chet a. kronenberg (state bar no. 222335) simpson thacher ... · - iv - case no. 3:14-cv 02129 mma...

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Chet A. Kronenberg (State Bar No. 222335) [email protected] SIMPSON THACHER & BARTLETT LLP 1999 Avenue of the Stars, 29th Floor Los Angeles, California 90067 Telephone: (310) 407-7500 Facsimile: (310) 407-7502 Jonathan K. Youngwood (pro hac vice) [email protected] Janet A. Gochman (pro hac vice) [email protected] Isaac M. Rethy (pro hac vice) [email protected] Dean McGee (pro hac vice) [email protected] Meredith D. Karp (pro hac vice) [email protected] SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, New York 10017 Telephone: (212) 455-2000 Facsimile: (212) 455-2502 Attorneys for Defendants SeaWorld Entertainment, Inc., James M. Heaney, Marc Swanson, and The Blackstone Group L.P. (counsel for additional party listed on signature page)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

LOU BAKER, individually and on behalf of all others similarly situated,

Plaintiff,

v. SEAWORLD ENTERTAINMENT, INC., et al.,

Defendants.

Case No. 3:14-cv-02129-MMA-AGS REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN FURTHER SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Action Filed: September 9, 2014 Trial Date: TBD Hearing: August 12, 2019, 2:30 p.m. Room: 3D Judge: Hon. Michael M. Anello

[Filed concurrently herewith: Declaration of Jonathan K. Youngwood; Defendants’ Evidentiary Objections; Response to Plaintiffs’ Evidentiary Objections; Reply in Further Support of Statement of Undisputed Facts]

Case 3:14-cv-02129-MMA-AGS Document 461 Filed 09/13/19 PageID.52982 of 24

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- i - Case No. 3:14-cv-02129-MMA-AGS

Reply MPA in Further Support of Defendants’ Motion for Summary Judgment

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT ......................................................................................... 1

ARGUMENT ....................................................................................................................... 2

I. PLAINTIFFS CANNOT DEMONSTRATE LOSS CAUSATION ............... 2

A. Disclosures Must “Trace Back” To The Alleged Misstatements ......... 2

B. Plaintiffs Fail To “Trace Back” The Alleged Corrective Disclosure .............................................................................................. 4

C. Plaintiffs’ Expert Fails To Disaggregate Confounding Factors ........... 6

II. PLAINTIFFS HAVE NO ADMISSIBLE EVIDENCE OF DAMAGES ...... 7

III. NO GENUINE FACTUAL DISPUTES EXIST AS TO WHETHER ANY CHALLENGED STATEMENT WAS BOTH MATERIALLY FALSE AND MADE WITH SCIENTER ....................................................... 8

A. Plaintiffs’ Theories Of Scienter Fail On The Law And The Facts ....... 8

B. Plaintiffs’ Claims Fail As To Each Of The Challenged Statements ........................................................................................... 10

IV. NO TRIABLE ISSUES EXIST ON THE REMAINING CLAIMS ............. 15

CONCLUSION .................................................................................................................. 15


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- ii - Case No. 3:14-cv-02129-MMA-AGS


TABLE OF AUTHORITIES

Cases

Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., 888 F. Supp. 2d 431 (S.D.N.Y. 2012) ............................................................................ 4

Bao v. SolarCity Corp., 2015 WL 1906105 (N.D. Cal. Apr. 27, 2015) .............................................................. 11

Bonanno v. Cellular Biomed. Grp., 2016 WL 2937483 (N.D. Cal. May 20, 2016) ................................................................ 5

Cal. Parents for Equalization of Educ. Materials v. Torlakson, 370 F. Supp. 3d 1057 (N.D. Cal. 2019) ........................................................................ 13

City of Miami Gen. Emps.’ & Sanitation Emps.’ Ret. Tr. v. RH, Inc., 302 F. Supp. 3d 1028 (N.D. Cal. 2018) .......................................................................... 3

Cunha v. Hansen Nat. Corp., 2013 WL 12124073 (C.D. Cal. June 20, 2013) .............................................................. 6

Cunningham v. Identiv, Inc., 716 F. App’x 663 (9th Cir. 2018) ................................................................................... 3

Dura Pharm., Inc. v. Broudo, 544 U.S. 336 (2005) ........................................................................................................ 4

Fosbre v. Las Vegas Sands Corp., 2017 WL 55878 (D. Nev. Jan. 3, 2017) .......................................................................... 3

Gebhart v. S.E.C., 595 F.3d 1034 (9th Cir. 2010) ........................................................................................ 9

Glickenhaus & Co. v. Household Int’l, Inc., 787 F.3d 408 (7th Cir. 2015) .......................................................................................... 7

Holmes v. Tenderloin Hous. Clinic, Inc., 772 F. Supp. 2d 1074 (N.D. Cal. 2011) ........................................................................ 15

Howard v. Everex Systems, Inc., 228 F.3d 1057 (9th Cir. 2000) ........................................................................................ 9

Hsingching Hsu v. Puma Biotechnology, Inc., 2018 WL 4945703 (C.D. Cal. Oct. 5, 2018)......................................................... 7, 9, 13

In re BofI Holding, Inc. Sec. Litig., 302 F. Supp. 3d 1128 (S.D. Cal. 2018)........................................................................... 3


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- iii - Case No. 3:14-cv-02129-MMA-AGS


In re Bristol-Myers Squibb Sec. Litig., 312 F. Supp. 2d 549 (S.D.N.Y. 2004) .......................................................................... 13

In re Celestica Inc. Sec. Litig., 2014 WL 4160216 (S.D.N.Y. Aug. 20, 2014) ................................................................ 7

In re DVI, Inc. Sec. Litig., 2010 WL 3522090 (E.D. Pa. Sept. 3, 2010) ................................................................... 6

In re Harman Int’l Indus., Inc. Sec. Litig., 791 F.3d 90 (D.C. Cir. 2015) .......................................................................................... 4

In re Homestore.com, Inc. Sec. Litig., 347 F. Supp. 2d 769 (C.D. Cal. 2004) .......................................................................... 13

In re ICN Pharms., Inc. Sec. Litig., 299 F. Supp. 2d 1055 (C.D. Cal. 2004) ........................................................................ 13

In re Immune Response Sec. Litig., 375 F. Supp. 2d 983 (S.D. Cal. 2005)........................................................................... 13

