Case 1:12-cv-00033-JRN Document 12 Filed 02/29/12 Page 1 of 32

Case 1:12-cv-00033-JRN Document 12 Filed 02/29/12 Page 18 of 32associated allegations must be rejected. See Kurtzman v. Compaq Computer Corp., No. H-99-779, 2002 U.S. Dist. LEXIS 26569, at *10-18, 38-50 (S.D. Tex. Mar. 30, 2002)(rejectingscienter claims based on general references to reports where there were no allegations about theactual contents of the reports, whether defendants read the reports, or whether the information inthe reports had been reported to defendants).One of the Complaint's more puzzling allegations is the contention that LPHI "disclosedin its periodic filings with the Commission that it advanced money to pay premium payments ...when the amounts escrowed for premiums was depleted.,,38 Plaintiff then uses this publicdisclosure to support its allegation that Defendants knew the LEs were short. 39 If, in fact,Plaintiff is correct, and the disclosure of the "steady" increase in premium payments imputedknowledge to Defendants of the LE underestimation, then, because that increase was publiclydisclosed, the public, in tum, was provided with the knowledge of the LE underestimation, andPlaintiffs fraud claim vanishes. See, e.g., In re Sun Microsystems" Inc. Sec. Litig., No. C 8920351 RP A, 1990 U.S. Dist. LEXIS 18740, at * 7 (N.D. Cal. Aug. 20, 1990)("If the materialcontaining the alleged omission actually discloses the facts that plaintiffs claim are absent thereis obviously no omission.").Plaintiff next alleges that a "consultant" retained by a "firm" in 2006 recommended in a"report" that LPI "track, analyze and validate" Dr. Cassidy's LEs.40This allegation fails tosatisfy Rule 9(b) because it fails to specifically identify the "firm," the "report," to whom thereport was provided, and when the report was provided. Further, and more importantly, theallegation fails to support any basis for the imputation of knowledge of the allegedunderestimation of LEs - indeed Plaintiff makes no claim that the report so found. Thus, this38 Compl., ~52.39 Compl., ~52.40 Compl., ~53.DEFENDANTS LIFE PARTNERS HOLDINGS, INC. AND R. SCOTT PEDEN'S MOTION TO DISMISSAND BRIEF IN SUPPORT - Page 12