FILED: NEW YORK COUNTY CLERK 03/29/ :57 PM INDEX NO /2016 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 03/29/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ANTIPODEAN DOMESTIC PARTNERS, L.P., Plaintiff, v. CLOVIS ONCOLOGY, INC.; PATRICK J. MAHAFFY; ERLE T. MAST; ANDREW ALLEN; ANNA SUSSMAN; J.P. MORGAN SECURITIES LLC; CREDIT SUISSE SECURITIES (USA) LLC; STIFEL, NICOLAUS & COMPANY, INC.; AND MIZUHO SECURITIES USA INC., Index No /2016 IAS Part 48 Hon. Jeffrey Oing, J.S.C. Defendants. MEMORADUM OF LAW IN SUPPORT OF REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS THE AMENDED COMPLAINT Tariq Mundiya Todd G. Cosenza Charles Dean Cording WILLKIE FARR & GALLAGHER LLP 787 Seventh Avenue New York, NY Telephone: (212) Attorneys for Defendants Clovis Oncology, Inc.; Patrick J. Mahaffy; Erle T. Mast; Andrew Allen; and Anna Sussman 1 of 5

2 Defendants Clovis Oncology, Inc. ( Clovis ), Patrick J. Mahaffy, Erle T. Mast, Andrew Allen, and Anna Sussman (collectively, the Clovis Defendants ) respectfully request that the Court, in connection with the Clovis Defendants Motion to Dismiss Plaintiff s Amended Complaint (the Complaint or Compl. ), consider and take judicial notice of the documents attached to the Affirmation of Charles Cording ( Cording Affirmation or Cording Aff. ). The exhibits attached to the Cording Affirmation are subject to judicial notice and properly considered by the Court on a motion to dismiss. 1 I. Legal Standard On a motion to dismiss, the Court is not required to accept factual allegations, or accord favorable inferences, where the factual assertions are plainly contradicted by documentary evidence. Bishop v. Maurer, 33 A.D.3d 497, 498, 823 N.Y.S. 366 (2006); Alliance Network, LLC v. Sidley Austin LLP, 43 Misc. 3d 848, 857, 987 N.Y.S.2d 794 (N.Y. Sup. Ct. 2014) ( factual claims [that are] either inherently incredible or flatly contradicted by documentary evidence are not entitled to acceptance by the Court). Thus, [o]n a motion to dismiss, the court may consider documents referenced in a complaint, even if the pleading fails to attach them. Id. at 852 n.1 (taking judicial notice of records referenced in plaintiff s complaint). Additionally, CPLR 4511(b) provides that courts may take judicial notice of ordinances and regulations of officers, agencies or governmental subdivisions of the state or of the United States. The concept of judicial notice is elastic and applicable to a wide range of subject matter. Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 A.D.3d 13, 19-20, 871 N.Y.S.2d 680 (2d Dep t 2009) (listing examples of judicially noticeable material). Agency policies fall 1 Many exhibits fall under more than one category, and the Clovis Defendants present each document under each category applicable to it. 2 2 of 5

3 within the purview of judicially noticeable material, as does material derived from official government Web sites. Id. II. The Court Should Consider Documents Referenced in the Complaint. The Court may consider documents referenced in a complaint, even if the pleading fails to attach them. Alliance Network, 43 Misc. 3d at 852 n.1. Exhibits B, D, G-K, and M-O of the Cording Affirmation are all referenced in the Complaint, and therefore may be considered by the Court on this motion to dismiss. 2 This will permit the Court to examine the documents in their proper context, rather than in the selective manner in which Plaintiff refers to them in the Complaint. III. The Court Should Consider Public Documents Showing Information Available to the Market. The Court may consider public documents that show the information that was available to the market and investors like Plaintiff. See Basis Yield Alpha Fund (Master) v. Goldman Sachs Grp., Inc., 115 A.D.3d 128, 133, 980 N.Y.S.2d 21 (1st Dep t 2014) (considering offering circulars to show information disclosed to plaintiff investor). Particularly in the area of securities fraud, courts routinely consider such documents. See In re Sanofi Sec. Litig., 87 F. Supp. 3d 510, 517 n.1 (S.D.N.Y. 2015) (court can consider public disclosure documents and fact that public documents contained certain information, without regard to their truth). Exhibits B- N are all public documents, many of which were filed with the SEC, that show the information that was available to investors like Plaintiff. These materials are particularly appropriate for consideration by the Court on this motion to dismiss because Plaintiffs claim that, among other things, Clovis misled the market in 2 Citations to the paragraphs of the Complaint in which these materials are referenced are provided in the Cording Affirmation. 3 3 of 5

4 reporting interim results from its ongoing clinical trial of the drug rociletinib and misled the market about the safety profile of rociletinib. These documents are offered not for their truth, but to demonstrate the information that Plaintiff and the rest of the market had available to them. IV. The Court Should Consider Public FDA Documents. Pursuant to CPLR 4511(b), courts may take judicial notice of agency policies and other material derived from official government Web sites. Kingsbrook, 61 A.D.3d at And particularly in the area of securities litigation involving allegations of false or misleading statements about drug trials, courts may consider FDA policies and guidance materials such as those concerning the process for reviewing new drug applications. Noble Asset Mgmt. v. Allos Therapeutics, Inc., No. 04-cv-1030-RPM, 2005 WL , at *2 (D. Colo. Oct. 20, 2005) (considering FDA manuals, industry guidance, and pages from FDA website because FDA approval process was central to an evaluation of the claims made in this case ). Exhibits F, G, and I are all FDA materials, which are publicly available on the agency s website. 3 The Court can properly consider these documents on a motion to dismiss. 4 V. Conclusion Clovis Defendants respectfully request that the Court consider and take judicial notice of the documents attached as exhibits to the Cording Affirmation in deciding the Clovis Defendants Motion to Dismiss. Dated: March 29, 2017 New York, New York 3 The web addresses are provided in the Cording Affirmation. 4 Additionally, the Court can consider Exhibit A, a document filed with the SEC by Plaintiff, which is publicly available on the SEC s website. The web address is provided in the Cording Affirmation. 4 4 of 5

5 Respectfully submitted, WILLKIE FARR & GALLAGHER LLP /s/ Tariq Mundiya Tariq Mundiya Todd G. Cosenza Charles Dean Cording 787 Seventh Avenue New York, NY Telephone: (212) Attorneys for Defendants Clovis Oncology, Inc.; Patrick J. Mahaffy; Erle T. Mast; Andrew Allen; and Anna Sussman 5 5 of 5