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January 12, 2005.


The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge


Plaintiff Peter Loftin brings this proposed class action against defendants Flag Telecom Holding Group, Ltd. ("Flag"), Salomon Smith Barney, Inc. n/k/a Citigroup Global Markets, Inc. ("Citigroup" or the "underwriter"), Verizon Communications, Inc. ("Verizon") and nine individual defendants: Andres Bande, Edward McCormack, Andrew Evans, Larry Bautista, Stuart Rubin, Daniel Petri, Edward McQuaid, Philip Seskin and Dr. Lim Lek Suan (collectively referred to as the "individual defendants").*fn1 Plaintiff purports to bring suit on behalf of those who purchased Flag's stock from February 16, 2000 through February 13, 2002 (the "class period"). On October 18, 2002, this Court consolidated several similar suits raising claims under the federal securities laws against defendants, named Loftin lead plaintiff and appointed Milberg Weiss Bershad Hynes & Lerach n/k/a Miberg Weiss Bershad & Schulman lead counsel. Plaintiff subsequently filed a Second Corrected Consolidated Amended Complaint ("2CCAC") and the individual defendants, Citigroup and Verizon moved to dismiss the 2CCAC.*fn2 We dismissed the 2CCAC but granted plaintiff leave to replead his claims against all defendants named in the 2CCAC. In re Flag Telecom Holdings, Ltd. Sec. Litig., 308 F. Supp. 2d 249, 274 (S.D.N.Y. 2004) (Conner, J.) (hereinafter "Flag I").

In the Third Consolidated Amended Complaint ("3CAC") plaintiff alleges that Flag, Citigroup and the individual defendants are liable under § 11 and § 12(a)(2) of the Securities Act of 1933 (the "Securities Act"). Plaintiff also asserts claims against Verizon and the individual defendants under § 15 of the Securities Act. Additionally, plaintiff alleges that Flag, Bande, McCormack, Bautista and Evans violated § 10(b) of the Securities and Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder and that Verizon, Bande, McCormack, Bautista and Evans are liable under § 20(a) of the Exchange Act. The Flag defendants, Verizon and Citigroup move to dismiss pursuant to Rules 12(b)(6) and 9(b) and the Private Securities Litigation Reform Act ("PSLRA") for failure to state a claim. For the reasons stated herein, we grant the motions of Flag, Evans and Verizon to dismiss the claims raised in the 3CAC against them. Defendant Bautista's motion to dismiss is granted in part and denied in part. Finally, the motions of defendants Bande, McCormack, Rubin, Petri, McQuaid, Seskin, Suan, and Citigroup to dismiss are denied in their entirety.*fn3


  I. Flag's Initial Public Offering (the "IPO")

  Flag offered its shares to the general public in an IPO held on February 16, 2000. (3CAC ¶ 90.) The company's Prospectus (the "Prospectus") was incorporated into the Registration Statement (the "Registration Statement") filed in connection with the IPO.*fn4 Bande, Flag's Chief Executive Officer ("CEO"), McCormack, Flag's Chief Financial Officer ("CFO"), and Rubin and Suan, both members of Flag's Board of Directors, signed the Registration Statement. (Registration Statement at II-7.) In addition, McQuaid and Seskin were also members of Flag's Board of Directors at the time of the IPO and signed the Registration Statement. (3CAC ¶¶ 59, 60.)

  In the Prospectus, Flag stated that its goal was to become a leading "global carriers' carrier" and that it intended to achieve this goal through the expansion of its fiberoptic cable network. (3CAC ¶ 2; Registration Statement at 2.) At the time of the IPO, Flag's network consisted of: (1) the Flag Europe-Asia cable system ("FEA system") which linked to "communications networks in the United Kingdom, Spain, Italy, Egypt, Jordan, Saudi Arabia, the United Arab Emirates, India, Malaysia, Thailand, Hong Kong, China, Korea and Japan," (Registration Statement at 46); and (2) terrestrial connections linking a host of major European metropolitan areas. (Id. at 37.) Flag sold access to its network on a wholesale basis to international carriers, telecommunications companies and internet service providers. (3CAC ¶ 2.) Customers could purchase broadband telecommunications capacity on Flag's network pursuant to a Right of Use contract ("ROU") or an Indefeasible Right of Use agreement ("IRU"). (Registration Statement at 43.) Capacity on Flag's network was "portable." Thus, customers that acquired capacity on one segment of Flag's network could later obtain capacity on a different segment in response their changing needs. (Registration Statement at 43.)

