1 BLANK ROME LLP MICHAEL JOSEPH (Pro Hac Vice) 2 JOSEPH O. CLICK (Pro Hac Vice) KERRY BRAINARD (Pro Hac Vice) 3 600 New Hampshire Avenue, N.W. Washington, D.C. 20037 4 Phone: 202-772-5800 Facsimile: 202-772-5858 5 BINGHAM MCCUTCHEN LLP 6 DALE E. BARNES (SBN 99273) Three Embarcadero Center 7 San Francisco, CA 94111-4067 Telephone: (415) 393-2000 8 Facsimile: (415) 393 2286 9 Attorneys for Defendants 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN JOSE DIVISION 13 ) 14 In re IMPAX LABORATORIES, INC. ) Master File No. C-04-4802-JW SECURITIES LITIGATION ) enue, NW, Washington, DC, 20037 enue, NW, 15 ) CLASS ACTION ) 16 This Document Relates To: ) DEFENDANTS’ REQUEST FOR Blank Rome LLP ) JUDICIAL NOTICE IN SUPPORT OF 17 ALL ACTIONS. ) DEFENDANTS’ MOTION TO DISMISS THE FIRST AMENDED 18 CONSOLIDATED CLASS ACTION COMPLAINT 19 20 Date: October 31, 2005 Watergate, 600 New Hampshire Av Watergate, 600 Time: 9:00 a.m. 21 Place: Courtroom 8, 4th Floor Judge: Hon. James Ware 22 23 24 25 26 27 28 1 Defendants Impax Laboratories, Inc., Barry Edwards, Charles Hsiao, Larry Hsu, Cornel 2 Spiegler, David Doll and David Edwards respectfully request that the Court take judicial notice 3 of each of the following documents pursuant to Federal Rule of Evidence 201 (“Rule 201”): 4 DOCUMENTS FILED WITH THE SEC: 5 1. The Strategic Alliance Agreement between Teva Pharmaceuticals Curacao N.V. and 6 Impax Laboratories, Inc. (“Impax”) dated June 27, 2001 included as Exhibit 10.55 to the 7 Form 10-QSB for the quarterly period ending June 30, 2001, filed with the Securities and 8 Exchange Commission (“SEC”) on July 31, 2001. A true and correct copy of this 9 document is attached hereto as Exhibit A. 10 2. Impax’s Form 10-Q for the quarter ending March 31, 2004, filed with the SEC on May 11 10, 2004. A true and correct copy of this document is attached hereto as Exhibit B. 12 3. Impax’s Form 10-Q for the quarter ending June 30, 2004, filed with the SEC on August 13 9, 2004. A true and correct copy of this document is attached hereto as Exhibit C. 14 4. Impax’s Amended Form 10-Q for the quarter ending March 31, 2004, filed with the SEC enue, NW, Washington, DC, 20037 enue, NW, 15 on November 16, 2004. A true and correct copy of this document is attached hereto as 16 Exhibit D. Blank Rome LLP 17 5. Impax’s Amended Form 10-Q for the quarter ending June 30, 2004, filed with the SEC 18 on November 17, 2004. A true and correct copy of this document is attached hereto as 19 Exhibit E. 20 6. Impax’s Form 10-Q for the quarter ending September 30, 2004, filed with the SEC on Watergate, 600 New Hampshire Av Watergate, 600 21 November 16, 2004. A true and correct copy of this document is attached hereto as 22 Exhibit F. 23 7. Cornel Spieger’s Amended Form 4 for the period ending June 7, 2004, filed with the SEC 24 on June 18, 2004. A true and correct copy of this document is attached hereto as Exhibit 25 G. 26 8. Charles Hsiao’s Amended Schedule 13D filed with the SEC on June 15, 2004. A true 27 and correct copy of this document is attached hereto as Exhibit H. 28 1 9. Larry Hsu’s Amended Schedule 13D filed with the SEC on June 15, 2004. A true and 2 correct copy of this document is attached hereto as Exhibit I. 3 10. David J. Edwards’ Form 4 for the period ending May 12, 2004 filed with the SEC on 4 May 14, 2004. A true and correct copy of this document is attached hereto as Exhibit J. 5 11. David S. Doll’s Amended Form 4 for the period ending June 7, 2004 filed with the SEC 6 on June 17, 2004. A true and correct copy of this document is attached hereto as Exhibit 7 K. 8 12. Barry R. Edwards’ Amended Form 4 for the period ending June 7, 2004 filed with the 9 SEC on June 17, 2004. A true and correct copy of this document is attached hereto as 10 Exhibit L. 11 13. Impax’s Press Release Form 8-K filed with the SEC on June 27, 2005, without exhibits. 