Cutera Securities Litigation 07-CV-02128-Defendants' Request For Judicial Notice In Support Of

503 Pages·2008·36.63 MB·English

1 Timothy T. Scott (SBN 126971)
1 REOUEST FOR JUDICIAL NOTICE
2 Defendants Cutera, Inc., Kevin P. Connors, and Ronald J. Santilli ("Defendants )
3 respectfully request that the Court take judicial notice, pursuant to Federal Rule of Evidence 201(d),
4 of the documents set forth below and attached hereto as exhibits, in support of Defendants' Motion
5 to Dismiss Plaintiffs' Consolidated Amended Class Action Complaint ("Complaint ), filed
6 concurrently with this request. The exhibits are true and correct copies of the referenced documents,
7 as set forth in the attached Declaration of Robert B. Martin III.
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9 Exhibit A: Cutera, Inc. Form 10-K for the year ended December 31, 2005, filed with the
10 Securities and Exchange Commission ("SEC ) on March 16, 2006.
11 Exhibit B: Cutera, Inc. Form 10-K for the year ended December 31, 2006, filed with the
12 SEC on March 16, 2007.
13 Exhibit C: Cutera, Inc. Form 10-Q for the quarter ended March 31, 2006, filed with the SEC
14 on May 10, 2006.
15 Exhibit D: Cutera, Inc. Form 10-Q for the quarter ended September 30, 2006, filed with the
16 SEC on November 8, 2006.
17 Exhibit E: Cutera, Inc. Press Release titled "Cutera Reports Fourth Quarter and Full Year
18 2006 Results , dated January 31, 2007.
19 Exhibit F: Cutera, Inc. Press Release titled "Cutera Reports Preliminary First Quarter 2007
20 Revenue and EPS, dated April 5, 2007.
21 Exhibit G: Cutera, Inc. Press Release titled "Cutera Reports First Quarter Ended March 31,
22 2007 Results , dated May 7, 2007.
23 Exhibit H: Cutera, Inc. Earnings Conference Call Transcript for the fourth quarter 2005,
24 dated February 13, 2006.
25 Exhibit I : Cutera, Inc. Earnings Conference Call Transcript for the first quarter 2006, dated
26 May 8, 2006.
27 Exhibit J: Cutera, Inc. Earnings Conference Call Transcript for the second quarter 2006,
28 dated August 7, 2006.
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DEFENDANTS' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THEIR MOTION TO DISMISS
PLAINTIFFS' CONSOLIDATED AMENDED CLASS ACTION COMPLAINT - CASE No. C-07-2128 VRW
1 Exhibit K: Cutera, Inc. Earnings Conference Call Transcript for the third quarter 2006, dated
2 November 6, 2006.
3 Exhibit L: Cutera, Inc. Earnings Conference Call Transcript for the fourth quarter 2006,
4 dated January 31, 2007.
5 Exhibit M: Cutera, Inc. Earnings Conference Call Transcript for the first quarter 2007, dated
6 May 7, 2007.
7 Exhibit N: RBC Capital Markets Equity Research Comment on Cutera, Inc., dated February
8 1, 2007.
9 Exhibit 0 : Table of Cutera, Inc. Common Stock Published Prices (from Yahoo.com) from
10 January 31, 2007 to May 8, 2007.
11 Exhibit P : Table of Stock Sales of Cutera, Inc. Common Stock by Defendants Connors and
12 Santilli from January 1, 2005 through May 8, 2007, accompanied by the respective SEC Forms 3
13 and 4 reporting the transactions.
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15 In evaluating Defendants' motion to dismiss, the Court may consider documents incorporated
16 by reference (either explicitly or implicitly ) in the complaint, and other publicly-available documents
17 capable of accurate and ready determination and not reasonably subject to dispute. Fed. R. Evid.
18 201(b); In re Silicon Graphics Sec. Litig., 183 F.3d 970, 986 (9th Cir . 1999) (the incorporation by
19 reference doctrine "permits a district court to consider documents whose contents are alleged in a
20 complaint and whose authenticity no party questions , but which are not physically attached to the
21 plaintiff' s pleading. (alterations omitted)); Parrino v. FHP, Inc., 146 F.3d 699 , 706 (9th Cir. 1998)
22 (where a complaint is "predicated upon a document, courts may consider the document at the
23 pleading stage "even if plaintiffs complaint does not explicitly refer to it ). The Court may also
24 take judicial notice of corporate public filings made with the SEC, a corporation ' s press releases, its
25 published stock prices , and transcripts of its earnings conference calls. See In re Finisar Corp.
