Case 5:02-cv JW Document 472 Filed 04/20/2006 Page 1 of 34

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1 Case 5:02-cv JW Document 472 Filed 04/20/2006 Page 1 of LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP PATRICK J. COUGHLIN (111070) SANFORD SVETCOV (36561) JEFFREY W. LAWRENCE (166806) DENNIS J. HERMAN (220163) CHRISTOPHER P. SEEFER (201197) SHIRLEY H. HUANG (206854) 100 Pine Street, Suite 2600 San Francisco, CA Telephone: 415/ / (fax) PatC@lerachlaw.com SandyS@lerachlaw.com JeffreyL@lerachlaw.com DennisH@lerachlaw.com ChrisS@lerachlaw.com ShirleyH@lerachlaw.com and WILLIAM S. LERACH (68581) 655 West Broadway, Suite 1900 San Diego, CA Telephone: 619/ / (fax) BillL@lerachlaw.com Lead Counsel for Plaintiffs [Additional counsel appear on signature page.] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION In re VERISIGN CORPORATION SECURITIES LITIGATION This Document Relates To: ALL ACTIONS. ) ) ) ) ) ) ) ) Master File No. C JW(PVT) CLASS ACTION MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION DATE: TIME: COURT: N/A N/A The Honorable James Ware

2 Case 5:02-cv JW Document 472 Filed 04/20/2006 Page 2 of TABLE OF CONTENTS Page I. INTRODUCTION REASONS FOR RECONSIDERATION...1 II. III. IV. THE TAC MAKES CLEAR THAT VERISIGN S REVELATIONS ON MARCH 19, 2002 WERE A PARTIAL DISCLOSURE OF VERISIGN S ACCOUNTING MANIPULATION...2 THE TAC REALLEGED AND EXPLAINED A PRE-DURA ALLEGATION WAS REALLEGED AND EXPLAINED IN LIGHT OF DURA AND THE COURT S NOVEMBER 2, 2005 ORDER...5 CONCLUSION MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION - C JW(PVT) - i -

3 Case 5:02-cv JW Document 472 Filed 04/20/2006 Page 3 of I. INTRODUCTION REASONS FOR RECONSIDERATION Plaintiffs recognize that motions for reconsideration are by their nature extraordinary. They are only permitted when the Court grants express permission and only for particularized grounds enumerated in Civil L.R. 7-9(b)(3). One of the grounds, however, exists here. Lead plaintiffs respectfully request that the Court permit reconsideration of the April 6, 2006 Order Granting in Part and Denying in Part Defendants Motion to Dismiss ( Order ) because it was the result of a manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before the order was entered (Civil L.R. 7-9(b)(3)) in two respects: First, the Court manifestly erred in determining plaintiffs loss causation theory by focusing only on paragraph 397 of Plaintiffs Third Amended Class Action Complaint ( TAC ). Plaintiffs 11 loss causation theory was laid out throughout the TAC. 1 For example, in the Introduction of the TAC, for example, plaintiffs clearly allege that the March 19, 2002 revelation was a partial disclosure: In March 2002, VeriSign issued its Annual Report for 2001 and admitted that nearly 10% of its 2001 revenues had resulted from undisclosed round trip and barter transactions rather than arms-length deals. Although this partial admission of some of VeriSign s accounting manipulations removed more inflation from VeriSign s stock price by causing VeriSign s stock to lose 10% of its value in one day, the full extent of the problems facing the Company remained hidden from investors and VeriSign s stock continued to trade at artificially inflated prices. 10 (emphasis added); see also, Second, in refusing to allow an amendment and dismissing with prejudice, the Court concluded that plaintiffs had simply removed language in the prior complaint after this Court granted leave to amend plaintiffs pre-dura complaint to address issues relating to loss causation. Order at 8:11, 10:9. Again, with respect, that is not what happened. The language in Plaintiffs For the Court s convenience, plaintiffs have attached, as Exhibit A, highlighted excerpts of the paragraphs in the TAC that address plaintiffs loss causation theory. E.g., Introduction, 10, 11, 13 (chart), The Truth About VeriSign s Business to Leak Into the Market, , Proximate Loss Causation/Economic Losses, , 408, (which details how the partial disclosures removed the artificial inflation from VeriSign Corporation s stock price). 2 All references are to the TAC unless otherwise indicated. MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION - C JW(PVT) - 1 -

