OPINION
TABLE OF CONTENTS
I. Introduction...............................................................373
II. Background...............................................................373
III. Parties’ Contentions........................................................376
A. Dismissal Motion.......................................................376
1. Plaintiffs’Position..................................................376
a. Overall Factual Assertions.......................................376
b. Four Lines of Plaintiffs’ Allegations...............................377
i. Allegations Related to the iPhone 3G..........................379
ii. Allegations Related to “Unlocking”............................382
e. Plaintiffs’ Additional Contentions and Legal Claims .................386
2. Defendants’ Position................................................386
B. Strike Motion..........................................................388
IV. Discussion.................................................................389
A. Strike Motion..........................................................389
1. Evidentiary Aspects ................................................389
2. Procedural Aspects.................................................391
B. Dismissal Motion.......................................................393
1. Pleading Requirements..............................................393
a. Rule 8 Pleadings................................................393
b. Pleading Under Rule 9 and the Reform Act........................395
2. Substantive Law....................................................396
a. Element Pled Pursuant to Rule 8: Materiality......................397
b. Elements Pled Pursuant to Rule 9 ................................397
i. Reliance...................................................398
ii. Scienter...................................................398
iii. Forward-looking Statements.................................401
iv. Omissions .................................................403
c. Liability of Controlling Person....................................404
3. Claims Based on Defendants’ Forward-Looking Statements..............404
a. Future Projections Allegedly Related to the iPhone 3G..............405
b. Future Projections Allegedly Related to “Unlocking”................407
i. “False Failure to Project” as a Cause of Action.................407
ii. Insufficiency of Pleadings....................................408
iii. Substantive Insufficiency of the Claim.........................409
4. Claims Based on Defendants’ Alleged Omissions........................414
a. Lack of Duty to Disclose Ensuing from Waldis and Irving’s Trades ......................................................416
b. Allegations as to Omissions and/or Duty to Correct or Update........416
i. Omissions as to the iPhone 3G................................417
ii. Omissions as to the Change in Synchronoss’ Revenue............421
C. Leave to Amend .......................................................423
V. Conclusion................................................................424
*373 1. INTRODUCTION
This matter is before the Court upon Defendants’ motion (“Dismissal Motion”), see Docket Entry No. 24, seeking dismissal of Plaintiffs’ Consolidated Class Action Complaint (“Complaint”). See Docket Entry No. 22. Plaintiffs filed their opposition to the Dismissal Motion (“Dismissal Opposition”), see Docket Entry No. 25, to which Defendants filed a reply (“Dismissal Reply”). See Docket Entry No. 30. The foregoing submissions appear to be intertwined with Plaintiffs’ later filed motion (“Strike Motion”) requesting the Court to strike certain Defendants’ arguments raised in the Dismissal Motion. See Docket Entry No. 27. Defendants filed their opposition to the Strike Motion (“Strike Opposition”), see Docket Entry No. 31, to which Plaintiffs filed a reply (“Strike Reply”). See Docket Entry No. 32.
For the reasons detailed below, Plaintiffs’ Strike Motion will be denied, without prejudice, as premature. Defendants’ Dismissal Motion will be granted on grounds unrelated to Plaintiffs’ Strike Motion, and the Consolidated Class Action Complaint will be dismissed. Such dismissal, however, will be without prejudice, and Plaintiffs will be granted leave to cure the deficiencies of their pleadings.
II. BACKGROUND
Plaintiffs brought this action on behalf of a putative class consisting of all persons and entities that purchased or otherwise acquired securities (seemingly, common shares only) issued by Synchronoss during a slightly more than four month period, from February 4, 2008 to June 9, 2008, both dates inclusive (“Class Period”). See Compl. ¶ 2.
According to the Complaint, Defendant “Synchronoss [Technologies] is a Delaware corporation[,] with principal executive offices located at ... Bridgewater, New Jersey[ 2 ] .... As of August 27, 2008, [Synchronoss] had approximately 31.4 million shares outstanding that traded on the NASDAQ under the symbol ‘SNCR.’” Compl. ¶ 12. While the technical endeavors in which Synchronoss is involved are complex and multiple, it can be said that Synchronoss is, generally, in the business of creating and licensing software used by other business entities, which are involved in providing wireless services; one of the functions that Synchronoss’ software can perform is activation of wireless devices from remote locations, e.g., remote (meaning, online/off-site) activation of iPhones (mobile/cell phones produced by Apple Inc. (“Apple”)). 3 See id. ¶¶ 26-27.
*374 Apple is a corporation that designs and manufactures consumer electronics and computer software; Apple’s most well-known hardware products include Macintosh computers, the iPod, the iPhone, etc. Steven “Steve” Paul Jobs is the co-founder and chief executive officer of Apple.
The history of the iPhone began with a conclusion reached by Steve Jobs in 2003 that the high-tech future belonged to mobile phones that could also operate as devices enabling access to portable information. By that time, Jobs had Apple put its energies into the iPod, a portable media player, and the corresponding iTunes software, a digital media player application used for purchasing and downloading digital music and video files. In September 2006, Apple released a new version of iTunes that included references to a then-yet-unknown mobile phone which was announced four months later as the “iPhone”; the iPhone was actually introduced into the market on June 29, 2007. 4
The iPhone is an excellent example of what is commonly known as a “smart-phone,” meaning that it is a mobile telephone offering computer-like capabilities, ie., it is an advanced cell phone (allowing such features as text messaging, visual voicemail, audio conferencing, call holding, call merging, caller ID, etc.) that also functions as a camera and a portable media player equivalent to a video iPod, allows the user a Wi-Fi connection with complete access to the Internet (including email, full web browsing, etc.) and, in addition, performs many other functions.
When the original version of iPhone was introduced to the purchasing public in 2007, TIME Magazine named it the Invention of the Year. The second generation of the iPhone, popularly known as the “iPhone 3G,” is an even more advanced device capable of receiving and processing data faster' than the original iPhone; it also performs additional and more complex functions than the original iPhone and, in addition, ensures that the user — even if (s)he is located in an area suffering from a poor cell phone connection — could nonetheless access the transmission frequency securing due reception. 5
Apple tightly controls most aspects of the iPhone; for instance, the iPhone’s operating system is designed to only run software that has an Apple-approved “cryptographic signature,” ie., the code protecting against alterations or corruptions.
All iPhones must — theoretically—be “activated,” meaning that they have to be assigned a telephone1 number and carrier before the user could obtain assess to iPhone features. For the purposes of the United States market, all iPhones are “locked,” in the sense that the creators of the iPhone tried (and keep aggressively trying) to ensure that the iPhone could be used only with one particular authorized carrier, namely, AT & T, which is Apple’s partner network. 6
*375 However, various “hackers,” who are unwilling to switch from their carriers to AT & T either out of customer loyalty or because they are planning to use different service providers when traveling to Europe/ Asia (in order to avoid the roaming fees charged by AT & T on overseas calls), or because they simply dislike AT & T’s subscription terms or AT & T as a business entity, found methods to “unlock”— meaning, to “activate” — their iPhones in order to use them with unauthorized carriers (that is, carriers other than the AT & T) after such “unlocking.” 7 In sum, it can be said that “unlocking” is the process by which a cell phone (or any mobile device) is made compatible with telephone networks) it was not specifically licensed to be used with.
Many owners of smartphones (including the owners of iPhones) are, however, not concerned with the issue — or not concerned with only the issue — of changing their service providers: rather, they want to gain control over the applications/software they can install on their mobile devices. Presumably, the reason is that many smartphone manufacturers “lock” the devices so that only their approved applications can be installed. Apple is no exception to that practice, and the iPhone can only install applications purchased from Apple’s App Store (since the iPhone’s operating system is designed to run only the software that has an Apple-approved cryptographic signature); therefore, if there is an application an owner of the iPhone wants to install that is not officially approved and offered by Apple, (s)he out of luck. However, similar to the “unlocking” restriction (relevant for the purposes of phone “activation”), this installment-of-software restriction could be overcome by “jailbreaking” the phone, that is, by replacing the iPhone’s firmware with a slightly modified version that does not enforce the signature check.
While the goals and technical aspects of “unlocking” and “jailbreaking” are qualitatively different, 8 the financial implications of these processes are somewhat similar for the purposes of both Apple and AT & T. In the case of “unlocking,” AT & T is prevented from collecting fees associated with its acting as a carrier of cell phone accounts of the iPhone owners, while in the case of “jailbreaking” — Apple is prevented from collecting the fees associated with the *376 iPhone owners’ installment and/or usage of Apple’s App Store software applications. 9 Consequently, beginning in September 2007, Apple has been releasing various technical updates and new firmware aimed at either relocking the “unloeked/jailbroken” iPhones or to “bricking” such devices (ie., rendering these “hacked” devices inoperable). .
It appears that Synchronoss was the entity which created the program allowing Apple/AT & T to offer their customers an opportunity to self-activate their new iPhones. In other words, in contrast with the traditional model necessarily requiring a customer to go through the process of in-store purchase-and-activation of his/her new iPhone, Synchronoss’ program (adopted by Apple/AT & T) allowed the customer to choose between: (1) the in-store purchase-and-activation; and (2) an opportunity to (a) purchase an iPhone (either in-store or online); and then (b) self-activate this new iPhone from the comfort of the customer’s own home via iTunes. Since the self-activation option permitted iPhone purchasers to physically take their yet-to-be-activated iPhones outside AT & T’ stores, such option also provided these purchasers with a “window-of-opportunity” during which they could “hack” their new iPhones by “unlocking” their new devices. In light of the obvious financial losses caused by the practice of “unlocking” original iPhones, Apple/AT & T — starting from release of Apple’s iPhone EG — decided to part with the customer-convenient-but-profit-endangering model of self-activation and elected to permit only the old-but-financially-more-seeure model of in-store purchase-and-activation. Consequently, Synchronoss’ off-site/online self-activation program became of no use for the purposes of the iPhone 3G, causing the stream of compensation Synchronoss was receiving from Apple/AT & T for the use of its program to progressively dry up, since Synchronoss’ program kept being used only for the purposes of off-site activations of the original iPhones that were (re-)entering the market. 10
III. PARTIES’ CONTENTIONS
A. Dismissal Motion
1. Plaintiffs’ Position
a. Overall Factual Assertions
For reasons not entirely clear, and— seemingly — without any correspondence to the remainder of Plaintiffs’ allegations, the Complaint opens with Plaintiffs’ contention that “Synchronoss’ [self-activation program was designed] to prevent Apple iPhones from being activated with wireless phone carriers other than AT & T,” Compl. ¶ 2 (emphasis supplied), even though it appears that the Synchronoss’ program 11 was not designed to be a “lock” (or an anti-“hacking” device) of any kind and, indeed' — for the purposes of phone *377 activation — such “lock” was already imbedded in the iPhone by Apple itself, via its firmware intertwined with its GSM system (using the SIM cards tied to each iPhone’s serial number). Accord Compl. ¶ 28 (“Synchronoss provided the software allowing U.S. purchasers of the iPhone to activate that device from their home computers for use on AT & T’s network”). Thus, while — as detailed infra — ’the Court is obligated to take all Plaintiffs’ factual allegations as true for the purposes of Defendants’ Dismissal Motion, the Court presumes that this particular piece of information (ie., the allegation seemingly suggesting that Synchronoss was hired, but failed, to protect the iPhone from “unlocking” or other forms of hacking) was included by Plaintiffs in the Complaint as a result of inadvertence.
The remainder of Plaintiffs allegations do not appear inherently self-contradicting.
According to the Complaint, Synchronoss, in its report addressing the second quarter of 2007, “[ajnnounced a multi-year contract with AT & T to support the launch and ongoing operational support of the Apple iPhone.” Id. ¶ 33. The utilization of ConvergenceNow by AT & T “allowed Synchronoss to profit every time an Apple iPhone was activated on the AT & T network.” 12 Id. ¶¶2, 29. In 2007, Synchronoss’ gross receipts from off-site iPhone activations via ConvergenceNow amounted to 32.38% of Synchronoss’ gross revenue. 13 Id. ¶¶ 2, 31, 44 and 50. By the beginning of the Class Period, “Synchronoss continued to maintain that the iPhone was producing and would produce tremendous results for [Synchronoss,] and [Synchronoss’] financial condition was strong,” Id. ¶ 4.
The Complaint further alleged that, because: (a) “[a]t the time the iPhone was released, it was unlike any other phone on the market[; and (b) ] most consumer wireless contracts [were, as they typically] are[,] two years in length ..., [some investors, Plaintiffs included, as well as some] technical journalists and [some] financial analysts[ 14 somehow] believed that the *378 number of iPhone sales would increase in coming years,” and Synchronoss’ income from off-site activations [of iPhones] would show an “astronomical growth.” 15 Id. ¶¶ 32, 38. The aforesaid beliefs of these “journalists, financial analysts and investors” were, apparently, fueled in 2008 by the exact-content-unspecified rumors of unspecified origin, the gist of which was that the iPhone 3G would soon be released and, also, available for off-site self-activation, and, in addition, that Synchronoss would, also, handle these off-site activations of iPhones 3G. Plaintiffs maintain that this rumor-based three-step deducement had to be warranted because: (a) Synchronoss had widely publicized its 2007 “multi-year contract with AT & T to support the launch and ongoing operational support of the Apple iPhone,” id. ¶ 2, 29, 33; and (b) Synchronoss was not discussing/projecting/publicizing the possibility that it might be excluded from off-site activations of future models of the iPhone, or that these future models of the iPhone (the iPhone 3G inclusive) could be, altogether, not offered by Apple/AT & T for off-site activation. See id. ¶¶ 32-34; Dismissal Opp., at 5-6 (asserting that Plaintiffs’ deduction as to Synchronoss’ upcoming off-site activation of the iPhone 3G was necessarily logical simply because “Defendants said nothing to the contrary”).
b. Four Lines of Plaintiffs’ Allegations
Plaintiffs assert that, on May 6, 2008, ... [Synchronoss] announced that it had ‘materially lowered’ its [financial projections] for [the remainder of] 2008 due[,] in large part[,] “to declining revenue associated with Apple’s iPhone.” Compl. ¶ 4. From this statement on, the Complaint, as well as the Dismissal Opposition, seems to run on the following four, rather distinct, tracks of allegations, although these allegations are at first heavily interwoven, if not plainly conflated, but then presented in a somewhat patchy fashion.
Specifically:
(a) some assertions seem to suggest that Defendants unduly concealed the known-to-them truth about the financial effect the practice of “unlocking” was taking on Synchronoss’ revenue;
(b) another line of allegations, also related to the practice of “unlocking,” does not address the issue of what Defendants omitted to disclose about the then-existing financial situation of Synchronoss; rather this line of allegations seems to imply that Defendants wrongly forecasted (or did not correct their prior forecast as to) Synchronoss’ future revenue by not factoring in the potential negative impact which the practice of “unlocking” might take on *379 Synchronoss’ revenue in the months to come;
(c) the third line of assertions has nothing to do with the practice of “unlocking.” Rather, these allegations seem to imply that Defendants’ statements about Synchronoss’ “multi-year” contract and, perhaps, the overall optimistic tone of Defendants’ future projections, somehow misled the investors into believing that: (i) the iPhone 3G would necessarily be available for off-site/online activation; (ii) Synchronoss would necessarily be involved in such online self-activation and would, thus, derive revenue on a per-activation basis, as was the case with the original iPhone; and (iii) because the iPhone 3G would be a more advanced device in comparison with the original iPhone, it would necessarily be even more popular than the original iPhone, and that would necessarily result in Synchronoss’ receipt of even more lucrative profit from off-site activation of the iPhone 3G. See generally, Compl.; and
(d) the final line of allegations seems to suggest that, even prior to June 9, 2008, Defendants knew, for a fact, that Apple/AT & T decided not to involve Synchronoss in the process of activating iPhones 3G, but Defendants omitted to disclose this fact to the investors. 16
In addition to these four lines of allegations, Plaintiffs state a line of derivative claims against Waldis and Irving. See note 29, infra.
i. Allegations Related to the iPhone 3G
Plaintiffs assert that when, on May 6, 2008, Synchronoss “announced that it had ‘materially lowered’ its [financial projections] for [the remainder of] 2008 due[,] in large part[,] to declining revenue associated with Apple’s iPhone,” Synchronoss failed to disclose the allegedly already-known-to-Defendants fact that Synchro *380 noss’ services would not be utilized for the purposes of the iPhone 3G. Id. ¶¶ 5-6.