In re Merck & Co., Inc. Sec., Deriv. & ERISA Litig., 2015 WL 2250472 (D.N.J. May 13, 2015) ..................................................................... 9

In re N. Telecom Ltd. Sec. Litig., 116 F. Supp. 2d 446 (S.D.N.Y. 2000) .......................................................................... 12

In re Novatel Wireless Sec. Litig., 830 F. Supp. 2d 996 (S.D. Cal. 2011)......................................................................... 4, 7

In re Oracle Corp. Sec. Litig., 627 F.3d 376 (9th Cir. 2010) ...................................................................................... 6, 7

In re Pixar Sec. Litig., 450 F. Supp. 2d 1096 (N.D. Cal. 2006) ........................................................................ 10

In re REMEC Inc. Sec. Litig., 702 F. Supp. 2d 1202 (S.D. Cal. 2010)......................................................................... 10

In re WaMu MBS Securities Litigation, 2012 WL 2995046 (W.D. Wash. July 23, 2012) ............................................................ 5

In re Worlds of Wonder Sec. Litig., 35 F.3d 1407 (9th Cir. 1994) ........................................................................................ 10

In re Xerox Corp. Sec. Litig., 746 F. Supp. 2d 402 (D. Conn. 2010) ............................................................................. 7

Janbay v. Canadian Solar, Inc., 2012 WL 1080306 (S.D.N.Y. Mar. 30, 2012) ............................................................ 4, 5


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- iv - Case No. 3:14-cv-02129-MMA-AGS


Lloyd v. CVB Fin. Corp., 811 F.3d 1200 (9th Cir. 2016) ........................................................................................ 3

Mauss v. NuVasive, Inc., 2018 WL 656036 (S.D. Cal. Feb. 1, 2018) ..................................................................... 5

Maxtech Consumer Prods., Ltd. v. Robert Bosch Tool Corp., 255 F. Supp. 3d 833 (N.D. Ill. 2017) ............................................................................ 12

Mineworkers’ Pension Scheme v. First Solar Inc., 881 F.3d 750 (9th Cir. 2018) .......................................................................................... 2

Nathanson v. Polycom, Inc., 87 F. Supp. 3d 966 (N.D. Cal. 2015) .............................................................................. 5

Nguyen v. Radient Pharms. Corp., 946 F. Supp. 2d 1025 (C.D. Cal 2013) ........................................................................... 4

No. 84 Employer-Teamster Joint Council Pension Trust Fund v. Am. West Holding Corp., 320 F.3d 920 (9th Cir. 2003) ............................................................... 11

Nuveen Mun. High Income Opportunity Fund v. City of Alameda, 730 F.3d 1111 (9th Cir. 2013) ........................................................................................ 7

Park v. GoPro, Inc., 2019 WL 1231175 (N.D. Cal. Mar. 15, 2019) ............................................................... 9

Pompano Beach Police & Firefighters’ Ret. Sys. v. Las Vegas Sands Corp., 732 F. App’x 543 (9th Cir. 2018) ......................................................................... 2, 4, 12

Provenz v. Miller, 102 F.3d 1478 (9th Cir. 1996) ........................................................................................ 4

Rok v. Identiv, Inc., 2017 WL 35496 (N.D. Cal. Jan. 4, 2017) ................................................................... 3, 6

Rok v. Identiv, Inc., 2018 WL 807147 (Feb. 9, 2018) .................................................................................... 3

S.E.C. v. Fuhlendorf, 2011 WL 999221 (W.D. Wash. Mar. 17, 2011) ........................................................... 13

S.E.C. v. Reyes, 491 F. Supp. 2d 906 (N.D. Cal. 2011) .......................................................................... 15

S.E.C. v. Yuen, 2006 WL 1390828 (C.D. Cal. Mar. 16, 2006) .............................................................. 15

Serrano v. Garcia, 2006 WL 8449576 (S.D. Cal. Aug. 14, 2006) ................................................................ 2


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- v - Case No. 3:14-cv-02129-MMA-AGS


Silverman v. Motorola, Inc., 798 F. Supp. 2d 954 (N.D. Ill. 2011) .......................................................................... 4, 7

Smilovits v. First Solar Inc., 119 F. Supp. 3d 978 (D. Az. 2015) ................................................................................. 3

U.S. v. Hatfield, 795 F. Supp. 2d 219 (E.D.N.Y. 2011) ............................................................................ 8


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- iii - Case No. 3:14-cv-02129-MMA-AGS


GLOSSARY OF DEFINED TERMS

The following terms are used in this memorandum:

2H13: SeaWorld’s Second Fiscal Half of 2013, ended December 31, 2013.

1H14: SeaWorld’s First Fiscal Half of 2014, ended June 30, 2014.

3Q13: SeaWorld’s Third Fiscal Quarter of 2013, ended September 30, 2013.

4Q13: SeaWorld’s Fourth Fiscal Quarter of 2013, ended December 31, 2013.

1Q14: SeaWorld’s First Fiscal Quarter of 2014, ended March 31, 2014.

2Q14: SeaWorld’s Second Fiscal Quarter of 2014, ended June 30, 2014.

Blackstone: The Blackstone Group L.P.

Class Period: August 29, 2013 through August 12, 2014, inclusive.

Coffman Br.: Memorandum of Points and Authorities in support of Defendants’ Motion to Exclude the Testimony of Chad Coffman, filed April 15, 2019.

Coffman Rep.: Reply Brief in Further Support of Defendants’ Motion to Exclude the Testimony of Chad Coffman, filed June 14, 2019.

Coffman Tr.: Transcript of the March 26, 2019 Deposition of Chad Coffman, attached as Ex. 1 to the Youngwood Reply Declaration.

Company: SeaWorld.

Defendants: SeaWorld, James Atchison, James M. Heaney, Marc Swanson, and Blackstone.

DB: Memorandum of Points and Authorities in Support of Defendants’ Motion for Summary Judgment, filed April 15, 2019 (“Defendants’ Brief”).

DEO: Defendants’ Evidentiary Objections, filed concurrently herewith.

DER: Defendants’ Response to Plaintiffs’ Evidentiary Objections, filed concurrently herewith.

DOJ: United States Department of Justice.


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- iv - Case No. 3:14-cv-02129-MMA-AGS


Feinstein Tr.: Transcript of the March 15, 2019 Deposition of Steven P. Feinstein, attached as Ex. 2 to the Youngwood Reply Declaration.

