Karri v. Oclaro Inc. ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SAISRAVAN BHARADWAJ KARRI, Case No. 18-cv-03435-JD 8 Plaintiff, ORDER RE MOTION TO DISMISS v. 9 Re: Dkt. No. 29 10 OCLARO, INC. et al., Defendants. 11 12 13 This is a securities class action against Oclaro, Inc. and its former directors and officers 14 arising out of Oclaro’s acquisition by Lumentum Holdings, Inc.1 Plaintiff SaiSravan Karri 15 brought suit on behalf of former public stockholders of Oclaro under Sections 14(a) and 20(a) of 16 the Securities Exchange Act of 1934, 15 U.S.C. §§ 78n(a), 78t(a), and Securities and Exchange 17 Commission Rule 14a-9, 17 C.F.R. § 240.14a-9. Dkt. No. 20 ¶¶ 1, 9. Karri alleges in an amended 18 complaint that Oclaro’s board of directors solicited approval for the transaction through a proxy 19 statement containing materially false or misleading statements regarding the transaction. See id. 20 ¶¶ 3-7. Defendants’ motion to dismiss, Dkt. No. 29, is granted and denied in part. 21 BACKGROUND 22 As alleged in the amended complaint, Oclaro was a leading provider of components used 23 in high-speed optical networks. Dkt. No. 20 (Amended Compl.) ¶ 28. Starting in 2016, Oclaro’s 24 strong performance consistently impressed financial analysts and commentators. Id. ¶¶ 30-58. On 25 November 1, 2017, Oclaro announced its quarterly financial results, which, while strong, showed 26 27 1 As a result of a merger with a wholly owned subsidiary of Lumentum, Oclaro no longer exists. 1 some weakness in its sales in China and produced a negative market reaction. Id. ¶ 61. 2 Lumentum first expressed interest in acquiring Oclaro a week later, and Oclaro and Lumentum 3 entered into a nondisclosure agreement in December 2017. Id. ¶¶ 63-64. 4 By mid-December 2017, financial analysts had expressed an optimistic assessment of 5 Oclaro’s prospects. Id. ¶ 65. In early February 2018, Oclaro’s CEO publicly touted Oclaro’s 6 strong financial performance, and discounted the impact of the disappointing aspects of the prior 7 quarter’s financial results. Id. ¶¶ 66-73. Specifically, Oclaro’s CEO stated that the company’s 8 guidance in February 2018 remained consistent with its guidance from three months earlier. Id. 9 ¶ 72. Around the same time, Oclaro’s management decided to revise downward its internal 10 financial projections for the second time in as many months, preparing what has been called the 11 “February Projections.” Id. Commentary in the financial community about Oclaro’s prospects 12 remained favorable. Id. ¶ 74. 13 On February 15, 2018, Lumentum submitted a non-binding written offer to acquire Oclaro 14 at $8.35 per share of Oclaro stock, consisting of $6.60 in cash and $1.75 in Lumentum stock. Id. 15 ¶ 75. According to the amended complaint, this represented a discount on both Oclaro’s target 16 price, id. ¶ 76, and on financial analysts’ recent price targets, id. ¶¶ 58, 65. On February 21, 2018, 17 the Oclaro board discussed Lumentum’s offer, and instructed Oclaro’s CEO to present a 18 counteroffer of $9.90 per Oclaro share. Id. ¶ 76. Financial commentary continued to state that 19 Oclaro’s stock was undervalued. Id. ¶ 78. 20 Oclaro’s management ultimately accepted an offer from Lumentum of $5.60 in cash and 21 0.636 shares of Lumentum stock for each share of Oclaro stock. Id. ¶ 77. Oclaro’s management 22 provided its financial advisor, Jefferies LLC, with the February Projections, which served as the 23 basis for Jefferies’ valuation analyses and fairness opinion evaluating the transaction. Id. Oclaro 24 did not provide these February Projections to Lumentum. Id. 25 On March 11, 2018, Oclaro and Lumentum executed a merger agreement, which they 26 announced the next day. Id. ¶¶ 80-81. After the merger agreement was signed, Oclaro continued 27 to perform well, and in May 2018, Oclaro’s CEO publicly stated that the previous quarter’s 1 consecutive quarter of double-digit operating income growth. Id. ¶ 82. 