Smilovits v. First Solar Incorporated et al
Court Docket Sheet

District of Arizona

2:2012-cv-00555 (azd)

ORDER. Case Management Order No. 2. Discovery due by 10/31/2014. Dispositive motions due by 11/21/2014. Signed by Judge David G Campbell on 11/25/2013.

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Mark Smilovits, et al., No. CV12-00555-PHX-DGC 9 Plaintiffs, CASE MANAGEMENT ORDER 10 NUMBER 2 v. 11 12 First Solar, Inc., et al., 13 Defendants. 14 On November 22, 2013, a second case management conference was held pursuant 15 to Rule 16(b) of the Federal Rules of Civil Procedure. The parties met before the 16 conference and prepared a joint case management report. 17 The Court concludes that this case should not be stayed pending the Supreme 18 Court's decision in the Halliburton case. That decision will not end this case. The 19 substantial institutional investors in the plaintiff class are virtually certain to carry this 20 case forward even if the class is decertified as a result of the Supreme Court's decision, 21 and most of the merits discovery would be the same even if decertification occurred. 22 This case has been pending for almost two years, and the Court concludes that it should 23 move forward toward resolution. 24 IT IS HEREBY ORDERED: 25 1. Deadline for Initial Disclosures. Initial disclosures required by Federal 26 Rule of Civil Procedure 26(a), if not already exchanged, shall be exchanged no later than 27 December 13, 2013. The parties shall file with the Clerk a Notice of Initial Disclosure, 28 rather than copies of the actual disclosures. 1 2. Deadline for Joining Parties, Amending Pleadings, and Filing Supplemental 2 Pleadings. The Court concludes that the time for joining parties, amending pleadings, 3 and filing supplemental pleadings has passed. 4 3. Discovery Limitations. Depositions shall be limited to seven hours each as 5 provided in Rule 30(d)(1) of the Federal Rules of Civil Procedure. 6 4. Deadlines for Fact Discovery. 7 a. The parties shall complete their meet and confer obligations with 8 respect to Plaintiffs' outstanding discovery requests by December 13, 2013. 9 b. Defendants shall respond to Plaintiffs' first set of document 10 production requests by December 20, 2013. 11 c. Defendants shall begin production in response Plaintiffs' first set of 12 document production requests by January 24, 2014. 13 d. The parties shall complete document production by April 25, 2014. 14 e. The parties shall complete fact discovery by October 31, 2014. 15 f. Depositions: All depositions shall be scheduled to commence at 16 least five working days prior to the discovery deadline. A deposition commenced five 17 days prior to the deadline may continue up until the deadline, as necessary. 18 g. The parties may mutually agree in writing, without Court approval, 19 to extend the time provided for discovery responses in Rules 33, 34, and 36 of the Federal 20 Rules of Civil Procedure. Such agreed-upon extensions, however, shall not alter or 21 extend the discovery deadlines set forth in this Order. 22 5. Expert Discovery. Expert discovery shall occur after the Court's final 23 ruling on motions for summary judgment, and shall not provide a basis for additional 24 summary judgment motions. Within 15 days of that ruling, the parties shall jointly 25 propose an expert discovery schedule. 26 6. Discovery Disputes. 27 a. The parties shall not file written discovery motions without leave of 28 -2- 1 Court.1 If a discovery dispute arises, the parties promptly shall contact the Court to 2 request a telephone conference concerning the dispute. The Court will seek to resolve the 3 dispute during the telephone conference, and may enter appropriate orders on the basis of 4 the telephone conference. The Court may order written briefing if it does not resolve the 5 dispute during the telephone conference. 6 b. Parties shall not contact the Court concerning a discovery dispute 7 without first seeking to resolve the matter through personal consultation and sincere 8 effort as required by Local Rule of Civil Procedure 7.2(j). Any briefing ordered by the 9 Court shall also comply with Local Rule of Civil Procedure 7.2(j). 10 c. Absent extraordinary circumstances, the Court will not entertain fact 11 discovery disputes after the deadline for completion of fact discovery, and will not 12 entertain expert discovery disputes after the deadline for completion of expert discovery. 13 7. Deadline for Filing Dispositive Motions. 14 a. Dispositive motions shall be filed no later than November 21, 2014. 15 Such motions must comply in all respects with the Federal Rules of Civil Procedure and 16 the Local Rules. 17 b. If the parties wish to file motions for summary judgment before this 18 date, they shall place a joint conference call to the Court. 19 c. The parties shall not notice oral argument on any motion. Instead, a 20 party desiring oral argument shall place the words "Oral Argument Requested" 21 immediately below the title of the motion pursuant to Local Rule of Civil Procedure 22 7.2(f). The Court will issue an order scheduling oral argument as it deems appropriate. 23 8. Deadline for Engaging in Good Faith Settlement Talks. All parties and 24 their counsel shall meet in person and engage in good faith settlement talks no later than 25 July 31, 2014. Upon completion of such settlement talks, and in no event later than five 26 working days after the deadline set forth in the preceding sentence, the parties shall file 27 1 The prohibition on "written discovery motions" includes any written materials 28 delivered or faxed to the Court, including hand-delivered correspondence with attachments. -3- 1 with the Court a joint report on settlement talks executed by or on behalf of all counsel. 2 The report shall inform the Court that good faith settlement talks have been held and shall 3 report on the outcome of such talks. The parties shall indicate whether assistance from 4 the Court is needed in seeking settlement of the case. The parties shall promptly notify 5 the Court at any time when settlement is reached during the course of this litigation. 6 9. The Deadlines Are Real. The parties are advised that the Court intends to 7 enforce the deadlines set forth in this Order, and should plan their litigation activities 8 accordingly. The parties are specifically informed that the Court will not, absent truly 9 unusual circumstances, extend the schedule in this case to accommodate settlement talks. 10 10. Attachment A. The parties shall comply with the requirements set forth in 11 Attachment A to this order. 12 Dated this 25th day of November, 2013. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- Attachment A The following procedures shall be followed in addition to those set forth in the Case Management Order: 1. As to any discovery dispute, the lead lawyers will try to resolve disputes by phone and no one will write letters to the other: just e-mails and phone calls. 2. Depositions will be taken by agreement, with both sides alternating and trying in advance to agree upon the dates for depositions, even before the deponents are identified. 3. All papers will be served on the opposing party by e-mail. 4. Rule 34 objections must be stated with specificity and regarding a specific request, not in boilerplate or general form. Rule 34 responses must state whether any documents or electronically stored information are being withheld on the basis of objections. If the responding party elects to produce copies of documents or electronically stored information instead of permitting inspection, the response must state that copies will be produced, and the production must be completed no later than the time for inspection stated in the request or a later reasonable date identified in the response. Documents may be produced on a rolling basis as soon as they have been located and numbered; if copies are produced, the originals will be made available for inspection upon request. 5. If agreement cannot be reached on the form of a protective order within 48 hours of the time they are exchanged, the parties will call the Court and, without argument, ask Court to select one or the other. 6. All deposition exhibits will be numbered sequentially regardless of the identity of the deponent or the side introducing the exhibit and the same numbers will be used in pretrial motions and at trial. 7. The parties will share the expense of imaging all deposition exhibits. 8. If issues arise regarding privilege logs, each side will have the right to select 15 documents off the other's privilege list for submission to the Court for in camera inspection. 9. The Court suggests that the parties use the same court reporter/videographer, who agrees to provide specified services at discounted prices for the right to transcribe all depositions. This is a suggestion, not a requirement.

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Scheduling Conference held on 11-22-2013, before Judge Campbell. Court Reporter Patricia Lyons. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/26/2013. Redacted Transcript Deadline set for 1/6/2014. Release of Transcript Restriction set for 3/4/2014.

2 1 UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF ARIZONA 3 _________________ 4 Mark Smilovits, et al.,)) 5 Plaintiffs,) CV 12-00555-PHX-DGC) 6 vs.) Phoenix, Arizona) November 22, 2013 7 First Solar Incorporated, et al.,)) 8 Defendants.) _______________________________________) 9 10 11 12 13 14 BEFORE: THE HONORABLE DAVID G. CAMPBELL, JUDGE 15 REPORTER'S TRANSCRIPT OF PROCEEDINGS 16 SCHEDULING CONFERENCE 17 18 19 20 21 Official Court Reporter: Patricia Lyons, RMR, CRR 22 Sandra Day O'Connor U.S. Courthouse, Suite 312 401 West Washington Street, SPC 41 23 Phoenix, Arizona 85003-2150 (602) 322-7257 24 Proceedings Reported by Stenographic Court Reporter 25 Transcript Prepared with Computer-Aided Transcription 2 2 14:00:06 1 A P P E A R A N C E S 2 3 For Lead Plaintiffs: 4 Robbins Geller Rudman & Dowd, LLP By: JASON A. FORGE, ESQ. 14:00:06 5 655 W. Broadway, Ste 1900 San Diego, CA 92101 6 7 8 For Defendants: 9 Morrison & Foerster, LLP By: JORDAN ETH, ESQ. 14:00:06 10 425 Market St. San Francisco, CA 94105 11 Osborn Maledon, PA 12 By: MAUREEN BEYERS, ESQ. P.O.Box 36379 13 Phoenix, AZ 85067 14 14:00:06 15 16 17 18 19 20 21 22 23 24 25 2 3 14:00:06 1 P R O C E E D I N G S 2 3 THE COURTROOM DEPUTY: Civil case 2012-555, Mark 4 Smilovits versus First Solar Incorporated, and others, on for 15:00:55 5 scheduling conference. 6 THE COURT: Counsel, would you identify yourselves, 7 please. 8 MR. FORGE: Good afternoon, Your Honor. Jason Forge 9 for the plaintiffs and for the class. 15:01:02 10 THE COURT: Good afternoon. 11 MR. ETH: Good afternoon, Your Honor. Jordan Eth for 12 defendants. 13 MS. BEYERS: Maureen Beyers, Osborn Maledon. 14 THE COURT: All right. Good afternoon. 15:01:15 15 I'd like to talk first about the class notice. You 16 filed a stipulation on November 8, which is at Docket 172. 17 What do you estimate, roughly, to be the size of this class? 18 MR. FORGE: Your Honor, I know we're in the 19 thousands. But, unfortunately, beyond that I really don't 15:01:50 20 have anything more precise for the Court. 21 THE COURT: Any better estimate? 22 MR. ETH: I can't give a better estimate, Your Honor. 23 THE COURT: Okay. 24 I would like to have you -- I want to talk through 15:02:09 25 the stipulation, but I'd like to have you submit it to me as a 2 4 15:02:12 1 form of order rather than my just approving the stipulation, 2 because there's changes that I think need to be made. So if 3 one of you could send us by e-mail a Word version of the 4 stipulation reformatted as an order, that would be helpful. 15:02:31 5 But let's talk about a couple issues here. In 6 paragraph 5 of the stipulation, you indicate that the time 7 period is ten business days. But every other place you refer 8 to a period of time you drop the word "business." You just 9 say 15 days or 15 days or ten days, 45 days. It seems to me 15:02:53 10 that it needs to be clear whether it's business or calendar 11 days. So my question to you all is whether any of this is 12 intended to be calendar days or whether it's all intended to 13 be business days. 14 MR. FORGE: Your Honor, may I confer with Mr. Eth? 15:03:09 15 THE COURT: Yeah. 16 (Counsel confer.) 17 MR. FORGE: I think both sides are in agreement we 18 can strike "business" from that paragraph and then we'll be 19 consistent -- 15:03:37 20 MR. ETH: Well, I think what we were saying is 21 "business days" was there because all the others are just 22 calendar days. 23 THE COURT: Well, then if we do that, let's say 24 "calendar" all the way through. So that will need to be on 15:03:48 25 paragraph 6 in two places -- 2 5 15:03:53 1 (Counsel confer.) 2 MR. FORGE: How about if we just say 14 days instead 3 of ten business days. 4 THE COURT: That's fine. 15:04:05 5 MR. ETH: Saves some words. 6 THE COURT: That's fine. 7 In paragraph 6, the notice administrator is referred 8 to on lines 19 and 20, and then on 21 you refer to the claims 9 administrator. I'm assuming that's an error -- 15:04:25 10 MR. FORGE: That is an error -- 11 THE COURT: -- that should be notice administrator, 12 right? 13 And it states that the notice administrator is going 14 to send copies of the notice to brokers and nominees on the 15:04:42 15 notice administrator's list. Then in the next line, comma, 16 "as well as others identified on the transfer list." Now, is 17 that other brokers and nominees? Or is that other persons? I 18 couldn't tell if "others" was referring back to brokers and 19 nominees or was intended to be broader than that. 15:05:04 20 MR. FORGE: Your Honor, it's any -- basically the -- 21 in talking with the, in this case, the notice administrator, 22 they said over the years they've compiled a list that is 23 sometimes more comprehensive than the lists they receive from 24 the corporate entities. So to the extent the list that First 15:05:26 25 Solar provides is broader than what -- than the database 2 6 15:05:30 1 they've already built up, they will cover any additional names 2 on that list. So the "others" in this instance is referring 3 to -- 4 THE COURT: Anybody. 15:05:42 5 MR. FORGE: -- on the transfer list. Basically 6 anything in excess. 7 THE COURT: Then let's say, "As well as any other 8 persons or entities identified on the transfer list," so it's 9 clear it's whoever is on that list gets this notice. 15:06:05 10 Paragraph 8, last line after paren two, says "Caused 11 the notice to be posted on its case website." Is that the 12 notice administrator's case website? 13 MR. FORGE: That's correct, Your Honor. 14 THE COURT: Okay, let's specify that, then. 15:06:26 15 Which raises another question. There's nothing in 16 the notice when we get to it that gives a website or an 800 17 number to go to, as I recall. It says near the end that if 18 you have questions, you can call Jason Forge or you can 19 contact Jason Forge, but all it gives is his San Diego 15:06:52 20 address. 21 It seems to, me for the ease of class members we 22 should provide an 800 number, which is what I've typically 23 seen in large class notices, or a website where they can go to 24 to get additional information. 15:07:05 25 MR. FORGE: Your Honor, I do have that 800 number, 2 7 15:07:08 1 and I'll provide that to the Court along with the electronic 2 copy of these documents. 3 THE COURT: Well, what I'd like you to do is get it 4 into the notice just so we're sure that the notice that goes 15:07:19 5 out gives the recipients that 800 number. 6 MR. FORGE: We'll do that. 7 THE COURT: You don't need to separately give it to 8 me because you all are going to be sending out the notice. 9 Paragraph 11 says within 15 days of the deadline for 15:07:37 10 requesting exclusion, the notice administrator shall submit a 11 declaration setting forth its notification and then -- and 12 setting forth its exclusions. And then in paragraph 12, 13 within 15 days, which is the same deadline of requesting 14 exclusion, plaintiffs counsel shall -- we ought to take out 15:08:07 15 the word "promptly" because it should be within 115 days, not 16 promptly after 15 days -- file all such requests for 17 exclusion. Then I would like to add the following language: 18 Comma, "and the parties shall file a joint memorandum 19 regarding the status of the notice efforts and any issues that 15:08:28 20 should be addressed by the Court." 21 Any disagreement with that? 22 MR. FORGE: No, Your Honor. 23 THE COURT: Okay. 24 So why don't you make those changes and submit that 15:09:08 25 to the form of an order, and I will issue it promptly so we 2 8 15:09:11 1 can get going with the notice. 2 On the notice itself, in my order granting class 3 certification, I indicated in Footnote 2 that to the extent 4 plaintiffs disclaim any intent to prove individual reliance, 15:09:33 5 this fact must be made clear in the class notice. Class 6 members must understand that they will be giving up any 7 individual reliance claims if they choose not to opt out of 8 the class. 9 That's not in the notice. I think that needs to be 15:09:46 10 added. 11 MR. ETH: Well, Your Honor, we discussed this with 12 counsel. We thought that that would raise a lot of new issues 13 that we're going to address. We discussed whether we thought 14 it was best not to include that, and where we wound up is that 15:10:03 15 plaintiff is proceeding in the more conventional way, which is 16 on behalf of the entire class, not confining it to only those 17 who are relying on the efficiency of the market. 18 MR. FORGE: Your Honor, that's -- what Mr. Eth said 19 is, of course, accurate. What happened is we did propose 15:10:22 20 language that had that specific type of carve-out that Your 21 Honor's footnote asked the parties to include if that we 22 weren't going to be allowing people to pursue individual 23 reliance claims. 24 What the defense raised in response to that was an 15:10:39 25 understandable concern that they want all of the possible 2 9 15:10:43 1 claims to be covered by this case. In the event of a 2 resolution, they want to wrap up all possible claims. 3 What they've agreed is that the defense won't object 4 to the raising of any individual reliance claims in this 15:11:01 5 ongoing case, even despite the language of the complaint and 6 despite arguments made at class certification, the defense is 7 going to accommodate anyone who wishes to raise an individual 8 reliance claim. 9 THE COURT: Well, it seems to me the more relevant 15:11:15 10 question is whether the plaintiffs are changing your strategy 11 to the extent that you are not solely relying on the 12 fraud-on-the-market theory as you argued at class 13 certification, that you're representing the class for purposes 14 of all claims. 15:11:30 15 MR. FORGE: Your Honor, it's a tough question to 16 answer because our strategy is going to remain the same in 17 terms of how we're approaching the case. I don't think that 18 means any individual plaintiff would be foreclosed from 19 advancing whatever facts they had to support individual 15:11:49 20 reliance should they need to assert that type of -- that type 21 of claim. 22 THE COURT: Well, in my order I did not accept your 23 argument that I should certify the class strictly on the basis 24 of your assertion you would only rely on fraud on the market. 15:12:11 25 So that position didn't get the class certified. 10 2 15:12:14 1 What I hear you saying is since that position didn't 2 get the class certified, you, both sides, are willing to fall 3 back to the more traditional securities fraud class action 4 where you're just representing the class. You'll obviously 15:12:27 5 make whatever strategic decisions as class counsel you think 6 are best, but you're no longer in effect disclaiming -- you're 7 no longer asserting that this is, from beginning to end, 8 nothing but a fraud-on-the-market -- 9 MR. FORGE: Exactly -- 15:12:41 10 THE COURT: -- case. 11 MR. FORGE: -- we're no longer committing to that 12 exclusive path. Exactly. 13 THE COURT: All right. In light of that, I don't 14 think we need to include the language. And I understand why 15:12:51 15 you want the most complete class you can get. 16 MR. ETH: Your Honor, it does -- this issue does 17 raise the Halliburton cert grant issue. I don't know if the 18 Court wants -- 19 THE COURT: We're going to talk about that when we 15:13:06 20 get to case management discussion. 21 MR. ETH: Fine. Thank you. 22 THE COURT: Let's look at the class notice. Page 4. 23 First paragraph in the class notice. This is the longer form 24 of the class notice. So it's the last sentence of the first 15:13:41 25 paragraph. It says, "Requests for exclusion that do not 11 2 15:13:44 1 comply with the above requirements will be invalid." 2 You see that language? 3 MR. FORGE: Yes, Your Honor. 4 THE COURT: I think we should then say, comma, "and 15:13:52 5 you will not be excluded from the class." So they understand 6 that the effect of an invalid exclusion effort means they're 7 in the class. 8 Going down to the middle of the page, we've got Roman 9 numeral IV and there's a paragraph and First Solar litigation 15:14:20 10 information, address information. And then the next paragraph 11 on line 20 says, "In the alternative, nominees are requested 12 to send a list of the names and addresses of such beneficial 13 owners to Gilardi and Company, LLC, at the above address no 14 later than ten days after receipt of this notice." 15:14:43 15 It seems to me we need to have the same time 16 limitation in that paragraph that we had in the paragraph 17 above so they've either got to send notice or send the list 18 within 10 days. 19 Andy disagreement? 15:15:06 20 MR. FORGE: No, Your Honor. 21 MR. ETH: No. 22 THE COURT: All right. Those are my only comments on 23 the notice and the summary notice, except that I think we need 24 to get some easy contact method into the notice, and the 800 15:15:21 25 number should do that. 12 2 15:15:23 1 So I will -- actually, I do have one other question 2 about the summary notice. Glad I didn't forget this. The 3 summary notice essentially says what the formal full notice 4 says, which is, if you want out of the class, you have to 15:15:47 5 request exclusion. My understanding is this summary notice is 6 going to be published in Investors Business Daily one time. 7 My concern is if somebody reads it and they say, "Oh, yeah, 8 I'm a member of that class," and you don't know who they are, 9 and they say, "I want to stay in the class, I'm not going to 15:16:05 10 be excluded," they don't send in the exclusion, they've done 11 nothing to notify you they are in the class and you don't know 12 who they are because they just read the ad in the magazine. 13 It seems to me the summary should say, you can opt 14 out by opting out, and if you do not do so, please contact the 15:16:25 15 following to notify them that you view yourself as a member of 16 the class, just so you can pick up folks who see the ad who 17 don't get the actual mailed notice. 18 MR. FORGE: Your Honor, I'll add some language to 19 that effect. I'll probably put some sort of qualifier as you 15:16:41 20 indicated, "if you haven't otherwise" -- "if you haven't 21 otherwise received notice of the class." 22 THE COURT: That's fine. If they get a written 23 notice, that's a fair point, I don't want them thinking they 24 have to contact you when they read the ad. But I'm thinking 15:16:52 25 about the purpose of the ad, which is to pick up folks who 13 2 15:16:54 1 don't get the written notice in the mail. 2 MR. FORGE: Right. 3 THE COURT: So we ought to have a method in there for 4 them to let you know who they are if they didn't get the 15:17:05 5 written notice in the mail so they're on your list for any 6 later notices that come out. 7 MR. FORGE: I see your point. I'll add some 8 language. 9 THE COURT: All right. Why don't you submit, if you 15:17:14 10 would, the order as we've revised it, with the revised class 11 notices addressing these other issues. I'll look at them and 12 then I'll enter the order and get that done. If you can get 13 this to me, say, Monday, I'll get it done probably on Tuesday 14 or Wednesday next week so it gets done quickly. 15:17:30 15 MR. FORGE: Will do. 16 THE COURT: Okay. Let's talk about the litigation 17 schedule. Mr. Eth, you wanted to say something about 18 Halliburton. 19 MR. ETH: I did. Your Honor, should I come up here, 15:17:42 20 perhaps -- 21 THE COURT: That's fine, yeah. 22 MR. ETH: -- to address Halliburton? 23 So, Your Honor, Halliburton is likely going to be the 24 most important securities decision in at least 25 years. The 15:18:03 25 Basic decision, Basic versus Levinson, is the entire 14 2 15:18:08 1 foundation of modern securities litigation. 2 The cases that were cited in the cert briefing we 3 just went through, I actually went back and checked, the Basic 4 case itself is cited 20 times by the Court and by the parties, 15:18:20 5 and the cases that didn't -- 6 THE COURT: What do you mean by "the Court"? 7 MR. ETH: The Court in its ruling cited Basic. 8 THE COURT: Which court? 9 MR. ETH: This Court in its ruling -- 15:18:30 10 THE COURT: Oh, my court. Okay. 11 MR. ETH: So when you look at this Court's ruling and 12 you look at the briefs, you see it cited 20 times. But beyond 13 that, all the cases, all the cases discuss how these claims 14 work, how you should evaluate efficiency, are all 15:18:46 15 interpretations of Basic. Cammer, the Cammer factors and 16 whether it is Factor 5 or 1 through 4 and all of that is an 17 interpretation of Basic. Amgen is an interpretation of Basic. 18 All of these decisions are an interpretation of Basic. 19 The Supreme Court just decided last Friday to accept 15:19:06 20 review of whether Basic should be overruled or substantially 21 modified. 22 So what we have is a situation where not just the 23 existence of this case at all, but whether it should be 24 certified, whether they can rely on a presumption of reliance, 15:19:22 25 all of that, all of that is completely up in the air. Either 15 2 15:19:25 1 will be changed so they can't rely on a presumption reliance 2 or will be modified. 3 And, recall, this was a close call. We thought we 4 had the better argument, but it was a close call on class 15:19:38 5 certification. So class certification was front and center of 6 this case. And we're going to hear from the United States 7 Supreme Court in a way that may dramatically change or 8 completely undermine the basis for this. 9 I bring this up at this juncture because now we're 15:19:57 10 about to enter into the phase where we're launching the 11 battleship. 12 There was a discussion couple months ago right here 13 about the social costs of these cases. And now what we're 14 talking about is First Solar, young technology company, 15:20:16 15 producing hundreds of thousands, perhaps millions of pages of 16 documents, seven-figure costs, lots of distraction, all of 17 which may have been either unnecessary or in for the wrong end 18 or should be changed, all because of a pending Supreme Court 19 ruling. So the prejudice is quite obvious to the parties and 15:20:41 20 to the Court by sending us down this road. 21 And we did a little research to see what has happened 22 in similar situations where there's a Supreme Court -- the 23 Supreme Court's granted cert, district courts have an issue 24 before them. And with Wal-Mart and with Concepcion, district 15:21:01 25 courts have actually stayed cases. We're just saying this 16 2 15:21:05 1 point should -- we should take into account the fact 2 Halliburton will be decided. 3 There were decisions, if I could point out a few to 4 the Court. There's one by Judge Broomfield, few years ago, in 15:21:22 5 Parra versus Bashas', because Wal-Mart, cert had been granted 6 in Wal-Mart, and so the court in the middle of December stayed 7 the case in light of that. 8 And there's several other cases, from cases of courts 9 within the Ninth Circuit and all over the country in light of 15:21:42 10 Concepcion and in light of Wal-Mart. Now what I'm saying is 11 in light of Halliburton, to start the full-scale discovery 12 that's required in a case like this, would be prejudicial and 13 wasteful and could wind up sending us in the wrong direction. 14 THE COURT: Do you have the wording, the specific 15:22:05 15 questions in the cert petition on which the Supreme Court 16 granted review? 17 MR. ETH: I do, and I can hand it up to the Court. 18 THE COURT: That's fine. 19 Could you have a copy for counsel? 15:22:15 20 MR. ETH: I do. 21 MR. FORGE: I have -- 22 MR. ETH: I do. 23 THE COURT: They granted review on both questions? 24 MR. ETH: Yes. 15:23:13 25 THE COURT: Okay. I understand your point. Thank 17 2 15:23:15 1 you. 2 MR. ETH: Your Honor, if I may just say one other 3 thing. The reason we didn't include any briefing on this is 4 literally this was granted just as we were about to file -- 15:23:28 5 THE COURT: That's fine. Briefing -- this really 6 isn't a briefing issue. This is a discretion judgment call. 7 So I understand why you didn't, but I probably wouldn't have 8 felt it necessary to read in any event. 9 MR. FORGE: Your Honor, I agree with the Court, I 15:23:48 10 really don't think this is a briefing issue. It is certainly 11 a discretionary issue. 12 THE COURT: I didn't mean to suggest by that which 13 way I was going to rule. 14 MR. FORGE: I know that. I may regret saying that 15:23:58 15 and wish I had briefed it. 16 But I really think Your Honor, and Your Honor knows 17 better than any of us, that when cert is granted, it is 18 impossible to predict what the outcome is going to be. I 19 think Mr. Eth might have misspoke when he said it is likely 15:24:14 20 going to be the most significant case in the next 25 years 21 because it is entirely possible it won't change anything. 22 It's entirely possible it won't change anything that affects 23 this case in any material way. 24 And I'm sure last year when cert was granted in Amgen 15:24:33 25 people said that was potentially the most significant private 18 2 15:24:37 1 securities case in the past 25 years. And Amgen didn't change 2 anything significantly. The year before Amgen, Halliburton I 3 cert was granted. And, again, people probably thought that 4 was going to be the most significant case. The beat has gone 15:24:56 5 on since then. 6 The fact that four justices, at least four justices, 7 agreed to accept that cert petition -- grant that cert 8 petition, I don't think we can make any predictions whatsoever 9 what the outcome of the decision is going to be. 15:25:12 10 We know what the law is today. And probably more 11 importantly from a practical perspective, I'm repeating 12 something I said back in February when we were here for the 13 scheduling conference back then. That is, given the size of 14 the losses here to the two funds that I represent, $24 15:25:31 15 million, and if I just look at some of the other clients that 16 we have and their losses, we're talking about tens of millions 17 of dollars more in losses. 18 Even if -- I said back then before Halliburton cert 19 was granted, and I meant it then and mean it today, that this 15:25:47 20 case would go forward even if it wasn't a class action. So I 21 don't think it is at all realistic to expect the outcome of 22 Halliburton to alter the need for discovery in this case. I 23 don't think that is a remote likelihood. I just don't think 24 it is. We have claims we're going to pursue. Those claims 15:26:15 25 will remain. The essence of those claims are always going to 19 2 15:26:18 1 be the same. 2 Were there false and misleading statements? Did the 3 defendants know those statements were false and misleading? 4 Were they material? Those are the types of damages result. 15:26:33 5 Those questions are always going to exist regardless of the 6 outcome of Halliburton. And for that reason, it's been -- 7 we're approaching -- and Your Honor moved very quickly, and we 8 really appreciated the speed with which the Court resolved the 9 motion to dismiss, but we're approaching the year anniversary 15:26:53 10 of that, and at this point, we haven't been able to obtain any 11 fact discovery. And it's -- it is time that we be allowed to 12 do so. 13 I think when you have a case -- if this was a 14 leverage play, Your Honor, if we were trying to leverage the 15:27:09 15 cost of litigation to extort or force some sort of settlement 16 from the defendants, I'd be happy to -- first of all, I 17 wouldn't be on the case. But if I was the type of lawyer who 18 would be on that type of case, I would be happy to stay this 19 action until then, because once you unleashed the discovery 15:27:30 20 process, then I have maximum leverage at that point. 21 I'm talking about moving forward with fact discovery 22 so once Halliburton is decided we're well down the field, and 23 if you see our proposed schedule, plaintiff's proposed 24 schedule, we'd be within about a month of the conclusion of 15:27:49 25 fact discovery. And there wouldn't be any -- we wouldn't be 20 2 15:27:53 1 trying to obtain any leverage from the costs of discovery. 2 This is not a leverage play type of case. We're trying to 3 build the merits of this case. 4 By the time Halliburton is decided, essentially the 15:28:07 5 merits discovery will be almost over. And this case can be -- 6 both sides can assess this case as they should be, based on 7 the merits of the case going forward from there. And those 8 merits are going to stay the same almost irrespective of what 9 happens in Halliburton. 15:28:27 10 THE COURT: Remind me of the amount of the investment 11 of the two funds. 12 MR. FORGE: Their losses were $24,365,000. 13 THE COURT: Combined? 14 MR. FORGE: I'm sorry, Your Honor? 15:28:40 15 THE COURT: Combined? 16 MR. FORGE: Combined. And I will tell you, Your 17 Honor, we have other -- our firm monitors the portfolios of a 18 number of funds. I don't mean to say those funds use us 19 exclusively to pursue legal remedies, but just going down the 15:28:53 20 list of losses of the clients whose portfolios we monitor, 21 we're well over $100 million of losses not going very far down 22 the list. So it's not as if the economics of this situation 23 would not justify a litigation outside of class context. It's 24 just the opposite of that; they would. 15:29:19 25 THE COURT: Okay. I understand that point. 21 2 15:29:28 1 MR. ETH: So, Your Honor, there's a big difference 2 between a party that claims 24 million in losses, not damages, 3 and a class action. So for that reason alone, the fact that 4 counsel thinks it would go forward probably, no matter what, 15:29:43 5 still doesn't change the fact that it would be a completely 6 different kind of case. 7 Second -- 8 THE COURT: Well, let me ask you why. Let's assume 9 hypothetically for a minute that they would be representing 15:29:57 10 funds and could find other funds that would present a case 11 worth at least tens of millions of dollars. How would the 12 discovery be different to prove that case than to prove a 13 class action case? 14 MR. ETH: The way the discovery would be different is 15:30:16 15 that in any Rule 26 discovery balance, it has to be 16 proportionate to what the case is about and the scale of the 17 case. One point. 18 Second point is when there are individuals, there may 19 be defenses we have that we wouldn't have otherwise. 15:30:32 20 Third, and in some ways most fundamental, is what 21 we've heard from plaintiff's counsel, last time and today, is 22 they're all relying on the presumption there's an efficient 23 market in the first place. That very presumption may go away 24 entirely. If that goes away entirely, then it's a question of 15:30:51 25 whether these individual entities actually read or saw any of 22 2 15:30:56 1 these statements. 2 THE COURT: Well, I understand how eliminating the 3 presumption may call into question class certification because 4 individual reliance would become an issue. 15:31:10 5 That, to me, doesn't speak to the amount of discovery 6 that's needed to prove the merits of the claim. On your first 7 two points, I'm very conscious of proportionality being a part 8 of Rule 26, and I routinely discuss that with most litigants. 9 But if we're looking at a case where there's 25 or 50 15:31:31 10 million claimed by funds versus a class action, I have 11 difficulty thinking that the amount of discovery is going to 12 be significantly different for the two claims. There's still 13 going to be document production getting at the alleged 14 misrepresentations, the key players will be deposed. 15:31:52 15 So I'm not sure proportionality would really have any 16 effect on the amount of merits discovery done, at least from 17 the plaintiff's side. 18 On your second point, I do understand that you 19 probably will want to conduct discovery that tries to identify 15:32:11 20 individual issues or defenses against named plaintiffs, either 21 to try to decertify the case or knock out a part of the class 22 down the road. But the universe of that discovery are the 23 named plaintiffs. That does not seem to me to be a tremendous 24 volume of discovery different from what a case brought by 15:32:38 25 major funds would be. I mean, the costliest discovery is 23 2 15:32:42 1 likely to be when you have to go overseas to depose key people 2 of these funds in the United Kingdom. 3 So I guess I'm not seeing a significant difference 4 between this case as a major fund plaintiff case versus this 15:33:00 5 case as a class action. 6 Now, I'm saying that so you can point out where my 7 thinking is flawed. 8 MR. ETH: Part of it is how you assess the case. How 9 does the defendant assess the value of the case? How does the 15:33:13 10 plaintiff assess the value of the case? 11 There was a discussion last time about the effect of 12 having a potential class wide verdict and what that has on the 13 parties versus if it's a few parties who claim losses. 14 Nothing about damages, losses. Keep in mind the whole solar 15:33:31 15 industry went downhill this period. Everyone who invested in 16 solar had losses. You're talking about damages in the single 17 millions because there are losses in the tens of millions. A 18 very different calculation for everybody involved. 19 THE COURT: Well, I don't dispute that. I mean, it 15:33:46 20 seems quite clear to me that this case would be valued 21 differently by both sides if it's a class action than if it's 22 not. But I'm not sure that affects the merits discovery 23 either. 24 It seems to me -- I could be wrong about this, but in 15:34:03 25 most cases of this type with which I'm familiar, once the 24 2 15:34:07 1 class is certified merits discovery goes forward. Sometimes 2 defendants think they have a good enough shot at 3 decertification or motions for partial summary judgment or 4 complete summary judgment that it gets litigated right through 15:34:19 5 that stage before there's a settlement. 6 We're going to have a decision in Halliburton no 7 later than the end of June. We know that's sure. Under 8 either schedule that's been proposed, that is during 9 discovery. 15:34:33 10 So it seems to me the ultimate valuation for 11 settlement purposes likely doesn't become relevant until 12 sometime after June, and by that time we'll have an answer 13 from the Supreme Court as to whether or not this can continue 14 as a class action case. Again, I'm saying this so you point 15:34:52 15 out what's wrong in my thinking. 16 MR. ETH: So counsel has said, well, this happened 17 when Halliburton -- when Amgen cert was granted, excuse me, or 18 when Matrixx or other cases. 19 This was the first case, the only case, to say we're 15:35:07 20 looking at whether we should overrule or substantially modify 21 the cornerstone of this entire area. There was speculation, 22 well, maybe they would reach out in some other case. The 23 question presented couldn't be clearer, and the entire basis 24 of an individual case or a class case for plaintiffs is Basic 15:35:31 25 v Levinson. Without Basic v Levinson, the class case goes 25 2 15:35:35 1 away and the individual case likely goes away without Basic 2 versus Levinson because then you can't rely on efficient 3 market, there's no presumption, you have to show actual 4 reliance. In terms of class action, but also in terms of 15:35:49 5 individuals. 6 The prejudice is you can look at it one of two ways. 7 You can say, well, we may as well spend millions of dollars 8 over the next six months producing documents from around the 9 world and then we'll decide what to do based on it. Or you 15:36:04 10 can say how about we find out what the rules of the road are 11 before doing that and, since we're talking about costs, 12 counsel says -- plaintiff's counsel says it's worth doing 13 this, we can also perhaps think about cost shifting because 14 First Solar, the defendants, are going to be spending lots of 15:36:28 15 time and lots money on something that -- I mean, it's the 16 defendants who are going to be spending all the time in 17 discovery. These are one-way discovery cases. Plaintiffs are 18 not absorbing the same kind of costs. 19 And so for the defendants to spend all this money 15:36:50 20 because then we'll be able to figure out where we go, as 21 opposed to why don't we get the roadmap first when this 22 fundamental issue is before the Supreme Court. To me that 23 makes sense to see where we're going before we just go there 24 because we'll be able to adjust later. 15:37:12 25 THE COURT: I'm fairly confident, Mr. Eth, you will 26 2 15:37:15 1 be serving significant document production requests on these 2 funds and you'll be deposing fund managers. You would like 3 nothing more than to get them to say, "We didn't pay attention 4 to market price, we did our own internal analysis," so you can 15:37:30 5 knock out -- you could rebut the presumption of reliance on 6 the market. But at least with the big players, isn't it true 7 you're going to be seeking significant discovery from them 8 regardless whether this is a class action? 9 MR. ETH: Your Honor, I would say discovery burdens 15:37:47 10 are at least 100 to 1 in this case. Maybe we'll get some 11 documents from the plaintiffs, more than we got in class 12 discovery, but the document requests we have from the 13 plaintiffs that covers a six or seven year time period, says, 14 for example, all documents concerning any defect in any of 15:38:06 15 your solar panels. And on and on and on. 16 This a four-year class period. They want beyond the 17 four years. It's a company that has offices around the globe, 18 and we're talking about ESI and so forth, and it is at 19 least -- I'm being conservative when I say the burden will be 15:38:28 20 at least 100 to 1. Being conservative on that. 21 So when we're talking about the prejudice, it is all 22 on the company to say, well, at least we'll get it out of the 23 way. But it's at great cost when we don't know what's going 24 to happen, and we never can recover that. It's just gone. 15:38:47 25 Just gone. 27 2 15:38:49 1 THE COURT: The assumption you're making is that if 2 Halliburton knocks out the class action in this case, that 3 discovery would not be done by the funds in a straight 4 securities fraud case, right? 15:39:06 5 MR. ETH: The assumption is that either it wouldn't 6 be done or it would be done in a very different way and scale. 7 Because, for example, if the Supreme Court says you have to 8 prove that you actually read and saw something, I don't know 9 that any of those funds can proceed. At all. Individually or 15:39:28 10 in class. 11 Or if they say, and this a definite way it may come 12 out, the Cammer factors don't make any sense. Instead, it's 13 all about proving market efficiency and it's only the fifth 14 factor. What this Court said is on the fifth factor, it's 15:39:46 15 kind of close. Kind of close. But when you look at all the 16 other factors -- well, the world of economics and finances 17 changed a lot, as pointed out in the cert petition that 18 Halliburton submitted -- 19 THE COURT: I called the fifth factor a standoff, but 15:40:02 20 I said if I had to make a call I'd rule plaintiff's way. 21 MR. ETH: That's right. That's right. 22 THE COURT: Is my memory correct that Basic was a 23 plurality decision? 24 MR. ETH: Basic was 4 to 2. Which is the minimum. 15:40:15 25 You need six and it was 4 to 2. 28 2 15:40:18 1 THE COURT: Was it Ginsburg who wrote it? 2 MR. ETH: No. It was 4 to 2 written by Blackmun. It 3 was Blackmun -- 4 THE COURT: Oh, that's right. 15:40:28 5 MR. ETH: Blackmun, Marshall, Brennan -- Blackmun, 6 Marshall, Brennan, and Stevens. And the dissent was -- 7 THE COURT: We know they won't be voting in the 8 majority on Halliburton. 9 MR. ETH: That's right. And the dissent was O'Connor 15:40:42 10 and White. 11 THE COURT: Okay. What was the one Ginsburg wrote? 12 MR. ETH: Ginsburg wrote Amgen. 13 THE COURT: That's right. 14 MR. ETH: And in Amgen, four of the justices 15:40:52 15 questioned the validity of fraud on the market. We assume 16 those are the four that voted for cert. That was Scalia, 17 Thomas, Alito, and Kennedy. 18 THE COURT: The other five who didn't join them are 19 still on the court, right? 15:41:04 20 MR. ETH: That's right. 21 THE COURT: All right. I understand your position. 22 I think I understand the plaintiff's position as well. I want 23 to think about this issue. 24 In the meantime, what I want to do is talk about the 15:41:14 25 scheduling in the event I decide we should go forward. So 29 2 15:41:17 1 let's talk about your joint proposal. 2 Incidentally, Traci, did you hand out those 3 documents? 4 THE COURTROOM DEPUTY: I did. I did. 15:41:29 5 THE COURT: I had Traci hand to you a copy of my 6 standard case management order, but in particular there's a 7 document in there that just has Attachment A at the top of it. 8 We made six copies thinking we'd have more counsel here. Have 9 you got yours, Maureen? 15:42:02 10 MS. BEYERS: We have Attachment A, yes. 11 THE COURT: Okay. 12 I'm going to attach this to the order that I enter in 13 the case management. So it's my thoughts on how we can try to 14 make the litigation more efficient than sometimes is the case. 15:42:22 15 MS. BEYERS: Your Honor, we've already stipulated to 16 certain procedures -- 17 THE COURT: Did we do that in this case? 18 MS. BEYERS: Attachment A -- 19 MR. ETH: Perhaps I could point out, Your Honor -- 15:42:30 20 MS. BEYERS: Document 142. 21 THE COURT: I had forgotten we did that already. 22 That was not part of my original case management order. I 23 must have told you to look it over and let me know. 24 MR. ETH: We had agreed to all but -- we agreed to 15:42:43 25 all but one of these and -- 30 2 15:42:45 1 THE COURT: Well, 4 wasn't in there at the time. 2 That's new. At least the first couple sentences of 4 are new. 3 And I've taken out one that was there at the time, the one 4 about -- I actually can't even remember the one that I dropped 15:43:02 5 out. What were the ones you didn't agree to? 6 MR. ETH: The one we didn't agree to, Your Honor, was 7 the second one about depositions. 8 THE COURT: Taken by agreement? 9 MR. ETH: We didn't reach agreement on whether we 15:43:13 10 should do it by agreement. And I would re-propose that we do 11 that. 12 THE COURT: I'm going to -- you don't to have reach 13 agreement. I'm going to require it. I'm going to put 14 Attachment A on the case management order. But please note 15:43:26 15 there's some additional language in paragraph -- the order's 16 been revised a little bit. Paragraph 4 has some additional 17 language in it that wasn't in what you looked at before, and I 18 dropped out one of my earlier requirements and I can't even 19 remember now what it was. 15:43:44 20 Okay. Well, let me ask this question on the overall 21 schedule: You proposed a schedule that raises a couple of 22 questions in my mind. One is you proposed fact discovery 23 followed by summary judgment followed by experts. 24 Necessarily, you must be saying experts will play no role in 15:44:09 25 summary judgment. Correct? 31 2 15:44:12 1 In other words, there won't be another summary 2 judgment opportunity after you exchange your expert reports if 3 we follow this order. 4 MR. FORGE: That is the plaintiff's view, Your Honor. 15:44:21 5 I think that was -- again, at least as the law stands right 6 now, I think we can all recognize there is, at a minimum, a 7 question of fact regarding the market efficiency that has 8 already been established by virtue of the two different expert 9 opinions that -- 15:44:37 10 THE COURT: Well, my point is if we defer experts 11 until after summary judgment, then no matter what's in the 12 expert reports, there's no more summary judgment motions. 13 You're both agreeable to that? 14 MR. FORGE: Yes. 15:44:46 15 MR. ETH: We agree to that, yes. 16 THE COURT: All right. Is the idea just to save 17 money on experts in the case? 18 MR. ETH: The idea is to see where we are and save 19 money and so forth, yes. We take the cost-savings initiative 15:44:59 20 quite seriously. 21 THE COURT: All right. 22 The two proposals, then, would have discovery ending 23 either at the end of October or the end of December. 24 There's some interim dates. I don't tend to put in 15:45:23 25 interim dates. But tell me, I guess, from the defense side 32 2 15:45:27 1 why you think we need more than a year to do the fact 2 discovery in the case. 3 MR. ETH: It's not -- it's 13 months rather than 11, 4 Your Honor, and just trying to be realistic based upon what's 15:45:42 5 at stake. We originally were maybe proposing even farther 6 out, but we think this is ambitious but achievable. 7 And given -- given the amount of potential discovery 8 here, being able to produce all the documents and go through 9 all the depositions and look at confidential witnesses and all 15:46:06 10 the other things given that it's a global company and so 11 forth, this was our best -- our best effort at coming up with 12 an earliest reasonable date. 13 And, actually, the date, the plaintiff's date and 14 defense date, are not that far off. It's the interim dates 15:46:25 15 where they're off. 16 THE COURT: Right. I understand that. 17 All right. Any thoughts on the concluding date? 18 MR. FORGE: Your Honor, the concluding date from our 19 perspective does tie directly to the interim date because from 15:46:40 20 my perspective I'm looking at how much time are we going to 21 have to conduct discovery after we receive the documents, 22 because that's the critical time period for depositions. 23 I don't think it's responsible to start embarking on 24 large deposition practice until you receive the documents. So 15:47:01 25 the reason why we have our date where we have it is because we 33 2 15:47:06 1 think the documents should be produced earlier and we think we 2 should have a little extra time to conduct depositions once 3 the documents have been produced. 4 And I would just remind the Court that the defendants 15:47:19 5 had a little over two months just for class certification 6 discovery. 7 THE COURT: Well, what -- what's the basis for your 8 belief that the defendants can get all of their document 9 production done by three weeks after the holidays? 15:47:38 10 MR. FORGE: Your Honor, first of all -- first of all, 11 I can't ignore the fact that the defendants have had our 12 document requests for eight months. 13 THE COURT: They've had them, but I told them they 14 didn't have to work on them. 15:47:50 15 MR. FORGE: Didn't have to. I view that as kind of a 16 free market situation where the defendants could make their 17 own evaluation of the likelihood of defeating class 18 certification. I said at the time I didn't think there were 19 going to be any issues with class certification. I think once 15:48:06 20 the discovery concluded, there weren't any real issues of 21 class certification, and I think Your Honor's order confirmed 22 that, that it was a fairly strong case for class 23 certification. I don't think it was a very close call. Now, 24 I'm not saying it was a criticism of the defense. They can 15:48:24 25 make their own decision -- 34 2 15:48:26 1 THE COURT: Well, but it sounds like what you're 2 saying is I should require them to get going now and produce 3 it three weeks after the holidays because they should have 4 been working on it up until now even though I didn't tell them 15:48:35 5 they had to. 6 MR. FORGE: Well, what I'm saying is it can be done 7 and if they chose -- what I'm saying is they should deal with 8 the consequences of their own decisions. And that's -- it's 9 just like anybody else in any situation. You weigh the pros 15:48:49 10 and cons and make your own assessment and own decision based 11 on how you assess those risks. There was a risk all along. 12 The timing that we have here, Your Honor, is almost 13 the same timing we had back in -- were proposing back in 14 February. Same length of time for the defendants to produce 15:49:07 15 documents. We're not trying to cut their time significantly. 16 So we're basically giving them a multi month head start and 17 still giving them about the same length of time to produce the 18 documents. 19 THE COURT: Very generous. I understand your point. 15:49:21 20 It's just the way you said, "we're giving them" -- 21 MR. FORGE: I'm sorry. Proposing -- 22 THE COURT: I understand your point. 23 It sounds as though you're saying you think you need 24 nine months to do depositions. 15:49:35 25 MR. FORGE: That's right, Your Honor. 35 2 15:49:37 1 THE COURT: How many people do you think you're going 2 to depose? 3 MR. FORGE: Your Honor, what I would request is that 4 within 45 days of the document discovery being produced, we 15:49:51 5 come back -- I don't like to throw out a number because 6 frankly I don't think it's reliable. Until we get the 7 documents, until we can take a few depositions, I can't tell 8 you whether it's going to be 12 or I'm going to be asking for 9 30. I don't think Your Honor's going to be giving me dozens 15:50:08 10 and dozens of depositions, and we will be judicious about it. 11 But until we actually get the documents and start talking to 12 at least one or two people, I think it would be very 13 difficult -- I don't think it would be very difficult. It is 14 too difficult for me to give you a reliable estimate for the 15:50:27 15 number of depositions. 16 THE COURT: All right. Let me ask defense counsel a 17 similar question. Why do you need seven months to produce 18 documents? That's a very long time. 19 MR. ETH: So, Your Honor, we didn't make the 15:50:43 20 calculation that plaintiff said we should. We didn't sit 21 around saying -- 22 THE COURT: That's fine. I'm assuming you're 23 starting now. Why do you need seven months to gather up these 24 documents? 15:50:55 25 MR. ETH: Because I know to a certainty that it's 36 2 15:50:57 1 going to take us a while even to meet and confer with the 2 plaintiffs about their document requests. So that is one 3 thing that we did accomplish. We saw the document requests 4 from the plaintiffs and we're going to be in meet and 15:51:11 5 confers -- that's what we're going to spend the holiday season 6 doing. 7 THE COURT: Well, I tell you, I can solve that 8 problem easily. I can have you come down, put you in the jury 9 room and say you're going to stay there until you agree to 15:51:23 10 resolve all your issues. 11 MR. ETH: I hope it doesn't come -- 12 THE COURT: You can get it done in a day. 13 MR. ETH: I hope doesn't come to that. 14 THE COURT: Food and water maybe. But you can get it 15:51:32 15 done in a day. 16 MR. ETH: I hope it doesn't come to that. 17 THE COURT: My point is we don't need to factor in a 18 month or two to go through meet and confers. 19 MR. ETH: That's fine. Here's the reason. Three 15:51:38 20 letters: ESI. That's the reason. 21 THE COURT: Okay. What kind of technology are you 22 thinking you're going to use? 23 MR. ETH: We have to discuss that with the 24 plaintiffs, whether we're going to have a vendor that does 15:51:52 25 search terms and does predictive coding and what kind of 37 2 15:51:56 1 terms, whether they will accept those terms. We have multiple 2 systems, multiple offices, multiple locations. Remember, they 3 have claims about accounting, claims about product defects, 4 claims about warranty reserves. Multiple claims, multiple 15:52:15 5 years, multiple systems that we have. We have to produce all 6 of that and it's -- and in my experience, seven months 7 starting the week before Thanksgiving, that's pretty good for 8 this kind of production. 9 THE COURT: Are you -- you are considering predictive 15:52:37 10 coding? 11 MR. ETH: Yes, we're considering it. Need to discuss 12 it. We're considering all kinds of ways to do this 13 efficiently. Because if you have to actually have attorneys 14 hand do this, go through it, that's a nightmare. So perhaps 15:52:51 15 there are ways -- and we're building that into this, that if 16 we can come to agreements and if we can do it that way, given 17 what I know about their technology, which is they have a lot 18 of electronic data, a lot of data, and right now it's a broad 19 case. Right now. Given all of that, we think that seven 15:53:13 20 months is a reasonable period. 21 Plaintiff wants seven months to conduct depositions. 22 We think depositions, once you get documents, shouldn't take 23 that long. But, separate issue, whether we need to have 24 interim deadlines at all. 15:53:33 25 THE COURT: All right. 38 2 15:53:42 1 Last question I have -- I'm going to take all of this 2 under advisement and get you an order. 3 Last question I have is this reference to targeted or 4 partial summary judgment motions. What exactly are you 15:53:51 5 thinking? 6 MR. ETH: There are a couple that we're thinking 7 about. Recall on the motion to dismiss, the Court did say, 8 well, we found that there's enough here and now I don't have 9 to parse some of the individual items because there was enough 15:54:11 10 to go forward. There's two potential grounds. One would be 11 loss causation on some or all of the claims, and the other 12 would be a motion for summary judgment on behalf of some of 13 the individual defendants. There are real people in this 14 case, not just First Solar. There's seven individual 15:54:29 15 defendants. They would prefer not to be in the case if they 16 could. 17 Right now I'm not in a position to say this is what 18 we're going to file on such-and-such schedule. But the goal 19 would be to try to target the case, focus the case, and do so 15:54:45 20 in a way that doesn't require full-scale discovery for 21 plaintiffs to object. 22 Plaintiffs are saying, well, naturally we need all 23 the discovery. Well, that's not naturally true. Depends what 24 the motion is. Could be a particular motion only requires a 15:55:04 25 limited amount of discovery, here it is, we move rule 56(f), I 39 2 15:55:09 1 think is the rule, and they can respond accordingly if need 2 be. So those are the ones we have in mind. 3 THE COURT: It used to be 56(f). It is now 56(d). I 4 can't keep that straight myself. 15:55:29 5 MR. ETH: Sorry. 6 THE COURT: What I'm going to do on that issue is 7 this: I'm not going to grant permission at this point to file 8 interim motions for summary judgment. I'm going to require 9 you to call me jointly on the phone if the defense thinks you 15:55:42 10 should file them. 11 In that discussion I'm going to ask you what the 12 motion would be, what the specific arguments would be. I'm 13 going to ask the plaintiffs, will you make a 56(d) response, 14 and if so, what will it say? So that we can either conclude, 15:55:54 15 yes, the motion should go forward or the motion should go 16 forward after some specific amount of discovery focused on it, 17 or the motion should be postponed until the end of the case. 18 So if you end up calling me on that issue, have that 19 discussion ahead of time. In other words, tell plaintiffs 15:56:12 20 counsel what the motion is, who it's directed at so 21 plaintiff's counsel can ask themselves, is this something in 22 response to which we would file a 56(d) affidavit? And that 23 way we can have that discussion when you all call in. 24 I think those are the only issues I wanted to raise. 15:56:37 25 As I said, I want to take this under advisement and think 40 2 15:56:39 1 about the Halliburton issue and think about the comparative 2 schedules. 3 Are there other matters either side wishes to raise 4 today? 15:56:49 5 MR. FORGE: Your Honor, not another matter, just on 6 the Halliburton fund I would just point out that Arizona's 7 blue sky laws do allow for securities actions to be based 8 without any reliance whatsoever. So we have that option as 9 well, and that's why I say to you with all sincerity this case 15:57:09 10 will be going forward irrespective of what happens in 11 Halliburton. And also in this case the fund manager has 12 already been deposed, the fund manager did say that he and his 13 research team did review the SEC filings and they did rely on 14 the accuracy of those SEC filings. So we do already -- even 15:57:32 15 though that was an issue, we have more than just a hunch we've 16 satisfied it. So just want to make that clear. 17 THE COURT: Okay. 18 Anything from the defense? I know you don't agree 19 with what was said. 15:57:42 20 MR. ETH: Yes, I don't agree. 21 THE COURT: But any other issues you wish to raise? 22 MR. ETH: There's nothing else I wish to raise, Your 23 Honor. 24 THE COURT: Okay. 15:57:50 25 I will get something out on this next week. 41 2 15:57:54 1 MR. FORGE: Thank you, Your Honor. 2 THE COURT: Thanks. 3 (End of transcript.) 4 * * * * * 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 42 2 15:57:54 1 C E R T I F I C A T E 2 3 I, PATRICIA LYONS, do hereby certify that I am duly 4 appointed and qualified to act as Official Court Reporter for 15:57:54 5 the United States District Court for the District of Arizona. 6 7 I FURTHER CERTIFY that the foregoing pages constitute 8 a full, true, and accurate transcript of all of that portion 9 of the proceedings contained herein, had in the above-entitled 15:57:54 10 cause on the date specified therein, and that said transcript 11 was prepared under my direction and control, and to the best 12 of my ability. 13 14 DATED at Phoenix, Arizona, this 2nd day of December, 15:57:54 15 2013. 16 17 18 19 15:57:54 20 s/ Patricia Lyons, RMR, CRR Official Court Reporter 21 22 23 24 25

