take judicial notice of these documents with respect to the second motion to dismiss. B. Public Filings with the Securities and Exchange Commission 1. Juniper Networks, Inc. SEC Form 10-K for the year ended December 31, 2000. See s Watts Decl., Ex. 1. 2. Juniper Networks, Inc. SEC Form 10-K for the year ended December 31, 2001. See s Watts Decl., Ex. 2. 3. Juniper Networks, Inc. SEC Form 10-Q for quarter ending June 30, 2001. See s Watts Decl., Ex. 3. 4. Juniper NetworksProxy Statement filed on April 13, 2000. See Watts Decl., Ex. 4. 5. Juniper NetworksProxy Statement filed on March 28, 2001. See Watts Decl., Ex. 5. 6. Juniper NetworksProxy Statement filed on April 11, 2002. See Watts Decl., Ex. 6. 7. Excerpts from AOL Time Warner SEC Form 10-K for the year ended December 31, s 2001. See Watts Decl., Ex. 7.
The Court took judicial notice of Exhibits 1-6 and 8-18. The only exception is the AOL Time Warner SEC Form 10-K for the year ending December 31, 2001 (Watts Decl., Ex. 7). This document is submitted to the Court for the first time in connection with Defendants motion to dismiss the Amended Complaint. The Court also took judicial notice of other documents referenced, but not attached, to the Consolidated Complaint. Many of these documents are now attached to the Amended Complaint.
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These documents are filed with the SEC and their authenticity is not questioned. The SEC requires public companies, such as Juniper, to file 10-Ks and 10-Qs. See 15 U.S.C. 78m; SEC Rule 13a-13. The SEC also requires certain corporate insiders to file Forms 3 and 4. See 15 U.S.C. 78p(a), 17 C.F.R. 240.16a-2, 16a-3. Therefore, courts routinely take judicial notice of SEC filings even if not specifically cited in the complaint. See, e.g., In re Ramp Networks, Inc. Sec. Litig., 201 F. Supp. 2d 1051, 1055 n.1 (N.D. Cal. 2002) (granting defendantsrequest for judicial notice of, inter alia, 10-Qs and 10-Ks because they were public disclosure documents that were filed with the SEC); In re Nuko Information Systems, Inc. Sec. Litig., 199 F.R.D. 338, 341 (N.D. Cal. 2000) (In a securities fraud action, the court may take judicial notice of public records outside the pleadings, including SEC filings.); Plevy v. Haggerty, 38 F. Supp. 2d 816, 821 (C.D. Cal. 1998) (On a motion to dismiss, a court may take judicial notice of matters of public record outside of the pleadings, including SEC filings); Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1276 (11th Cir. 1999); Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991) (court may take judicial notice of SEC filings not referenced in the complaint); Cortec Indus., Inc. v. Sum Holding, L.P., 949 F.2d 42, 47 (2d Cir. 1991) (court may review and consider public disclosure documents required by law to be [filed] and which actually have been filed with the SEC). 8. SEC Forms 3 and 4 for Scott Kriens, Marcel Gani, Steven Haley and Peter Wexler. See Watts Decl., Exs. 12-15. Judicial notice of the Forms 3 and 4 is proper. The ultimate sources of plaintiffs allegations concerning the individual defendantsstock sales during the Class Period are these defendantsForms 3 and 4. The individual defendantsForms 4 are their notices to the SEC of their trades of Juniper stock. Although there are services that publicly distribute information about defendantsstock trading, the only public source of this information is the defendants Forms 3, 4 and 5. Plaintiffssource of the insider trading allegations was defendantsSEC filings or a service that relied on these SEC filings. Therefore, plaintiffsown allegations are derived from these SEC filings. The SEC filings are thus incorporated by reference under Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994), overruled on other grounds, 307 F.3d
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1119 (9th Cir. 2002). See In re Silicon Graphics, Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999) (Forms 3 and 4 incorporated by reference complaint in alleging defendantsclass period stock sales); Karacand v. Edwards, 53 F. Supp. 2d 1236, 1246 (D. Utah 1999) ([p]laintiffs themselves have alleged the truth of the matters asserted in the documents by basing their allegations concerning the individual defendantsstock sales on information taken from [Forms 3, 4 and 5]). Courts overwhelmingly have taken judicial notice of Forms 3 and 4 and other company SEC filings not specifically cited in the complaint when ruling on a motion to dismiss a claim under the federal securities laws. See, e.g., Silicon Graphics, 183 F.3d at 986 (proper to take judicial notice of Form 3s and Form 4s to determine percentage of stock sold); In re Advanta Corp. Sec. Litig., 180 F.3d 525, 540 (3d Cir. 1999) (same); Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1018 n.1 (5th Cir. 1996) (same); Wenger v. Lumisys, Inc., 2 F. Supp. 2d 1231, 1240 n.8 (N.D. Cal. 1998) (denying plaintiffsmotion to strike Form 4s not referenced in complaint); Allison v. Brooktree Corp., 999 F. Supp. 1342, 1352 n.3 (S.D. Cal. 1998) (taking judicial notice of defendantsForms 4); Plevy v. Haggerty, 38 F. Supp. 2d at 834 (same); Head v. NetManage, Inc., [1999 Tr. Binder] Fed. Sec. L. Rep. (CCH) 90,412, at 91,860 (N.D. Cal. Dec. 30, 1998) (appropriate to take judicial notice of documents showing total holdings and sales patterns). C. Documents Attached To or Incorporated by Reference In the Consolidated and Amended Complaints Plaintiffs attach numerous documents to their Amended Complaint. The Court may take judicial notice of these documents because they are deemed incorporated by reference. Plaintiffs also attached or referenced documents in their Consolidated Complaint. The Court also may take judicial notice of these documents in consideration of the motion to dismiss the Amended Complaint. 1. UBS Warburg Report entitled JNPR: Reports an In-line Quarter, Lowers Guidance dated April 12, 2001. See Watts Decl., Ex. 8. This report was incorporated by reference in the Consolidated Complaint. See CC 34.
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2. CIBC World Markets Report dated April 12, 2001. See Watts Decl., Ex. 9. This report was incorporated by reference in the Consolidated Complaint. See CC 34. 3. Lazard Freres & Co. LLC Report dated April 16, 2001. See Watts Decl., Ex. 10. This report was incorporated by reference in the complaint. See CC 34. This Court may properly take judicial notice of the above listed documents under the doctrine of incorporation because their authenticity is not in dispute. See Branch v. Tunnell, 14 F.3d at 453-54; see also Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998) (same). Here, plaintiffs attach, cite to or quote these documents in their complaints.2 Accordingly, judicial notice is appropriate. D. Conference Call Transcript 1. Transcript of Juniper April 12, 2001 conference call. See Watts Decl., Ex. 11. s Judicial notice of the conference call transcript is also proper. This conference call is incorporated by reference in the FAC as it is the basis upon which plaintiffs say that allegedly false statements were made to analysts. See FAC 30. See Branch, 14 F.3d at 453-54; Parrino, 146 F.3d at 705-06. It is, in fact, crucial to plaintiffsclaims. See Parrino, 146 F.3d at 706 (stating that the incorporation doctrine is properly extended to documents crucial to the plaintiff claims, but not explicitly incorporated in his complain...