Case 1:09-md-02017-LAK-GWG Document 819 Filed 03/19/12 ...

Case 1:09-md-02017-LAK-GWG Document 819 Filed 03/19/12 Page 2 of 8American National Life Insurance Company of Texas, Comprehensive InvestmentServices, Inc., and The Moody Foundation ("Plaintiffs") file this response to Defendant CharlesSchwab & Co., Inc.'s ("Schwab") objections to Plaintiffs' exhibits A through G, which werefiled in opposition to the pending motion to dismiss the Second Amended Complaint.Schwab correctly states that, generally, motions to dismiss are decided upon the fourcomers of the complaint; however, there are exceptions Schwab does not set out. Courts willconsider not only the complaint, but also any document attached to the complaint or incorporatedby reference, as well as legally required public disclosure documents, and documents possessedby or known to the plaintiff and upon which the plaintiff relied in drafting the complaint. In re:Lehman Bros. Sec. and ERISA Litig., 799 F. Supp. 2d. 258, 272 (2011). Courts may also takejudicial notice in appropriate circumstances. See Mangiafico v. Blumenthal, 471 F.3d 391, 398(2d Cir. 2006).Schwab's objections typically apply when a defendant seeks to bolster its request fordismissal with evidence. In those cases, courts have long been loathe to consider such attemptswithout first affording a plaintiff the protections of summary judgment practice-such as noticeand the ability to respond in kind, with evidence. Cartee Indus., Inc. v. Sum Holding L.P., 949F.2d 42, 47 (2d Cir. 1991) 1 However, the typical problem encountered when a court reviewsevidence extraneous to a complaint-lack of notice to the plaintiff-is absent when that evidencewas known to the plaintiff when drafting the complaint. See id. at 48 ("Where plaintiff has actualnotice of all the information ... and has relied upon these documents in framing the complaintthe necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated.").Therefore, where a plaintiff either knew about certain documents or had them in its possession,1Cartee Industries involved Plaintiffs who relied upon documents in framing their complaint, and then objected tothe use of those same documents in support of the defendants' motion to dismiss. Cartee Indus., Inc., 949 F.2d at 44.