The information that Synchronoss’ services would not be utilized with regard to the iPhone 3G was publicized by AT & T on June 9, 2008. Id. According to the Complaint, on the next day, that is, on “June 10, 2008, [Synchronoss] confirmed [AT & T’s] announcement and admitted that [its non-retention by Apple/AT & T for the purposes of the iPhone 3G] was a reason” for Synchronoss’ release of lower financial projections on May 6, 2008. 17 Id. ¶ 6 (emphasis supplied). Although the Complaint does not inform the Court about the actual “admission” language by Defendants, Plaintiffs seem to deduce the fact of such admission from the language of Synchronoss’ 8-K Report filed with the SEC June 10, 2008. That Report read, in relevant part, as follows:
on June 9, 2008, AT & T announced the expansion of its relationship with Apple relative to the much anticipated launch of the 3G Apple iPhone. Synchronoss will continue [its] relationship with AT & T as it relates to the activation and provisioning of Apple iPhones. However, Synchronoss will not participate in the on-site, retail store activations associated with the 8G iPhone, which was already taken into consideration when we provided our revised financial outlook on our first quarter 2008 financial results conference call.
Compl. ¶ 51 (emphasis supplied by Plaintiffs).
Plaintiffs seek to explain their allegations as follows: “By admitting that the revision downward of [Synchronoss’] full year 2008 [projections] was partially due to the fact that [Synchronoss] would not be involved with the activation of the 3G iPhone, Defendants also admitted that their [projections,] issued on February 4, 2008, [were] based upon the presumption that [Synchronoss] would be involved with the 3G, which they already knew was not going to occur.” Compl. ¶ 52. However, this purported clarification offers more problems than solutions. First, it is not clear as to how one can possibly base his/her projection on a presumption (s)he has not actually presumed. At best, one could surmise that Plaintiffs seek to assert that: (a) Defendants knew that their services would not be utilized in activations of the iPhone 3G; but (b) Defendants’ 2008 projections, nonetheless, factored in the receipts from off-site activations of the iPhone 3G.
However, this odd turn of phrase presents a minor concern. A far more substantial problem with Plaintiffs’ deduction is that the 8-K Report quoted by Plaintiffs merely stated that “Synchronoss will not participate in the on-site, retail store activations associated with the 3G iPhone.” Id. ¶ 51 (emphasis supplied). That statement is qualitatively different from Plaintiffs’ leap of logic reading it as Synchronoss’ admission of long-time knowledge that Synchronoss would not be involved in any activation (including off-site, online activation) of the iPhone 3G. Contrary to Plaintiffs’ deduction, it seemed quite logical for Synchronoss to factor in its non-involvement in on-site, retail store activar tions: 18 indeed, Synchronoss’ ConvergenceNow program was never designed for *381 such use; rather, it was expressly created only for off-site/online activation. 19
In light of the foregoing, Plaintiffs’ assertions (ie., (a) that Defendants’ 8-K Report of June 10, 2008, contained an “admission” that Defendants knew the iPhone 3G would not be available for off-site self-activation and, thus, would not utilize ConvergenceNow; and (b) that Synchronoss’ publication of its multi-year contract with AT & T was effectively equal to an announcement that Synchronoss would service off-site activation of either all future models of the iPhone or, at the very least, of the iPhone 3G) appear to state not a fact but a factless self-serving conclusion.
Another set of allegations, seemingly related to the iPhone 3 G, consists of the following four assertions:
a. [Synchronoss] invested a large amount of time [ie., months] and work ... preparing [its umbrella version of ConvergenceNow for the specific use with the original iPhone]. Compl. ¶ 28.
b. A former Manager of Information Technology at Synchronoss in Bethlehem, PA [employed by Synchronoss] until March 2008, who was personally involved with the task of purchasing over a million dollars worth of equipment for the development and launch of the 2G phone, [ 20 ] stated that it would be a matter of months versus weeks for Synchronoss to gear up for the launch of the 3G iPhone. Moreover, he stated that the Company laid off their most senior technical staff, including the Senior Windows Engi *382 neer and the Senior Network Engineer who would have been essential to working on the 3G iPhone in the months before it was launched. The Company’s laying off of its senior technical staff essential that would have been essential [sic] to the 3G iPhone is a strong indication that Defendants knew at that time that Synchronoss would play no role in activating the 3G iPhone. Id. ¶ 47 (emphasis supplied).
c. A former Synchronoss Agent Supervisor in Bethlehem, PA from July 2007 through March 2008 stated that the Company terminated many people in February 2008. Id. ¶ 48.
d. According to a former Synchronoss software engineer employed by the Company until February 2008, the layoffs in February 2008 were of permanent employees. Id.
These four assertions seem to suggest, jointly, the following two sentiments: (1) since it took Synchronoss months to alter its umbrella version of ConvergenceNow for off-site activation of the original iPhone, it necessarily had to take Synchronoss at least a comparably lengthy period of time to re-alter its tailored-to-the-original-iPhone version of ConvergenceNow for off-site activation of the iPhone 3G; and (2) such re-alteration had to also be so technically complex that layoffs of certain permanently employed managers and senior engineers, and some other permanent staff, would automatically render the task of such re-alteration virtually insurmountable.
The problem with these assertions is two-fold. First, to a person lacking expertise in high-tech matters, as is the case with this Court, the argument appears plainly conclusory. Indeed, while the iPhone 3G is a more advanced technical device in comparison with the original iPhone, that fact, in and by itself, does not necessarily indicate that the computer program activating this advanced device electronically must be qualitatively different from the computer program activating the original iPhone and/or that the process of modification of the original computer program would be as complex as the process of creating that original program from scratch. 21 Second, even if the Court were to hypothesize that an expert computer programmer could verify Plaintiffs’ conclusions sufficiently to meet the requirements of the Federal Rules of Evidence, this presumption cannot cure the deficiencies of Plaintiffs’ pleadings since the above-quoted assertions — being merely pled by Plaintiffs in the Complaint — still cannot be qualified as facts: at best, they could be qualified as an inadmissible non-expert opinion. Consequently, the only pled fact the Court could gather from the four above-quoted assertions is that, in February of 2008, Synchronoss laid off an unspecified number of employees, some of which had senior positions and some of which were permanent staff,
ii. Allegations Related to “Unlocking”
As noted supra, Plaintiffs’ Complaint suggests two lines of allegations related to “unlocking,” namely: (1) allegations seemingly indicating Plaintiffs’ position that Defendants concealed the known-to-them truth about the effect “unlocking” was taking on Synchronoss’ revenue; and (2) assertions that Defendants issued false financial projections by not factoring in the *383 possible negative effect the practice of “unlocking” was capable of causing to Synchronoss’ future revenue.
Six events are described in the Complaint with respect to these “unlocking”based challenges. They are:
1. On February 4, 2008, Synehronoss held its fourth-quarter-of-2007 earnings call. See Compl. ¶ 56. Both Defendants Waldis and Irving made certain statements during the call. See id. Specifically:
a. Waldis stated: “We are extremely pleased with the continued high level performance that our Convergence-Now [program] has delivered [for the purposes of] activation of the Apple iPhone.” Id. Plaintiffs read this statement as an utterance intentionally disguising the effect the practice of “unlocking” had been causing — or could cause — to Synehronoss’ then-accrued and/or future revenue. 22 See Dismissal Opp., at 7.
b. Irving forecasted Synehronoss first-quarter-of-2008 revenue at $30 to 32 million, and full revenue for the year 2008 at $151 to $160 million. 23 See Compl. ¶ 58. Plaintiffs assert that these figures were provided by Defendants regardless of Defendants’ knowledge that these projections would be unattainable because of the negative impact the practice of “unlocking” might have been destined to cause to Synehronoss’ revenue. 24 See Dismissal Opp., at 7-8.
*384 2. On the same day, that is, on February 4, 2008, Synchronoss also issued a press release in which, according to the Complaint: (a) “Irving stated that ‘we are more optimistic about [Synchronoss’] long-term future than at any point in our history’ while (b) “Waldis [stated] that ‘Synchronoss is well positioned to benefit from multiple growth opportunities’ and [that he] was ‘optimistic about [Synchronoss’] ability to take advantage of those opportunities based on Synchronoss’ unique ConvergenceNow.’ ” Compl. ¶ 55. Plaintiffs read both of these statements as Defendants’ assertions that “unlocking” was not affecting — and would not affect — Synchronoss’ accrued and future revenue. 25 See Dismissal Opp., at 8.
3. “On February 29, 2008, [Synchronoss] filed its [10-K] Report ... with the SEC. [See Compl.] ¶ 59. The [Report], which was released two-thirds of the way through the first quarter of 2008, did not discuss the materially adverse effect” of unlocking (as to the accrued part of the first quarter of 2008), and did not offer new quarterly or yearly revenue projections factoring in the potential negative impact of “unlocking.” 26 See Dismissal Opp., at 8.
4. “On May 6, 2008, Synchronoss issued a press release ... reporting its results for the first quarter [of] 2008. In that press release, [Synchronoss] announced that it had materially lowered its growth expectations in 2008 due to reduced revenues associated with the iPhone. [In addition, Synchronoss] reported net revenue of $29.1 million for the first quarter of 2008, missing its projection of $30[ ] million [by $0.9 million, that is, by 3%].” 27 Compl. ¶ 63. Synchronoss also revised its projections for the entire 2008, lowering them from $151-$160 million to $115-120 million. Id. ¶ 63. Plaintiffs read this press release as Defendants’ statement verifying that Defendants knew that the practice of “unlocking” was negatively affecting Synchronoss’ revenue long before May 6, 2008. See Dismissal Opp., at 8-9.
5. On the same day, that is, on May 6, 2009, Defendants had another earnings call. During that call, Waldis, in response to an analyst’s question “[A]re you basing your expectations for the year on a run-rate basis from where you are right now or with further degradation of activation rates from where you are now given the trending?” stated:
Well, we certainly think of — as I said earlier, we definitely see ourselves at an at least 10 million annual run-rate exiting the year as it relates to the iPhone.... Obviously, getting the surprise in January and February, we looked at it and wanted to make sure that as far as forecasting going forward, that we accounted for it, maybe conservatively. If it ends up being better, that would be great. But ... we’ll at least end with a $10 million run-rate at the end of the year. *385 Compl. ¶ 66 (emphasis supplied by Plaintiffs); Dismissal Mot., Ex. 9. Same as with regard to Defendants’ May 6, 2009, press release, Plaintiffs read Waldis’ phrase “getting the surprise in January and February” as an indication that Defendants knew about the effect the practice of “unlocking” was taking on Synehronoss’ revenue in January and February of 2008, and deduce from the foregoing that Defendants’ projections stated during February 4, 2008 earnings call (and repeated in Synehronoss’ February 4, 2008, press release), as well as Defendants’ figures provided in the February 29, 2008, Report, were false due to Defendants’ failure to take into account the negative effect of “unlocking.” See Dismissal Opp., at 9.
6. Finally, Plaintiffs also make a reference to Synehronoss’ press release of October 25, 2007. Plaintiffs point out that, during the above-discussed May 6, 2008, earnings call, Irving, in response to an analyst’s question, “Can you confirm that you will continue processing iPhone transactions later in this year and that the guide down is strictly related to the number of phones being unlocked and the reduced pricing arrangement around that?” responded with, “I think the best way to answer that ... is that I’ve tried to provide as much information as I could without violating any [non-disclosure agreements (“NDAs”) ] that [Synehronoss has] with [Apple and/or AT & T].” Compl. ¶ 67. Plaintiffs, however, note that Synehronoss’ press release of October 25, 2007, did state the cumulative number of iPhones activated by that date via Convergence-Now (which, Plaintiffs guess, might have been a violation of the very same NDAs to which Irving referred on May 6, 2008). See id. ¶ 37. Consequently, Plaintiffs compare Synehronoss’ October 25, 2007, disclosure of the cumulative number of activated iPhones with the statement made by Irving during the May 6, 2008, earnings call and conclude as follows:
[A]fter the third quarter 2007 earnings announcement, Synehronoss changed its practice and stopped disclosing to investors how many iPhones it had activated in any period notwithstanding its prior practice of doing so. Indeed, despite the importance of the iPhone contract as a whole, Synchronoss did not separately disclose its revenue from that or any other contract. Rather, citing non-disclosure agreements with its customers, Synehronoss informed investors only of its total revenue from operations for each quarter. Therefore, at no point during the Class Period were investors able to determine for themselves the number of iPhones that were being activated versus those that were being unlocked. [ 28 ]
*386 Compl. ¶ 43; accord Dismissal Opp., at 7.
c. Plaintiffs’ Additional Contentions and Legal Claims
Plaintiffs also assert that
[Waldis and Irving] were ... motivated to engage in the fraudulent scheme in order ... to sell their personally held Synchronoss common stock ... at artificially inflated prices while they [knew that the practice of “unlocking” was taking a toll on Synchronoss’ revenue]. The following chart sets forth the [stock sales] by [Waldis and Irving] during the [C]lass [P]eriod:
[Waldis:] [Irving:]
[May 2008 — ] 6,000 [shares] ... 3,080 [shares]
[April 2008 — ] 54,000 [shares] ... 6,160 [shares]
[March 2008 — ] 12,000 [shares] ... 3,080 [shares]
[February 2008 — ] 12,000 [shares] ... 1,100 [shares]
Total: 84,300 [shares] ... 13,420 [shares]
Compl. ¶ 83.
Basing their legal claim» on these figures (and, obviously, on all other allegations discussed supra), Plaintiffs claim that Defendants’ actions amounted to violations of Section 10(b) of the Exchange Act and of Rule 10b-5. See id. ¶¶ 98-109. Plaintiffs also claim that, in light of the foregoing, Waldis and Irving — being top executive officers and, thus, in control of Synchronoss — violated Section 20(a) of the Exchange Act. See id. ¶¶ 110-13.
Finally, Plaintiffs maintain as follows:
The statutory safe harbor provided for forward-looking statements ... does not apply to any of the ... statements [made by Defendants since] many of the[se] ... statements ... were not identified as “forward-looking statements” when made. [Moreover,] to the extent there were any forward-looking statements, there were no meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the purportedly forward-looking statements. Alternatively, ..., [Defendants are liable for [their], false forward-looking statements because[,] at the time [these] statements [were] made, the ... speakers] knew that [their] forward-looking statements were] false ....
Id. ¶ 96. 29
2. Defendants’ Position
Defendants maintain that Plaintiffs’ claims should be dismissed on various *387 grounds. See, generally, Dismissal Mot., Dismissal Reply. First, addressing Plaintiffs’ claims related to Defendants’ forward-looking statements, Defendants point out that these forward-looking statements were: (a) accompanied by sufficient cautionary language, which immunizes the speaker from liability regardless of the speaker’s state of mind, see Dismissal Mot., at 14-20; Dismissal Reply, at 4-9; and (b) in any event, the statements at issue were made by Defendants without the requisite state of mind. See Dismissal Mot., at 20-34; Dismissal Reply, at 9-18. In addition, Defendants argue that Plaintiffs’ other group of claims — namely, the group of claims asserting that Defendants’ statements were misleadingly incomplete — should also be dismissed on the grounds of: (a) being insufficiently pled; and (b) allegedly existing Synchronoss’ NDAs with Apple/AT & T that, Defendants believe, legally prevented Synchronoss from disclosure of certain information. See Dismissal Mot., at 34-43; Dismissal Reply, at 18-28. Finally, Defendants point out that Plaintiffs “failfed] to allege that any other statement made by Defendants was false, let alone knowingly false.” See Dismissal Mot., at 43-45; Dismissal Reply, at 28-29. In light of the foregoing, Defendants conclude Synchronoss committed no violations of Section 10(b) and/or Rule 10b-5 and, consequently, Waldis and/or Inving’s have no personal liability under Section 20(a). See Dismissal Mot., at 45; Dismissal Reply, at 29.
