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Eric Silverman, On Behalf of Himself v. Motorola

July 25, 2011

ERIC SILVERMAN, ON BEHALF OF HIMSELF
AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
MOTOROLA, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Amy J. St. Eve

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

Plaintiffs have filed a purported class-action lawsuit against Defendants Motorola, Inc. ("Motorola"); Motorola's Board Chairman and CEO, Edward J. Zander ("Zander"); Motorola's Executive Vice President and Chief Financial Officer, David W. Devonshire ("Devonshire"); Motorola's Executive Vice President and President of Motorola's Mobile Devices division, Ronald G. Garriques ("Garriques"); and Motorola's Executive Vice President and Chief Strategy Officer, Richard N. Nottenburg ("Nottenburg").*fn1 (R. 276.) Defendants have moved for summary judgment, arguing that there is no genuine dispute as to any material fact, and that they are entitled to judgment as a matter of law. (R. 366.) For reasons explained below, the Court denies Defendants' motion.

BACKGROUND

Plaintiffs allege that Motorola and certain of its directors and officers violated the Securities and Exchange Act of 1934, 15 U.S.C. §§ 78a et seq. ("Section 10(b)" and "Section 20(a)") and SEC Rule 10b-5, 17 C.F.R. § 240.10b-5 ("Rule 10b-5"). (R. 276.) They seek recovery on behalf of all persons who purchased or otherwise acquired Motorola's publicly traded securities from July 19, 2006, through January 4, 2007. (Id.) The Court certified a class of those who purchased publicly traded securities of Motorola during this period. (R. 140.)

Motorola has three primary business segments: Mobile Devices, Networks and Enterprise, and Connected Home Solutions. (Id.; R. 327 at 7.) The Second Amended Complaint ("the Complaint") alleges that Motorola and its officers engaged in a fraudulent scheme with respect to the Mobile Devices business segment. (R. 276 at 3.) According to the Complaint, the Mobile Devices segment relied on its vendor, Freescale Semiconductor, Inc. ("Freescale"), for the production of integrated circuits for use in the segment's 3G handsets. (Id.) Plaintiffs contend that Freescale repeatedly failed to deliver commercially viable circuits to Motorola on a timely basis, which had "disastrous" consequences. (Id. at 4) Specifically, those failures allegedly resulted in Motorola's being unable, three times, to deliver a 3G handset for introduction in the North American market during the first three quarters of 2006. (Id.) The Complaint provides that these problems threatened Motorola's ability consistently to deliver double-digit operating earnings, as the company's competitors, Nokia and Samsung, had already introduced 3G handsets by May 2006. (Id.)

As a result, Plaintiffs submit, Motorola suffered an earnings "gap" that grew to over $1.1 billion in July 2006. (R. 276 at 4-5.) Further, despite knowing that it was highly unlikely that the 3G handsets would contribute to earnings in 4Q 2006, Defendants "continued to assure analysts and investors that the 3G product portfolio was 'on track' and that Mobile Devices would deliver record, double-digit operating earnings during 3Q06 and 4Q06 based on increased market share for handset sales, including the purportedly forthcoming high-tier 3G devices." (Id. at 5.) The Complaint further provides that, "[r]ather than disclose the truth about the collapse of Motorola's earning potential . . ., defendants persisted in their fraudulent conduct and covered-up the Company's resulting earnings gap." (Id. at 6.) Specifically, it avers that Defendants "executed two highly unusual, 98.7% profit, intellectual property . . . licensing transactions valued at $440.0 million for the purpose of obfuscating the fact that the Company's 3G portfolio was in tatters and was materially affecting Motorola's handset margins and financial results." (Id.)

Defendants filed a motion for summary judgment on March 25, 2011. (R. 366.) They argue that the undisputed facts reveal that (1) their statements about Motorola's new 3G phones were truthful and not misleading; (2) they did not act with scienter; (3) their disclosures concerning intellectual-property revenue were not materially misleading; and (4) Plaintiffs cannot carry their burden of establishing loss causation. (R. 366-1 at passim.)