Gibson Tr.: Transcript of the March 30, 2019 Deposition of Dr. James Gibson, attached as Ex. 3 to the Youngwood Reply Declaration.

Individual Defendants:

James Atchison, James M. Heaney, and Marc Swanson.

PB:

Plaintiffs’ Memorandum of Points and Authorities In Opposition to Defendants’ Motion for Summary Judgment, filed May 24, 2019 (“Plaintiffs’ Brief”).

PX: Exhibits attached to Declaration of Cody L. Hill in Support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment, filed May 24, 2019 (“Plaintiffs’ Exhibits”).

RF: Reply in Further Support of Defendants’ Statement of Undisputed Material Facts and Response to Plaintiffs’ Statement of Additional Material Facts, filed concurrently herewith (“Reply to Facts”). The Reply to Facts reproduces (i) Defendants’ Undisputed Facts, (ii) Plaintiffs’ Response and Additional Statement and (iii) Defendants’ Response to Plaintiffs’ Statements.

SAC: The Second Amended Consolidated Class Action Complaint filed May 31, 2016 (Dkt. No. 123).

SeaWorld: SeaWorld Entertainment, Inc.

Swanson Ex.: Exhibits to the Declaration of Marc G. Swanson in Support of Defendants’ Motion for Summary Judgment, filed April 15, 2019.

SWO: SeaWorld Orlando

Youngwood Reply Declaration:

The Reply Declaration of Jonathan K. Youngwood in Further Support of Defendants’ Motion for Summary Judgment, filed concurrently herewith.

All emphases in quotations are added and internal quotation marks, citations, and brackets are omitted unless otherwise specified.


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- 1- Case No. 3:14-cv-02129-MMA-AGS


PRELIMINARY STATEMENT

Plaintiffs fail to raise any legal or factual issue that would prevent the Court from

granting summary judgment on each of their claims and with respect to each statement.

First, for Plaintiffs to establish loss causation, they must demonstrate that a

“corrective disclosure” revealed new facts that “trace back” to the alleged misstatements.

The alleged corrective disclosure in this case, however, revealed no news about prior

quarters, much less information that “corrected” any alleged misstatements. Rather than

explain how this disclosure nonetheless “traced back” to earlier statements, Plaintiffs

disregard recent Ninth Circuit precedent and rely on immaterial evidence. Importantly,

Plaintiffs effectively concede that the 2Q14 disclosure released no news whatsoever

about 2013, so claims regarding 2013 must be dismissed even under Plaintiffs’ view of

the facts and the law. Notwithstanding their arguments, the same is true for statements

related to the first quarter of 2014. Even if Plaintiffs could identify a corrective

disclosure, their expert improperly used nonpublic information—in contravention of

precedent and his own economic theory—when valuing the impact of confounding news

at the end of the Class Period. Plaintiffs do not meet their burden on loss causation.

Second, Plaintiffs do not dispute that summary judgment is warranted if their

“constant dollar” damages model—which values the impact of the alleged fraud on

SeaWorld stock at the same dollar value on every day in the Class Period—is excluded.

Nor do they dispute that the model did not account for a number of key factors relevant to

value, including Blackfish’s fluctuating publicity and the Company’s economic

performance. Plaintiffs assert that a constant dollar model is “standard” and therefore

must be accepted. But the fact that it may have been accepted under different

circumstances does not make it fit the facts of this case.

Third, Plaintiffs fail to demonstrate the existence of disputed material facts as to

each of the elements of materiality, falsity, and scienter with respect to any of the

challenged statements. Plaintiffs do not dispute SeaWorld’s reported attendance figures

and earnings metrics for the Class Period, including that SeaWorld’s attendance trends


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improved in late 2013 as awareness of Blackfish increased, and that SeaWorld met its

earnings targets for those quarters and that fiscal year. Plaintiffs have no evidence

quantifying any “Blackfish impact” on attendance, or demonstrating that any such

purported impact was material. Other issues, such as band cancellations, were publicly

known, immaterial (financially and otherwise), or both. At bottom, Plaintiffs’ claims

regarding both the alleged missrepresentations and omissions hinge on their theory that,

hypothetically and in hindsight, SeaWorld should have and could have done a better job

in conducting research and analyzing attendance trends. But even assuming that

Plaintiffs are correct, such a claim would sound in negligence, not securities fraud.

Plaintiffs cannot withstand summary judgment by seeking to credit their own misleading

narrative. “The Court does not give credence to empty rhetoric,” and “need not draw

unreasonable inferences or accept conclusory allegations.” Serrano v. Garcia, 2006 WL

8449576, at *2 (S.D. Cal. Aug. 14, 2006), aff’d, 301 F. Appx. 712 (9th Cir. 2008).

ARGUMENT

I. PLAINTIFFS CANNOT DEMONSTRATE LOSS CAUSATION

A. Disclosures Must “Trace Back” To The Alleged Misstatements

Mineworkers’ Pension Scheme v. First Solar Inc. held that plaintiffs must show a

“causal connection between the fraud and the loss by tracing the loss back to the very

facts about which the defendant lied.” 881 F.3d 750, 753 (9th Cir. 2018). Thus, First

Solar reaffirmed that while the specifically fraudulent character of a past statement need

not necessarily be revealed in all cases, loss causation at a minimum requires disclosures

of “truth” tracing back to the alleged misstatement. DB 17-18. Since First Solar, both

the Ninth Circuit and district courts have disposed of securities claims on this basis. See

Pompano Beach Police & Firefighters’ Ret. Sys. v. Las Vegas Sands Corp., 732 F. App’x

543, 546 (9th Cir. 2018) (no loss causation where alleged corrective disclosures focused

on the current credit market climate, “not on [defendant’s] previous statement”); see

also In re BofI Holding, Inc. Sec. Litig., 302 F. Supp. 3d 1128, 1135 (S.D. Cal. 2018);

Rok v. Identiv, Inc., 2017 WL 35496, at *17, *20 (N.D. Cal. Jan. 4, 2017), adhered to by


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2018 WL 807147, at *8 (Feb. 9, 2018) (“[the court’s] analysis . . . is unchanged by [First

Solar]”), aff’d sub nom. Cunningham v. Identiv, Inc., 716 F. App’x 663 (9th Cir. 2018).1

Plaintiffs nonetheless argue that Ninth Circuit law post-First Solar does not require

revelation of truth “tracing back” to the misstatements because, according to Plaintiffs,

the alleged corrective disclosures in First Solar included “earnings releases lowering

guidance” that “did not mention the product problems.” PB 30. This is not correct: every

allegedly corrective earnings release in First Solar referenced remediation of problems

that occurred at the same time as the challenged statements. See Smilovits v. First Solar

Inc., 119 F. Supp. 3d 978, 996 (D. Az. 2015) (holding, for example, that a May 2011

release “announced additional expenses of $4.5 million for the LPM defect”).2 Plaintiffs

also argue that “to require defendants to concede that previous statements were false

would be to require an admission of fraud.” PB 29. This conflates revelation of “fraud”

(i.e., that an issuer misled investors) with the undisputed requirement that a corrective

disclosure reveal the “truth” (i.e., new facts correcting the misstatements). See Lloyd v.