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Conference Proceedings held on 02/17/2015, before Judge David G. Campbell. (Court Reporter: Patricia Lyons). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/12/2015. Redacted Transcript Deadline set for 3/23/2015. Release of Transcript Restriction set for 5/20/2015.

8 1 UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF ARIZONA 3 _________________ 4 Mark Smilovits, et al.,)) 5 Plaintiffs,) CV 12-00555-PHX-DGC) 6 vs.) Phoenix, Arizona) February 17, 2015 7 First Solar Incorporated, et al.,)) 8 Defendants.) _______________________________________) 9 10 11 12 13 BEFORE: THE HONORABLE DAVID G. CAMPBELL, JUDGE 14 REPORTER'S TRANSCRIPT OF PROCEEDINGS 15 TELEPHONIC CONFERENCE 16 17 18 19 20 21 Official Court Reporter: Patricia Lyons, RMR, CRR 22 Sandra Day O'Connor U.S. Courthouse, Suite 312 401 West Washington Street, SPC 41 23 Phoenix, Arizona 85003-2150 (602) 322-7257 24 Proceedings Reported by Stenographic Court Reporter 25 Transcript Prepared with Computer-Aided Transcription 8 2 14:00:06 1 A P P E A R A N C E S 2 3 Telephonically for Plaintiffs: 4 Robbins Geller Rudman & Dowd, LLP By: DANIEL S. DROSMAN, ESQ. 14:00:06 5 By: LUKE BROOKS, ESQ. 655 W. Broadway, Ste. 1900 6 San Diego, CA 92101 7 8 9 Telephonically for Defendants: 14:00:06 10 Morrison & Foerster, LLP By: JORDAN ETH, ESQ. 11 425 Market St., 32nd Floor San Francisco, CA 94105 12 13 Osborn Maledon, PA By: MAUREEN BEYERS, ESQ. 14 P.O. Box 36379 Phoenix, AZ 85067 14:00:06 15 16 17 18 19 20 21 22 23 24 25 8 3 14:00:06 1 P R O C E E D I N G S 2 3 THE COURTROOM DEPUTY: Civil case 2012-555, Mark 4 Smilovits versus First Solar Incorporated, and others, on for 15:30:53 5 telephonic conference. 6 Will the parties please announce. 7 MR. ETH: This is Jordan Eth, Morrison Foerster, for 8 defendants. Good afternoon. 9 THE COURT: Good afternoon. 15:31:06 10 MR. BROOKS: Good afternoon. It's Luke Brooks and 11 Daniel Drosman for the plaintiffs. 12 MS. BEYERS: And also for defendants, Maureen Beyers. 13 THE COURT: All right. Good afternoon, everybody. 14 Traci, battery's dead in that mic. 15:31:29 15 All right. I understand this call concerns summary 16 judgment briefing. I've got a note from Nancy outlining the 17 issues briefly, but why don't we have whoever wishes to speak 18 first describe what it is you want me to do. 19 MR. ETH: Yes, Your Honor. Thank you. This is 15:31:50 20 Jordan Eth for defendants. There are three issues on this 21 briefing. We have two of them and I think the plaintiffs will 22 address the third issue. 23 The first issue is on the amount of time that we can 24 have to file a reply brief on this summary judgment motion on 15:32:11 25 behalf of our eight clients, seven individuals and the 8 4 15:32:14 1 company, covering this nearly four year period. We asked 2 plaintiffs for 30 days to file our reply brief instead of the 3 default 15 days. A rather typical request. And they said 4 they would not agree to that. So we are asking the Court to 15:32:38 5 permit us 30 days to file our reply brief. That's Issue 6 Number One. 7 And if you'd like, I can address Issue Number Two 8 now. 9 THE COURT: Yeah, go ahead, please. 15:32:50 10 MR. ETH: Issue Number Two has to do with the number 11 of pages for the briefing. 12 What complicates this is the nature of this case. 13 It's, as I said, a nearly four year class period, including 14 time periods before the manufacturing excursion even occurred, 15:33:10 15 including times after, including seven individual defendants, 16 three different CFOs, two different CEOs, people there in the 17 beginning, some people only at the end, people changing roles, 18 and so on. So given all those individuals, we're now coming 19 to grips with how we most efficiently and effectively present 15:33:33 20 this information. 21 We are, with Osborn Maledon, all representing 22 everyone jointly. So we are not proposing we submit eight 23 17-page briefs totaling 136 pages, or anything like that. 24 To be most effective and efficient, though, what we 15:33:52 25 are asking for is to combine as many of these arguments as we 8 5 15:33:56 1 can and get this down to the number we're asking for, which is 2 85 pages. In terms of a reply brief, we would just apply the 3 regular 17/11 proportion to that to come up with a reply 4 number, which I think yields 55. We've asked for that. The 15:34:15 5 plaintiffs' response was instead of 85/55 it was 50/30. And 6 that is the second issue. 7 THE COURT: Plaintiffs' issue? 8 MR. BROOKS: Plaintiffs' issue is somewhat related to 9 the second issue, and that is we would propose, Your Honor, to 15:34:37 10 eliminate the 56.1 separate statement of competing -- or 11 separate statement of undisputed facts and separate statement 12 of disputed facts from the briefing in this case. 13 We found in these lengthy class period securities 14 litigation those 56.1 statements just tend to add extra paper 15:35:03 15 for the Court without providing any real bang for the buck. 16 Our proposal would be to just simply cite the 17 exhibits supporting the factual assertions that are made in 18 the brief. We could provide the Court with a brief that 19 hyperlinks to the exhibits so that the Court or the Court's 15:35:25 20 clerk can click through, if that's the easier way, or can 21 simply look at those exhibits in hard copy attached to a 22 declaration. 23 This is just another way that we found in prior 24 securities fraud cases to streamline the summary judgment 15:35:43 25 process, which can lead to a lot of paper and a lot of extra 8 6 15:35:49 1 work for everyone. If it's not entirely useful, we propose 2 getting rid of it. 3 THE COURT: Was that Mr. Brooks or Mr. Drosman? 4 MR. BROOKS: That's Mr. Brooks. 15:36:04 5 THE COURT: What are defendants' view on that last 6 proposal, Mr. Eth? 7 MR. BROOKS: They said they're agnostic, Your Honor. 8 They said they didn't want to join us in proposing it, but 9 they don't oppose it. 15:36:21 10 THE COURT: Mr. Eth. 11 MR. ETH: That's correct. On the last item, we just 12 leave it completely up to the Court. 13 THE COURT: Well, I'm no fan of Rule 56.1 statements. 14 They are always too long. Parties tend to feel like they need 15:36:37 15 to begin them with the dawn of time and a cover every 16 conceivable fact in the case. And that's why in my standard 17 case management order I limit them to ten pages. 18 They do have one advantage, and it's the reason they 19 came into existence, which is to make sure that I can tell 15:36:57 20 what facts are disputed and what facts are not. 21 I was working this afternoon on an order on a summary 22 judgment motion, and it is helpful to be able to go to key 23 facts in the case and see in the response if it is disputed or 24 undisputed, and, if so, why. 15:37:17 25 So I guess the question I have is -- and part of the 8 7 15:37:21 1 problem is I have seen summary judgment briefs in the past 2 that don't have a statement of facts that are like two ships 3 passing in the night. You can't tell what one party's 4 position is on factual assertions from the other party because 15:37:37 5 they don't address them directly. Both sides tend to talk 6 about the facts they like, and it's very hard to determine 7 what exactly is in dispute and what is not. 8 So the question I have is how can we avoid that 9 problem and at the same time dispense with 56.1 statements, 15:37:58 10 which I'm all in favor of? 11 MR. BROOKS: Well, Your Honor, obviously we can try 12 our hardest not to be two ships passing in the night. I'm not 13 sure if that provides the Court enough comfort. Another way 14 to do it would be instead of requiring all of the reasons why 15:38:21 15 a fact is disputed or undisputed, simply a list of facts the 16 defendants are asserting and a statement whether we dispute it 17 or not. I'm not sure how helpful that is either if it doesn't 18 reference the -- if it doesn't reference the evidence. 19 But, you know, we've done this in prior cases and in 15:38:47 20 fact we did, in front of the same judge, one with a 56.1 and 21 one without on cases that were somewhat similar, and the 22 process was so much better for the one without. That's why we 23 suggested it. 24 We will do our best to address the facts that the 15:39:07 25 defendants raise while at the same time raising what we think 8 8 15:39:11 1 are the facts that provide a clear statement of the facts 2 we're going to rely on and raise at trial, if and when we get 3 there. 4 Other than that, I don't have a great idea for sort 15:39:30 5 of an altered 56.1 that I can propose now. We can think about 6 it. But if the assurance that we'll try our best not to be 7 ships passing in the night is not enough, I'm not sure what 8 else to do. 9 THE COURT: Any thoughts, Mr. Eth? 15:39:49 10 MR. ETH: I'm all in favor of limiting the amount of 11 paper and making it as useful as possible. I'm aware in 12 Arizona this is a standard way to do things. And we're 13 comfortable doing it that way. But if we and Mr. Brooks or 14 other plaintiffs' counsel can come up with a proposal that 15:40:10 15 would make it more efficient, I'm all in favor of that as 16 well. So, again, I don't know that I'm being particularly 17 helpful in this other than to say I'm in favor of another way 18 if the Court would entertain that. 19 THE COURT: Well, let's try it. Let's go without the 15:40:30 20 56.1 statements. I will ask that plaintiffs, in their 21 response, address the factual issues that defendants identify 22 in their motion, and that defendants in their reply address 23 factual issues that plaintiffs raise, trying to be as clear as 24 you can as to what facts are in dispute and what facts are not 15:40:52 25 in dispute. Because that's the key question. Especially in a 8 9 15:40:56 1 complex case like this. 2 What the defendant has to do, defendants have to do, 3 if they're going to get summary judgment is identify for me a 4 series of facts that are not in dispute and that entitle them 15:41:14 5 to judgment on part or all of the case. And so please keep 6 that in mind as you brief it. Those are the key issues that 7 I'm going to be looking for, where are there disputed facts 8 and where are there not disputed facts. And if they're not 9 disputed, are they such that I can grant summary judgment on 15:41:35 10 any part of the case? 11 So let's give it a try. I'll throw my pencil at you 12 if I don't think it worked at the hearing. 13 MR. BROOKS: I'll be sure to have Mr. Drosman argue 14 it, Your Honor. 15:41:52 15 THE COURT: In terms of length, I have, as you can 16 imagine, a natural aversion to 85-page briefs. I have felt, 17 as I've noted in a couple of orders, that issues in this case 18 that have been briefed have taken about twice as long to brief 19 as they should, even in the matrix. I understand why parties 15:42:14 20 want to put belts and suspenders in their arguments, but it's 21 rarely helpful. 22 My natural instinct is to say 50 pages is plenty, but 23 I guess I don't appreciate yet how many different arguments 24 the defendants are going to be making on behalf of their 15:42:35 25 clients. Can you give me a sense of what the arguments will 10 8 15:42:37 1 be? 2 MR. ETH: Sure, Your Honor. I agree, when I first 3 think of numbers, you think 50 sounds like a lot. But one way 4 of looking at this is we have seven individual clients, and if 15:42:52 5 we're making scienter arguments on behalf of seven people who 6 each have a different base of knowledge, some of whom -- three 7 of whom bought stock, five sold stock, at different times and 8 different patterns, different roles, different time periods. 9 If you just take those seven people and say, well, maybe they 15:43:16 10 each get ten pages, you're at 70 right there. So that's just 11 on scienter. Of course there's falsity, there's loss 12 causation, maybe materiality. So you can see how even being 13 economical quickly takes what sounds like 50, sounds like a 14 lot, into a much, much higher number. 15:43:39 15 When we said 85, we weren't saying that would be 16 generous, because, as I said, these are serious allegations 17 against individuals and they're accusing individuals of 18 securities fraud. Not of, you know, some sort of minor thing 19 here. And so you've got people's reputations professionally, 15:44:01 20 personally, and their own individual money all on the line. 21 And for First Solar this is not a run-of-the-mill kind of 22 thing. 23 So to say, well, I realize you're accused of 24 securities fraud but you're going to be prejudiced because 15:44:18 25 you're all being represented by one firm instead of having 11 8 15:44:22 1 individual firms come in and write 17-page briefs. We've 2 tried to chisel it down as much as we can. And the best we 3 can, and still feel that we're properly representing our 4 clients, is that 85-page number. 15:44:39 5 I hope that's helpful. 6 THE COURT: Well, if you are going to be filing the 7 motion on scienter, falsity, loss causation -- did I leave one 8 out? 9 MR. ETH: I mentioned -- 15:45:01 10 MS. BEYERS: Materiality. 11 MR. ETH: I mentioned materiality. Obviously, we're 12 still five, six weeks away, so we don't have it pinned down. 13 That's certainly something we're considering. 14 THE COURT: It seems to me that of those four 15:45:13 15 subjects the only one that requires individual briefing for 16 the defendants is scienter. The others will be arguments that 17 are the same for all defendants. Am I right about that? 18 MR. ETH: Yes, you are right about that, Your Honor. 19 It's the scienter arguments for the individuals that most 15:45:34 20 raise this issue. 21 Of course, given the four year time period, that is 22 an overall issue in terms of pages as well. 23 THE COURT: Right. 24 Give me just a minute -- 15:45:53 25 MR. ETH: Sure. 12 8 15:45:53 1 THE COURT: -- to do some math here. 2 I guess here's the question that I have as I look at 3 this. It seems to me, if you're going to argue that I should 4 grant summary judgment to -- or in favor of a particular 15:46:32 5 defendant on the basis of scienter, you're going to need to 6 point at some specific undisputed facts that you think 7 establish a lack of scienter, or, if it's a Celotex motion, 8 you're simply going to say they don't have proof, and the 9 burden will be on the plaintiffs to come forward with the 15:46:54 10 evidence that shows scienter. Why is it for a particular 11 defendant you would need more than five pages to lay out that 12 argument? 13 MR. ETH: Because there's -- for certain people 14 there's a different, as I said, fact base. Someone could have 15:47:15 15 been there for three years, and then there are more facts that 16 may have to be addressed. For certain people there are more 17 stock sales that have to be addressed. So for some of the 18 individuals it might be five pages. For some it might be ten 19 pages. Which is why I said let's say it averages seven, 15:47:40 20 eight, pages, what does that come to? 21 We've asked plaintiffs if, given where we are in the 22 case if they would drop some individuals, and they've said no. 23 Not yet, at least. 24 So we look at the common issues, as the Court has 15:47:56 25 described it, let's say falsity and loss causation, which 13 8 15:48:02 1 given a four year time period would take up more, and then on 2 top of that if you have seven individuals at even seven and a 3 half pages each, that's 50 right there. That's how we did the 4 calculation to come up with -- but we are going to try, as I 15:48:21 5 said, try to consolidate as many arguments as we can so we 6 don't have a sprawling series, set of papers here. That's why 7 we came -- that's how we came to this number. 8 THE COURT: All right. 9 Mr. Brooks, did you have any comments on that? 15:48:41 10 MR. BROOKS: Well, I think that my comment is overall 11 that most of the legal points are going to apply across the 12 board when they're talking about scienter just as equally as 13 they would for the other elements. 14 The factual questions don't warrant as much or as 15:49:05 15 many pages as Mr. Eth is saying. We just think that 85 pages 16 is an awfully long brief, that it's not necessary, that a 17 50-page reply is excessive. I mean, we're talking over 200 18 pages of briefing for the Court in a case where, from our 19 perspective, there very clearly are triable issues of fact on 15:49:33 20 every element. Our hope was that the defendants instead of 21 applying a scattershot approach to all defendants and all 22 elements would hone their arguments, really, to their best 23 arguments so that if there is anything that needs to be 24 addressed the Court can focus on that, and certainly 85 pages 15:49:56 25 lends itself to more a scattershot approach. 14 8 15:50:01 1 I do want to address the time question before the 2 Court rules. I don't know if you want me to do that now? 3 THE COURT: Go ahead. 4 MR. BROOKS: So, for the reply they've asked for an 15:50:10 5 extra two weeks. Perhaps under normal circumstances this 6 would be something that the parties could agree on. 7 In this case we've really worked very, very hard to 8 meet a discovery deadline. We're taking multiple depositions 9 every single week. The purpose behind that is to get this 15:50:30 10 thing done. So the defendants at this point, after resisting 11 any attempts to alleviate the stress that's placed on everyone 12 by this cramped deposition schedule, now want to come in and 13 ask for an extra 15 days. And if there's any reason we've 14 been working so hard to get this done, it's that we're going 15:50:52 15 to continue to move this case forward on a pace that makes 16 sense and we're going to stick to the schedule. 17 Having gone through and almost completed that fact 18 discovery, which was very difficult for the plaintiffs given 19 the amount of documents and, again, the number of depositions, 15:51:11 20 I think there are at least three depositions this week, for 21 example, and the schedule's been like this for the last couple 22 of months, we don't see any real good reason to extend the 23 schedule for summary judgment briefing. I think two weeks is 24 plenty to reply. We get 30 days to respond to however many 15:51:30 25 pages, 50 or 85. Two weeks should be plenty. And they 15 8 15:51:36 1 haven't given a real good reason to push the schedule for the 2 reply brief. 3 THE COURT: When is the motion due? 4 MR. ETH: March 27th, Your Honor. 15:51:48 5 THE COURT: So we would get the response in on April 6 27th? 7 MR. ETH: I'd have to look at the calendar to see 8 precisely where it falls. 9 MR. BROOKS: I believe that's right. Somewhere 15:52:06 10 around there. 11 THE COURT: I think it would fall on the 26th, which 12 is a Sunday, so it's probably the 27th. And that would make 13 the response due on May 12th. 14 With all of the issues having been briefed, Mr. Eth, 15:52:26 15 what is the reason that 30 days is needed as opposed to 12? 16 You will have been through all of your arguments, obviously, 17 in compiling the brief. You will anticipate at least half of 18 what the plaintiffs are going to say in response -- 19 MR. ETH: Well, Your Honor, I wish we could. 15:52:44 20 The key to these, of course, is being able to point 21 out from our point of view the fallacies in the plaintiffs' 22 argument, and here we are in this case that's been going on 23 for several years with no other dates scheduled and we -- and 24 to have 30 days to respond on a brief that, no matter what, is 15:53:09 25 going to raise a lot of issues, and counsel talked about how 16 8 15:53:12 1 we're not honing. What we're trying to do is hone the case 2 which has been this sprawling case for years. And we're only 3 going to make arguments that we think are winners. That's all 4 we're going to do. And saying that all seven of our 15:53:30 5 individuals and the company have a 15-day period to respond -- 6 to respond -- the plaintiffs' brief is going to be either 50 7 or 85 as well -- we think serves no purpose other than to 8 prejudice our clients who need that time. And in terms of 9 alleviating stress, you know, we've accommodate plaintiffs 15:53:56 10 when they've asked. We recently moved a deposition a full 11 month past discovery cutoff and agreed to that, and so on. 12 So I just don't, on any level just don't get it, why 13 a very normal courtesy, 15 days to 30, when there's nothing 14 else scheduled can't be accomplished. And I apologize we had 15:54:19 15 to come to the Court for this kind of thing. 16 THE COURT: All right. 17 These are my decisions: As I've indicated, we will 18 dispense with the 56.1 statements of fact. 19 I think ten pages per defendant is more than we 15:54:37 20 really need. I will grant 70 pages for the motion. I want to 21 impose some discipline of length, and I think that will do it 22 and will focus the arguments better than an additional 15 23 pages would. That will mean 70 pages for the response. I'm 24 going to allow 40 pages for the reply. 15:54:58 25 Let's set actual dates and say that the motion is due 17 8 15:55:01 1 on March 27th, the response on April 27th, and I'm going to 2 allow the defense until May 22nd to get the reply brief filed. 3 I will probably get you a date now, "now" meaning in 4 the next day or two, for when we can hold oral argument so 15:55:33 5 that I block out some time so that we can get it done within a 6 month or so of the reply brief being filed, so that we get 7 this decided fairly promptly and not have the case languish 8 while you're waiting for a ruling on the motion. But I'll do 9 that in a minute entry that actually sets the oral argument 15:55:50 10 date. 11 Are there any other matters we need to address today? 12 MR. ETH: I don't think so, Your Honor. 13 MR. BROOKS: Not from plaintiffs, Your Honor. 14 THE COURT: Okay. Thanks very much. 15:56:03 15 MR. ETH: Thank you. 16 (End of transcript.) 17 * * * * * 18 19 20 21 22 23 24 25 18 8 1 C E R T I F I C A T E 2 3 I, PATRICIA LYONS, do hereby certify that I am duly 4 appointed and qualified to act as Official Court Reporter for 5 the United States District Court for the District of Arizona. 6 7 I FURTHER CERTIFY that the foregoing pages constitute 8 a full, true, and accurate transcript of all of that portion 9 of the proceedings contained herein, had in the above-entitled 10 cause on the date specified therein, and that said transcript 11 was prepared under my direction and control, and to the best 12 of my ability. 13 14 DATED at Phoenix, Arizona, this 19th day of February, 15 2015. 16 17 18 19 20 s/ Patricia Lyons, RMR, CRR Official Court Reporter 21 22 23 24 25

DECLARATION Declaration Of David Eaglesham In Support Of Defendants Motion For Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.

