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In Re: Juniper Networks, Inc. Securities Litigation 06-CV-04327

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In Re: Juniper Networks, Inc. Securities Litigation 06-CV-04327 (Case 5:06-cv-04327-JW Document 91 Filed 07/30/2007 Page 1 of 3 1 NEIL L. SELINGER RICHARD BEMPORAD 2 DAVID C. HARRISON JEANNE D'ESPOSITO 3 STACEY E. BLAUSTEIN LOWEY DANNENBERG BEMPORAD & SELINGER, P.C. 4 One North Lexington Avenue White Plains, New York 10601-1714 5 Telephone: 914-997-0500 6 Lead Counselfor the New York City Pension Funds and the Putative Class 7 WILLEM F. JONCKHEER S.B.N. 178748 SCHUBERT & REED LLP 8 Two Embarcadero Center, Suite 1050 San Francisco, California 94111 9 Telephone: 415-788-4220 10 Local Counsel 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 SAN JOSE DIVISION 14 15 In re JUNIPER NETWORKS, INC. No. C06-04327-JW SECURITIES LITIGATION 16 DECLARATION OF DAVID C. HARRISON IN SUPPORT 17 OF PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' 18 MOTION TO DISMISS AMENDED CONSOLIDATED CLASS ACTION 19 COMPLAINT 20 Date : September 10, 2007 This Document Relates to: All Actions. Time: 9 :00 a.m. 21 Courtroom: 8 Before: Hon. James Ware 22 23 24 25 I, David C. Harrison, declare as follows: 26 27 28 DECLARATION OF DAVID C. HARRISON IN SUPPORT OF PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS AMENDED CONSOLIDATED CLASS ACTION COMPLAINT 1964 / DECL/ 00083364.WPD vl Case 5:06-cv-04327-JW Document 91 Filed 07/30/2007 Page 2 of 3 1 1. I am an attorney at the law firm of Lowey Dannenberg Bemporad Selinger & 2 Cohen, P.C., counsel of record for Lead Plaintiff The New York City Pension Funds. I make this 3 declaration in support of Plaintiffs Brief in Opposition to the Juniper Defendants' Motion to 4 Dismiss. I have personal knowledge of the facts set forth below, and if called as a witness, could 5 and would testify competently thereto. 6 2. Attached hereto as Exhibit 1 is a true and correct copy of the opinion in In re 7 United Health Group PSLRA Litig., 06-CV-1691 (JMR/FLN) (D. Minn. June 4, 2007). 8 3. Attached hereto as Exhibit 2 is a true and correct copy of Juniper's 2005 Proxy 9 Statement. 10 4. Attached hereto as Exhibit 3 is a true and correct copy of the Transcript on 11 Hearing on Motion to Dismiss in the case of Smajlaj v. Brocade Communications Systems, Inc., 12 C-05-242 (CBB) (N.D. Cal. Nov. 3, 2006). 13 5. Attached hereto as Exhibit 4 is a true and correct copy of Juniper's Form 8-K, 14 dated December 13, 2004. 15 6. Attached hereto as Exhibit 5 is the March 18, 2006 Wall Street Journal article,"the 16 Perfect Payday." 17 7. Attached hereto as Exhibit 6 is the May 18, 2006 Wall Street Journal article, 18 Affiliated Computer Gets Subpoena." 19 S. Attached hereto as Exhibit 7 is the May 19, 2006 Los Angeles Times article, 20 "Broadcom at Risk on Stock Options." 21 9. Attached hereto as Exhibit 8 is the May 19, 2006 thestreet.com article, "Option 22 Talk Hits Juniper." 23 10. Attached hereto as Exhibit 9 is a true and correct copy of the Order Denying 24 Defendants' Motion to Dismiss in Plumbers Pipefitters National Pension Fund v. Cisco Systems, 25 Inc. C-01-20418 (JW) (N.D. Cal. Jan. 4, 2003). 26 11. Attached hereto as Exhibit 10 is a true and correct copy of the opinion in In re 27 Wireless Facilities Inc. Sec. Litig., No. 04-CV-1589 (S.D. Cal. March 9, 2006). 28 12. Attached hereto as Exhibit 11 is the August 11, 2006 thestreet.com article, 1964 / DECL/ 00083364.WPD vl Case 5:06-cv-04327-JW Document 91 Filed 07/30/2007 Page 3 of 3 1 "Friday's Tech Winners & Losers." 2 13. Attached hereto as Exhibit 12 is a true and correct copy of a chart showing 3 Juniper's daily closing stock prices for the period January 16, 2006 to May 24, 2006 , obtained 4 from http ://finance.aol . com/quotes. 5 I declare under penalty of perjury that the foregoing is true and correct. 