26 Deriv. Litig., 2008 U. S. Dist . LEXIS 4590, at *23 n. 4, 2008 WL 131867 (N.D. Cal. Jan. 11, 2008)
27 (taking judicial notice of publicly available stock prices); In re LeapFrog Enter., Inc. Sec. Litig.,
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DEFENDANTS' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THEIR MOTION TO DISMISS
PLAINTIFFS' CONSOLIDATED AMENDED CLASS ACTION COMPLAINT - CASE No. C-07-2128 VRW
1 12007 U. S. Dist . LEXIS 76530, at *17 n.3, 2007 WL 2900566 (N.D. Cal. Sep. 30 , 2007) (taking
2 judicial notice of earnings calls transcripts ); In re Portal Software Sec. Litig., 2005 U.S. Dist. LEXIS
3 120214, at *11_14, 2005 WL 1910923 (N.D. Cal. Aug. 10, 2005) (Walker, J.) (taking judicial notice
4 of corporate public filings with the SEC, From 4s reflecting the stock transactions of corporate
5 officers, and corporate press releases).
6 Moreover, although courts typically must consider allegations within a complaint as true,
7 "the court need not accept as true allegations that contradict matters properly subject to judicial
8 notice . Portal Software, 2005 U.S. Dist. LEXIS, at *17. Thus, in the event of a factual conflict
9 between the complaint and the judicially-noticed documents, the latter control. Id.
10 Here, Exhibits A-D are public documents filed by Cutera with the SEC; Exhibits E-G are
11 I press releases issued by Cutera; Exhibit H-M are transcripts of Cutera's earnings conference calls;
12 Exhibit N is an analyst investment report regarding Cutera, which is cited in the Complaint at ¶ 82
13 and is thus incorporated by reference into the Complaint; Exhibit 0 is a compilation of publicly
14 available stock prices; and Exhibit P is a compilation of data reflected in public documents filed by
15 Cutera with the SEC. The Court should thus take judicial notice of those exhibits.
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Respectfully submitted,
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Dated: January 31, 2008 SIDLEY AUSTIN LLP
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By: /s/ Robert B. Martin III
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Robert B. Martin III
Attorneys For Defendants Cutera, Inc.,
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Kevin P. Connors, and Ronald J. Santilli
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DEFENDANTS' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THEIR MOTION TO DISMISS
SF11486424v.1 PLAINTIFFS' CONSOLIDATED AMENDED CLASS ACTION COMPLAINT - CASE No. C-07-2128 VRW
1 Timothy T. Scott (SBN 126971)
1 DECLARATION OF ROBERT B. MARTIN III
2 I, Robert B. Martin III, declare as follows:
3 1. I am admitted to practice law before all the courts of the State of California and the
4 U. S. District Court, Northern District of California. I am an attorney with the law firm of Sidley
5 Austin LLP, counsel of record for Defendants Cutera, Inc., Kevin P. Connors, and Ronald J. Santilli
6 ("Defendants ). I submit this Declaration in support of Defendants' Request for Judicial Notice
7 filed in support of its Motion to Dismiss Plaintiffs' Consolidated Amended Class Action Complaint.
8 I have personal knowledge of the facts set forth herein and if called as a witness, I could and would
9 competently testify thereto.
10 2. Attached as Exhibit A to Defendants' Request for Judicial Notice is a true and correct
11 copy of Cutera, Inc.'s Form 10-K for the year ended December 31, 2005, filed with the Securities
12 and Exchange Commission ("SEC ) on March 16, 2006.
13 3. Attached as Exhibit B to Defendants' Request for Judicial Notice is a true and correct
14 copy of Cutera, Inc.'s Form 10-K for the year ended December 31, 2006, filed with the SEC on
15 March 16, 2007.
16 4. Attached as Exhibit C to Defendants' Request for Judicial Notice is a true and correct
17 copy of Cutera, Inc.'s Form 10-Q for the quarter ended March 31, 2006, filed with the SEC on May
18 10, 2006.