9 1 James P. Bennett (Admitted pro hac vice) JBennett@mofo.com 2 Paul Flum (Admitted pro hac vice) PaulFlum@mofo.com 3 Jordan Eth (Admitted pro hac vice) JEth@mofo.com 4 Judson E. Lobdell (Admitted pro hac vice) JLobdell@mofo.com 5 Anna Erickson White (Admitted pro hac vice) AWhite@mofo.com 6 Philip T. Besirof (Admitted pro hac vice) PBesirof@mofo.com 7 Mark R.S. Foster (Admitted pro hac vice) MFoster@mofo.com 8 MORRISON & FOERSTER LLP 425 Market Street 9 San Francisco, California 94105-2482 (415) 268-7000 10 Maureen Beyers, Arizona Attorney No. 017134 11 MBeyers@omlaw.com Joseph N. Roth, Arizona Attorney No. 025725 12 JRoth@omlaw.com OSBORN MALEDON, P.A. 13 2929 North Central Avenue Phoenix, AZ 85012-2793 14 (602) 640-9000 15 Attorneys for Defendants First Solar, Inc., Michael J. Ahearn, Robert J. Gillette, 16 Mark R. Widmar, Jens Meyerhoff, James Zhu, Bruce Sohn, and David Eaglesham 17 18 UNITED STATES DISTRICT COURT 19 DISTRICT OF ARIZONA 20 Mark Smilovits, individually and on behalf Case No. CV12-00555-PHX-DGC of all other persons similarly situated, 21 DECLARATION OF Plaintiff, DAVID EAGLESHAM IN 22 SUPPORT OF DEFENDANTS' vs. MOTION FOR SUMMARY 23 JUDGMENT First Solar, Inc., Michael J. Ahearn, 24 Robert J. Gillette, Mark R. Widmar, Jens Meyerhoff, James Zhu, Bruce Sohn, and 25 David Eaglesham, 26 Defendants. 27 28 EAGLESHAM DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT sf-3514787 9 1 I, DAVID EAGLESHAM, declare as follows: 2 1. I am a defendant in the above-captioned action. I submit this Declaration in 3 support of defendants' motion for summary judgment. If called as a witness, I would 4 testify to the following facts: 5 Education and Experience 6 2. I hold a BSc in chemical physics and a PhD in physics from the University 7 of Bristol in Bristol, England. 8 3. I served as First Solar's Vice President of Technology ("VP Technology") 9 from May 2006 through November 2009. As VP Technology, I reported to Bruce Sohn, 10 First Solar's President, after he joined the company. 11 4. I served as First Solar's Chief Technology Officer ("CTO") from November 12 2009 through May 2012. As CTO, I reported to the CEO—Robert Gillette—from 13 November 2009 through October 2011 and interim CEO Michael Ahearn from October 14 25, 2011, to May 2012. 15 5. Before joining First Solar, I held various technology positions at other 16 companies. For example, from 2003 to 2006, I worked as a Director of Advanced 17 Technologies at Applied Materials. From 2002 to 2003, I worked as the Chief 18 Technologist and Deputy Assistant Director of Chemistry and Materials Science at 19 Lawrence Livermore National Laboratory. 20 6. I am currently the CEO of Pellion Technologies, a next-generation battery 21 technology company based in Cambridge, Massachusetts. 22 7. As First Solar's VP Technology and CTO, my primary responsibility was to 23 improve module efficiency through making improvements to the manufacturing process 24 or to the cell structure. During the time I held these positions, First Solar improved 25 average module efficiency by 40% percent, from 9% to 12.6%. 26 The Manufacturing Excursion 27 8. I first learned about what would come to be known as the LPM 28 manufacturing excursion on or about May 29, 2009, when Mike Koralewski (Vice EAGLESHAM DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 1 sf-3514787 9 1 President of Global Quality) briefed me on a customer complaint involving a small 2 number of modules exhibiting greater-than-expected initial power loss. We referred to 3 these modules as low power modules, or "LPMs." 4 9. After learning of the customer complaint, I led a task force, along with Mike 5 Koralewski, to determine the root cause of these LPMs, and to propose a resolution. 6 10. By the end of June 2009, the task force identified the root cause of these 7 LPMs as a process change known as Fast Ramp 421, or "FR 421." 8 11. FR 421 had been implemented by engineers in First Solar's Frankfurt-Oder, 9 Germany plant in June 2008. The process was shown to result in improved module 10 efficiency and subsequently rolled out to the company's other manufacturing facilities. 11 12. The task force discovered that FR 421 had the effect of producing a small 12 subpopulation of modules that could experience field power loss of 15% or more from 13 nameplate within the first several months of installation. 14 13. The task force concluded that FR 421 had resulted in manufacturing 15 conditions occasionally exceeding the company's standard control limits. We referred to 16 such conditions as the LPM excursion. 17 14. Upon determining the root cause of the LPM excursion, I directed all plants 18 to implement process changes that ended the excursion. These process changes were 19 implemented at all plants worldwide by the end of June 2009. 20 15. My primary role in addressing the LPM excursion was to lead the team that 21 identified and mitigated its technical root cause. As a result, after June 2009, my role was 22 limited to serving as a technical advisor to the Quality team. 23 16. I was not involved in the LPM remediation efforts, though I continued to 24 provide technical advice. This included providing technical expertise in drafting 25 documents that explained the LPM excursion to customers and the independent engineers 26 hired by customers and solar project investors. My goal was to ensure that we provided 27 accurate and useful information about the LPM excursion, while protecting our 28 proprietary and confidential information. EAGLESHAM DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 2 sf-3514787 9 1 17. It was important that First Solar protect confidential information pertaining 2 to its intellectual property. Specifically, the solar industry was highly competitive at this 3 time, and data about First Solar's technology and manufacturing processes were closely 4 guarded secrets in light of the company's position as the lowest-cost solar manufacturer. 5 In particular, there were several up-and-coming competitors who were actively attempting 6 to replicate First Solar's manufacturing processes and device technology. Therefore, I 7 believed it was key to First Solar's continued success that proprietary information about 8 our state-of-the-art processes not leak to competitors. 9 18. First Solar also had important commercial reasons for keeping information 10 about its modules' performance confidential. It was my view that First Solar's 11 competitors would use information that they learned about First Solar's modules to falsely 12 portray it in a negative light. The need for secrecy relating to First Solar's modules was 13 heightened by the fact that there were a small number of independent technical advisors 14 operating in the photovoltaic market globally, and those advisors worked for—and shared 15 information with—some of First Solar's direct competitors. Because information that was 16 given to technical advisors could easily find its way to First Solar's competitors, the 17 company was keenly aware of the need to protect proprietary and commercial information 18 from the technical advisors. 19 Module Degradation Characterization, Testing, and Labeling 20 19. First Solar forecast the output and lifetime performance of its modules using 21 algorithms based on years of laboratory and real-world performance data. This included 22 laboratory data from First Solar's ongoing module testing program, which simulated more 23 than 25 years of exposure in multiple climates and replicated International 24 Electrotechnical Commission testing; real-time feedback from over 500,000 installed 25 modules by 1Q2008; and historical performance data from (1) the Springerville 26 Generation Site operated by Tucson Electric Power Co., (2) multiple test arrays at the 27 Arizona Public Service Solar Testing and Research site in Tempe, and (3) the National 28 Renewable Energy Laboratory in Golden, Colorado. EAGLESHAM DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 3 sf-3514787 9 1 20. In addition, First Solar's modules were tested by independent laboratories, 2 including Sandia National Laboratories, The Southeast Regional Experiment Station, The 3 California Energy Commission, Fraunhofer ISE, TÜV Rheinland, The Institute of Solar 4 Energy Technology, Institut für Physikalische Elektronik at the Universität Stuttgart, and 5 PHOTON Laboratory. 6 21. Based on this and other data, I knew that First Solar's modules, like those 7 from all commercial photovoltaic module manufacturers, decline in power output over 8 time. More specifically, First Solar's modules decline exponentially, meaning that they 9 undergo an initial period of relatively rapid degradation (referred to as "stabilization") 10 followed by much slower long-term degradation (referred to as "degradation"). 11 22. To account for the initial stabilization period, First Solar applied a "derate" 12 of approximately -5.5% to all modules as they came off the production line. First Solar 13 implemented the process of derating modules to account for the initial stabilization period 14 before I joined the company in May 2006. This derate reduced the rated power output of 15 a module from its actual tested value to its expected post-stabilization value. For 16 example, if a module came off the production line and tested at 80 watts, it would be 17 derated to 75 watts. The module would then be labeled as a 75 watt module, and both the 18 sales price and the warranty would be based on the 75 watt label. 19 23. Following the initial stabilization, the power output of modules in temperate 20 climates were estimated to degrade at approximately -0.5% per year, and the power output 21 of modules in hot climates were estimated to degrade at approximately -0.7% to -0.8% per 22 year. I believe that throughout the class period, First Solar provided customers with these 23 estimates for both temperate and hot climates—First Solar called these degradation 24 estimates "degradation guidance." 25 24. During the class period, I regularly met with Mike Koralewski to review the 26 key metrics regarding First Solar's module technology. 27 25. One of the key metrics I reviewed each quarter with Mr. Koralewski was the 28 Performance Expectation Ratio ("PER"), which compared First Solar's model predictions EAGLESHAM DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 4 sf-3514787 9 1 against actual power output at customer sites monitored by First Solar in a variety of 2 climates. Degradation guidance was one input into the model. Because First Solar's 3 model predictions closely mirrored those of our customers, the PER was a good measure 4 of whether energy yield from sites built with First Solar modules matched our customers' 5 expectations. 6 26. Throughout the class period, the PER metric showed that, on average, 7 modules in all climates were performing at, or slightly above, the levels predicted by First 8 Solar's model. In addition, in the few instances where a site was underperforming the 9 model predictions, the underperformance was most likely due to statistical variations in 10 the data or, as reported by the Quality team, due to construction or electrical issues with 11 the site. 12 27. First Solar provided customers with a written warranty in connection with 13 module sales. Under this warranty, modules that had been properly installed and 14 maintained were warranted to produce 90% of their labeled power output for the first 10 15 years after sale, and 80% of their labeled power output for the eleventh through twenty- 16 fifth years. Due to measurement variability, the warranty specified that First Solar was 17 only obligated to replace modules that tested 5% or more under the warranted levels. 18 Thus, First Solar's warranty obligations were triggered by modules testing at 85% or 19 lower during the first ten years, or 75% or lower through the twenty-fifth year. 20 Hot Climate Stabilization 21 28. Following the acquisition of Optisolar in May 2009, First Solar began 22 developing its own large-scale photovoltaic plants in Canada and the United States 23 through the company's Engineering, Procurement, and Construction ("EPC") division. 24 29. As a result, the company's finance and business development staff began to 25 push for First Solar to consider changing its warranty offering from a step-structured 26 module warranty to one based on annual power performance degradation at either the 27 module or the system level. In assessing whether First Solar should change its warranty 28 EAGLESHAM DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 5 sf-3514787 9 1 offering and if so, under what terms, in early 2010, a team led by Adrianne Kimber in the 2 Performance and Prediction group analyzed long-term degradation rates. 3 30. On approximately April 2, 2010, Ms. Kimber's team completed work on a 4 white paper regarding long-term degradation. I received a copy of the white paper on or 5 about that date. 6 31. The white paper concluded that long-term degradation in temperate and 7 warm climates matched First Solar's degradation guidance in those climates. 8 32. The white paper also noted that some limited low-confidence data indicated 9 that systems in hot climates may perform worse than degradation guidance for hot 10 climates. 11 33. At the time that I reviewed the white paper, I was not concerned that First 12 Solar modules in hot climates performed worse than degradation guidance, let alone 13 warranty expectations, for several reasons, including: 14 (a) The white paper was mainly based on low-confidence data sets that 15 were less than three years old. As discussed above, I knew through years of research, 16 however, that the company's modules followed a nonlinear functional form for 17 degradation: an initial rapid stabilization drop that then slowed down and leveled out after 18 2-3 years; 19 (b) The best data that First Solar had at that time, its long-term test 20 installations in the Arizona desert, were performing at or above expectations; and 21 (c) I knew from the quarterly review I engaged in with Mr. Koralewski 22 that, on average, monitored sites in hot climates were performing at or above performance 23 expectation ratios. 24 (d) As a result, the white paper drafted by Ms. Kimber's team did not 25 change my view that First Solar's long-term degradation guidance of -0.7% to -0.8% per 26 year in hot climates was correct. In fact, at no time while I was First Solar's VP 27 Technology or CTO did I believe that First Solar's degradation guidance for hot climates 28 was incorrect. EAGLESHAM DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 6 sf-3514787 9 1 34. Because it is always better to have more high-confidence data, I agreed with 2 the recommendation in the white paper that First Solar should continue to investigate 3 module and system degradation rates. I authorized members of my engineering team to 4 assist with the collection and analysis of this data as part of the work being conducted in 5 conjunction with the Quality and Reliability and Product Management departments. 6 35. On or about February 7, 2011, I was informed of new data that became 7 available as part of the ongoing analysis of degradation rates. This data, collected from a 8 large site built and operated by First Solar in the Southern California desert, the Blythe 9 site, was the first indication the company had that the initial stabilization for First Solar 10 modules might be greater in magnitude than had been previously predicted. 11 36. The Blythe site was constructed by First Solar at the same time as the Sarnia 12 site in Ontario, Canada, which was performing as expected. Because First Solar had 13 constructed both sites using identical modules and other equipment, First Solar engineers 14 hypothesized that the climate difference might be driving the difference in initial 15 stabilization. 16 37. Once I received this data, I sponsored a cross-functional team of engineers 17 and scientists to further investigate and quantify the hot climate stabilization issue. 18 38. By the beginning of the second quarter of 2011, the cross-functional team 19 developed an improved method of analyzing the field data. Based on this new analysis, 20 the team concluded that (a) long-term degradation was likely temperature-independent 21 and, therefore, hot climate degradation was lower than the guidance provided to our 22 customers, but (b) the initial stabilization of First Solar modules in hot climates was 23 greater than previously predicted. 24 39. At this time, the vast majority of our modules were installed in temperate 25 climates. As a result, I directed my engineering team to work on mitigation strategies for 26 future system installations and module sales to hot climate locations to ensure our 27 customers would continue to see energy yields at or above expected levels. 28 EAGLESHAM DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 7 sf-3514787 9 1 40. By the second quarter of 2011, my engineering team and the cross- 2 functional stabilization team had developed both short-term and long-term plans to 3 address future systems installations and module sales in hot climates. These plans were 4 presented to the entire executive staff and to the Board of Directors. I also discussed the 5 hot climate stabilization issue with PricewaterhouseCoopers (PwC)—First Solar's outside 6 auditors. 7 41. The short-term mitigation strategies included the development of a "smart 8 derate" system, under which a smart derate equation determined the derate assigned to 9 module sales in hot climates. 10 42. An additional short-term mitigation strategy was to overbuild large sites 11 constructed by the systems business. Overbuilding a site consisted of installing additional 12 modules such that the site would be expected to over-perform initially and in the later 13 years of operation, while meeting expectations in all years. This strategy had the benefit 14 of increasing the overall lifetime energy output of a site, and therefore increasing its value 15 to the end purchaser. 16 43. As a long-term mitigation strategy, in the second and third quarters of 2011, 17 an engineering team operating at my direction and led by Benyamin Buller developed and 18 validated a new manufacturing process (the Hot Climate Process, or "HCP") that 19 substantially improved the initial stabilization of First Solar modules in even the hottest 20 climates. This process was implemented at all First Solar factories by the end of the third 21 quarter of 2011. 22 44. By the end of 2011 HCP had successfully addressed much or all of the hot 23 climate stabilization issue, such that the short-term strategies identified above were no 24 longer needed. 25 26 27 28 EAGLESHAM DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 8 sf-3514787 9 1 45. Attached as Exhibit 74 is a true and correct copy of a presentation I gave to 2 First Solar's Board of Directors on or about April 27, 2011.1 It was First Solar's regular 3 practice to prepare presentations to the Board of Directors, and I participated in creating 4 this presentation. These types of presentations were relied on by the Board of Directors 5 and the company, so it was important that they be accurate. I have confirmed that this 6 exhibit is a true and correct copy of the original document. 7 First Solar's Reported Cost per Watt 8 46. I did not make decisions, or participate in the decision-making, about First 9 Solar's reported cost per watt. 10 First Solar's Accounting Decisions, Earnings Releases, and Public Statements 11 47. As CTO, I reviewed First Solar's Forms 10-Q and 10-K to ensure the 12 accuracy of disclosures as they related to First Solar's module technology, and to ensure 13 that proprietary information was not disclosed. 14 48. As CTO, I sometimes attended disclosure committee meetings to provide 15 input as to the accuracy of technical information discussed in filings, and to ensure that 16 proprietary information was not disclosed. 17 49. I do not recall providing any edits to a single Form 10-Q and 10-K as either 18 the CTO or the VP of Technology. 19 50. I did not participate in the drafting or preparation of First Solar's Forms 10- 20 Q and 10-K. 21 51. I did not make decisions about anything disclosed in First Solar's statements 22 of operations, balance sheets, or any notes to those financial details, or First Solar's risk 23 factors, non-technical press releases, or in conference calls with analysts. 24 52. I never overruled or influenced the decisions of First Solar's accounting 25 personnel, CEO, CFO, Audit Committee, Board of Directors, attorneys, or PwC. 26 27 1 All exhibit references in this Declaration are to the Appendix of Exhibits in Support of Defendants' Motion for Summary Judgment. 28 EAGLESHAM DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 9 sf-3514787 9 1 53. I also did not participate in First Solar Quarterly Conference Calls. 2 54. I never dictated the result of any accounting determination, or manipulated 3 the inputs or methodology used. I believed that all accounting determinations were 4 consistent with First Solar's policies and procedures. 5 55. Throughout my tenure at First Solar, I never knowingly or intentionally 6 made any material misstatement or omission to the market. 7 56. I never directed or induced anyone to make any public statements on behalf 8 of or regarding First Solar which I knew to be false or misleading. 9 57. To my knowledge, all information released to the public was done entirely 10 in good faith, was supported by fact, and was true. 11 June 24, 2009 Meeting with Analysts and Investors 12 58. On June 24, 2009, as VP of Technology, I presented slides at a meeting with 13 analysts and investors, which I had done previously on occasion.2 A portion of my 14 presentation included the following statements: 15 So I wanted to just maybe take a slightly different slice through the same kind of space. So you look at what the different attributes of our 16 technology buys you, and I think we generally begin with being a thin film company. If you tap most of the guys in my organization on 17 the shoulder and you say, what kind of company are you? Most of them will say they are a thin-film PV first and a CdTe second. So we 18 think of ourselves as a thin-film company. 19 The thin-film is—and I think we are the first of the thin-film companies to really get into scale here. I think we've achieved what 20 thin-film has long promised to the PV industry, which is a much better level of integration in terms of the manufacturing and then a 21 much more integrated device architecture as well. So I think those are the long-standing promises of thin-film and I think pretty much 22 any thin-film technology carries a similar set of attributes to that. 23 A couple things that shake out of that—so thin-film carries an inherently low bill of materials so you don't have a big, thick piece of 24 silicon that's tied to it. Having the integrated modules then is obviously closely coupled into delivering a low CapEx and a low 25 labor cost. And so, again, pretty much any thin-film technology that 26 2 Exhibit 60 is a true and accurate copy of the presentation I gave, in part, on June 27 24, 2009, entitled "Analyst/Investor Meeting, Westin Las Vegas." I recall reviewing the presentation prior to June 24, 2009, and presenting it, in part, on or about June 24, 2009. 28 EAGLESHAM DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 10 sf-3514787 9 1 you are looking at out there is going to have some kind of capability for relatively low CapEx compared to the integrated chain through 2 the whole crystalline silicon business. 3 The device architecture—so the drawback of thin-film obviously is that you are carrying resistive losses. So the resistive losses 4 associated with the transparent conducting oxide, so you actually give up a significant chunk of efficiency from the cell level 5 integrating into the module. 6 The upside of that, however, is that in low light conditions that resistive loss is less of a penalty. So the upside of that is that in low 7 light conditions, typically you will see the modules deliver better kilowatt hours per watt peak. 8 So then which of the pieces that are directly associated with CdTe? 9 Alright, so CdTe has a couple of natural attributes of the material. So its band gap is 1.5 volts; it's—that 1.5 volts is well matched to a solar 10 spectrum, so you wind up with a technology that has the capability of delivering high efficiency. You have a material which sublimes 11 congruently, by which I mean, if you heat up CdTe to a condensate, what you get is CdTe in its compositional form. And there's actually 12 almost no compounds in the—semiconductor compound in the periodic table that will do that. 13 So you have a unique capability of being able to quickly and easily 14 produce a deposition system that will deposit a thin-film without a lot of complex control, without a lot of chemistry, without a lot of 15 complexities around that. 16 So it's inherent to the nature of CdTe that CdTe delivers fast deposition, very fast deposition rates. It's going to hook you into a 17 relatively low CapEx. And when we look at how we rack up against other thin-film technologies and when we assess other thin-film 18 technologies that we are interested in getting into ourselves, one of the primary issues that you have to face is that it's very difficult to 19 find other semiconductors that you can deposit anywhere near as fast. And that high-speed deposition takes you into much more 20 extensive—high-speed deposition takes you into a lower CapEx. So it's a critical metric, again. 21 Last point is those binary compounds. And again, against other 22 technologies, that makes it relatively simple to manufacture. So the complexity of the compound that you are trying to put down is 23 relatively simple, so the opportunities to get it wrong and the need for control and particularly for expensive manufacturing, in situ 24 manufacturing control systems, is much less. 25 So those are the attributes and how they link into the various attributes that we care about from a product standpoint and from a 26 company mission standpoint, so the low bill of materials, the low capital cost, low labor cost, high efficiency, manufacturability and 27 the high delivered energy per watt peak. And again, when we are looking at this as a company, a 100-year company, we are looking at 28 this primarily in terms of these attributes and their ability to help the EAGLESHAM DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 11 sf-3514787 9 1 technology drive a kind of scale that we think the technology needs to go to in the long-term. 2 So does CdTe—I think one of the questions that we always try to 3 address is what's our IP position in CdTe. I think the Company clearly has a lot invested in the technology, so we've spent a lot of 4 money on this historically. I think, again, against our current expectations, our expectations are that the entire PV world is going to 5 turn into a horse race. And so one of the questions that we are always asking is how are we positioned in the horserace, do we have the 6 right ammunition, do we have the right components to drive our differentiation long-term going forward? 7 So the company is about 10 years old. So, if you go through the math 8 there, you can figure out that anything that's truly a First Solar piece of intellectual property currently still has a long life to it in terms of 9 the life of the patent. We have a pretty strong patent portfolio. The core patents around which the company is founded that involve the 10 deposition technology, the high-rate deposition technology — that, again, is a key to our capital costs. Those patents remain in force, and 11 they remain well protected. 12 We have a policy of working to protect ongoing improvements, so we have a selective policy of filing patents around the ongoing 13 improvements. And I say that because, again, one of the catches with patents is, once it's out there, it's out there. And so we also — we do 14 a fairly detailed analysis to understand what we want to patent versus what we want to hold as confidential information. And so a fair 15 amount of the company's differentiation is actually held as a trade secret. It's unpublished, and we don't talk about it. And they very 16 rarely let me get up on the stage in front of anybody. 17 Okay, so quickly through the differentiation. So, when we look at other people, obviously First Solar has a big bull's-eye on it at this 18 point. There's a lot of people are aware of what First Solar is doing; we are very visible. There's a lot of people are chasing after us. I 19 think a lot of people are moving very aggressively to try to do everything that we've done in a very short period of time. I think it's 20 important to recognize at this point that First Solar was — it didn't take First Solar 10 years to get to where we are because we are 21 necessarily stupid. Right? 22 So I think that the opportunity for people to close the gap — there's clearly an opportunity for people to learn from what we've done and 23 try to slipstream and drive a faster learning. But I think there's also issues around doing that, and I think you are seeing many companies 24 face challenges now in terms of trying to move as fast as we've moved historically. 25 Again, looking at the things that 10 years gives you, so 10 years gives 26 you a lot of volume learning experience. You have a lot of experience in the field. You've had opportunities to develop your accelerated life 27 tests and understand how those tie to the field performance. I think another attribute here that is really important to us, coming out of 28 the growth of the EPC business, is we have — I feel I'm lucky as a EAGLESHAM DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 12 sf-3514787 9 1 module technologist to have a direct line of sight to the installation business and the way that the EPC business has given us. 2 So we have an opportunity to actually understand, as opposed to 3 trying to make estimates about what voltage or length of wires or other attributes, the way they are going to impact the business, we 4 have the opportunity to try to really drill into that and understand that in a very detailed way. So again, we've got an opportunity to 5 have a direct line of sight to those requirements. 6 And again, I think we believe that we're positioned for ongoing efficiency improvements. And some of this is about scale. Right? So, 7 again, we are a fairly large company. We're positioned at this point to be able to make pretty substantial investments in forward going 8 technology. I think I've said, our expectation of the company is that this is going to turn into a technology horse race. So we are working 9 aggressively to try to understand how to develop technologies on the assumption that this race in the end is going to be about us figuring 10 out how to move faster than the other guys. 11 So in the end, it's going to be a horse race. And we've got to figure out how to move faster than the guys coming behind us. And I think 12 scale and our current financial position gives us an opportunity to be able to do that. 13 Okay, and this is talking to the sort of history of field information, I 14 think this is a slide that most of you guys have probably seen before. This racks up against the BEW study, and I think this again — that 15 this is making a relatively simple statement that our track of field performance and our knowledge of field performance allows us to 16 have fairly high confidence that our product is delivering in the field and that we are able to extract the value that we expect to extract 17 from the two attributes that I talked to. And this is the resistive loss gives you low light performance, and the band gap gives you high 18 temperature performance. 19 And so those two attributes, again, remain a critical piece that our attributes are the cadmium telluride technology that we are able to 20 see in the field. 21 59. I made this statement as part of an update to analysts and investors entitled 22 Technology, Efficiency, and Competition. My presentation begins on slide 81 23 (FSLR01659084) of the attached document. 24 60. The purpose of my presentation was to provide an update on module 25 technology and to provide details of specific areas in which First Solar's technology 26 differed from that of its competitors. 27 61. Two of the differentiators I highlighted in this presentation were attributes 28 of First Solar modules known as "resistive loss" and "band gap." EAGLESHAM DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 13 sf-3514787 9 1 62. My statement that First Solar's "high confidence that our product is 2 delivering in the field and that we are able to extract the value that we expect to extract 3 from the two attributes that I talked to" is based on these two attributes (resistive loss and 4 band gap). Neither of these attributes is related to the LPM excursion or the hot climate 5 stabilization issue. 6 63. My statements at the June 24, 2009 conference were true and correct based 7 on field performance data and my knowledge of First Solar's module technology. For 8 example, slide 87 of my presentation (FSLR01659090) shows that the benefits of resistive 9 loss and band gap were being observed at Tucson Electric Power's Springerville 10 Generation Station. In addition, as noted above, the PER metric, which I regularly 11 reviewed, indicated that First Solar's modules were delivering at or above expectation in 12 the field. 13 Stock Sales 14 64. In accordance with First Solar's Insider Trading Policy, I pre-cleared all of 15 my stock transactions, including implementing my 10b5-1 trading plans, with First Solar's 16 office of the General Counsel before executing transactions. 17 65. In connection with joining First Solar, in June 2006 I received a grant of 18 stock options that vested approximately 3,627 shares monthly through June 1, 2011. 19 My options were subject to an initial one-year waiting period during which I could not 20 exercise any options. 21 66. Throughout my tenure at First Solar, I followed a long-term plan to sell my 22 First Solar stock as it vested. I was uncomfortable having both my assets and my income 23 tied up with a single company, particularly in a startup industry. 24 67. As the VP of Technology, I made my First Solar stock sales during quarterly 25 open trading windows through an E*TRADE account. I sought and obtained pre- 26 clearance from the office of the General Counsel for my stock sales during this time. 27 68. Once I became CTO, I exercised options and sold the resulting shares under 28 Rule 10b5-1 plans. I did not enter into any of these plans while in possession of material EAGLESHAM DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 14 sf-3514787 9 1 undisclosed information about First Solar. After becoming CTO, approximately 97% of 2 my sales were made under Rule 10b5-1 plans. 3 69. All of my stock sales were consistent with my investment goal and were 4 never influenced by any information that I had, but that the public and First Solar's 5 investors did not. My stock sales also were not motivated or influenced by specific 6 movements in First Solar's stock price. I did not seek advice on my stock sales from other 7 First Solar executives, nor did I ask other executives to buy or sell stock. 8 Quarterly Exercise and Sale of Vested Options 9 70. I began selling First Solar stock in the first open trading window after my 10 one-year waiting period. On August 3, 2007, I exercised all of my options on First Solar 11 stock that had vested at that point and sold the stock received in the exercise. 12 71. Once per quarter—during every available trading window—I similarly 13 exercised all vested options and sold the stock received. I engaged in these transactions 14 on or about November 13, 2007, and February 19, 2008. 15 72. My practice did not change during the class period. I engaged in identical 16 exercises and sales of all vested options on May 6, 2008; August 15-21, 2008; 17 November 4-12, 2008; February 27, 2009; May 4, 2009; August 5, 2009; and October 30- 18 November 3, 2009. 19 73. In November 2009, I was promoted to Chief Technology Officer and began 20 the process of formalizing a plan under section c of SEC Rule 10b5-1. I was not able to 21 finalize this plan during the brief open trading window after my promotion, so I was not 22 able to exercise options or sell stock in February 2010. I finalized a trading plan in the 23 open trading window on February 26, 2010. 24 74. The trading plan I entered into on February 26, 2010, covered all of my 25 options that had vested or were scheduled to vest through April 2010. On April 30, 2010, 26 the plan administrator exercised 15,882 options and sold the shares received. On May 18, 27 2010, the plan administrator exercised an additional 5,000 options covered by the plan and 28 sold the shares received. 882 options covered by the plan were not exercised. EAGLESHAM DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 15 sf-3514787 9 1 75. In the May 2010 open trading window, I adopted a second trading plan that 2 instructed the plan administrator to engage in a pattern of options exercise and sale 3 identical to that which I had followed since I was first permitted to sell First Solar stock in 4 August 2007. 5 76. Under this plan, on August 2, 2010, the plan administrator exercised all 6 options that had vested through that date and sold the stock received. The plan 7 administrator then exercised the remaining options from my November 2006 grant on a 8 monthly basis as they vested. 9 77. In total, I sold 216,761 shares of First Solar stock received pursuant to the 10 exercise of options. There was no variation in my strategy for the exercise of options or 11 sale of stock before or during the class period. 12 Sale of Vested Restricted Stock Units 13 78. While the vast majority of my compensation was in the form of stock 14 options, as an executive officer I also participated in First Solar's long term equity 15 incentive plan, under which I received an annual grant of Restricted Stock Units. A 16 portion of these RSUs vested annually in each of the four years following the grant. 17 79. I sold a total of 3,878 shares from vested RSUs during the class period. On 18 March 4, 2011, I sold 1,944 shares from vested RSUs. These sales were not made 19 pursuant to a 10b5-1 plan and were my only sales not under such a plan during the class 20 period while I was CTO. When I made this sale, I was not in the possession of material 21 non-public information. 22 80. At the end of the class period, I continued to hold 4,316 vested RSUs. 23 Sales Pattern Before and During the Class Period 24 81. In the nine months between the first open trading window following the 25 one-year waiting period and the beginning of the class period, I sold a total of 72,547 26 shares, which was 100% of my holdings available for sale. 27 82. During the 46-month class period, I sold a total of 148,092 shares, which 28 was 97% of my holdings. EAGLESHAM DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 16 sf-3514787 9 9 1 CERTIFICATE OF SERVICE 2 I hereby certify that on March 27, 2015, I electronically transmitted the attached 3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to all CM/ECF registrants. 5 6 7 s/Rosemary Barajas Rosemary Barajas 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DECLARATION Declaration Of Robert J. Gillette In Support Of Defendants Motion For Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.

3 1 James P. Bennett (Admitted pro hac vice) JBennett@mofo.com 2 Paul Flum (Admitted pro hac vice) PaulFlum@mofo.com 3 Jordan Eth (Admitted pro hac vice) JEth@mofo.com 4 Judson E. Lobdell (Admitted pro hac vice) JLobdell@mofo.com 5 Anna Erickson White (Admitted pro hac vice) AWhite@mofo.com 6 Philip T. Besirof (Admitted pro hac vice) PBesirof@mofo.com 7 Mark R.S. Foster (Admitted pro hac vice) MFoster@mofo.com 8 MORRISON & FOERSTER LLP 425 Market Street 9 San Francisco, California 94105-2482 (415) 268-7000 10 Maureen Beyers, Arizona Attorney No. 017134 11 MBeyers@omlaw.com Joseph N. Roth, Arizona Attorney No. 025725 12 JRoth@omlaw.com OSBORN MALEDON, P.A. 13 2929 North Central Avenue Phoenix, AZ 85012-2793 14 (602) 640-9000 15 Attorneys for Defendants First Solar, Inc., Michael J. Ahearn, Robert J. Gillette, 16 Mark R. Widmar, Jens Meyerhoff, James Zhu, Bruce Sohn, and David Eaglesham 17 UNITED STATES DISTRICT COURT 18 DISTRICT OF ARIZONA 19 20 Mark Smilovits, individually and on Case No. CV12-00555-PHX-DGC behalf of all other persons similarly 21 situated, Plaintiff, DECLARATION OF 22 ROBERT J. GILLETTE IN vs. 23 SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY First Solar, Inc., Michael J. Ahearn, JUDGMENT 24 Robert J. Gillette, Mark R. Widmar, Jens 25 Meyerhoff, James Zhu, Bruce Sohn, and David Eaglesham, 26 Defendants. 27 28 GILLETTE DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT sf- 3512286 3 1 I, Robert J. Gillette, declare as follows: 2 1. I am a defendant in this lawsuit. I submit this Declaration in support of 3 defendants' motion for summary judgment. If called as a witness, I would testify to the 4 following facts: 5 My Background 6 2. I attended Indiana University at Bloomington, where I received my 7 Bachelor's degree in finance in 1982. After graduating from Indiana University, I held 8 various positions at Allstate, Owens Corning, and GE until 1996. 9 3. In 1996, I left GE for Allied Signal (later known as Honeywell). In 2001, I 10 was named President and CEO of Honeywell Transportation Systems. I served in this 11 role until 2005, when I became president and chief executive officer of Honeywell 12 Aerospace. 13 4. I left Honeywell Aerospace in September 2009 to join First Solar. I joined 14 First Solar, as its CEO and a member of the Board of Directors, on October 1, 2009. I 15 did not know any of First Solar's executives before joining the company. 16 My Time at First Solar 17 5. When I joined First Solar, I believed the company was in a position to 18 solidify itself as an industry leader and continue the growth it had experienced since its 19 IPO. I believed that First Solar's cost advantages over its competitors situated it to 20 capture additional market share in established subsidized markets and penetrate 21 developing unsubsidized markets. 22 6. To capitalize on these cost advantages, I led First Solar through a period of 23 manufacturing expansion. Along with Bruce Sohn (President, Operations) and the 24 manufacturing team, I developed plans to build new manufacturing plants in Arizona and 25 Vietnam. I believed that continued expansion was the best way for First Solar to 26 capitalize on its technical and manufacturing advantages. 27 7. During my tenure as CEO, I emphasized long-term investment in our 28 technology and Research and Development (R&D) teams. I believed that improving our GILLETTE DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 1 sf- 3512286 3 1 technology would continue to reduce cost-per-watt and strengthen First Solar's position 2 in the industry. 3 8. Beginning in late 2010 and accelerating in early 2011, European markets, 4 which had historically been the focus of First Solar's sales pipeline, began to face 5 increased uncertainty due to general economic weakness and changes to solar energy 6 subsidy programs. Additionally, competitors, primarily from China, were flooding the 7 market with low-cost modules. Weakening European demand and growing supply from 8 China combined to create difficult market conditions for First Solar and the solar industry 9 as a whole. 10 9. In response to these challenges, our business development team worked to 11 develop new markets, primarily in North America and India, to increase First Solar's 12 geographic diversification. 13 10. I also led First Solar to diversify its business model. I worked with Jens 14 Meyerhoff to create First Solar's Utility Systems Business Group (USBG), focused on 15 developing utility-scale solar projects to complement the company's traditional module- 16 sales distribution channel. By mid-2011, I believed that these efforts were starting to pay 17 off and that these diversification efforts, along with First Solar's commitment to 18 technological improvement, created a resilient business model that could survive a 19 difficult time in the industry. 20 11. On October 25, 2011, I was asked to leave the company. I was replaced by 21 Mike Ahearn, who returned as interim CEO. I was told that the decision to reinstate 22 Mr. Ahearn as interim CEO resulted from a change in corporate strategy. 23 My Management Team at First Solar 24 12. The structure of my staff changed significantly throughout the Class Period. 25 At different times during the Class Period, my direct reports included Bruce Sohn 26 (President, Operations), Jens Meyerhoff (Chief Financial Officer and President, USBG), 27 Mark Widmar (Chief Financial Officer), TK Kallenbach (EVP, Marketing and Product 28 Management, and later President, Components Business Group), Mary Beth Gustafsson GILLETTE DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 2 sf- 3512286 3 1 (EVP, General Counsel), David Eaglesham (Chief Technology Officer), Carol Campbell 2 (EVP, Human Resources), Stephan Hansen (Managing Director, First Solar GMBH), and 3 Maja Wessels (VP, Global Public Affairs). 4 13. When I joined First Solar, I worked hard to get to know the management 5 team and my direct reports. Unlike many new CEOs, I hired only one person from my 6 former staff at Honeywell, TK Kallenbach, because I believed in the strength of the 7 existing management team at First Solar. 8 14. I held one-on-one meetings or calls with each of my direct reports on a 9 biweekly basis. These interactions typically lasted approximately one hour. I used these 10 meetings and calls to receive updates to the business, financial, and technical 11 developments that were happening within my direct reports' organizations. 12 15. I held executive staff meetings, including all of my direct reports, 13 approximately once a month. These meetings allowed each of my direct reports to 14 discuss and present on major developments, and encouraged an open dialogue about the 15 business and any issues the company was facing. 16 Involvement with the Low Power Module (LPM) Issue 17 16. I learned of the LPM issue shortly after I joined the company in October 18 2009. At the time I joined First Solar, the engineering and manufacturing teams had 19 already identified the root cause of the issue and prepared estimates of its size and scope. 20 17. I attended meetings and received presentations and other communications 21 discussing First Solar's engineering, quality, and accounting teams' efforts to identify the 22 affected module population and the costs associated with the remediation of affected 23 customer sites. I also attended meetings and received communications regarding the best 24 way to work through the technical product issues with our customers. 25 18. I received updates from and relied on the technical expertise of experienced 26 First Solar executives, including David Eaglesham, Bruce Sohn, and Mike Koralewski 27 (VP, Global Quality), for data and analysis relating to the engineering evaluation of the 28 manufacturing excursion and the work done to estimate the affected population. While I GILLETTE DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 3 sf- 3512286 3 1 was not personally involved in developing the underlying data or estimates (I am not a 2 physicist or engineer), my communications with these employees and the information I 3 received supported my belief that the work being performed by the company's engineers 4 relating to the manufacturing excursion was thorough and accurate. 5 19. I received updates from and relied on the expertise of the CFO, CAO, and 6 their staff for information relating to the financial and accounting treatment of the LPM 7 remediation program and its financial effects. Specifically, I relied on the financial and 8 accounting expertise of experienced First Solar executives, including Jens Meyerhoff, 9 James Zhu (CAO and Corporate Controller), and Bryan Schumaker (Assistant Corporate 10 Controller), for information about the financial and technical accounting decisions 11 relating to the excursion. While I did not make these decisions or perform accounting 12 analyses personally, I was confident in the accuracy of First Solar's accounting for the 13 excursion based on the information I received, my interactions with these individuals, and 14 my understanding of the processes by which First Solar's financial estimates and accruals 15 were made. 16 20. Beginning in August 2010, I began receiving LPM status update 17 presentations from TK Kallenbach, who was then leading the LPM remediation program. 18 Mr. Kallenbach sent these presentations to the executive staff on a periodic basis, often 19 monthly, to give updates on remediation status, customer communications, and the 20 financial implications of the remediation program. I, along with the rest of the executive 21 staff, reviewed these presentations and routinely asked questions of Mr. Kallenbach about 22 the status of the remediation program. Based on my review of these presentations, and 23 my conversations with Mr. Kallenbach and members of his team, I believed that the 24 company was making progress in resolving the LPM issue and that all metrics relating to 25 the company's modules were reported accurately. 26 27 28 GILLETTE DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 4 sf- 3512286 3 1 First Solar's SEC Filings 2 21. As CEO, I signed First Solar's quarterly reports on Form 10-Q and annual 3 reports on Form 10-K filed with the Securities and Exchange Commission (SEC). 4 22. I understand that the plaintiffs in this case allege that statements contained 5 in eight Forms 10-Q or 10-K that I signed contained misrepresentations. The specific 6 statements are listed in Exhibit 2. In general, these statements concern: (a) general 7 warranty and manufacturing excursion accrual amounts for the particular period; (b) risk 8 disclosures; (c) the reported cost-per-watt metric for the particular period; and (d) First 9 Solar's operational and module performance. 10 23. I believed that the statements contained in these Forms 10-Q and 10-K were 11 accurate and free from misrepresentations. 12 24. When I joined the company in October 2009, First Solar had, and relied 13 upon, an extensive set of processes for reviewing public statements made to investors and 14 filing Forms 10-Q and 10-K with the SEC. 15 25. After joining the company, I reviewed these processes and satisfied myself 16 that they were thorough and reliable. I met with the teams responsible for providing 17 information for SEC filings, and I discussed the controls and processes in place to ensure 18 that information was being accurately reported. I also reviewed the regular reports that 19 were produced by these groups and were fed into the disclosure process, such as CFO 20 close presentations, technology roadmaps, and manufacturing reports. Based on my 21 review of the controls in place and my interactions with the individuals involved, I 22 believed that First Solar had an in-depth process in place for developing and reviewing its 23 SEC filings and other public statements. I believed that the procedures in place were 24 comparable in their strength and rigor to those of the much larger companies I had 25 worked for in the past, and was impressed with the work that was done. 26 26. I knew that the process was built around First Solar's Disclosure 27 Committee. The Disclosure Committee consisted of approximately 15-20 senior 28 employees and was made up of experts from across the organization. The Disclosure GILLETTE DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 5 sf- 3512286 3 1 Committee's role was to make balanced and informed decisions regarding First Solar's 2 disclosures and SEC filings. The Disclosure Committee reported to me; I was not a 3 member and did not attend their meetings. 4 27. I also knew that First Solar had an extensive financial close process that 5 was performed by the financial planning and analysis (FP&A) and accounting teams. 6 This process was designed to reconcile, consolidate, and report First Solar's financial 7 results through the CFO's organization, for eventual inclusion in First Solar's SEC 8 filings. As CEO, I reviewed the results of the close process with the CFO and members 9 of his team every quarter. I used these reviews as an opportunity to clear any questions I 10 had about the financial statements or First Solar's general financial condition. I did not, 11 however, personally determine or calculate the specific financial estimates to include in 12 the Forms 10-Q or 10-K or related earnings release conference calls. Specifically, I did 13 not personally calculate product warranty or manufacturing excursion accruals or 14 determine the cost-per-watt metric. These analyses were performed by First Solar's 15 accountants and finance professionals, and I relied on the expertise of the CFO, CAO, 16 Corporate Controller, and their staff to analyze and determine these accruals and metrics. 17 Through my interactions with the CFO and his team, and the reports and other 18 information I reviewed with them, I believed that the results of their analyses were 19 truthful, thorough, and accurate. 20 28. First Solar also had an extensive and rigorous sub-certification process. 21 While I was CEO, I knew that more than one hundred employees participated in the sub- 22 certification process. The sub-certification process was designed to ensure that the 23 information contained in First Solar's SEC filings accurately reflected the financial 24 condition of the business in all material respects. As CEO, I met with the CFO to review 25 the results of the sub-certification process every quarter. We met and performed this 26 review before signing the SOX certifications filed in connection with First Solar's SEC 27 filings. I also did not sign my SOX certification until after the CFO signed his own 28 GILLETTE DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 6 sf- 3512286 3 1 certification. I viewed this as yet another assurance that the processes in place had been 2 followed. 3 29. I also knew that First Solar's outside auditors, PricewaterhouseCoopers 4 (PwC), performed quarterly reviews and annual audits of First Solar's financial 5 statements. I met personally and in private with the auditors to discuss the results of 6 these reviews and audits every quarter, generally before the Board of Directors and Audit 7 Committee meetings. My meetings with PwC occurred on a regularly scheduled basis, at 8 least once every quarter, and involved the PwC audit partner and, occasionally, other 9 PwC accounting professionals. We used these meetings to discuss the component parts 10 of PwC's reviews and audits of First Solar's financial statements, and to discuss any 11 issues or questions that the auditors or I had. My discussions with PwC provided me 12 with further assurance that the proper controls were in place and being followed. 13 30. The final step in the process was review of the SEC filings by the Audit 14 Committee and Board of Directors. The SEC filings were presented to the Audit 15 Committee and Board by members of the management team, led by the CFO and me. 16 The Audit Committee reviewed the filings and asked questions of management to make 17 sure that any issues or concerns were resolved prior to filing. After the Audit Committee 18 was comfortable with the draft filings presented by management, the Audit Committee 19 would make a recommendation to file to the full Board of Directors. The full Board then 20 performed its own review before approving the SEC filings. 21 31. In addition to these processes, the work that I performed with my staff 22 throughout the quarter gave me confidence that First Solar's SEC filings were accurate. 23 The one-on-one biweekly calls and meetings that I held with my direct reports gave me 24 confidence that I was being updated on the commercial, financial, and technical 25 developments that were happening within my direct reports' organizations. I also held 26 executive staff meetings, involving all of my direct reports, approximately once a month. 27 These meetings allowed each of my direct reports to discuss and present on major 28 developments, and encouraged an open dialogue about the business and any issues the GILLETTE DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 7 sf- 3512286 3 1 company was facing. Because my direct reports included the executives responsible for, 2 among other things, manufacturing, operations, human resources, sales, government 3 relations, finance and accounting, legal, and marketing, I believed that these meetings 4 gave me direct and valuable insight into all of the major developments occurring across 5 the organization. My interactions with my staff and the information and reports we 6 reviewed during these meetings gave me confidence that each of the SEC filings I signed 7 accurately reflected the condition of the company at the time they were issued. 8 32. Only after all of these processes were complete—drafting and review by the 9 Disclosure Committee; consolidation and reconciliation of the financial statements 10 through the finance and accounting close process; sub-certification by key employees, 11 including certification by the CFO; quarterly review or annual audit by PwC; review by 12 the Audit Committee; and review by the Board of Directors—did I sign my SOX 13 included in First Solar's SEC filings. 14 33. It is my understanding that First Solar has never restated or been required to 15 restate its financial statements issued during the Class Period. It is also my understanding 16 that PwC has never requested that First Solar restate its financial statements or identified 17 a material weakness related to the financial statements issued by First Solar during the 18 Class Period. 19 34. At no time did I believe, or did anyone ever tell me, that any statement 20 made by First Solar in an SEC filing issued during my tenure as CEO was false, 21 inaccurate, or misleading. Specifically, at no time did I believe, or did anyone ever tell 22 me, that any of First Solar's reported quarterly or annual financial results were inaccurate 23 or misleading, or that First Solar ever misrepresented the state of its business, module 24 performance, cost-per-watt, or the accruals relating to its warranty obligations or the 25 manufacturing excursion. 26 Statements Made During Conference Calls 27 35. As CEO, I spoke during quarterly conference calls to discuss First Solar's 28 financial results, performance, and guidance. GILLETTE DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 8 sf- 3512286 3 1 36. I understand that the plaintiffs in this case allege that statements attributed 2 to me in eleven of First Solar's conference calls with analysts and investors were 3 misrepresentations. The specific statements are listed in Exhibit 2. In general, these 4 statements concern: (a) the reported cost-per-watt metric; (b) First Solar's operational and 5 module performance; (c) manufacturing excursion accruals; and (d) projects in hot 6 climates. 7 37. At the times I made those statements, I believed that every one of them was 8 accurate and free from misrepresentations. 9 38. The financial and operational metrics included in these statements were the 10 product of the processes I discussed above in ¶¶ 25-34. My belief in the accuracy of 11 these statements is based on my knowledge of, and participation in, those processes. 12 39. Additionally, I knew that the Investor Relations team solicited data, 13 distributed drafts, and verified the accuracy of script language with the relevant 14 employees and internal experts responsible for the matters discussed during the earnings 15 conference calls. For example, on July 29, 2010, when I made the statement that the 16 manufacturing excursion affected "less than 4% of the total product manufactured within 17 the period" of June 2008 to June 2009, I knew that the accuracy of this statement had 18 been verified by subject matter experts, including TK Kallenbach (EVP, Marketing and 19 Product Management), Bruce Sohn (President, Operations), and Mike Koralewski (VP, 20 Global Quality). Indeed, as part of our review process, Mr. Kallenbach unequivocally 21 represented to me that the excursion affected less than 4% of the total product 22 manufactured during this period, emphasizing that the math was correct. 23 40. Before the conference calls, it was also my practice to meet with the 24 Investor Relations team and the CFO to review the conference call script and background 25 materials, and otherwise prepare for the calls. I used these meetings to review any 26 developments or issues that needed to be addressed during the conference calls, and to 27 discuss our approach to describing the data and metrics included in the conference call 28 scripts and presentations. GILLETTE DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 9 sf- 3512286 3 1 41. Additionally, during my personal review of the conference call scripts, I 2 routinely asked questions of the executives responsible for the underlying information in 3 the script until I was fully satisfied with its accuracy. 4 42. At no time did I believe, or did anyone ever tell me, that any statement 5 made by me, or any other member of First Solar management, during a conference call 6 was false, inaccurate, or misleading. Specifically, at no time did I believe, or did anyone 7 ever tell me, that any of my statements relating to quarterly or annual financial results 8 were false, inaccurate, or misleading, or that I ever misrepresented the state of First 9 Solar's business, module performance, cost-per-watt, or the accruals relating to its 10 warranty obligations or the manufacturing excursion. 11 Stock Transactions 12 43. I did not sell any First Solar stock while I was CEO. 13 44. On February 26, 2010, I purchased 10,000 shares of First Solar stock for 14 approximately $1 million. 15 45. I made this purchase because I believed in the company and its potential. I 16 believed that the company would succeed, primarily because it possessed the leading cost 17 position in an immature and highly speculative industry. I believed that First Solar's 18 position in the industry would allow the company to continue to capture market share and 19 cement its position as an industry leader. 20 21 22 23 24 25 26 27 28 GILLETTE DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 10 sf- 3512286 3 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that on March 27, 2015, I electronically transmitted the attached 3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to all CM/ECF registrants. 5 6 7 s/Rosemary Barajas Rosemary Barajas 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DECLARATION Declaration Of Chris Bueter In Support Of Defendants Motion For Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.