CVB Fin. Corp., 811 F.3d 1200, 1209 (9th Cir. 2016) (pleading loss causation involves

“allegations that the defendant revealed the truth through ‘corrective disclosures’”).

Plaintiffs’ authorities (PB 28-29) are inapposite. City of Miami Gen. Emps.’ &

Sanitation Emps.’ Ret. Tr. v. RH, Inc., 302 F. Supp. 3d 1028, 1046 (N.D. Cal. 2018) did

not cite First Solar, and quoted a D.C. Circuit standard that only applies on the pleadings,

not at summary judgment. In re Harman Int’l Indus., Inc. Sec. Litig., 791 F.3d 90, 110

(D.C. Cir. 2015). In addition, it found loss causation only because, unlike here, the

1 Plaintiffs attempt to distinguish Pompano Beach on the basis “that the relevant truth had already been disclosed.” PB 31 & n.36. However, the district court’s recognition that some information had been publicized before the alleged corrective disclosures was, at most, an alternative basis for dismissing the claims. Fosbre v. Las Vegas Sands Corp., 2017 WL 55878, at *14, *18 (D. Nev. Jan. 3, 2017). The Ninth Circuit affirmed based on the language of the alleged corrective disclosures alone. 732 F. App’x at 546-47. 2 While one partial corrective disclosure (a guidance reduction in December 2011) did not reference product defects, that disclosure was not evaluated in a bubble: the subsequent 4Q2011 earnings release addressed the 2011 guidance and revealed new 4Q2011 “costs related to the manufacturing excursion that occurred between June 2008 and June 2009.” Id. at 998. Plaintiffs’ citations to a First Solar appellate brief (PB 29-31 & n.35; PX 577) are irrelevant; nothing can be inferred from the court’s silence on the cited arguments.


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alleged disclosures were tied to the time periods in which the alleged misstatements were

made. City of Miami, 302 F. Supp. 3d at 1046. Nguyen v. Radient Pharms. Corp. held

that plaintiffs must “show[] a corrective disclosure revealed a false statement,” and

involved a disclosure that specifically discussed the alleged misstatement. 946 F. Supp.

2d 1025, 1040–41 (C.D. Cal 2013). And Abu Dhabi Commercial Bank v. Morgan

Stanley & Co. Inc. involved notes that “do not trade in an efficient market,” so corrective

disclosure was not addressed. 888 F. Supp. 2d 431, 473 (S.D.N.Y. 2012).

Plaintiffs also propose that Defendants must affirmatively prove that other factors

caused the loss to prevail on summary judgment, even if Plaintiffs cannot present any

admissible evidence. PB 26-27. This is not the law in a Rule 10b-5 case. See, e.g.,

Pompano Beach, 732 F. App’x at 546 (granting summary judgment solely because

language of disclosures did not relate back to alleged fraud).3 In any event, Defendants

demonstrated that market losses on August 13, 2014 resulted from reaction to negative

earnings and guidance concerning 2Q14 and the rest of the year. See DB § I.A.

B. Plaintiffs Fail To “Trace Back” The Alleged Corrective Disclosure

The only new “facts” revealed in the relevant portion of the August 13, 2014

disclosure concern 2Q14 and earnings guidance moving forward. DB 8-19. Just as courts

have held that “revisions to financial statements in one quarter do not alone demonstrate

fraud or falsity of statements in other periods,” Janbay v. Canadian Solar, Inc., 2012 WL

1080306, at *9 (S.D.N.Y. Mar. 30, 2012), disclosure of issues affecting attendance in one

quarter does not demonstrate that the issue affected prior quarters. Plaintiffs fail to cite a

case that advanced past summary judgment based on a similar “corrective disclosure”

lacking any temporal connection to the alleged misstatements.4 In Pompano Beach,

3 Provenz v. Miller, 102 F.3d 1478, 1492 (9th Cir. 1996) (PB 26) referred to defendants’ “heavy” burden, but relied on the standard overturned in Dura Pharm., Inc. v. Broudo, 544 U.S. 336 (2005). By contrast, In re Novatel Wireless Sec. Litig. (PB 25-26) analyzed “Plaintiffs’ evidence.” 830 F. Supp. 2d 996, 1019-20 (S.D. Cal. 2011). Silverman v. Motorola, Inc. (PB 26) applied a rule rejected by “a number of courts outside of the Seventh Circuit” and still required plaintiffs to “reveal[] sufficient evidence . . . to create a genuine dispute as to loss causation.” 798 F. Supp. 2d 954, 978-79 (N.D. Ill. 2011). 4 Mauss v. NuVasive, Inc. (PB 29) involved statements concerning regulatory compliance,


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summary judgment was proper “because the corrective disclosures . . . focused on the

current credit market climate, not on [defendants’] previous statement”—even though the

disclosures “provide[d] some evidence that the financing options may not have been as

‘ample’ as [the defendant] ha[d] made it seem.” 732 F. App’x at 546. This case similarly

concerns a disclosure that is not “corrective” because it concerns a time period postdating

the alleged misstatements (2Q14), regardless of whether it relates to the same topic.

As an initial matter, a plain reading of the disclosure easily shows that it pertains

only to 2Q14—among other things it is found under the bolded heading, “Second Quarter

2014 Results.” See Coffman Rep. 2, 4. Even Plaintiffs and their expert concede that the

disclosure can, at most, be construed as revealing new information about the first half of

2014. See Coffman Tr. 121:15-23 (“the new information” was “a description of the

attendance over the first half and what factors were affecting that”); PB 33 (the disclosure

“discussed not just 2Q14, but also poor results for 1H14”); DB 23. Thus, even accepting

Plaintiffs’ arguments, they fail to show loss causation as to any statements related to

2013. See Bonanno v. Cellular Biomed. Grp., 2016 WL 2937483, at *5 (N.D. Cal. May

20, 2016) (“New information is critical to demonstrating loss causation”).