Defendants’ submissions arrived accompanied by numerous exhibits and appendices, replicating a multitude of Synchronoss’ filings made with the Securities and Exchange Commission (“SEC”), transcripts of those Synchronoss’ earnings calls, excerpts which were pled in the Complaint, and various newspaper articles and reports of financial analysts (arriving to conclusions qualitatively different from, if not outright opposite to, the conclusions asserted in the Complaint as opinions of “journalists, analysts and investors”). 30 See, generally, Docket Entries Nos. 24 and *388 30. However, Defendants’ alleged NDAs with Apple/AT & T were neither included in these appendices nor sought to be filed, even under seal. See, generally, id. It appears that Defendants’ reliance on these allegedly existing but thus-far undisclosed NDAs was the reason for Plaintiffs’ Strike Motion.
*387 [[Image here]]
*388 B. Strike Motion
Specifically, on June 5, 2009, Plaintiffs filed — -jointly with their Opposition to Defendants’ Dismissal Motion — Plaintiffs’ Strike Motion requesting the Court to strike Defendants’ arguments based on these NDAs. See Docket Entry No. 27. That filing caused Defendants to submit— together with their Reply to Plaintiffs’ Dismissal Opposition — Defendants’ Strike Opposition, see Docket Entry No. 31, which— in turn — caused the filing of Plaintiffs’ Strike Reply. See Docket Entry No. 32.
In a nutshell, Plaintiffs moving and reply points can be summarized as follows:
1. Defendants’ Dismissal Opposition frequently asserts, as either an established — or, at the very least, as a pled fact — that Defendants were prevented from disclosing certain statistical information about iPhone sales (as well as about Synchronoss’ future plans) by these thus-far undisclosed NDAs, see Strike Mot., at 1;
2. However, the legal binds ensuing from these NDAs cannot be judicially noticed since the content of these NDAs was never disclosed publically (or even to Plaintiff only, e.g., by filing under seal), see id. at 2, 5; and even if Defendants’ Dismissal Motion is converted into a motion for summary judgment, Plaintiffs would still be entitled to discovery with respect to these NDAs, see id. at 2-3, 5-6; and
3. Since the content of these NDAs is neither an integral part of Plaintiffs’ factual assertions nor subject to judicial notice, nor is it amenable to a summary ruling prior to Plaintiffs’ completion of relevant discovery, Defendants’ arguments suggesting that Defendants could not be liable for failure to make certain disclosures because of these NDAs should be stricken from Defendants’ Rule 12(b) Motion to Dismiss. See id. at 2-4, 6; accord Strike Opp.
Defendants, in response, maintain that Plaintiffs’ Strike Motion is without merit for the "following reasons:
1. Instead of requesting the Court to strike any particular exhibit attached to or relied upon by Defendants, Plaintiffs move this Court to strike Defendants’ argument, i.e., to strike nothing but “words”, 31 see Strike Opp., at 1;
2. Defendants believe that this Court should accept Defendants’ factual assertion as true because the pleading requirements prevent the Court from considering Plaintiffs’ self-serving conclusory allegations, 32 see id. at 3-6, 10-12;
*389 3. Defendants’ arguments based on the NDAs are warranted because Plaintiffs used certain language in their Complaint that included references to these NDAs, specifically, when Plaintiffs made the following allegations:
[O]n October 25, 2007, ... Waldis ..., when asked about the gap between iPhones sold and activated, ... stated that he was prevented from sharing specifics “due to NDA obligations” .... [Also, during] the May 6, 2008 call, ... Waldis stated: ... “[W]e cannot share the specifics due to NDA obligations.... We’re not allowed to discuss any of the details [relevant to] the NDA....” [In addition, Irving stated during that call:] “I’ve tried to provide as much information as I could without violating any NDAs that we have with our customer” ...
Strike Opp., at 6-7 (quoting Compl. ¶¶ 37, 65-67);
4. Defendants believe that the Court can take judicial notice of — apparently — both the existence of these NDAs and the scope/application of these NDAs (seemingly, as the scope/application of these NDAs is defined by Defendants) simply because: (a) as a general matter, “courts can [take] judicial notice of information that was publicly available to reasonable investors”; and (b) Defendants repeatedly and publieally made references to their alleged NDAs when Defendants made public statements; Strike Opp., at 9-10; and
5. Plaintiffs’ request for conversion of the Dismissal Motion into a motion for summary judgment (with ensuing Plaintiffs’ discovery rights) is without merit.
See id. at 12-15.
IV. DISCUSSION
A. Strike Motion
The Court will address the parties’ contentions in conjunction with discussion of the pertinent Rules of Evidence and Rules of Civil Procedure.
1. Evidentiary Aspects
Both at common law and under the Federal Rules, most proof is presented by means of testimonial evidence or by the offering documentary evidence.
But there is an exception to the requirement that a party who relies on a certain proposition must prove it; judicial notice. Rule 201 of the Federal Rules of Evidence governs judicial notice, 33 providing that *390 facts noticed may not be subject to reasonable dispute and specifying certain procedural requirements that must be followed.
Rule 201(b) ... permits a district court to take judicial notice of facts that are “not subject to reasonable dispute in that [they are] either[:] (1) generally known within the territorial jurisdiction of the trial court[;] or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Rule 201(b).
In re NAHC, Inc. Sec. Litig.,
Conversely, judicial notice is improper if a legitimate question exists as to the underlying source of the information.
See Hinton v. Dep’t of Justice,
Hence, while the statements made by Synchronoss in its filings made with the SEC are properly subject to judicial notice, the opinions of analysts or reporters cannot be noticed for the truth of the matter stated therein: only the fact that these opinions were published can be noticed. By the same token, while the statements contained in the Complaint (indicating that Waldis and Irving issued certain written statements and made certain oral utterances) are amenable to judicial notice, Defendants’ claims (that their NDAs exist and that the terms of these NDAs both relate to Synchronoss’ statements and prevented Defendants from making certain disclosure) cannot be judicially noticed: this is so simply because neither the existence of these NDAs nor their content is verified by the record or admitted by Plaintiffs. Indeed, it would be wholly anomalous for the Court to conclude that Defendants were actually subject to certain legal bonds if the Court has nether any information about the content of these bonds nor can the Court even establish that these bonds existed in actuality.
36
See, e.g., Hardy v. Johns-Manville Sales Corp.,
2. Procedural Aspects
The Federal Rules of Civil Procedure permit an early challenge to the legal sufficiency of the allegations of a claim under both Rule 12(b)(6) and (c). When a defendant successfully challenges the plaintiffs legal entitlement to the relief demanded, even if all well-pleaded facts are taken in the light most favorable to the plaintiff, Rule 12(b)(6) permits a judgment as a matter of law in favor of the defendant. As one court put it, “[l]ike a battlefield surgeon sorting the hopeful from the hope
*392
less, a motion to dismiss invokes a form of legal triage, a paring of viable claims from those doomed by law.”
Iacampo v. Hasbro, Inc.,
Of greater importance as a true summary adjudication method is a Rule 12(b)(6) motion which challenges the plaintiffs entitlement to relief upon the legal theory pleaded. For example, a plaintiff seeking recovery under a theory of negligent infliction of emotional distress under circumstances in which the governing law would not recognize the cause of action— under the facts as they are pled — may suffer judgment as a matter of law because recovery simply cannot be had as alleged.
Rule 12(c) similarly permits an adjudication based purely on the allegations of the pleadings, be these pleadings either the complaint or the answer.
37
Indeed, this motion is particularly useful when the answer admits the allegations of the complaint, for example that a debt is owed as claimed, but raises a defense that is insufficient in law.
See, e.g., St. Mary’s Honor Ctr. v. Hicks,
Hence, both Rule 12(b) and Rule 12(c) motions are “summary 'proceedings” on the merits in the sense that they deal directly with the existence of a meritorious claim or defense.
See
Labaton and Stern-berg,
Using and Protecting Against Rule 12(b)(6) and Rule 9(b) Motions,
4 Practical Litig. 79 (1993); Hamabe,
Functions of Rule 12(b)(6) in the Federal Rules of Civil Procedure: A Categorization Approach,
15 Campbell L.Rev. 119 (1993). That is why the Court of Appeals stated that, “[ujnder Rule 12(c), judgment will not be granted unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.”
Bayer Chems. Corp. v. Albermarle Corp.,
Here, Defendants’ NDAs-related assertions introduced in the Dismissal Motion (i.e., assertions that Defendants’ refusal to disclose certain information was proper because of the existence, content and application of the alleged NDAs) are, effectively, assertions of the type that could only be included, as a defense, in Defendants’ answer rather than in their Rule 12(b) motion. Hence, it is hardly surprising that— being presented with Defendants’ quasi-answer statements meshed into Defen *393 dants’ Dismissal Motion- — Plaintiffs mounted a quasi-Rule 12(c) challenge, although they labeled their application “Motion to Strike.” In light of the foregoing, it appears self-evident that, at the instant juncture, Plaintiffs’ Strike Motion should be dismissed as premature. If this matter proceeds past Rule 12(b) dismissal stage, and Defendants’ answer raises the alleged NDAs as a defense, then Plaintiffs can renew them motion under Rule 12(c), or either side can seek a full or partial summary judgment on the grounds of these NDAs, that is, provided that neither the existence nor the scope/application of these NDAs is in dispute.
B. Dismissal Motion
1. Pleading Requirements
The standard of review under Rule 12(b)(6) is well-settled: the question is whether the plaintiff should be given an opportunity to offer evidence in support of plaintiffs claims, not whether the plaintiff will ultimately prevail in a trial on the merits.
See Scheuer v. Rhodes,
a. Rule 8 Pleadings
It is long established that a court should “accept as true all of the [factual] allegations in the complaint and reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff.”
Morse v. Lower Merion School Dist.,
Last year, addressing the clarifications as to the litigant’s pleading requirement stated by the United States Supreme Court in
Bell Atl. Corp. v. Twombly,
“While a complaint ... does not need detailed factual allegations, a plaintiffs obligation [is] to provide the ‘grounds’ of his ‘entitlefment] to relief____” Twombly,127 S.Ct. at 1964-65 ... “[T]he threshold requirement of Rule 8(a)(2) [is] that the ‘plain statement [must] possess enough heft to ‘sho[w] that the pleader is entitled to relief.’ ” Id. at 1966. [Hence] “factual allegations must be enough to raise a right to relief above the speculative level.” Id. at 1965 & n. 3
Id.
at 230-34 (original brackets removed). This pleading standard was further refined by the United States Supreme Court in its recent decision
Ashcroft v. Iqbal,
— U.S. -,
[In any civil action, t]he pleading standard ... demands more than an unadorned [“]the-defendant-unlawfully-harmed-me[”] accusation. [Twombly, 550 U.S.] at 555,127 S.Ct. 1955 .... A pleading that offers “labels and conclusions” or “a formulaic recitation of the *394 elements of a cause of action will not do.” [Id.] at 555,127 S.Ct. 1955 . [Moreover,] the plausibility standard ... asks for more than a sheer possibility that a defendant has acted unlawfully. Id. [Indeed, even w]here a complaint pleads facts that are “merely consistent with” a defendant’s liability, [the so-alleging complaint still] “stops short of [showing] plausibility of ‘entitlement to relief.’” Id. at 557,127 S.Ct. 1955 (brackets omitted). [A fortiori] the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions [or to t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements[, ie., by] legal conclusion^] couched as a factual allegation [e.g.,] the plaintiffs’ assertion of an unlawful agreement [or] that [defendants] adopted a policy “ ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”____ [W]e do not reject these bald allegations on the ground that they are unrealistic or nonsensical. ... It is the conclusory nature of [these] allegations ... that disentitles them to the presumption of truth.... [Finally,] the question [of sufficiency of] pleadings does not turn [on] the discovery process. Twombly, 550 U.S.] at 559,127 S.Ct. 1955 .... [The plaintiff] is not entitled to discovery [where the complaint alleges any of the elements] “generally,” [ie., as] a conclusory allegation [since] Rule 8 does not [allow] pleading the bare elements of [the] cause of aetion [and] affixfing] the label “general allegation” [in hope of developing facts through discovery],
Iqbal,
The Third Circuit observed that
Iqbal
provided the “final nail-in-the-coffin” for the “no set of facts” standard set forth in
Conley v. Gibson,
First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal conclusions. [See Iqbal,129 S.Ct. at 1949-50 ]. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief’ [in light of the definition of “plausibility” provided in Iqbal] In other words, a complaint must do more than allege the plaintiffs entitlement to relief. A complaint has to “show” such an entitlement with its facts. See Phillips,515 F.3d at 234-35 . As the Supreme Court instructed in Iqbal “[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it *395 has not ‘show[n]’-‘that the pleader is entitled to relief.’” Iqbal, [129 S.Ct. at 1949-50 (emphasis supplied) ]. This “plausibility” determination will be “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
Fowler,
b Pleading Under Rule 9 and the Reform Act
In comparison to Rule 9, Rule 8— even as interpreted in
Iqbal
and clarified in
Fowler
— still sets forth merely the floor pleading standard, simply because the very language of Rule 9 imposes a heightened pleading requirement by demanding factual
particularity
with respect to allegations of fraud.
40
“This particularity requirement has been rigorously applied in securities fraud cases.”
Burlington,
The Third Circuit clarified:
[although Rule 9(b) falls short of requiring every material detail of the fraud such as date, location, and time, plaintiffs must use “alternative means of injecting precision and some measure of substantiation into their allegations of fraud.”
Rockefeller Ctr. Props. Sec. Litig.,
In addition to the Rule 9(b) requirements, a plaintiff alleging securities fraud must comply with the heightened pleading requirements of the Reform Act. See 15 U.S.C. § 78u-4(b)(l) and (b)(2). Specifically, § 78u-4(b)(l) of the Reform Act requires the plaintiff to detail the facts indicating the falsity of the challenged statement. See 15 U.S.C. § 78u-4(b)(l) (the plaintiff must “specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed”). Similarly, the Reform Act requires that “the complaint shall, with respect to each act or omission ..., state with particularity [all] facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2).
Consequently, Rule 9 and the Reform Act modified the traditional Rule 12(b)(6) analysis. “ ‘[W]hereas under Rule 12(b)(6), we must assume all factual allegations in the complaint are true ... under the Reform Act, we disregard ‘catch-all’ or ‘blanket’ assertions that do not live up to the particularity requirements of the statute,’ ” even if these assertions meet the
Iqbal-deñned
Rule 8 pleading requirements.
Rockefeller Center,
Two years ago, in
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
2. Substantive Law
Section 10(b) proscribes the “use or employ[ment], in connection with the purchase or sale of any security, ... [of] any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe.” 15 U.S.C. § 78j(b). The ensuing Rule 10b-5, 17 C.F.R. § 240.10b-5, makes it illegal “[t]o make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made in the light of the circumstances under which they were made, not misleading ... in connection with the purchase or sale of any security.” 17 C.F.R. § 240.10b-5(b).
