SUSAN ILLSTON, District Judge.
On April 23, 2010, the Court held a hearing on defendants' motions to dismiss the first amended consolidated class action complaint, and on the underwriter defendants' motion to strike. For the reasons set forth below, the Court GRANTS defendants' motions to dismiss and GRANTS plaintiffs leave to amend the complaint. The Court DENIES as moot the underwriter defendants' motion to strike. The Court GRANTS defendants' requests for judicial notice.
On January 29, 2010, plaintiffs filed a first amended consolidated class action complaint against Century Aluminum Company ("Century"), a number of Century officers and members of the Century Board of Directors, and two underwriters, Credit Suisse Securities (USA) LLC and Morgan Stanley & Co. Plaintiffs allege claims under the Securities Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. § 78 et seq., and under the Securities Act of 1933 (the "Securities Act"), 15 U.S.C. § 77 et seq.
Plaintiffs' Securities and Exchange Act claims are plead separately and independently,
Century is a holding company which through its subsidiaries, manufactures and produces aluminum and aluminum products. Id. ¶ 5. Century was formed by Glencore International of Switzerland, as a holding company for that corporations's aluminum producing assets. Id. The complaint alleges that by mid-2008, the "commodities markets were in peril, and the market for aluminum in particular was being heavily compromised." Id. ¶ 6. Century was facing rising raw material input prices and declining prices for aluminum due to problems in the auto, heavy truck and commercial building industries. Id. ¶¶ 6-7. By late 2008, Century was incurring substantial monthly losses, culminating in a net loss of $700.2 million (or $14.27 per share) for the Fourth Quarter of 2008. Id. ¶ 9. In addition, Century was forced to take a $94.8 million charge for "goodwill impairment" ($1.93 per share), a tax charge of $522.9 million ($10.66 per share) based on a "recording of a valuation allowance on deferred tax assets," and an inventory write-down charge of $55.9 million ($1.14 per share). Id.
The complaint alleges that "[t]o compound matters, . . . defendants . . . were facing the loss of their positions, control and holdings in Century Aluminum due to their losses on the open market." Id. ¶ 8. In mid-2008, Century owed over $750 million to commodities trading conglomerate Glencore Ltd., as a result of certain risky derivatives or "forward financial sales contracts." Id.
On July 8, 2008, Century disclosed the transaction to the public by (1) holding a conference call with analysts and investors to explain the transaction, Id. Ex. 5-6, (2) filing an 8-K announcing that it had agreed to terminate the Hedge via the execution of four agreements, all of which were attached in their entirety to the 8-K, Id. Ex. 3 at 186-260, and (3) filing a 13D/A detailing Glencore's purchase of preferred stock from Century, including all of the cash that changed hands as part of this transaction. Id. Ex. 4 at 276-80.
Plaintiffs' claims arise out of how this financial transaction was classified in Century's November 2008 quarterly financial statement, as well as in the January 29, 2009 secondary offering prospectus. In both statements, certain cash elements of the transaction were classified as "Cash Flows From Operating Activities" instead of as "Cash Flows From Financing Activities." FAC ¶ 10. Plaintiffs allege, "As such, Century Aluminum falsely reported in its [November 2008] quarterly report (Form 10-Q) that the Company had a surplus of $230,759,000 in free cash flows provided by operating activities in the third fiscal quarter of 2008 when in reality Century Aluminum had a deficit of $698,721,000." Id. Plaintiffs allege that defendants' misclassification of cash flows violated Generally Accepted Accounting Principles ("GAAP").
On March 2, 2009, Century filed a Restatement that informed shareholders and investors that the Company's "previously issued financial statements for the nine months ended September 30, 2008. . . . should no longer be relied upon as a result of an error in the interim consolidated statement of cash flows." Century RJN, Ex. 30 at 1063.
The complaint alleges that with the inflated statement of cash flows from operating activities, Century was able to seek an additional influx of cash from the only avenue remaining to the company: a public offering of stock. Id. ¶ 11. On January 29, 2009, Century made a secondary offering of common stock at $4.50 per share. Id. ¶¶ 17, 72, 176.