LEGAL STANDARD

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine dispute as to a material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining summary-judgment motions, "facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380 (2007). The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After "a properly supported motion for summary judgment is made, the adverse party 'must set forth specific facts showing that there is a genuine issue for trial.'" Anderson, 477 U.S. at 255 (quotation omitted). "The party opposing summary judgment . . . bears the burden of coming forward with properly supported arguments or evidence to show the existence of a genuine issue of material fact." Treadwell v. Office of Ill. Sec'y of State, 455 F.3d 778, 781 (7th Cir. 2006) (citations omitted). ANALYSIS

The elements of a private action under Rule 10b-5 are "'(1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation.'" Janus Capital Grp., Inc. v. First Derivative Traders, 131 S. Ct. 2296, 2301 n.3 (quoting Stoneridge Inv. Partners, L.L.C. v. Scientific-Atlanta, Inc., 552 U.S. 148, 157 (2008)).

The "materiality requirement is satisfied when there is 'a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the 'total mix' of information made available.'" Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1318 (2011) (quoting TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976)). Furthermore, a misrepresentation must be false when made. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 105 (2d Cir. 2007); Shushany v. Allwaste, Inc., 992 F.2d 517, 524 (5th Cir. 1993); Pommer v. Medtest Corp., 961 F.2d 620, 623 (7th Cir. 1992); In re NeoPharm, Inc. Secs. Litig., 705 F. Supp. 2d 946, 966 (N.D. Ill. 2010).

"Scienter" refers to "a mental state embracing intent to deceive, manipulate, or defraud." Id. (quoting Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193-94, & n.12 (1976)). The Supreme Court has also explained that "[r]eliance by the plaintiff upon the defendant's deceptive acts is an essential element of the § 10(b) private cause of action. It ensures that, for liability to arise, the 'requisite causal connection between a defendant's misrepresentation and a plaintiff's injury' exists as a predicate for liability." Stoneridge Inv., 552 U.S. at 159. A rebuttable presumption of reliance exists under the fraud-on-the-market doctrine, whereby "reliance is presumed when the statements at issue become public. The public information is reflected in the market price of the security. Then it can be assumed that an investor who buys or sells stock at the market price relies upon the statement." Id.

The Supreme Court recently explained that the loss-causation requirement means that "the defendant's deceptive conduct caused the investors' claimed economic loss." Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179, 2183 (2011). To satisfy this requirement, a plaintiff must "show that a misrepresentation that affected the integrity of the market price also caused a subsequent economic loss." Id. at 2186 (emphasis in original). "[T]he fact that a stock's 'price on the date of the purchase was inflated because of a misrepresentation' does not necessarily mean that the misstatement is the cause of a later decline in value. . . . [T]he drop could instead be the result of other intervening causes, such as 'changed economic circumstances, changed investor expectations, new industry-specific or firm-specific facts, conditions, or other events. If one of those factors were responsible for the loss or part of it, a plaintiff would not be able to prove loss causation to that extent. This is true even if the investor purchased the stock at a distorted price, and thereby presumptively relied on the misrepresentation reflected in that price." Id. (quoting Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 342 (2005)).

Finally, Section 20(a) of the 1934 Act provides that "[e]very person who, directly or indirectly, controls any person liable under any provision of this title or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person[.]" 15 U.S.C. § 78t(a). The Seventh Circuit has observed that, "to state a claim under § 20(a), a plaintiff must first adequately plead a primary violation of securities laws," such as "a violation of § 10(b) and Rule 10b-5." Pugh v. Tribune Co., 521 F.3d 686, 693 (7th Cir. 2008).

I. There Is a Genuine Dispute Whether Defendants' Statements About the 3G Phones Were False or Misleading Plaintiffs allege that Defendants made a number of misrepresentations and omissions that artificially inflated the market price of Motorola's securities during the Class Period. (R. 276 at 81.) Defendants move for summary judgment on the ground that there is no evidence that their alleged misrepresentations were in fact false when made. (R. 366-1 at 12-14.) Each supposed misrepresentation, they submit, effectively conveyed the same point: Motorola's 3G phones would reach the market in Q4 2006. (Id. at 12.) In their view, the undisputed evidence reveals that, at the time of each challenged representation or omission, Motorola expected a Q4 2006 release for those phones. (Id.) Defendants specifically observe that "Mobile Devices staff reports prepared for Mr. Garriques each week reflected an expected October or November ship date for the initial release of each new 3G phone contemporaneous with the alleged misstatements[.]" (Id.)