While “[t]he private right of action under Section 10(b) and Rule 10b-5 reaches beyond statements and omissions made in a registration statement or prospectus or in connection with an initial distribution of securities and creates liability for false or misleading statements or omissions of material fact that affect trading on the secondary market,”
Burlington,
*397 a. Element Pled Pursuant to Rule 8: Materiality
The test of materiality depends not upon the literal truth of statements but upon the ability of reasonable investors to become accurately informed,
see McMahan & Co. v. Wherehouse Entertainment, Inc.,
The fact that materiality is determined in context means that a purchaser or seller of securities is not necessarily entitled to all information relating to each of the circumstances surrounding the transaction.
See Acito v. IMCERA Group,
b. Elements Pled Pursuant to Rule 9
While the Reform Act mandates heightened pleading requirements as to the scienter element, loss causation is not one of the § 10(b) elements with respect to which the Reform Act imposes a more stringent pleading requirement.
See In Re Mutual Funds Invest. Litig.,
i. Reliance
The reliance requirement is a corollary of materiality.
See Semerenko v. Cendant Corp.,
The court in
Cammer v. Bloom,
Since the New York and American Stock Exchanges are examples of open and developed securities markets, see id., and Synchronoss’ common stock is registered with the United States Securities and Exchange Commission and traded on the NASDAQ, 41 the case at bar is subject to both the Efficient Capital Market Hypothesis and the fraud on the market presumption.
ii. Scienter
Rule 10b-5 describes the type of conduct proscribed but it does not set out the appropriate standard of culpability. The Supreme Court held in
Ernst & Ernst v. Hochfelder,
Since scienter is based on the defendant’s state of mind and, as such, may be
*399
difficult to prove without direct evidence, courts are willing to permit inferences that the defendant acted with the requisite scienter.
See, e.g., Fine v. American Solar King Corp.,
A plaintiff may establish the requisite strong inference of fraudulent intent in one of two ways: (1) by alleging facts “establishing a motive and an opportunity to commit fraud”; or (2) “by setting forth facts that constitute circumstantial evidence of either recklessness or conscious behavior.”
Advanta,
Under this pleading standard, a plaintiff may not rely on facts indicating that the defendant had certain goals or aspirations common to the aspirations held by law-abiding business community: such goals or practices cannot amount to a valid motive for the purposes of showing scienter.
See GSC Partners CDO Fund,
While the aforesaid pleading requirement is quite stringent, the plaintiff in a securities fraud action can support his/her complaint by using information attributed to confidential sources.
See Novak,
Elaborating on this latter scenario, the Third Circuit explained that the complaint must disclose: (1) the time period during which the confidential source worked at the defendant-company, (2) the particular dates on which the relevant information was acquired, and (3) the facts thoroughly detailing how the source obtained access to the information at issue.
See Cal. Pub. Emples’. Ret. Sys. v. Chubb Corp.,
iii. Forward-looking Statements
The above-discussed requirement to prove scienter is reflected in Section 21E of the 1934 Act, 15 U.S.C. § 78u-5(c), which provides guidance to corporate managers wishing to issue forward-looking projections without risking legal liability. To be protected by 15 U.S.C. § 78u-5(c), an issuer (or the issuer’s agents) must identify all written or oral forward-looking statements as forward-looking (or couch these statements in such terms that the forward-looking nature of these statements would be self-evident to a reasonable investor),
44
see Clorox Co. Secs. Litig.,
When the plaintiff challenges a forward-looking statement made by the defendant, the plaintiffs mere usage of catchwords or bold assertions that defendant’s statement was false or misleading because the defendant knew — or should have known — the statement to be false or misleading cannot lend support to plaintiffs claim.
See GSC Partners CDO Fund v. Washington,
It shall also be noted that a company’s management is not responsible for opinions, projections and estimates of security analysts, even if the management may have supplied the analysts with some of the information they used to formulate their estimates,
47
unless the plaintiff sets forth facts indicating that the management either: (1) retained the services of the analysts; or (2) passed a clear misinformation to the analysts with intention that the analysts would communicate the misinformation to the market.
See V-Mark Software, Sec. Litig.,
Finally, “general statements of optimism ‘constitute no more than puffery, and [being] understood by reasonable investors as such,’ ” cannot amount to fraudulent information.
Advanta,
iv. Omissions
“When an allegation of fraud is based upon nondisclosure, there can be no fraud absent a duty to speak [since a] duty to disclose under § 10(b) does not arise from the mere possession of nonpublic market information.”
48
Chiarella v. United States,
“Silence, absent a duty to disclose, is not misleading under Rule 10b-5.” Basic, Inc. v. Levinson,485 U.S. 224 , 239 n. 17,108 S.Ct. 978 ,99 L.Ed.2d 194 (1988); see also Burlington,114 F.3d at 1432 (“Ex *404 cept for specific periodic reporting requirements ... there is no general duty on the part of a company to provide the public with all material information”). Such a duty to disclose may arise when there is [an incident of] insider trading, [or presence of] a statute requiring disclosure, or [there was] an inaccurate, incomplete or misleading disclosure [requiring a corrective statement]. See Glazer v. Formica Corp.,964 F.2d 149 , 157 (2d Cir.1992); Backman v. Polaroid Corp.,910 F.2d 10 , 12 (1st Cir.1990) (en banc); General Motors Class E Stock Buyout Sec. Litig.,694 F.Supp. 1119 , 1129 (D.Del.1988).
Oran v. Stafford,
c. Liability of Controlling Person
Section 20(a) of the 1934 Act, 15 U.S.C. § 78t(a), states that “[e]very person who, directly or indirectly, controls any person liable [for securities fraud] shall also be liable jointly and severally with and to same extent as such controlled person.” 15 U.S.C. § 78t(a). Thus, for a controlling person to be liable, the person over whom control was exercised must have committed a primary violation of the securities laws.
See Merck & Co. Sec. Litig.,
3. Claims Based on Defendants’ Forward-Looking Statements
Defendants maintain that they are not liable for the alleged falsity of their forward-looking statements because: (a) each of these statements was accompanied by a sufficient cautionary language; and/or (b) each of these statements was made without scienter. See generally, Dismissal *405 Mot., at 14-34. However, while — as detailed below — Defendants’ position appears factually warranted and legally valid with regard to some of Plaintiffs’ challenges, Defendants’ arguments are factually and legally inapposite to Plaintiffs’ challenges based on those occurrences which Plaintiffs elects to qualify as forward-looking statements about Synchronoss’ projected involvement in the off-site activation of the iPhone 3G. The Court, therefore, begins its discussion with this line of allegations,
a. Future Projections Allegedly Related to the iPhone 3G
It appears that Plaintiffs base this line of allegations on the following occurrences:
a. Publication of certain unspecified statements made, presumably, by Defendants on unspecified dates prior to the Class Period. 50 Plaintiffs: (i) first deduced from the unspecified language of these unspecified statements that Synchronoss decided to “widely publicize” its 2007 multi-year contract with Apple/AT & T, pursuant to which Synchronoss’ ConvergeneeNow was utilized to support the launch and ongoing operational of “the Apple iPhone”; and (ii) then deduced from their prior deducement that, since this “wide publication” utilized the phrase “the Apple iPhone,” the publication expressed Synchronoss’ position that its software would be utilized in off-site activation of either all future models of the iPhone or, at the very least, of the iPhone 3G;
b. Rise of certain rumors of unspecified content and of equally unspecified origin about upcoming release of the iPhone 3G. Plaintiffs — as well as certain financial analysts and/or journalists unrelated to Defendants, upon whose opinions Plaintiffs elected to rely- — first deduced from these rumors that the iPhone 3G would necessarily be available for off-site activation, and then deduced from their prior deducement that Synchronoss’ Convergence-Now (or some other Synchronoss’ software) would necessarily be utilized for such activation of the iPhone 3G;
c. On February 4, 2008, Waldis stated:
“We are extremely pleased with the continued high level performance that our ConvergeneeNow [program] has delivered [for the purposes of] activation of the Apple iPhone.” Plaintiffs, again, deduced from this statement— and from Waldis’ usage of the phrase “the Apple iPhone” — that: (i) the
iPhone 3G would necessarily be available for off-site activation; and (ii) Synchronoss’ software would necessarily be utilized for such activation;
d. Similarly, when — on February 4, 2008 — Irving forecasted Synchronoss first-quarter-of-2008 revenue at $30 to 32 million, and full revenue for the year 2008 at $151 to $160 million, Plaintiffs, too, deduced from these figures that Irving must have made this financial assessments on the premise that this particular revenue could not be obtained by Synchronoss unless Synchronoss is involved in off-site activation of the iPhone 3G. Plaintiffs made an identical chain of deducements from Synchronoss’ February 29, 2008, Report that repeated the dollar figures uttered by Irving; and
e. In the same fashion, Plaintiffs deduced from Irving’s general statement of optimism (“we are more optimistic about [Synchronoss’] long-term future than at any point in our history”) and from Waldis’ generic optimistic statement
*406 (“Synchronoss is well positioned to benefit from multiple growth opportunities’ and [that he] was ‘optimistic about [Synchronoss’] ability to take advantage of those opportunities based on Synchronoss’ unique Convergence-Now”) the familiar two conclusions, namely, that: (i) the iPhone 3G would necessarily be available for off-site activation; and (ii) Synchronoss’ ConvergenceNow would necessarily be utilized for such activation.
Defendants’ position (e.g., that the statements challenged were accompanied by a sufficient cautionary language) cannot be true with regard to, at the very least, the alleged rumors (since Defendants’ had no means to inject any cautionary language into someone else’s rumors), and the Court has no way to establish the presence of any cautionary language in the unspecified Defendants’ statements (where Synchronoss, allegedly, “widely publicize” its multiyear involvement in “the Apple iPhone”). However, neither the issue of the cautionary language nor even that of scienter has any relevance to the occurrences discussed in all the above-listed subparagraphs, (a) to (e), since each and every allegation made by Plaintiffs fails to point out any
false statement by Defendants:
rather, all these allegations point to
false deducements made by Plaintiffs
and/or by the journalists and analysts upon those whose opinions Plaintiffs elected to rely. Consequently, Plaintiffs’ allegations are facially insufficient.
Accord V-Mark Software, Sec. Litig.,
Moreover, neither the fact of Synchronoss’ publicized pride in its contract with Apple/AT & T (even if true), nor Waldis and Irving’ pride in — and/or optimism about — the performance of Convergence-Now or Synchronoss’ market position and business future, can qualify as a statement falsely indicating that Synchronoss would be involved in activation of the iPhone 3G. Not only do these statements present immaterial puffery incapable of resulting in legal liability,
see Advanta,
Simply put, Plaintiffs invite this Court to find the Rule 9 / PSLRA degree of falsity in those statements of Defendants that did not even mention the alleged object of falsity. The Court declines the invitation. Stripped of all niceties, Plaintiffs’ assertions as to Defendants’ allegedly false projections with regard to Synchronoss’ upcoming off-site activation of the iPhone 3G succeed in alleging nothing more than Plaintiffs’ bare disappointment with the fact that Plaintiffs’ financial hopes (and the projections of the journalists and analysts whom Plaintiffs wanted to believe) turned out false. However, the law of securities does not equate the falsity of Plaintiffs’ projections (or the falsity of projections made by the press not associated with Defendants) with the falsity of Defendants’ projections. Therefore, Plaintiffs’ allegations as to Defendants’ allegedly false future projections asserting that Synchronoss would be involved in and get revenue from off-site activation of the iPhone 3G will be dismissed.
b. Future Projections Allegedly Related to “Unlocking”
i. “False Failure to Project” as a Cause of Action
Left unaddressed in the discussion provided above are Plaintiffs’ assertions that Defendants are liable to Plaintiffs by “not projecting otherwise,” ie., by not making projections different from the iPhone 3G-related rumors — or from Plaintiffs’ own iPhone 3G-related beliefs — as to Synchronoss’ future.
It appears from the arguments stated in the Complaint and Plaintiffs’ Opposition Brief that Plaintiffs are of opinion that a securities defendant might be liable for failing to make a certain forward-looking projection. If so, Plaintiffs err. As the pages of this Court’s extensive discussion of substantive law clarified, a securities defendant — under certain circumstances — might be liable for either: (a) the falsity of its statements about the current/past state of affairs; or (b) a failure to correct its prior statements about the curreni/past state of affairs; or (c) the falsity of actually made future projections. The law of securities, however, does not recognize liability for “false failure to predict”: such hybrid cause of action interjecting the liability based on an omission into the liability for false forward-looking statements is simply not cognizable. 51
Here, however, Plaintiffs’ claim exactly that,
ie.,
that Defendants somehow failed to predict that the iPhone 3G would not be offered for off-site activation and, thus, Synchronoss might not get revenue from Apple/AT & T’s launch of the iPhone
*408
3G. This shortcoming appears even more pronounced in Plaintiffs’ claims that Defendants failed to predict — and, thus, failed to factor in — the potential negative effect of “unlocking.” Unadorned by rhetoric, this claim simply blames Defendants for inability to be clairvoyant about one of the infinite number of scenarios under which Synchronoss would not derive the revenue it was hoping to derive. However, since it is well established that “[securities] ‘law does not expect clairvoyance,’ ”
IKON Office Solutions, Inc.,
ii. Insufficiency of Pleadings
Moreover, even if the Court were to ignore Plaintiffs’ reliance on their above-described hybrid “cause of action,” Plaintiffs’ allegations based on Defendants’ alleged failure to predict (and, thus, to factor in) a potential negative effect of “unlocking” would still have to be dismissed.
The threshold shortcoming of this particular claim is that it is facially sophistic, since it asserts a factless premise that the problem of “unlocking” actually was the sole (or predominant) cause for the drop in Synchronoss’ revenue in order to: (a) simultaneously — but tactlessly — assert that Defendants were able to guess this still-to-be-established negative financial impact of “unlocking,” and that Defendants could do it months in advance; and, then (b) to conclude that Defendants either intentionally avoided making such prediction or actually guessed this negative financial impact of “unlocking” correctly but refused to share their guess with the investing public.
However, a multitude of business variables other than the problem of “unlocking” could have affected the revenue Synchronoss was deriving from off-site activations of the iPhone. For instance, the reduction in per-activation compensation (which, as the record demonstrates, came into being after the initial “high-compensation-per-aetivation” period ended) could very well lead to such decline in revenue, even if the number of Synchronoss’ off-site activations of iPhones remained the same or even increased. Or, for example, a swift saturation of the iPhone market (which, according to Plaintiffs’ assertions, was promptly tied by two-year contracts and, thus, ceased purchasing new iPhones) and the following slow trickling-in of new iPhone consumers (who, e.g., purchased their iPhones because of the price reduction) could be the reason for an overall decline in iPhone activations and for the ensuing decline in Synchronoss’ revenue from off-site share of these activations. Alternatively, the difference in mentality and high-tech propensity between the initial purchasers and the later purchasers could, just as well, cause a reduction in off-site activations (and upswing of in-store activations), thus yielding a drop in Synchronoss’ revenue. 52
*409
Plaintiffs, however, ask the Court to adopt Plaintiffs’ factless conclusion that the decline in Synchronoss’ revenue derived from off-site activation of the iPhone was caused solely, or predominantly, by the problem of “unlocking,” and expect the Court to find that these factless allegations show that Defendants somehow knew of — - but intentionally omitted to forecast — this purely hypothetical negative impact. The Court cannot make this finding, since such holding would be unwarranted even under the more lenient pleading requirements of Rule 8.
See Fowler,
iii. Substantive Insufficiency of the Claim
Even if this Court would go one step further and — upon ignoring Plaintiffs’ apparent preoccupation with the problem of “unlocking” as the sole/predominant cause for the decline in Synchronoss’ revenue derived from off-site activations of the iPhone — would simply read Plaintiffs’ claim as asserting that Defendants’ overall financial projections were false, Plaintiffs’ claim would, nonetheless, have to be dismissed.