  Flag's Prospectus revealed that it was in the process of expanding its global network through the construction of the Flag-Atlantic 1 cable system (the "FA-1 system"). (3CAC ¶ 4.) The FA-1 system was a joint venture between Flag and GTS Transatlantic Holdings Ltd. ("GTS") to build two digital fiberoptic cables connecting Paris and London to New York. (Id.; Registration Statement at 37.) The two cables would create a "self-healing ring"; if one cable failed, Flag could re-route the traffic on that cable onto the other cable in order to avoid service interruptions. (Registration Statement at 37.) The Prospectus also indicated that Flag might expand its network further by constructing or acquiring digital fiberoptic cables in other areas of the world or by purchasing capacity from competitors where "rapid access to a market [was] required or where it [was] not economically feasible to" construct or acquire new systems. (Id. at 2.)

  A. The Allegedly Misleading Statements or Omissions in the Prospectus Concerning Demand

  Plaintiff alleges that Flag falsely stated in the Prospectus that market demand for broadband telecommunications capacity was strong at the time of the IPO and that demand was growing. Plaintiff points to the following statement in the Prospectus:
We developed and are enhancing the FLAG Telecom network and our product and service offerings to participate in the following important growth and strategic shifts in the international telecommunications markets: . . .
RAPID GROWTH OF TELECOMMUNICATIONS TRAFFIC. According to an August 1999 research report published by Ovum Ltd., total world telecommunications traffic demand is expected to grow more than 50-fold between 1999 and 2005, with Internet and data traffic accounting for 98% of total traffic by 2005. . . .
IMPACT OF GLOBAL DEREGULATION. The continued deregulation of the global telecommunications industry has resulted in a significant increase in the number of competitors, including traditional carriers, wireless operators, Internet service providers and new local exchange service providers. This change in the global competitive landscape is generating significant demand for broadband telecommunications capacity as carriers seek to secure sufficient capacity for their expansion plans. . . . Global deregulation has also resulted in increased demand for city-to-city services, as new entrants to the telecommunication industry seek to take advantage of the economic benefits of controlling facilities on an end-to-end basis.
(Registration Statement at 39.) Plaintiff contends that these statements were false when issued because as of February 11, 2000, the effective date of the Registration Statement, FLAG possessed information demonstrating that the supply of broadband telecommunications capacity had substantially outstripped the market demand for that capacity. (3CAC ¶ 81.)

  B. Cautionary Language In the Prospectus

  In a section of the Prospectus entitled "RISKS RELATED TO OUR INDUSTRY," Flag disclosed the following:
Along the FLAG Europe-Asia cable route and the FLAG Atlantic-1 cable route, we face competition and pricing pressures from existing cables, planned cables, and satellite providers, including existing geosynchronous satellites and low-earth orbit systems now under construction. . . .
Many of our competitors have, and some potential competitors are likely to enjoy, substantial competitive advantages, including the following:
— greater name recognition;
— greater financial, technical, marketing and other resources;
— larger installed bases of customers; and
— well established relationships with current and potential customers.
Significant new and potentially larger competitors could also enter our market as a result of regulatory changes or the establishment of cooperative relationships. In addition, recent technological advances may greatly expand the capacity of existing and new fiberoptic cables. Although such technological advances may enable us to increase our capacity, an increase in the capacity of our competitors could lead to even greater competition. Increased competition could lead to price reductions, fewer large-volume sales, under-utilization of resources, reduced operating margins and loss of market share.
(Registration Statement at 11.)

