Bradley Cooper v. Thoratec Corp. ( 2017 )

FILED
NOT FOR PUBLICATION
OCT 04 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRADLEY COOPER; TODD LABAK, No. 15-17369
Individually and On Behalf of All
Others Similarly Situated, D.C. No. 4:14-cv-00360-CW
Plaintiffs-Appellants,
MEMORANDUM*
v.
THORATEC CORPORATION;
GERHARD F. BURBACH; TAYLOR
C. HARRIS; DAVID V. SMITH,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Argued and Submitted September 14, 2017
San Francisco, California
Before: KOZINSKI and FRIEDLAND, Circuit Judges, and ARTERTON,**
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Janet Bond Arterton, United States District Judge for
the District of Connecticut, sitting by designation.
page 2
“[A] statement is misleading if it would give a reasonable investor the
impression of a state of affairs that differs in a material way from the one that
actually exists.” In re Cutera Sec. Litig., 610 F.3d 1103, 1109 (9th Cir. 2010)
(citation and internal quotation marks omitted). During the class period, Thoratec
received data on HeartMate II thrombosis events that strongly suggested
thrombosis rates were significantly higher than initially advertised. The
company’s affirmative statements during the class period downplayed this
increase. Appellants have accordingly alleged, with sufficient specificity to
survive appellees’ motion to dismiss, that Thoratec’s statements were misleading.
REVERSED AND REMANDED.