According to Defendants, the uncontroverted evidence supported the truthfulness of the July 19, 2006, challenged statements that "product launches . . . are on track" and that the "UMTS and HSDPA roadmap for the second half of this year . . . is quite on track." (Id. at 13.) They contend that a July 18, 2006, report stated an expected shipment date for Volans (Maxx) of October 18, 2006, and a date for Izar Global (xx) of October 20, 2006. (Id.) Similarly, they argue that there is no genuine dispute as to the accuracy of the July 25, 2006, statements: "UMTS/HSDPA devices that we're launching into Q4"; "We have three additional launches in the second half of this year that are teed up"; and "we're bringing five new products into the Christmas selling season." (Id.) Defendants observe that a July 26, 2006, report provided for expected shipment dates for Volans (Maxx) of October 18, 2006, for Izar Global (xx) of October 20, 2006, for V1100 (Rocket) of October 19, 2006, for M702iS (Izar Japan) of October 20, 2006, and for M702iG (Scorpius) of October 8, 2006. (Id.)

There is no dispute, in Defendants' view, that the September 6, 2006, representation that "we've got some good products coming out for the Q4 rush . . . [T]he MAX and the XX will ship in Q4. So, I was told that all our products are going to ship" was accurate when made. (Id.) Defendants point out that a report of the same day provided expected shipment dates of November 6, 2006, for both Volans (Maxx) and Izar Global (xx). (Id.) Finally, Defendants point out that an October 17, 2006, report, which provided expected shipment dates of November 6, 2006, for both Volans (Maxx) and Izar Global (xx) reveals as true the challenged statements on October 17, 2006, that "I expect these [RIZR, MAXX, XX, and GSM MOTOFONE] to be October and early to mid- November shipments, making sure that we hit that all-important fill the channel for the holiday season" and "[t]he big products for us-XX, MAXX, RIZR and the two versions of MOTOFONE-I . . . and don't feel supply-constrained ramping those up in Q4."*fn2 (Id.)

In light of the preceding showing, Plaintiffs "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 255. According to Defendants, the challenged statements provide only that Motorola would make its 3G phones available for sale in Q4 2006. (R. 366-1 at 12.) Plaintiffs dispute that reading, pointing out that the alleged misrepresentations-which include statements to the effect that "[t]hese are their flagship products for the second half of the year" and that the products "are running on a Freescale [Argon] platform"- convey "far more" than what Defendants suggest. (R. 374 at 20-21.) Instead-Plaintiffs submit-by these statements Defendants indicated that "the 3G phones were approved and highly anticipated by Motorola's customers ('flagship products' for 'lead operators') and that they would be ramped up and delivered ('launching into') in time for the holiday selling season." (Id. at 20.)

The Court agrees with Plaintiffs that, construed in the light most favorable to them, the alleged misrepresentations do more than simply state that Motorola's 3G phones would reach the market in Q4 2006. The challenged statements include: "product launches . . . are on track"; "we're bringing five new products into the Christmas selling season"; "three additional launches in the second half of this year . . . are teed up"; "we've got some good products coming out for the Q4 rush"; "making sure that we hit that all-important fill the channel for the holiday season"; "[t]he big products for us . . . I . . . don't feel supply-constrained ramping those up in Q4"; "[t]hese are their flagship products; and the "UMTS and HSDPA roadmap for the second half of this year . . . is quite on track." (R. 366-1 at 13; R. 374 at 20-24.) A reasonable jury could construe them as misleading investors into believing that Motorola would be ready to introduce its 3G phones en masse-that is, on a commercial scale sufficient to satisfy consumer demand-in time for "the holiday season" and "Q4 rush." See Loudermile v. Best Pallet Co., 636 F.3d 312, 314 (7th Cir. 2011) ("When ruling on a motion for summary judgment, the party opposing the motion gets the benefit of all facts that a reasonable jury might find."). In support of this reading, Plaintiffs point to Motorola's earnings conference call on April 18, 2006, at which Motorola's CEO, Zander, announced that there is "lots to come also in the second half [of] 2006" and "our new strategy is to announce products when we can ship them. But stay tuned, we've got a lot coming. . . . I think the second half is also going to be a great product launch." (R. 377-89 at 88) (emphasis added.)