4 Case 5:02-cv JW Document 472 Filed 04/20/2006 Page 4 of Consolidated Second Amended Class Action Complaint ( SAC ) at paragraph 8 was not eliminated. Rather, the sentence in question was realleged in paragraph 11 of the TAC and expanded to address the Court s November 2, 2005 Corrected Order Granting in Part and Denying in Part Defendants Motion for Judgment on the Pleadings; Denying Without Prejudice Defendants Motion to Strike and Motion to Shorten the Class Period ( November 2, 2005 Corrected Order ) and to clarify how defendants failure to confess their fraud did not alter the loss caused by the revelation of VeriSign Corporation s ( VeriSign or the Company ) true financial condition on April 25, 2002: On April 25, 2002, the Company issued its 1Q02 earnings that revealed the true financial condition of the Company. The report disclosed that VeriSign s sales were lagging, margins decreasing and, as a result, a major restructuring of operations was required at a cost of $70 $80 million. In fact, as defendants well knew, VeriSign s sales had been in decline since mid-2000 and the results that VeriSign reported were false and misleading due to defendants accounting manipulations. Although defendants did not acknowledge that VeriSign had in fact been maintaining its revenue and earnings numbers by falsifying its financial results, the disclosure did eliminate the artificial stock price inflation caused by the fraud. Even without the defendants confession of wrong doing the effects of the fraud were devastating and immediate. 11 (emphasis added, underlined language in the SAC). In amending the SAC to address the Court s November 2, 2005 Corrected Order, plaintiffs set out all aspects of the scheme to defraud particularly the domain name component but never altered its loss theory. Plaintiffs theory in the TAC, and indeed in all of the earlier pre-dura complaints, has always been that the March 19, 2002 disclosures were a partial admission of some of VeriSign s accounting manipulations. 10. The further April 25, 2002 disclosure revealed even more of the truth about the Company. As a result of these two manifest failures to consider material facts and dispositive arguments, the Court s Order has incorrectly dismissed a substantial and properly pled portion of the loss caused by defendants fraudulent conduct. See Civil L.R. 7-9(b)(3). Accordingly, we ask that the Court allow reconsideration II. THE TAC MAKES CLEAR THAT VERISIGN S REVELATIONS ON MARCH 19, 2002 WERE A PARTIAL DISCLOSURE OF VERISIGN S ACCOUNTING MANIPULATION In evaluating plaintiffs loss causation theory, the Court limited its construction to a single 28 paragraph of the TAC. 397; see Order at 7: The Court overlooked other paragraphs that MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION - C JW(PVT) - 2 -

5 Case 5:02-cv JW Document 472 Filed 04/20/2006 Page 5 of specifically alleged that the March 19, 2002 disclosure was a partial disclosure of the true financial condition of the Company. The TAC states that the March 19, 2002 annual report and disclosures were a partial admission of some of VeriSign s accounting manipulations. 10. The TAC states that this revealed some of the weaknesses in VeriSign s earnings and business model by disclosing that the Company s revenue growth was fueled by questionable round-trip deals ( 10, , 443, 446) that were notorious with investors as low-quality and non-recurring revenue ( 446), but did not reveal the full extent of the improper accounting for such transactions or other aspects of the scheme. 10, 446. [T]he corrective nature of a disclosure is not limited to what it expressly states; rather, it includes everything it implies to the market and what the market understood its importance to be. Wagner v. Barrick Gold Corp., No. 03 Civ (RMB), 2006 U.S. Dist. LEXIS 3854, at *11 (S.D.N.Y. Jan. 31, 2006) ( even though the September 26 Announcement did not address the Gold Sales Program explicitly (citation omitted), the market understood that Barrick s revision of projected earnings was related to the Gold Sales Program ). The market clearly understood. In fact, when the Company revealed that 10% of its reserves were based on roundtrip, barter and related party transactions, the market reacted to the quality of earnings risks revealed thereby, by suddenly dropping VeriSign s stock price by 10% By contrast, the industry declined only 3.6%, as the TAC pleads The TAC explains that this price decline removed some of the artificial inflation from the stock causing class members economic loss. Id. (emphasis added). When read in context with the entire TAC, particularly paragraphs 10, 104, , 415 and 446, the allegations in paragraph 397 do not negate plaintiffs loss causation theory. These paragraphs are linked to loss causation through subject headings in the TAC. Thus, paragraph 397 and paragraphs are in a section of the TAC entitled The Truth About VeriSign s Business Continues to Leak into the Market and paragraph 415 is in Proximate Loss Causation/Economic Loss. Paragraph 10 is in the five-page Introduction. Thus, with great respect, the Court erred in stating that under the allegations in the TAC the losses prior to March 20, 2002, could not have been based, in whole or in part on the market s MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION - C JW(PVT) - 3 -