  Flag disclosed the following information in the Prospectus concerning competition in certain markets: GLOBAL SERVICES COMPETITORS

A number of companies are presently engaged in building global carriers' carrier networks. We believe that because of the high cost of building truly global networks this is a market in which there will always be a limited number of players.
Two other companies at present propose to build global carriers' carrier networks: Global Crossing and Level 3 Communications. Global Crossing is a Bermuda based telecommunications company which currently has three operational cable systems: Atlantic-Crossing-1 (AC-1), Pacific-Crossing (PC-1) and Pan-European Crossing (PEC). Global Crossing is currently building a number of other systems covering Asia (Asia Global Crossing) and Latin America (SAC, MAC and PAC). We believe we compete with Global Crossing on quality, as well as on the coverage and cost effectiveness of our network. Level 3 Communications currently operates a United States city-to-city cable network based on company owned infrastructure and is building a European city-to-city network. Level 3 Communications has announced the construction of a single, high capacity cable cross [sic] the Atlantic Ocean. Level 3 has made investments in a trans-Pacific cable system (US-Japan) in addition to its own facilities.
Over time, as we develop our wholesale services offerings, we expect to compete with major global telecommunications operators such as MCI WorldCom and British Telecom/AT&T. These companies primarily focus on offering services to multinational corporations, although they also offer carriers' carrier services. Such companies often participate in consortium cable projects, as well as in private network systems, such as those we own and operate. We also expect to face competition from carriers' carriers and incumbent regional telecommunications providers with respect to our wholesale service offerings.
We believe our key competitors in the trans-Atlantic services market are as follows:
— TAT-14 — This loop cable system is a consortium system cable sponsored by British Telecom, AT&T and other incumbent telecommunications operators in the United States and Europe. It has a maximum design capacity of 640 gigabits per second. TAT-14 provides services on a coast-to-coast basis. It does not presently provide city-to-city services.
— LEVEL 3 COMMUNICATIONS — Level 3 Communications is building a single cable system based on IP only technology, running at 1.28 terabits per second. The system provides city-to-city service.
— GLOBAL CROSSING AC-1 AND AC-2 — AC-1 is a loop system across the Atlantic. AC-1 runs at 80 gigabits per second and may be subsequently upgraded to 160 gigabits per second. AC-1 is fully operational. AC-2 is a proposed 2.56 terabits per second single cable system that, due to its increased capacity over AC-1, would only partially restore on AC-1. AC-2 is at an early stage of development.
— HIBERNIA — This is a proposed 1.92 terabits per second system which is sponsored by Worldwide Fiber, a subsidiary of Ledcor Industries, a Canadian mining company. Worldwide Fiber principally offers dark fiber connectivity on terrestrial networks on a carriers' carrier basis in the North American markets.
  We believe that the intra-European market will become very competitive in the next 12-18 months as a result of the large number of proposed pan-European operators. At least eight pan-European networks have been announced or commenced operations, including: GTS, BT Farland, MCI WorldCom Ulysses, Alcatel/The Petabit Network, iaxis, Global Crossing PEC, Viatel Circe and KPN/Qwest.


We expect to compete against two primary competitors in this market:
— SEA ME WE (SMW3) — This is a consortium cable system that connects the Asia/Pacific region via the Middle East to Western Europe along a similar route to the Flag Europe-Asia cable system. SMW3 was originally planned to route to the FLAG Europe-Asia cable system. SMW3 was originally planned to be in service in late 1997; however, it was significantly delayed and only recently entered commercial service. SMW3 has an initial capacity of 20 gigabits per second and is upgradeable to 40 gigabits per second. SMW3 has major investors that include many of the incumbent telecommunications operators along its route.
— Satellite — In addition to the SMW3 cable, carriers have the alternative of transmission by satellite, including existing geosynchronous satellites and low earth orbit systems now under construction. In general, satellite service is considered to be of inferior quality, because time delays and echos affect transmission, and service interruptions are more frequent. Furthermore, satellite systems are more expensive to launch and to maintain per circuit and generally have a shorter useful life and less capacity. Nonetheless, there are many communications satellites in geosynchronous orbit which are available to provide service.
  At present, two other systems compete in the Asia/Pacific market, SMW3 and APCN. Both are consortium systems.
— SMW3 — in Asia, this system connects from Singapore north through Asia to Japan, and also south to Australia.
— APCN — This consortium system is an established regional transit system around Asia. Many of the region's traditional operators are participants.
  In addition, several further systems are planned that may come into service between 2001-2003. These include APCN2, backed by incumbent Asian operators, PA-1, backed by NTT and US and European operators, and a system proposed by Global Crossing.
EUROPE-ASIA LONG HAUL SERVICES COMPETITORS We also participate in the Europe-Asia long haul market through the FLAG Europe-Asia cable system. SMW3 is the primary direct competitor along this route. However, we expect the strongest competition in the future to come from an alternative routing from Europe to Asia across the Atlantic Ocean, trans-US, and across the Pacific Ocean to Japan.
(Id. at 52-54.)
  Finally, in Management's Discussion and Analysis Flag stated:
Because capacity sales recognized as revenues in 1997 were generally sold at a higher price per unit than the price per unit we expect to realize in the future, we have recognized a higher cost of sales per unit in 1997 than we expect to recognize in the future based on management's current best estimate and third party market forecasts of capacity sales.
(Id. at 31.)