Plaintiffs also cite two sets of publications as evidence of loss causation. The first

consists of six pieces (none relied on by Plaintiffs’ experts) that are cited for the

irrelevant proposition that certain outlets “treated the Blackfish disclosure as headline

news.” PB 28. The second consists of six other pieces that Plaintiffs contend are

evidence that the market understood the disclosure as corrective. PB 32-33. The two

relied on by Mr. Coffman actually support Defendants. See DB 20. The remaining four

(Cinamablend.com, Adweek, Entertainment Weekly, and The Los Angeles Times) are not

cited by Mr. Coffman as evidence of market reaction (see DEO 4); are not from investor-

and the corrective disclosures included the announcement of a DOJ settlement. 2018 WL 656036, at *3 (S.D. Cal. Feb. 1, 2018). Nathanson v. Polycom, Inc. (PB 29) found a disclosure corrective when it “referenced [the] previously reported financial statements” that were alleged to be misleading. 87 F. Supp. 3d 966, 983 (N.D. Cal. 2015). In re WaMu MBS Sec. Litig. (PB 34) rejected a negative causation defense to Section 11 claims, and involved news reports in 2008 regarding alleged loan underwriting problems in 2006 and 2007. 2012 WL 2995046 at *12-13 (W.D. Wash. July 23, 2012).


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oriented publications; and do nothing more than report that SeaWorld had never before

identified a material impact from Blackfish.5 These sources do not to raise a genuine

factual dispute as to loss causation. See, e.g., Identiv, 2017 WL 35496, at *17 (post from

investor website Seeking Alpha did not bolster loss causation allegations where it largely

restated the company’s filing); In re Oracle Corp. Sec. Litig., 627 F.3d 376, 393–94 (9th

Cir. 2010) (concluding that analyst reports did not preclude summary judgment where

lack of corrective disclosure was otherwise evident).

Lastly, Plaintiffs claim they survive summary judgment because Mr. Coffman

conducted an event study. PB 27. But an event study merely establishes that there was

an abnormal stock drop on the relevant date; it is necessary, but hardly sufficient, to meet

Plaintiffs’ loss causation burden. See In re DVI, Inc. Sec. Litig., 2010 WL 3522090, at

*14 (E.D. Pa. Sept. 3, 2010) (excluding Mr. Coffman’s opinion regarding disclosures that

were found not to be corrective, notwithstanding proper event study).6

C. Plaintiffs’ Expert Fails To Disaggregate Confounding Factors

Plaintiffs also fail to meet their burden to present admissible evidence of loss

causation that disaggregates confounding factors. Mr. Coffman’s attempt to do so

improperly relies on non-public sources and is methodologically unsound and arbitrary.

DB § I.B.2; Coffman Br. § II.7 In a footnote, Plaintiffs assert without explanation that

reliance on non-public documents is proper because courts have referenced such

documents in passing in a handful of cases. See PB 36 n.42; Coffman Rep. 6. But Ninth

Circuit precedent is clear, as is common sense, that an internal document “is not evidence

5 For example, Cinemablend just references New York Magazine’s blog and implies that SeaWorld could not deny impacts “[n]ow that attendance is starting to shrink.” Entertainment Weekly stated that SeaWorld disclosed an impact “now, as the company failed to hit an expected revenue mark in its second quarter.” And the LA Times led its story discussing “lower than expected earnings for the second quarter.” RF 1106; 1118; 1097. The string cites to sources without analysis are inappropriate. DEO 2; infra n. 19. 6 Defendants also “ha[ve] absolutely no obligation to conduct their own event study.” Cunha v. Hansen Nat. Corp., 2013 WL 12124073, at *7 (C.D. Cal. June 20, 2013). 7 Plaintiffs again raise Mr. Coffman’s “event study regression” in response. PB 34-35. But as Mr. Coffman testified, that is irrelevant here. Coffman Tr. 104:13-20 (“[T]he event study methodology . . . does not tell you how to disaggregate the firm specific information.”); see also Feinstein Tr. 132:11-133:9 (same).


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of what the market learned of and reacted to” on the corrective disclosure date. In re

Oracle, 627 F.3d at 393-94. Use of non-public documents also conflicts with Mr.

Coffman’s testimony that only public information is reflected in a stock price. DB 23.

Plaintiffs claim that critiques of Mr. Coffman’s methodology must go to a jury. PB

27-29. Mr. Coffman’s disaggregation analysis, however, lacks any reliable methodology

and instead relies on arbitrary and results-oriented assumptions regarding attendance. See

Coffman Br. 15-19. Plaintiffs’ resulting failure to present admissible evidence of “the

tangle of factors” affecting stock price mandates summary judgment. Nuveen Mun. High

Income Opportunity Fund v. City of Alameda, 730 F.3d 1111,1123 (9th Cir. 2013).8

II. PLAINTIFFS HAVE NO ADMISSIBLE EVIDENCE OF DAMAGES

Plaintiffs do not dispute that if Mr. Coffman’s constant dollar inflation damages

model is excluded under Daubert then the case must be dismissed. DB 23-25. Without

it, Plaintiffs have no evidence of damages.

Plaintiffs’ only response is that a constant dollar methodology is “standard” and

therefore appropriate. PB 37. But the fact that a constant dollar methodology may

sometimes be appropriate does not mean it is appropriate here. Plaintiffs identify no

instances of constant dollar inflation being applied to claims concerning an alleged fraud

that had a variable impact over time. See, e.g., U.S. v. Hatfield, 795 F. Supp. 2d 219,

232-33 (E.D.N.Y. 2011) (“[T]he constant dollar method can[not] remotely approximate

the fraud’s value” because “in this kind of fraud, the passage of time changed the value of

the information misrepresented.”). Here, the method fails to satisfy Daubert’s “fit”

requirement because (i) Plaintiffs specifically allege that the impact of Blackfish

increased over the Class Period (e.g., SAC ¶ 131); (ii) the evidence shows that awareness

8 Plaintiffs’ authorities (PB 34-36, 39) are distinguishable. In Hsingching Hsu v. Puma Biotechnology, Inc., there was no other confounding news; Mr. Coffman has conceded disaggregation is necessary. 2018 WL 4945703, at *10 (C.D. Cal. Oct. 5, 2018). In re Celestica Inc. Sec. Litig. concerned a “competing expert opinion.” 2014 WL 4160216, at *13 (S.D.N.Y. Aug. 20, 2014). Silverman did not involve a Daubert challenge. 798 F. Supp. 2d at 984. Neither Glickenhaus & Co. v. Household Int’l, Inc., 787 F.3d 408 (7th Cir. 2015) nor Novatel, 2013 WL 12144150, focused on disaggregation. In re Xerox Corp. Sec. Litig., 746 F. Supp. 2d 402, 413 (D. Conn. 2010), addressed an “‘earnings surprise’ model which is an approach that is recognized in the [economic] literature.”