This evidence reveals a genuine dispute whether Defendants' alleged misrepresentations and omissions conveyed information beyond the limited fact that Motorola would launch some number of its new 3G phones in Q4 2006. Furthermore, as the Court now explains, Plaintiffs have introduced sufficient evidence to create a genuine dispute as to the truthfulness of those statements.

With respect to the July 19, 2006, Q2 Motorola Earnings Conference Call and the July 25, 2006, Financial Analyst Meeting, Plaintiffs point to contemporaneous evidence of significant delays within Motorola. (R. 374 at 21.) There is no dispute that, "[a]s of mid-July, the ArgonLV was suffering from development issues that 'smelled like' an all-layer change, or a change in silicon, which was considered critical and would automatically delay the program by six months." (R. 379 at 37.) Nor is there a dispute that, as of July 20, 2006, Motorola had yet to find the root cause of the problem.*fn3 (Id. at 38.)

On July 11, 2006, Harry Almeida of Motorola's 3G Program Management wrote that an Executive Waiver was required for the November 22, 2006, SA (shipping date) for the Izar 3G phone for Cingular "[d]ue to the deviation from the 75% confidence SA date[.]" (R. 377-20 at 78.) Indeed, the revised 75% confidence SA was 84 days after the desired date of November 22, 2006. (Id. at 79-80.) Furthermore, and as both parties agree, the Monte Carlo analysis that Motorola conducted on July 12, 2006, confirmed that less than a 1% chance existed that Motorola would deliver Izar to Cingular by November 22, 2006.*fn4 (R. 376 at 22; R. 379 at 38.)

The parties also agree that, between July 19 and July 25, 2006, Motorola performed an additional Monte Carlo analysis of the Izar Global status, which concluded that less than a 1% probability existed that the company would meet an October 19, 2006, "controlled launch." (R. 379 at 40.)

Plaintiffs next direct the Court to a set of Motorola documents, entitled "Mobile Devices Business, Garriques Staff," showing that the "Volana (Europe) - RAZR V6," Rocket - V1100," and "Izar Global (Europe/Asia) - V3s" programs, which had SA dates in 2006 of October 18, 19, and 20, respectively, were status red as of July 26, 2006. (R. 377-86 at 36, 60.) According to those documents, "blue" means "program delivered," "green" represents "on track," "yellow" means "issues but recoverable," and "status red" means "not recoverable without change to program." (Id. at 71-74.) Although Defendants point to evidence that "Motorola would typically make changes to its programs . . . in order to achieve SA dates," such that status red on a project did not necessarily mean that the company would miss its target shipping date, construed in the light most favorable to Plaintiffs, the evidence of the Volana, Rocket, and Izar Global projects' being status red close in time to the alleged July 2006 representations calls those representations' truthfulness and/or non-misleading nature into question.

Plaintiffs point to further evidence that runs counter to the July 2006 statements that the "UMTS and HSDPA roadmap for the second half of this year . . . is quite on track" and that Motorola's 3G phones "are teed up underneath embargoes with some of our lead operators in the world. These are their flagship products for the second half of the year." In late July 2006, Cingular was "very concerned about [Motorola's] continued quality challenges and [its] limited 3G portfolio. . . [and] also told [it] that these two issues will have an impact to [sic] Motorola's share in 1st Half '07." (R. 377-24 at 4.)

Combined, the evidence relied upon by Plaintiffs creates a genuine dispute as to whether Defendants' July 2006 statements were truthful and not misleading. Although the evidence marshaled by Defendants may well enable it to launch an effective defense at trial, in light of the evidence introduced by Plaintiffs, a reasonable jury could find in favor in the latter's favor.