At the time of the offering, Century was in the midst of a dire financial situation and was facing plant shutdowns, mounting losses and debts, and possible bankruptcy. The January 29, 2009 prospectus states, "Our financial position and liquidity have been and will continue to be materially adversely affected by declining aluminum prices. If prices remain at current levels or continue to decline, we will have to take additional action to reduce costs, including significant curtailment of our operations, in order to have the liquidity required to operate through 2009, and there can be no assurance that these actions will be sufficient." Century RJN, Ex. 22 at 829. The prospectus also disclosed that Century suffered a substantial Q4 operating loss, stood to lose even more the next quarter, had a negative operating cash flow, would be taking an impairment charge to its goodwill, had to write down inventories, had worsening liquidity problems, and that Moody's had downgraded its credit rating. Id. at 827, 831, 833, 852-54, 856-57, 871-74.
Plaintiffs allege that because of these disclosed problems, "there can be no doubt that information concerning Century Aluminum's cash position was of the most valuable to investors and the market. As such, the . . . Defendants should have been primarily concerned with the accuracy of the disclosures in the Secondary Offering Documents which concerned operating cash and cash-on-hand. Indeed, extra scrutiny should have been given to those accounting items in view of the Company's situation—not only with respect to outside auditors and underwriters—but also internally (i.e., management, officers and the Board)." FAC ¶ 20. The complaint alleges that Century failed to implement sufficient and functional internal controls that would have discovered the false and misleading statements in the Registration Statement. Id.
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). While courts do not require "heightened fact pleading of specifics," Twombly, 550 U.S. at 544, 127 S.Ct. 1955, a plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555, 127 S.Ct. 1955. Plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." Id.
In deciding whether the plaintiff has stated a claim upon which relief can be granted, the Court must assume that the plaintiff's allegations are true and must draw all reasonable inferences in the plaintiff's favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). However, the Court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." St.
Plaintiffs allege violations of Sections 10(b) and 20(a) of the Exchange Act, 15 U.S.C. §§ 78j(b) and 78t(a), and the rules and regulations promulgated thereunder, including SEC Rule 10b-5, 17 C.F.R. § 240.10b-5. Plaintiffs allege that the Exchange Act defendants
To prove a violation of Rule 10b-5, a plaintiff must demonstrate "(1) a material misrepresentation or omission of fact (2) scienter, (3) a connection with the purchase or sale of a security, (4) transaction and loss causation, and (5) economic loss." In re Daou Sys., Inc., 411 F.3d 1006, 1014 (9th Cir.2005). Defendants challenge plaintiffs' allegations of materiality, scienter, and loss causation.
"[T]o adequately plead scienter, the complaint must [] `state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.'" Zucco Partners LLC v. Digimarc Corp., 552 F.3d 981, 991 (9th Cir.2009). The inquiry "is whether all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard." Tellabs, Inc. v. Makor Issues & Rights, Inc., 551 U.S. 308, 127 S.Ct. 2499, 2509, 168 L.Ed.2d 179 (2007) (emphasis in original). "[T]he inference of scienter must be more than merely `reasonable' or `permissible'—it must be cogent and compelling, thus strong in light of other explanations." Id. at 2510 (internal quotation marks omitted). "To adequately demonstrate that the defendant acted with the required state of mind, a complaint must allege that the defendants made false or misleading statements either intentionally or with deliberate recklessness." Zucco Partners, 552 F.3d at 991. The Ninth Circuit has instructed that "following Tellabs, we will conduct a dual inquiry: first, we will determine whether any of the plaintiff's allegations, standing alone, are sufficient to create a strong inference of scienter; second, if no individual allegations are sufficient, we will conduct a `holistic' review of the same allegations to determine whether the insufficient allegations combine to create a strong inference of intentional conduct or deliberate recklessness." Id. at 992.