  C. The Allegedly Misleading Statements or Omissions in the Prospectus Concerning Capacity Pre-Sales

  Plaintiff alleges that the disclosures in the Prospectus concerning capacity pre-sales on the FA-1 system were materially false or misleading. (3CAC ¶ 92.) According to plaintiff, Alcatel Submarine Networks ("Alcatel") entered into an improper agreement with Flag (the "Alcatel Sales Agreement") for the purchase of capacity on the FA-1 system. The Alcatel Sales Agreement, plaintiff alleges, was entered into as part of a "fraudulent scheme" to inflate FA-1 system pre-sales to create the illusion that there was demand for capacity on the FA-1 system and to secure a line of credit necessary for the construction of the FA-1 system. (Id. ¶¶ 91-92, 98.) II. Post-IPO Events

  A. The Allegedly False or Misleading Statements

  Plaintiff contends that subsequent to Flag's IPO, Flag's market position continued to deteriorate, but rather than reveal the company's troubles, the Flag defendants issued false statements and financial results in press releases and SEC filings to give the impression that Flag was a sound company that "always met or exceeded the market's expectations." (Id. ¶ 8.) Plaintiff contends that the following statements made by Flag, McCormack and Bande after the company's IPO were false or misleading.

  On March 3, 2000, Flag issued a press release announcing its financial results for FY:99. Flag reported Earnings Before Interest, Taxes, Depreciation and Amortization ("EBITDA") of $128 million and gross revenues of $162 million. Although gross revenues were down from $208 million in 1998, Flag explained that "[r]eported revenue trends reflected the requirement to defer some revenues to subsequent periods for accounting purposes as a result of . . . [the adoption of FASB Interpretation No. 43] and the inclusion of non-cash items in 1998 reported revenues." (Id. ¶ 99.) In Flag's 10-K report filed on March 30, 2000, which was signed by Bande and McCormack, the company repeated the gross revenue disclosures and added that Flag "recognized revenue from the sale of capacity of $120.2 million." (Id. ¶ 100.)

  In a press release issued on March 20, 2000, Bande commented on a capacity sale that involved Saudi Telecommunications Company stating: "We believe the size of capacity purchased underlines the importance of fiberoptic cables in today's bandwith hungry market, and the confidence of Saudi Telecom in Flag Telecom to deliver robust service." (Id. ¶ 102.) Shortly thereafter, Flag announced plans to build the Flag Pacific-1 system without disclosing the glut of supply that was allegedly already on the market. (Id. ¶ 103.)

  On April 26, 2000, Flag issued a press release announcing its financial results for 1Q:00 which ended March 31, 2000. (Id. ¶ 106.) The company noted that it had EBITDA of $46.3 million and that "[s]trong global demand for data/IP bandwith drives cash revenue growth. . . . The results reflect continued strong demand for bandwith, both in the form of capacity sales and short-term leases." (Id.) Bande stated: "The strength of our results underscores the continuing growth in global demand for higher bandwith capacity." (Id.) McCormack added that Flag's strong cash position "together with presales of network capacity and non-recourse bank debt, should fully fund our current business plan." (Id.) In Flag's 10-Q report for this quarter, which was signed by McCormack, the company reported total revenue for the quarter of $19.2 million and revenue from the sale of capacity of $7.8 million. The company sustained a net loss of $31.1 million for the quarter. Although these results represented a downward departure from 1Q:99, Flag attributed the less favorable figures "primarily to reduced accounting revenue and increased depreciation costs caused by the adoption of FASB Interpretation No. 43." (Id. ¶ 110.)

  On May 16, 2000, Flag filed a Registration Statement for an exchange offer in connection with certain notes it had privately issued in March 2000. This filing did not disclose adverse market trends of which the Flag defendants were allegedly aware. (Id. ¶ 109.)