The same is true of the allegedly untruthful representations made at Motorola's 3Q 2006 earnings conference call on October 17, 2006. The press-release package that Motorola made available prior to the call provided that "MOTORAZR xx [is] on track and ramping for UMTS" and "MOTORAZR maxx on track and ramping for HSDPA[.]" (R. 377-46 at 3-8.) At the conference call itself, Zander stated that, "[a]s we look ahead to Q4 this year and fiscal 2007, we feel optimistic about our competitive position in our key businesses. With our new portfolio of mobile devices shipping in volume this quarter[.]" (R. 366-5 at 17.) He noted that "Europe was a little bit of a challenge in the quarter, largely due to 3G" (id. at 19), but immediately continued: "Having said that, RAZR continues as the top seller in western Europe. To drive 3G momentum in Q4, we're launching, of course, our RAZRXX and RAZRMAXX." (Id.) He further commented: "Coming this quarter, the XX for UMTS and RAZRMAXX for HSDPA. Speaking of those, the XX is designed for #GE and UMTS. . . This will be shipping this quarter. Also a great, I think, exciting, really exciting product is our MAXX. It is ramping for HSDPA. Both of these products, as I said earlier, will be shipping this quarter and should be a definite boost, especially in the European market." (Id. at 20.)

Subsequently, an analyst posed the following question to Garriques: "Ron . . . you don't seem to have nearly the focus on 3G devices as does, say, Nokia or Samsung. You have been bearish on it in the past. What do you need to see before you get more bullish here? Is it going to be higher data ARPUs at the carriers at greater 3G coverage? Are you looking for a strong uptick in 3G phone sales from others before you kind of plough into it with both legs?" (Id. at 22.) Garriques responded:

Thanks for the question, Ed. I think the predominant-when you think 3G, meaning specifically UMTS, for us, this quarter is about a platform change. We took our previous platform, which we built kind of V3x on, and now have transitioned to what we call [ArgonLV] from Freescale. With new products like XX and MAXX, I do believe this platform in this quarter gets us a very competitive set of products out in the marketplace. I have been relatively bearish about the size of the UMTS market in 2006. I think that's kind of the way it played out. I am more bullish on 2007. I'm also more bullish on our 2007 roadmap, consistent with that stronger market.

(Id.).

Subsequently, in response to an analyst question, Zander stated that "we do think this quarter is going to be, with all our new products shipping, a good one for Mobile Devices." (Id. at 24.) Garriques then commented: "The big products for us-XX, MAXX, RIZR and the two versions of the MOTOFONE-I feel very good, and don't feel supply-constrained ramping those up in Q4." (Id.)

Another analyst later asked: "So . . . looking at the product lineup you have coming with the RIZR, the MAXX, the XX and two versions of the MOTOFONE, are these going to be late quarter introductions, similar to the KRZR last quarter? Or do you expect these to be in meaningful volume perhaps before that November Thanksgiving Weekend holiday sales season?" (Id. at 25.) Garriques responded: "Across the board, with the exception of the CDMA MOTOFONE, I expect these to be October and early to mid-November shipments, making sure that we hit that all-important fill the channel for the holiday season. Great thanks to [John Sipola] and Terry Vega on the CDMA MOTOFONE. That's something that we really didn't have . . . targeted until Q1 of next year. With a lot of great work and a lot of great platforming, they were able to pull that into this year. So that one's kind of an end-of-the-year piece, but the rest of them are all solid and ready for the holiday season." (Id.)

Plaintiffs have introduced more-than-sufficient evidence to establish the existence of a genuine dispute whether the representations made by Zander and Garriques at the October 17, 2006, earnings conference call were false or misleading.

The parties agree that the Izar NA for Cingular had, by August 28, 2006, "suffered '7 Sev 1s [most severe problems or showstoppers], 80 Sev 2s and approx[imately] 100 Sev 3s.'" (R. 379 at 42.) A Monte Carlo analysis of the same week determined that there was less than a 1% chance that the Izar program would hit its target date. (Id.)

Plaintiffs also point to an August, 25, 2006 email from one Motorola employee to another stating that "DoCoMo is now predicting that the service in [sic] will be February for Scorpius and March for Izar . . ., which will be a complete disaster (no 2006 business, launching 702 when our competition launches 703 anti-Razr missile.)" (R. 377-32 at 18.) The parties also agree that, in late August 2006, "Freescale acknowledged that due to design and developmental problems with the Argon chipsets, 'Volcans was shut down this week, and we are impacting IZAR as well.'" (R. 379 at 43-44.) In addition, Plaintiffs point to an August 30, 2006, email from Motorola's Chief Quality Officer, Rey More, to Joe Coletta, bearing the subject title "IZAR," that states: "This is worse than I thought possible." (R. 377-21 at 57.)