The complaint's scienter allegations consist of the following: (1) defendants "had both the motive and opportunity to conduct fraud," FAC ¶ 83
The scienter allegations are insufficient for a number of reasons. "`[T]he mere publication of inaccurate accounting figures, or a failure to follow GAAP, without more, does not establish scienter.'" DSAM Global Value Fund v. Altris Software, Inc., 288 F.3d 385, 390 (9th Cir.2002) (quoting In re Software Toolworks Inc., 50 F.3d 615, 627 (9th Cir.1994)); see also Software Toolworks, 50 F.3d at 627 ("[S]cienter requires more than a misapplication of accounting principles."). Similarly, the signing of quarterly certifications of financial statements mandated by the Sarbanes-Oxley
Plaintiffs argue that scienter can be inferred because the cancellation of hedging contracts with Glencore was a major change in how Century conducted its business, and the improper accounting treatment created a positive cash flow from operations in the midst of a liquidity crisis and attracted investors to the January 2009 offering. Plaintiffs rely on Berson v. Applied Signal Technology, 527 F.3d 982 (9th Cir.2008), and South Ferry LP #2 v. Killinger, 542 F.3d 776 (9th Cir.2008). In both cases, bare allegations of falsity were held sufficient to plead scienter. The Ninth Circuit recently addressed the "certain narrow conditions" under which such allegations are adequate:
Zucco Partners, 552 F.3d at 1000-01. In Zucco Partners, a company announced that it had erroneously accounted for software
Here, plaintiffs have not shown that this case fits within either of the exceptions described in Zucco. The bare allegations that Century officers had access to financial statements and analyzed those statements does not support the inference that defendants knew about the accounting error. See Glazer Capital Mgmt., 549 F.3d at 746. The FAC essentially alleges that defendants must have known about the accounting error because the mistake involved a lot of money. However, as the FAC alleges and Century's SEC filings show, the Restatement moved $929,480,000 from "Cash Flows From Operating Activities" to "Cash Flows From Financing Activities"; there was no effect on net change in cash, assets, liabilities, shareholders' equity, net income (or loss), cash at the opening of the period, or on cash at the end of the period. Century disclosed all of the salient aspects of the transaction terminating the Hedges, and the termination of the Hedges was a one-time event. There are no allegations in the complaint to suggest that management had any factual basis for knowing that GAAP required that the one-time transaction should be classified under "Cash Flows From Financing Activities" as "Issuance of preferred stock" rather than netted against "Due to affiliates" under "Cash Flows From Operating Activities." As in Zucco, the alleged misrepresentation is "largely definitional" and the FAC does not allege why the falsity of the original statements would have been obvious to corporate management. Cf. Berson, 527 F.3d at 987-88 (plaintiffs could infer that two high-level managers responsible for day-to-day operations must have known about misrepresentations about the status of stop-work orders when four stop-work orders had halted tens of millions of dollars of the company's work and had "devastating effect on the corporation's revenue"); see also Cornerstone Propane Partners, 355 F.Supp.2d at 1091 (internal quotation marks omitted) ("In order to distinguish deliberate recklessness from ordinary carelessness, allegations of GAAP violations must be augmented by facts that shed light on the mental state of defendants, rather than conclusory allegations that defendant must have known of the accounting failures due to the degree of departure from established accounting principles."); see also Pac. Gateway Exch., 169 F.Supp.2d at 1167 (holding that plaintiffs must allege "how [and] when each defendant became aware of the allegedly improper accounting practices, [and] the extent of each defendant's contribution or involvement . . .").
Defendants also contend that the misstatement regarding cash flows was immaterial
Plaintiffs argue that precisely because of Century's liquidity problems, the misstatement about cash flows from operating expenses is material. Plaintiffs contend that the statement of cash flows is one of the most important and easily understandable indices that investors look to in order to construe the financial stability and viability of a corporation, and they emphasize the magnitude of the misstatement—nearly $1 billion. The Supreme Court has held that "[a]n omitted fact [or misstatement] is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote." Basic Inc. v. Levinson, 485 U.S. 224, 231, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (quoting TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976)) (internal quotations omitted). "[T]o fulfill the materiality requirement there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the total mix of information made available." Id. at 231-32, 108 S.Ct. 978 (quoting TSC Indus., 426 U.S. at 449, 96 S.Ct. 2126) (internal quotations omitted).
"The `materiality' of an omission is a fact-specific determination that should ordinarily be assessed by a jury [and] [o]nly if the adequacy of the disclosure or the materiality of the statement is so obvious that reasonable minds could not differ are these issues appropriately resolved as a matter of law." In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1405 (9th Cir.1996). In light of all the public disclosures which were made in this case, this is a close question. On balance, however, the Court finds that whether the misstatement here is material raises factual issues that cannot be resolved on the pleadings at this stage.