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of Blackfish varied significantly at different times, including in response to unanticipated

events such as the introduction of the Bloom Bill (DB 20); and (iii) SeaWorld’s

attendance and financial performance varied across the Class Period. Coffman Br. 21.

Plaintiffs also offer nothing to counter the basic point that investors would have reacted

differently to disclosures regarding Blackfish made in the context of SeaWorld’s record

4Q13 performance, rather than the significant declines reported in 2Q14.9 Id.

III. NO GENUINE FACTUAL DISPUTES EXIST AS TO WHETHER ANY CHALLENGED STATEMENT WAS BOTH MATERIALLY FALSE AND MADE WITH SCIENTER

Defendants’ Opening Brief demonstrated that there was no evidence that the

Individual Defendants, or through them, the Company, made materially false statements

or acted with scienter. See DB § III.A. Instead, the evidence shows that the Company

endeavored to analyze attendance trends and engaged in a thorough Disclosure

Committee process. It also shows that the Individual Defendants made no attempts to

influence or manipulate these procedures, and lacked a motive to deceive investors. Id.

In addition, the evidence shows that SeaWorld performed well during 2H13 and into

early 2014, and that the band cancellations and other public relations issues SeaWorld

dealt with during this time period were neither hidden from investors nor material.

Plaintiffs’ attempts to show disputed facts as to the challenged statements fail.

A. Plaintiffs’ Theories Of Scienter Fail On The Law And The Facts

First, Plaintiffs claim that the challenged statements “purported to rely on ‘data’

[Defendants] knew did not exist” because “SeaWorld refused to directly test whether

Blackfish was affecting its business and admittedly lacked analytics to determine why

attendance was falling.” PB 22. Plaintiffs rely on equivocal responses to argumentative

deposition questioning about

9 Plaintiffs claim disclosure of Blackfish impact would have “severe consequences” but rely on an email stating that it could be a “fundamental issue . . . if it starts to impact results.” PB 38-39. Mr. Coffman did not consider SeaWorld’s results. DB 24. And Mr. Coffman’s speculation that “investors may have reacted with even greater concern” at an earlier time period (PB 39 n.47) has no basis. See Coffman Br. 23-24.


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Plaintiffs also rely on Dr. Gibson to support the

claim that

Plaintiffs’ theory that scienter can be proven through speculation that additional

analytics might have generated data inconsistent with the challenged statements is

“without legal authority.” In re Merck & Co., Inc. Sec., Deriv. & ERISA Litig., 2015 WL

2250472, at *13 (D.N.J. May 13, 2015) (rejecting argument that “a jury could infer

scienter from evidence of allegedly insufficient research and investigation”). The cases

Plaintiffs cite only serve to confirm this point, and, in any event, Plaintiffs do nothing to

show that these purported deficiencies could constitute evidence of scienter, rather than

(at most) negligence.10 See, e.g., Park v. GoPro, Inc., 2019 WL 1231175, at *22 (N.D.

Cal. Mar. 15, 2019) (“[E]ven if it would be absurd to assume that Defendants . . . did not

know that their sales analysis was crude and simplistic,” this “fails to establish ‘deliberate

recklessness.’”); In re Worlds of Wonder Sec. Litig., 35 F.3d 1407, 1426–27 (9th Cir.

1994) (expert’s conclusion that accountant’s failure was “so obvious . . . that [accounting

firm] must have been aware of it” was not evidence of scienter).

11

10 See Hsingching, 2018 WL 4945703, at *8 (defendant “knew the information he was conveying wasn’t consistent with the . . . data” where contrary data actually existed and contradicted his statements); Howard v. Everex Systems, Inc., 228 F.3d 1057, 1064 (9th Cir. 2000) (defendant who “signed the financial statements in the face of potentially alarming information concerning [the company’s] financial condition” could have obtained confirmatory factual information but did not); Gebhart v. S.E.C., 595 F.3d 1034, 1044 (9th Cir. 2010) (brokers acted recklessly in representing that fraudulent notes were sound, conservative investments based on unconfirmed statements by third party). 11 Plaintiffs assert in a footnote that In re REMEC Inc. Sec. Litig., 702 F. Supp. 2d 1202, 1238 (S.D. Cal. 2010), is inapposite because “there is no evidence Defendants relied on SeaWorld’s goodwill analyses . . . nor acted in ‘good faith.’” PB 23 n.26. Defendants, however, cited REMEC for the broader principle that corporate officers are entitled to rely


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Second, Plaintiffs claim

Plaintiffs’ contrary inferences are unreasonable.

Third, Plaintiffs cursorily argue that motive exists because Mr. Atchison

By contrast, in No. 84

Employer-Teamster Joint Council Pension Trust Fund v. Am. West Holding Corp., cited

by Plaintiffs, executives were motivated by “eligibility for stock options and executive

bonuses.” 320 F.3d 920, 944 (9th Cir. 2003). No similar evidence exists here.12

B. Plaintiffs’ Claims Fail As To Each Of The Challenged Statements

1. August 2013 Statements. As to whether Blackfish had impacted attendance as

of August 2013, Plaintiffs rely on a handful of inapposite documents:

Plaintiffs assert that “[a] consultant SeaWorld hired determined that by August 19, 2013, the film was hurting attendance levels at SeaWorld Parks by over 5%.”

on business processes, and, Plaintiffs’ conclusory denial notwithstanding, there is, as in REMEC, no evidence that SeaWorld’s officers “provided, let alone manipulated the data that was input into” SeaWorld’s attendance analyses or its broader disclosure process. See 702 F. Supp. 2d at 1242 (relying on declarations from corporate officers on scienter). 12

PB 24 n.28. But mere “motivat[ion] to maintain . . . stock price,” including while “[the company] had . . . a secondary offering” does not show scienter. Bao v. SolarCity Corp., 2015 WL 1906105, at *4 (N.D. Cal. Apr. 27, 2015).