Plaintiffs point to evidence that Motorola in September 2006 continued to encounter problems, including a September 11, 2006, email from Curtis Mroz, an electrical engineer for Motorola, providing that "[w]e have a serious show stopper in the qualification of the ArgonLV POP with respect to Warpage." (R. 377-21 at 78.) A September 20, 2006, email, bearing the subject line "IZAR Hardware Changes," from Jeffrey Howard to Michelle Freeman at Cingular Wireless stated that, "Motorola reviewed these HW [hardware] changes in detail yesterday . . . . They have stated that the changes are to improve manufacturing yields. . . . If they don't deliver until 11/2 then this means that we will have to test through the month of November (Thanksgiving week . . . will be understaffed due to vacations). Earliest TA in my opinion will be the first week in December. This means an in-store date of Mid-December best case." (R. 377-22 at 2.) Plaintiffs also proffer a Freescale October 1, 2006, email, which stated:

According to Mike Hader [identified by Plaintiffs as Senior Director on Motorola's 3G program] this is the most severe issue they have ever faced this late into a program. MDB released a new s/w load Wednesday to their test sights around the world. This caused several phones (Izar Global / IZAR NA and Volans) to go into a panic mode every 10-15 minutes then lock up. After a day of this all field testing was stopped pending a solution. A temporary work around was put in place Saturday morning but this causes the phone to draw 15% more power. This is not a production solution. MDB has already missed a field testing deadline with Cingular, and are desperate to get an extension. Mike . . . said if its [sic] not fixed asap Cingular will refuse phones in Q4 which would be a disaster. . . . They are suspecting this has something to do with the CCM module in the Argon LV chip. It is unknown if this is chip related or s/w related.

(R. 377-35 at 55.) In addition, a Motorola report of October 9, 2006, indicated that delivery dates for all new 3G handsets were flagged red, which according to the report meant "not recoverable." (R. 377-25 at 11.) Plaintiffs also proffer an internal Motorola email of October 17, 2006, entitled "status of 3G platform (Volans, Izar, Rocket) - no improvements." (R. 377-20 at 16.) That email provided that "[t]odays [sic] situation . . . is causing huge doubts within Vodafone about launching these devices in time for Xmas 06." (Id.)

Defendants vigorously dispute the import of this evidence, which they argue to be of more limited relevance than Plaintiffs maintain. (R. 366-1; R. 378; R. 379.) They also contend that their representations at the October 17, 2006, earnings conference call were entirely truthful. (Id.) Although the evidence introduced at trial may vindicate them in this respect, Defendants are not entitled to summary judgment in light of Plaintiffs' showing that there is a genuine dispute as to a number of material facts. It will be for the jury to resolve the dispute.

II. There Is a Genuine Dispute Whether the 3G Phones Were Material to Investors or to Motorola's Financial Results In order to succeed on a Section 10(b) claim, Plaintiffs "must show that the defendant made a statement that was 'misleading as to a material fact.'" Matrixx Initiatives, 131 S. Ct. at 1318 (quoting Basic, Inc. v. Levinson, 426 U.S. 224, 238 (1988)). The "materiality requirement is satisfied when there is 'a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the 'total mix' of information made available.'" Id. (quoting TSC Indus., 426 U.S. at 449); see also Searls v. Glasser, 64 F.3d 1061, 1065-66 (7th Cir. 1995). Materiality is usually a question for the jury. See, e.g., Wehrenberg v. Fed. Signal Corp., No. 06-CV-487, 2008 WL 2787438, at *6 (N.D. Ill. Apr. 29, 2008) ("[S]ummary judgment is appropriate on the issue of materiality only if the information in question is 'so obviously important or so obviously unimportant to an investor[] that reasonable minds cannot differ on the questions.'") (collecting cases); see also Gebhardt v. ConAgra Foods, Inc., 335 F.3d 824, 829 (8th Cir. 2003) ("Ordinarily, materiality is ...


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