2 In June 2018, Oclaro’s board of directors solicited approval of Lumentum’s acquisition of 3 Oclaro through a proxy statement. Id. ¶ 83. The proxy included projections from December and 4 January, the February Projections, and Jefferies’ conclusion that the merger consideration offered 5 by Lumentum was fair, based on the valuation figures (specifically, implied equity reference 6 ranges) that Jefferies calculated from the February Projections prepared and provided by Oclaro’s 7 management. Id. ¶¶ 84, 89. The proxy highlighted Lumentum’s promising prospects as a reason 8 for approving the transaction, but omitted the forecasts that had been provided to Jefferies by 9 Lumentum. Id. ¶ 85. 10 The amended complaint alleges that members of Oclaro’s board signed off on a proxy 11 statement that contained false or misleading statements and omissions about Oclaro’s true value, 12 as reflected by Oclaro’s own price targets, id. ¶ 76, Oclaro’s CEO’s public statements on earnings 13 calls, id. ¶¶ 67-73, and financial analysts’ views of Oclaro’s worth, id. ¶¶ 65, 78. Specifically, the 14 amended complaint alleges that the proxy statement included these false or misleading statements: 15 (1) the January and February Projections themselves, (2) representations about the preparation of 16 the January and February Projections, and (3) valuation figures calculated from the February 17 Projections that were used to evaluate the fairness of Lumentum’s offered consideration. Id. ¶¶ 4, 18 84; see also Dkt. No. 33-1 at 2-3. The amended complaint also alleges that the failure to include 19 the forecasts provided to Jefferies by Lumentum was a materially misleading omission. Dkt. No. 20 20 ¶¶ 5, 85; see also Dkt. No. 33-1 at 3. 21 Defendants say that the challenged statements fall within the PSLRA’s safe harbor 22 provision, 15 U.S.C. § 78u-5(c), which applies to forward-looking statements that are 23 accompanied by meaningful cautionary language. Dkt. No. 29 at 9-13; Dkt. No. 35 at 3-8. 24 Defendants also contend that Karri has failed to show that challenged statements of opinion are 25 false. Dkt. No. 29 at 13-18; Dkt. No. 35 at 8-12. Finally, defendants argue that the amended 26 complaint fails to plead that the alleged omission of the Lumentum Forecasts rendered the proxy 27 statement misleading, or that such information was material. Dkt. No. 29 at 18-20; Dkt. No. 35 at 1 DISCUSSION 2 I. Legal Standards 3 Well-established standards govern this motion to dismiss. To comply with the pleading 4 requirements of Federal Rule of Civil Procedure 8(a)(2) and survive a Rule 12(b)(6) motion to 5 dismiss, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” 6 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility when the 7 pleaded factual content “allows the court to draw the reasonable inference that the defendant is 8 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 9 550 U.S. at 556). In evaluating a motion to dismiss, the Court assumes that the plaintiffs’ 10 allegations are true and draws all reasonable inferences in their favor. Usher v. City of Los 11 Angeles, 828 F.2d 556, 561 (9th Cir. 1987). But the Court need not “accept as true allegations that 12 are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead 13 Sciences Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks omitted) 14 (quoting Sprewell v. Golden State Warriors, 226 F.3d 979, 988 (9th Cir.), amended on other 15 grounds, 275 F.3d 1187 (9th Cir. 2001)). 16 Additional requirements apply because this is a securities action. The circumstances 17 constituting any alleged fraud must be stated with particularity under Federal Rule of Civil 18 Procedure 9(b). See Or. Pub. Emps. Ret. Fund v. Apollo Grp. Inc., 774 F.3d 598, 604 (9th Cir. 19 2014). In addition, pursuant to the PSLRA, a complaint must “specify each statement alleged to 20 have been misleading, the reason or reasons why the statement is misleading, and, if an allegation 21 regarding the statement or omission is made on information and belief, the complaint shall state 22 with particularity all facts on which that belief is formed.” 15 U.S.C. § 78u-4(b)(1). 