  On July 25, 2000, Flag issued a press release announcing its financial results for 2Q:00 which ended June 30, 2000. (Id. ¶ 12.) The company announced that it recorded EBITDA of $1.8 million and stated that "[t]he move of EBITDA to positive territory comes a year ahead of Company expectations, reflecting both strong sales and cost containment." (Id.) In Flag's 10-Q report for 2Q:00, which was signed by McCormack, Flag reported total revenues of $24.7 million and revenues from the sale of capacity of $10.2 million. (Id. ¶ 115.)

  On October 24, 2000, Flag issued a press release announcing it's results for 3Q:00 which ended September 30, 2000. Flag stated in the release that it recorded EBITDA of $1.8 million for the quarter and commented that "[t]he results show a continuing successful execution of the company's strategy to meet the global growth in demand for IP capacity and value added services." (Id. ¶ 117.) In the company's 10-Q report filed for the quarter, which was signed by McCormack, Flag reported total revenue of $24.7 million and revenue from sales of capacity of $10.2 million. (Id. ¶ 115.)

  On October 31, 2000, Flag announced in a press release that it had agreed to purchase GTS's interest in the FA-1 system. Bande stated:
The FA-1 system will support our fast developing network services business, delivering IP and network services across our global platform for carriers, ASPs and ISPs. Demand for capacity across the Atlantic continues to grow, and this agreement enables FLAG to increase its ownership of highly resilient capacity, and at a very attractive cost base.
(Id. ¶ 122.) Subsequent to the completion of the purchase of GTS's interest, Bande made the following statement in a press release:
The competitive landscape on this route is also encouraging. Market prices appear to have stabilized over the past two quarters and continue to be in line with our expectations. In particular, the number of competing systems we had expected has declined after the combination of two market players on to one cable system.
(Id. ¶ 123.)
  On February 6, 2001, Flag issued a press release announcing its FY:00 results. Flag stated that "[c]ontinued growth in demand for bandwith and Network Services was the driver behind the strong performance during the year." (Id. ¶ 126.) McCormack stated: "We have seen continued demand for our traditional capacity and Network Services products in the fourth quarter, taking our cumulative sales to date over $2.0 bn." Bande added the following:
We expect our results for 2001 to reflect continued growth in sales of capacity on our two completed systems, presales on systems under development and further progress in our FNS business. We anticipate seeing continued strong interest from our traditional customer base as well as from new categories of customers whom we are reaching with our expanding range of Network Services.
(Id.) In Flag's 10-K for FY:00, which was signed by Bande and McCormack, the company reported total revenue of $99.3 million, revenue from the sale of capacity of $36.8 million and EBITDA of $2 million. (Id. ¶ 127.)

  On March 5, 2001, Flag issued a press release announcing "that in response to market demand [Flag] is bringing forward the planned upgrade programme for the . . . [FA-1] cable system." McCormack stated: "Following sales commitments and indications of future demand across this high-traffic route, we have accelerated the timing of the upgrade of our capacity on FA-1." (Id. ¶ 132.)

  On April 24, 2001, Flag issued a press release announcing its financial results for 1Q:01 which ended on March 31, 2001. Bande stated in the release that "[d]emand across the network routes remains strong." (Id. ¶ 170.) This statement from Bande appears to be the last occasion on which a Flag defendant represented to the public that market demand for broadband telecommunications capacity was strong. In Flag's Form 10-Q for 1Q:01, which was signed by McCormack, the company reported total revenues of $29 million, a 51% increase from 1Q:00, revenue from sales of capacity of $8.1 million, a 4% increase from 1Q:00, and EBITDA of $1.2 million. (Id. ¶ 171.)