In addition to generic optimistic statements made by Walsis and Irving on February 4, 2008 (which, as this Court already pointed out, constituted nothing but puffery that could not result in legal liability), Defendants issued three sufficiently precise financial statements: (a) one through Irving, during the February 4, 2008, earnings call (“Earnings Call Statement”); (b) another one through the press release (“Press Release”) published on the same day; and (c) one by filing their February 29, 2008,10-K Report (“Report”). 53
Specifically, the Earnings Call Statement forecasted Synchronoss first-quarter-of-2008 revenue at $30 to 32 million, and the same figures were repeated in the Press Release and Report. However, on May 6, 2008, Synchronoss reported net revenue of $29.1 million for the first quarter of 2008, thus missing its low-bar projection of $30 million by $0.9 million, that is, by 3%. 54 Plaintiffs assert that the Earnings Call Statement, Press Release and Report presented false forward-looking statements. This Court disagrees.
*410
First of all, Plaintiffs fail to allege any facts suggesting “strong inference” of Defendants’ scienter. Indeed, the
3%
difference between the projected quarterly result and that actually achieved cannot be read as evidencing scienter.
55
See IKON Office Solutions, Inc.,
Similarly, Plaintiffs’ assertion that Waldis and Irving profited from sale of their Synchronoss shares provides Plaintiffs’ scienter allegations with an insufficient support, especially in light of the facts that: (a) the trades at issue were made pursuant to Waldis and Irving’s pre-disclosed trading plans; and (b) it is natural for any trader of securities, including insiders, to try to sell their shares at maximum profit.
56
See Rothman,
220 F.3d
*411
81($1.6 million dollar profit from inside trading was not sufficiently unusual to provide an inference of scienter);
see also GSC Partners CDO Fund,
Moreover, even if this Court were to hypothesize that Plaintiffs’ somehow omitted to include in their extensive Complaint facts suggesting “strong inference” of Defendants’ scienter for the purposes of the claims based on Synchronoss’ financial forward-looking statements, Plaintiffs’ claims would still have to be dismissed under the first prong of the safe harbor provision insulating Defendants’ Earnings Call Statement, Press Release and Report from liability as projections accompanied by sufficient cautionary language. 57
While Plaintiffs concede that all Defendants’ financial projections included risk-alerting statements, Plaintiffs nonetheless assert that all these cautionary warnings *412 should not insulate Defendants from liability, since Defendants’ cautionary language is, allegedly, insufficient. 58 Specifically, Plaintiffs maintain that: (a) the risk-alerting language was insufficient because it was not expressly warning the investors that it was addressed to forward-looking-statements, and because the terminology used was “too boilerplate”; and (b) the incorporated-by-reference risk-alerting language contained in Synchronoss’ prior filings dealt with the range of risks which Plaintiffs read as risks different from the one that Plaintiffs deemed as the risk that actually occurred. 59 See Dismissal Opp., at 25.
Both Plaintiffs’ arguments are invalid. With regard to Plaintiffs’ first argument, the Court agrees with Defendants that Plaintiffs’ position is factually unfounded, since the risk-alerting language used in the Earnings Call Statement, Press Release and Report expressly: (a) notified the investors that Defendants were making forward-looking statements,
see
note 57 (quoting the relevant language, short of the pages and pages of the cautions included in the Report);
60
and (b)
*413
provided the audience with not just “boilerplate” discussions but also with incorporated-by-reference extensive risk discussions made in Synchronoss’ other filings made with the SEC.
See Institutional Investors Group v. Avaya, Inc.,
The Court similarly finds Plaintiffs’ second argument without merit, although for reasons different to those advocated by Defendants. Defendants’ maintain that their incorporated-by-reference risk discussions were necessarily sufficient — even if the Earnings Call Statement and Press Release did not specify which particular SEC filings Defendants were referred to— because all Synchronoss’ filings with the SEC contained extensive discussions of multiple risks, comparable to pages and pages of such discussion provided in the Report. See Dismissal Reply, at 6-7. 61 Although the Court agrees with Defendants’ factual and legal points, the Court, however, construes Plaintiffs’ challenge as asserting that none of Defendants’ filings informed the investors about the possibility that Synchronoss’ revenue might drop. See Dismissal Opp., at 25. Such construction allows for:
(a) a reading of Plaintiffs’ challenge to the incorporated-by-reference cautionary language as a challenge based on a “general” decline of Synchronoss’ revenue (that is, if this Court employs the presumption stated at the beginning of this subsection, i.e., that Plaintiffs inadvertently focused on “unlocking” as the sole cause for decline in Synchronoss revenue, while Plaintiffs actually wished to assert that Defendants’ overall financial projections were false); or
(b) a reading of Plaintiffs’ challenge to the incorporated-by-reference cautionary language as a challenge based on the decline of Synchronoss’ revenue solely *414 (or predominantly) as a result of the problem of “unlocking.”
Regardless of whether the Court adopts the first or the second reading, Plaintiffs’ position is without merit. In the “general substantial decline” scenario described in paragraph “(a),” supra, Plaintiffs’ challenges should be construed as asserting that Defendants “boilerplate” and incorporated-by-reference language did not address the multiple general risks, which is factually incorrect. See, e.g., Docket Entry No. 30-3, at 16-23 (replicating Defendants’ Report which extensively details many risks, although not the hypothetical “risk of the problem of unlocking”). Alternatively, in the substantial-decline-only/mainly-as-a-result-unlocking scenario described in paragraph “(b),” Plaintiffs’ arguments fail for the reasons detailed by this Court in the subsection titled “Insufficiency of Pleadings,” that is, for being both a factless and a sophistic claim. 62 Thus, Plaintiffs’ allegations based on the alleged falsity of Defendants’ forward-looking statements as to Synchronoss’ future revenue fail to state a claim, and will be dismissed.
4. Claims Based on Defendants’ Alleged Omissions
As this Court already explained, not every statement containing an “omission,”
ie.,
a statement omitting to disclose information about
current or past
facts, qualifies as a “misleading statement” and entails liability under Rule 10b-5.
See Basic,
The scenario defined in paragraph “(a)” does not seem to be at issue in this matter, since Plaintiffs do not assert that there was/is an underlying provision expressly mandating Defendants to perform disclosure of the particular facts allegedly concealed, and “the Court is not aware of any provision so mandating.” 63 Hence, Plaintiffs’ claims alleging undue omissions by *415 Defendants must, necessarily, be brought under either “(b)” or “(c)” scenarios.
Speaking of the duty to disclose under the “(b)” scenario, the court in
SEC. v. Texas Gulf Sulphur Co.,
Finally, in the “(c)” scenario, that is, in the situation where the defendant’s omission entails liability as a result of the duty to eorreet/update a prior statement, the court invariably begin their analyses by noting that, at the outset, there is an initial duty on the part of the defendant to state accurate information.
See Roeder,
Then, as the next step, the defendant may also have a duty: (a) to verify/deny rumors about the defendant’s operations, but only in the event these rumors were introduced into the marketplace by the defendant or defendant’s agents,
see General Motors,
a. Lack of Duty to Disclose Ensuing from Waldis and Irving’s Trades
Plaintiffs’ Complaint does not articulate any facts verifying that Walsis and Irving traded on confidential material information (be it related to the iPhone 3G or to the problem of “unlocking”) which is shown to be true and known; rather the Complaint tactlessly concludes that such confidential information was in existence and known to Defendants. Consequently, Plaintiffs’ argument is facially circular, in the sense that it is first asking the Court to accept Plaintiffs’ self-serving conclusions that some events were actually true, and then that these hypothetical events became known to Defendants as confidential information, and motivated their trades. As such, Plaintiffs’ argument cannot pass muster even under the more lenient standard of Rule 8, as interpreted in Twombly and Iqbal, and it certainly falls short of the steep pleading requirements set forth by Rule 9 and the PSLRA.
It follows that Plaintiffs’ argument could be based only on facts evincing circumstances so suspicious/anomalous as to suggest that Defendants’ trades during the Class Period were made on the basis of confidential material information. Plaintiffs, however, fail to so allege. Indeed, as Defendants duly point out, Plaintiffs do not dispute that Waldis and Irving were trading during the February to May, 2008, period under Defendants’ trading plans, and' — under the very same plans — Defendants were similarly selling their Synchronoss stock prior to and after the Class Period. The sole factual point which this Court could identify offered in support of Plaintiffs’ position is Plaintiffs’ reference to the exchange of letters between the SEC and Waldis/Synchronoss. However, this reference suffers from both procedural and substantive shortcomings and, consequently, cannot lend support to Plaintiffs’ position.
First, as Defendants correctly observe, Plaintiffs’ reference to the SEC letter was made in Plaintiffs’ Dismissal Opposition, and — regardless of its merits — cannot qualify as a pled fact.
See
Dismissal Reply at 11-12 (citing
Commw. of Pa. ex rel. Zimmerman v. PepsiCo, Inc.,
[in] that letter ..., the SEC had inquired as to why Synchronoss did not include in Synchronoss’s [May 6, 2008] Form 10-Q [a statement expressing Defendants’ opinion] that the gap between the number of iPhones sold and the number activated by Synchronoss would increase [even though Defendants] contemporaneously disclosed that very same information verbally [during the May 6, 2008,] earnings ... call.
Dismissal Reply (basing this statement on the content of Plaintiffs’ exhibit attached to the Dismissal Opposition, which replicated the SEC letter and was docketed in this matter as Docket Entry No. 26-4).
Since the content of the SEC letter neither details any facts about — nor even suggests the presence of — any trading abnormalities by Waldis or Irving, the SEC letter lends no factual support to Plaintiffs’ position. It follows that those allegations which Plaintiffs articulated in their Complaint on the basis of Waldis and/or Irving’s trades in Synchronoss common stock must be dismissed.
b. Allegations as to Omissions and/or Duty to Correct or Update
As the foregoing discussion illustrates, Plaintiffs’ omission-based allegations can *417 not be brought on the grounds of either insider trades or the underlying mandate directing disclosure in light of Plaintiffs’ failure to assert any fact in support of such contentions, which, in turn, leaves Plaintiffs with only the opportunity to state facts asserting that there was a disclosure by Defendants, which was either so incomplete ab initio as to qualify as misleading or which was not updated in a timely fashion. 65 Since both of these options might apply to each of Plaintiffs’ two groups of claims (the iPhone 3G group of claims and the “unlocking” group of claims), and the Court addresses the resulting alternatives seriatim.
i. Omissions as to the iPhone 3G
Plaintiffs’ “omission”-based group of allegations seems to suggest that, either prior to the beginning of the Class Period or, perhaps, sometime during the Class Period, Defendants: (a) came to know, for a fact, that Synchronoss would not be involved in off-site activation of the iPhone 3G; but (b) either omitted to disclose this fact to the investing public ab initio or failed to update their prior disclosure when the circumstances changed. In support of such assertions, Plaintiffs rely on: (a) the fact that Synchronoss made its announcement as to its non-involvement in the iPhone 3G on the day following Apple/AT & T’s announcement to that effect; and (b) statements of Plaintiffs’ undisclosed witnesses. 66
As the Court already detailed in the subsection titled “Allegations Related to the iPhone 3G,” the statements of Plaintiffs’ undisclosed witnesses: (a) allege, as a fact, that, sometimes during the January-to-March of 2008 period, Synchronoss laid off certain permanent employees, some of whom were high-positioned managerial and/or technical staff (“Workforce Fact”); and (b) state an inadmissible quasi-expert opinion (“Quasi-expert Opinion”) asserting that (i) Synchronoss would be unable to perform the task of off-site activation of the iPhone 3G without creating a software different from that used for off-site activation of the original iPhone, plus (ii) the task of creating such new software would be virtually insurmountable without the particular employees who were laid off (even with alternative help from temporary or substitute hires). 67 From the fore *418 going Workforce Fact and Quasi-expert Opinion, Plaintiffs deduce Defendants’ concealment of another presumed fact, i.e., that Defendants knew that Synchronoss would not be involved in off-site activation of the iPhone 3G. In other words, Plaintiffs offer this Court not facts but multiple layers of their self-serving conjecture.
Indeed, the fact that Synchronoss disclosed its non-involvement in off-site activation of the iPhone 3G on the day following Apple/AT & T’s announcement in no way indicates that Defendants knew about Apple/AT & T’s decision prior to that Apple/AT & T announcement: rather, this fact appears indicative of a scenario where — until the very day when Apple/AT & T made its final decision and announcement — Synchronoss was hoping to be involved in off-site activation of the iPhone 3G as a result of the statements from Apple/AT & T that vaguely .suggested continuous utilization of Synchronoss’ software. 68 Consequently, Plaintiffs’ self-serving conjecture based on the timing of Synchronoss’ disclosure cannot qualify as even a plausible claim under Rule 8, as explained in Iqbal, and it certainly cannot meet the pleading requirements of the PSLRA/Rule 9.
Plaintiffs’ allegations based on the fact that Synchronoss was laying off personnel during the January-to-March of 2008 period fare even worse, since an infinite num *419 ber of reasons unrelated to the iPhone 3G (e.g., the undisputed decline in Synchronoss’ revenue starting from the beginning of 2008, the overall decline in the nation’s economy that resulted in a recession half-a-year later, the tendency of the IT industry, as a whole, to lay off permanent staff in order to outsource work from the United States and/or to employ IT specialists on temporary basis, etc.) or a combination of such reasons could yield an identical result, ie., the very same reduction in Synchronoss’ workforce and/or terminations of permanent staff. Consequently, the fact of the alleged lay-offs cannot sustain Plaintiffs’ claims under the Rule 9 and PSLRA pleading standards. 69
Granted the foregoing, the Complaint leaves the Court with no relevant factual allegations showing that, either prior to the beginning of the Class Period or sometimes during the Class Period, Defendants knew what they allegedly omitted to disclose. Yet, Plaintiffs maintain that all Defendants’ statements issued during the Class Period were so incomplete that the result of this nondisclosure that Defendants’ statements should qualify as misleading. Attempting to somehow reconcile such Plaintiffs’ position with the governing legal regime, the Court presumes that Plaintiffs aimed to assert that Defendants’ statements discussing of the original iPhone, being unaccompanied by Defendants’ express statements about Synchronoss’ hopes (and uncertainties) as to its potential involvement in the iPhone 3G, should qualify as an “omissions” rendering Defendants’ statements misleading within the meaning of securities law.
If so, Plaintiffs’ allegations fail to state a claim, perhaps because of Plaintiffs’ misconstruction of the meaning of the term “misleading.” The term “misleading” has an “ascertainable meaning appreciated by ordinary people,”
United States CFTC v. Reed,
Here, Plaintiffs’ Complaint fails to point out a single statement that affirmatively led Plaintiffs in a wrong direction. The only allegations the Court could locate in the Complaint are: (a) Plaintiffs’ systemic discussions of Synehronoss’ usage of the term “Apple iPhone” in Synehronoss’ statements (without the seemingly-preferred-by-Plaintiffs clarification, “the original version of Apple iPhone only”); and (b) Plaintiffs’ observation that Defendants kept expressing pride in Synehronoss’ business achievements and successful performance of ConvergenceNow. However, none of these allegations states facts showing any wrongfulness of Defendants’ statements, be these statements examined as a whole or in pieces.
70
All that Plaintiffs’ allegations suggest is the wrongfulness of Plaintiffs’ interpretation of the issues wholly unrelated to the content of Defendants’ challenged statements. However, since the meaning of the term “misleading” does not turn on the issues unrelated to Defendants’ statements, Plaintiffs’ allegations that Defendants’ statements were misleading
ab initio
(and, thus, subject to immediate correction) will be dismissed.