23 Exchange Act Section 14(a) and SEC Rule 14a–9 prohibit the “solicitation of a proxy by a 24 statement that contains either (1) a false or misleading declaration of material fact, or (2) an 25 omission of material fact that makes any portion of the statement misleading.” Desaigoudar v. 26 Meyercord, 223 F.3d 1020, 1023 (9th Cir. 2000). “An omitted fact is material if there is a 27 substantial likelihood that a reasonable shareholder would consider it important in deciding how to 1 § 14(a) and Rule 14a-9, a plaintiff must establish that ‘(1) a proxy statement contained a material 2 misrepresentation or omission which (2) caused the plaintiff injury and (3) that the proxy 3 statement itself, rather than the particular defect in the solicitation material, was an essential link 4 in the accomplishment of the transaction.’” N.Y.C. Employees’ Retirement System v. Jobs, 593 5 F.3d 1018, 1022 (9th Cir. 2010) (citation omitted), overruled on other grounds by Lacy v. 6 Maricopa County, 693 F.3d 896 (9th Cir. 2012) (en banc). Further, “a Section 14(a), Rule 14a-9 7 plaintiff must demonstrate that the misstatement or omission was made with the requisite level of 8 culpability.” Desaigoudar, 223 F.3d at 1022. A Section 14(a), Rule 14a-9 claim for a false or 9 misleading proxy statement may not require anything further than negligence. Cf. Varjabedian v. 10 Emulex Corp., 888 F.3d 399, 408 (9th Cir. 2018) (“[B]ecause the text of the first clause of Section 11 14(e) is devoid of any suggestion that scienter is required, we conclude that the first clause of 12 Section 14(e) requires a showing of only negligence, not scienter.”); see also In re Verisign, Inc., 13 Derivative Litig., 531 F. Supp. 2d 1173, 1211 (N.D. Cal. 2007) (required state of mind for claim 14 under Section 14(a) and Rule 14a-9 is negligence). 15 The PSLRA includes a safe harbor for “forward-looking statements.” 15 U.S.C. § 78u-5. 16 Any statement that falls within the statutory definition, id. § 78u-5(i)(1), cannot serve as the basis 17 for liability if either (a) it is “identified as a forward-looking statement” and accompanied by 18 “meaningful cautionary language”; or (b) the plaintiff fails to prove that the defendant made the 19 forward-looking statement “with actual knowledge that the statement was false or misleading.” 20 Id. § 78u-5(c)(1). 21 Defendants do not contest the adequacy of the causation and essential link allegations for a 22 Section 14(a) claim, and challenge materiality only with respect to the alleged omission of the 23 Lumentum Forecasts from the proxy statement. Consequently, the Court focuses on whether the 24 statements challenged by Karri are covered by the PSLRA’s safe harbor, and, if not, whether he 25 has adequately pled that the proxy statement included false or misleading statements or that it 26 omitted material information rendering the statement misleading. 27 II. Judicial Notice 1 amended complaint, or subject to judicial notice. Dkt. No. 29-1. All of these documents were 2 publicly filed with the SEC. Id. at 1; Dkt. No. 29-2 Exhs. A-G. Karri does not object, but says 3 that specific factual assertions within the documents should not be accepted as true when they 4 conflict with the amended complaint. Dkt. No. 33 at 1 n.1. The Court will consider the 5 documents, but does not take judicial notice of any disputed facts. See Khoja v. Orexigen 6 Therapeutics, Inc., 899 F.3d 988, 999, 1003 (9th Cir. 2018). 7 III. Section 14(a) Claim 8 Karri identifies five alleged misrepresentations or omissions in the proxy statement. Dkt. 9 No. 33-1. Karri alleges three categories of affirmatively false or misleading statements: the 10 January and February Projections themselves; representations regarding the January and February 11 Projections; and the valuation figures that were calculated by Jefferies from the February 12 Projections. See Dkt. No. 33-1 at 2-3; Dkt. No. 20 ¶ 4. These challenged statements all go to 13 Karri’s overarching theory, which is that Oclaro’s management decided to downwardly revise 14 Oclaro’s projections to secure shareholder approval of Lumentum’s offer, and not based on their 15 own good faith judgments. Karri also alleges that defendants omitted the Lumentum Forecasts 16 from the proxy statement, and thereby “concealed a known fact that is material to the transaction.” 17 Dkt. No. 33-1 at 3; see also Dkt. No. 20 ¶ 5. 