Defendants contend that the FAC's allegations of loss causation are insufficient. "[T]o prove loss causation, the plaintiff must demonstrate a causal connection between the deceptive acts that form the basis for the claim of securities fraud and the injury suffered by the plaintiff." In re Daou Sys., Inc., 411 F.3d at 1025 (citing Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 346, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)). "A complaint fails to allege loss causation if it does not `provide[ ] [a defendant] with notice of what the relevant economic loss might be or of what the causal connection might be between that loss and the misrepresentation[.]'" Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1062 (9th Cir.2008) (quoting Dura, 544 U.S. at 347, 125 S.Ct. 1627).
The FAC alleges that "on news of the Restatement, the price of the Company's shares traded on NASDAQ fell to
Defendants also argue that after eliminating the pre-Restatement drop, all that remains is a 18-cent drop, or approximately 10% of the stock price, and that this drop was a "blip" that is not actionable. Defendants calculate the 18-cent drop by looking at the stock price at 11:40 am on March 2, 2009 ($1.86), which was immediately prior to the filing of the Restatement, and comparing that to the stock price at the close of business that same day, $1.68. RJN, Ex. 63.
A plaintiff must only allege "facts that, if taken as true, plausibly establish loss causation." In re Gilead Scis. Litig., 536 F.3d at 1057. Plaintiffs allege a 24% stock drop due to the restatement, with a loss of $40.4 million in market capitalization. Whether the stock drop was due to other factors, as defendants argue, is a factual inquiry better suited for determination on summary judgment or trial, rather than at the pleading stage. See McCabe v. Ernst & Young, LLP, 494 F.3d 418, 427 n. 4 (3d Cir.2007); Emergent Capital Inv. Mgmt., LLC v. Stonepath Group, Inc., 343 F.3d 189, 197 (2d Cir.2003). Accordingly, although it is a close call, the Court finds that as a pleading matter, plaintiffs have sufficiently alleged loss causation.
Plaintiffs also allege Section 20(a) claims against the Century defendants on a "control person" theory of liability. As plaintiffs have not adequately alleged a primary violation of 10b-5, plaintiffs' claims for control person liability under Section 20 are DISMISSED with leave to amend. See Howard v. Everex Sys., Inc., 228 F.3d 1057, 1065 (9th Cir.2000).
Plaintiffs have alleged claims under Section 12(a)(2), Section 11 and Section 15 against all of the Century defendants, and against the two Underwriter defendants, Credit Suisse Securities (USA) LLC, and Morgan Stanley & Co. Defendants challenge
The Century and Underwriter defendants contend that plaintiffs lack standing to bring claims under Section 12(a)(2). Section 12(a)(2) provides that any person who "offers or sells" a security by means of a prospectus containing a materially false statement or material omission shall be liable to any "person purchasing such security from him." 15 U.S.C. § 77l(a)(2). Section 12(a)(2) requires a plaintiff to plead and prove that it purchased a security directly from the issuer as part of the initial offering, rather than in the secondary market. See Hertzberg v. Dignity Partners, Inc., 191 F.3d 1076, 1081 (9th Cir.1999) ("Section 12 . . . permits suit against a seller of a security by prospectus only by `the person purchasing such security from him,' thus specifying that a plaintiff must have purchased the security directly from the issuer of the prospectus") (quoting 15 U.S.C. § 77l(a)(2)) (emphasis added); see also In re Levi Strauss & Co. Securities Litig., 527 F.Supp.2d 965, 983 (N.D.Cal.2007) (holding Section 12(a) does not apply to aftermarket purchases).
Plaintiffs allege that they purchased "pursuant and/or traceable to the offering," FAC ¶¶ 28-31. As defendants point out, courts have dismissed Section 12(a)(2) allegations stated in precisely such terms. See, e.g., Plumbers' Union Local No. 12 Pension Fund v. Nomura Asset Acceptance Corp., 658 F.Supp.2d 299, 305 (D.Mass.2009) ("Here, plaintiffs allege that they `acquired' securities `pursuant and/or traceable to' the registration statements and prospectus supplements. . . . If plaintiffs did in fact purchase the Certificates directly from the defendants, they should have said so. An evasive circumlocution does not suffice as a substitute.").
