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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Case3:14-cv-00360 Document1 Filed01/24/14 Page1 of 36 LIONEL Z. GLANCY (#134180) 1 MICHAEL GOLDBERG (#188669) 2 ROBERT V. PRONGAY (#270796) GLANCY BINKOW & GOLDBERG LLP 3 1925 Century Park East, Suite 2100 Los Angeles, California 90067 4 Telephone: (310) 201-9150 5 Facsimile: (310) 201-9160 E-mail: [email protected] 6 [email protected] [email protected] 7 [email protected] 8 Attorneys for Plaintiff 9 [Additional Counsel on Signature Page] 10 11 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 12 BRADLEY COOPER, Individually and On ) Case No. 13 Behalf of All Others Similarly Situated, ) 14 ) CLASS ACTION P l a i n t i f f s , ) 15 ) COMPLAINT FOR VIOLATIONS v. ) OF FEDERAL SECURITIES 16 ) LAWS THORATEC CORPORATION, GERHARD F. 17 ) BURBACH, TAYLOR C. HARRIS, and ) DEMAND FOR JURY TRIAL 18 ROXANNE OULMAN, ) ) 19 Defendants. ) 20 21 22 23 24 25 26 27 28 Case3:14-cv-00360 Document1 Filed01/24/14 Page2 of 36 CLASS ACTION COMPLAINT 1 2 Plaintiff Bradley Cooper (“Plaintiff”), individually and on behalf of all other persons similarly 3 situated, by his undersigned attorneys, for his complaint against defendants, alleges the following based 4 upon personal knowledge as to himself and his own acts, and information and belief as to all other 5 matters, based upon, inter alia, the investigation conducted by and through his attorneys, which 6 included, among other things, a review of the defendants’ public documents, conference calls and 7 announcements made by defendants, United States Securities and Exchange Commission (“SEC”) 8 9 filings, wire and press releases published by and regarding Thoratec Corporation (“Thoratec” or the 10 “Company”), analysts’ reports and advisories about the Company, and information readily obtainable 11 on the Internet. 12 NATURE OF THE ACTION 13 1. This is a federal securities class action on behalf of a class consisting of all persons other 14 15 than defendants who purchased Thoratec securities between April 29, 2010 and November 27, 2013, 16 inclusive (the “Class Period”), seeking to recover damages caused by defendants’ violations of the 17 federal securities laws and to pursue remedies under the Securities Exchange Act of 1934 (the 18 “Exchange Act”). 19 2. Thoratec researches, develops, manufactures, and markets medical devices for circulatory 20 21 support and vascular graft applications. The Company’s products include a ventricular assist device, an 22 implantable left ventricular heart assist device, a vascular access graft, and a coronary artery bypass 23 graft. Thoratec also supplies whole-blood coagulation testing equipment. 24 3. Throughout the Class Period, Defendants failed to disclose that the Company’s HeartMate 25 II Left Ventricular Assist Device had significant risk of pump thrombosis, causing numerous fatalities. 26 As a result of the foregoing, the Company’s statements were materially false and misleading at all 27 28 relevant times. COMPLAINT 1 Case3:14-cv-00360 Document1 Filed01/24/14 Page3 of 36 4. The truth slowly emerged over several months, that the Company’s products were in fact 1 2 not as safe as conveyed to investors and the medical community, and in fact caused severed adverse 3 events such as blood clots. 4 5. On April 4, 2012, U.S. regulators ordered a recall for the company’s HeartMate II heart 5 pumps for a potentially deadly defect. In a regulatory posting by the Food and Drug Administration, the 6 agency stated that the recall “was initiated after Thoratec found that a component of the implanted 7 8 device, which pumps blood for heart failure patients, may sometimes be improperly attached to the 9 HeartMate II.” 10 6. In a note to investors, analyst Steven Lichtman, at Oppenheimer & Co in New York wrote 11 that, “the positioning of the component, called a bend relief, has been a concern tied to an increase in 12 blood clots seen with HeartMate II.” 13 14 7. On the news, shares of Thoratec shares tumbled $1.52 or almost 4.5% to close at $32.83 15 on volume of 5,441,400 shares. 16 8. Then, on November 27, 2013, after the market closed, The New England Journal of 17 Medicine released a study entitled, “Unexpected Abrupt Increase in Left Ventricular Assist Device 18 Thrombosis” concluding that the “rate of pump thrombosis related to the use of the HeartMate II has 19 been increasing at our centers and is associated with substantial morbidity and mortality.” 20 21 9. On this news, Thoratec shares declined $2.75 per share or 6.5%, to close at $39.37 per 22 share on November 29, 2013. 23 10. As a result of Defendants’ wrongful acts and omissions, and the precipitous decline in the 24 market value of the Company’s securities, Plaintiff and other Class members have suffered significant 25 damages. 