18 Defendants say that all the alleged misrepresentations are forward-looking statements that 19 fall within the PSLRA’s safe harbor provision, 15 U.S.C. § 78u-5(c). Dkt. No. 29 at 9-13; Dkt. 20 No. 35 at 4-8. Defendants also argue that the amended complaint fails to adequately allege that 21 the representations concerning the January and February Projections were both objectively and 22 subjectively false when made. Dkt. No. 29 at 13-18; Dkt. No. 35 at 8-12. Finally, defendants 23 argue that the amended complaint fails to state an actionable omission because the information 24 from the Lumentum Forecasts was publicly disclosed by Lumentum and incorporated by reference 25 in the proxy statement, Dkt. No. 29 at 19, and that such information is not material, id. at 18-20; 26 Dkt. No. 35 at 12. 27 1. The January and February Projections 1 false or misleading declarations of fact that render the proxy statement misleading. Dkt. No. 33-1 2 at 2-3 (citing Proxy at 107). Specifically, Karri alleges that these tables “led Oclaro shareholders 3 to believe that [the] value of Oclaro and its future prospects were worse than they actually were” 4 when compared to the December Projections. Id. 5 Karri acknowledges that the January and February Projections qualify as forward-looking 6 statements under the PSLRA. Dkt. No. 33 at 5, 12; see also 15 U.S.C. § 78u-5(i)(1)(A), (C)-(D) 7 (defining “forward-looking statements” to include statements containing projections of various 8 financial items or future economic performance, as well as statements regarding any assumptions 9 underlying such statements). Even so, Karri says that the January and February Projections fall 10 outside of the safe harbor because they were not accompanied by sufficient cautionary language. 11 Dkt. No. 33 at 12-14. 12 The point is not well taken. The January and February Projections are identified as 13 forward-looking statements, and accompanied by considerable cautionary language. See Dkt. No. 14 29 at 11-12 (citing and quoting Proxy at 69, 105-07). Consequently, the projections fit within the 15 PSLRA’s safe harbor provision. See 15 U.S.C. § 78u-5(c)(1)(a)(i). Defendants’ motion to dismiss 16 is granted for the January and February Projections. 17 2. Other Alleged Misrepresentations 18 Karri also challenges the following representations as rendering the proxy statement false 19 or misleading: 20 • “The Oclaro Projections were not prepared with a view toward public disclosure, nor were they prepared with a view toward 21 compliance with published guidelines of the SEC or the guidelines established by the American Institute of Certified Public 22 Accountants with respect to prospective financial information, but, in the view of Oclaro management, were prepared on a reasonable 23 basis, reflecting the best currently available estimates and judgments at the time of their preparation.” Dkt. No. 33-1 at 2 (quoting Proxy 24 at 105). • “With respect to the Oclaro Forecasts, Jefferies was advised by 25 Oclaro that such Oclaro Forecasts were reasonably prepared on bases reflecting the best currently available estimates and good faith 26 27 judgments of the management of Oclaro as to the future financial 1 performance of Oclaro.” Id. (quoting Proxy at 97). 2 • The implied equity reference ranges per share for Oclaro that were calculated by Oclaro’s financial advisor, Jefferies LLC (“Jefferies”), 3 and derived from the significantly lower February Projections. Id. at 3 (citing Proxy at 100-03). 4 5 Karri says that management’s decision to revise Oclaro’s projections downward was driven by a 6 desire to secure shareholder approval at the expense of sacrificing the best obtainable value of 7 Oclaro shares. As a result, the projections were neither reasonably prepared nor based on 8 management’s good faith judgments, and the valuation figures calculated from those projections 9 misled shareholders about Oclaro’s true value. 10 Defendants argue that all of these statements are also covered by the safe harbor. Dkt. No. 11 35 at 4-7. This goes too far. The statements about the projections are not forward-looking; rather, 12 they are statements about the preparation of, and basis for, the projections. Consequently, they do 13 not fall within the PSLRA’s safe harbor, irrespective of any attendant cautionary language. See In 14 re Quality Systems, Inc. Sec. Litig., 865 F.3d 1130, 1148 (9th Cir. 2017) (“[V]irtually no 15 cautionary language short of an outright admission that the non-forward-looking statements were 16 materially false or misleading would have been adequate.”). 