71
See Burlington,
Plaintiffs’ allegations that Defendants violated the law by omitting to update their prior statements through a disclosure contradicting the rumors (which, allegedly, filled the market confabulating that Synehronoss would be involved in off-site activation of the iPhone 3G) similarly
*421
fail to state a claim. This is so simply because the duty to deny or verify rumors could arise only if Defendants themselves affirmatively introduced these rumors into the market,
see General Motors,
ii. Omissions as to the Change in Synchronoss’ Revenue
The final line of Plaintiffs’ allegations deals with the revenue Synchronoss was deriving from its off-site activations of the original iPhone. As with Plaintiffs’ claims based on Defendants’ forward-looking statements concerning the original iPhone, the group of challenges at hand could be read through the prism of either: (a) Plaintiffs’ seeming preoccupation with the hypothetical predominant impact the process of “unlocking” could have been taking on Synchronoss’ revenue; or (b) those few factual assertions that suggest Plaintiffs’ more general approach, i.e., the allegations intimating a claim that Defendants misled — or failed to update — the investors about the overall decline in the revenue Synchronoss was deriving from the original iPhone.
Read through the prism of Plaintiffs’ emphasis on the problem of “unlocking” as the sole/predominant cause for the decline in Synchronoss’ revenue, Plaintiffs’ allegations fail to state a claim. The shortcomings of these allegations effectively repeat all Plaintiffs’ errors tainting Plaintiffs’ challenges based on Defendants’ forward-looking statements as to Synchronoss’ revenue, and — in addition — repeat all the errors made with regard to Plaintiffs’ challenges based on Defendants’ alleged omissions with regard to the iPhone 3G.
Specifically, Plaintiffs’ allegations start off with Plaintiffs’ conjecture that the problem of “unlocking” — rather than any other problem or a combination of other problems — was the sole or predominant cause for the decline in Synchronoss’ revenue. After that, Plaintiffs’ continue hypothesizing that the problem of “unlocking” was known to Defendant. As a final step, Plaintiffs assert that Defendants’ statements were misleading because Defendants omitted to disclose this hypothetical knowledge to the investors. These exponentially hypothetical allegations, however, cannot state a claim under the requirements of the PSLRA and Rule 9— a legal “adjudication cannot rest on any such ‘house that Jack built’ foundation.”
Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.,
In addition — similar to Plaintiffs’ allegations based on alleged Defendants’ omissions as to the iPhone 3G — Plaintiffs’ claims (asserting that Defendants’ statements as to the original iPhone were misleading either because of Defendants’ initial concealment of the problem of “unlocking” or became misleading while operable due to failure to update) fail to *422 point out to any Defendants’ statement that could have been leading its audience in a wrong direction or even made any reference to the presence — or absence— of the problem of “unlocking.” Consequently, Plaintiffs’ allegations based on the decline in Synehronoss’ revenue, which focus on the problem of “unlocking,” fail to state a claim and will be dismissed accordingly.
The same, however, might not necessarily be true with regard to those Plaintiffs’ facts which loosely sketch a vague claim based on the overall decline of revenue Synehronoss was deriving from its off-site activations of the original iPhone. While articulates with the least degree of clarify — and, perhaps, exactly because of being articulates with such little clarify — this claim does not appear based on merely exponential layers of Plaintiffs’ self-serving conjecture. For instance, Plaintiffs assert two seemingly relevant facts, namely, that: (a) Synehronoss’ revenue from off-site activations of the original iPhone declined sometimes in January of 2008, and the same lower iPhone-related revenue continued throughout the first reporting quarter of 2008 (and, apparently, the remainder of the year); and (b) sometimes after the end of February 2008, Defendants digested Synehronoss’ financial results for January/February of 2008 and recognized that the lower iPhone-related revenue of January and February 2008 was a sign of a systemic trend rather than a mere “market fluke,” and that this very realization caused Walsis to characterize this trendsetting change as “the surprise [Synchronoss received] in January and February.” 72
It is self-evident that, in the event Defendants knew or should have known about this trend-setting change only on May 5, 2008, Defendants could not commit any violation of securities law, since they issued a statement informing the investing public about the trend on May 6, 2008. Conversely, had Plaintiffs alleged facts (“Duty to Update Facts”) showing that the business/accounting operations of Synehronoss were such that Defendants knew or should have known about the financial performance achieved by Synehronoss in January and February of 2008 sometimes pri- or to May 5, 2008, such allegations might suggest that Defendants violated the law by failing to update still operable prior statements. However, while the Court cannot exclude the possibility that Plaintiffs wished to articulate such Duty to Update Facts, Plaintiffs’ convoluted Complaint sets Plaintiffs’ facts in such a fashion that the Court cannot discern which facts, if any, were intended to be these Duty to Update Facts. Similarly, the Complaint does not clarify which particular Defendants’ prior statements, if any, Plaintiffs
*423
deem to be both operable after the end of February 2008 and containing the information that requiring an update about the new trend in revenue. Furthermore, Plaintiffs fail to specify which particular facts stated in the Complaint might be indicative of Defendants’ scienter for the purposes of such failure-to-update claim.
73
In sum, Plaintiffs’ allegations merely “hint” at a claim, rather than state a claim, and shall be dismissed.
See Dura Pharms., Inc. v. Broudo,
C. Leave to Amend
Having thoroughly examined all Plaintiffs’ allegations and finding that each of these challenges is not supported by properly pled facts, this Court now turns to the question of whether Plaintiffs shall be allowed to replead their claims.
Ordinarily, dismissal based on failure to plead fraud with particularity under Rule 9 is without prejudice to a plaintiffs filing an amended complaint to cure the deficient pleading since, under Federal Rule of Civil Procedure 15(a), the plaintiff may be granted “leave [to amend,] ... when justice so requires.”
See Foman v. Davis,
That being said, the Court is mindful of the Supreme Court’s teaching that “[t]he Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits,”
Foman,
The Complaint at hand presents the Court with a hard choice. A forty-one page submission encompassing 113 paragraphs, the Complaint at hand has amended its 29-page 100-paragraph predecessor and represents Plaintiffs’ efforts after almost eleven months of litigation. Yet, short of its least articulated claim challenging, seemingly, Defendants’ failure to update some statements by disclosure of a new trend in Synchronoss’ revenue derived from activations of the original iPhone, the Complaint provides the Court with a web of claims based not on fact but on exponential layers of Plaintiffs’ self-serving conjecture read through erroneous legal standards. In sum, the content of the Complaint, assessed through the procedural posture of this matter, come dangerously close to indicating “a stark absence of any suggestion [that] plaintiffs [may] develop[ ] any facts [to] cure the defects [of their] pleadings [to meet] the heightened requirements of the PSLRA.”
Chubb,
However, weighing the insufficiencies of the pleadings at bar against the possibility that the ambiguities of the Complaint might, nonetheless, be indicative of Plaintiffs’ ability to cure the shortcomings of their Complaint, the Court finds it prudent to allow Plaintiffs an opportunity to re-amend their pleadings. 75 Consequently, Plaintiffs’ allegations against Synchronoss will be dismissed without prejudice. Plaintiffs’ derivative Section 20(a) allegations against Waldis and Irving will be similarly dismissed without prejudice.
Y. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion to Strike, Docket Entry No. 27, will be denied, without prejudice, as premature. Defendants’ Motion to Dismiss, Docket Entry No. 24, will be granted, and Plaintiffs’ Amended Complaint, Docket Entry No. 22, will be dismissed, without prejudice, for failure to state a claim upon which relief can be granted. This matter will be administratively terminated subject to reopening in the event Plaintiffs timely file their re-amended complaint.
An appropriate Order accompanies this Opinion.
Notes
. The Complaint also names two other Defendants, Stephen G. Waldis and Lawrence R. Irving. According to the Complaint, “Stephen G. Waldis ('Waldis') is co-founder, President, Chairman and Chief Executive Officer of Synchronoss [and] has served as President and Chief Executive Officer of Synchronoss since ... 2000.” Compl. ¶ 13. "Lawrence R. Irving ('Irving') was [the] Chief Financial Officer and Treasurer of Synchronoss” during the Class Period. Id. ¶ 14. Both Waldis and Irving sold some of their Synchronoss shares during the Class Period. See id. HV 13-14.
. Synchronoss’ own home webpage describes the company’s lines of business as follows: “Synchronoss Technologies is [a] provider of on-demand transaction management software platforms.” See < <www.synchronoss. com>>. The parties — being, perhaps, too familiar with the technological intricacies underlying the legal issues at hand — outlined the facts in a broad and often highly technical format. See, e.g., Dismissal Mot. at 4 (stating that "Synchronoss is a leading provider of software management platforms,” even though Synchronoss' marketplace position is not an issue in the case at bar, and the term “software platform” is an ambiguous technical term simply meaning a software “basis” upon which either a single or a multitude of other software programs is/are based. For instance, both the celebrated operating system known as "Windows” and an unheard-of program capable of supporting just one other obscure software application, *374 would qualify as "software platforms"). The Court, therefore, finds it useful to set forth the background in more detailed and somewhat layperson’s terms to enable a more precise business and legal discussion.
. The first advertisement for the iPhone was aired four months prior, on February 25, 2007, during the 79th Academy Awards; it featured clips from famous movies and television shows where the characters were answering telephones and saying “hello"; the commercial ended with the line reading "Hello. Coming in June."
. The "iPhone 3GS,” that is, the third generation of the iPhone, was announced as recently as on June 8, 2009; it has an even better performance and features than the iPhone 3G, e.g., the iPhone 3GS includes a camera with video capability and even better image sensors, a voice control, etc. However, the iPhone 3GS has no relevance to the matter at hand.
. The effect of the “lock" feature can be illustrated by the following example: if the owner of a "locked” iPhone tries to leave AT & T *375 and, instead, to use another cellular service provider, his/her iPhone simply would not work. Similarly, if the owner travels abroad and tries to use another company’s cell phone service on his/her iPhone, his/her iPhone would not work either.
. There are two cell phone technologies that are used by the majority of the world's mobile phone service providers: Global System for Mobile communication ("GSM”) and Code Division Multiple Access ("CDMA”). GSM phones use subscriber identity module (“SIM”) cards, which are small physical cards inserted into the handsets; these cards contain the owner's contacts, settings and account information. Theoretically, a phone owner can take his/her SIM card out, put it into another phone, and if someone calls this phone owner’s phone number, then that other phone should ring. However, if a phone is "locked,” it means that the service provider has installed some software on the phone that ties the subscriber ID number on the SIM card to the serial number of that particular handset and — if the SIM card and phone serial number don’t match — the phone simply won’t work. Consequently, the "locked” phone’s SIM card would not work in other phones, and the "locked” phone would not work with other SIM cards.
. There are additional differences as to the (illegality of these processes. However, the matter at hand does not turn on the (illegality of these processes and, hence, does not necessitate any discussion of the Digital Millennium Copyright Act or of the November 17, 2006, decision by the United States Copyright Office, or of any other legal sources addressing this issue.
. The Court need not inquire into any financial relationship between Apple and AT & T, e.g., partnership fees, royalty collections, etc., since these aspects are not implicated in this case.
. See note 16, infra, for discussion of the ambiguities as to the current use of Synchronoss' program.
. Synchronoss' self-activation software/program was, seemingly, an "adopted-to-theiPhone” version of Synchronoss' umbrella program, known as "ConvergenceNow.” See Compl. ¶ 44. (The Court cannot exclude the possibility that Synchronoss’ software referred to in Synchronoss’ reports as "ActivationNow” was the particular software used by Apple/AT & & ; indeed, such name appears more appropriate. However, in light of Plaintiffs' firm assertion that the program was named "ConvergenceNow," the Court is not in a position to question Plaintiffs’ terminology.) Since no other version of Convergence-Now appears relevant to the matter at hand, the Court uses the terms "ConvergenceNow” as the name of the software at issue.
. Simply put, Synchronoss was paid for each iPhone activated via ConvergenceNow: if a consumer purchased an iPhone but did not activate it through ConvergenceNow, Synchronoss did not receive any revenue. For example, regardless of whether an Apple/AT & T salesperson activated the iPhone in the store, or if the iPhone was never activated at all or if it was activated through unlocking, Synchronoss received no payment. See Compl. ¶ 30. Since the process of "jailbreaking” has no relevance whatsoever to the process of activating the iPhone (because it is, by definition, a post-activation process), it has also no relevance whatsoever to Synchronoss' finances. Therefore, short of having the mechanism of "jailbreaking'’ briefly defined in this Opinion (in order to address the parties' reference to it), the Court does not discuss the process at all.
. According to Paragraph 2 of the Complaint, "AT & T accounted for nearly 80% of Synchronoss’ revenue during the Class Period.” According to Paragraph 31 of the Complaint, "AT & T accounted for approximately 76% of Synchronoss’ 2007 revenues.” According to Paragraph 31, "Synchronoss had $123.5 million of revenues in 2007, and the iPhone contributed $40 million of those revenues.” Compl. ¶ 31 (seemingly deducing the figures from the allegations made in ¶¶ 44 and 50). "Therefore, the iPhone was ... contributing nearly one-third of the revenue coming into Synchronoss in 2007.” Id. The Court presumes that — in 2007' — the iPhone-based receipts accounted for the percentage of Synchronoss' gross revenue equal to the share that $40 million constitutes in comparison to $123.5 million.
. The "technical journalists and financial analysts” specified by Plaintiffs are "ThinkEquity Partners LLC” and "C.E. Unterberg,” plus someone referred to as “financial pundit Chris Versace.” See Compl. ¶¶ 34-36, 39. The Court is not clear as to which of these persons/ entities qualifies as a “journalist” and which as "financial analyst,” and how these qualifications were made. (The Court *378 presumes that Plaintiffs refer to themselves and the putative class as the "investors”). However, it appears rather certain from the face of the Complaint that none of these "journalists” or "financial analysts” operated as spokesperson(s) for — or were otherwise retained by / acted as agents of — Defendants.
. While a detailed discussion of Plaintiffs' assertions is provided infra, the Court notes that the logic of Plaintiffs' economic assertion is not clear, since it appears that' — if there was a certain nation-wide "X” market of consumers interested in the iPhone and capable of affording it, the joint effect of: (a) sweeping popularity of the iPhone; (b) lack of competilion from other, less-advanced, smartphones; and (c) dominance of two-year phone contracts, should have yielded, first, a relatively swift saturation of the X market and, then, a rather substantial lull in purchasing (and a corresponding lull in activation) of the iPhones for about two years, i.e., during the time when the bulk of the X market is already tied by these two-year contracts, and the pool of new entrants is slowly trickling in, mainly when — and if — the price of the iPhone drops (i.e., when the size of the X market marginally increases upon absorption of every new market segment which became capable of affording the iPhone as a result of the latest iPhone price reduction).
. The original iPhone, that is, brand new handsets of the original version, stopped being sold in June of 2008 (seemingly, they were pulled off the store shelves sometimes between June 13 and 16 of 2008). However, "second-hand” original iPhones stayed in the market and, it appears, that a legitimate — that is, non-unlocking — activation of these iPhones by their secondhand owners can still be performed online, via iTunes, as it was allowed to the original owners of these handsets. Similarly, it appears that — in the event the in-store activation of new iPhones 3G devices does not work (for whatever reason) — the purchasers of such still-non-activated devices are directed (or, at least, allowed) to activate their iPhones 3G online/off-site, also via iTunes (same as was done with the original iPhones), although the Court is not entirely clear as to whether: (a) such default off-site activation of iPhones 3G was eventually phased out; and (b) such default off-site activation involved ConvergenceNow or ConvergenceNow was replaced by Apple's own off-site activation software. See, e.g., <<http:// artoftheiphone.com/2009/02/10/how-toactivate-a-used-iphone> >; < <http://www. theiphoneblog.com/2008/06/13/ originaliphone-2g-pulled-> >; < chttp:// www.engadget.eom/2008/06/09/iphone-3g-isfinally-official> >; < <http://www.betanews. com/article/iTunes-activation-outages-are-render > >; < <http://www.engadget.com/ 2008/07/11/itunes-activation-servers-go-down> >: < <http://www.boygeniusreport. com/2008/06/09/iphone-3g-the-details-you- > >; < <http://arstechnica.com/apple/news/ 2008/06/memo-hints-at-itunes-activati>>; <<http://arstechnica.com/apple/news/2008/ 06/apple-and-att-drop-online->>. The only relevant information this Court could detect is Plaintiffs-pled Synchronoss' May 6, 2008, projection of $10 million revenue per annum from iPhone activations: this statement might be interpreted as suggesting use of ConvergenceNow for the purposes of at least reactivation of second-hand iPhones (if not for the purposes of default off-site activation of iPhones 3G). Indeed, had it been otherwise, Synchronoss should not be able to derive any revenue from iPhones starting from mid-summer of 2008. Unfortunately, the submissions of both sides are wholly silent as to this— seemingly rather important — fact.