1 James P. Bennett (Admitted pro hac vice) JBennett@mofo.com 2 Paul Flum (Admitted pro hac vice) PaulFlum@mofo.com 3 Jordan Eth (Admitted pro hac vice) JEth@mofo.com 4 Judson E. Lobdell (Admitted pro hac vice) JLobdell@mofo.com 5 Anna Erickson White (Admitted pro hac vice) AWhite@mofo.com 6 Philip T. Besirof (Admitted pro hac vice) PBesirof@mofo.com 7 Mark R.S. Foster (Admitted pro hac vice) MFoster@mofo.com 8 MORRISON & FOERSTER LLP 425 Market Street 9 San Francisco, California 94105-2482 (415) 268-7000 10 Maureen Beyers, Arizona Attorney No. 017134 11 Joseph N. Roth, Arizona Attorney No. 025725 OSBORN MALEDON, P.A. 12 2929 North Central Avenue Phoenix, Arizona 85012-2793 13 (602) 640-9000 MBeyers@omlaw.com 14 JRoth@omlaw.com 15 Attorneys for Defendants First Solar, Inc., Michael J. Ahearn, Robert J. Gillette, 16 Mark R. Widmar, Jens Meyerhoff, James Zhu, Bruce Sohn, and David Eaglesham 17 18 UNITED STATES DISTRICT COURT 19 DISTRICT OF ARIZONA 20 Mark Smilovits, individually and on Case No. CV12-00555-PHX-DGC 21 behalf of all other persons similarly situated, DECLARATION OF 22 Plaintiff, CHRIS BUETER IN SUPPORT OF DEFENDANTS' MOTION FOR 23 vs. SUMMARY JUDGMENT 24 First Solar, Inc., Michael J. Ahearn, Robert J. Gillette, Mark R. Widmar, Jens 25 Meyerhoff, James Zhu, Bruce Sohn, and David Eaglesham, 26 Defendants. 27 28 BUETER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT sf-3516171 1 I, CHRIS BUETER, declare as follows: 2 1. I submit this Declaration in support of defendants' motion for summary 3 judgment. I make this Declaration on personal knowledge, except as to items stated on 4 information and belief. If called as a witness, I would testify to the following facts: 5 My Roles at First Solar 6 2. In November 2009, I joined First Solar's Human Resources Department. I 7 have held the titles of Director – Labor Relations, and Vice President – Human Resources 8 Corporate Services. Since November 2013, I have served as Senior Vice President – 9 Human Resources, which is the highest-ranking position within First Solar's Human 10 Resources Department. 11 3. In my various roles with First Solar, I have become familiar with First 12 Solar's hiring practices, separation practices, and organizational structure. I also have 13 access to data regarding First Solar's organizational structure, as well as the dates of 14 employment and job titles of all current and former First Solar employees. 15 Tenure Chart 16 4. I have reviewed the chart titled "First Solar Class Period Tenure Chart" that 17 is attached to defendants' motion for summary judgment as Attachment A. 18 5. This chart accurately represents the job titles of the seven individual 19 defendants and the dates they held those titles. This chart also accurately represents the 20 job titles of six other current and former First Solar employees (Michael Koralewski, TK 21 Kallenbach, Thomas Kuster, Bryan Schumaker, John Amonett, and Kurt Wood) and the 22 dates those six individuals held those titles. 23 Organizational Chart 24 6. I have reviewed the chart titled "First Solar Corporate Organizational 25 Chart" that is attached to defendants' motion for summary judgment as Attachment B. 26 7. This chart accurately represents a portion of First Solar's organizational 27 structure from 2008-2012. Specifically, this chart accurately represents the structure of 28 First Solar's Board of Directors, six executive positions appointed by the Board of BUETER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 1 sf-3516171 1 CERTIFICATE OF SERVICE 2 I hereby certify that on March 27, 2015, I electronically transmitted the attached 3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to all CM/ECF registrants. 5 6 7 s/Rosemary Barajas Rosemary Barajas 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DECLARATION Declaration Of Bryan Schumaker In Support Of Defendants Motion For Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.

7 1 James P. Bennett (Admitted pro hac vice) JBennett@mofo.com 2 Paul Flum (Admitted pro hac vice) PaulFlum@mofo.com 3 Jordan Eth (Admitted pro hac vice) JEth@mofo.com 4 Judson E. Lobdell (Admitted pro hac vice) JLobdell@mofo.com 5 Anna Erickson White (Admitted pro hac vice) AWhite@mofo.com 6 Philip T. Besirof (Admitted pro hac vice) PBesirof@mofo.com 7 Mark R.S. Foster (Admitted pro hac vice) MFoster@mofo.com 8 MORRISON & FOERSTER LLP 425 Market Street 9 San Francisco, California 94105-2482 (415) 268-7000 10 Maureen Beyers, Arizona Attorney No. 017134 11 MBeyers@omlaw.com Joseph N. Roth, Arizona Attorney No. 025725 12 JRoth@omlaw.com OSBORN MALEDON, P.A. 13 2929 North Central Avenue Phoenix, AZ 85012-2793 14 (602) 640-9000 15 Attorneys for Defendants First Solar, Inc., Michael J. Ahearn, Robert J. Gillette, 16 Mark R. Widmar, Jens Meyerhoff, James Zhu, Bruce Sohn, and David Eaglesham 17 UNITED STATES DISTRICT COURT 18 DISTRICT OF ARIZONA 19 20 Mark Smilovits, individually and on CASE NO. CV12-00555-PHX-DGC behalf of all other persons similarly 21 situated, DECLARATION OF BRYAN SCHUMAKER IN SUPPORT 22 Plaintiff, OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT vs. 23 First Solar, Inc., Michael J. Ahearn, 24 Robert J. Gillette, Mark R. Widmar, Jens Meyerhoff, James Zhu, Bruce Sohn, and 25 David Eaglesham, 26 Defendants. 27 28 SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT sf-3520471 7 1 I, BRYAN SCHUMAKER, declare as follows: 2 1. I submit this Declaration in support of the defendants' motion for summary 3 judgment. My declaration is based on facts that I personally know. Unless I state 4 otherwise, all of my statements in this declaration refer to the time period between 5 April 30, 2008, and February 28, 2012, which I understand is the class period in this case. 6 For the convenience of the Court, my declaration includes topical headers that correspond 7 to my background and the issues presented in defendants' summary judgment motion. If 8 called as a witness, I could testify to the following facts: 9 Background 10 2. I hold a bachelor's degree in Accounting from the University of New 11 Mexico. 12 3. I am a certified public accountant (CPA). I obtained my CPA license in 13 2001. My Arizona license certificate number is 12004. 14 4. Before joining First Solar, I had extensive accounting and auditing 15 experience. Between February 1999 and December 2000, I was a senior audit associate at 16 a BDO Alliance firm, Semple and Cooper, LLP, where I had substantial auditing 17 responsibilities. From December 2000 through January 2003, I was a Supervising Senior 18 at KPMG, where I engaged in process and analysis and development of controls over key 19 accounting functions, prepared and reviewed annual reports and quarterly filings for 20 publicly traded companies, and conducted audits. From February 2003 through April 21 2008, I worked in several positions and ultimately as Vice President Corporate Controller 22 for Swift Corporation, where my responsibilities included, among others, overseeing the 23 monthly close, reviewing the accuracy of the consolidated financial statements, engaging 24 in financial planning and analysis, including forecasting, for all segments of the business, 25 serving as Chairman of the Disclosure Committee, presenting to the audit committee on a 26 quarterly basis, budgeting, implementing internal controls and Sarbanes Oxley 27 requirements, and developing an internal audit department. 28 SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 1 sf-3520471 7 1 5. I am currently employed as a Vice President, Corporate Controller at First 2 Solar. I have held this position since January 2012. From April 2008 to December 2011, 3 I was the Assistant Corporate Controller at First Solar. During the class period, my 4 primary responsibilities at First Solar were to: 5 (a) Manage corporate accounting operations and interface with segment 6 and site-level controllers; 7 (b) Ensure the timely and proper close of First Solar's worldwide 8 consolidation process in accordance with Generally Accepted Accounting Principles, 9 referred to in my declaration as GAAP; 10 (c) Provide corporate oversight over the worldwide accounting 11 processes, including inventory, warranty, special reserves, the general ledger, all relevant 12 sub-ledgers, and consolidations; 13 (d) Ensure compliance with corporate finance policies and the proper 14 execution of controls established in First Solar's control documentation; 15 (e) Assess and update the design and execution of First Solar's control 16 environment; 17 (f) Manage the coordination of the quarterly review and annual audit 18 process with the external auditor; and 19 (g) Assist the Corporate Controller with the preparation and review 20 process associated with First Solar's filing of Forms 10-Q and 10-K with the Securities 21 and Exchange Commission (the SEC). 22 First Solar's Close Process 23 6. When I joined First Solar in April 2008, the company had a well-established 24 process in place to consolidate, reconcile, and review its financial results. This process 25 was, and still is, referred to as the close process. I have participated in or supervised First 26 Solar's close process every month and every quarter since April 2008. Based on that 27 experience, I am knowledgeable about the close process. In the following paragraphs, I 28 briefly summarize the close process. SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 2 sf-3520471 7 1 7. First Solar's multiple manufacturing facilities and operating segments each 2 maintain separate accounting functions and accounting records. This means that 3 transactions for these entities are recorded separately at each site. Throughout the class 4 period, on a monthly basis, First Solar's finance and accounting teams performed a 5 worldwide consolidation of the accounting records maintained by each of these entities. 6 Accountants at each location performed general ledger, or GL, maintenance activity, 7 evaluated the preparation, documentation, and support for First Solar's journal entries, and 8 analyzed each account appearing on the GL. Local plant accountants reconciled all GL 9 balance sheet accounts that had a beginning balance, ending balance, or account activity 10 in the quarter. 11 8. Building on the work done by the Corporate Controller and local site and 12 segment accountants, the controllers of these entities submitted financial data in a 13 standardized template, referred to as a close deck. The close decks included income 14 statement, balance sheet, inventory, and fixed assets for their respective entities. These 15 close decks were reviewed and analyzed by me, the Director of Financial Planning and 16 Analysis (FP&A) the Manager of Corporate Reconciliations, and the Director of SEC 17 Reporting. As part of the review, we analyzed: 18 (a) Any material variations between the monthly income statements and 19 forecasted income statements; 20 (b) Any material variations between the monthly balance sheet and prior 21 balance sheets; and 22 (c) The accuracy and completeness of the trial balance and consolidation 23 reports prepared by the plant and segment controllers. 24 9. The results of this close process were then presented to the Chief Financial 25 Officer, or CFO, in what we called the CFO close deck. The CFO close deck presentation 26 contained a review of key financial and operating metrics and significant transactions at 27 both the corporate and site level. Members of the CFO's staff, including leaders of the 28 FP&A, Tax, Treasury, and Controller's groups, attended this meeting, reviewed the SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 3 sf-3520471 7 1 presentation with the CFO, highlighted remaining open items, and answered questions 2 arising from the review. 3 10. On a quarterly basis, First Solar's finance and accounting teams performed 4 additional procedures designed to consolidate and reconcile the company's worldwide 5 accounting functions maintained by the manufacturing facilities and operating segments, 6 for purposes of preparing First Solar's publicly reported consolidated financial statements. 7 On a quarterly basis, accountants at each location performed analyses of key financial 8 metrics, including comparisons of: 9 (a) Current quarter profit and loss (P&L) vs. prior quarter P&L; 10 (b) Current quarter P&L vs. forecasted and budgeted P&L; and 11 (c) Current quarter balance sheet vs. prior balance sheet analysis 12 11. The results of these analyses were presented to me, the Corporate 13 Controller, the Director of FP&A, and the Director of SEC Reporting. We verified that 14 the results were accurate and complete. 15 12. The final product of this close process following each quarter was used by 16 the SEC Reporting team to prepare the consolidated financial statements that First Solar 17 reported in its quarterly and annual filings on Forms 10-Q and 10-K with the SEC. 18 Revenue Recognition 19 13. One of my responsibilities at First Solar has been to apply accounting rules 20 with respect to revenue recognition for the sale of modules. First Solar recognized the net 21 sale price of its modules as revenue pursuant to GAAP, as set forth in Accounting 22 Standards Codification 605-10-S99. Exhibits1 56 and 61 include true and correct copies 23 of First Solar's revenue recognition policy, as effective June 2008, and as updated 24 December 2009, respectively. The updated policy was effective for the remainder of the 25 Class Period. 26 27 1 28 All exhibit references in this Declaration are to the Appendix of Exhibits in Support of Defendants' Motion for Summary Judgment. SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 4 sf-3520471 7 1 Warranty Accrual 2 14. In each quarter of the class period, First Solar calculated its standard 3 warranty accrual by estimating the expected future costs associated with satisfying its 4 standard warranty obligation. First Solar recorded its estimated future warranty costs as 5 an accrued expense, pursuant to Accounting Standards Codification 460-10-25-6. The 6 accrued expenses were sometimes called an "accrual" or a "reserve" on First Solar's 7 balance sheet. 8 15. In estimating these future costs during the class period, the company 9 followed a procedure established before the class period. As part of this process, the 10 quality department provided anticipated return rates for the two distinct components of the 11 warranty: workmanship and power output. These anticipated return rates were reviewed 12 regularly by the quality department and presented to the finance department in a formal 13 memorandum that was reviewed and approved by the Vice President of Global Quality. 14 Mike Koralewski served in that role for most of the class period. While I did not 15 personally prepare these estimates or perform the underlying analyses supporting the 16 anticipated return rates, I believed—based on my meetings and conversations with Mike 17 Koralewski and other members of the quality team, and my review of the information that 18 they provided—that their estimates were reliable, thorough, accurate, and trustworthy. 19 For that reason, I relied on the return rate estimates when calculating warranty reserves. 20 16. Accountants at each manufacturing site entered historical cost and the 21 anticipated return rate provided by the quality department into a financial model to 22 generate an accrual for the quarter. The accountants then provided the result to the 23 Corporate Controller's group. In my role as Assistant Corporate Controller, I 24 consolidated these accruals. 25 17. The standard warranty accrual from the prior period was rolled forward and 26 then updated to incorporate the current period estimate, subject to review, approval, and 27 auditing processes. 28 SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 5 sf-3520471 7 1 18. I personally reviewed the standard warranty accrual every quarter during the 2 class period. Based on my review, I believed that each quarter's accrual was prepared in 3 accordance with GAAP and represented First Solar's best estimate of the total future costs 4 associated with its standard warranty obligations. 5 19. Additionally, in my role as Assistant Corporate Controller, I performed 6 periodic detailed analyses and reconciliations of the standard warranty accrual, the 7 underlying methodology, and its compliance with GAAP. These analyses were 8 documented in a warranty rate memorandum that was sent to, and discussed with, First 9 Solar's independent auditors at PwC. I prepared three of these analyses during the class 10 period before the fourth quarter of 2011, and another as part of the fourth quarter of 2011 11 close process. Exhibits 57, 73, 79, and 85 are true and correct copies of the warranty rate 12 memoranda that I prepared on September 30, 2008, February 15, 2011, September 27, 13 2011, and February 24, 2012, in the ordinary course of my duties, respectively. 14 20. At no time was I instructed or pressured to lower, manipulate, or improperly 15 alter the standard warranty accrual. 16 LPM Accrual 17 21. In approximately June 2009, I became aware of a quality issue that was 18 described by First Solar's engineering and quality teams as a manufacturing excursion. 19 My understanding is that the engineering and quality teams determined that a small 20 percentage of modules manufactured between June 2008 and June 2009 under specific 21 manufacturing conditions could experience premature power loss of 15% or more within 22 the first several months of installation. 23 22. In November 2009, First Solar made commitments to its customers to 24 identify and replace modules affected by the manufacturing excursion. This commitment 25 went above and beyond the contractual obligation arising from First Solar's standard 26 warranty in that First Solar decided to remediate LPM modules by covering the costs 27 associated with identifying, removing, and testing modules at customer sites, as well as 28 SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 6 sf-3520471 7 1 the costs of reinstallation of replacement modules. The standard warranty did not cover 2 these costs, which we called "reverse logistics costs" or "rip and replace" expenses. 3 23. First Solar accrued for the expected future costs associated with reverse 4 logistics services offered as part of the LPM remediation program. These costs were 5 accrued separately from, and in excess of, First Solar's standard warranty obligation, 6 because they went above and beyond the contractual obligations set forth in the terms and 7 conditions of First Solar's standard warranty. For ease of reference in this declaration, I 8 refer to this special accrual in excess of First Solar's standard warranty accrual, as the 9 LPM accrual. 10 24. One of my responsibilities was to make sure that First Solar properly 11 accounted for both the warranty and above-warranty costs of remediating the LPM 12 manufacturing excursion, and to make sure that First Solar's accounting for those costs 13 complied with GAAP. 14 25. The LPM accrual that First Solar recorded for the LPM remediation efforts 15 was the product of a quarterly collaborative, bottom-up effort of the quality, product 16 management, FP&A, and accounting teams. 17 26. The costs for replacement modules used in the LPM remediation process 18 were covered by and reflected in First Solar's standard warranty accrual. First Solar 19 accounted for the shipment of LPM replacement modules by recording a credit, or 20 reduction, to inventory for the cost of the replacement modules, and recording a 21 corresponding debit, or increase, to cost of sales on the income statement, which was then 22 reclassified to the warranty expense, a component of cost of sales. 23 27. On a quarterly basis, I reviewed and evaluated First Solar's accounting for 24 replacement modules shipped, modules expected to be shipped, modules that were 25 returned from customer sites, and modules expected to be returned from customer sites, in 26 connection with the LPM remediation, as discussed below. Based on my review, it was 27 my belief and judgment that First Solar's accounting treatment was reasonable and correct 28 under GAAP for every quarter. SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 7 sf-3520471 7 1 28. Beginning in the fourth quarter of 2009, modules returned from customer 2 sites that tested within label specifications (+/-5% of label power output rating) were put 3 back into inventory, valued at the lower of cost or market, LCM for short, with a 4 corresponding credit, or reduction, to the warranty expense. This had the effect of 5 offsetting the warranty expense of the associated replacement module. Before the fourth 6 quarter of 2010, modules that tested with measured power loss between 5% and 20% were 7 put back into inventory at zero value (these modules were referred to as "refurbished" or 8 "refurbs"). Modules with a measured power loss greater than 20% were scrapped. In the 9 fourth quarter of 2010, First Solar established a precedent for the sale of the refurbished 10 modules, through the sale of approximately 20.7 megawatts of refurbished modules to 11 customers for approximately $20.5 million. As a result, consistent with GAAP rules 12 governing inventory, the company began to value the refurbished modules, based on an 13 LCM analysis. Until the fourth quarter of 2011, First Solar's LCM analysis valued the 14 refurbished modules and modules that tested within label specifications at the then current 15 production cost, which was lower than the original cost to produce the refurbished 16 modules. As of the fourth quarter of 2011, as a result of falling average selling prices and 17 reduced demand, the LCM analysis required First Solar to value the refurbished modules 18 and modules that tested within label specifications at their market price, which was then 19 below the production cost. In my judgment, the fourth quarter 2011 valuation complied 20 with GAAP. At my direction and as part of the fourth quarter of 2011 close process, 21 members of my team prepared a memorandum documenting First Solar's fourth quarter of 22 2011 LCM analysis. It was First Solar's regular practice to prepare these types of 23 memoranda to document and support accounting estimates and judgments. I reviewed the 24 memorandum in my role as First Solar's Corporate Controller, and I relied on the 25 information contained in the memorandum to perform my job responsibilities. I also 26 provided a copy of the memorandum to PwC. Exhibit 84 is a true and correct copy of this 27 memorandum, dated February 23, 2012. 28 SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 8 sf-3520471 7 1 29. On a quarterly basis, beginning in the second quarter of 2009, 2 Mike Koralewski and his team provided the finance and accounting teams with estimates 3 of the total number of modules needed to be replaced as part of the LPM remediation 4 program. This estimate included both modules that were affected by the LPM 5 manufacturing excursion and modules that were not affected by the LPM manufacturing 6 excursion that were expected to be recovered in connection with the remediation efforts. 7 Beginning in the second quarter of 2010, Mike Koralewski worked with TK Kallenbach, 8 the Executive Vice President of Marketing and Product Management, who was then 9 overseeing the LPM remediation efforts, to provide these estimates. The estimates were 10 presented in email communications or PowerPoint presentations. Each quarter, I met with 11 or had discussions with the quality and engineering teams to understand and test their 12 estimates and assumptions. Based on those conversations, meetings that I attended, and 13 my review of the information that I requested or received, I believed that their 14 assumptions and analyses were sound and that they reached reasonable conclusions to 15 support their estimates. 16 30. To calculate the dollar amount of the accrual to be recorded for the LPM 17 remediation, I, along with members of the FP&A team, multiplied the number of modules 18 needed to be replaced as part of the LPM remediation program by the per module cost of 19 the LPM remediation program. These cost assumptions were based on First Solar's 20 historical and predicted costs for a variety of elements of the remediation process, 21 including but not limited to labor, third party contractors, identification costs, box costs, 22 material costs, and shipping costs. I reviewed and assisted with the preparation of these 23 assumptions on a quarterly basis. 24 31. In each quarter, beginning with the first LPM accrual in the second quarter 25 of 2009, I personally reviewed the LPM accrual and believed that the cost assumptions 26 underlying the LPM accrual were First Solar's best estimates of the costs associated with 27 concluding the LPM remediation program. Based on my review, I determined and 28 believed that each quarter's LPM accrual was prepared in accordance with GAAP. SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 9 sf-3520471 7 1 32. For the second quarter of 2009, the result of this process and calculation 2 described above in paragraphs 29-31 was an estimated total remediation cost of $1.8 3 million, which was recorded as a liability, or accrual, and also was a component of First 4 Solar's cost of sales that was reported in the company's Form 10-Q for the second quarter 5 of 2009. The LPM accrual reduced net income from $182 million to $180 million for the 6 quarter. Before the 10-Q was filed with the SEC, I reviewed the accrual balance and the 7 underlying calculations. I determined that they were reasonable and prepared in 8 accordance with GAAP. Based on information I received from, and discussions that I had 9 with, Mike Koralewski and his team in connection with the second quarter 2009 close, I 10 did not believe that it was reasonably possible that there would be any material increase in 11 the number of modules that would be needed to complete the LPM remediation or any 12 material increase in the LPM accrual. 13 33. For the third quarter of 2009, the result of this process and calculation 14 described above in paragraphs 29-31 was an estimated $2.2 million increase in the total 15 LPM accrual. This increase was recorded as a liability, or accrual, and was a component 16 of First Solar's cost of sales, which was reported in First Solar's Form 10-Q for the third 17 quarter of 2009. Net income for the third quarter of 2009, by contrast, was $153 million. 18 Before the 10-Q was filed with the SEC, I reviewed the accrual balance and the 19 underlying calculations. I determined that they were reasonable and prepared in 20 accordance with GAAP. Based on information I received from, and discussions that I had 21 with, Mike Koralewski and his team in connection with the third quarter 2009 close, I did 22 not believe that it was reasonably possible that there would be any material increase in the 23 number of modules that would be needed to complete the LPM remediation or any 24 material increase in the LPM accrual. 25 34. For the fourth quarter of 2009, the result of this process and calculation 26 described above in paragraphs 29-31 was an estimated $3.1 million increase in the total 27 LPM accrual. This increase was recorded as a liability, or accrual, and was a component 28 of First Solar's cost of sales, which was reported in First Solar's Form 10-K for 2009. SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 10 sf-3520471 7 1 The $3.1 million increase to the accrual compared to net income for the quarter of $141 2 million. Before the 10-K was filed with the SEC, I reviewed the accrual balance and the 3 underlying calculations. I determined that they were reasonable and prepared in 4 accordance with GAAP. Based on information I received from, and discussions that I 5 had with, Mike Koralewski and his team in connection with the 2009 year-end close, I did 6 not believe that it was reasonably possible that there would be any material increase in the 7 number of modules that would be needed to complete the LPM remediation or any 8 material increase in the LPM accrual. 9 35. For the first quarter of 2010, the result of this process and calculation 10 described above in paragraphs 29-31 was an estimated $4.5 million increase in the total 11 LPM accrual. This increase was recorded as a liability, or accrual, and was a component 12 of First Solar's cost of sales, which was reported in First Solar's Form 10-Q for the first 13 quarter of 2010. The $4.5 million increase to the LPM accrual for the quarter compared to 14 net income of $172 million for the first quarter of 2010. Before the 10-Q was filed with 15 the SEC, I reviewed the accrual balance and the underlying calculations. I determined 16 that they were reasonable and prepared in accordance with GAAP. Based on information 17 I received from, and discussions that I had with, Mike Koralewski and his team in 18 connection with the first quarter 2010 close, I did not believe that it was reasonably 19 possible that there would be any material increase in the number of modules that would be 20 needed to complete the LPM remediation or any material increase in the LPM accrual. 21 36. For the second quarter of 2010, the result of this process and calculation 22 described above in paragraphs 29-31 was an estimated $17.8 million increase in the total 23 LPM accrual. This increase was recorded as a liability, or accrual, and a component of 24 First Solar's cost of sales, which was reported in First Solar's Form 10-Q for the second 25 quarter of 2010. The accrual was also separately identified in the Results of Operations 26 section of the 10-Q, and the footnotes to the financial statements. Additionally, in certain 27 instances, First Solar provided certain customers with power compensation payments. 28 These payments were made by First Solar to a customer based on the underperformance SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 11 sf-3520471 7 1 of a site with modules from the LPM manufacturing excursion from the time the site was 2 energized to the time the site was remediated. For the second quarter of 2010, First Solar 3 accrued $5.6 million (in addition to the $17.8 million expense discussed above) relating to 4 the estimated nonrecurring post-sale expenses related to this power compensation. The 5 power compensation payment was classified as a sales, general, and administration 6 expense (SG&A) based on a determination that the power compensation payments were 7 settlements with customers treated as customer goodwill, and not linked to warranty 8 obligations. Before the 10-Q was filed with the SEC, I reviewed the accrual balance and 9 the underlying calculations. I determined that they were reasonable and prepared in 10 accordance with GAAP. Based on information I received from, and discussions that I had 11 with, Mike Koralewski, TK Kallenbach, and their teams in connection with the second 12 quarter 2010 close, I did not believe that it was reasonably possible that there would be 13 any material increase in the number of modules that would be needed to complete the 14 LPM remediation or any material increase in the LPM accrual. 15 37. For the third quarter of 2010, the result of this process and calculation 16 described above in paragraphs 29-31 was First Solar's determination that no increase to 17 the LPM accrual was necessary. Before the 10-Q was filed with the SEC, I reviewed the 18 accrual balance and the underlying calculations. I determined that they were reasonable 19 and prepared in accordance with GAAP. Based on information I received from, and 20 discussions that I had with, Mike Koralewski, TK Kallenbach, and their teams in 21 connection with the third quarter 2010 close, I did not believe that it was reasonably 22 possible that there would be any material increase in the number of modules that would be 23 needed to complete the LPM remediation or any material increase in the LPM accrual. 24 38. In the fourth quarter of 2010, First Solar continued to analyze the LPM 25 accrual according to the process discussed above in paragraphs 29-31. The only change to 26 the process was that First Solar started using a Monte Carlo model to estimate the total 27 remediation need associated with the LPM remediation program. I familiarized myself 28 with the Monte Carlo method and understood that it used a standard statistical approach SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 12 sf-3520471 7 1 for triangulating data. The specific Monte Carlo model that First Solar used was designed 2 by Mike Koralewski, TK Kallenbach, and their teams. The result of the Monte Carlo 3 model estimates that they generated was presented to the FP&A team and me for purposes 4 of calculating the fourth quarter of 2010 LPM accrual. The Monte Carlo model estimated 5 that approximately 85 megawatts, the equivalent of approximately 1.134 million modules, 6 of remediation was necessary to complete the LPM remediation program. The finance 7 and accounting teams applied updated cost assumptions to this number and determined 8 that the LPM accrual needed to be increased by approximately $8.5 million. This amount 9 was recorded as a liability and was a component of First Solar's cost of sales, which was 10 reported in First Solar's Form 10-K for the first quarter of 2010. The accrual was also 11 separately identified in the Results of Operations section of the 10-K, and in the footnotes 12 to the financial statements. I reviewed the accrual balance and the underlying 13 calculations. I determined that they were reasonable and prepared in accordance with 14 GAAP. Based on information I received from, and discussions that I had with, Mike 15 Koralewski, TK Kallenbach, and their teams in connection with the 2010 year-end close, I 16 did not believe that it was reasonably possible that there would be any material increase in 17 the number of modules that would be needed to complete the LPM remediation or any 18 material increase in the LPM accrual. 19 39. In the first quarter of 2011, as a result of the process described in paragraphs 20 29-31 and 38, I determined that no increase to the LPM accrual was necessary. I reviewed 21 the accrual balance and the underlying calculations. I determined that they were 22 reasonable and prepared in accordance with GAAP. Based on information I received 23 from, and discussions that I had with, Mike Koralewski, TK Kallenbach, and their teams 24 in connection with the first quarter 2011 close, I did not believe that it was reasonably 25 possible that there would be any material increase in the number of modules that would be 26 needed to complete the LPM remediation or any material increase in the LPM accrual. 27 40. In early July 2011, I received a report that indicated that First Solar had 28 shipped more replacement modules as part of the LPM remediation program than the total SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 13 sf-3520471 7 1 number that had been predicted by First Solar's Monte Carlo modeling in the first quarter 2 of 2010. I raised this issue with TK Kallenbach, Mike Koralewski, and Corporate 3 Controller James Zhu, among others. During the month of July, a working group led by 4 TK Kallenbach, Mike Koralewski, James Zhu, and me developed an updated estimate of 5 the total costs associated with the LPM remediation program. On approximately July 24, 6 2011, the working group prepared a memorandum, which was sent to PwC, summarizing 7 First Solar's review. It was First Solar's regular practice to prepare status review 8 memoranda and similar types of documentation to support First Solar's entries and 9 accounting estimates. I participated in the creation and review of this document in my 10 role as Assistant Corporate Controller, and I relied on the information contained in the 11 memorandum to perform my job responsibilities. Exhibit 76 is a true and correct copy of 12 this Q2 2011 memorandum. 13 41. Before First Solar filed its Form 10-Q for the second quarter of 2011, the 14 working group determined—based on an updated estimate of total replacement modules 15 that was provided by Mike Koralewski and TK Kallenbach—that the accrual needed to be 16 increased. TK Kallenbach informed me in connection with the second quarter 2011 close 17 that a total of 92 megawatts was needed to complete the LPM remediation, which was 7 18 megawatts more than was expected as of the end of the first quarter of 2011. Based on 19 that information, I updated the calculations of the LPM accrual, increasing it by 20 approximately $3.6 million. The increase to the LPM accrual was reported in First Solar's 21 Form 10-Q for the second quarter of 2011 as a component of First Solar's cost of sales. 22 The accrual was also separately identified in the Results of Operations section of the 10- 23 Q, and the footnotes to the financial statements. Based on the work that the working 24 group performed and my conversations with Mike Koralewski and TK Kallenbach, I 25 believed that this was the best estimate of the total costs associated with the LPM 26 remediation program and determined that the accrual was reasonable and prepared in 27 accordance with GAAP. Based on information I received from, and discussions that I had 28 with, Mike Koralewski, TK Kallenbach, and their teams in connection with the second SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 14 sf-3520471 7 1 quarter 2011 close, I did not believe that it was reasonably possible that there would be 2 any material increase in the number of modules that would be needed to complete the 3 LPM remediation or any material increase in the LPM accrual. 4 42. In early September 2011, TK Kallenbach informed Mark Widmar 5 (the CFO), James Zhu and me that more modules would be needed to complete the LPM 6 remediation program than were expected when we recorded the second quarter 2011 LPM 7 accrual. Based on my discussions with TK Kallenbach in the previous quarter and the 8 analyses that we performed during the second quarter 2011 close, I was surprised by this 9 increase. It was my understanding that the increase was the result of an empirical analysis 10 of the remaining open LPM remediation claims performed by Mike Koralewski and TK 11 Kallenbach. TK Kallenbach informed Mark Widmar, James Zhu, and me that his updated 12 estimate of 120 megawatts in total remediation needs would be sufficient to conclude the 13 LPM remediation. Based on TK Kallenbach's update, I calculated and recorded an 14 increase to the LPM accrual of approximately $22.1 million, which was a component of 15 First Solar's cost of sales and was reported in First Solar's Form 10-Q for the third quarter 16 of 2011. The accrual was also separately identified in the Results of Operations section of 17 the 10-Q, and the footnotes to the financial statements. 18 43. As part of TK Kallenbach's review of the third quarter of 2011 accrual, he 19 also determined that additional power compensation payments would be made to 20 customers. I reviewed TK Kallenbach's analysis and determined that an additional 21 accrual of approximately $8.6 million was necessary. The power compensation charge 22 was classified as an SG&A expense. 23 44. TK Kallenbach also identified certain sites that were experiencing power 24 loss caused by issues that were unrelated to the LPM manufacturing excursion but had 25 been remediated as part of the LPM remediation program or would be remediated in the 26 future. Based on the analysis performed by TK Kallenbach, I calculated that the cost in 27 excess of warranty associated with the remediation of these sites was approximately $16.2 28 million. The accrual for these sites was reported in First Solar's Form 10-Q for the third SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 15 sf-3520471 7 1 quarter of 2011. Before the 10-Q was filed with the SEC, I reviewed the accrual balance 2 and the underlying calculations. I determined that they were reasonable and prepared in 3 accordance with GAAP. Based on information I received from, and discussions that I had 4 with, Mike Koralewski, TK Kallenbach, and their teams in connection with the third 5 quarter 2011 close, I did not believe that it was reasonably possible that there would be 6 any material increase in the number of modules that would be needed to complete the 7 LPM remediation or any material increase in the LPM accrual. 8 45. At the end of the fourth quarter of 2011, after TK Kallenbach left the 9 company, Tom Kuster, the Vice President of Systems Development, assumed 10 responsibility for overseeing LPM remediation efforts. I worked with Tom Kuster and 11 depended on the analyses of his team to calculate the appropriate accrual for the fourth 12 quarter of 2011. 13 46. Under Tom Kuster's leadership, the remediation team focused on 14 commercial solutions as an alternative to continuing the rip and replace efforts that the 15 company had pursued since 2009. My understanding from attending meetings, having 16 conversations, and reviewing reports and information from Tom Kuster and his team was 17 that the commercial solutions were appropriate in light of changing market conditions in 18 the fourth quarter of 2011, and in light of additional data that became available in the 19 fourth quarter regarding performance at customer sites. Further, Tom Kuster's team 20 conducted a site-by-site analysis to update the estimates for remediating the LPM modules 21 in light of data that became available during the fourth quarter of 2011. 22 47. As a result of the analyses performed by Tom Kuster and his team during 23 the fourth quarter close, First Solar increased the LPM accrual by approximately $23.9 24 million, which was included in the reported cost of sales. In addition, First Solar incurred 25 a $70.1 million product warranty expense, reflecting an increase in the expected number 26 of replacement modules needed, and the lower market value for refurbished modules 27 expected to be recovered as part of the LPM remediation program. First Solar also 28 SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 16 sf-3520471 7 1 increased its power compensation accrual by $31.8 million. The power compensation 2 accrual for the fourth quarter of 2011 was again classified as an SG&A expense. 3 48. Because of this increase to the accrual for the fourth quarter of 2011, as part 4 of First Solar's standard procedures and at the request of the Chair of the Audit 5 Committee, Tom Presby, my team, along with Internal Audit, performed an analysis of 6 the increase, and investigated whether any out-of-period adjustments were necessary. 7 Along with members of my team, I worked with the product management and customer 8 service teams to analyze First Solar's previous quarter accruals and commitments made to 9 customers under the LPM remediation program. After performing a retrospective analysis 10 of quarterly claim activity, we concluded that First Solar's second quarter of 2011 and 11 third quarter of 2011 LPM accruals were materially accurate. As part of this process, I 12 documented First Solar's review in a memorandum that was shared with PwC. It was 13 First Solar's regular practice to prepare this type of memorandum to document accounting 14 estimates and judgments. I prepared this memorandum as part of my job responsibilities 15 as First Solar's Corporate Controller, and I relied on the information contained in the 16 memorandum to perform my responsibilities during the fourth quarter of 2011 close 17 process. Exhibit 86 is a true and accurate copy of this memorandum dated February 28, 18 2012. 19 49. As part of the above analysis, we determined that approximately $4.07 20 million of LPM related costs were improperly recorded in the third quarter of 2011, 21 instead of the second quarter of 2011. My team performed an analysis and prepared a 22 memorandum under SEC Staff Accounting Bulletin 99 (SAB 99) to determine if this error 23 was material to First Solar's financial statements. After performing the quantitative and 24 qualitative analyses of the error required by SAB 99, my team and I determined that the 25 error was not material to First Solar's financial statements in the second quarter of 2011 or 26 third quarter of 2011. First Solar's SAB 99 memorandum and analysis was shared with 27 the Audit Committee and PwC. PwC reviewed First Solar's analysis and performed its 28 own SAB 99 analysis, and agreed with management's conclusion that the error was not SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 17 sf-3520471 7 1 material. 2 50. Based on the review that my team and I performed for the fourth quarter of 3 2011 before filing First Solar's 10-K with the SEC for 2011, I believed that First Solar's 4 LPM accruals throughout the class period were materially accurate based on the 5 information that was known at the time they were recorded. 6 Cost-per-Watt 7 51. Cost-per-watt, which is called CpW, was a metric that First Solar used to 8 measure the cost of manufacturing a watt of electricity during a given period. The 9 FP&A group was responsible for calculating, analyzing, and preparing reports and other 10 information regarding CpW that were regularly distributed to various people at First 11 Solar, including me. I relied on the accuracy of the information about CpW that I 12 received from the FP&A team in performing my job and believed that it was accurate. 13 Exhibits 62 and 71 are true and correct copies of CpW policy statements that were 14 prepared by FP&A in or around February, 2010, and January, 2011, and received by me 15 around the same time in the ordinary course of my duties. 16 First Solar's Process for Preparing Public Statements 17 52. As long as I have been employed by First Solar, we have adhered to a 18 process for preparing the Forms 10-Q, 10-K, earnings press releases, and quarterly 19 conference call presentations and scripts. The disclosure process has been coordinated by 20 the Disclosure Committee. I am a member of the Disclosure Committee. During the class 21 period, I was a member of the Disclosure Committee and participated in its regularly- 22 scheduled meetings. Based on my membership on the Disclosure Committee, the 23 responsibilities that I had serving on the Disclosure Committee, the meetings that I 24 attended, and in light of documents I reviewed, I have an extensive understanding of the 25 purpose, function, and practices of the Disclosure Committee, which I summarize below. 26 53. The Disclosure Committee is a multi-disciplinary committee created 27 specifically to implement the internal control procedures for assessment and attestation of 28 the company's disclosures in periodic SEC filings, and related earnings releases and SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 18 sf-3520471 7 1 conference calls. During the class period, the Disclosure Committee consisted of 2 approximately fifteen to twenty members (depending on the period) and included senior 3 employees from all of the key areas of the company. The members of the Disclosure 4 Committee included the CFO, each Executive Vice President, the General Counsel, the 5 Vice President of Human Resources, the Corporate Controller, the Vice President of 6 Investor Relations, the head of internal audit, the Chief Corporate Counsel, the Chief 7 Executive Officer's direct reports, and other subject matter experts. 8 54. For each quarter, the Disclosure Committee met three times. The first 9 Disclosure Committee meeting occurred within a few days of the close of the quarter. 10 During this meeting, Committee members discussed the quarter close, significant 11 transactions, and significant events for potential inclusion in the filing. The Disclosure 12 Committee also received input from various corporate departments and business leaders 13 about sections of the Management Discussion and Analysis, called the MD&A portion of 14 the SEC filing, and notes to the financial statements. 15 55. Following this initial meeting, the SEC Reporting group populated an SEC 16 financial filing template, based on the prior-period filing that was updated with the current 17 quarter's financial results. The company's Accounting, FP&A, Legal, Tax, and Treasury 18 groups sent information necessary for the preparation of the filings to the SEC Reporting 19 Department. 20 56. For most of the class period, the members of the SEC Reporting group that 21 were primarily responsible for the preparation of the first drafts of the Forms 10-Q and 22 10-K, and for incorporating subsequent comments and revisions suggested by others, were 23 April Brady, an SEC Reporting Analyst, and Richard Mittermaier, the Director of SEC 24 Reporting. 25 57. Pursuant to Section 302 of the Sarbanes-Oxley Act, SOX for short, 26 First Solar's CEO and CFO signed certifications that stated, in part, that, to the best of 27 their knowledge, the financial statements fairly presented the company's financial 28 SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 19 sf-3520471 7 1 condition; that they were responsible for establishing and maintaining disclosure controls 2 and procedures; and that the disclosure controls and procedures were effective. 3 58. To support these certifications, First Solar had in place an extensive sub- 4 certification process that was designed to ensure the accuracy of the company's SEC 5 filings. I supervised the SOX and SEC Reporting teams that were responsible for 6 administering this process at various points during the class period, and participated in the 7 process throughout the class period. Based on experiences in having that responsibility, 8 including reports that I reviewed, meetings I attended, and discussions that I had, I am 9 familiar with how First Solar administered, processed, and handled sub-certifications and 10 discuss that process below. 11 59. At the end of the quarter, the SOX team electronically circulated sub- 12 certification requests to all employees with titles of director and above, as well as 13 individuals who provided material information for the filings. The SOX team required 14 responses from all individuals within a week after the close of the quarter, and then also 15 required a "refresh" response a week before the filing of a 10-Q or 10-K with the SEC. 16 60. The sub-certifications were customized, to an extent. The sub-certifications 17 that were sent to an employee reflected that employee's role within the company. For 18 example, an associate in the finance group would receive sub-certification requests 19 concerning, among other things, the "iron curtain" analysis of balance sheet accounts, 20 while an associate in the human resources group would receive sub-certification requests 21 concerning, among other things, compensation policies and procedures. 22 61. Among other things, participants that provided material information to the 23 SEC filing certified that: 24 (a) First Solar's controls were followed and properly implemented; 25 (b) They were not aware of any undisclosed fraud; and 26 (c) They were not aware of any material misstatements, errors, or 27 omissions in the draft SEC filings. 28 SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 20 sf-3520471 7 1 62. Before the filing of a 10-Q or 10-K with the SEC, the SOX team and I 2 reviewed the sub-certification responses and worked with the responding employees to 3 address "disagree" responses (if there were any). As part of this process, a member of the 4 SOX team contacted each employee who filed a "disagree" response in their sub- 5 certifications. The SOX team member discussed the reasons for the "disagree" response, 6 and any substantive concerns or issues that the employee had, and developed a plan to 7 implement the appropriate changes or raise the issue to the responsible individuals. The 8 key individuals who participated in the standard warranty and LPM accrual processes, 9 including TK Kallenbach, Mike Koralewski, plant controllers, and me, participated in the 10 sub-certification process. At no time during the class period did First Solar ever file a 11 Form 10-Q or 10-K with the SEC before receiving 100% feedback on all sub- 12 certifications and clearing any material disagreements. The Corporate Controller (who 13 was James Zhu for most of the class period until I succeeded him in that role in January 14 2012) and I discussed the results of the sub-certification process with the CFO every 15 quarter before the CFO and CEO signed their SOX certifications. 16 63. Within two weeks after the quarter end, the SEC Reporting group prepared 17 the first draft of the Form 10-Q (and 10-K at year-end), based on information provided by 18 the various departments. The draft incorporated the latest consolidation of First Solar's 19 financial statements, which were the result of the financial close process described above 20 in paragraphs 6-12. The consolidated financials were sent to the SEC Reporting group by 21 the Consolidation Manager, a member of the controller's organization. The SEC 22 Reporting group's initial draft was circulated internally to the CFO, the General Counsel, 23 the Corporate Controller, and other members of the Disclosure Committee. 24 64. In the third week after the end of a quarter, the Disclosure Committee met 25 for a second time to review the current draft of the filings. At this meeting, members of 26 the Disclosure Committee discussed the current draft, proposed edits, asked questions, and 27 reviewed the filing for accuracy. 28 SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 21 sf-3520471 7 1 65. Every quarter, the SEC Reporting group completed the disclosure checklist, 2 which was supplied by PwC, to ensure that all applicable items were accurately and 3 appropriately addressed. The SEC Reporting group also worked with Disclosure 4 Committee members to incorporate any comments and revisions received to date, and 5 then circulated a third draft of the filing to the Board, the Audit Committee, and to the 6 Disclosure Committee. 7 66. Parallel to First Solar's internal processes, PwC performed quarterly reviews 8 and annual audits of First Solar's financial statements. As is typical in large public 9 company audits, PwC's audit professionals had their own office space at First Solar's 10 corporate headquarters in Tempe, Arizona. I, along with my team, worked closely with 11 PwC throughout the quarter to make sure that they received all material information 12 necessary for them to complete its work. Based on my interactions with the PwC team 13 and my own staff, I believe that First Solar maintained free and open communication with 14 PwC throughout the audit and review process, and that PwC had unfettered access to the 15 employees, documents, and systems that were necessary to do its work. 16 67. Each quarter, PwC received drafts of First Solar's financial statements and 17 SEC filings throughout the quarter close process. I, along with the SEC Reporting group, 18 worked with PwC to address and resolve any questions that PwC had and to incorporate 19 the audit team's comments into the filings. PwC also reviewed the draft filings with the 20 Audit Committee during the quarterly Audit Committee meeting. 21 68. Also, as part of the quarterly Audit Committee meeting, management 22 representatives, led by the CFO and Controller, reviewed the draft SEC filings with the 23 Audit Committee. As part of this review, the management team was available to answer 24 questions and resolve issues raised by the Audit Committee. After the Audit Committee 25 was satisfied with the draft filings presented by management, the Audit Committee would 26 make a recommendation that the full Board approve the filing. The full Board then 27 performed its own review and adopted a resolution granting formal approval of the filing. 28 SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 22 sf-3520471 7 1 69. One day before filing with the SEC, the Disclosure Committee met for a 2 third time to re-review the document. Further substantive edits were discussed with the 3 CFO for approval, and redlines highlighting the changes were sent to the Audit 4 Committee and full Board of Directors. 5 70. Before the final document was filed with the SEC, all financial data within 6 the SEC filings was tied out and cross-referenced to supporting documentation by a 7 member of the SEC Reporting team. The tie-out procedures were compiled in a quarterly 8 tie-out binder, which contained the documentation supporting the financial information 9 presented in the SEC filings. After all review comments were taken into consideration 10 and related updates completed, the final filing was placed into the standardized form 11 provided by the SEC. 12 71. Only after all of these steps were completed were the final Forms 10-Q and 13 10-K filed with the SEC. 14 72. Building on these quarter-end processes, First Solar also prepared a press 15 release announcing the earnings results (also filed with the SEC as a Form 8-K) and a 16 presentation, a script, and responses to potential questions for the earnings conference call 17 (during which the company discussed its financial results through prepared remarks and 18 answered analysts' questions). The financial metrics and information contained in the 19 press releases and earnings call scripts and presentations were pulled from and tied to the 20 SEC filings by personnel in the SEC Reporting and FP&A groups. 21 73. The first draft of the earnings press release was prepared by the head of 22 Investor Relations, and the SEC Reporting team. Each release was filtered through 23 various levels of review, including legal counsel, the Disclosure Committee, and the Audit 24 Committee, before publication. The written approval of the General Counsel of First 25 Solar was the final step in the approval process for the earnings releases. 26 74. The earnings conference call scripts and presentations were prepared by the 27 Investor Relations (IR) team. The financial metrics and information used in the scripts 28 and presentations were pulled from and tied to the SEC filings. The scripts and SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 23 sf-3520471 7 1 presentations were also circulated to senior executives, subject matter experts, and 2 business leaders across the organization for their review and fact-checking, and tied out by 3 the FP&A and SEC Reporting teams. 4 75. Based on my participation in this extensive process and my knowledge of 5 the underlying facts at issue in this case, at no time did I believe that any public statement 6 made by First Solar or any member of management during the class period was untruthful, 7 inaccurate, or misleading. At no time did I believe that any of First Solar's reported 8 quarterly or annual financial results were inaccurate or misleading, or that First Solar ever 9 misrepresented the state of its business, module performance, cost per watt, or accruals 10 relating to its standard warranty obligation or the LPM manufacturing excursion. 11 Internal Controls 12 76. In my roles as Assistant Corporate Controller and Corporate Controller, I 13 have had responsibility for overseeing First Solar's compliance with various internal 14 controls that were designed to prevent fraud and ensure accurate financial reporting. 15 Section 404 of SOX requires that management assess the effectiveness of the company's 16 internal controls over financial reporting at the end of each fiscal year. Pursuant to this 17 requirement, First Solar performed a detailed review of the effectiveness of the company's 18 internal controls over financial reporting each year during the class period. The annual 19 review was summarized in a memorandum that was shared with the Audit Committee, 20 PwC, as well as First Solar's CEO and CFO. The memorandum was prepared by the 21 controller's organization and internal audit. In my role as Assistant Corporate Controller, 22 and later Corporate Controller, I helped prepare and review this memorandum each year 23 during the class period. 24 77. As part of this review, internal auditors within First Solar's internal audit 25 group evaluated the design of the internal control environment. The internal audit team 26 also tested the operating effectiveness of the controls. I attended meetings where internal 27 audit presented the results of its tests. I also received reports where internal audit reported 28 its findings on the control environment. In addition, I had extensive discussions with the SCHUMAKER DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 24 sf-3520471 7 7 1 CERTIFICATE OF SERVICE 2 I hereby certify that on March 27, 2015, I electronically transmitted the attached 3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to all CM/ECF registrants. 5 6 7 s/Rosemary Barajas Rosemary Barajas 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DECLARATION Declaration Of Samantha Sloan In Support Of Defendants Motion For Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.