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RRF835. This document was created in July 2014 by a third party media buy company. See PB 7. It applies an unspecified methodology that SeaWorld never endorsed and is inadmissible. See DEO 5.

Plaintiffs cite a lengthy document of unknown origin sent in an email by a SWO employee, Keith Swider, to other SWO employees in early 2014 that in a single line, without explanation, identified “Blackfish Documentary” one of the “key attendance drivers” for that park in 2013,

RF412; PX137. Mr. Swider was not deposed; nothing connects this document to August 2013, much less to a material Company-wide impact at that time.

None of these documents creates any disputed issues of fact regarding a material

attendance impact as of August 2013, and documents from 2014 are not evidence of

scienter as to statements from 2013 that preceded their creation.

Lacking evidence, Plaintiffs argue that Mr. Jacobs’ conclusory testimony carries

their burden, but ignore that Mr. Jacobs testified he believed his statements were

inaccurate to the extent they were too “unequivocal”—he “can’t conceive that . . . there

wasn’t at least one person out there who changed their mind about visiting SeaWorld

because of Blackfish.” DB 34; RF ¶ 112.13 In other words, Mr. Jacobs admitted that at

most his statement was inaccurate in a speculative and nonmaterial manner. And, as

Defendants demonstrated, Mr. Jacobs disclaimed the existence of a material Blackfish

impact on attendance both as of mid-August 2013 and as of December 2013. DB 34; RF

¶¶ 113-14. Plaintiffs present no contrary evidence, and Mr. Jacobs’ testimony must be

read “sensibly and in context” at summary judgment. Maxtech Consumer Prods., Ltd. v.

Robert Bosch Tool Corp., 255 F. Supp. 3d 833, 840 (N.D. Ill. 2017).

2. November and December 2013 Statements. Mr. Atchison stated he was

unaware of “any notable impact” and could not “connect anything really” from Blackfish

13 Plaintiffs also claim that Mr. Jacobs was “instructed” to make these statements by Mr. Atchison. PB 6, 24. But Mr. Jacobs testified only that he was instructed “to answer the question,” not to use the specific “unequivocal” phrasing he later found inaccurate. See RF 327. In fact, he testified that Mr. Atchison requested that he state Blackfish “has had no notable impact on our business,” a statement Mr. Jacobs believed accurate. Id.


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to SeaWorld’s business, and the Company disclosed that attendance was impacted by

weather and pricing strategies. PB 13-14. At the relevant time—3Q13 and 4Q13—(i)

attendance trends improved, even though public awareness of Blackfish increased; (ii)

SeaWorld-branded parks outperformed the Busch Gardens parks; and (iii) SeaWorld met

its earnings guidance. See DB 36.

Moreover, the securities laws “do not obligate companies to

disclose their internal forecasts.” In re N. Telecom Ltd. Sec. Litig., 116 F. Supp. 2d 446,

458 (S.D.N.Y. 2000); see also Las Vegas Sands, 2017 WL 55878, at *4, *8 (failure to

meet “an internal timeline” and “an internal . . . budget” did not make statements that

plans were in “progress” and being “steadily execute[d]” false). Evidence of missed

internal budget projections thus fails to create a factual dispute as to material falsity, nor

does it constitute a “contrary fact” known to Defendants for purposes of scienter.16

Plaintiffs do not actually

dispute the reported attendance figures or trends, but nonetheless suggest that the

14 The Company opened a park called Aquatica San Diego in 2013. See RF 64. While Plaintiffs claim this “boosted” attendance (PB 13),

Plaintiffs do not factually dispute that the attendance trends and results set forth above hold true regardless of whether this park is included. See RF 65-71. 15 Plaintiffs quote a July 26, 2013 email stating that SeaWorld had “budgeted for a year with much higher attendance.” PB 5; RF911. The email says nothing about Blackfish and instead expresses concern about “overreaching and problems in pricing packaging.” PX427.

16 By contrast, in the cases Plaintiffs cite involving knowledge of “contrary facts” (PB 21), specific evidence directly contradicted the statements at issue. See In re Immune Response Sec. Litig., 375 F. Supp. 2d 983, 1022 (S.D. Cal. 2005) (specific evidence of knowledge of drug’s ineffectiveness contradicted statements); S.E.C. v. Fuhlendorf, 2011 WL 999221, at *6-7 (W.D. Wash. Mar. 17, 2011) (defendant “knew that the transactions . . . were subject to contingencies”); In re Homestore.com, Inc. Sec. Litig., 347 F. Supp. 2d 769, 787 (C.D. Cal. 2004) (defendant knew of fraud, “actively worked on consummating the deal and then participated in trying to cover [it] up”); Hsingching, 2018 WL 4945703, at *8 (statements that results would be “in line with the ranges observed in past studies” were “directly inconsistent with the data” defendant had received).


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existence of discounts shows that the Company was in trouble. “Offering incentives to

meet sales or earnings goals is a common practice.” In re Bristol-Myers Squibb Sec.

Litig., 312 F. Supp. 2d 549, 566 (S.D.N.Y. 2004); see also In re ICN Pharms., Inc. Sec.

Litig., 299 F. Supp. 2d 1055, 1061 (C.D. Cal. 2004) (issuer’s “business decision to offer

discounts to reach its sales targets” is not actionable).

Plaintiffs’ empty rhetoric about these discounts cannot

get them past summary judgment. See, e.g., Cal. Parents for Equalization of Educ.

Materials v. Torlakson, 370 F. Supp. 3d 1057, 1069 (N.D. Cal. 2019) (granting summary

judgment because “even considering the evidence in the light most favorable to Plaintiffs,

many of the interpretations urged by Plaintiffs are either inaccurate or incomplete.”).17

Lastly, Plaintiffs attempt to rely on Mr. Jacobs’ testimony that “in [his] estimation”

Mr. Atchison’s statements were incorrect because there were impacts on cost, staff

resources, reputation, and “very likely” attendance. PB 14; RF352. But Mr. Jacobs

disclaimed the existence of a material attendance impact, had no knowledge of the

Company’s attendance analyses, and was not involved in its disclosure processes. DB

34-35. And the fact that SeaWorld staff were spending time and resources responding to

Blackfish was both immaterial and publicly known; Mr. Atchison expressly disclosed

during the Class Period that SeaWorld “continue[s] to take proactive efforts around

communicating with our guests and business partners and others” regarding Blackfish.