6 Case 5:02-cv JW Document 472 Filed 04/20/2006 Page 6 of awareness of the Company s true financial condition. Order at 6:15-16 (emphasis added). The Court s statement is contradicted by the explicit allegation in paragraph 10 of the TAC that the March 19, 2002 disclosure was a partial admission of some of VeriSign s accounting manipulations but the full extent of VeriSign s problems remained hidden from investors. 10. Thus, the losses prior to March 20, 2002 are alleged to be a part of the Company s true financial condition was revealed which suffices to plead loss causation. That the disclosure only revealed a partial truth does not negate loss causation. Daou, 411 F.3d at Indeed, by definition a partial disclosure does not reveal the full picture and thus the true financial condition is only disclosed upon a later revelation. The Court initially stated that it must consider all material allegations and construe them in the light most favorable to plaintiffs. Order at 3. However, the Court s analysis focused on only one paragraph ( 397), and overlooked all of the other paragraphs explaining plaintiffs partial disclosure theory. By accepting defendants invitations to focus solely on paragraph 397, the Court manifestly erred by overlooking the context provided by the rest of the complaint. The construction placed on paragraph 397 by defendants, and adopted by the Court in its Order, should not stand because it is directly at odds with express allegations found in paragraph 10 and elsewhere in the TAC. In sum, viewing the TAC in plaintiffs favor, while the full extent of the fraud on VeriSign s true financial condition continued to be hidden from the market as of March 20, 2002 (which is the very nature of a partial disclosure), the partial revelation on that date served to link a part of the scheme to the loss. As the court recognized, a partial revelation is sufficient under Dura which only requires plaintiffs to provide some indication of the causal connection between the fraud and the loss. Dura Pharms, Inc. v. Broudo, 544 U.S. 336, 125 S. Ct. 1627, 1634 (2005); In re Daou Sys., Inc., Sec. Litig., 411 F.3d 1006, (9th Cir. 2005), cert. denied 126 S. Ct (2006). We request that the Court reconsider this ruling since the TAC as pled more than complies with the Fed. R. Civ. P. 8(a)(2) requirement MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION - C JW(PVT) - 4 -

7 Case 5:02-cv JW Document 472 Filed 04/20/2006 Page 7 of III. THE TAC REALLEGED AND EXPLAINED A PRE-DURA ALLEGATION WAS REALLEGED AND EXPLAINED IN LIGHT OF DURA AND THE COURT S NOVEMBER 2, 2005 ORDER In denying leave to amend, the Court did not conclude that plaintiffs could not cure deficiencies in the March 20, 2002 loss allegations. Rather, the Court denied leave to amend after concluding that plaintiffs had simply removed an allegation and would simply allege the opposite of what they had alleged in the prior complaint (Order at 10:7-13) and believed that in amending the prior complaint plaintiffs had simply removed the allegations in question. Order at 8:11, 10:7-10. With all due respect, that is not what happened. As explained in Plaintiffs Opposition to Defendants Motion to Dismiss Third Amended Class Action Complaint at 19 n.7, the language was realleged and expanded to address the Court s prior order: SAC 8 TAC 11 Even this [April 25, 2002] Although defendants did not acknowledge that VeriSign disclosure, however, did not had in fact been maintaining its revenue and earnings acknowledge that VeriSign had numbers by falsifying its financial results, the disclosure been maintaining its revenue did eliminate the artificial stock price inflation caused by and earnings numbers by the fraud. Even without the defendants confession of manipulating its financial wrong doing, the effects of the fraud were devastating and results. immediate. In its November 2, 2005 Corrected Order, the Court found that the April 25, 2002 price decline could not be sustained because that decline was not linked to any specific allegation in the SAC. November 2, 2005 Corrected Order at 7. The Court went on to say that plaintiffs admitted as much and cited the following sentence which was at the end of paragraph 8 of the SAC: Even this [April 25, 2002] disclosure, however, did not acknowledge that VeriSign had been maintaining its revenue and earnings numbers by manipulating its financial results. But this sentence, written long prior to Dura, had nothing to do with linking up the April 25, 2002 decline - indeed no such linkage was required in the Ninth Circuit. Rather, the allegation addressed defendants scienter and noted that even though defendants acknowledged the true condition of the Company, defendants did not affirmatively confess that they had been cooking the books for the past 16 months (the Class Period) when they made the disclosure. In the TAC, plaintiffs clarified the sentence in paragraph 8 of the SAC because it appeared that the Court had construed it to mean that by alleging that defendants had not confessed fraudulent conduct, plaintiffs were saying revelations about the true MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION - C JW(PVT) - 5 -