  On August 7, 2001, Flag issued a press release announcing its financial results for 2Q:01 which ended June 30, 2001. In that release, McCormack stated the following:
While the current market conditions remain challenging, we find increasingly that customers are looking for the quality, flexibility of routing, rapid turn-up and certainty of supply that the FLAG Telecom network can provide. Going forward, we expect to benefit from marketing capacity and Network Services products across the elements of our network currently in service, and to experience continued demand from our strong traditional customer base as well as from new customers.
(Id. ¶ 176.) In Flag's Form 10-Q for 2Q:01, which was signed by McCormack, Flag reported total revenues of $36.1 million, a 46% increase from 2Q:00, and EBITDA of $2.8 million. (Id. ¶ 177.)
  On November 6, 2001, Flag issued a press release announcing its results for 3Q:01, which ended September 30, 2001, wherein Bande stated the following:
We had a good quarter, remaining in line with our guidance and continuing to see the benefits of our focused approach to the business. FLAG Telecom remains a fundamentally sound company. Clearly, our ability to deliver revenue growth and meet our targets in challenging market conditions is a direct result of the competitive advantages and unique reach of our global network, the quality and stability of our customer base and the high levels of service we are able to provide to those customers. . . . [W]e believe we are well positioned in the global economic downturn and should stand to benefit from any market recovery in the future.
(Id. ¶ 179.) Flag reported in the release that total cumulative revenues through the third quarter of 2001 were $723.9 million and that adjusted EBITDA was $612.7 million. This represented a substantial increase from the prior year. The company also stated that total revenues for 3Q:01 were $55.6 million and that it had enjoyed a "[s]trong cash position of $668.8m." (Id. ¶ 179.)

  B. Flag Announces That It Is Reviewing Its Business

  On February 13, 2002, Flag issued a press release announcing its financial results for FY:01. Flag revealed the following:
We believe that our available sources of cash provide sufficient liquidity to fund our obligations and our ongoing business operations throughout 2002. We are currently reviewing our business in the light of deteriorating market conditions. If there is no improvement in our operating environment, we anticipate that at some point in 2003 we will not have sufficient liquidity to continue our operations, unless we are able to raise additional funds, find a strategic partner or restructure our indebtedness.
Given the state of the capital markets generally, and especially for our industry sector, we think it is unlikely that we will be able to raise additional debt or equity capital under current market conditions. In connection with our review of our liquidity and capital resources, our desired capital expenditures and the current capital market conditions for companies in our sector, we have initiated discussions with potential strategic partners and potential financial advisors. In these discussions we are considering the impact on our industry sector of the insolvency of various industry participants, lower margins resulting from the amount of distressed assets in the marketplace, the current state of capital markets for companies in our industry sector, our liquidity and capital resources, and possible financing and strategic alternatives.
(Id. ¶ 187.) Flag also revealed in this release that "14% of GAAP revenues for the full year 2001 was associated with reciprocal transactions entered into with other telecommunications companies and service providers." (Id.) Subsequent to the issuance of this press release, Flag's stock declined 46% to $0.36 a share on heavy volume. (Id. ¶ 190.)
  In Flag's 10-K for FY:01, filed on April 1, 2002, the company disclosed that it would not be able to "make the required interest payments, due March 30, 2002, on . . . [certain] outstanding senior notes." (Id. ¶ 192.) Flag also revealed the following:
Given the high degree of competition in terms of alternative supply, price erosion and continued lack of demand on the trans-Atlantic route . . . we now believe that the asset value of our FA-1 system is impaired. We determined that the carrying value of the FA-1 system exceeded its fair value and we have therefore recognized an impairment charge of $359.0 million in the year ended December 31, 2001.
(Id. ¶ 192.) However, Flag noted, "at this time we do not believe that the FEA system is impaired."

  (Id. ¶ 198.)

  Flag filed a Chapter 11 bankruptcy petition on April 12, 2002. During these proceedings Flag prepared a "Pro-forma Reorganized Balance Sheet as of September 30, 2002." (3CAC ¶ 199.) According to plaintiff, the balance sheet indicated that the estimated value of Flag's property and equipment was $385 million. Flag had reported in its financial results for 3Q:01 that its property and equipment were worth $2.3 billion. (Id.)

  Several lawsuits asserting claims under the federal securities laws were filed against Flag, the individual defendants, Citigroup and Verizon in the Spring of 2002. This Court consolidated these actions and appointed Loftin lead plaintiff. Plaintiff subsequently filed a 2CCAC and the individual defendants, Citigroup and Verizon moved to dismiss the 2CCAC. In Flag I, this Court dismissed the 2CCAC but granted plaintiff leave to replead his claims. 308 F. Supp. 2d at 252. Plaintiff subsequently filed the 3CAC and defendants now move to dismiss the 3CAC.


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