RF 365. Like SeaWorld’s risk factors, which clearly addressed Blackfish (RF 19-22), this

open discussion of SeaWorld’s efforts to counter negative publicity from Blackfish

17 Plaintiffs claim Dr. Gibson opined that


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undercuts Plaintiffs’ theory that Defendants intentionally concealed the issue.

3. March and May 2014 Statements. Regarding the March 13, 2014 statements,

Plaintiffs again claim Mr. Jacobs testified that Mr. Atchison’s statements were untrue.

As before, Mr. Jacobs’ testimony was not based on any specific facts or data but on his

unfounded belief that any “unequivocal” denial of business impact “would be inaccurate,

whether it was in March of ’14 or at any point after Blackfish’s premiere.” RF329, 371.18

Mr. Atchison’s statements were not unequivocal; he spoke in terms of “noticeable

impact.” PB 15. Otherwise, the only contemporaneous internal discussions Plaintiffs

cite are (i) a response to a request from Mr. Atchison for an informal update, including

“the best and worst things we’re seeing,” which noted “Blackfish continues to impact

perception” (PX138),

Plaintiffs also attempt to create fact issues by citing documents

concerning band cancellations, corporate partnership issues, and impacts on promotional

events such as a “50th Anniversary Tour and Celebration.” PB 15-16; PB 8-10.19 It is

undisputed that the cancellations were known to the public (PB 14 n.10); negative

publicity is inherently public; and issues involving sponsors and promotions took place

over a long period of time. See, e.g., RF476

20

Plaintiffs fail to cite facts showing that any of the cited “impacts” were material to

18 Plaintiffs claim Mr. Atchison could not recall whether his statements were “completely true,” but what he could not recall was whether the referenced surveys specifically named SeaWorld, as opposed to marine mammal parks generally. See RF369. Inability to recall this detail years later at a deposition is not evidence of falsity. See DER 4-5.

19 Plaintiffs assert that their “Counterstatement contains evidence of a panoply of impacts from Blackfish” and cite “RF403-616”—i.e., 214 paragraphs. The Court should disregard this and similar bulk citations and only consider evidence actually addressed in Plaintiffs’ brief. See, e.g., Holmes v. Tenderloin Hous. Clinic, Inc., 772 F. Supp. 2d 1074, 1091 (N.D. Cal. 2011) (rejecting citation to declaration “at ¶¶ 30 through 91”); DEO 1-2. 20


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SeaWorld at any time on or before the March 13, 2014 statements. Instead, Plaintiffs cite

cases involving misstated financials to claim that “quantitatively small” misstatements

can be material if, for instance, they enable a company to reach earnings targets. PB 19.21

No such allegations or evidence exists here. Plaintiffs also claim that because Mr.

Coffman opines that Blackfish was a material topic, all issues concerning materiality

must be reserved for trial. PB 17-18. Yet Mr. Coffman reaches no such conclusion—

rather he “assume[s]” that “Defendants . . . were issuing false or misleading statements

and/or omitting material facts” regarding Blackfish impacts. PX58 ¶ 28. While he

asserts that a hypothetical attendance decline resulting from Blackfish—something

Plaintiffs have never attempted to quantify—would be seen as “structural” and thus of

greater significance (PX58 ¶ 45), he does not (i) identify a threshold at which attendance

declines would become material, (ii) discuss the materiality of other categories of

purported business impacts, such as cancelled or delayed corporate promotions, or (iii)

engage with any specific evidence. This does not create disputed facts as to materiality.

Finally, the May 2014 statements solely concerned 1Q14 attendance drivers. See

PB 16. While Plaintiffs cite a document indicating that negative publicity, weather, and

calendar issues had impacted performance “through 4/29” (PB 22), that is not evidence of

falsity or scienter as to statements concerning a quarter that ended in March.

IV. NO TRIABLE ISSUES EXIST ON THE REMAINING CLAIMS

Summary judgment must also be granted on Plaintiffs’ Section 20(a) claims for the

reasons set forth above and in Defendants’ Opening Brief. Plaintiffs have certainly not

established control as to Blackstone after December 2013, and do not dispute that claims

against each Individual Defendant must be dismissed as to statements others made.

CONCLUSION

The Court should grant summary judgment to Defendants on all claims.

21 See, e.g., S.E.C. v. Yuen, 2006 WL 1390828, at *37 (C.D. Cal. Mar. 16, 2006) (earnings misstatements “allowed the [defendant] to . . . meet financial targets”); S.E.C. v. Reyes, 491 F. Supp. 2d 906, 911 (N.D. Cal. 2011) (rejecting argument that options backdating was immaterial because options expenses were excluded from pro forma financials because backdating was improper and exclusion from pro formas was not conclusive).


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- 16- Case No. 3:14-cv-02129-MMA-AGS


Dated: June 14, 2019 SIMPSON THACHER & BARTLETT LLP

By: /s/ Chet A. Kronenberg

CHET A. KRONENBERG 1999 Avenue of the Stars, 29th Floor Los Angeles, CA 90067 Telephone: (310) 407-7500 Facsimile: (310) 407-7502 Email: [email protected]

Jonathan K. Youngwood (pro hac vice) Janet A. Gochman (pro hac vice) Isaac M. Rethy (pro hac vice) Dean McGee (pro hac vice) Meredith D. Karp (pro hac vice) SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, New York 10017 Telephone: (212) 455-2000 Facsimile: (212) 455-2502 Attorneys for Defendants SeaWorld Entertainment, Inc., James M. Heaney, Marc Swanson, and The Blackstone Group L.P. KATTEN MUCHIN ROSENMAN LLP By: /s/ Michael J. Diver Michael J. Diver (pro hac vice) Gil M. Soffer Michael J. Lohnes (pro hac vice) 525 W. Monroe Street Chicago, IL 60661-3693 Telephone: (312) 902-5200 Facsimile: (312) 902-1061 Richard H. Zelichov 2029 Century Park East, Suite 2600 Los Angeles, CA 90067-3012 Telephone: (310) 788-4400 Facsimile: (310) 712-8433 Attorneys for Defendant James Atchison


chet a. kronenberg (state bar no. 222335) simpson thacher ... · - iv - case no. 3:14-cv 02129 mma...

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