17 So too for the valuation figures in the proxy statement, which defendants again 18 unsuccessfully pitch as forward-looking statements. Defendants note that these figures are 19 labelled as estimates of Oclaro’s “value as of June 30, 2018,” Dkt. No. 29 at 11 (quoting Proxy at 20 100), but that does not make them forward-looking. The valuation figures were provided to 21 shareholders as support for Jeffries’ conclusion that the merger consideration offered by 22 Lumentum was fair in light of the present value of their Oclaro stock. By including the valuation 23 figures in the proxy statement, Oclaro’s board was making a declaration of existing fact, namely 24 that Jefferies’ calculations based on the February Projections justified the board’s recommendation 25 that shareholders vote to approve the proposed transaction. 26 Defendants contend that the amended complaint does not sufficiently allege that the 27 representations about the January and February Projections were false. Dkt. No. 35 at 8. These 1 statements were both objectively and subjectively false when made. Virginia Bankshares, Inc. v. 2 Sandberg, 501 U.S. 1083, 1095-96 (1991); Rubke v. Capitol Bancorp Ltd, 551 F.3d 1156, 1162 3 (9th Cir. 2009). 4 The February Projections were the second downward revision to Oclaro’s financial 5 projections in as many months, and were made at a time when the company was publicly bullish 6 about Oclaro’s future. Dkt. No. 20 ¶¶ 67-74. For example, CEO Greg Dougherty made rosy 7 statements about Oclaro’s prospects during a February 5, 2018 earnings call. Dkt. No. 20 ¶¶ 67- 8 73. Dougherty said, among other things, that Oclaro stood by its guidance from three months 9 earlier. Id. ¶ 72. Such statements are hard to square with management’s contemporaneous 10 decision to make the downward revisions in the February Projections. 11 Contemporaneous financial community commentary also stated that Oclaro was poised for 12 growth, id. ¶ 74, and that its stock was undervalued, id. ¶ 78. But when the merger agreement was 13 signed about a month and a half later, the cash portion of the merger consideration was less than 14 the initial offer, even though Oclaro’s board had directed Dougherty to counter Lumentum’s initial 15 offer with an increased all-cash price per share. Id. ¶¶ 76-77. Financial results from after the 16 February Projections, and before the proxy statement was disseminated, showed Oclaro’s 17 performance was at the upper end of its guidance, id. ¶ 82, providing further confirmation that the 18 decision to revise Oclaro’s projections did not reflect a reasonable view of Oclaro’s prospects. 19 The amended complaint alleges that Oclaro’s management provided the February 20 Projections only to Jefferies, and not to Lumentum, id. ¶¶ 77, 101, and that, had Oclaro 21 management not prepared downwardly revised projections, Jefferies’ valuation figures for the 22 merger consideration would have fallen “at the very bottom, if not outside the range of fairness,” 23 id. ¶ 92. Taken together, these circumstances support a plausible inference that Oclaro’s 24 management prepared the February Projections for the express purpose of justifying a low-ball 25 offer by Lumentum, rather than pressing Lumentum to offer optimal consideration to acquire 26 Oclaro. Id. ¶ 77. 27 In contesting falsity, defendants vigorously defend management’s decision to revise 1 may ultimately prevail, on a motion to dismiss, the Court must make all reasonable inferences in 2 favor of the amended complaint. For the February Projections, the amended complaint plausibly 3 pleads objective and subjective falsity. 4 Defendants do not challenge materiality, for good reason. In deciding whether to vote to 5 approve the proposed acquisition, a reasonable investor would have considered it material whether 6 the February Projections were reasonably prepared and based on management’s good faith 7 judgments. See SEC v. Todd, 642 F.3d 1207, 1221 (9th Cir. 2011) (noting that how officers and 8 directors describe information regarding a company’s financial condition to investors is material); 9 see also Virginia Bankshares, 501 U.S. at 1090 (citing TSC Industries, 426 U.S. at 449). 