Moreover, defendants argue that the plaintiffs' certifications of their stock purchases, which are incorporated by reference in paragraphs 28, 29, 30 and 31 of the FAC, show that none of the named plaintiffs purchased any shares on the date of the secondary offering, or at the secondary offering price. The FAC states that the secondary offering occurred on January 29, 2009 at $4.50 per share. FAC ¶¶ 17, 72, 176; see also Prospectus Supplement (Underwriters' RJN Ex. A). The certifications incorporated in the FAC state:
-------------------------------------- Plaintiff Date(s) Purchase Price(s) -------------------------------------- Stuart Wexler 10/23/08 $10.14 -------------------------------------- 1/28/09 $ 4.56 -------------------------------------- 1/30/09 $ 3.56 -------------------------------------- Peter Abrams 1/16/09 $ 8.08 -------------------------------------- 1/28/09 $ 5.60 -------------------------------------- 1/30/09 $ 3.79 -------------------------------------- 2/10/09 $ 4.10 -------------------------------------- 2/26/09 $ 2.46 -------------------------------------- 2/27/09 $ 2.26 -------------------------------------- Eric Petzchke 1/28/09 $ 4.52 -------------------------------------- Cory McClellan 1/28/09 $ 4.0950 --------------------------------------
1/30/09 $ 4.1000 -------------------------------------- 1/30/09 $ 4.0500 -------------------------------------- 2/26/09 $ 2.4388 --------------------------------------
The Underwriter defendants have also submitted the declarations of Ryan Fitzpatrick, a Credit Suisse employee, and Scott Gregory, a Morgan Stanley employee.
In their oppositions, plaintiffs do not specifically respond to defendants' arguments about the certifications or to the Fitzpatrick and Gregory declarations, and instead simply generally assert that they have met their burden to show standing by pleading purchases "pursuant and/or traceable to" the January 2009 offering. As noted above, such conclusory allegations are insufficient to establish standing under Section 12(a)(2). Moreover, plaintiffs' certifications and the Fitzpatrick and Gregory declarations show as a factual matter that that the named plaintiffs did not purchase directly in the January 29, 2009 secondary offering.
Accordingly, plaintiffs' Section 12(a)(2) claim is DISMISSED as to the currently named plaintiffs.
The Century and Underwriter defendants also challenge plaintiffs' standing to bring claims under Section 11. Section 11 of the Securities Act of 1933 imposes liability on issuers, underwriters, and other participants in a public securities offering for any material misstatement of fact or material omission in the registration statement. 15 U.S.C. § 77k. To have standing to bring suit under Section 11, a plaintiff must have purchased stock in the offering at issue, or trace later-purchased stock back to that offering. See Hertzberg, 191 F.3d at 1080 n. 4; see also Guenther v. Cooper Life Scis., Inc., 759 F.Supp. 1437, 1441 (N.D.Cal.1990) (citation omitted). "The burden of tracing shares to a particular public offering rests with plaintiffs." Id. at 1439; see also Abbey v. Computer Memories, Inc., 634 F.Supp. 870, 875-76 (N.D.Cal.1986).
The named plaintiffs in this action bring suit on behalf of a class "composed of all those who purchased or otherwise acquired Century Aluminum common stock pursuant and/or traceable to the Company's January 2009 Secondary Offering, and who were damaged thereby." FAC ¶ 129. The Century and Underwriter defendants contend that the FAC does not plead any
As discussed supra, plaintiffs' certifications of their stock purchases and the Fitzpatrick and Gregory declarations show that the named plaintiffs did not purchase in the secondary offering. Defendants argue that the fact that plaintiffs did not purchase in the secondary offering means that they cannot possibly trace their purchases to the offering, and that this defect is not simply a pleading matter, but a factual one that goes to standing. Defendants have submitted evidence showing that the registration statement at issue was filed in connection with a secondary offering of 24,500,000 shares of common stock. At the time it became effective, there were already 49,052,692 common shares trading in the aftermarket. Underwriters RJN Ex. A at S-8. Plaintiffs have neither alleged in the FAC, nor have they articulated in their oppositions, how to trace any particular shares in the 75 million share pool that existed after the secondary offering to show that those shares came from the secondary offering.