6 Executed this 30" day of July 2007 in White Plains/Nc v York,,,'-)_ 7 8 9 rc, Harrison 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF DAVID C. HARRISON IN SUPPORT OF PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS AMENDED CONSOLIDATED CLASS ACI'ioN COMPLAINT 19641 DECL / 00083364. WPD v i 2 Case 5:06-cv-04327-JW Document 91-2 Filed 07/30/2007 Page 1 of 6 EXHIBIT 1 Case 5:06-cv-04327-JW Document 91-2 Filed 07/30/2007 Page 2 of 6 Case 0:06-cv-01691-JMR-FLN Document 202 Filed 06/04/2007 Page 1 of 5 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Master File No. 06-CV-1691(JMR/FLN) In re UnitedHealth Group ) AMENDED PSLRA Litigation ) ORDER This matter is before the Court on defendants' motion to dismiss the Consolidated Class Action Co mplaint ("Complaint"). Notwithstanding counsel's siren song, the Court persists in its belief that two plus two equals four. I. Background On March 18, 2006, the Wall Street Journal published an article. According to the article, United Health Group ("United") executives had received back-dated stock options, with "grant dates" designed to coincide with prior low points in the company's stock price. As has become customary, this article led to the filing of numerous securities class actions, now consolidated before this Court. Lead plaintiff California Public Employees Retirement System filed the Complaint on December 8, 2006. The Complaint alleges that United and certain of its officers and directors violated federal securities laws, including §§ 11 and 15 of the Securities Act of 1933, §§ 10b, 14(a), and 20A of the Securities Exchange Act of 1934, and related Rule lOb-5. The lead plaintiff purports to represent a putative class which, it claims, suffered compensable injuries during an asserted class period, Case 5 : 06-cv-04327-JW Document 91-2 Filed 07/30/2007 Page 3 of 6 Case 0: 06-cv-01 691 -JMR-FLN Document 202 Filed 06/04/2007 Page 2 of 5 commencing on January 20, 2005, and running to May 17, 2006. II. Analysis Defendants urgently ask the Court to apply the Private Securities Litigation Reform Act's ("PSLRA") heightened pleading standards. The Court, of course, is constrained to do so in any case of this nature. But even under those heightened pleading standards, it remains the law that, in securities litigation as elsewhere, plaintiffs' Complaint should not be dismissed for failure to state a claim where there is a "reasonably founded hope that the [discovery] process will reveal relevant evidence" to support plaintiffs' claims. Bell Atlantic Corp. v. Twombly , 127 S.Ct. 1955, 1967 (May 21, 2007) (alteration in Dura Pharmaceuticals, Inc. v. Broudo , 544 U.S. 336, 347 (2005)). The Court has carefully applied the PSLRA's standards. This means it takes the Complaint's factual allegations as true, while simultaneously rejecting "catch-all or blanket assertions" of fact or law and unwarranted inferences. In re Navarre Corp. Securities Litig. , 299 F.3d 735, 740-41 (8th Cir. 2002). The Court well knows that in PSLRA-governed cases, plaintiffs must plead specific facts giving rise to "both reasonable and strong inferences" that defendants acted with the requisite state of mind. Id. at 741. The Court wishes to be explicit: it expresses - and harbors - no opinion as to the ultimate merits of this case. But it has eyes to see, as well as a mind to perceive, the nature of plaintiffs' 2 Case 5:06-cv-04327 -JW Document 91-2 Filed 07/30/2007 Page 4 of 6 Case 0: 06-cv-01 691 -JMR-FLN Document 202 Filed 06/04/2007 Page 3 of 5 claims. Plaintiffs' claims are nowhere near as complex as defense counsel suggest. If plaintiffs are correct, this case is incredibly simple. Plaintiffs claim defendants were playing a game with a stacked deck. When awarded options, with deliberately selected grant dates which were already in the money, defendants were playing a game they knew they could not lose; and, unsurprisingly, defendants won. Defendants' dismissal motions trot out - expending forests of trees and trillions of electrons - the requirements of the PSLRA, Sarbanes-Oxley, and GAAP, all to inform the Court, as required by Rule 12, Fed. R. Civ. P., that there is no way plaintiffs can possibly win. The Court has carefully reviewed their briefs. After this review, however, plaintiffs' theory remains clear. Interestingly, plaintiffs' theory has been examined in the public media for years. Indeed, it has won several Academy Awards. Plaintiffs' theory lies at the core of the plot in one of Hollywood's most entertaining and honored films. In The Sting , the bad guy is ultimately brought down by utterly charming con men, played by Paul Newman and Robert Redford. The Sting (Universal Pictures, 1973) . They gain their revenge through a scheme involving "past-posting," or betting on horse races after the results are known. The Court expresses not the slightest opinion as to whether such shenanigans occurred here, but such is the essence of plaintiffs' theory. 3 Case 5 : 06-cv-04327-JW Document 91-2 Filed 07/30/2007 Page 5 of 6 Case 0: 06-cv-01 691 -JMR-FLN Document 202 Filed 06/04/2007 Page 4 of 5 It is a poker axiom that if a player has his knees under the table and cannot tell who the sucker is, he's it.
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