8 Case 5:02-cv JW Document 472 Filed 04/20/2006 Page 8 of financial condition at VeriSign caused no loss even though no allegation about loss from the revelation was required. Thus, in the TAC, the same language was realleged in the Introduction to the TAC. (Paragraph 8 of the SAC became paragraphs 10 and 11 in the TAC.) In light of the Court s November 2, 2005 ruling, paragraph 11 was expanded to explain that defendants did not confess, but even without a confession, the revelations on April 25, 2002 did eliminate the artificial stock price inflation caused by the fraud. The TAC explained that although defendants April 25, 2002 revelation did not contain a confession of wrongdoing ( 11), the revelation shows the stock price decline and loss was causally connected to defendants representations about the amount, source, timing and reliability of the Company s reported revenues and demand for its product during the Class Period As the TAC alleges, and the Court found, the analysts and the market immediately understood that the disclosure revealed the true state of VeriSign s business. E.g The allegation in paragraph 11 makes clear that the absence of an explicit confession is immaterial to the loss caused by the disclosures. The linkage to the April 25, 2002 disclosure was provided by the detailed explanation of defendants scheme. 398, ; see Order at 9. To the extent that the Court believes that paragraph 397 does not sufficiently allege the partial revelation made on March 19, 2002, it can be amended to more clearly incorporate the partial admission alleged in paragraphs 10, 395, 415 and 446. Plaintiffs have provided a draft of an amendment that is entirely consistent with the language pled in the TAC. See Exhibit B attached hereto. In light of such clarifying amendments, and the fact that denial of leave to amend was based on an erroneous view of the facts, denying leave to amend is inconsistent with both the letter and spirit of Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2003) and indeed, the loss causation theory plaintiffs have advanced throughout this litigation. As the Ninth Circuit held, in securities cases the drafting of a cognizable complaint can be a matter of trial and error. Id. at Leave to amend should be granted where it is evident that plaintiff can cure the deficiency identified. 28 MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION - C JW(PVT) - 6 -

9 Case 5:02-cv JW Document 472 Filed 04/20/2006 Page 9 of IV. CONCLUSION Plaintiffs recognize that reconsideration is an extreme form of relief after the Court has spent considerable resources evaluating the matter presented. Where, as here, the Court s ruling is based upon a misapprehension of the allegations that are before it such that the ruling works a substantial injustice, we urge the Court to permit reconsideration in this case DATED: April 20, 2006 LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP PATRICK J. COUGHLIN SANFORD SVETCOV JEFFREY W. LAWRENCE DENNIS J. HERMAN CHRISTOPHER P. SEEFER SHIRLEY H. HUANG /s/ JEFFREY W. LAWRENCE JEFFREY W. LAWRENCE 100 Pine Street, Suite 2600 San Francisco, CA Telephone: 415/ / (fax) LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP WILLIAM S. LERACH 655 West Broadway, Suite 1900 San Diego, CA Telephone: 619/ / (fax) Lead Counsel for Plaintiffs LAW OFFICES BERNARD M. GROSS, P.C. BERNARD M. GROSS DEBORAH R. GROSS Wanamaker Bldg., Suite Penn Square East Philadelphia, PA Telephone: 215/ / (fax) MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION - C JW(PVT) - 7 -

10 Case 5:02-cv JW Document 472 Filed 04/20/2006 Page 10 of COHEN, MILSTEIN, HAUSFELD & TOLL, P.L.L.C. STEVEN J. TOLL LISA M. MEZZETTI JOSHUA S. DEVORE 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, DC Telephone: 202/ / (fax) SCHATZ & NOBEL, P.C. ANDREW M. SCHATZ JEFFREY S. NOBEL NANCY A. KULESA One Corporate Center 20 Church Street, Suite 1700 Hartford, CT Telephone: 860/ / (fax) Additional Counsel for Plaintiffs 13 T:\CasesSF\VeriSign\MOT doc MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION - C JW(PVT) - 8 -