Plaintiffs contend that defendants' arguments about standing are premature, and that their allegations are sufficient. However, standing and subject matter jurisdiction present a "threshold inquiry" that is "particularly important in securities litigation." Plumbers' Union Local No. 12 Pension Fund, 658 F.Supp.2d at 303. Defendants have cited cases that have analyzed traceability as a matter of Section 11 standing. See, e.g., Grand Lodge of Pa. v. Peters, 550 F.Supp.2d 1363 (M.D.Fla.2008). Plaintiffs also assert that the named plaintiffs need not have standing to pursue all claims which may be represented by the class as a whole. However, case law is clear that a named plaintiff has standing under Section 11 only as to the documents that governed his own purchase of securities. Hertzberg, 191 F.3d at 1080. Here, defendants have raised serious questions about the named plaintiffs' standing, and the complaint does not allege any facts showing that the named plaintiffs' purchases are traceable to the January 29, 2009 offering. If plaintiffs can never meet their burden of tracing their shares to the secondary offering, there is no reason to defer this question to a later stage.
Plaintiffs also argue that "[i]t would have been both anachronistic and antithetical for Congress to require a putative plaintiff to prove that he purchased his securities both at the offering price and on the exact date of the offering in order to enjoy standing under § 11." Omnibus opposition at 21:1-3. However, as courts have recognized, because no scienter is required for liability under Section 11 and thus defendants are liable for innocent or negligent material misstatements or omissions, its standing provision is narrow. See Krim v. pcOrder.com, Inc., 402 F.3d 489, 495-96 (5th Cir.2005) (affirming dismissal of Section 11 claims for lack of subject matter jurisdiction where plaintiffs could not prove shares traceable to offering, but had submitted expert evidence showing there was a 99.85% statistical likelihood that shares were from offering). As Judge Lynch explained in Abbey,
634 F.Supp. at 875 (granting summary judgment in favor of defendants where plaintiff could not demonstrate direct tracing and only submitted evidence showing that shares might have come from offering at issue) (internal citation omitted).
Accordingly, because the complaint does not allege facts showing that the named plaintiffs' purchases are traceable to the January 29, 2009 offering, plaintiffs' Section 11 claim is DISMISSED as to the currently named plaintiffs.
Plaintiffs also allege Section 15 claims against the Century and underwriter defendants on a "control person" theory of liability. As plaintiffs have not adequately alleged a primary violation of the federal securities laws, plaintiffs' claims for control person liability under Section 15 are DISMISSED. See Howard, 228 F.3d at 1065.
The Underwriter defendants move to strike the class allegations to the extent that they would include Glencore as a member of the putative class. Defendants argue that it is improper to include Glencore, which purchased 47% of the shares in the January 29, 2009 offering, in the putative class because Glencore is an affiliate of Century. Plaintiffs contend that defendants' motion is premature, and raises issues that should be addressed in the context of class certification.
In light of the dismissal of all of plaintiffs' claims, the Court finds defendants' motion is MOOT.
The Century and Underwriter defendants have requested judicial notice of various exhibits. Plaintiffs object to the Court taking judicial notice of the following exhibits submitted by Century: Ex. 5, 6, 10, 11, 14, 15, 28, 29 (transcripts of conference calls with analysts and Power-Point presentations to analysts); Ex. 33-47 and 48-60 (analyst reports and news articles); and Ex. 61 and 64 (graphs of London Metal Exchange prices for primary aluminum). Plaintiffs have not objected to the other exhibits submitted by defendants, and as to those exhibits, the Court GRANTS defendants' requests for judicial notice.
For the foregoing reasons, the Court hereby GRANTS defendants' motions to dismiss and GRANTS plaintiffs leave to amend the complaint. The Court DENIES as moot the underwriter defendants' motion to strike. The Court GRANTS defendants' requests for judicial notice. (Docket Nos. 69, 70, 72, 73, & 74). Plaintiffs' amended complaint must be filed no later than