1 James P. Bennett (Admitted pro hac vice) JBennett@mofo.com 2 Paul Flum (Admitted pro hac vice) PaulFlum@mofo.com 3 Jordan Eth (Admitted pro hac vice) JEth@mofo.com 4 Judson E. Lobdell (Admitted pro hac vice) JLobdell@mofo.com 5 Anna Erickson White (Admitted pro hac vice) AWhite@mofo.com 6 Philip T. Besirof (Admitted pro hac vice) PBesirof@mofo.com 7 Mark R.S. Foster (Admitted pro hac vice) MFoster@mofo.com 8 MORRISON & FOERSTER LLP 425 Market Street 9 San Francisco, California 94105-2482 (415) 268-7000 10 Maureen Beyers, Arizona Attorney No. 017134 11 MBeyers@omlaw.com Joseph N. Roth, Arizona Attorney No. 025725 12 JRoth@omlaw.com OSBORN MALEDON, P.A. 13 2929 North Central Avenue Phoenix, AZ 85012-2793 14 (602) 640-9000 15 Attorneys for Defendants First Solar, Inc., Michael J. Ahearn, Robert J. Gillette, 16 Mark R. Widmar, Jens Meyerhoff, James Zhu, Bruce Sohn, and David Eaglesham 17 UNITED STATES DISTRICT COURT 18 DISTRICT OF ARIZONA 19 20 Mark Smilovits, individually and on Case No. CV12-00555-PHX-DGC behalf of all other persons similarly 21 situated, Plaintiff, DECLARATION OF 22 SAMANTHA SLOAN IN SUPPORT vs. OF DEFENDANTS' MOTION FOR 23 SUMMARY JUDGMENT First Solar, Inc., Michael J. Ahearn, 24 Robert J. Gillette, Mark R. Widmar, Jens 25 Meyerhoff, James Zhu, Bruce Sohn, and David Eaglesham, 26 Defendants. 27 28 SLOAN DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT sf- 3519753 1 I, SAMANTHA SLOAN, declare as follows: 2 1. I submit this Declaration in support of defendants' motion for summary 3 judgment. I make this Declaration on personal knowledge. If called as a witness, I 4 would testify to the following facts: 5 My Roles at First Solar 6 2. In August 2009, I joined First Solar as a Manager of Product Marketing. I 7 later was promoted to Product Line Director, and became First Solar's Director of 8 Performance Commitments in October 2012. Since April 2014, I have been the Director 9 of U.S. Business Development. 10 3. Because of my technical background and my role in First Solar's Product 11 Marketing group, part of my role from 2010 through early 2012 was coordinating 12 communications regarding the LPM excursion that involved both technical and 13 commercial issues. 14 4. As part of this effort, for a period in 2011 and early 2012, I was responsible 15 for coordinating with the business and engineering groups to implement certain updates 16 drafted by First Solar's LPM communications team to First Solar's website, 17 www.firstsolar.com. My duties included ensuring that certain questions and answers on 18 the "Frequently Asked Questions" ("FAQ") page of First Solar's publicly-available 19 website were correct and consistent with other LPM communications. The FAQ page 20 provides answers to questions about First Solar, including "Investor" and "Sales & 21 Product" information. From December 2009 to December 2011, the FAQ was accessible 22 to the public at www.firstsolar.com/en/faq.php. 23 February 4, 2011 Frequently Asked Questions Update 24 5. On February 3, 2011, I received an email from TK Kallenbach with 25 requested changes to First Solar's online FAQ. 26 6. Mr. Kallenbach requested that we add language to the Sales & Product 27 section. One of his requested additions stated that "November 30th 2010 marked the 28 conclusion of the period during which customers could file extended-warranty claims SLOAN DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 1 sf- 3519753 1 related to the excursion modules. We are now in the process of validating and verifying 2 those claims. Many of those claims were filed based simply on the dates of the excursion 3 (June 2008 to June 2009), and not due to any issue demonstrated in the field." 4 7. The following day, February 4, 2011, I received an email directed to Lance 5 Hendershot from Brandon Mitchener, asking that Mr. Hendershot update the English 6 website "ASAP" with the language approved by Mr. Kallenbach and others. 7 8. I received an email response from Mr. Hendershot later that day. He wrote 8 to confirm that the English and EU Frequently Asked Questions website had been 9 updated as requested. 10 9. Exhibit 72 is a true and accurate copy of the email I received from Mr. 11 Hendershot on February 4, 2011, which includes the prior correspondence I received on 12 February 3, 2011.1 I recognize these emails as correspondence between First Solar 13 employees regarding an update to the Frequently Asked Questions website. I received a 14 copy of this email in the ordinary course of business. I recognize the email address 15 SSloan@FIRSTSOLAR.COM as my official work email address. I recognize 16 "@FIRSTSOLAR.COM" as First Solar's internal domain for email addresses assigned to 17 employees. 18 10. Exhibit 88 is a true and accurate copy of First Solar's Frequently Asked 19 Questions website archived from February 28, 2011. First Solar updated the Frequently 20 Asked Questions website periodically in the regular course of business as necessary when 21 information became available. Based on my own involvement in the process of updating 22 portions of the Frequently Asked Questions website during this period, I believe that the 23 language in Exhibit 72 accurately reflects the language that was on the website from 24 February 4, 2011, through February 28, 2011 (and after). 25 26 27 1 All exhibit references in this Declaration are to the Appendix of Exhibits in Support of Defendants' Motion for Summary Judgment. 28 SLOAN DECL. IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 2 sf- 3519753 1 CERTIFICATE OF SERVICE 2 I hereby certify that on March 27, 2015, I electronically transmitted the attached 3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 4 Notice of Electronic Filing to all CM/ECF registrants. 5 6 7 s/Rosemary Barajas Rosemary Barajas 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

*DECLARATION Declaration Of Anna Erickson White In Support Of {{309}} Defendants Opposition To Plaintiffs Motion For Partial Summary Judgment Regarding Defendants First Through Sixteenth, And Nineteenth Through Twentieth Affirmative Defenses. filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.

1 James P. Bennett (Admitted pro hac vice) JBennett@mofo.com 2 Paul Flum (Admitted pro hac vice) PaulFlum@mofo.com 3 Jordan Eth (Admitted pro hac vice) JEth@mofo.com 4 Judson E. Lobdell (Admitted pro hac vice) JLobdell@mofo.com 5 Anna Erickson White (Admitted pro hac vice) AWhite@mofo.com 6 Philip T. Besirof (Admitted pro hac vice) PBesirof@mofo.com 7 Mark R.S. Foster (Admitted pro hac vice) MFoster@mofo.com 8 MORRISON & FOERSTER LLP 425 Market Street 9 San Francisco, California 94105-2482 (415) 268-7000 10 Maureen Beyers, Arizona Attorney No. 017134 11 MBeyers@omlaw.com Joseph N. Roth, Arizona Attorney No. 025725 12 JRoth@omlaw.com OSBORN MALEDON, P.A. 13 2929 North Central Avenue Phoenix, AZ 85012-2793 14 (602) 640-9000 15 Attorneys for Defendants First Solar, Inc., Michael J. Ahearn, Robert J. Gillette, 16 Mark R. Widmar, Jens Meyerhoff, James Zhu, Bruce Sohn, and David Eaglesham 17 UNITED STATES DISTRICT COURT 18 DISTRICT OF ARIZONA 19 20 Mark Smilovits, individually and on behalf of all other persons similarly Case No. CV12-00555-PHX-DGC 21 situated, DECLARATION OF ANNA ERICKSON WHITE IN SUPPORT OF Plaintiff, DEFENDANTS' OPPOSITION TO 22 vs. PLAINTIFFS' MOTION FOR PARTIAL 23 First Solar, Inc., Michael J. Ahearn, SUMMARY JUDGMENT REGARDING DEFENDANTS' FIRST THROUGH 24 Robert J. Gillette, Mark R. Widmar, Jens Meyerhoff, James Zhu, Bruce Sohn, and SIXTEENTH, AND NINETEENTH THROUGH TWENTIETH 25 David Eaglesham, AFFIRMATIVE DEFENSES Defendants. 26 27 28 WHITE DECL. IN SUPPORT OF DEFS.' OPP'N TO PLS.' MOT. FOR SUMMARY JUDGMENT sf-3528435 1 1. I, Anna Erickson White, am an attorney licensed to practice law in the State 2 of California and am admitted pro hac vice to practice before this Court. I am a partner 3 with the law firm of Morrison & Foerster LLP, and I am counsel of record for Defendants 4 First Solar, Inc., Michael J. Ahearn, Robert J. Gillette, Mark R. Widmar, Jens Meyerhoff, 5 James Zhu, Bruce Sohn, and David Eaglesham ("Defendants"). I submit this declaration 6 in support of Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment 7 Regarding Defendants' First Through Sixteenth, and Nineteenth Through Twentieth 8 Affirmative Defenses. I have personal knowledge of the facts stated below. 9 2. On January 27, 2015, Defendants received two sets of interrogatories from 10 Plaintiffs, including (1) Lead Plaintiff Mineworkers' Pension Scheme's Second Set of 11 Interrogatories to Defendant First Solar, Inc. and the Individual Defendants; and (2) Lead 12 Plaintiff British Coal Staff Superannuation Scheme's Second Set of Interrogatories to 13 Defendant First Solar, Inc. and the Individual Defendants. Exhibit 1 is a true and correct 14 copy of Lead Plaintiff Mineworkers' Pension Scheme's Second Set of Interrogatories to 15 Defendant First Solar, Inc. and the Individual Defendants, which contains the 16 interrogatory regarding affirmative defenses that is described in Plaintiffs' motion for 17 summary judgment. 18 3. Taken together, the two sets of interrogatories described in paragraph 2 19 contain a total of 39 numbered interrogatories. After counsel for Defendants separately 20 counted each discrete question and sub-part contained in both sets of interrogatories, 21 counsel concluded that these sets present a total of 89 separate interrogatories. 22 4. Between February 11, 2015, and February 13, 2015, Defendants' counsel 23 conferred with Plaintiffs' counsel regarding the breadth of their interrogatories and the 24 timing and content of Defendants' responses. 25 5. On March 13, 2015, Defendants served Plaintiffs with 85 pages of written 26 responses to both sets of Plaintiffs' interrogatories. 27 28 WHITE DECL. IN SUPPORT OF DEFS.' OPP'N TO PLS.' MOT. FOR SUMMARY JUDGMENT sf-3528435

*DECLARATION of D. Paul Regan re: {{358}} Response to Motion for Summary Judgment re: {{311}}. filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme. *Modified to correct document link on 4/28/2015