11 Case 5:02-cv JW Document 472 Filed 04/20/2006 Page 11 of CERTIFICATE OF SERVICE I hereby certify that on April 20, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I have mailed the foregoing document or paper via the United States Postal Service to the non-cm/ecf participants indicated on the attached Manual Notice List. I further certify that I caused this document to be forwarded to the following designated Internet site at: /s/ JEFFREY W. LAWRENCE JEFFREY W. LAWRENCE LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP Lerach Coughlin Stoia Geller Rudman & Robbins LLP 100 Pine Street, 26th Floor San Francisco, CA Telephone: 415/ / (fax) JeffreyL@lerachlaw.com

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32 4/20/2006 CAND-ECF Page 1 of 3 Case 5:02-cv JW Document 472 Filed 04/20/2006 Page 32 of 34 Mailing Information for a Case 5:02-cv JW Electronic Mail Notice List The following are those who are currently on the list to receive notices for this case. Jennie Lee Anderson jenniea@lerachlaw.com Randi D. Bandman randib@lerachlaw.com e_file_sd@lerachlaw.com;e_file_sf@lerachlaw.com Noah Daniel Boyens nboyens@omm.com Patrick J. Coughlin patc@lerachlaw.com e_file_sd@lerachlaw.com;e_file_sf@lerachlaw.com Joshua Seth Devore jdevore@cmht.com David Malcolm Furbush dfurbush@omm.com dbrown@omm.com;dshah@omm.com;lnewell@omm.com Deborah R. Gross debbie@bernardmgross.com Christopher T. Heffelfinger cheffelfinger@bermanesq.com Dennis J. Herman dennish@lerachlaw.com e_file_sd@lerachlaw.com;e_file_sf@lerachlaw.com Jessica Anne Hoogs jhoogs@omm.com Shirley H. Huang shirleyh@lerachlaw.com e_file_sd@lerachlaw.com;e_file_sf@lerachlaw.com Meredith N. Landy mlandy@omm.com dfurbush@omm.com;dbrown@omm.com;lhabbeshaw@omm.com;dedmondson@omm.com;jbake Jeffrey W. Lawrence jeffreyl@lerachlaw.com e_file_sd@lerachlaw.com;e_file_sf@lerachlaw.com William S. Lerach e_file_sd@lerachlaw.com e_file_sf@lerachlaw.com

33 4/20/2006 CAND-ECF Page 2 of 3 Case 5:02-cv JW Document 472 Filed 04/20/2006 Page 33 of 34 Ioana Petrou ioana.petrou@usdoj.gov tyle.doerr@usdoj.gov Darren J. Robbins e_file_sd@lerachlaw.com e_file_sf@lerachlaw.com Mark Wayne Robertson mrobertson@omm.com Lori E. Romley lromley@omm.com dbrown@omm.com Adam T. Savett asavett@cmht.com Shana Eve Scarlett shanas@lerachlaw.com e_file_sd@lerachlaw.com;e_file_sf@lerachlaw.com Andrew M. Schatz firm@snlaw.net Christopher Paul Seefer chriss@lerachlaw.com e_file_sd@lerachlaw.com;e_file_sf@lerachlaw.com;kiyokof@lerachlaw.com Dhaivat H. Shah dshah@omm.com dbrown@omm.com Alfred Glenn Yates, Jr yateslaw@aol.com Manual Notice List The following is the list of attorneys who are not on the list to receive notices for this case (who therefore require manual noticing). You may wish to use your mouse to select and copy this list into your word processing program in order to create notices or labels for these recipients. Amy Freeman O'Melveny & Myers 400 S. Hope Street Los Angeles, CA Bernard M. Gross Law Offices of Bernard M. Gross, P.C. Suite 450, John Wanamaker Bldg. Juniper & Market Streets 100 Penn Square East Philadelphia, PA Nancy A. Kulesa Schatz & Nobel, P.C. One Corporate Center

34 4/20/2006 CAND-ECF Page 3 of 3 Case 5:02-cv JW Document 472 Filed 04/20/2006 Page 34 of Church Street, Suite 1700 Hartford, CT Lisa M. Mezzetti Cohen Milstein Hausfeld & Toll, P.L.L.C New York Avenue, N.W. Suite 500 West Tower Washington, DC Simon Bahne Paris Spector, Roseman & Kodroff, P.C Market Street, Suite 2500 Philadelphia, PA Steven J. Toll Cohen Milstein Hausfeld & Toll, P.L.L.C New York Avenue, N. W. West Tower, Suite 500 Washington, DC Mark S. Willis Cohen Milstein Hausfeld & Toll PLLC 1100 New York Ave., N.W. West Tower, Suite 500 Washington, DC 20005