1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 MEYSAM MORADPOUR, et al., Case No. 21-cv-01486-SI

7 Plaintiffs, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' 8 v. REQUEST FOR JUDICIAL NOTICE

9 VELODYNE LIDAR, INC., et al., Re: Dkt. No. 104 10 Defendants.

11 12 Before the Court is defendants’ request that the Court consider twenty six documents in 13 evaluating the pending motion to dismiss plaintiffs’ Consolidated Amended Class Action Complaint 14 For Violations of the Federal Securities Laws. Dkt. No. 104. 15 District courts generally may not consider material outside the pleadings when assessing the 16 sufficiency of a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Lee v. City 17 of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). However, the Private Securities Litigation 18 Reform Act (“PSLRA”) permits courts considering a motion to dismiss governed by the PSLRA to 19 consider “documents incorporated into the complaint by reference, and matters of which a court 20 may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). 21 Judicial notice under Fed. R. Evid. 201(b) permits a court to notice an adjudicative fact if it 22 is “not subject to reasonable dispute.” A fact is “not subject to reasonable dispute” if it is “generally 23 known,” or “can be accurately and readily determined from sources whose accuracy cannot 24 reasonably be questioned.” Fed. R. Evid. 201(b)(1)–(2). “A court may take judicial notice of 25 matters of public record without converting a motion to dismiss into a motion for summary 26 judgment.” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). See, e.g., Pirani v. Slack 27 Techs., Inc., 445 F. Supp. 3d 367, 373 n. 2 (N.D. Cal. 2020), and aff’d, 13 F.4th 940 (9th Cir. 2021) 1 disputed facts contained in such public records. Lee, 250 F.3d at 689. 2 The “incorporation-by-reference doctrine is a judicially created doctrine that treats certain 3 documents as though they are part of the complaint itself.” Khoja v. Orexigen Therapeutics, Inc., 4 899 F.3d 988, 1002 (9th Cir. 2018). The doctrine is designed to prevent plaintiffs from selectively 5 citing “only portions of documents that support their claims, while omitting portions of those very 6 documents that weaken—or doom—their claims.” Id. (citing Parrino v. FHP, Inc., 146 F.3d 699, 7 706 (9th Cir. 1998), superseded by statute on other grounds as recognized in Abrego Abrego v. Dow 8 Chem. Co., 443 F.3d 676, 681–82 (9th Cir. 2006). A court may generally assume the contents of a 9 document incorporated by reference “are true for purposes of a motion to dismiss under Rule 10 12(b)(6).” Khoja, 899 F.3d at 1003 (citations omitted). However, “it is improper to assume the 11 truth of an incorporated document if such assumptions only serve to dispute facts stated in a well- 12 pleaded complaint.” Id. 13 Finally, the PSLRA permits a court to “consider any statement cited in the complaint and 14 any cautionary statement accompanying the forward-looking statement, which are not subject to 15 material dispute, cited by the defendant,” when considering a motion to dismiss brought pursuant to 16 the PSLRA’s safe harbor for forward-looking statements. 15 U.S.C. § 78u-5(e). 17 Applying the foregoing standards to the documents submitted with defendants’ motion, the 18 Court will receive or reject the documents as follows: 19 • Ex. A, Dkt. No. 103-1 (Excerpts of Form 10-K submitted to SEC March 17, 2021): 20 o Judicially noticed 21 • Ex. B, Dkt. No. 103-2 (Excerpts of Registration Statement submitted to SEC October 22 19, 2020): 23 o Incorporated by reference 24 • Ex. C, Dkt. No. 103-3 (Excerpts of Amendment No. 1 to a Registration Statement filed 25 with the SEC on September 22, 2020): 26 o Judicially noticed 27 • Ex. D, Dkt. No. 103-4 (Join Press Release filed to SEC on