8 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF ARIZONA 9 Mark Smilovits, Individually and on Behalf) No. 2:12-cv-00555-DGC 10 of All Others Similarly Situated,)) CLASS ACTION 11 Plaintiff,)) DECLARATION OF D. PAUL REGAN 12 vs.)) 13 First Solar, Inc., Michael J. Ahearn, Robert) J. Gillette, Mark R. Widmar, Jens) 14 Meyerhoff, James Zhu, Bruce Sohn and) David Eaglesham,) 15) Defendants.) 16) 17 18 19 20 21 22 23 24 25 26 27 28 1024394_1 8 1 I. INTRODUCTION 2 1. I have been retained on behalf of Class Representatives in this matter by their 3 class counsel, Robbins Geller Rudman & Dowd LLP, to provide opinions on the following: 4 (a) Whether First Solar's failure to disclose the manufacturing excursion 5 prior to 2Q10 complied with GAAP and SEC requirements. 6 (b) Whether First Solar properly accounted for and disclosed the scope of 7 the excursion and other LPM problems beginning in 2Q10 in accordance with GAAP and 8 SEC requirements. 9 (c) Whether First Solar's change in accounting for warranty-related 10 settlements in 4Q10 were properly accounted for and disclosed in accordance with GAAP 11 and SEC requirements. 12 (d) Whether First Solar properly accounted for and disclosed the warranty 13 accrual as of 2Q11 and 3Q11 in accordance with GAAP and SEC disclosure requirements. 14 (e) Whether First Solar properly accounted for and disclosed the warranty 15 accrual as it related to the hot climate considerations from 1Q11 to 3Q11 in accordance with 16 GAAP and SEC disclosure requirements. 17 (f) The role of First Solar's independent auditor, PwC, related to First 18 Solar's accounting and disclosure of warranty-related obligations and contingencies. 19 2. I have been asked to provide opinions on the topics identified above for 20 purposes of plaintiffs' opposition to defendants' motion for summary judgment. I 21 understand that expert discovery has not yet commenced and that additional information may 22 become available. Accordingly, I reserve the right to modify or expand any opinions set 23 forth herein, as appropriate 24 3. As an expert providing consulting services, I am bound by professional 25 standards, including the duty to act with integrity and objectivity. Consistent with those 26 requirements, my opinions, which are expressed throughout this Declaration, are my present 27 opinions based on the information I have considered to date. These opinions are based on 28 -1- 1024394_1 8 1 my knowledge, training, and experience, as well as various sources of evidence cited 2 throughout this Declaration. 3 II. EXPERT QUALIFICATIONS 4 4. My general qualifications are explained in greater detail in my resume, which 5 is attached to this Declaration as Exhibit A. 6 5. I am a certified public accountant ("CPA"), licensed continuously since 1970 7 by the State of California in the United States. I am the Chairman of Hemming Morse, LLP, 8 CPAs, forensic and financial consultants ("HM"). HM is an accounting firm with more than 9 100 employees. My work in the accounting profession includes experience as an auditor and 10 as a forensic consultant. My expert qualifications, including my testimony in the last four 11 years and the publications I have authored, are described in my curriculum vitae, which is 12 attached as Exhibit A. 13 6. I have been a CPA for more than 40 years. During this time I have provided 14 accounting and forensic consulting services on more than 750 complex litigation matters. 15 Many of these have required an extensive analysis and application of relevant Generally 16 Accepted Accounting Principles ("GAAP"). I have performed these analyses for large and 17 small companies in the private sector, as well as for various states and federal agencies (e.g., 18 The Federal Deposit Insurance Corporation, The Resolution Trust Corporation, the U.S. 19 Securities and Exchange Commission ("SEC"), the California Attorney General), and 20 numerous public corporations. 21 7. From 1976 through today I have testified and been accepted as an expert in 22 more than 125 trials and arbitrations and have given more than 225 depositions. These cases 23 were generally in state and federal courts in the United States. However, I have testified in 24 trials in Guam, Canada, Australia and Europe. 25 8. I have been a member of the California Society of Certified Public 26 Accountants ("CalCPA") since 1970. I have served on its state-wide Litigation Services 27 Steering Committee since 1990 and I was its Chair during 2002/2004. This Steering 28 Committee provides guidance to the more than 500 members of its four Operating Sections: -2- 1024394_1 8 1 (1) Business Valuation, (2) Economic Damages, (3) Fraud, and (4) Family Law. For two 2 and one-half years (through August of 1998), I was Chair of its 250-member Economic 3 Damages Section. I served as Chair of the 28,000-member CalCPA during 2004 and 2005 4 and in 2009 I received CalCPA's Distinguished Service Award for a career of distinguished 5 service to the accounting profession. 6 9. Since 1970, I have been a member of the American Institute of Certified Public 7 Accountants ("AICPA"). From 1998 until July of 2001, I served as one of the nine members 8 of the AICPA's Forensic and Litigation Services Committee ("FLSC") (formerly the 9 Litigation and Dispute Resolution Subcommittee). The FLSC oversaw and provided 10 guidance to the AICPA's 340,000 members relating to litigation consulting and dispute 11 resolution. The FLSC also provided guidance and supervision to its subcommittees, 12 including the subcommittee on Economic Damages, which I chaired from 1999 to July 2001. 13 10. From October 2003 until October 2011, I was a member of the AICPA's 14 governing council, and from August 2008 until October 2011, I served on the AICPA's 15 Forensic and Valuation Services Executive Committee. This nine-person committee is the 16 AICPA's standard setting body for CPAs performing forensic and valuation services. I have 17 also been designated by the AICPA as CFF (Certified in Financial Forensics). Since 1996 I 18 have been a Certified Fraud Examiner ("CFE"), which is a designation granted by the 19 Association of Certified Fraud Examiners. 20 11. I was on the Board of Directors of Solar Power Inc. and Chair of its Audit 21 Committee from 2006 to 2010. Solar Power Inc. is a public company which provides 22 "global turnkey developer and EPC contractor for large-scale solar energy facilities. . . 23 designing, engineering and constructing very high-quality, efficient and sustainable 24 photovoltaic (PV) solar systems for commercial and utility applications."1 25 26 27 1 http://en.spisolar.com/Column_Content.asp?Column_ID=29466. 28 -3- 1024394_1 8 1 III. FIRST SOLAR'S OBLIGATIONS TO ACCOUNT FOR AND PROVIDE DISCLOSURE REGARDING WARRANTY COSTS 2 12. GAAP for warranty obligations is addressed in ASC 450 and 460.2 3 Specifically, ASC 450, Accounting for Contingencies ("ASC 450"), sets forth GAAP 4 relevant to my analysis. ASC 450 addresses the establishment of reserves and the disclosures 5 associated with loss contingencies such as an adverse outcome from warranty obligation. 6 13. An accrual for a loss contingency (i.e., a reserve) must be made when both of 7 the following conditions are met: 8 (a) Information available prior to issuance of the financial statements 9 indicates that it is probable that an asset had been impaired or a liability had been incurred at 10 the date of the financial statements. It is implicit in this condition that it must be probable 11 that one or more future events will occur confirming the fact of the loss. 12 (b) The amount of loss is reasonably estimable.3 13 14. GAAP defines the term "probable" to mean "The future event or events are 14 likely to occur."4 15 15. The second test for the accrual of a contingent loss is met when the loss is 16 reasonably estimable. It is not appropriate to delay the accrual of a probable loss until only a 17 single amount can be reasonably estimated.5 In some instances, a loss may be probable, but 18 2 19 ASC 460-10-25-5 states: "Because of the uncertainty surrounding claims that may be made under warranties, warranty obligations fall within the definition of a contingency. Losses from 20 warranty obligations shall be accrued when the conditions in paragraph 450-20-25-2 are met." 3 ASC 450-20-25-2. ASC 460-10-25-6 states: "The condition in paragraph 450-20-25-2(a) is met 21 at the date of an entity's financial statements if, based on available information, it is probable that 22 customers will make claims under warranties relating to goods or services that have been sold. Satisfaction of the condition in paragraph 450-20-25-2(b) will normally depend on the experience of 23 an entity or other information. In the case of an entity that has no experience of its own, reference to the experience of other entities in the same business may be appropriate. Inability to make a 24 reasonable estimate of the amount of a warranty obligation at the time of sale because of significant uncertainty about possible claims (that is, failure to satisfy condition [b] in that paragraph) precludes 25 accrual and, if the range of possible loss is wide, may raise a question about whether a sale should be recorded before expiration of the warranty period or until sufficient experience has been gained to 26 permit a reasonable estimate of the obligation." 4 ASC 450-20-20, Glossary. 27 5 28 ASC 450-20-25-5. -4- 1024394_1 8 1 the range of loss may be wide. When there is an amount within the range that appears to be 2 a better estimate, that amount shall be accrued.6 If there is no amount that is a better 3 estimate, than the minimum amount in the range shall be accrued.7 4 16. GAAP also requires the nature of the accrual to be disclosed if the financial 5 statements would be misleading absent that disclosure.8 Alternatively, disclosure is also 6 required when an accrual is not made, but it is at least reasonably possible that a loss (or 7 additional loss) will be incurred.9 8 17. The SEC has focused on registrants' accounting for loss contingencies. 9 Specifically, the SEC has sought improved transparency regarding loss contingencies.10 10 18. Item 303 of SEC Regulation S-K, Management's Discussion and Analysis of 11 Financial Condition and Results of Operations ("MD&A"), requires a discussion of liquidity, 12 capital resources, results of operations, and other information necessary to an understanding 13 of a registrant's financial condition, changes in financial condition, and results of operations. 14 Item 303(a)(3) requires companies to disclose any known trends or uncertainties that had, or 15 could reasonably be expected to have, a material favorable or unfavorable impact on net 16 sales or revenues or income from continuing operations. 17 19. The SEC has summarized the principal objectives of MD&A disclosure as: 18 6 ASC 450-20-30-1. 19 7 Id. 20 8 ASC 450-20-50-1. 21 9 ASC 450-20-50-3. 22 10 Ernst & Young, SEC Comments and Trends, September 2008: "The SEC staff has asked registrants to provide additional information and/or enhance disclosures related to contingencies that 23 are accounted for or disclosed pursuant to FASB Statement No. 5, Accounting for Contingencies (Statement 5). In addition to broad questions regarding a registrant's consideration of Statement 5, 24 the SEC staff also has asked registrants to provide more specific information. These comments include requests for details such as the factors considered in determining that the contingency did not 25 meet the recognition criteria in paragraph 8 of Statement 5 and the factors that were considered in determining it was appropriate to reverse an accrual for a loss contingency. . . . [I]f it is reasonably 26 possible that an exposure to a loss in excess of the amount accrued exists, the nature and either an estimate of the contingency or a statement that an estimate cannot be made also should be disclosed. 27 Based on the nature of the SEC staff's comments, it is clear that the SEC staff's objective is to improve transparency in contingency disclosures." 28 -5- 1024394_1 8 1 The purpose of MD&A is not complicated. It is to provide readers information "necessary to an understanding of [a company's] financial 2 condition, changes in financial condition and results of operations." The MD&A requirements are intended to satisfy three principal objectives: 3 • provide a narrative explanation of a company's financial statements 4 that enables investors to see the company through the eyes of management; 5 • enhance the overall financial disclosure and provide the context within 6 which financial information should be analyzed; and 7 • provide information about the quality of, and potential variability of, a company's earnings and cash flow, so that investors can ascertain the 8 likelihood that past performance is indicative of future performance.11 9 IV. FIRST SOLAR FAILED TO DISCLOSE THE MANUFACTURING EXCURSION PRIOR TO 2Q10 10 20. 11 12 13 14 21. 15 This term "Excursion" was a label 16 given by First Solar to modules experiencing premature power loss manufactured between 17 June 2008 and June 2009. 18 22. First Solar's contemporaneous analyses demonstrate that the LPM issue was a 19 significant event. In May 2009, Mike Koralewski, First Solar's VP of Global Quality, noted, 20 21 22 11 Financial Reporting Release 72, December 29, 2003 ("FR 72"). 23 12Ex. 287 at 08 (First Solar – Low Power Issue, July 26, 2010); Ex. 71 at 6. All exhibits 24 referenced herein are attached to the Declaration of Daniel S. Drosman in Support of Plaintiffs' 25 Opposition to Motion for Summary Judgment filed concurrently herewith. 13 Ex. 84 at 67; Ex. 83 at 40; Ex. 80 at 67; Ex. 26 at 86. 26 14 Ex. 51 at 24 (Low Power Panels Communications Plan, updated August 14, 2009). 27 15 28 Ex. 41. -6- 1024394_1 8 1 But at that time, First Solar 2 characterized its external communications regarding LPM as 3 "17 4 23. First Solar determined that to resolve the LPM issues, it would compensate 5 customers by allowing the customer to return larger quantities of modules in exchange for 6 replacement modules (the "Rip and Replace" method).18 First Solar would test the modules 7 and potentially redeploy any "good" modules. This approach was a shift from past practice 8 whereby First Solar, or the customer, would search for and replace individual modules.19 9 The Rip and Replace method meant that First Solar would incur module-related costs in 10 excess of the number of LPM modules, as well as other above-normal costs incurred during 11 the replacement process (e.g. transportation, testing and labor). 12 24. 13 14 .21 15 25. 16 17 18 19 20 21 16 Ex. 288 at 56. 22 17 Ex. 137 at 41. 23 18 Ex. 114 (including an e-mail from Mr. Amonett (First Solar, Director of Financial Planning & 24 Analysis) to Mr. Koralewski dated October 14, 2009). 19 25 Id. 20 Ex. 25 at 84. 26 21 Id. 27 22 28 Ex. 289 (including an e-mail from James Brown to Mr. Koralewski dated November 9, 2009). -7- 1024394_1 8 1 2 3 26. 4 5 6 7 8 9 As described below, the impact on future 10 revenues was required to be disclosed under GAAP and SEC disclosure rules. 11 27. The evidence above indicates that the impact of the Excursion had become 12 material to First Solar prior to 2Q10, both quantitatively and qualitatively. Qualitative 13 materiality factors are set forth in GAAP.27 These factors include whether a misstatement (or 14 omission) concerns a portion of the entity's business that plays a significant role in the 15 entity's profitability.28 16 17 18 23 Ex. 9 at 08 (including e-mail from Mr. Koralewski to Mr. Arnaud dated January 21, 2010). 19 24 Exs. 294 and 290 (for 1Q10); Ex. 287 at 10 (First Solar – Low Power Issue, July 26, 2010). See also Ex. 137 at 47 20 21 25 Ex. 291 (e-mail dated April 13, 2010 from John Amonett to Bryan Schumaker). First Solar's 22 Form 10-Q for this period was filed on April 29, 2010; Ex. 68. 23 26 Ex. 68. 24 27 ASC 250-10-S99 ("As used in the accounting literature and in this SAB, 'qualitative' materiality refers to the surrounding circumstances that inform an investor's evaluation of financial statement 25 entries."). 26 28ASC 250-10-S99 ("Among the considerations that may well render material a quantitatively small misstatement of a financial statement item are. . . whether the misstatement concerns a 27 segment or other portion of the registrant's business that has been identified as playing a significant role in the registrant's operations or profitability."). 28 -8- 1024394_1 8 1 2 3 4 5 6 28. In consideration of the number of modules manufactured during the Excursion 7 that were exposed to the risk of premature power loss (see ¶24 supra), 8 9 GAAP requires disclosure when there is information known 10 about an estimate that could cause the estimate to change in the near term.30 The SEC has 11 emphasized that it expects registrants to apply this GAAP. Specifically, the SEC has stated 12 that there is an increasing presumption, as time passes, that it is possible for a company to 13 provide quantitative information regarding loss contingencies,31 such as warranty accruals. 14 15 16 29 Ex. 254 (including e-mail from Stephan Hansen to Robert Gilette dated March 7, 2011: 17 18 19 20 30 ASC 275-10-50-8: ("Disclosure regarding an estimate shall be made when known information 21 available before the financial statements are issued or are available to be issued (as discussed in Section 855-10-25) indicates that both of the following criteria are met: a. It is at least reasonably 22 possible that the estimate of the effect on the financial statements of a condition, situation, or set of circumstances that existed at the date of the financial statements will change in the near term due to 23 one or more future confirming events. (The term reasonably possible as used in this Subtopic is consistent with its use in Subtopic 450-20 to mean that the chance of a future transaction or event 24 occurring is more than remote but less than likely.); b. The effect of the change would be material to the financial statements."). 25 31 CAQ SEC Regulations Committee, Joint Meeting with SEC Staff, June 24, 2010 ("Mr. Carnall 26 [Chief Accountant, SEC Division of Corporate Finance] added that he would expect that disclosures about a loss contingency would be updated as additional information becomes available. With the 27 passage of time, there is a greater presumption that it would be possible for the company to provide quantitative information."). 28 -9- 1024394_1 8 1 2 (see ¶¶15-16 supra, as well as ASC 275 cited in this paragraph). 3 29. In addition, the Excursion was a known event as described in Item 303 of 4 Regulation S-K above. Further, the Excursion was expected to have a material unfavorable 5 financial impact. Therefore, the Excursion met the requirements for disclosure in the 6 MD&A as described at ¶¶17 to 19.32 Specifically, First Solar was required to disclose that 7 the Excursion had, or could reasonably be expected to have, a material unfavorable impact 8 on net sales or revenues or income from continuing operations. First Solar's disclosure also 9 should have included information regarding management's analysis of the expected 10 reduction in revenue caused by the consumption of otherwise saleable modules in the LPM 11 replacement process.33 12 30. Ultimately, prior to 2Q10, First Solar was aware that the Excursion would 13 result in material warranty-related costs and other adverse financial impacts such as lost 14 revenue. Despite this awareness and related concerns, First Solar failed to provide 15 appropriate disclosure regarding the Excursion pursuant to the requirements of GAAP and 16 the SEC disclosure rules prior to 2Q10. 17 18 19 20 32 See also SEC Release Nos. 33-8350 and 34-48960; FR-72. The SEC's requirements include: 21 "MD&A must specifically focus on known material events and uncertainties that would cause reported financial information not to be necessarily indicative of future operating performance or of 22 future financial condition," and "As we have explained in prior guidance, disclosure of a trend, demand, commitment, event or uncertainty is required unless a company is able to conclude either 23 that it is not reasonably likely that the trend, uncertainty or other event will occur or come to fruition, or that a material effect on the company's liquidity, capital resources or results of operations is not 24 reasonably likely to occur. (In this release we sometimes use the term 'known material trends and uncertainties' to describe trends, demands, commitments, events or uncertainties as to which 25 disclosure is required.)" 26 33 ASC 605-10-S99 ("Examples of such revenue transactions or events that the staff has asked to be disclosed and discussed in accordance with FRR 36 are. . . Shipments of product at the end of a 27 reporting period that significantly reduce customer backlog and that reasonably might be expected to result in lower shipments and revenue in the next period."). 28 - 10 - 1024394_1 8 1 V. FIRST SOLAR FAILED TO PROPERLY ACCOUNT FOR AND DISCLOSE THE FULL SCOPE OF THE EXCURSION AND OTHER 2 LPM PROBLEMS BEGINNING IN 2Q10 3 31. 4 5 6 7 8 32. 9 10 11 12 13 33. First Solar disclosed that less than 4% of modules manufactured 14 (approximately 30MW or 400,000 modules)40 during the Excursion were affected.41 As 15 described in greater detail below, during the Class Period, First Solar maintained this 16 disclosure despite the fact that the total modules to be replaced due to the Excursion far 17 exceeded the "affected" 400,000 modules. 18 34 Ex. 137 at 05 (Board of Directors Meeting, February 21, 2012, LPM Process History). 19 35 Ex. 287 at 08 (First Solar – Low Power Issue, July 26, 2010 20 21 36 Ex. 137 at 06. 22 37 Ex. 26 at 86. 23 38 Ex. 96 at 42 (LPM Discussion, June 22, 2010). 24 39 Id. 25 40 Ex. 295. 26 41 Ex. 96 27 28 - 11 - 1024394_1 8 1 2 3 4 34. 5 6 7 8 9 10 35. 11 12 45 13 14 15 16 17 18 19 20 21 22 23 24 42 Ex. 137 at 08. 25 43 Id. 26 44 Ex. 296 at 36. 27 45 Ex. 27 at 89 28 - 12 - 1024394_1 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 - 1024394_1 8 1 37. 2 3 38. As noted above, First Solar's financial statements did not provide disclosure 4 about the Excursion until 2Q10. Figure 3 summarizes the key components of First Solar's 5 2Q10 disclosure, accompanied with my observations regarding the adequacy and 6 appropriateness of the disclosure:47 7 Figure 3 8 Disclosure Observation Less than 4% of modules This disclosure failed to identify the significantly greater 9 manufactured during the number of modules needed to remediate the Excursion. period were affected. 10 The Excursion "could The disclosure failed to reflect the true population of 11 result in possible modules that were expected to experience premature premature power loss in power loss 12 the affected modules." 13 Thus, this disclosure was misleading and inconsistent with First Solar's 14 warranty obligations. Low power modules 15 were produced between June 2008 and June 16 2009. 17 46 Ex. 26 at 95. 18 47 Ex. 69 at 13-14: 19 The above-referenced $27.4 million of accrued nonrecurring expenses 20 in excess of normal product liability as of June 26, 2010 consists of the following, each related to the manufacturing excursion described below: (i) 21 $21.8 million in estimated expenses for certain module replacement efforts voluntarily undertaken by us beyond the normal product warranty (appearing 22 in results of operations under "cost of sales"); and (ii) $5.6 million in estimated nonrecurring post-sale expenses (appearing in results of operations 23 under "selling, general and administrative"). During the period from June 2008 to June 2009, a manufacturing excursion occurred affecting less than 4% 24 of the total product manufactured within the period. The excursion could result in possible premature power loss in the affected modules. The root 25 cause was identified and subsequently mitigated in June 2009. On-going testing confirms the corrective actions are effective. We have been working 26 directly with impacted customers to replace the affected modules and these efforts are well underway and, in some cases, complete. Some of these efforts 27 go beyond our normal warranty coverage. 48 Ex. 115 at 02 (July 8, 2010 model). 28 - 14 - 1024394_1 8 1 Disclosure Observation Efforts were well This disclosure provided reassurance that the financial 2 underway to resolve the effect of the remediation would not be significant in future Excursion, and in some periods. But, as of 2Q10, First Solar's remediation efforts 3 cases, complete. were only beginning. 4 5 39. Defendants repeated this identical misleading disclosure throughout the Class 6 Period despite the fact that the Company's estimates of LPM modules were increasing. 7 8 9 10 40. First Solar also failed to properly account for the true scope of the Excursion 11 and LPM problems by assuming its customers would not return underperforming modules. 12 Throughout the Class Period, First Solar set its warranty reserves based, in part, on 13 underlying assumptions regarding the likelihood of customers finding and returning 14 underperforming modules (i.e., "the customer return rate"). 15 16 17 • 18 19 20 • 21 22 23 24 49 Ex. 137 at 15. 25 50 Ex. 102. 26 51 Exs. 292 and 115 at 02 (July 8, 2010 model). 27 52 Ex. 27 at 90. 28 - 15 - 1024394_1 8 1 But First Solar did not appropriately monitor whether the scenario subsequently 2 changed. 3 41. First Solar's warranty assumptions regarding the likelihood of customers 4 finding and returning underperforming modules were based on historical warranty 5 experience and were not properly updated for the change in circumstances surrounding the 6 Company's LPM remediation actions and communications beginning in 3Q09 (i.e., First 7 Solar characterized the Excursion as a significant non-recurring event). 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 53 Id. at 91. 24 54 Ex. 26 at 95. 25 55 Id. 26 56 Id. 27 57 Id. 28 - 16 - 1024394_1 8 1 2 3 42. GAAP set forth two conditions to accrue warranty costs. The first is that the 4 incurrence of the warranty cost was probable.60 This was clearly the case, as First Solar 5 determined that there was essentially a 100% likelihood that customers would look for LPM 6 modules. The second criteria was that the amount of warranty cost be estimable.61 For the 7 reasons described above, First Solar applied incorrect assumptions leading to understated 8 estimates of the warranty costs associated with LPM.62 9 43. GAAP also require disclosure if it is at least reasonably possible that a change 10 in estimate of the liability could occur in the near term.63 This was clearly the case regarding 11 58 Id. 12 59 Id. 13 60 ASC 460-10-25-6 ("The condition in paragraph 450-20-25-2(a) is met at the date of an entity's 14 financial statements if, based on available information, it is probable that customers will make claims under warranties relating to goods or services that have been sold. Satisfaction of the 15 condition in paragraph 450-20-25-2(b) will normally depend on the experience of an entity or other information. In the case of an entity that has no experience of its own, reference to the experience of 16 other entities in the same business may be appropriate. Inability to make a reasonable estimate of the amount of a warranty obligation at the time of sale because of significant uncertainty about 17 possible claims (that is, failure to satisfy condition [b] in that paragraph) precludes accrual and, if the range of possible loss is wide, may raise a question about whether a sale should be recorded before 18 expiration of the warranty period or until sufficient experience has been gained to permit a reasonable estimate of the obligation."). 19 61 ASC 450-20-25-2. ASC 460-10-25-6 ("The condition in paragraph 450-20-25-2(a) is met at the 20 date of an entity's financial statements if, based on available information, it is probable that customers will make claims under warranties relating to goods or services that have been sold. 21 Satisfaction of the condition in paragraph 450-20-25-2(b) will normally depend on the experience of an entity or other information. In the case of an entity that has no experience of its own, reference to 22 the experience of other entities in the same business may be appropriate. Inability to make a reasonable estimate of the amount of a warranty obligation at the time of sale because of significant 23 uncertainty about possible claims (that is, failure to satisfy condition [b] in that paragraph) precludes accrual and, if the range of possible loss is wide, may raise a question about whether a sale should be 24 recorded before expiration of the warranty period or until sufficient experience has been gained to permit a reasonable estimate of the obligation."). 25 62 See, e.g., ¶¶33, 41 supra. 26 63 ASC 450-20-50-2 ("If the criteria in paragraph 275-10-50-8 are met, paragraph 275-10-50-9 27 requires disclosure of an indication that it is at least reasonably possible that a change in an entity's estimate of its probable liability could occur in the near term. Example 3 (see paragraph 450-20-55- 28 36) illustrates this disclosure for an entity involved in litigation."). See also ASC 275-10-50-6, - 17 - 1024394_1 8 1 the liability associated with the Excursion.64 At a minimum, First Solar was required to 2 include disclosure in its financial statements that the total cost associated with the Excursion 3 was uncertain and might significantly exceed then-current estimates.65 But First Solar failed 4 to inform users of its financial statements regarding this material risk in 2Q10, or any other 5 quarter during the Class Period. 6 44. The limited disclosure that First Solar did offer for the first time in 2Q10 failed 7 to provide adequate information to users of its financial statements (see ¶29 supra). 8 9 10 11 12 13 First Solar's 14 failure to make relevant disclosure conflicted with the SEC's GAAP implementation 15 Certain Significant Estimates: "This Subtopic requires discussion of estimates when, based on known information available before the financial statements are issued or are available to be issued 16 (as discussed in Section 855-10-25), it is reasonably possible that the estimate will change in the near term and the effect of the change will be material. The estimate of the effect of a change in a 17 condition, situation, or set of circumstances that existed at the date of the financial statements shall be disclosed and the evaluation shall be based on known information available before the financial 18 statements are issued or are available to be issued (as discussed in Section 855-10-25)." 19 64 ASC 275-10-50-8: ("Disclosure regarding an estimate shall be made when known information available before the financial statements are issued or are available to be issued (as discussed in 20 Section 855-10-25) indicates that both of the following criteria are met: a. It is at least reasonably possible that the estimate of the effect on the financial statements of a condition, situation, or set of 21 circumstances that existed at the date of the financial statements will change in the near term due to one or more future confirming events. (The term reasonably possible as used in this Subtopic is 22 consistent with its use in Subtopic 450-20 to mean that the chance of a future transaction or event occurring is more than remote but less than likely.) b. The effect of the change would be material to 23 the financial statements."). 24 65 ASC 275-10-50-6, Certain Significant Estimates: "This Subtopic requires discussion of estimates when, based on known information available before the financial statements are issued or are 25 available to be issued (as discussed in Section 855-10-25), it is reasonably possible that the estimate will change in the near term and the effect of the change will be material. The estimate of the effect 26 of a change in a condition, situation, or set of circumstances that existed at the date of the financial statements shall be disclosed and the evaluation shall be based on known information available 27 before the financial statements are issued or are available to be issued (as discussed in Section 855- 10-25)." 28 - 18 - 1024394_1 8 1 guidance.66 Specifically, the SEC has advised registrants that disclosures about loss 2 contingencies, such as warranty reserves, should be updated as more information becomes 3 available to the registrant.67 4 45. First Solar also failed to make appropriate MD&A disclosures concerning the 5 risk that its LPM-related warranty estimates were likely to change. The SEC has instructed 6 registrants to make disclosures that address uncertainties regarding "the methods, 7 assumptions, and estimates underlying the company's critical accounting measurements."68 8 As described above, First Solar's LPM estimates were based on a series of undisclosed 9 assumptions. 10 46. First Solar's failures described in ¶¶31-44 identify materially false and/or 11 misleading statements, as well as material omissions as to the scope and financial statement 12 impact of its LPM modules. These failures include, not only GAAP violations as to First 13 Solar's financial statements, but also SEC requirements as to its MD&A disclosures. 14 15 16 17 66 CAQ SEC Regulations Committee, Joint Meeting with SEC Staff, June 24, 2010 ("Mr. Carnall 18 [Chief Accountant, SEC Division of Corporate Finance] added that he would expect that disclosures about a loss contingency would be updated as additional information becomes available. With the 19 passage of time, there is a greater presumption that it would be possible for the company to provide quantitative information."). 20 67 Id. 21 68 SEC Release Nos. 33-8350 ("A company should address specifically why its accounting 22 estimates or assumptions bear the risk of change. The reason may be that there is an uncertainty attached to the estimate or assumption, or it just may be difficult to measure or value. Equally 23 important, companies should address the questions that arise once the critical accounting estimate or assumption has been identified, by analyzing, to the extent material, such factors as how they arrived 24 at the estimate, how accurate the estimate/assumption has been in the past, how much the estimate/assumption has changed in the past, and whether the estimate/assumption is reasonably 25 likely to change in the future. Since critical accounting estimates and assumptions are based on matters that are highly uncertain, a company should analyze their specific sensitivity to change, 26 based on other outcomes that are reasonably likely to occur and would have a material effect. Companies should provide quantitative as well as qualitative disclosure when quantitative 27 information is reasonably available and will provide material information for investors.") (emphasis added). 28 - 19 - 1024394_1 8 1 VI. FIRST SOLAR FAILED TO PROPERLY ACCOUNT FOR AND DISCLOSE THE CHANGE IN ACCOUNTING FOR WARRANTY- 2 RELATED SETTLEMENTS IN 4Q10 3 47. 4 5 6 7 8 9 10 48. 11 12 13 14 15 16 17 18 19 20 21 22 69 Id. The analysis here regarding First Solar's accounting treatment is set forth in numerous 23 documents. 24 25 70 Ex. 293 at 41 26 27 71 Id. at 38. 28 - 20 - 1024394_1 8 1 2 3 49. 4 5 6 7 Figure 4 8 Module Condition Accounting Outcome 9 10 50. This methodology culminated in LPM replacement modules being recorded 11 and reflected in the "Settlement" line item within the warranty footnote in First Solar's 12 financial statements.76 13 14 15 16 72 Id. 17 18 73 Ex. 170 at 62 and Ex. 297 at 37, which both state: 19 20 21 74 Ex. 297 at 37. 22 75 Id. 23 76 Ex. 298 at 16 (First Solar 2010 Year-end Warranty Analysis, 24 25 77 Ex. 10 at 25 26 27 28 - 21 - 1024394_1 8 1 2 3 4 51. In fact, First Solar's disclosures in 2Q10 and 3Q10 continued to report 5 increased settlement activity relative to prior periods. 6 52. 7 8 9 10 53. 11 12 13 14 15 16 17 18 19 20 21 78 Ex. 206 at 06 (e-mail from Larry Polizzotto dated June 21, 2010 to Mr. Eaglesham and others). 22 See also Ex. 299 at 01 (e-mail from Mr. Polizzotto to Mr. Eaglesham dated June 21, 2010: 23 24 79 Ex. 299 at 01. 25 80 Ex. 298 at 16. 26 81 Id. 27 82 Ex. 25 at 76 28 - 22 - 1024394_1 8 1 Figure 5 2 3Q10 4Q10 % Change 3 4 5 54. 6 7 8 9 10 55. 11 12 13 14 15 16 17 83 Ex. 102. 18 84 Ex. 73 at 100. 19 85 Ex. 171 at 76-77 20 21 22 23 24 25 26 27 86 Id. 28 - 23 - 1024394_1 8 1 56. 2 3 4 5 6 57. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 58. 21 22 23 24 25 59. 26 27 28 - 24 - 1024394_1 8 1 2 3 60. 4 5 6 7 8 9 10 11 12 13 14 15 16 61. 17 18 87 First Solar documents describe this GAAP (see Ex. 177 at 04). 19 88 See Defendants' Response to Lead Plaintiff Mineworkers' Pension Scheme's Second Set of Interrogatories, No. 6 ("Rog. Resp. No. 6"). 20 89 Ex. 298 FSLR01077614 at 16 21 22 90 See Rog. Resp. No. 6 23 24 91 Ex. 286 at 35; Ex. 178 at 67. 25 92 Ex. 180 at 37. 26 93 See Rog. Resp. No. 6 27 94 Id. 28 - 25 - 1024394_1 8 1 2 3 4 5 62. 6 7 8 9 10 11 12 13 14 15 16 95 Ex. 301 at 05 (LCM Pricing Floor Triggers, November 2011). 17 96 Ex. 177 at 05. 18 97 Ex. 302 19 20 21 22 23 24 98 25 Ex. 303 at 45. See also Rog. Resp. No. 6. 99 Ex. 304 at 83. 26 100 Calculated using defendants' Rog. Resp. No. 6. 27 101 28 Ex. 298 at 16. - 26 - 1024394_1 8 1 2. 3 63. 4 5 6 7 64. 8 9 10 11 12 65. As another example, in 4Q11, First Solar's Controller participated in the 13 following exchange: 14 15 16 17 66. 18 19 20 21 22 102 First Solar's financial statements state that its inventory is stated at "the lower of cost or market." 23 Ex. 73 at 70. 24 103 Ex. 176 at 32. 25 104 Ex. 179 at 06-08. See also Ex. 304 at 84 26 105 Rog. Resp. No. 6. 27 106 28 Rog. Resp. No. 6. - 27 - 1024394_1 8 1 67. 2 3 4 5 6 7 8 68. At a minimum, GAAP required First Solar to have disclosed the fact that it had 9 implemented a significant change in the methodology used to prepare the warranty reserve 10 disclosure.110 This disclosure of the change was required so that users could discern the true 11 number of replacement modules shipped and the fact that Settlements following 4Q10 only 12 accounted for a portion of replacement modules shipped.111 13 107 ASC 330-10-35-3 ("The rule of lower of cost or market is intended to provide a means of 14 measuring the residual usefulness of an inventory expenditure. The term market is therefore to be interpreted as indicating utility on the inventory date and may be thought of in terms of the 15 equivalent expenditure which would have to be made in the ordinary course at that date to procure corresponding utility."). 16 108 See Ex. 71. 17 109 See Ex. 99 at 14. 18 110 GAAP specifically identifies estimates regarding the valuation of inventory subject to 19 technological obsolescence as an uncertainty relevant for disclosure. See ASC 275-10-50-15 ("The following are examples of assets and liabilities and related revenues and expenses, and of disclosure 20 of gain or loss contingencies included in financial statements that, based on facts and circumstances existing at the date of the financial statements, may be based on estimates that are particularly 21 sensitive to change in the near term. . . . a. Inventory subject to rapid technological obsolescence. b. Specialized equipment subject to technological obsolescence."). 22 111 ASC 250-10-50-4 ("The effect on income from continuing operations, net income (or other 23 appropriate captions of changes in the applicable net assets or performance indicator), and any related per-share amounts of the current period shall be disclosed for a change in estimate that 24 affects several future periods, such as a change in service lives of depreciable assets. Disclosure of those effects is not necessary for estimates made each period in the ordinary course of accounting for 25 items such as uncollectible accounts or inventory obsolescence; however, disclosure is required if the effect of a change in the estimate is material. When an entity effects a change in estimate by 26 changing an accounting principle, the disclosures required by paragraphs 250-10-50-1 through 50-3 also are required. If a change in estimate does not have a material effect in the period of change but 27 is reasonably certain to have a material effect in later periods, a description of that change in estimate shall be disclosed whenever the financial statements of the period of change are 28 presented."). - 28 - 1024394_1 8 1 69. Beyond First Solar's failure to comply with GAAP, it also failed to comply 2 with SEC disclosure requirements. The SEC specifically required First Solar to provide 3 users of the financial statements information necessary for an understanding of the issuer's 4 financial condition.112 This requirement is consistent with the central objective of 5 transparency within MD&A. But the undisclosed change in methodology that First Solar 6 applied in 4Q10 had the opposite effect. 7 70. Cumulatively, First Solar's change in methodology to determine the warranty 8 reserve was expected to impact several future periods. It was quantitatively as well as 9 qualitatively material, including because it masked a change in settlement trends.113 And it 10 was not made in the ordinary course of business (the LPM was repeatedly characterized by 11 First Solar as non-recurring).114 These factors are the focal point in a GAAP analysis of 12 whether disclosure is required.115 As such, GAAP clearly required First Solar to make 13 appropriate disclosure regarding the change. Finally, given that First Solar reported that its 14 inventory was stated in accordance with GAAP, and specifically that it was stated at the 15 lower of cost or market, a proper study of the market value of its derated inventory, which 16 was material, should have been made, but was not. In fact, as stated in ¶65 supra, there was 17 limited demand for this inventory. The above discussion in ¶¶47-67 identifies materially 18 false and/or misleading statements, as well as material misstatements of First Solar's 19 financial statements and MD&A regarding its Settlements and inventory accounting for its 20 LPM modules. 21 112 SEC Release No. 33-8350 ("The purpose of MD&A is not complicated. It is to provide readers 22 information 'necessary to an understanding of [a company's] financial condition, changes in financial condition and results of operations.' The MD&A requirements are intended to satisfy three 23 principal objectives."). 113 ASC-250-10-S99 ("Among the considerations that may well render material a quantitatively 24 small misstatement of a financial statement item are whether the misstatement masks a change in 25 earnings or other trends."). 114 Ex. 73 at 86 26 27 115 28 ASC 250-10-50-4. - 29 - 1024394_1 8 1 VII. FIRST SOLAR FAILED TO ACCURATELY ACCOUNT FOR AND DISCLOSE THE WARRANTY ACCRUAL AS OF 2Q11 AND 3Q11 2 71. 3 4 5 6 7 8 72. 9 10 11 12 13 14 15 16 116 Ex. 300 at 57. 17 117 Id.; see also Ex. 305 at 44 18 19 20 118 Ex. 300 at 59. 21 22 119 Ex. 154 at 05; see also Ex. 140 at 78 23 24 25 120 Ex. 154 at 05. 26 121 Id. 27 122 Id. 28 - 30 - 1024394_1 8 1 2 3 4 73. 5 6 7 8 9 10 74. 11 12 13 14 15 16 17 123 Ex. 214 at 81. 18 124 Ex. 161 at 86. 19 125 Ex. 140 at 78. 20 126 Ex. 128 at 34 21 22 23 24 25 26 127 Ex. 75 at 41. 27 128 Ex 161 at 86; Ex 104 at 86. 28 - 31 - 1024394_1 8 1 (a) 2 3 (b) 4 5 6 (c) 7 8 9 10 (d) 11 12 13 14 15 16 75. The Company's 2Q11 and 3Q11 false and misleading disclosures violated 17 GAAP. For example, financial statements for both 2Q11 and 3Q11 stated that First Solar 18 recorded an "estimate of the associated liability based on the number of solar modules under 19 warranty, our historical experience with warranty claims, our monitoring of field installation 20 sites, our in-house testing of our solar modules, and our estimated per-module replacement 21 cost."133 Based upon the information discussed in ¶¶71-74, this statement was materially 22 23 129 Ex 306 at 14; see also Ex. 275 at 67; Ex. 151 at 53. 24 130 Ex. 164 at 13. 25 131 Ex 307 at 03. 26 132 Ex 308 at 64. 27 133 Ex. 75 at 27; Ex. 76 at 30. 28 - 32 - 1024394_1 8 1 misleading. Similar materially misleading statements appear within First Solar's MD&A 2 (see, e.g., Ex. 177 at 42). 3 76. Ultimately, in 4Q11, the Company complied with GAAP and appropriately 4 disclosed the uncertainty surrounding its LPM remediation estimates: 5 In addition to those customers with solar modules affected by the manufacturing excursion that we have already identified, we are working with 6 other customers who have made claims and may have affected modules. We are in the process of gathering information to complete our analysis of these 7 remaining claims. Based upon our experience to date with our remediation approach, together with the data currently available, we estimate that, if we 8 ultimately determine that remediation of these claims under our current remediation program is probable, we could incur additional costs of up to 9 approximately $44 million in the then-current reporting period. This includes approximately $24 million beyond our limited warranty obligations in 10 connection with these claims, including the costs of actual remediation and the costs of additional compensation payments to customers under certain 11 circumstances, and approximately $20 million related to additional product warranty liability.134 12 77. Specifically, this disclosure was in conformity with GAAP because it alerted 13 users of First Solar's financial statements to the material uncertainties present in those 14 financial statements. But these factors were known to First Solar at least by 2Q11. 15 16 17 78. As described above, ASC 450 required First Solar to accrue all probable and 18 estimable warranty costs. 19 20 21 134 22 Ex. 71 at 96. 135 Ex. 13 (Widmar Tr., February 5, 2015) at 175:7-9. 23 136 Ex. 157 at 94-95 24 25 26 27 28 - 33 - 1024394_1 8 1 2 First Solar's failure to appropriately accrue for, and 3 disclose, these contingent losses was an error as that term is defined in GAAP (see 4 discussion above).137 5 79. 6 7 8 9 80. In addition to the quantitative materiality factors set forth in the preceding 10 factors, GAAP set forth methods for accountants to evaluate the qualitative materiality 11 aspects as it relates to the financial statements of SEC registrants.138 Specifically, there are 12 several factors that support my conclusion that a reasonable estimate of the expected costs to 13 resolve the LPM module warranty replacement obligations were material, including: (1) the 14 significance of an item to a particular entity (for example, inventories to a manufacturing 15 company) (see, e.g., the considerations highlighted in ¶74), and (2) whether the misstatement 16 masks a change in earnings or other trends (see, e.g., ¶77). 17 81. Finally, First Solar also continued its pattern of failing to provide adequate 18 MD&A-related disclosure regarding the state of its LPM.139 At the end of 2Q11 and again at 19 137 ASC 250-10-20, Glossary. 20 138 ASC 250-10-S99. 21 139 SEC Release No. 33-8350 ("A company should address specifically why its accounting estimates 22 or assumptions bear the risk of change. The reason may be that there is an uncertainty attached to the estimate or assumption, or it just may be difficult to measure or value. Equally important, 23 companies should address the questions that arise once the critical accounting estimate or assumption has been identified, by analyzing, to the extent material, such factors as how they 24 arrived at the estimate, how accurate the estimate/assumption has been in the past, how much the estimate/assumption has changed in the past, and whether the estimate/assumption is reasonably 25 likely to change in the future. Since critical accounting estimates and assumptions are based on matters that are highly uncertain, a company should analyze their specific sensitivity to change, 26 based on other outcomes that are reasonably likely to occur and would have a material effect. Companies should provide quantitative as well as qualitative disclosure when quantitative 27 information is reasonably available and will provide material information for investors.") (emphasis added). 28 - 34 - 1024394_1 8 1 the end of 3Q11, First Solar reported that it had used its best estimate of LPM exposure. But 2 the reality was that First Solar's warranty reserve analysis was incomplete and essentially 3 certain to increase. First Solar inappropriately omitted this information from its disclosures 4 in these periods. 5 VIII. FIRST SOLAR FAILED TO ACCURATELY ACCOUNT FOR AND DISCLOSE THE WARRANTY ACCRUAL AS IT RELATED TO 6 HOT CLIMATE CONSIDERATIONS FROM 1Q11 TO 3Q11 7 82. First Solar monitored the degradation rate of its modules, including by the type 8 of climate in which the modules were installed. It did so for at least two reasons. First, this 9 information was an important factor in the marketability of the product (i.e., future sales 10 volumes).140 Second, this information was relevant to the evaluation of warranty exposure, 11 which allowed for degradation of 10% by year 10 and 20% by year 25. 12 83. 13 14 15 16 17 18 19 140 Ex. 190 at 79 (January 15, 2010 20 21 141 Ex. 188 at 08 22 23 142 Exs. 309, 310, 196 and 311. 24 143 Ex. 196 at 09 25 26 27 28 - 35 - 1024394_1 8 1 2 3 84. 4 5 6 7 8 9 10 11 12 13 14 15 16 144 Ex. 95 at 600. 17 145 Ex. 198 at 86 18 19 146 ASC 450 required First Solar to disclose that it lacked a basis to "make a reasonable estimate of 20 its warranty obligation. . . because of significant uncertainty about possible [warranty] claims." 21 147 Ex. 21 (Koralewski Tr., February 26, 2015) at 279:7-281:9. 22 148 Ex. 105 23 24 25 26 149 Ex. 219 at 02. 27 150 Ex. 219 at 06; see also Ex. 95 at 11 28 - 36 - 1024394_1 8 1 85. 2 3 4 86. 5 6 7 8 9 10 11 12 87. 13 14 15 16 17 18 19 151 Ex. 15 (Eaglesham Tr., January 21, 2015) at 231:6-24 20 21 22 23 152 Ex. 20 at 94. See also Ex. 137 at 11 24 25 153 Ex. 20 at 94; see also Ex. 80. 26 154 Exs. 227, 229. 27 155 Ex. 229 at 76. 28 - 37 - 1024394_1 8 1 88. The evidence above indicates that the impact of the Hot Climate issue had 2 become material to First Solar by no later than 1Q11, both quantitatively and qualitatively. 3 For example: 4 • 5 6 • 7 8 • 9 • 10 89. The criteria for accrual of warranty-related costs are set forth in ASC 450 and 11 460. As described above, First Solar had accumulated a significant amount of data regarding 12 accelerated degradation in Hot Climate regions by 1Q11. In violation of GAAP, First Solar 13 failed to increase its warranty or make appropriate disclosure regarding the financial impact 14 of the Hot Climate issue at that time and continuing thereafter. Instead, First Solar delayed 15 both the additional accrual and the disclosure until 4Q11. First Solar's $38 million 16 retroactive charge for modules installed in Hot Climates from 3Q09 to 2Q11 is further 17 evidence that First Solar's warranty was understated during these periods. 18 90. Finally, for many of the same reasons that First Solar failed to appropriately 19 account for and disclose the Hot Climate issues, it also failed to provide appropriate MD&A 20 21 156 Ex. 209 at 33 22 23 24 25 26 157 Ex. 219 at 02. 27 158 Id. 28 - 38 - 1024394_1 8 1 disclosure. Specifically, the Hot Climate issue was a known material event that caused 2 information reported in 1Q11 through 3Q11 to not be indicative of future operating 3 performance or condition.159 In the circumstances, First Solar was required to make these 4 disclosures (see the factors set forth in ¶88).160 5 IX. THE ROLE OF FIRST SOLAR'S INDEPENDENT AUDITOR, PWC, RELATED TO FIRST SOLAR'S ACCOUNTING AND 6 DISCLOSURE OF WARRANTY-RELATED OBLIGATIONS 7 91. First Solar's management was responsible for the presentation of financial 8 statements in accordance with GAAP.161 9 10 11 For purposes of 12 its annual audits, PwC's tests were designed to provide reasonable assurance that First 13 Solar's annual financial statements were fairly presented in accordance with GAAP. This 14 testing did not address all aspects of First Solar's financial statements. 15 16 17 18 19 159 SEC Release No. 33-8350 ("MD&A must specifically focus on known material events and uncertainties that would cause reported financial information not to be necessarily indicative of 20 future operating performance or of future financial condition."). 21 160 Id. 22 23 161 Ex. 73 at 64 24 25 26 162 Id. 27 28 - 39 - 1024394_1 8 1 2 3 92. PwC's audits were not designed to obtain evidence such as e-mails among First 4 Solar's employees. As seen in my discussion above, that type of evidence exhibited candid 5 contemporaneous assessments of the LPM and Hot Climate remediation process which do 6 not appear to have been shared with PwC. 7 93. These are among the reasons that PwC required First Solar to provide 8 numerous representations regarding its financial statements, including as it related to LPM 9 and the Hot Climate issue. 10 11 12 13 94. 14 15 16 17 18 19 163 Ex. 110 (D'Angelo Tr., January 30, 2015) at 48:11-22 20 21 22 164 Id. at 108:2-18 23 24 25 26 165 Id. at 150:12-22 27 identified in the memo were the specific sites subject to the hot climate accrual, right? A. Yes."). 28 - 40 - 1024394_1 8 1 2 95. In addition, PwC did not have responsibility for disclosures that First Solar 3 made, or failed to make, in the MD&A section of its financial statements.167 In fact, PwC 4 had no obligation to audit First Solar's MD&A disclosures.168 5 96. Finally, PwC also did not provide an opinion on First Solar's interim 6 (quarterly) financial statements. The testing that PwC did perform on First Solar's interim 7 financial statements was only designed to provide negative assurance on those financial 8 statements (i.e., a material misstatement had not come to PwC's attention).169 9 I declare under penalty of perjury under the laws of the United States that the 10 foregoing is true and correct. Executed on this 27th day of April, 2015, at San Mateo, 11 California. 12 13 D. PAUL REGAN 14 15 16 17 18 19 20 166 Ex. 252 at 40. 21 167 AU §550.04, Other Information in Documents Containing Audited Financial Statements ("The auditor's responsibility with respect to information in a document does not extend beyond the 22 financial information identified in his report, and the auditor has no obligation to perform any procedures to corroborate other information contained in a document. However, he should read the 23 other information and consider whether such information, or the manner of its presentation, is materially inconsistent with information, or the manner of its presentation, appearing in the financial 24 statements.") (http://pcaobus.org/Standards/Auditing/Pages/AU550.aspx accessed April 20, 2015). 25 168 Id. 26 169 AU §722.25, Interim Financial Information ("A review of interim financial information is not designed to obtain reasonable assurance that the interim financial information is free of material 27 misstatement.") (http://pcaobus.org/Standards/Auditing/Pages/AU722.aspx accessed April 20, 2015). 28 - 41 - 1024394_1 8 EXHIBIT A 8 HEMMING EXECUTIVE SUMMARY OF M O R S E, L L P CURRICULUM VITAE CERTIFIED PUBLIC ACCOUNTANTS AND FORENSIC CONSULTANTS www.hemming.com D. Paul Regan, CPA/CFF, CFE Employment & Education see page 1 of C.V. ■ Chairperson Hemming Morse, LLP Certified Public Accountants and Forensic Consultants ■ B.S. Accounting (Accounting Specialist), M.S. Accounting, CPA/CFF, CFE Professional & Service Affiliations see page 1 of C.V. ■ Certified Public Accountant, State of California, Litigation Consulting and Dispute Resolution Services since 1970 Common Interest Member ■ – Steering Committee, since 1990 American Institute of Certified Public Accountants, – Chair, 2002-2004 since 1970 Certified in Financial Forensics, since 2008 State Economic Damages Section – Chair, 1996-1998 AICPA Council Member, 2003-2011 – Member, since 1995 Member, Forensic & Valuation Services Executive ■ Town of Hillsborough Committee, 2008-2011 – Council Member, 1998-2010 – Mayor, 2002-2004 Litigation and Dispute Resolution Services – Commissioner of Finance, 1998-2002; Subcommittee, 1998-2001 2004-2010 Chair of National Economic Damages Committee, – Financial Advisory Committee, since 2011 1999-2001 ■ Hillsborough City School District Board of Trustees ■ Association of Certified Fraud Examiners, – Trustee, 1985-1995 since 1996 – President, 1986-87; 1993-94 ■ ■ California Society of Certified Public Accountants Audit Committees Distinguished Service Award, 2009 – Golden Gate University, Chair, 2005-2008 – Jesuit School of Theology, Chair, 2004-2011 – Board of Directors, 2001-2006 – International Display Works, Inc., 2005-2006 – Council, since 2001 – Solar Power, Inc., Chair, 2006-2010 – Chair, 2004-2005 – Catholic Charities CYO of the Archdiocese page 1 of 1 of San Francisco, since 2009 Courses Written and Presented see page 3 of C.V. San Mateo Office 155 Bovet Road Publications see page 5 of C.V. Suite 600 San Mateo, CA 94402 Trials, Depositions & Arbitrations see page 6 of C.V. Te l: 415.836.4000 Fax: 415.777.2062 8 HEMMING CURRICULUM VITAE M O R S E, L L P CERTIFIED PUBLIC ACCOUNTANTS AND FORENSIC CONSULTANTS www.hemming.com D. Paul Regan, CPA/CFF, CFE Employment & Education 2012 – Present Hemming Morse, LLP Certified Public Accountants and Forensic Consultants Chairperson 1975 – 2011 Hemming Morse, Inc. Certified Public Accountants Litigation and Forensic Consultants Chairman of the Board, 2001-2011 President, 2001-2009 Director-in-charge of the firm's Litigation and Forensic Consulting Practice, 1975-2006 1973 – 1975 Regan & Skelton, CPAs Partner 1968 – 1973 Peat, Marwick, Mitchell & Co., CPAs 1979 Golden Gate University, San Francisco M.S. Accounting 1968 University of San Francisco B.S. Accounting (Accounting Specialist) Professional & Service Affiliations ■ Certified Public Accountant, State of California, Member, Litigation and Dispute Resolution since 1970 Services Subcommittee, 1998-2001 – Chair of National Economic Damages Committee, ■ American Institute of Certified Public Accountants, 1999-2001 since 1970 Certified in Financial Forensics, since 2008 National Computer Audit Subcommittee of the Auditing Standards Board, past member AICPA Council Member, 2003-2011 ■ Association of Certified Fraud Examiners, Member, Forensic & Valuation Services Executive since 1996 page 1 of 9 Committee, 2008-2011 San Mateo Office 155 Bovet Road Suite 600 San Mateo, CA 94402 Te l: 415.836.4000 Fax: 415.777.2062 8 HEMMING CURRICULUM VITAE M O R S E, L L P CERTIFIED PUBLIC ACCOUNTANTS AND FORENSIC CONSULTANTS www.hemming.com D. Paul Regan, CPA/CFF, CFE Professional & Service Affiliations continued ■ California Society of Certified Public Accountants ■ CPA Computer Report, Editorial Board, 1984-1987 Distinguished Service Award, 2009 ■ Board of Trustees, Golden Gate University, California CPA Education Foundation, 2002-2013 Board of Trustees, 1997-2003 Audit Committee member, since 2005 – President, 2001-2002 Audit Committee Chair, 2005-2008 – First Vice President, 2000-2001 – Treasurer, 1999-2000 ■ Board of Trustees, Jesuit School of Theology at Berkeley, 2002-present California Society of Certified Public Accountants, Audit Committee member and Chair, 2004-2011 Board of Directors, 2001-2006 – Council, since 2001 ■ International Display Works, Inc. – Chair, 2004-2005 Board of Directors, 2004-2006 – First Vice President, 2003-2004 Audit Committee member, 2005-2006 Litigation Consulting and Dispute Resolution Services ■ Solar Power, Inc. Common Interest Member Board of Directors, 2006-2010 – Steering Committee, since 1990 Audit Committee Chair, 2006-2010 – Chair, 2002-2004 ■ Catholic Charities CYO of the Archdiocese – Vice President, 2000-2002 of San Francisco State Economic Damages Section Board of Directors, 2009-present – Chair, 1996-1998 Audit Committee Chair, since 2009 – Member, since 1995 ■ Town of Hillsborough EDP Committee, past member Council Member, 1998-2010 Quality Control Committee, past member Mayor, 2002-2004 Vice Mayor, 2000-2002 Litigation Services Conference Chair, 1990 Commissioner of Finance, 1998-2002; 2004-2010 Advanced Litigation Forum Planning Committee, Financial Advisory Committee, since 2011 1991-1993; 1995 and 1997 ■ Hillsborough City School District Board of Trustees – Chair in 1993 and 1997 Trustee, 1985-1995 Computer Show and Conference Chair, 1985 President, 1986-87; 1993-94 Economic Damages Conference Planning Committee, ■ Hillsborough Recreation Commission, 1989-1993; 2000 1998-2010 page 2 of 9 ■ American Arbitration Association's National Panel President, 1990-1993 of Arbitrators, 1983-1996 ■ Citizen of the Year, 1995 ■ Western Association of Accounting Firms Town of Hillsborough, California Audit and Accounting Committee, Chairman, San Mateo Office 1980-1982 155 Bovet Road Audit and Accounting Manuals, Editor, 1979-1982 Suite 600 San Mateo, CA 94402 Te l: 415.836.4000 Fax: 415.777.2062 8 HEMMING CURRICULUM VITAE M O R S E, L L P CERTIFIED PUBLIC ACCOUNTANTS AND FORENSIC CONSULTANTS www.hemming.com D. Paul Regan, CPA/CFF, CFE Courses Written and Presented AICPA & California Society of CPAs: ■ "Economic Damages: Common Frameworks By ■ "Expert Disqualifications" Industry & Claim Type" California Society of CPAs, Advanced Economic AICPA National Forensic Accounting Conference, Damages and Business Valuation Conference, Boston, MA, 2010 Palm Springs, CA, 2001 ■ "Fraud Prevention and Detection" ■ "Financial Statement Fraud" California Society of CPAs, Business and Industry California Society of CPAs, Fraud Conference, Conference, Los Angeles and San Francisco, CA, 2004 San Francisco and Los Angeles, CA, 2000 ■ "Trigon Insurance Co. v. United States" ■ "Quantifying Losses" California Society of CPAs, Economic Damages AICPA National Fraud Conference, Las Vegas, NV, Litigation Section, San Francisco, CA, 2003 2000 ■ "Issues Re: Revenue Recognition" ■ "Electronic Work Product-Discovery Issues" California Society of CPAs, Litigation Sections Steering California Society of CPAs, Economic Damages Committee, Burlingame, CA, 2003 Conference for Business Trial Lawyers & Experts, Los Angeles, CA, 1999 ■ "Trashing Drafts - A Standard Practice or a Dangerous Proposition?" ■ "The CPA's Role in Construction Damages" California Society of CPAs, Advanced Business AICPA National Advanced Litigation Conference, Litigation Institute, Palm Springs, CA, 2003 Atlanta, GA, 1999 ■ "Aggressive Accounting & The Games People Play" ■ "Significant Frauds of our Time" AICPA Webcast, co-author, NJ, 2003 AICPA National Fraud Conference, Las Vegas, NV, 1998 ■ "Mistakes Made in the Work Product" California Society of CPAs, Litigation Services ■ "Daubert and the CPA Expert" Conference, Irvine, CA, 2002 California Society of CPAs, Advanced Economic Damage Conference, San Francisco, CA, 1998 ■ "Complex Litigation/Accounting Malpractice" AICPA National Fraud Conference, Las Vegas, NV, 2002 ■ "The Accountant in Fraud Investigations" California Society of CPAs, Fraud Conference, ■ "Enron and Beyond" San Francisco and Los Angeles, CA, 1997 California Society of CPAs, Financial Statements and Tax Fraud Conference, Los Angeles and San Francisco, ■ "Rule 26 Reports,""The Auditor and Fraud," and page 3 of 9 CA, 2002 "Challenging Questions" California Society of CPAs, Advanced Litigation Forum, ■ "Ethics, Taxes and Financial Reporting" Palm Springs, CA, 1996 California Society of CPAs, San Francisco, CA, 2002 San Mateo Office 155 Bovet Road Suite 600 San Mateo, CA 94402 Te l: 415.836.4000 Fax: 415.777.2062 8 HEMMING CURRICULUM VITAE M O R S E, L L P CERTIFIED PUBLIC ACCOUNTANTS AND FORENSIC CONSULTANTS www.hemming.com D. Paul Regan, CPA/CFF, CFE Courses Written and Presented continued ■ "Distinguishing Between Litigation and Attest ■ "Opportunities Update: "A Discussion of Disruption Engagements" Claims" California Society of CPAs, Advanced Litigation Forum, California Society of CPAs, Litigation Consulting San Diego, CA, 1995 Conference, Los Angeles, CA, 1990 ■ "Miniscribe Trial Binder" ■ "Construction Damages" California Society of CPAs, Advanced Litigation Forum, AICPA, Second Annual Conference on CPA's Role in Monterey, CA, 1993; Litigation Consulting Services Litigation Services, Dallas, TX and Washington, DC, Committee, Puerto Vallarta, MX, 1993; Litigation 1990 Consulting Services Committee, San Francisco, CA, 1994 ■ "Lost Profits" California Society of CPAs, Litigation Services Conference, San Francisco and Los Angeles, CA, 1991 Selected Others ■ "The Fraud Triangle - Where Were the Gatekeepers" ■ "Proving and Pricing Delay and Disruption Claims" United States District Court, Northern District Andrews Conference - Fourth Annual Construction Historical Society, San Francisco, CA, 2012 Litigation Superconference, San Francisco, CA, 1989 ■ "Introduction of Financial Forensic Accounting" ■ "The Auditor in Court" Golden Gate University, Adjunct Professor, State of California, Government Auditors, 1989 2009-present ■ "Pricing Construction Claims" ■ "Reporting in Litigation Engagements" Thelen, Marrin, Johnson & Bridges, 1988 "Wage & Hour Litigation" Golden Gate University, 2009 ■ "Dollars and Sense: Building Your Damages Case & Surviving a Daubert Challenge" ■ "Intellectual Property Damages" San Francisco Trial Lawyers Association, Litigation page 4 of 9 Federal Bureau of Investigation, Quantico, VA, 2001 Practice, San Francisco, CA, 2007 ■ "Alternative Dispute Resolution Techniques and ■ "Winning Strategies for the Financial Side of Your Strategies for the Small and Emerging Contractor" Damages Case" American Bar Association, Fourth Annual Construction Infrastructure Summit, Phoeniz, AZ, San Mateo Office Construction Institute, 1995 2007 155 Bovet Road Suite 600 ■ "Fundamentals of Forensic Accounting" San Mateo, CA 94402 Georgetown University, Washington, DC, 1994 Te l: 415.836.4000 Fax: 415.777.2062 8 HEMMING CURRICULUM VITAE M O R S E, L L P CERTIFIED PUBLIC ACCOUNTANTS AND FORENSIC CONSULTANTS www.hemming.com D. Paul Regan, CPA/CFF, CFE Publications ■ "Our Roots Run Deep" ■ Member of the Editorial Board and author of various California CPA Magazine, August 2004 articles for the California Society of CPAs' Litigation and Dispute Resolution Services Section's ■ "Expert Witnesses: Do They Have to Keep quarterly publication (since summer 1996) Draft Reports?" California CPA Magazine, May 2004 ■ Outlook Magazine, Winter 1985 - Computer Show and Conference Survey ■ "Revenue Recognition: Now, Later or Never?" California CPA Magazine, September 2003 ■ "California CPA Computer Show and Conference," CPA Computer Report, September 1985 ■ AICPA Litigation Services and Applicable Professional Standards Consulting Services Special Report 03-1 ■ "Direct and Cross Examination of Experts," co-author (Contributing author) of case study presented by University of California Hastings Litigation Advocacy Program ■ Litigation Services Handbook, "The Role of the Accountant as Expert Witness," published by John Wiley & Sons, Chapter 16, "Litigation Consulting: Construction Claims" ■ Litigation Support Report Writing, published by John Wiley & Sons, Chapter 15, "Construction Claims" page 5 of 9 San Mateo Office 155 Bovet Road Suite 600 San Mateo, CA 94402 Te l: 415.836.4000 Fax: 415.777.2062 8 HEMMING CURRICULUM VITAE M O R S E, L L P CERTIFIED PUBLIC ACCOUNTANTS AND FORENSIC CONSULTANTS www.hemming.com D. Paul Regan, CPA/CFF, CFE Testimony (presented in the last four years) Trial ■ Duryea v. Froshman Billings & Lewandowski ■ Plaintiffs v. Carey Limousine LA, Inc., et al. (2012) (2014) JAMS, Case No. 1100059356 Superior Court of California, Santa Clara County Case No. 1-12-CV-222828 ■ DVD Copy Control Association v. Kaleidescape, Inc. (2011) ■ Paciocco & Anor v. Australia and New Zealand Superior Court of California, Santa Clara County Banking Group Limited ("ANZ") (2013) Case No. 1-04-CV-031829 Federal Court of Australia No. VID196 of 2013 ■ Rambus Inc. v. Micron Technology, Inc., et al. ■ United States of America v. Joseph M. Elles (2011) and Joseph Pacifico (2013) Superior Court of California, San Francisco County U.S. District Court, Northern District of Georgia Case No. 04-431105 Atlanta Division, Case No. 1:11-CR-445-JEC ■ Francie E. Moeller, et al. v. Taco Bell Corporation ■ Livent Inc. Through Its Special Receiver and (2011) Manager, Roman Doroniuk and Deloitte & U.S. District Court, Northern District of California, Touche and Deloitte & Touche LLP (2013) San Francisco Division, Case No. C 02-05849 PJH JL Ontario Superior Court of Justice, Canada Court File No. 02-CV-225823 CM2 ■ Ivana Kirola, Michael Kwok, and Elizabeth Elftman v. The City & County of San Francisco, et al. (2011) ■ John Garamendi, as Insurance Commissioner of U.S. District Court, Northern District of California, San the State of California and as Conservator, Francisco/Oakland Division, Case No. C07-3685 SBA Rehabilitator, and Liquidator of the Estate of Executive Life Insurance Company v. Altus Finance ■ Grimaud Farms of California, Inc. v. Whole Foods S.A., et al. (2012) Market California, Inc., et al. (2011) U.S. District Court, Central District of California Superior Court of California, San Joaquin County Case No. CV-99-02829 AHM (CWx) Case No. CV030845 ■ Continuous Computing Corporation v. teleSys ■ John Lonberg v. City of Riverside (2011) Software, Inc. (2012) U.S. District Court, Central District of California, Eastern American Arbitration Association Division, Case No. ED-CV-97-0237 SGL (AJWx) Case No. 72 117 00006 11 NOLG ■ Marin Healthcare District v. Sutter Health (2012) page 6 of 9 JAMS, San Francisco, CA, Reference No. 1100065277 San Mateo Office 155 Bovet Road Suite 600 San Mateo, CA 94402 Te l: 415.836.4000 Fax: 415.777.2062 8 HEMMING CURRICULUM VITAE M O R S E, L L P CERTIFIED PUBLIC ACCOUNTANTS AND FORENSIC CONSULTANTS www.hemming.com D. Paul Regan, CPA/CFF, CFE Testimony continued Deposition ■ Honora Keller, et al. v. The Board of Trustees of ■ Crescent Resources Litigation Trust v. Duke Energy California State University (2015) Corporation, et al. (2013) Superior Court of California, County of San Francisco U.S. District Court, Western District of Texas Case No. CGC-09-490977 Austin Division, Case No. A-12-CA-009-SS ■ Marlene Hopkins, et al. v. Plant Insulation ■ Robert P. Mosier as Receiver for Private Equity Company, et al. (2014) Management Group, Inc., et al. v. Stonefield Superior Court of California, County of San Francisco Josephson, Inc., CPAs, et al. (2013) Case No. CGC06450944 U.S. District Court, Central District of California Case No. 2:11-cv-02666 PSG (Ex) ■ Brian Behaein, et al. v. Pizza Hut, Inc. (2014) Superior Court of California, County of Los Angeles ■ Gigoptix, Inc. v. Optomai, Inc., et al. (2013) Case No. BC384563 Superior Court of California, Santa Clara County Case No. 1-11-CV-199643 ■ Mary K. Jones v. Pfizer Inc., et al. (2014) U.S. District Court, Southern District of New York ■ United States of America v. Joseph M. Elles Case No. 10-cv-03864-AKH and Joseph Pacifico (2013) U.S. District Court, Northern District of Georgia ■ Duryea v. Froshman Billings & Lewandowski Atlanta Division, Case No. 1:11-CR-445-JEC (2014) Superior Court of California, Santa Clara County ■ Michael Karas v. George S. Karas (2013) Case No. 1-12-CV-222828 American Arbitration Association ■ In the Matter of LFG Liquidation Trust vs ■ Sarkissian Mason, Inc. and Automatic, LLC v. Ernst & Young LLP (2014) Enterprise Holdings, Inc. (2013) U.S. District Court, Southern District of New York ■ In Re: Lehman Brothers Securities and ERISA Case No. 11-CV-09472-PAC Litigation (2014) U.S. District Court, Southern District of New York ■ In re: Heller Ehrman LLP (2012) Case No. 09-md-02017-LAK U. S. Bankruptcy Court, Northern District of California Case No. 08-32514 DM ■ GSI Technology, Inc. v. Cypress Semiconductor Corporation (2014) ■ In re: CityCenter Construction and Lien Master U.S. District Court, Northern District of California Litigation (2012) page 7 of 9 District Court, Clark County, Nevada San Jose Division, Case No. 5:11-cv-03613-EJD Case No. A605103 San Mateo Office 155 Bovet Road Suite 600 San Mateo, CA 94402 Te l: 415.836.4000 Fax: 415.777.2062 8 HEMMING CURRICULUM VITAE M O R S E, L L P CERTIFIED PUBLIC ACCOUNTANTS AND FORENSIC CONSULTANTS www.hemming.com D. Paul Regan, CPA/CFF, CFE Testimony continued Deposition continued ■ Life Technologies Corporation and Applied ■ Constar International Inc. Securities Litigation Biosystems, LLC v. Biosearch Technologies, Inc. (2011) (2012) U.S. District Court, Eastern Division of Pennsylvania U.S. District Court, Eastern Division of Texas Case No. 03CV05020 Marshall Division, Case No. 3:12-CV-00852-WHA ■ Philip F. Otto v. Schilling Robotics, Inc. (2011) ■ Ramon Gomez v. Pizza Hut of Southeast Kansas, JAMS, San Francisco, Case No. 1100065090 Inc. (2012) ■ Wilfredo Aguilar, et al. v. Carey Limousine LA, Inc., Superior Court of California, County of San Bernardino et al. (2011) Case No. CIVVS900679 JAMS, Los Angeles Superior Court ■ Securities and Exchange Commission v. Case No. 1100059356 Peter R. Morales, Betsy D. Scolnik, and ■ Brian Gilmer, et al. v. Alameda-Contra Costa Transit Adriana J. Kampfner (2012) District (2011) U.S. District Court, Southern District of New York U.S. District Court, Northern District of California Case No. 06 CIV 2435 (RJH) Case No. C 08-05186 CW ■ Ron Block, et al. v. Daniel Helix, et al. (2012) ■ Novatel Wireless Securities Litigation (2011) Superior Court of California, County of Contra Costa U.S. District Court, Southern District of California Case No. CIV MSC 05-01725 Case No. 08-CV-01689-H (RBB) ■ Chinatown Community Development Center v. ■ Grimaud Farms of California, Inc. v. Whole Foods Tower Hotel Partners, Ltd, et al. (2012) Market California, Inc., et al. (2011) Superior Court of California, City & County of Superior Court of California, San Joaquin County San Francisco, Case No. CGC-10-501798 Case No. CV030845 ■ SIPCO, LLC v. ADT Security Services, Inc. (2011) ■ Silverman v. Motorola, Inc., et al. (2011) U.S. District Court, Southern District of Florida, West U.S. District Court, Northern District of Illinois Palm Beach Division, Case No. 11-cv-80521-DMM Eastern Division, Case No. 1:07-cv-04507 ■ DVD Copy Control Association v. Kaleidescape, Inc. (2011) Superior Court of California, Santa Clara County page 8 of 9 Case No. 1-04-CV-031829 San Mateo Office 155 Bovet Road Suite 600 San Mateo, CA 94402 Te l: 415.836.4000 Fax: 415.777.2062 8 HEMMING CURRICULUM VITAE M O R S E, L L P CERTIFIED PUBLIC ACCOUNTANTS AND FORENSIC CONSULTANTS www.hemming.com D. Paul Regan, CPA/CFF, CFE Testimony continued Arbitration ■ In the Matter of LFG Liquidation Trust v. Ernst & ■ In the matter of SB Liquidation Trust v. Ernst & Young LLP (2014) Young LLP (2012) ■ Eastham Capital Appreciation Fund LP, et al. v. ■ Philip F. Otto v. Schilling Robotics, Inc. (2011) KPMG LLP et al. (2013) JAMS, San Francisco, Case No. 1100065090 Confidential Pursuant to CPR Arbitration Rule 18 page 9 of 9 San Mateo Office 155 Bovet Road Suite 600 San Mateo, CA 94402 Te l: 415.836.4000 Fax: 415.777.2062 8 1 CERTIFICATE OF SERVICE 2 I hereby certify that on April 27, 2015, I authorized the electronic filing of the 3 foregoing with the Clerk of the Court using the CM/ECF system which will send notification 4 of such filing to the e-mail addresses denoted on the attached Electronic Mail Notice List, 5 and I hereby certify that I caused to be mailed the foregoing document or paper via the 6 United States Postal Service to the non-CM/ECF participants indicated on the attached 7 Manual Notice List. 8 I certify under penalty of perjury under the laws of the United States of America that 9 the foregoing is true and correct. Executed on April 27, 2015. 10 s/ DANIEL S. DROSMAN DANIEL S. DROSMAN 11 ROBBINS GELLER RUDMAN 12 & DOWD LLP 655 West Broadway, Suite 1900 13 San Diego, CA 92101-8498 Telephone: 619/231-1058 14 619/231-7423 (fax) 15 E-mail: dand@rgrdlaw.com 16 17 18 19 20 21 22 23 24 25 26 27 28 1024407_1 8 Mailing Information for a Case 2:12-cv-00555-DGC Smilovits v. 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DECLARATION Rebuttal Declaration of Paul Flum in Support of Defendants Motion for Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.