19 5. Attached as Exhibit D to Defendants' Request for Judicial Notice is a true and correct
20 copy of Cutera, Inc.'s Form 10-Q for the quarter ended September 30, 2006, filed with the SEC on
21 November 8, 2006.
22 6. Attached as Exhibit E to Defendants' Request for Judicial Notice is a true and correct
23 copy of Cutera, Inc.'s Press Release titled "Cutera Reports Fourth Quarter and Full Year 2006
24 Results, dated January 31, 2007.
25 7. Attached as Exhibit F to Defendants' Request for Judicial Notice is a true and correct
26 copy of Cutera, Inc.'s Press Release titled "Cutera Reports Preliminary First Quarter 2007 Revenue
27 and EPS, dated April 5, 2007.
28 8. Attached as Exhibit G to Defendants' Request for Judicial Notice is a true and correct
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DECLARATION OF ROBERT B. MARTIN III IN SUPPORT OF DEFENDANTS' REQUEST FOR
JUDICIAL NOTICE - CASE No. C-07-2128 VRW
1 copy of Cutera, Inc.'s Press Release titled "Cutera Reports First Quarter Ended March 31, 2007
2 Results, dated May 7, 2007.
3 9. Attached as Exhibit H to Defendants' Request for Judicial Notice is a true and correct
4 copy of Cutera, Inc.'s Earnings Conference Call Transcript for the fourth quarter 2005, dated
5 February 13, 2006.
6 10. Attached as Exhibit Ito Defendants' Request for Judicial Notice is a true and correct
7 copy of Cutera, Inc.'s Earnings Conference Call Transcript for the first quarter 2006, dated May 8,
8 2006.
9 11. Attached as Exhibit J to Defendants ' Request for Judicial Notice is a true and correct
10 copy of Cutera, Inc.'s Earnings Conference Call Transcript for the second quarter 2006, dated
11 August 7, 2006.
12 12. Attached as Exhibit K to Defendants' Request for Judicial Notice is a true and correct
13 copy of Cutera, Inc.'s Earnings Conference Call Transcript for the third quarter 2006, dated
14 November 6, 2006.
15 13. Attached as Exhibit L to Defendants' Request for Judicial Notice is a true and correct
16 copy of Cutera, Inc.'s Earnings Conference Call Transcript for the fourth quarter 2006, dated
17 January 31, 2007.
18 14. Attached as Exhibit M to Defendants' Request for Judicial Notice is a true and correct
19 copy of Cutera, Inc.'s Earnings Conference Call Transcript for the first quarter 2007, dated May 7,
20 2007.
21 15. Attached as Exhibit N to Defendant's Request for Judicial Notice is a true and correct
22 copy of the RBC Capital Markets Equity Research Comment on Cutera, Inc., dated February 1,
23 2007.
24 16. Attached as Exhibit 0 to Defendants' Request for Judicial Notice is a table reflecting
25 the true and correct published stock prices (from Yahoo.com) of Cutera, Inc. common stock from
26 January 31, 2007 to May 8, 2007.
27 17. Attached as Exhibit P to Defendants' Request for Judicial Notice is a table reflecting
28 stock sales of Cutera, Inc. common stock by Defendants Connors and Santilli from January 1, 2005
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DECLARATION OF ROBERT B. MARTIN III IN SUPPORT OF DEFENDANTS' REQUEST FOR
JUDICIAL NOTICE - CASE No. C-07-2128 VRW
1 through May 8, 2007, accompanied by the respective SEC Forms 3 and 4 reporting the transactions.
2 I declare under penalty of perjury that the foregoing is true and correct.
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4 Dated: January 31, 2008 Respectfully submitted,
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By: /s/ Robert B. Martin III
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Robert B. Martin III
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SF1 1485951v.1 DECLARATION OF ROBERT B. MARTIN III IN SUPPORT OF DEFENDANTS' REQUEST FOR
JUDICIAL NOTICE - CASE No. C-07-2128 VRW
EXHIBIT A
'4'V I ZA D
S F L P O W F P 5 F A R C H
FORM 10-K
CUTERA INC - CUTR
Filed: March 16, 2006 (period: December 31, 2005)
Annual report which provides a comprehensive overview of the company for the
past year
Al