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In re Harmonic, Inc., Sec. Litig.

United States District Court for the Northern District of California

December 11, 2006, Decided ; December 11, 2006, Filed

No. C 00-2287 PJH

Opinion

ORDER GRANTING MOTION TO DISMISS IN PART AND DENYING IT IN PART

Before the court is defendants' motion to dismiss certain claims alleged in the third amended complaint. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court GRANTS the motion in part and DENIES it in part.

INTRODUCTION

This is a proposed class action alleging violation of federal securities laws. Plaintiffs filed suit against Harmonic, Inc. ("Harmonic"), C-Cube Microsystems, Inc. ("Old C-Cube"), and a number of their top executives, following a decline in stock price of both Harmonic and Old C-Cube shortly after the May 3, 2000, merger between Harmonic and a division of Old C-Cube. Plaintiffs alleged claims under the 1934 Securities Exchange Act, against both the Harmonic defendants and the C-Cube defendants, and under the 1933 Securities Act, against the Harmonic defendants only.

On November 13, 2003, this court dismissed the second amended complaint ("SAC") without leave to amend. On November 8, 2005, the [*5]  Ninth Circuit affirmed the dismissal of the claims under the 1934 Securities Exchange Act (thereby affirming the dismissal of all C-Cube defendants from the case); and reversed the dismissal of the 1933 Securities Act claims, with the exception of the § 15 claim against Harmonic, as to which it granted leave to amend.

On May 17, 2006, plaintiffs filed the third amended complaint ("TAC"), in which they amended the § 15 claim against Harmonic, added a new § 15 defendant, and amended the § 12(a)(2) claim to add new defendants and new allegations of material omissions. In addition, the TAC retained as "background" many of the allegations that had previously been used to support plaintiffs' claims under the 1934 Securities Exchange Act.

Defendants now move to dismiss the revised § 12(a)(2) claim, and the revised § 15 claim, and also seek an order striking the allegations against the new defendants in those claims, as well as the "background" allegations pertaining to the dismissed Exchange Act claims.

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2006 U.S. Dist. LEXIS 90450 *; 2006 WL 3591148

In re HARMONIC, INC., SECURITIES LITIGATION THIS ORDER REFERS TO: ALL ACTIONS

Subsequent History: Motion granted by In re Harmonic, Inc. Secs. Litig., 2007 U.S. Dist. LEXIS 68351 (N.D. Cal., Sept. 13, 2007)

Prior History: Knollenberg v. Harmonic, Inc., 152 Fed. Appx. 674, 2005 U.S. App. LEXIS 24274 (9th Cir. Cal., 2005)

CORE TERMS

allegations, prospectus, registration statement, solicitation, merger, seller, shareholders, violator, cases, Securities Act, motion to dismiss, sales, stock, individual defendant, control-person, best interest, Exchange Act, misleading, press release, misleading statement, offers, district court, court finds, defendants', purchases, leave to amend, customer, issuer, proxy, motion to strike