1 James P. Bennett (Admitted pro hac vice) JBennett@mofo.com 2 Paul Flum (Admitted pro hac vice) PaulFlum@mofo.com 3 Jordan Eth (Admitted pro hac vice) JEth@mofo.com 4 Judson E. Lobdell (Admitted pro hac vice) JLobdell@mofo.com 5 Anna Erickson White (Admitted pro hac vice) AWhite@mofo.com 6 Philip T. Besirof (Admitted pro hac vice) PBesirof@mofo.com 7 Mark R.S. Foster (Admitted pro hac vice) MFoster@mofo.com 8 MORRISON & FOERSTER LLP 425 Market Street 9 San Francisco, California 94105-2482 (415) 268-7000 10 Maureen Beyers, Arizona Attorney No. 017134 11 MBeyers@omlaw.com Joseph N. Roth, Arizona Attorney No. 025725 12 JRoth@omlaw.com OSBORN MALEDON, P.A. 13 2929 North Central Avenue Phoenix, AZ 85012-2793 14 (602) 640-9000 15 Attorneys for Defendants First Solar, Inc., Michael J. Ahearn, Robert J. Gillette, 16 Mark R. Widmar, Jens Meyerhoff, James Zhu, Bruce Sohn, and David Eaglesham 17 UNITED STATES DISTRICT COURT 18 DISTRICT OF ARIZONA 19 20 Mark Smilovits, individually and on behalf of all other persons similarly Case No. CV12-00555-PHX-DGC 21 situated, REBUTTAL DECLARATION OF PAUL FLUM IN SUPPORT OF Plaintiff, DEFENDANTS' REPLY IN SUPPORT 22 vs. OF MOTION FOR SUMMARY 23 First Solar, Inc., Michael J. Ahearn, JUDGMENT 24 Robert J. Gillette, Mark R. Widmar, Jens Meyerhoff, James Zhu, Bruce Sohn, and 25 David Eaglesham, Defendants. 26 27 28 FLUM REBUTTAL DECL. IN SUPPORT OF DEFS.' REPLY sf-3537953 1 1. I, Paul Flum, am an attorney licensed to practice law in the State of 2 California and am admitted pro hac vice to practice before this Court. I am a partner with 3 the law firm of Morrison & Foerster LLP, and I am counsel of record for Defendants First 4 Solar, Inc. ("First Solar"), Michael J. Ahearn, Robert J. Gillette, Mark R. Widmar, Jens 5 Meyerhoff, James Zhu, Bruce Sohn, and David Eaglesham. I submit this rebuttal 6 declaration in support of Defendants' Reply in Support of Motion for Summary Judgment. 7 Except for any matters stated on information and belief, I have personal knowledge of the 8 facts stated below. 9 2. Each of the exhibits referenced below refers to the exhibits numbered in the 10 Appendix of Rebuttal Exhibits to Defendants' Reply in Support of Motion for Summary 11 Judgment. 12 3. Rebuttal Exhibit 1 is a an updated version of Exhibit 1 (Dkt. No. 327-1), 13 which was submitted concurrently with Defendants' Motion for Summary Judgment, and 14 described in paragraph 3 in my declaration of March 27, 2015 (Dkt. No. 322). The chart 15 has been updated to include cross references to Defendants' Reply in Support of Motion 16 for Summary Judgment. The text (and emphasis) of each allegedly misleading statement 17 set forth in Rebuttal Exhibit 1 is copied verbatim from the FAC. 18 4. Rebuttal Exhibit 2 is a true and correct copy of Directive 1999/44/EC of the 19 European Parliament and of the Council, titled On Certain Aspects of the Sale of 20 Consumer Goods and Associated Guarantees, May 25, 1999, published on July 7, 1999, in 21 the Official Journal of the European Communities. This document was obtained by 22 downloading it from EUR-Lex, the website maintained by the Publications Office of the 23 European Union, at: 24 http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31999L0044&rid=1 25 5. Rebuttal Exhibit 3 includes a true and correct copy of a Cowen and Co. 26 analyst report, titled "Mix Shift From Systems to Modules Reflects Strong Demand," 27 dated February 25, 2011. Thomson Reuters makes these analyst reports available to the 28 investing public on its online database, Thomson One, and the first copy of the report FLUM REBUTTAL DECL. IN SUPPORT OF DEFS.' REPLY 1 sf-3537953 1 included with Rebuttal Exhibit 3 was downloaded from this service. Rebuttal Exhibit 3 2 also contains an identical copy of the same analyst report, which was produced from the 3 files of First Solar in this litigation on March 25, 2014, with Bates No. FSLR00065773- 4 FSLR00065782. 5 6. Rebuttal Exhibit 9 is a true and correct excerpt from the certified transcript 6 of the deposition of Adam D'Angelo, taken on January 30, 2015. 7 7. Rebuttal Exhibit 10 is a true and correct excerpt from the certified transcript 8 of the deposition of David Eaglesham, taken on January 21, 2015. 9 8. Rebuttal Exhibit 11 is a true and correct excerpt from the certified transcript 10 of the deposition of Georgette Gillen, taken on August 7, 2014. 11 9. Rebuttal Exhibit 12 is a true and correct excerpt from the certified transcript 12 of the deposition of Terry Lee Kallenbach, taken on March 2, 2015. 13 10. Rebuttal Exhibit 13 is a true and correct excerpt from the certified transcript 14 of the deposition of Adrianne Kimber, taken on November 25, 2014. 15 11. Rebuttal Exhibit 14 is a true and correct excerpt from the certified transcript 16 of the deposition of Mike Koralewski, taken on December 17, 2014. 17 12. Rebuttal Exhibit 15 is a true and correct excerpt from the certified transcript 18 of the Rule 30(b)(6) deposition of Mike Koralewski, taken on February 26, 2015. 19 13. Rebuttal Exhibit 16 is a true and correct excerpt from the certified transcript 20 of the deposition of Bruce Sohn, taken on February 6, 2015. 21 14. Rebuttal Exhibit 17 is a true and correct excerpt from the certified transcript 22 of the Rule 30(b)(6) deposition of Andrey Xavier, taken on February 25, 2015. 23 15. Rebuttal Exhibit 18 is a true and correct excerpt from the certified transcript 24 of the deposition of Mark Widmar, taken on February 5, 2015. 25 16. Rebuttal Exhibit 19 is a true and correct copy of deposition exhibit 11 from 26 the deposition of Georgette Gillen, taken on August 7, 2014. 27 28 FLUM REBUTTAL DECL. IN SUPPORT OF DEFS.' REPLY 2 sf-3537953

DECLARATION Rebuttal Declaration of Adam DAngelo in Support of Defendants Motion for Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.

1 James P. Bennett (Admitted pro hac vice) JBennett@mofo.com 2 Paul Flum (Admitted pro hac vice) PaulFlum@mofo.com 3 Jordan Eth (Admitted pro hac vice) JEth@mofo.com 4 Judson E. Lobdell (Admitted pro hac vice) JLobdell@mofo.com 5 Anna Erickson White (Admitted pro hac vice) A White@mofo.com 6 Philip T:Besirof(Admittedpro hac vice) PBesirof@mofo.com 7 Mark R.S. Foster (Admitted pro hac vice) MF oster@mofo.com 8 MORRIS"'ON & FOERSTER LLP 425 Market Street 9 San Francisco, California 94105-2482 (415) 268-7000 10 Maureen Beyers, Arizona Attorney No. 017134 11 MBeyers@omlaw.com Joseph N. Roth, Arizona Attorney No. 025725 12 JRoth@omlaw.com OSBORN MALEDON, P.A. 13 2929 North Central Avenue Phoenix, Arizona 85012-2793 14 (602) 640-9000 15 Attorneys for Defendants 16 First Solar, Inc., Michael J. Ahearn, Robert J. Gillette, Mark R. Widmar, Jens Meyerhoff, James Zhu, 17 Bruce Sohn, and David Eaglesham 18 UNITED STATES DISTRICT COURT 19 DISTRICT OF ARIZONA 20 Mark Smilovits, individually and on behalf CASE NO. CV12-00555-PHX-DGC 21 of all other persons similarly situated, REBUTTAL DECLARATION OF Plaintiff, ADAM D'ANGELO IN SUPPORT OF 22 DEFENDANTS' MOTION FOR vs. SUMMARY JUDGMENT 23 First Solar, Inc., Michael J. Ahearn, 24 Robert J. Gillette, Mark R. Widmar, Jens Meyerhoff, James Zhu, Bruce Sohn, and 25 David Eaglesham, 26 Defendants. 27 28 REBUTTAL DECL. OF D'ANGELO IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT sf-3537962 1 I, ADAM D'ANGELO, declare as follows: 2 1. I make this Rebuttal Declaration on personal knowledge. If called as a 3 witness, I could testify to the following facts. 4 2. In this Rebuttal I?eclaration, I use the term "work paper" to refer to the 5 documents that were generated and/or kept in the normal course of PwC' s work as the 6 external auditor for First Solar (the "Company"), as described in paragraph 11 of my prior 7 Declaration in Support ofDefendants' Motion for Summary Judgment ofMarch 25,2015 8 (Dkt. No. 321). 9 3. Rebuttal Exhibit 4 is a true and correct copy of a work paper from the audit 10 for the period ended December 31, 2010. This work paper reflects the analysis of PwC 11 auditors as to the Company's inventory reconciliation, including the Company's valuation 12 of previously sold solar modules that were returned to the Company (which the work 13 paper refers to as "LPM Modules"). PwC auditors noted no exception to the inventory 14 reconciliation or valuation. 15 4. I have reviewed the document that the Plaintiffs submitted as Exhibit 284 to 16 the Declaration of DanielS. Drosman in Support ofPlaintiffs' Opposition to Defendants' 17 Motion for Summary Judgment. This document was generated as part ofPwC's review of 18 the Company's interim financial statement for the third quarter of2010. This is 19 confirmed by Rebuttal Exhibit 5, which is a true and correct copy of the introductory page 20 for the document that Plaintiffs submit as Exhibit 284. 21 5. Rebuttal Exhibit 6 is a true and correct excerpt from one of the work papers 22 from our 2010 annual audit that is part ofPwC's assessment ofthe Company's LPM 23 remediation accruals, as described in paragraph 14 of my prior declaration. 24 6. Rebuttal Exhibit 7 is a true and correct copy of an excerpt from a board 25 presentation that PwC received from First Solar in connection with PwC's review of the 26 Company's interim financial statement for the first quarter of 20 11. 27 28 REBUTTAL DECL. OF 0' ANGELO IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT sf-3537962 1 7. Rebuttal Exhibit 8 is a true and correct copy of a memorandum that PwC 2 received from First Solar in connection with PwC's review of the Company's interim 3 financial statement for the third quarter of 20 11. 4 5 I declare under penalty of perjury that the foregoing is true and correct. Executed 6 this;>/ day of May, 2015, in New York, New York. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REB UTI AL DECL. OF D'ANGELO IN SUPPORT OF DEFS.' MOT. FOR SUMMARY JUDGMENT 2 sf-3537962

NOTICE OF FILING OF OFFICIAL AMENDED TRANSCRIPT of Motion Hearing proceedings held on 07/22/2015, before Judge David G. Campbell. (Court Reporter: Patricia Lyons). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/14/2015. Redacted Transcript Deadline set for 8/24/2015. Release of Transcript Restriction set for 10/22/2015.