. While the May 6 announcement lowered the value of Synchronoss' common stock by $9.86 per share, the June 10 announcement caused an additional drop of $2.28 per share. See Compl. ¶¶ 4, 6.
. If anything, Defendants' announcement appears to be in line with the possibility that ConvergenceNow was utilized for activation of all second-hand original iPhones (and, perhaps, for default online activation of iPhones 3G, i.e., for activations that could not be performed in store immediately upon the purchase). Accord note 16, supra.
. A virtually identical logical flaw taints Plaintiffs’ assertion that Synchronoss' widely publicized contract with Apple/AT & T necessarily had to lead the investors to the conclusion that Synchronoss' services would be utilized for the purposes of every future model/generation of the iPhone. According to the Complaint, Synchronoss merely "[a]nnounced a multi-year contract with AT & T to support the launch and ongoing operational support of the Apple iPhone.” Compl. ¶ 33 (emphasis supplied). No part of this announcement, at least as it is quoted in the Complaint, includes any statement suggesting, even remotely, that the term "the Apple iPhone" must mean either every future model of the iPhone or the iPhone 3G, rather than the original iPhone only. Indeed, it appears that, to an unbiased observer, the phrase "the Apple iPhone” should mean exactly that: a reference to the original iPhone only rather than to any later version of the iPhone.
. The Court is not entirely clear as to what is the meaning of Plaintiffs’ "2G phone" term since, typically, the term "2G" is used as a reference to second-generation wireless telephone technology (launched in early 1990's), pursuant to which phone conversations were digitally encrypted and text messages were enabled. Since any modern mobile phone is necessarily "2G," and because the original iPhone was less advanced than the iPhone 3G, the Court presumes that Plaintiffs refer to the original iPhone as a "2G phone." However, even with such assumption, it is entirely unclear to this Court why Synchronoss' former Manager of Information Technology was "purchasing ... equipment for the development and launch” of the original iPhone since, even if this Court were to presume that a computer scientist / technical executive (rather than the purchasing department) was, somehow, in charge of the task of conducting such purchasing, this purchasing of equipment for the purposes of creating the original iPhone was done exclusively by Apple and had nothing to do with Synchronoss. The sole task performed by Synchronoss was the creation/adoption of its ConvergenceNow software for the purpose of remote activation— rather than development — of the original (or any) iPhone. In light of the foregoing, the Court is even more unclear as to why the adoption of ConvergenceNow required "million dollars worth of equipment,” since a computer program is an item that might have a substantial intellectual value but is invariably of only nominal physical value, and — to top it all off — a typical process of software development requires little more than a good set computers, routers and brain power of computer programmers, with the latter (rather than the equipment) being the costliest component.
. Indeed, the advancement of the underlying product might have little to do with the complexity of the process needed for the product activation and/or management. See note 16, infra, discussing the possibility that ConvergenceNow might have been indeed utilized (either in its unaltered-from-the-originaliPhone version or in a successfully altered— regardless of Synchronoss' workforce cuts/substitutions — version) for default off-site activation of those iPhones 3G that could not be activated in store upon purchase.
. Plaintiffs also read an accompanying statement made by Waldis, i.e., the statement that Synehronoss was “thrilled to be part of the AT & T-Apple relationship," as an utterance stating that Synehronoss would necessarily be involved in off-site activation of the iPhone 3G. See Dismissal Opp., at 7.
. The Court notes that it is not clear as to Plaintiffs’ reasons for including technical— and, seemingly, irrelevant — accounting and financial terminology (and corresponding accounting and financial data) in the Complaint. For instance, discussing Irving’s statement made during February 4, 2008, earnings call, Plaintiffs provide the Court with the following information:
Defendant Irving also provided the following full year guidance: revenues of $151 to $160 million, gross margins of 56%-S8%, non-GAAP operating margins of 31%-33 %, and GAAP diluted earnings per share of $0.92-$ 1.01.
Compl. ¶ 58 (emphasis supplied).
The term “gross margin” (i.e., "gross profit margin") implies the entity's gross revenue, minus the sum of direct-fixed and direct-variable costs (that is, the costs associated with production and sales). The accounting formula reflecting the same typically reads as “Revenue = Gross Profit + Costs.” See Horngren et al„ Introduction to Financial Accounting 160 (9th ed.2006). It is self-evident that the issue of gross margin arises, in legal context, only if the defendant misrepresents the costs, which is not the case at bar. Similarly, Plaintiffs' reference to "operating margin,” that is, the ratio of operating income divided by revenue, see Karen Berman et al„ A Manager’s Guide to Knowing What the Numbers Really Mean 153 (Harv. Bus. Press 2006), is analogously irrelevant to the case at bar, since the operating income of Synehronoss is not in dispute. In the same vein, the issue of calculating Synehronoss’ diluted earnings per share (that is, the ratio of profit divided by average number of common shares outstanding, with the impact of convertible bonds and granted stock options factored in), see Horngren, supra at 70, is also of no relevance to the matter at hand. Finally, the information that Defendants, allegedly, calculated all above-discussed irrelevant accounting and financial data without utilizing the Generally Accepted Accounting Principles ("GAAP”) is equally irrelevant, since the fact of such calculations does not lend support to Plaintiffs' claims asserting substantive falsity of Defendants’ statements/projections rather than on the non-utilization of GAAP standards. Simply put, even though it was proper for Irving to provide various accounting and financial data during Synehronoss’ earnings calls, it does not mean that this information is relevant to Plaintiffs’ claims.
. Plaintiffs also assert that these figures were provided by Defendants regardless of Defendants’ knowledge of Synehronoss’ exclusion from activation of the iPhone 3G. See Dismissal Opp., at 8.
. Plaintiffs also read these statements as Defendants’ assertions that ConvergenceNow would necessarily be utilized by Apple/AT & T for the purposes of off-site activation of the iPhone 3G. See Dismissal Opp., at 8.
. In addition, Plaintiffs assert that the Report failed to reflect Defendants’ knowledge that Synchronoss’ services would not be used by Apple/AT & T for the purposes of the iPhone 3G. See Dismissal Opp., at 8.
. The Court notes that Plaintiffs’ usage of the term "net revenue” (which, in accounting parlance, typically means post-cost-deduction-but-pre-tax profit) does not reflect the statements made by Defendants, who referred to Synchronoss' pre-cosl-deduction gross revenue, utilizing the terminology used during their February 4, 2008, earnings call. See Dismissal Mot, Ex. 9.
. Plaintiffs’ logic is not entirely clear to this Court for a number of reasons. First, even if Defendants were originally announcing — but then dropped the practice of announcing — the cumulative number of all iPhones Synchronoss activated since Apple/AT & T began utilizing ConvergenceNow, an announcement of cumulative number of activated iPhones is in not exactly equal to an announcement of revenue derived from such activations during a particular reporting period. Second, even if the per-period revenue from Synehronoss’ iPhone activations were disclosed by Synchronoss (or could be deduced by investors from the cumulative number of activated iPhones through the use of a certain financial formula, which this Court cannot imagine in light of the fact that the per-activation compensation received by Synehronoss for off-site activation of the initial batches of the iPhone differed from the per-activation compensation received with regard to the later batches of the iPhone), such disclosure/deducement would be of little use for the purposes of detecting how many iPhones were sold by Apple but “unlocked,” since the drop in reve *386 nue from off-site activations might be wholly unrelated to the process of "unlocking,” e.g., it might be reflective of the tendency of later (less "high-techy” and merely "business-prestige” driven) purchasers to activate their iPhones in stores, right upon the purchase.
. In light of substantial conflation of Plaintiffs' assertions, the Court finds it helpful to depict the groups of Plaintiffs’ claims, as the Court could discern them, in the following diagram:
. Plaintiffs' Opposition arrived accompanied by five exhibits that include an exchange of letters between the SEC and Waldis. See Docket Entry No. 25.
. While the merits of the parties’ positions as to the Strike Motion are discussed in the next section of this Opinion, this Court notes that it is not clear as to what aspect of Defendants’ Dismissal Motion — other than the very position taken by Defendants — Plaintiffs could possibly seek to strike with regard to these wholly undisclosed NDAs. Simply put, it appears to this Court that Plaintiffs had nothing else to challenge but Defendants’ words because Defendants' NDAs-related "exhibits” consisted of nothing but Defendants’ verbal assertions.
. The logic of Defendants’ argument escapes this Court. At best, it appears that Defendants: (a) first read their own factual assertions as if they were Plaintiffs’ claims stated in the Complaint; (b) then read Plaintiffs' *389 challenges to Defendants' so-re-qualified assertions as conclusory factual allegations; and (c) finally, request the Court to dismiss Plaintiffs’ so-re-qualified challenges under the standard that would apply had these challenges were actually stated in the Complaint. The final leg of this triangulated transformation seems to make the least sense, since— had Plaintiffs actually asserted Defendants’ argument as Plaintiffs’ fact, it would be in Defendants' own interest not to disturb such assertion, since this assertion would effectively plead Plaintiffs out of court. However, Defendants’ above-described triangulated transformation cannot convert Plaintiffs’ challenges into a fact actually stated in the Complaint. Consequently, Plaintiffs’ challenges cannot, in any way, implicate the pleading requirement. Moreover, the Court notes in passing that, even if Defendants somehow succeeded at converting their own factual allegations into the statements made in the Complaint, Defendants’ factless self-serving conclusions (namely, that the NDAs prevented Defendants from disclosure(s) and, hence, insulated them from legal liability) would have to be dismissed under the very pleading requirements invoked by Defendants in hope of striking Plaintiffs' challenges to these allegations.
. There are two kinds of judicial notice: (1) judicial notice of legislative facts, and (2) judicial notice of adjudicative facts. This distinction is followed in Rule 201, which covers the latter but not the former. However, the *390 claims at hand do not seem to implicate judicial notice of legislative facts.
. In addition, since the court may take judicial notice of a fact "capable of accurate and ready determination by resort to sources [whose] accuracy cannot reasonably be questioned," Rule 201(b), the court " ‘may take judicial notice of records and reports of administrative bodies,’ such as notices and opinion letters."
Wible v. Aetna Life Ins. Co.,
. Indeed, the underlying facts in a judicial record are not necessarily beyond dispute.
See e.g., Taylor v. Charter Medical Corp.,
. Defendants' argument is particularly troubling in light of the ensuing inference that the contracting parties (here, Synchronoss and Apple/AT & T) agreed to circumvent the disclosure requirements set forth by the governing statutory and regulatory provisions. Since it is axiomatic that any contract is read in light of the presumption that its terms do not contradict — but, rather, could be harmonized with — the relevant legal regime (and, if such reconciliation cannot be made, and the illegality cannot be excised from the contract in favor of salvaging the remainder, then the contract is deemed null and void
ab
initio), see,
e.g., Pharm. Sales Consulting Corp. v. Accucorp Packaging, Inc.,
. Rule 12(c) provides that, "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings” filed by either the plaintiff or the defendant. Fed.R.Civ.P. 12(c). Essentially, the Rule poses the very same "purely legal question that can be determined at virtually any stage of the federal process— in the beginning, under Rule 12(b)(6); after the pleadings [on both sides] have been filed, under Rule 12(c); after discovery, under Rule 56; or after the plaintiff has presented [the plaintiffs] case at trial, under Rules 50(a) or 52.”
Teachers’ Ret. Sys. v. Hunter,
. The Supreme Court’s treatment of deducements as to a defendant’s "indirect involvement” warrants a separate notice. There, the Supreme Court reversed the trial court and appellate court’s decisions, observing that the plaintiff must plead the facts showing that the defendants
actually partook
in the wrongful conduct.
See Iqbal,
. The
Conley
court held that a district court was permitted to dismiss a complaint for failure to state a claim only if "it appearfed] beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Conley v. Gibson,
. In other words, pleadings that fail to meet the plausibility requirements of Rule 8, as interpreted in Iqbal, would a fortiori fail to meet the pleading requirements of Rule 9.
. The National Association of Securities Dealers Automated Quotations, known as NASDAQ, is the largest electronic equity-securities trading market in the United States
. In addition, the Third Circuit has found that recklessness is sufficient to state a claim under 1 Ob-5, but
only with respect to past and present events
that were falsely presented to the investing community.
See, e.g., Sharp v. Coopers & Lybrand,
[Rjecklessness is a lesser form of intent rather than a greater degree of negligence. ... Reckless conduct may be defined as a highly unreasonable omission, involving not merely simple, or even inexcusable negligence, but an extreme departure from the standards of ordinary care, and which presents a danger of misleading buyers or *399 sellers that is either known to the defendant or is so obvious that the actor must have been aware of it.
Hollinger v. Titan Capital Corp.,
. With respect to the other method of establishing scienter, that is, by circumstantial evidence of intent, "the strength of the circumstantial allegations must be [even] greater.”
Kalnit,
. "The term ‘forward-looking statement' means [inter alia,\ a statement containing a projection of revenues, income (including ... loss), earnings (including ... loss) per share, capital expenditures, dividends, capital structure, or other financial items; [or] a statement of the plans and objectives of management for future operations, including [those] relating to the products or services of the issuer; [or] a statement of future economic performance [or] results of operations; [or] any statement of the assumptions underlying or relating to any statement described [above.]” 15 U.S.C. § 78u-5(i)(l).
. The rationale of this rule is self-evident; where an issuer (or the issuer’s agent) made a statement without actual knowledge that the statement was false or misleading, the issuer (or its agent) cannot intend to defraud the *402 market and, thus, lacks the requisite scienter. Alternatively, if the issuer (or issuer's agent) has actual knowledge that the issuer’s forward-looking statements are false of misleading, but accompanies these forward-looking statements with a meaningful and directly-related cautionary language, the issuer is not liable for the injuries that might ensue from investors' reliance on the false forward-looking statements. See 15 U.S.C. § 78u-5(c)(l)(A)(I).
. The provision contains no definition of "actual knowledge” for the purposes of forward-looking statements. Since it is apparent that actual knowledge can exist only in the present or past, and one cannot have actual knowledge of the future, courts have held that a forward-looking statement could be regarded as a representation that the speaker has a present belief as to the future.
See NAHC, Inc. Sec. Litig.,
. "[S]ecurities laws require [the company] to speak truthfully to investors; they do not require the company to police statements made by third parties for inaccuracies, even if the third party attributes the statement to [the company.]”
Raab v. General Physics Corp.,
. The concept of nondisclosure exists only in the context of past or present statements rather than predictions of the future, since nondisclosure of infinite number of future events that could — but, eventually, would not happen — is not a nondisclosure but lack of the ability to achieve clairvoyance, a capacity not required by the securities law.
. The group pleading doctrine allowed plaintiffs in securities fraud cases to attribute corporate statements to “one or more individual defendants based solely on their corporate titles.”
Southland Sec. Corp. v. INSpire Ins. Solutions, Inc.,
. It is self-evident that challenges to statements made outside the Class Period cannot be validly made by Plaintiffs. However, in light of the extensive substantive invalidity of Plaintiffs’ assertions, the Court sees little reason for discussing this shortcoming.
