UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

Transcription

1 MELVIN R. GOLDMAN (BAR NO. 0) JORDAN ETH (BAR NO. 1) MIA MAZZA (BAR NO. ) mmazza@mofo.com MARK FOSTER (BAR NO. ) mfoster@mofo.com Market Street San Francisco, California - Telephone:..000 Facsimile:.. Attorneys for Defendants INFINEON TECHNOLOGIES AG, INFINEON TECHNOLOGIES NORTH AMERICA CORP., ULRICH SCHUMACHER, and PETER J. FISCHL UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 0 1 In re INFINEON TECHNOLOGIES AG SECURITIES LITIGATION This Document Relates To: ALL ACTIONS Master File No. C-0--JW CLASS ACTION DEFENDANTS REQUEST FOR JUDICIAL NOTICE FILED IN SUPPORT OF THEIR MOTION TO DISMISS THE SECOND AMENDED COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS Hearing: February, 00 Time: :00 a.m. Judge: Honorable James Ware Courtroom:, th Floor MASTER FILE No. C-0--JW sf-

2 REQUEST FOR JUDICIAL NOTICE Defendants Infineon Technologies AG ( Infineon AG ), Infineon Technologies North America Corp., Ulrich Schumacher, and Peter J. Fischl have moved to dismiss Plaintiffs Second Amended Complaint for Violations of the Federal Securities Laws (the SAC ). In support of that motion, defendants hereby request that the Court take judicial notice of the five documents attached as exhibits to the Declaration Of Mark Foster In Support Of Motion To Dismiss The SAC ( Foster Declaration or Foster Decl. ). DI. The documents attached to the Foster Declaration fall into three categories: (1) the prices of Infineon AG s American Depository Shares (ADS) between March 1, 000 and December 1, 00; () documents referenced in the SAC that also are a matter of public record; and () and a newspaper article. ARGUMENT Federal Rule of Evidence 01 authorizes judicial notice of facts capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 01(b)(). The two exhibits attached to the Foster Declaration meet this requirement. Accordingly, judicial notice is mandatory if requested by a party and [the court is] supplied with the necessary information. Papai v. Harbor Tug & Barge Co., F.d 0, 0 n. (th Cir. ), rev d sub nom. on other grounds, 0 U.S. (); Fed. R. Evid. 01(d). I. THE COURT SHOULD TAKE NOTICE OF INFINEON AG S STOCK PRICES DURING THE CLASS PERIOD. Defendants request that the Court take judicial notice of Infineon AG s stock trading history between March 1, 000 and December, 00. Stock prices are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 01(b)(). That is why, [i]n the context of a motion to dismiss a securities private fraud action, a court may take judicial notice of a company s public stock prices. Morgan v. AXT, Inc., No. C 0--MJJ, C 0--MJJ, 00 WL, at *- (N.D. Cal. Sept., 00); see also In re Ditech Commc ns Corp. Sec. Litig., No. C-0-00-JSW, 00 WL, at * (N.D. Cal. Aug., 00) (taking judicial notice of stock prices); In re Copper Mountain Sec. MASTER FILE No. C-0--JW sf- 1

3 Litig., F. Supp. d, (N.D. Cal. 00) (information about the stock price of publicly traded companies is a proper subject of judicial notice). The Yahoo! Finance website is a source whose accuracy cannot be readily questioned. In re Peerless Sys. Corp. Sec. Litig., F. Supp. d, 0 n. (S.D. Cal. 00) (taking judicial notice of Yahoo! Finance Historical Quotes Chart when ruling on motion to dismiss). Accordingly, the Court should take judicial notice of Exhibit 1 to the Foster Declaration, a table listing Infineon Technologies AG ADS prices between March 1, 000 and December 1, 00, which was downloaded from the Yahoo! Finance website, on September, 00. II. THE COURT SHOULD TAKE JUDICIAL NOTICE OF THE SEC FILINGS CITED IN THE SAC. In ruling on a motion to dismiss, a court may consider the full text of any documents referenced in the complaint. Cooper v. Pickett, F.d, (th Cir. ); see also In re Stac Elecs. Sec. Litig., F.d, n. (th Cir. ) ( Documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 1(b)() motion to dismiss ) (internal quotes and citation omitted); Branch v. Tunnell, 1 F.d, (th Cir. ) (document is not outside complaint if the complaint specifically refers to the document and if its authenticity is not questioned ). Courts also routinely take judicial notice of public disclosure documents that are required to be and are actually filed with the Securities and Exchange Commission (the SEC ). Copper Mountain, F. Supp. d at (taking judicial notice of documents filed with SEC); Allison v. Brooktree Corp., F. Supp. 1, n. (S.D. Cal. ) (taking notice of form filed with SEC because [j]udicial notice of documents required to be filed by law is appropriate ). These cases authorize the Court s consideration of the following documents that Infineon AG filed with the SEC, all of which are referenced in the SAC: Exhibit to the Foster Declaration, a true and correct copy of Infineon AG s Form -K, as filed with the SEC on June, 00; Exhibit to the Foster Declaration, a true and correct copy of Infineon AG s Form -K, MASTER FILE No. C-0--JW sf-

4 as filed with the SEC on July 0, 00; and Exhibit to the Foster Declaration, a true and correct copy of Infineon AG s Form -K, as filed with the SEC on September, 00, which exhibits a copy of Infineon AG s press release dated September, 00. See SAC 0,,. III. THE COURT SHOULD TAKE JUDICIAL NOTICE OF A NEWSPAPER ARTICLE. Finally, the Court should take judicial notice of Exhibit to the Foster Declaration, a true and correct copy of a newspaper article by Justin Scheck entitled, Justice just can t stop with one chip case, which the legal newspaper The Recorder published on November, 00. The court can take judicial notice of article because the contents of the article are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Plevy v. Haggerty, F. Supp. d, 1 (C.D. Cal. ) (taking judicial notice of news articles when ruling on motion to dismiss a securities fraud case). CONCLUSION For the foregoing reasons, defendants respectfully request that the Court take judicial notice of the documents attached as Exhibits 1 through to the Foster Declaration. 0 1 Dated: November, 00 By: /s/ Mia Mazza [e-filing signature] Attorneys for Defendants Infineon Technologies AG, Infineon Technologies Corporation North America, Ulrich Schumacher, and Peter J. Fischl MASTER FILE No. C-0--JW sf-

5 ECF ATTESTATION I, Mark Foster, am the ECF User whose ID and Password are being used to file this: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THE MOTION TO DISMISS THE SECOND AMENDED COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS. Dated: November, 00 By: /s/ Mark Foster [e-filing signature] MASTER FILE No. C-0--JW sf-