26 27 28 COMPLAINT 2 Case3:14-cv-00360 Document1 Filed01/24/14 Page4 of 36 JURISDICTION AND VENUE 1 2 11. The claims asserted herein arise under and pursuant to Sections l0(b) and 20(a) of the 3 Exchange Act, 15 U.S.C. §§ 78j(b) and 78t(a), and Rule l0b-5 promulgated thereunder by the SEC, 17 4 C.F.R § 240.10b-5. 5 12. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 6 1331 and 1337, and Section 27 of the Exchange Act, 15 U.S.C. § 78aa. 7 13. Venue is proper in this District pursuant to Section 27 of the Exchange Act, and 28 U.S.C. 8 9 § 1391(b). Thoratec maintains its principal place of business in this District and many of the acts and 10 practices complained of occurred in substantial part herein. 11 14. In connection with the acts alleged in this complaint, Defendants, directly or indirectly, 12 used the means and instrumentalities of interstate commerce, including, but not limited to, the mails, 13 interstate telephone communications, and the facilities of the national securities markets. 14 15 PARTIES 16 15. Plaintiff, as set forth in the accompanying certification, incorporated by reference herein, 17 purchased Thoratec securities at artificially inflated prices during the Class Period and was damaged by 18 the revelation of the alleged corrective disclosures. 19 16. Defendant Thoratec is a California corporation with its principal place of business at 6035 20 21 Stoneridge Drive, Pleasanton, CA 94588. Thoratec’s common stock trades on the NASDAQ Global 22 Market (“NASDAQ”) under the ticker symbol “THOR.” 23 17. Defendant Gerhard F. Burbach (“Burbach”) has served at all relevant times as the 24 Company’s President and Chief Executive Officer. 25 18. Defendant Taylor C. Harris (“Harris”) has served at all relevant times as the Company’s 26 Chief Financial Officer and Vice President since October 11, 2012. 27 28 COMPLAINT 3 Case3:14-cv-00360 Document1 Filed01/24/14 Page5 of 36 19. Defendant Roxanne Oulman (“Oulman”) has served at all relevant times as the Company’s 1 2 Vice President of Finance, served as the Company’s interim Chief Financial Officer between June 2011 3 and October 2012. 4 20. The defendants referenced above in ¶¶ 13 - 15 are referred to herein as the “Individual 5 Defendants.” 6 SUBSTANTIVE ALLEGATIONS 7 BACKGROUND 8 9 21. Thoratec is a world leader in mechanical support with a product portfolio to treat the full 10 range of clinical needs for advanced heart failure patients. The Company develops, manufactures and 11 markets proprietary medical devices used for mechanical circulatory support (“MCS”) for the treatment 12 of heart failure (“HF”) patients. For chronic circulatory support for HF patients, the Company’s 13 primary product lines are its ventricular assist devices include HeartMate Left Ventricular Assist 14 15 System and HeartMate II Left Ventricular Assist System (“HeartMate II”). 16 22. HeartMate II is an implantable, electrically powered, continuous flow, left ventricular 17 assist device consisting of a rotary blood pump designed to provide intermediate and long-term MCS. 18 HeartMate II is designed to improve survival and quality of life for a broad range of advanced HF 19 patients. HeartMate II received Food and Drug Administration (“FDA”) approval in April 2008 for 20 21 bridge-to-transplantation (“BTT”) and received FDA approval for use in HF patients who are not 22 eligible for heart transplantation in January 2010. 23 MATERIALLY FALSE AND MISLEADING STATEMENTS MADE DURING THE CLASS PERIOD 24 25 23. On April 29, 2010, the Company issued a press release reporting financial results for the 26 first quarter ended April 3, 2010. Specifically, the Company reported net income of $12.4 million, or 27 $0.21 diluted EPS and sales of $121.6 million, as compared to net income of $5.6 million, or $0.10 28 diluted EPS and sales of $89.5 million for the same period a year ago. COMPLAINT 4 Case3:14-cv-00360 Document1 Filed01/24/14 Page6 of 36 24. In the press release, the Company stated the following in relevant part: 1 2 “Thoratec had an excellent start to 2010 as we initiated the commercial launch of our HeartMate II LVAS (Left Ventricular Assist System) for Destination Therapy (DT) 3 following the receipt of FDA approval of our PreMarket Application (PMA) Supplement in January,” noted Gary F. Burbach, president and chief executive officer. 4 5 “Our DT launch initiatives have enabled us to achieve rapid traction in the market. Our financial performance in the quarter reflects not only the benefit of initial DT 6 commercial activity in the U.S., but also continued adoption of the HeartMate II in Europe and our new HeartMate external peripherals introduced last fall.
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