10 The falsity allegations with respect to management’s representations about the January 11 Projections are another matter. Lumentum’s initial offer was made on February 15, 2018, Dkt. 12 No. 20 ¶ 75, after the January Projections were prepared, and the January Projections were not 13 provided to Jefferies in connection with its fairness opinion, id. ¶ 101. In addition, it appears that 14 management prepared the January Projections to account for new financial results from the end of 15 2017, Dkt. No. 29 at 14, and another year of projected estimates, id. at 5. Defendants’ motion to 16 dismiss is granted for the statements about the January Projections. To be clear, dismissal is 17 denied for the representations about the February Projections. 18 The motion is also denied for the valuation figures calculated from the February 19 Projections. Because Jefferies’ valuation analyses were based on the February Projections, the 20 resulting valuation figures included in the proxy statement rendered it misleading. Dkt. No. 20 21 ¶¶ 101-03. The amended complaint alleges that the ultimate purpose of downwardly revising the 22 February Projections was to obtain valuation figures that would mislead shareholders as to 23 Oclaro’s true value. Id. ¶¶ 77, 103. This plausibly states that the valuation figures rendered the 24 proxy statement materially misleading. 25 3. Omission of the Lumentum Forecasts 26 Karri says that the Oclaro board’s failure to include the Lumentum Forecasts in the proxy 27 rendered statements touting “Lumentum’s future prospects and opportunities for long-term 1 alleges that, because the Oclaro board relied on the information in the Lumentum Forecasts to 2 evaluate the merger consideration, which consisted in part of Lumentum stock, the board had to 3 disclose the Lumentum Forecasts in order to satisfy an obligation to make “complete and accurate 4 disclosures concerning Lumentum.” Dkt. No. 20 ¶ 112 (emphasis omitted). 5 This claim is dismissed. The amended complaint fails to allege with particularity how 6 such an omission rendered anything in the proxy statement materially misleading. Its main theory 7 is that the February Projections and resulting valuation figures undervalued Oclaro in relation to 8 Lumentum. But the amended complaint does not allege that the Lumentum Forecasts 9 independently distorted the analysis by overvaluing Lumentum, or even that shareholders could 10 have discovered that Oclaro was undervalued by reviewing the Lumentum Forecasts. 11 Consequently, the amended complaint fails to allege how disclosure of the Lumentum Forecasts 12 would have prevented any other statement in the proxy from being materially misleading. It is 13 equally plausible to infer that the omission of the Lumentum Forecasts had no effect on whether 14 the proxy statement was misleading vel non. 15 In addition, the suggestion in the amended complaint that the Oclaro board relied on the 16 Lumentum Forecasts but omitted them from the proxy statement, Dkt. No. 20 ¶¶ 5, 113, is 17 doubtful. Lumentum’s SEC filings were incorporated by reference in the proxy statement. Dkt. 18 No. 29 at 19 (citing Proxy at 170). The amended complaint does not allege with particularity what 19 information, if any, was included in the Lumentum Forecasts but not in Lumentum’s SEC filings. 20 Thus, the amended complaint fails to show that the Oclaro board considered any information that 21 was not publicly available and incorporated by reference in the proxy statement. 22 IV. Section 20(a) Claim 23 Defendants’ motion to dismiss the Section 20(a) claim rests entirely on the argument that 24 he cannot establish liability under Section 14(a) and Rule 14a-9. Dkt. No. 29 at 20; see Dearborn 25 Heights v. Align Tech., 856 F.3d 605, 623 (9th Cir. 2017) (liability under Section 20(a) requires 26 demonstrating a primary violation of federal securities law by a control person). Because Karri 27 has adequately alleged violations of Section 14(a) and Rule 14a-9, defendants’ motion to dismiss 1 CONCLUSION 2 For the dismissed claims, Karri may file by October 30, 2020, a second amended 3 complaint that is consistent with this order. No new claims or parties may be added without the 4 Court’s prior consent. 5 IT IS SO ORDERED. 6 Dated: October 8, 2020 4 8 JAMES PONATO 9 United tates District Judge 10 11 12 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28