Case 4:19-cv-02033-YGR Document 371 Filed 06/29/23 Page 1 of 3
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`IN RE APPLE INC. SECURITIES LITIGATION
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`Case No. 4:19-cv-2033-YGR
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`ORDER DENYING RECONSIDERATION
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`Re: Dkt. No. 364
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`Before the Court is plaintiff’s motion for partial reconsideration of this Court’s November 4,
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`2020, order on defendants’ motion to dismiss the Revised Consolidated Class Action Complaint.
`Plaintiff moves for reconsideration of this Court’s dismissal of claims based on a statement by Tim
`Cook that Apple had “very, very, little data” on demand for the XR (“the Data Misrepresentation”).1
`Plaintiff asserts that the Ninth Circuit decision in Glazer Cap. Mgmt., L.P. v. Forescout Techs., Inc.,
`63 F.4th 747, 756 (9th Cir. 2023) (Forescout) constitutes a material change in law on how courts are
`to determine if a misrepresentation is puffery.
`Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality
`and conservation of judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003)
`(cleaned up). A party seeking reconsideration must show reasonable diligence, and a material
`difference in fact or law, emergence of new material facts or a change of law occurring after
`issuance of the order, or a manifest failure by the Court to consider material facts or dispositive legal
`arguments. L.R. 7-9.
`Plaintiff alleges Forescout constitutes a material change of law.2 Specifically, plaintiff
`maintains that Forescout requires courts to consider “context” when assessing if a statement is
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`1 The Court incorporates its explanation of this statement and the relevant allegations from its
`dismissal order. (Dkt. No. 123.)
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`2 See Dkt. No. 364 at 3 (“In light of the recent Ninth Circuit opinion in Forescout . . .
`Plaintiff now moves for reconsideration of the Court’s November 4, 2020 Order.”); Dkt. No. 367 at
`7 (“it is new law which triggers this review”).
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`Northern District of California
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`Case 4:19-cv-02033-YGR Document 371 Filed 06/29/23 Page 2 of 3
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`puffery. In reply, plaintiff goes further, alleging that Forescout created a sort of test in which a court
`must consider the “forum in which the statement was made,” the “circumstances under which the
`statement was made,” and “the format” of the statement. (Dkt. No. 367 at 2.)
`Having reviewed Forescout and the parties’ briefing, the Court finds Forescout is merely the
`“reiteration” and application, “of existing law.” Poris v. Novellus Sys., Inc., No. C 10-00947 JSW,
`2012 WL 13069774, at *2 (N.D. Cal. Sept. 14, 2012). The Ninth Circuit has long required courts
`assessing if a statement is puffery to consider the context in which the statement was made.3
`In addressing the need to consider context, the Forescout court in no way implies it is establishing
`new law. In stating the rule it is applying, it quotes a Ninth Circuit case from 1996 that states
`“general statements of optimism, when taken in context, may form a basis for a securities fraud
`claim.” Forescout, 63 F.4th 770 (quoting Warshaw v. Xoma Corp., 74 F.3d 955, 959 (9th Cir.
`1996)).
`Plaintiff argues that Forescout is distinct from the prior cases requiring courts to consider
`context because it is factually similar to the case at hand. Reconsideration would not be an
`extraordinary or rare remedy if every application by the higher courts of settled law to new facts
`constituted a “material change” in the law. What plaintiff really seeks is for the Court to reconsider
`its application of the well-settled law to the facts of the complaint. That is not a valid basis for
`reconsideration. Asturias v. Borders, No. 16-CV-02149-HSG (PR), 2018 WL 1811967, at *1 (N.D.
`Cal. Apr. 17, 2018) (noting reconsideration motions “are not a substitute for appeal or a means of
`attacking some perceived error of the court”).
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`In reply, plaintiff belatedly notes that L.R. 7-9(b) allows for reconsideration based on “new
`facts.” Plaintiff cannot raise new arguments, let alone an entirely new basis for a motion, on
`reply. Tovar v. U.S. Postal Serv., 3 F.3d 1271, 1273 n. 2 (9th Cir.1993). Further, reconsideration
`based on new facts must be pursued with “reasonable diligence” which plaintiff has not even
`attempted to argue has been done here. L.R. 7-9(b)(1).
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` Indeed, that is exactly what this Court did in its dismissal order. It even expressly
`considered the three elements plaintiff alleges are required by Forescout. It took judicial notice of
`the entire call transcript and analyzed the Data Misrepresentation within the wider context in which
`plaintiff alleged the statement was made.
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`Case 4:19-cv-02033-YGR Document 371 Filed 06/29/23 Page 3 of 3
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`Finding that Forescout does not constitute a material change of law, plaintiff’s motion for
`reconsideration is DENIED.
`This terminates docket number 364.
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`IT IS SO ORDERED.
`Dated:
`June 29, 2023
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`____________________________________
`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT COURT JUDGE
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