Form 8-K on July 2, 2020): 1 • Ex. E, Dkt. No. 103-5 (July 2020 Investor Presentation attached to a Form 8-K filed 2 with the SEC on July 2, 2020): 3 o Noticed per § 78u-5(e) 4 • Ex. F, Dkt. No. 103-6 (Preliminary Proxy Statement on Schedule 14A filed with the 5 SEC on July 15, 2020): 6 o Incorporated by reference and noticed per § 78u-5(e) 7 • Ex. G, Dkt. No. 103-7 (Excerpts of a revised Preliminary Proxy Statement on Schedule 8 14A filed with the SEC on August 21, 2020): 9 o Incorporated by reference and noticed per § 78u-5(e) 10 • Ex. H, Dkt. No. 103-8 (Excerpts of revised Preliminary Proxy Statement on Schedule 11 14A filed with the SEC on September 8, 2020): 12 o Incorporated by reference and noticed per § 78u-5(e) 13 • Ex. I, Dkt. No. 103-9 (Excerpts of a Definitive Proxy Statement on Schedule 14A filed 14 with the SEC on September 14, 2020): 15 o Incorporated by reference and noticed per § 78u-5(e) 16 • Ex. J, Dkt. No. 103-10 (Excerpts of a Prospectus on Form 424B3 dated September 29, 17 2020 filed with the SEC on October 1, 2020): 18 o Incorporated by reference and noticed per § 78u-5(e) 19 • Ex. K, Dkt. No. 103-11 (FY2020 Press Release dated January 7, 2021, attached to a 20 Form 8-K filed with the SEC on January 8, 2021): 21 o Incorporated by reference and noticed per § 78u-5(e) 22 • Ex. L, Dkt. No. 103-12 (Press release dated February 22, 2021, attached to a Form 8-K 23 filed with the SEC on February 22, 2021): 24 o Judicially noticed 25 • Ex. M, Dkt. No. 103-13 (Form 8-K filed with the SEC on September 9, 2021): 26 o Decline to notice or incorporate 27 • Ex. N, Dkt. No. 103-14 (Investor presentation dated July 20, 2020, attached to a Form 1 o Incorporated by reference and noticed per § 78u-5(e) 2 • Ex. O, Dkt. No. 103-15 (Press release dated August 31, 2020, attached to a Form 8-K 3 filed with the SEC on September 1, 2020): 4 o Incorporated by reference and noticed per § 78u-5(e) 5 • Ex. P, Dkt. No. 103-16 (Investor presentation dated September 2020, attached to a Form 6 8-K filed with the SEC on September 1, 2020): 7 o Noticed per § 78u-5(e) 8 • Ex. Q, Dkt. No. 103-17 (Transcript of a July 2, 2020 conference call attached to a Form 9 8-K filed with the SEC on July 6, 2020): 10 o Incorporated by reference 11 • Ex. R, Dkt. No. 103-18 (Transcript of a September 1, 2020 conference call, attached to 12 a Form 8-K that the Company filed with the SEC on September 2, 2020): 13 o Incorporated by reference 14 • Ex. S, Dkt. No. 103-19 (Transcript of Velodyne’s November 5, 2020 conference call 15 following announcement its financial results for the third quarter of 2020): 16 o Noticed per § 78u-5(e) 17 • Ex. T, Dkt. No. 103-20 (Press release dated November 5, 2020, attached to a Form 8-K 18 that the Company filed with the SEC on November 5, 2020): 19 o Noticed per § 78u-5(e) 20 • Ex. U, Dkt. No. 103-21 (Velodyne investor presentation dated November 5, 2020): 21 o Noticed per § 78u-5(e) 22 • Ex. V, Dkt. No. 103-22 (Excerpts of a Form 8-K filed with SEC on October 5, 2020): 23 o Noticed per § 78u-5(e) 24 • Ex. W, Dkt. No. 103-23 (Investor presentation dated September 2020 attached to a Form 25 8-K filed with the SEC on September 8, 2020): 26 o Noticed per § 78u-5(e) 27 • Ex. X, Dkt. No. 103-24 (Excerpts of a Registration Statement on Form S-1 dated August 1 o Judicially noticed 2 e Ex. Y, Dkt. No. 103-25 (Excerpts of a Prospectus on Form 424B2 dated November 4, 3 2020, filed with the SEC on that same date): 4 o Incorporated by reference 5 e Ex. Z, Dkt. No. 103-26 (A Business Wire press release dated January 21, 2022 6 announcing Hall’s State Court Complaint): 7 o Decline to notice or incorporate 8 9 IT IS SO ORDERED. 10 || Dated: July 1, 2022 Sate WU tee 11

SUSAN ILLSTON

12 United States District Judge

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