12 A true and correct copy of this document is attached hereto as Exhibit M. 13 14. Andrx Corporation’s Form 10-Q for the quarter ending September 30, 2004, filed with 14 the SEC on November 3, 2004. A true and correct copy of this document is attached enue, NW, Washington, DC, 20037 enue, NW, 15 hereto as Exhibit N. 16 HISTORICAL STOCK PRICE Blank Rome LLP 17 15. The historical quote of the stock price for Impax for the period of May 5, 2004 and 18 December 1, 2004. A true and correct copy of this document is attached hereto as 19 Exhibit O. 20 RELATED PLEADINGS IN THIS MATTER Watergate, 600 New Hampshire Av Watergate, 600 21 16. The First Amended Consolidated Complaint for violations of the securities laws, In re 22 Impax Laboratories, Inc. Sec. Litig., Master File No. C-04-4802-JW, filed with the Court 23 on September 9, 2005. A true and correct copy of this document is attached hereto as 24 Exhibit P. 25 26 27 28 2 1 PRESS RELEASES REFERRED TO IN THE COMPLAINT 2 17. Impax Press Release dated November 3, 2004. A true and correct copy of this document 3 is attached hereto as Exhibit Q. 4 18. Impax Press Release dated November 9, 2004. A true and correct copy of this document 5 is attached hereto as Exhibit R. 6 19. Impax Press Release dated August 3, 2005, attached to Impax’s Form 8-K filed with the 7 SEC on August 3, 2005. A true and correct copy of this document is attached hereto as 8 Exhibit S. 9 20. Andrx Corporation Press Release dated November 3, 2004, attached to Andrx’s Form 8- 10 K filed with the SEC on November 3, 2004. A true and correct copy is attached hereto as 11 Exhibit T. 12 21. Eon Labs’s Press Release dated January 14, 2004. A true and correct copy of this 13 document is attached hereto as Exhibit U. 14 22. Eon Labs’s Press Release dated January 15, 2004. A true and correct copy of this enue, NW, Washington, DC, 20037 enue, NW, 15 document is attached hereto as Exhibit V. 16 23. Eon Labs’s Press Release dated February 4, 200. A true and correct copy of this Blank Rome LLP 17 document is attached hereto as Exhibit W. 18 19 20 Watergate, 600 New Hampshire Av Watergate, 600 21 22 23 24 25 26 27 28 3 1 DISCUSSION 2 These documents are proper subjects of judicial notice. The Court may take judicial 3 notice of and consider on a motion to dismiss documents filed with the SEC. See Janas v. 4 McCracken (In re Silicon Graphics Sec. Litig.), 183 F.3d 970, 983 (9th Cir. 1999); In re Nuko 5 Info. Sys. Sec. Litig., 199 F.R.D. 338, 341 (N.D. Cal. 2000). The above-referenced disclosure 6 statements, attached hereto as Exhibits A through N, constitute “relevant public disclosure 7 documents filed with the Securities Exchange Commission[.]” Ronconi v. Larkin, No. C-97- 8 1319, 1998 U.S. Dist. LEXIS 6364, *2 (N.D.Cal. May 1, 1998). Because it would be “highly 9 impractical and inconsistent with Fed. R. Evid. 201 to preclude a district court from considering 10 such documents when faced with a motion to dismiss a securities action based on allegations of 11 material misrepresentations or omissions,” this Court may take judicial notice of the SEC Forms 12 8-K, 10-QSB, 10-Q, 10-Q/A, 13D and 4 for purposes of this motion. Lovelace v. Software 13 Spectrum, Inc., 78 F.3d 1015, 1018 n.1 (5th Cir. 1996) (citation omitted); accord Fla. State Bd. 14 of Admin. v. Green Tree Fin. Corp., 270 F.3d 645, 663 (8th Cir. 2001). enue, NW, Washington, DC, 20037 enue, NW, 15 The Court may also consider “the full text of documents cited by the plaintiffs” in the 16 Consolidated Complaint. Ronconi, 1998 U.S. Dist. LEXIS 6364, at *2; Silicon Graphics, 183 Blank Rome LLP 17 F.3d at 986. Thus, the Court may take judicial notice of the full text of the Form 8-Ks and press 18 releases referenced or quoted in the Complaint. In re Gilead Sciences Sec. Litig., 2005 WL 19 181885 at *3 (N.D. Cal. Jan. 26 2005); Wiestschner v. Monterey Pasta Co., 294 F. Supp. 2d, 20 1102, 1108-09 (N.D. Cal. 2003). In addition, the Court may take judicial notice of stock prices Watergate, 600 New Hampshire Av Watergate, 600 21 in ruling on a motion to dismiss. In re 3Com Sec. Litig., 199 WL 1039715 at *4 (N.D. Cal. July 22 8, 1999); Ravens v. Iftikar, 174 F.R.D. 651, 661 (N.D. Cal. 1997) (noting that the Court may, on 23 its own motion, take judicial notice of historical stock prices). 24 Although virtually all of the documents referred to in the Memorandum of Points & 25 Authorities in Support of Defendants’ Motion to Dismiss are quoted or cited in the Complaint, 26 documents upon which the Complaint is based can be considered irrespective of whether 27 plaintiff has chosen to cite or quote from them.