. In other words, one can make a misleading statement as a result of omitting to include certain information for the purposes of discussing current or past events but not for the purposes of predicting the future. The inherent inability of humans to envision every possible future scenario (and, thus, the unavoidable inability to disclose an infinite number of these possible future scenarios) is expressly reflected in the first prong of the safe harbor provision which insulates the speaker from liability if the speaker sufficiently clarifies to the audience the fact that the future invariable holds infinite unknowns and risks. To that effect, the Court analytically disagrees with Defendants' impression that Plaintiffs’ "false failure to disclose” cause of action raises a "sophisticated argument,”
see
Dismissal Reply at 8, as well as with Defendants' reading of
Baron v. Smith,
. Needless to say, the cumulative effect of these variables, especially if assessed through the prism of other market variables (e.g., through the prism of the then-developing slump in the United States economy, which was at its "jobless recovery” stage starting from December 2007 and throughout the entire Class Period, meaning that the purchasing power of the United States consumer was either stalled or dropping, negatively affecting demand for luxury goods, such as the iPhone), might be quite substantial, even if each of these variables, individually, could not have a major impact on the number of off-site activations of the iPhone.
. Defendants seem to read the Complaint as also asserting the falsity of statements made in Synchronoss' documents filed in 2007. The Court does not read the Complaint this way since Plaintiffs-selected Class Period started from February 4, 2008, and, thus, any allegations as to the falsity of Defendants' preFebruary 4, 2008, statements should be irrelevant (because all Class Period trades by Plaintiffs appear to be made, under the Efficient Capital Market Hypothesis, in reliance on the superceding information disclosed by Defendants on or after February 4, 2008).
. The difference between Synchronoss' 2008 yearly projection and its 2008 actual yearly result does not appear to be a litigated issue, since this forward-looking statement was corrected during Synchronoss' May 6, 2008, press release, that projected the figures which Plaintiffs seemingly elected not to litigate, i.e., the Complaint omits any discussion of the correctness of May 6, 2008, yearly projections. (The Court notes, in passing, its awareness of Defendants' observation that May 6, 2008, projections as to the yearly revenue from the iPhone activations turned out correct and, thus, could not be false by definition. However, at this stage, the Court is concerned with the content of Plaintiffs’ pleadings rather than with Defendants' counter-facts.)
. Moreover, the $ 900,000 difference between the projected result and the result actually achieved might also be immaterial, granted that it should be compared to the sum of $30 million. The Court, however, does not need to reach the materiality issue in this discussion.
. The parties' assertions as to Waldis and Irvings’ sales of their Synchronoss shares warrant a brief detour. Plaintiffs point out that Waldis realized $1,796,594 as a result of his February-to-May 2008 sales, and Irving realized $289,184 during the same period. See Compl. ¶ 83. The Court presumes that these dollar figures were provided in order to underscore the substantiality of the profit made by Waldis and Irving and to suggest that Waldis and Irving had a scienter-supporting motive to make false projections. Defendants, on their part, point out that, as a result of May 2008 drop in price of Synchronoss shares, the value of Synchronoss stock remaining in possession of Waldis and Irving was reduced by $18.8 million. The Court presumes that this dollar figure was provided in order to underscore the substantiality of the profit that might not be made by Waldis and Irving and to suggest that Waldis and Irving had no scienter-supporting motive, since — instead of hiding the truth' — they made the May 6, 2008, disclosure that opened the possibility of such loss. The Court, however, is equally unimpressed by Plaintiffs and Defendants' dollar figures, since both outcomes appear automatically built-in by the very fact that, upon Synchronoss' public offering, Waldis and Irving retained lion shares of Synchronoss' common stock and began aggressively selling their stock pursuant to their Rule 10b5-l trading plans. Hence, the substantiality of Waldis and Irving's trades (and the ensuing substantiality of the dollar figures realized as a result of these sales) was built-in by these very trading plans and by Waldis and Irving's possession of a massive amount of Synchronoss stock. By the same token, the substantial value depreciation of Waldis and Irving's potential future trades was equally guaranteed by Waldis and Irving's massive ownership of Synchronoss stock. In other words, in order to defeat Plaintiffs' point, Waldis and Irving had to practically quit selling their Synchronoss stock during the Class Period, while — in order to defeat Defendants’ point — Waldis and Irwing had to either sell virtually all their Synchronoss stock during *411 the Class Period or to conceal the truth, indefinitely. Since all these scenarios appear unrealistic, the Court finds the information largely irrelevant. The only peculiarity of Waldis and Irving’s trades is the fact that, in April of 2008, both Waldis and Irving sold notably more shares than during all other months (i.e., Waldis, whose sales varied from 6,000 to 12,000 shares per month, sold 54,000 shares during April 2008, while Irving— whose sales varied from 1,100 to 3,080 shares, sold 6,160 shares during the same month). However, both sides failed to address this peculiarity.
. Specifically, the Earnings Call Statement contained the following language:
During this call [Defendants] will make statements related to [Defendants'] business that may be considered forward-looking statements under Federal Security laws. These statements reflect [Defendants'] views only as of today, and should not be relied upon as representing our views as of any subsequent date. These statements reflect our current views regarding the future, and are subject to a variety of risks and uncertainties that could cause actual results to differ materially from expectations. For a discussion on the material risk and other important factors that could affect our actual results, please refer to [Defendants'] SEC filings.
Docket Entry No. 240-12, at 3-4. The Press Release, similarly, included risk-alerting language, stating as follows:
This document may include certain “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements include, but are not limited to, plans, objectives, expectations and intentions and other statements contained in this press release that are not historical facts and statements identified by words such as "expects,” "anticipates,” "intends,” "plans,” "believes,” "seeks,” "estimates” or words of similar meaning. These statements are based on our current beliefs or expectations and are inherently subject to various risks and uncertainties, including those set forth under the caption "Risk Factors” in Synchronoss’ Registration Statement on Form S-l and the form of the prospectus contained therein, as amended and the Company's Annual Report on Form 10-K for the year ended December 31, 2006, as filed with the Securities and Exchange Commission. Actual results may differ materially from these expectations due to changes in global political, economic, business, competitive, market and regulatory factors. Synchronoss does not undertake any obligation to update any forward-looking statements contained in this document as a result of new information, future events or otherwise.
Docket Entry No. 24-11, at 3. Finally, Defendants’ Report contained extremely detailed cautionary language covering eight pages, single-spaced, reproduction of which appears unfeasible in this Opinion. See Docket Entry No. 30-3, at 16-23 (providing overall cautions, explanation that the Report was making forward-looking projections, and detailing a multitude of various specific risks).
. Plaintiffs’ also assert that the safe harbor provision cannot apply to "forward-looking omissions,”
i.e.,
to their self-created hybrid "false failure to project” cause of action.
See
Dismissal Opp. at 23. In support of their conclusion, Plaintiffs quote a sentence from
Majesco Sec. Litig.,
. In addition, Plaintiffs assert that the first prong of the safe harbor provision necessarily operates jointly with, rather than as an alternative to, the second prong of the safe harbor provision.
See
Dismissal Opp., at 26 (asserting that a securities defendant making a forward-looking statement could be insulated from liability by the safe harbor provision if the defendant acts without scienter and, in addition, provides the investors with sufficient cautionary language). As Defendants correctly point out, Plaintiffs misread the safe harbor provision, which offers two independent avenues to the defendant seeking protection of the safe harbor.
See
Dismissal Reply at 7 (citing
Miller v. Champion Enter. Inc.,
. Plaintiffs also maintain that, even if the cautionary language used the phrase “forward-looking statement,” the caution had to be insufficient unless each and every Defendants' forward-looking projection was, also, introduced with a separate clarification/reminder that this particular projection was forward-looking.
See
Dismissal Opp., at 25. Plaintiffs err, since "a prediction about future events is self-evidently a forward-looking statement,”
Clorox Co. Secs. Litig.,
. Defendants observe that Synchronoss’ 2007 10-K report clarified as follows: “Synchronoss had ‘substantial customer concentration,’ as AT & T had historically been its largest customer, noting that it derived 76% of its revenue from AT & T in 2007, as compared to 66% in 2006.... If one of Synchronoss’s significant customers were to decide to manage transactions internally, rather than use its technology, then that decision could negatively impact its business ... If AT & T turned to ‘inhouse solutions,’ then that development would negatively impact its business.” Dismissal Reply, at 7. While the Court agrees with Defendants’ factual observations and with their legal contention that these quoted risks were sufficiently incorporated by reference when Defendants referred investors to Synchronoss’ SEC filings, the quoted language might, nonetheless, be relevant only to Plaintiffs’ allegations related to the iPhone 3G but not to Plaintiffs’ allegations related to the problem of "unlocking,” since it appears self-evident that the problem of "unlocking” could not result from any transition to internal management, or in-house solution, or in-house technology by any Synchronoss’ customer, including Apple and/or AT & T.
. As the Court already pointed out, Plaintiffs first must show that the problem of "unlocking” — rather than any other social or economic, or business development, or a cumulative effect of multiple developments — actually was the cause of the decline in revenue. Plaintiffs, however, do not state a single fact in support of such conclusion short of Plaintiffs' self-serving conjecture. (Plus, Plaintiffs adopt this premise in order to reach the very same premise as a conclusion.) Moreover, even if Plaintiffs succeeded at showing the predominance of "unlocking” as the revenue-dropping factor, Plaintiffs would still have to show that — as of February 4, 2008 (or as of February 29, 2008) — Defendants knew about the risk which the problem of "unlocking” posed to Synchronoss' revenue. Plaintiffs, however, fail to allege any facts in support of their conclusion that Defendants knew of that risk. In sum, Plaintiffs offer the Court nothing but their conjecture. However, such conjecture cannot qualify as a valid claim.
See GSC Partners CDO Fund,
. For the purposes of 10b-5 liability on the basis of failure to disclose, Rule 10b-5 and the enabling statute cannot simultaneously serve as (a) the underlying provisions (that is, as the provisions imposing the duty to disclose) and (b) the provisions imposing liability for violations of this duty: Rule 10b-5 and the enabling statute operate only in the latter capacity, not in the former.
. The Schoenbaum court explained that the fraud involved in buying or selling on the basis of inside information is based first on the user’s relationship with the corporation being such as to allow him access to information intended only for a corporate purpose and not for his personal benefit, and secondly upon the inherent unfairness involved where a party takes advantage of such information knowing it is unavailable to those with whom he is dealing.
. It appears self-evident that the duty to correct an omission is subject to the same test as the duty not to make an omission, since the "duty to correct” scenario refers to the situation when a correction is issued immediately after the initial disclosure for the reason that the disclosure was ab initio so incomplete that it rendered the disclosing statement legally misleading.
. Plaintiffs appear to be under the impression that a multitude of allegations, each of which is insufficient individually, might nonetheless state a sufficient "collective claim” under the holding of
Tellabs. See
Dismissal Opp. at 4 (advocating a "holistic approach to evaluating scienter”). Plaintiffs err. If anything,
Tellabs
stands for a diametrically opposite proposition.
See Tellabs,
. The Court already discussed a few factual shortcomings of the statements made by Plaintiffs’ undisclosed witnesses in the subsection titled "Allegations Related to the iPhone 3G.” However, certain additional points warrant discussion. Statements from undisclosed witnesses can be used in two situations: (1) as evidence supplementing other
*418
documentary evidence,
see Novak,
. Plaintiffs invite the Court to find that business relationship between Synchronoss and Apple/AT & T was such that Apple/AT & T were necessarily informing Synchronoss about their strategic plans, including their decision not to offer the iPhone 3G for off-site activation altogether. However, it is certainly not uncommon for business allies/contracting parties to operate at arms-length and, especially, to conceal their future business plans from those business allies who might be negatively affected by the brewing strategic plans or inclinations. Moreover, the process of such "concealment of business plans” rarely results in outright refusal to discuss business matters. More often than not, this process could yield a chain of oblivious “not-exactly-'no'-and-not-exactly-'yes’ ” statements, allowing for an ongoing hope on the part of the affected business allies until the very day when the negative business/strategic decision is finalized and announced to the general public, as well as to the disappointed-in-their-hopes allies.
Accord Thornton v. Micrografx,
. Plaintiffs' allegations are even more anomalous in the event the Court is correct in its impression that Synchronoss’ Convergence-Now was actually utilized by Apple/AT & T in default off-site activation of the iPhone 3G, see note 16, since, in such scenario: (a) Synchronoss did not have to create any additional software and, thus, did not have to dedicate any workforce or other resources to such task; and (b) Synchronoss was not merely led to believe by Apple/AT & T that its ConvergenceNow would be used for off-sile activations of the iPhone 3G but had its software actually used Apple/AT & T for such activations. The only point that Synchronoss would not know in such scenario until Apple/AT & T's disclosure would be that Apple/AT & T elected not to offer the iPhone 3G off-site activation en masse (that is, that such activation was reserved only for the default scenario where the in-store activation fails).
. Indeed, even a scrupulous reader would not be able to find any wrongfulness in Defendants assertions that: (a) Synehronoss had a multi-year contract with Apple/AT & T with regard to the Apple iPhone (since Synchronoss, indeed, had a multi-year contract with regard to the original Apple iPhone); or (b) Synehronoss’ ConvergenceNow was successfully utilized in every off-site activation of all iPhones with AT & T that sought to be performed (since this fact appears to be both true and undisputed by Plaintiffs). Moreover, since it appears equally undisputed that Synchronoss received handsome revenue and favorable exposure as a result of its involvements in the original iPhone, Defendants could reasonably qualify these results as Synchronoss’ substantial business achievements and grounds for pride and optimism.
. Plaintiffs’ allegations (that Defendants' statements were so incomplete as to qualify as misleading) heavily rely on
In re Adams Golf, Inc. Sec. Litig.,
. Since Plaintiffs reiterated Waldis' "surprise”-mentioning phrase for the purposes of virtually every claim Plaintiffs made, without any regard to either the content or the context of Waldis’ statement, it does not appear feasible to discuss in this Opinion why Waldis' "surprise” phrase cannot apply to each and every allegation Plaintiffs state in their convoluted Complaint. However, the Court takes this opportunity to note at least the obvious anomaly of Plaintiffs' application of Waldis’ "surprise” phrase to Defendants' February 4, 2008, statements. Since February 4, 2008, was a Monday, Plaintiffs' claims based on Defendants’ February 4, 2008, statement appear to assert that Synehronoss executives had the "entire Friday” (that is, the entire February 1, 2008) to be both “surprised” about Synehronoss' then-still-upcoming February performance and also to process and report the financial magnitude and the trendsetting significance of this then-still-yet-to-be-discovered "surprise.” Because Waldis' "surprise”-mentioning phrase unquestionably reflects Synehronoss' retrospective analysis, it appears self-evident that neither Waldis nor anyone else in Synehronoss could conduct the same analysis prospectively, that is, by the close of business on February 1, 2008.
. In addition, if this Court were to read Plaintiffs' allegation as a claim based on Defendants' failure to update their financial statements through disclosure of the decline in the revenue derived from off-site activation of the original iPhone, the basic parameters of such claim would not correspond to Plaintiffs' assertions set forth in the Complaint. For instance, Plaintiffs’ Class Period would not possibly begin prior to the end of February 2008, and would necessarily end with Defendants' May 6, 2008, disclosure. Correspondingly, the list of named Plaintiffs might have to be altered, since Plaintiffs must verify to the Court that each of them actually traded their Synchronoss stock during the so-altered Class Period.
See United States Parole Comm’n v. Geraghty,
. For instance, where the plaintiff had already amended plaintiff's complaint and yet failed to allege sufficient facts, the courts hold that a few “bites at the apple is enough,” and find it proper to deny leave to replead.
See Salinger v. Projectavision, Inc.,
. In hope to both encourage and facilitate Plaintiffs' thoughtful and discriminating evaluation of their facts, as well as Plaintiffs' drafting of a well-organized, re-amended complaint which unambiguously states the nature of each claim and then expressly correlates each Plaintiffs' claim to a specific set of facts upon which Plaintiffs rely for the purposes of this very claim, the Court will allow Plaintiffs an ample period of time to prepare their re-amended pleadings.