1 1 UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF ARIZONA 3 _________________ 4 Mark Smilovits, et al.,)) 5 Plaintiffs,) CV 12-00555-PHX-DGC) 6 vs.) Phoenix, Arizona) July 22, 2015 7 First Solar Incorporated, et al.,)) 8 Defendants.) _______________________________________) 9 10 11 12 13 BEFORE: THE HONORABLE DAVID G. CAMPBELL, JUDGE 14 REPORTER'S AMENDED TRANSCRIPT OF PROCEEDINGS 15 MOTION HEARING 16 17 18 19 20 21 Official Court Reporter: Patricia Lyons, RMR, CRR 22 Sandra Day O'Connor U.S. Courthouse, Suite 312 401 West Washington Street, SPC 41 23 Phoenix, Arizona 85003-2150 (602) 322-7257 24 Proceedings Reported by Stenographic Court Reporter 25 Transcript Prepared with Computer-Aided Transcription 1 2 14:00:06 1 A P P E A R A N C E S 2 3 For Plaintiffs: 4 Robbins Geller Rudman & Dowd, LLP By: DANIEL S. DROSMAN, ESQ. 14:00:06 5 By: LUKE BROOKS, ESQ. By: DARRYL J. ALVARADO, ESQ. 6 655 W. Broadway, Ste. 1900 San Diego, CA 92101 7 8 9 14:00:06 10 For Defendants: 11 Morrison & Foerster, LLP By: JORDAN ETH, ESQ. 12 By: ANNA ERICKSON WHITE, ESQ. By: PAUL FLUM, ESQ. 13 By: JUDSON E. LOBDELL, ESQ. 425 Market St., 32nd Floor 14 San Francisco, CA 94105 14:00:06 15 Osborn Maledon, PA 16 By: MAUREEN BEYERS, ESQ. P.O. Box 36379 17 Phoenix, AZ 85067 18 19 20 21 22 23 24 25 1 3 14:00:06 1 P R O C E E D I N G S 2 3 THE COURTROOM DEPUTY: Civil case 2012-555, Mark 4 Smilovits and others versus First Solar Incorporated and 14:01:13 5 others, on for motion hearing. 6 Will the parties please announce. 7 MR. DROSMAN: Good afternoon, Your Honor. Daniel 8 Drosman on behalf of plaintiffs, from the law firm of Robbins 9 Geller Rudman and Dowd. I'm here with my colleagues Luke 14:01:26 10 Brooks and Darryl Alvarado. 11 THE COURT: Afternoon. 12 MR. BROOKS: Good afternoon, Your Honor. 13 MR. ALVARADO: Good afternoon. 14 MS. BEYERS: Maureen Beyers, from the law firm Osborn 14:01:34 15 Maledon, on behalf of defendants. 16 MR. ETH: Afternoon, Your Honor. Jordan Eth for 17 defendants, along with my colleagues Judson Lobdell, Anna 18 Erickson White, and Paul Flum. 19 THE COURT: All right. Good afternoon. 14:01:50 20 MR. ETH: Good afternoon. 21 THE COURT: Give me just a minute to get organized 22 here, Counsel. 23 All right. We are here for oral argument on the 24 motions for summary judgment. What I want to do is give you 14:02:22 25 each 15 or 20 minutes to summarize what you think are the most 1 4 14:02:25 1 important points. I've read the briefs, so I understand the 2 arguments, but I'm interested in your thoughts now that all 3 the briefing is done. 4 I do have several questions that I want to ask you, 14:02:36 5 but I think I'll hold off and try not to interrupt you and let 6 you cover the things you think need to be covered, and then 7 afterward I will ask you the various questions. 8 Since the primary motion is defendants', why don't we 9 start with you, Mr. Eth. 14:02:53 10 MR. DROSMAN: Your Honor, before Mr. Eth begins, I 11 wanted to flag one potential issue. I don't believe it is an 12 issue, but I will be discussing, and I believe Mr. Brooks as 13 well will be discussing certain information defendants have 14 designated as confidential. We don't believe it should be 14:03:07 15 confidential or under seal at this point, but I don't want to 16 run afoul of the protective order, so I wanted to mention it 17 before we begin. 18 THE COURT: All right. 19 Mr. Eth, do you have any thoughts on that? 14:03:18 20 MR. ETH: That's okay, Your Honor, at this point. At 21 this point that's fine. 22 Your Honor, we divided up the way we want to present 23 this. I was going to present loss causation. I was going to 24 address loss causation and my colleague, Mr. Lobdell, was 14:03:42 25 going to address the remaining issues. That's the way we 1 5 14:03:45 1 briefed it, loss causation first. 2 THE COURT: That's fine. 3 MR. ETH: Okay. Great. You said 15, 20 minutes for 4 us? 14:03:53 5 THE COURT: Yeah. I just need you to hit the high 6 points. 7 MR. ETH: Okay. I will hit the high points. I will 8 hit the high points and Mr. Lobdell will do the same. 9 So the high points of loss causation begin with the 14:04:03 10 Ninth Circuit law. The Ninth Circuit law is crystal clear. 11 It's been stated several times, it's been applied several 12 times, it's been repeated several times. Four cases. Oracle 13 Metzler, Loos, and Apollo. Just confirmed twice in the last 14 ten months. The rule is very clear. It says a corrective 14:04:26 15 disclosure has to reveal the falsity, has to reveal the 16 falsity publicly of a previously issued statement. That's the 17 rule. That's the rule. 18 And what Apollo says, Apollo says they have to 19 specify which statement was made untrue by the corrective 14:04:41 20 disclosure. That's from December. And what Loos versus 21 Immersion says, that's what Ninth Circuit precedent requires. 22 That's what it requires. 23 Plaintiffs don't come close on loss causation. They 24 have six alleged corrective disclosures, 167 alleged 14:04:59 25 misstatements. They never match anything up. They never 1 6 14:05:02 1 match it up. They don't even try to match it up. And they 2 don't match it up because they can't match it up. They can't 3 match it up. 4 I'll use one example because we're hitting 14:05:12 5 highlights. The one they spend the most time on in their 6 brief is October 2011 alleged corrective disclosure. They 7 have six; that's the one they spend the most time on. October 8 2011, a one-paragraph press release in which the company, 9 First Solar, said Mike Ahearn, the chairman of the board, was 14:05:32 10 going to step in on an interim basis as CEO in place of Rob 11 Gillette. 12 How does that statement reveal the falsity of any of 13 the 167 other alleged misleading statements? How does it show 14 that an earnings report from three years earlier was false? 14:05:50 15 Or revenue recognized on a project was false? Or cost per 16 watt was false? It doesn't come close. And that's true of 17 all their statements. 18 It could go the other way, too. It's not just you 19 have to match up six corrective disclosures to each of the 14:06:03 20 misstatements. You have to go through all 167 and say what 21 statement later issued by somebody -- the company, the 22 government, the SEC, somebody -- showed that that statement 23 was false. And they don't do it. 24 Now, the heart of the case, of course, is an 14:06:21 25 accounting fraud. It's 30 pages plus in their complaint. We 1 7 14:06:25 1 don't have to guess at how loss causation works in accounting 2 fraud cases, we have two examples right on point, Oracle and 3 Loos. 4 Oracle, page 394 of Oracle, something we say in our 14:06:40 5 opening brief, is directly on point. Plaintiffs ignore that 6 point. Ignore it entirely. They cite a different part of 7 Oracle. Oracle says for the accounting claim in that case, 8 where the plaintiffs claim that Q2 '01 earnings were false, 9 the Court says they weren't revised. They were never revised. 14:07:00 10 There was no correction to them just because you issued later 11 earnings. No correction at all. 12 Loos, which was the one from September, just last 13 September, plaintiffs say accounting fraud again, something 14 wrong with accounting, they point to disappointing earnings. 14:07:19 15 Court says look at Oracle, look at Metzler. Doesn't work. 16 There's another statement in that case. The company says 17 we're going to investigate our own previously issued financial 18 statements because they may be materially wrong. We're going 19 to have the audit committee investigate with independent 14:07:38 20 counsel because they may be materially wrong specifically 21 referring to previously issued financial statements. The 22 stock fell more than 23 percent the next day. Ninth Circuit 23 said not enough. Not enough. Case dismissed. 24 Plaintiffs in that case -- and that case did involve 14:07:55 25 a restatement; plaintiffs hadn't alleged it in their 1 8 14:07:59 1 complaint. Hadn't alleged the restatement. 2 So what do the plaintiffs do here in light of that 3 crystal clear law from Oracle and Loos? They claim -- they 4 don't claim, they argue in their brief that there was a 14:08:11 5 restatement. Say it five times. No support. Their expert 6 shouldn't even be here. Their expert accountant, 40-page 7 report, doesn't say there's a restatement. They deposed PwC; 8 no restatement. They looked at PwC papers; no restatement. 9 They got all the 2.5 million pages; no restatement. The very 14:08:34 10 analysts they talk about, they keep repeating the past 11 statements, financial statements. 12 So when plaintiffs say they would argue there was a 13 restatement, that will only be for one of their six corrective 14 disclosures anyway, the one from February 2012, it's just made 14:08:51 15 up. It's completely made up. 16 So what they wind up with after that is nothing that 17 points to the falsity of any statement. Nothing that points 18 to it at all. 19 Just a few other quick points, Your Honor. CPW, cost 14:09:07 20 per watt. 62 of the 167 statements are CPW statements. Every 21 single time we say anything about CPW, plaintiffs say that was 22 fraudulent. Anything that corrects it, discussed by their 23 expert, discussed in their brief. Nothing. Nothing. Not one 24 statement that corrects it. In fact, it's repeated 14:09:28 25 throughout. Same thing for revenue recognition and it's the 1 9 14:09:31 1 same thing for the description of the excursion. 2 Consistently the company says when it occurred, how 3 many was affected, how many modules were affected and so 4 forth. No correction. Loss causation requires, clearly 14:09:46 5 requires, a correction to a previous statement. Clearly 6 requires that. 7 One other thing I wanted to mention, May 3rd, 2011, 8 plaintiffs say there was -- excuse me, May 2011, one of the 9 alleged corrective disclosures, plaintiffs say there was 14:10:02 10 increase in accrual at that point. They're off by a year. 11 They don't cite a document for it. The Q, 10-Q for that year, 12 plaintiffs' Exhibit 74, shows they were off by a full year on 13 that. 14 So where we come out on this, Your Honor, where we 14:10:17 15 come out on this is what the plaintiffs say is the Ninth 16 Circuit rule just can't be the law. Just can't be the law. 17 Because that would require companies to admit fraud. 18 We never made that argument. The Ninth Circuit never 19 made that argument. We are just citing the Ninth Circuit. 14:10:31 20 And restatement isn't an admission of fraud. Doesn't have to 21 come from the company; it can come from lots of different 22 sources. The plaintiffs don't point to any source correcting 23 any statement, so there's no loss causation under this crystal 24 clear law. 14:10:49 25 THE COURT: I'll have some questions for you 10 1 14:10:50 1 afterward about that. 2 MR. ETH: Thank you. 3 THE COURT: All right. 4 MR. LOBDELL: Thank you, Your Honor. Good afternoon. 14:11:14 5 In addressing the remaining issues, I want to focus 6 on something that I think is critical in this case, which is 7 the process. 8 As we show in our opening papers, the disclosures 9 that the plaintiffs challenge in this case were, without 14:11:29 10 exception, prepared pursuant to a bottom-up process by the 11 individuals, the professionals, the engineers, the accountants 12 who were carrying out their assigned job responsibilities. 13 And those numbers, those accruals which were estimates of how 14 much will it cost to complete this remediation effort, or the 14:11:54 15 revenue forecasts which were reduced to reflect the fact that 16 some modules used in the remediation could not be sold. Those 17 numbers, those metrics, were all prepared by and through this 18 bottoms-up process by Mr. Koralewski, vice president of global 19 quality, by Mr. Kallenbach, who was the president of the 14:12:20 20 component business group, and they provide their information 21 to the Mr. Schumaker the assistant corporate controller. 22 There is not a single instance in this case in which the 23 number Mr. Schumaker came up with, after being provided with 24 that information from Mr. Kallenbach and Mr. Koralewski, was 14:12:37 25 ever changed. Not a single instance. 11 1 14:12:43 1 They say on page 53 of that brief quite simply the 2 fraud flowed from the top down. They cite the VeriFone case. 3 They say the VeriFone case is a top-down fraud case like 4 theirs. What happened in the VeriFone case, very briefly, is 14:12:59 5 the CEO told the CFO, I need you to get me 35 and a half cents 6 in earnings per share, and the CFO called down to the supply 7 chain accountant and directed that a $10.5 million entry be 8 made in the general ledger, for which there was absolutely no 9 support. And that occurred for a course of three quarters, 14:13:21 10 resulting in inflation of revenue by between 200 and 600 11 percent. 12 There is nothing remotely resembling that here. 13 I also want to point out, we're going through the 14 highlights, the importance of the facts that these financial 14:13:38 15 statements were not prepared in private. The company had a 16 public accounting firm. Its outside auditor's PwC. And PwC 17 looked at each of the accruals in this case in connection with 18 their quarterly reviews and again in connection with their 19 annual audits. And then at the end of the class period and 14:14:00 20 after this complaint was filed and in connection with their 21 2012 audit they looked at this again. And each time they 22 found the controls the company had in place were functioning 23 free from any material weakness, that the Sarbanes-Oxley 24 certifications had been prepared. And so the top executives 14:14:20 25 of the company could have confidence in the accuracy of the 12 1 14:14:23 1 reports being prepared. And they found that the company's 2 accounting was prepared in accordance with GAAP. 3 And the Worlds of Wonder case is instructive on this 4 point because in Worlds of Wonder the plaintiffs made 14:14:39 5 allegations that the CEO had engaged in a fraud and the Ninth 6 Circuit pointed out that, well, it was absurd to suggest that 7 the CEO knew or should have known -- and in that case the 8 issue was whether revenue was inflated -- that it was absurd 9 to suggest that the CEO would know revenue was inflated when 14:14:58 10 the Deloitte auditing firm had audited those financial 11 statements. And the CFO -- CEO, excuse me, was not an 12 accountant. 13 Well, Mr. Ahearn is not a CPA. Most of the 14 individual defendants are not CPAs and didn't have any 14:15:16 15 involvement in this accounting. That was all done through 16 this process that was controlled, certified, and audited by 17 PwC. They don't dispute -- the plaintiffs don't dispute that 18 that is fatal to their case. 19 Absent some evidence that PwC was somehow either 14:15:37 20 complicit in this fraud, which is something they don't allege, 21 or that material was withheld from PwC, that PwC was deceived 22 in some way. Well, they have absolutely no evidence that that 23 ever occurred. And absent such evidence, they cannot show 24 fraud in this case. 14:15:58 25 Your Honor, those are the highlights. I have things 13 1 14:16:00 1 to say about a lot of the other aspects of this case. I'm 2 happy to address that now or I can answer your questions. 3 THE COURT: Well, why don't we have you hold off. 4 After I have asked questions, if there are additional points 14:16:17 5 you want to make, you certainly can do so. 6 MR. LOBDELL: Thank you, Your Honor. 7 THE COURT: Okay. 8 MR. DROSMAN: Good afternoon, Your Honor. I'm going 9 to go ahead and provide a PowerPoint presentation. Mostly of 14:16:43 10 the evidence. I think that will help the Court. I'm going to 11 go ahead and provide a copy, hard copy, of the PowerPoint 12 presentation to defense counsel, and, if I may approach, to 13 Your Honor. 14 THE COURT: You may. 14:17:04 15 MR. DROSMAN: I understand the Court has read the 16 briefs and is very familiar with the evidence. I'm just going 17 to hit the high points. Much of what I've heard so far today 18 has ignored, simply ignored the evidence that we presented in 19 our brief and that I think is very important to remember. 14:17:19 20 I'm going to address the LPM defects, the fact that 21 the defendants concealed it. When they ultimately disclosed 22 its existence, they told half truths throughout the rest of 23 the class period. And, finally, in February of 2012 when they 24 disclosed the truth, the stock dropped. 14:17:37 25 I'm going to talk about the hot climate degradation, 14 1 14:17:41 1 talk about how the defendants knew about the hot climate 2 degradation and how it accelerated -- degradation at 3 accelerated rates well before they disclosed it at the end of 4 the class period, in fact two years before the end of the 14:17:54 5 class period, yet said nothing to the market. 6 Finally, I'm going to talk about the defendants' 7 extraordinary insider trades and insider selling in this case. 8 Mr. Brooks will address how the inflation was removed 9 from the stock through a series of partial disclosers. The 14:18:10 10 loss causation issue, Your Honor. 11 So as I mentioned, LPM is the first issue. It's the 12 issue that we spent the bulk of our time in our brief on. 13 To put this fraud in context, it's very important to 14 remember that product quality was critical to the market, to 14:18:29 15 analysts, to investors in solar panels. 16 This is an analyst report, comes from Credit Suisse 17 analyst. He says product quality, in our view, the most 18 significant metric for solar companies. 19 But it doesn't stop there. Because First Solar, as 14:18:45 20 you'll recall, is manufacturing thin-film panels, whereas the 21 vast majority of solar manufacturers are manufacturing 22 silicone panels. And because of this lack of track record in 23 thin film, product quality was doubly, triplely, quadruply 24 important for First Solar. It was the metric that the 14:19:05 25 analysts, that market investors were looking at. Okay? The 15 1 14:19:09 1 quality of their modules in the field. 2 The other important piece to keep in mind as we go 3 through this discussion is the importance of cost per watt, 4 CPW. So every quarter defendants are going ahead and 14:19:24 5 reporting this declining CPW. You can see it. It's very 6 important to the market. Analysts take note that it's 7 declining. Defendants are expected to continue to report 8 declining cost per watt. 9 In order to compete with silicone, defendants had to 14:19:39 10 drive these costs per watt numbers down. 11 As Your Honor can see, and as we talked about in our 12 brief, there was intense pressure at First Solar to drive the 13 cost per watt down. Here they're told in the financial 14 planning and analysis group that unless we can get cost per 14:19:54 15 watt down from 86 cents to 85 cents, we're going to have to do 16 without our annual bonuses and we're going to get negative 17 performance ranking, reviews, at the end. That's the 18 intensity of the pressure to get cost per watt down. 19 So we'll talk about STBi, which we discussed in our 14:20:12 20 brief in a little more depth, but I want to mention this 21 problem was a direct result of a change in process, change in 22 manufacturing process, in order to cut costs and continue to 23 see lowering CPW. So this is a really important e-mail 24 because I think it sums it up. It says the reason LPM is at 14:20:35 25 the magnitude that it is is we made the wholesale change to 16 1 14:20:38 1 all sites of a new process ignoring the STBi effect. The STBi 2 effect is the effect on quality. Then continued to ignore the 3 STBi data, the effect on quality, until the customer 4 complained. 14:20:52 5 That's what happened in this case. That's what the 6 defendants are saying and that's what the company is saying 7 internally. 8 THE COURT: Who is the e-mail to and from? 9 MR. DROSMAN: It's Deposition Exhibit 460. I don't 14:21:07 10 ever the author's name in front of me, Your Honor. I can get 11 that information for you in a moment. 12 Now, we talked about STBi. There seems to be some 13 dispute in the defendants' brief that STBi was a key indicator 14 of field power loss. But the contemporaneous documents that 14:21:28 15 existed at the company at the time leave absolutely no 16 question that STBi was the key metric for them to determine 17 what fuel power loss would be. 18 So as the panels came off the manufacturing line, 19 they run these tests, these ALT accelerated life tests. They 14:21:47 20 use these destructive light soak tests. What they're 21 determining is how will these panels perform in the field? 22 And these ALT tests give us a metric. They give us an STBi 23 metric. And defendants say that there is a positive 24 correlation, there's a definite correlation between 14:22:04 25 negativeSTBi and declining field power loss. 17 1 14:22:07 1 So the worse the STBi values are, the more the panels 2 are going to decline in the field. That they know. There's 3 no question about it. It's the key metric that they use. 4 And defendants know that this correlated to field 14:22:20 5 power -- STBi correlated to field power loss. Here I asked 6 Thomas Kuster whether he understood that STBi does correlate 7 with field power loss. That's my understanding. 8 And presentation. Correlation of ALT, accelerated 9 life test, to the field is based on test arrays and FPL, field 14:22:43 10 power loss. 11 STBi data was used even before the class period. So 12 this wasn't something they discovered in 2008 or 2009 and 13 thought might be a neat metric to look at it. This was used 14 even before the class period to estimate field power loss. 14:23:01 15 Even as far back as 2005 they noticed anSTBi crisis 16 from an unknown process change. At that time, STBi had gone 17 from negative five to negative 10 percent, all the way to 18 negative 20 percent. And they clarified that, classified 19 that, as an STBi crisis. Okay? 14:23:21 20 Then in 2007 we've got them looking atSTBi and noting 21 here it's gone from negative 10 to negative 20 percentSTBi. 22 They say that's two times degradation. These are pre-class 23 period documents showing they're closely monitoring it. 24 And in their 2008 10-K, which is what's up on the 14:23:42 25 screen, they say that this is what we do. We actually look at 18 1 14:23:45 1 STBi data, these accelerated life tests, in order to determine 2 what our warranty should be. Because we have to have some 3 idea. We have to have some idea of what is going to happen to 4 these modules in the field in order to set our warranty. We 14:24:01 5 have a 25 year power warranty, we have to figure out how these 6 panels are going to behave; the STBi test is what does it. 7 That's what they tell the market in 2008. Okay? 8 In 2009 defendants usedSTBi, not surprisingly, 9 because it's, frankly, the only metric to estimate what the 14:24:20 10 quantification of LPM defect was. How many LPM defective 11 modules are out there. They conclude the distinct difference, 12 this is the bottom quote, in module performance degradation 13 associated with modules produced on days withSTBi an STBi less 14 than or equal to negative 20 percent -- we've seen this 14:24:40 15 before, this negative 20 percent number -- this condition 16 indicated approximately 2.9 million modules. That's what they 17 know in 2009. Okay? 18 And I asked in a 30(b)(6) deposition of Michael 19 Koralewski, I asked him is this something regularly tracked 14:24:59 20 during the period in 2007 to 2012, STBi? Did you regularly 21 track it at the company? Answer, yes. 22 This is a pretty nice chart. Each of these dots 23 shows a sample of modules tested before leaving the factory. 24 This is theirSTBi value. They provided defendants with 14:25:20 25 realtime data. Each one of these dots -- a dot that was 19 1 14:25:22 1 available on 2/2008, defendants knew the STBi data. They 2 could see this decliningSTBi trend just as it was occurring. 3 They didn't have to wait for months or years or four years to 4 determine whetherSTBi was going from negative 10 to negative 14:25:41 5 20. They knew about the trend right away. 6 And the class period, as you know, is from April 2008 7 through February 2012. And as you can see, there is a 8 downward trend inSTBi during the class period. The defendants 9 had, as I mentioned, this data in realtime. They determined 14:26:03 10 STBi in this particular box resulted in modules that would 11 fall outside of warranty. You can see all those dots are 12 modules that would fall outside of warranty. That's what 13 defendants concluded. Realtime. 14 Defendants say you have no evidence that anybody knew 14:26:19 15 this at the company in the early stages. Well, that's just 16 not true. I mean, here we have an e-mail from April 2008, the 17 very beginning of our class period. It's from Mike 18 Koralewski, global head of quality, to David Eaglesham and he 19 said, hey, I see a bad trend, this is not a good trend inSTBi 14:26:40 20 values. Oh, and by the way, we have sufficient data, he's 21 saying. We have sufficient data, more than ten data points in 22 the monthly groupings to make real conclusions about this. 23 He's notifying one of the individual defendants at 24 the beginning of the class period. 14:26:55 25 It goes on. We don't have the slide, but in their 20 1 14:26:58 1 own LPM saga they talk about a hiccup inSTBi in 2008. Here, 2 in march 2009, they're talking about LPM process history -- 3 this is a slide they prepared -- and they say concerns raised 4 reSTBi in March of 2009. Okay? 14:27:14 5 Defendants told investors nothing. Not a word. 6 Here we go in May 2009. Mr. Koralewski, that global 7 director of quality for First Solar, he characterized LPM as a 8 rather serious problem. Then he said I'm going to meet with 9 Bruce Sohn and David Eaglesham and we're going to discuss this 14:27:40 10 stuff. This is a rather serious problem. And he said several 11 customers were complaining about the LPM problem. 12 Remember how we ignored the STBi data, ignored the 13 STBi data, and only paid attention when we got customer 14 complaints. That's what the e-mail said that I showed you 14:27:57 15 earlier. 16 What did defendants say at this point? They said in 17 the e-mail, please keep this issue confidential. They said 18 nothing, not a word, to investors. 19 Here we have individual defendant Zhu, and he is 14:28:16 20 being told by Larry Polizzotto, head of investor relations at 21 this point, he says I'm assuming you're aware of this large 22 warranty issue as we're going forward and preparing draft 23 answers for investors for the quarter. I assume you're aware 24 of this, right? In June of 2009. 14:28:32 25 What did they tell investors about this large 21 1 14:28:36 1 warranty issue? They didn't say a word. Not a word. 2 It gets worse. 3 Now we've got David Eaglesham in June 2009. He's 4 being told that it looks like it's affecting all our plants, 14:28:51 5 this LPM excursion. And so what's his response? Five bads: 6 Bad, bad, bad, bad, bad. 7 No question that he believed it was material. So 8 they must have told people at this point, right? No. Not a 9 word for another 13, 14 months before they said anything, even 14:29:07 10 about the existence of LPM. 11 And if there's any doubt at all that this was 12 material, you've got Bruce Sohn, the individual defendant, 13 he's president of the company. He's refusing to sign the 14 Sarbanes-Oxley certification. Why? Because lower power 14:29:24 15 module problem has not yet been disclosed. He won't sign. 16 There's no question in Q2 2009 the LPM defect was a material 17 problem to the company, and yet the company said nothing, 18 nothing, to investors. 19 In October 2009, now we have Defendant Gillette. 14:29:46 20 He's joining the company. Joining the company as the CEO. 21 He's being briefed about some of the issues at the company. 22 And Meyerhoff, another defendant, says to him, hey, just so 23 you know, Rob, we've got a problem here and it's called LPM. 24 It's not just a little problem, it's the biggest smoking gun 14:30:05 25 we have at this company. 22 1 14:30:06 1 So in October 2010, now you've got -- or 2009, you've 2 got the biggest smoking gun at the company. You must tell 3 investors then. Not a word to investors at this point. Not a 4 word for another nine months. Okay? 14:30:20 5 Defendants also quantify the problem and determined 6 LPM would cost more than $70 million, and they did that in 7 early 2010. Okay? 8 It's worse than not saying anything to defendants -- 9 to the investors and to the market because what defendants did 14:30:37 10 is they embarked on a plan to affirmatively conceal this 11 defect from the market. That was their plan. 12 Ahearn was told, hey, look, I think we can get away 13 with this because I don't think customers will detect this LPM 14 problem. So what does he respond? He responds, "Let's keep 14:30:59 15 our fingers crossed." That's -- that is defendant Ahearn's 16 idea when he's told it might not be a detectable problem to 17 customers. And there's absolutely no question here, Defendant 18 Sohn is part of this e-mail string. 19 LPP is another word they use for, I think, low power 14:31:17 20 panels. Disclosure needed, question mark. So far they say 21 our comms plan is geared to minimizing the likelihood that the 22 information get out in the public domain at all. That is the 23 cornerstone of their information plan: conceal it. 24 Now we've got Bruce Sohn, in discussing Q2 2009 14:31:42 25 earnings call, Sohn is told by Polizzotto, you know, maybe we 23 1 14:31:46 1 should stick something in there about LPM. Investors might 2 have questions about it and all. And he tells Polizzotto, 3 Defendant Sohn says there should not even be a question in the 4 list about this, as far as the public is concerned, it does 14:32:00 5 not exist. 6 That's their idea of disclosure. Disclosure needed; 7 apparently they didn't want to. And what was the result? All 8 references to LPM in that investor Q and A were deleted. They 9 were eliminated. 14:32:21 10 First Solar's executive staff, which comprised all of 11 the individual defendants, perpetuated this mantra of 12 concealment even as late as 2010. 13 Here we have Defendant Bruce Sohn saying we should 14 not be mentioning excursion publicly. E staff, that's 14:32:35 15 executive staff, has consistently and consciously made this 16 decision. They made this decision after they discussed it and 17 said don't say a word. Okay? 18 In Q2 2010 defendants were forced to publicly 19 acknowledge the LPM defect. This decision was driven by the 14:32:57 20 fact defendants could no longer conceal it. They knew that 21 unless they got out there in front of it and put their spin on 22 the story, it was going to break without them. It was that 23 bad. The defect was just overwhelming. And so they had to 24 say something at this point. Okay? This had nothing to do 14:33:14 25 with the materiality of the defect. They knew that it was 24 1 14:33:17 1 absolutely a material defect much earlier. 2 You saw Defendant Sohn's Q2 '09 refusal to certify 3 the Sarbanes-Oxley certification. That was more than a year 4 earlier. They disclosed it at this point because they had to 14:33:31 5 influence the story publicly. 6 They were getting these LPM questions from investors 7 and analysts and they had to get out in front of the story. 8 So let's talk about the disclosure. 9 The defendants went ahead and put a disclosure into 14:33:47 10 their 2010 10-Q. And it's up on the board. And at the same 11 time, Defendant Sohn went on to a Q and A with investors and 12 told everybody, oh, that four percent we're talking about from 13 June 2008 to June 2009, it's about 30 megawatts. 30 megawatts 14 is about 400,000 modules. So now what they've done is bounded 14:34:12 15 the problem. 16 Let's talk about the problems, the flaws, the falsity 17 with this particular statement. 18 Defendants say that LPM affected less than 4 percent 19 of the modules manufactured within the period. They bounded 14:34:25 20 it. Less than 4 percent. 21 Okay. 22 LPM could result in possible premature power loss in 23 the affected modules. They told us what affected modules 24 mean. We have no ambiguity. 14:34:37 25 LPM modules were produced during the year-long 25 1 14:34:40 1 period, that was a year ago. Now we're in June, July, 2010. 2 So we got that problem behind us a year ago. And we're well 3 under way to remediating the problem. We've bounded the 4 problem, we've put it behind us. That's what defendants have 14:34:54 5 said. And we've bounded it at 400,000 modules. 6 It's not true, Your Honor, and it never was true. 7 We saw the July 2009 population earlier. It was 2.9 8 million modules at that time. It didn't get smaller, it got 9 larger. Okay? 14:35:12 10 Let's talk about the four percent. 11 We've got four percent representing approximately 12 400,000 modules, right? They told investors that's what could 13 experience possible premature power loss. 14 But Mike Koralewski, head of global quality, in April 14:35:28 15 2010 says, yeah, the 415,000 is the limit we have at this 16 time. It's based on the probability of returns, not the total 17 LPM population. They did not tell investors they expected 18 400,000 modules to be returned, they told them that was the 19 number of modules that could possibly experience degradation 14:35:48 20 in the field. 21 Not true. 22 They knew exactly how many modules were affected. 23 Here, they provided this information, they provided this 24 information to Sohn and Eaglesham, and they saw negative 20 14:36:03 25 percentSTBi. We had a population of 3 million modules. 26 1 14:36:07 1 Negative 23 percent, which they say is 15 percent degradation, 2 okay, we're at 1.4 million. 3 So we're at 1.4 million of modules well outside 4 warranty. Not that could possibly experience premature power 14:36:21 5 loss. Well outside warranty. We're at 1.4 million. This is 6 the information that went to the individual defendants. 7 Here we are six months later in Q4 2010, and 8 defendants repeated the identical LPM disclosure. They 9 continued to repeat the same disclosure quarter after quarter 14:36:42 10 after quarter. Hey, less than 4 percent of modules, 400,000 11 modules, 30 megawatts. That's where we are, we've bounded the 12 problem. 13 They repeat that disclosure all the way through Q3 14 2011. Six consecutive quarters the defendants repeated it. 14:36:58 15 And what did they know in Q4 2010 when they repeat 16 this? They knew the number of LPM out there, warranty worse 17 than ten percent, was 500,000 in addition, in addition, to 18 what was in the model. Okay? 19 And make no mistake, these were bad modules. This is 14:37:20 20 warranty worse than ten percent, not what could possibly 21 experience premature power loss. 22 In addition, defendants knew there was quite a bit of 23 financial impact from this. You see they're experiencing lost 24 revenue, they're a supply-constrained company, they're 14:37:35 25 experiencing loss revenue of 90 million in 2000 in Q2, and 27 1 14:37:40 1 that's already gone up to 130 million in Q4 just from the lost 2 revenue alone. Massive financial impact. 3 Defendants point to the Monte Carlo method as a 4 model, as a cure-all for the false statements. We ran this 14:37:58 5 Monte Carlo model. It doesn't help them here because they ran 6 the Monte Carlo model and they plugged in the ranges, and what 7 did they get? They got an effective LPM volume of 1.78 8 million modules. Not 400,000. That doesn't help them. 9 Now I want to move to the discussion about the 14:38:19 10 accrual. I explained why the LPM statements were false and 11 misleading. There were other false statements, of course. 12 I'm going to highlight some of them, but I want to talk about 13 the accrual and discuss why accrual was misrepresented. 14 Here we've got the accrual in Q2 2011 for their known 14:38:38 15 LPM claims. Now defendants used an organization in Germany 16 called Global Technical Services. They went by the 17 abbreviation GTS. This was an outfit that was responsible -- 18 within First Solar, responsible for processing all of the 19 claims, handling all the remediation. This was sort of the 14:38:55 20 nerve center for the remediation, GTS. So of course Global 21 Technical Services was the source for all of the return 22 information. They were able to tell the company here's how 23 much more we expect to have to remediate. 24 What did they tell them in Q2 2010 -- Q2 2011? They 14:39:13 25 said, so, we're going to have to -- we estimate we're going to 28 1 14:39:17 1 have to remediate an additional 235 megawatts. That's 3.1 2 million modules. So what did the company base its accrual in 3 Q2 2011 on? 92 megawatts. 1.2 million modules. Okay? This 4 is a perfect example, and there are many others which I will 14:39:36 5 discuss, of why this process was not a bottoms-up process. 6 THE COURT: You're at about 20 minutes now, so we 7 probably need to move along. 8 MR. DROSMAN: Okay. 9 THE COURT: I've read most of this in the brief, but 14:39:47 10 I do want you to be able to highlight it. 11 MR. DROSMAN: Okay. Sure. 12 Let me just finish my discussion of LPM because I 13 think it's important to discuss. 14 Likewise, in Q3 2011, they were told by the GTS 14:40:01 15 outfit, hey, we have 206 megawatts we're going to need to use 16 to replace modules. So what did the company base its accrual 17 in Q3 2011? They based it on 120 megawatts, 1.6 million 18 modules. Unquestionably under-accrued. This is not a 19 bottoms-up process. This is senior management deciding, no, 14:40:19 20 we're not going to take that kind of accrual. 21 In Q2 2011 defendants have shipped all modules 22 reserved for. The only way -- you see what Mark Widmar, the 23 CFO at this point, he's saying, hey, look, not certain what 24 that amount could be, but we have shipped all modules reserved 14:40:41 25 for. Any additional shipments will be a P & L hit. There's 29 1 14:40:45 1 no ambiguity. So the only way they could be properly accrued 2 is if they had absolutely no remediation to undertake. Let's 3 see if that's the case. 4 Well, this is what -- this is what they knew. 14:40:57 5 Defendants knew there were thousands of remaining claims to 6 remediate in Q2 2011. And, for example, 2200 had not even 7 been reviewed. 283 had already been committed to. They 8 promised customers we will remediate 283 sites. But we're not 9 going to accrue for that. 14:41:17 10 And so we asked -- we asked Mr. Kallenbach at his 11 deposition, what about these 283 sites? I mean, were you 12 committed to review those? And he said, no, no, you can see 13 on the e-mail that it just says the P and P had committed to 14 remediate them. We weren't committed, legally obligated, to 14:41:38 15 remediate those sites until I personally sent a letter to the 16 CEO telling him we were under obligation to remediate those 17 sites. 18 Guess what. In every instance, for all of those 283 19 sites, there is a letter that goes out in July of 2011 from 14:41:53 20 Mr. Kallenbach to the CEOs of these companies committing to 21 remediate. You can see he's committing to remediate this 41 22 sites for the customer Gehrlicher in July. We have it for 23 every single of those 283 sites. 24 There's absolutely unequivocally no excuse for not 14:42:13 25 accruing for these 283 sites. 30 1 14:42:16 1 This is very important. I want to talk about the 2 issue with the warranty section of First Solar's financial 3 statements. 4 They provided this category called settlements. You 14:42:31 5 see this is in their 10-K. So, they're comparing settlements 6 from one year to the next. They appear to be rising. 7 Settlements are simply the number of replacement modules 8 they're shipping. Many are LPM replacement modules. 9 So settlements were the only way the company could 14:42:47 10 convey to the outside, to investors, how many replacement 11 modules were shipped. And of course analysts were paying 12 attention to this. Here you've got this one analyst saying, 13 hey, look, I've noticed ballooning warranty settlement 14 expenses, that raises concern over the module reliability, and 14:43:02 15 he's recommending sell. 16 Internally, the defendants are recognizing this is a 17 huge problem. This is -- it's a game of Whac-A-Mole. 18 So we didn't tell the truth with the less than 4 19 percent statement, we're going to under-accrue some expenses, 14:43:14 20 but now we've got this warranty settlement thing. That's 21 going to bubble up and blow the statement that we've made. 22 So what do they do? They say uh-oh, this trend is 23 bad, and if not bounded people will speculate the problem is 24 growing rapidly; it's not less than 4 percent as we've been 14:43:32 25 telling people. 31 1 14:43:32 1 So they engage in an accounting scheme to mask their 2 increasing warranty returns. In Q4 2010 they change their 3 warranty methodology. No disclosure at all. 4 In fact, defendants don't say anything in the reply 14:43:45 5 brief about the fact that defendants failed to disclose this. 6 There's no -- you can -- you can quarrel that they absolutely 7 had no basis for this. You can quarrel with whether there was 8 a basis for this warranty change. You cannot quarrel with 9 their obligation to disclose this warranty change. It's 14:44:03 10 absolutely crystal clear. And they don't disclose it. And 11 why don't they disclose it? Had they not changed their 12 warranty methodology they would have had to have reported the 13 red. Because they disclosed it, what investors saw was the 14 blue. It painted an absolutely false picture of what their 14:44:21 15 settlements, their warranty returns were. 16 And we asked why did they make this change? Why did 17 First Solar change its methodology with respect to the LPM 18 excursion? And guess what the controller said, Bryan 19 Schumaker? He said, yeah, I don't know, this is another 14:44:38 20 example of that bottoms-up process, I suppose, they were 21 talking about. I don't know, the executives told us we had to 22 do it and I'm just following orders. 23 So that's LPM in a nutshell. 24 There's so much more evidence, Your Honor. It's in 14:44:51 25 our brief. I'm not going to belabor the issue. But I will 32 1 14:44:57 1 turn it over to my colleague now, Mr. Brooks. 2 THE COURT: All right. 3 MR. BROOKS: Good afternoon. I also have a 4 PowerPoint presentation. For the sake of brevity, and I think 14:45:19 5 because the Court has questions, I'll try to get through this 6 without it. 7 I want to address a few of the things Mr. Eth said 8 and a few things they put in their brief. 9 In the Ninth Circuit it's very clear that a plaintiff 14:45:29 10 can show loss causation by establishing that the defendant 11 misrepresented or omitted the very facts that were a 12 substantial factor in causing the plaintiff's economic loss. 13 That's what we did here. 14 Now, Your Honor, in denying the defendants' motion to 14:45:44 15 dismiss, said that loss causation had been adequately alleged 16 because the stock price declines were the direct result of 17 revelations about the extent of the remediation costs that 18 defendants had concealed for years. In other words, 19 defendants' fraudulent concealment of true remediation costs 14:46:02 20 ultimately caused the very losses suffered by plaintiffs and 21 the class. 22 This has not changed since the Court wrote that in 23 denying the motion to dismiss. 24 The defendants aren't here attacking the evidence 14:46:12 25 that links each of the disclosures to the fraud. What they're 33 1 14:46:15 1 saying, Your Honor, is these disclosures on their face are 2 insufficient under Ninth Circuit law. And they're wrong. But 3 they haven't given any reason why the Court should revisit its 4 prior ruling. They're not attacking the evidence we've 14:46:29 5 supplied. They haven't commented on it. They don't want to 6 comment on it because it's very clear it links the fraud to 7 each disclosure. 8 They're not -- there's additional information. Now 9 we have an expert who has shown each of the disclosures is 14:46:43 10 statistically significant -- or each of the declines is 11 statistically significant so there's a 95 percent chance or 12 certainty statistically that these declines were from company 13 specific announcements, and we've provided the evidence 14 linking the declines. 14:47:02 15 The defendants have also ignored the materialization 16 of the risks factor, and I want to talk about that just for a 17 minute. 18 They say in their brief the Court should just ignore 19 that. They haven't said we didn't satisfy the materialization 14:47:19 20 of the risk. Clearly we do. We also satisfy the corrective 21 disclosures. Nuveen, the Ninth Circuit case, recently 22 discussed the doctrine materialization of risk with approval. 23 Since they don't dispute -- 24 THE COURT: But in Footnote 5 of Nuveen they said 14:47:33 25 they're not adopting it; right? 34 1 14:47:37 1 MR. BROOKS: Correct, Your Honor. They said they're 2 not making a comment on it either way. But the majority of 3 the district courts to consider it in the Ninth Circuit have 4 adopted it. 14:47:44 5 I'm pointing that out, Judge, because they don't 6 dispute we meet the standard. We don't need it here because 7 it's very clear that each of the declines is linked to the 8 fraud. 9 Mr. Eth talked about Metzler and Oracle and Loos and 14:48:00 10 Apollo. All of those cases say expressly plaintiffs do not 11 have to show that the market knew that there was a fraud 12 committed in order to have loss causation. They all say it. 13 And what the defendants ignore are cases like Daou, 14 the first case after Dura was decided in the Ninth Circuit 14:48:19 15 where the court found disclosure of true financial condition 16 of the company was enough when the complaint adequately 17 alleged a link. 18 So you have to have both a disclosure and adequately 19 alleged link. If you have a disclosure that doesn't mention 14:48:36 20 the fraud and no link, you're out of luck. 21 Here we have the link. 22 If you have a disclosure that does mention the fraud, 23 you don't have to provide that extra link because they've come 24 out and said it. Rarely do they do that, Your Honor, because 14:48:49 25 they don't want liability. They're not going to admit fraud 35 1 14:48:52 1 when they know and their lawyers, their corporate counsel, 2 know that doing that is going to expose them to extra 3 liability. 4 Berson is another case, Judge, where the Ninth 14:49:07 5 Circuit upheld the complaint because it alleged -- and this is 6 a case where the primary customer of the company was the 7 government, and the government could initiate the stop-work 8 orders at any point, and they were relying on the government's 9 orders, they initiated the stop-work orders. That ended up -- 14:49:23 10 they adequately alleged that that ended up causing them to 11 miss their revenues. They announced that they missed their 12 revenues by 25 percent and the stock price declined, and the 13 court, the Ninth Circuit, upheld the loss causation because 14 the link was there. The stop-work orders never made it into 14:49:39 15 the market, Your Honor. The link was there and it was 16 adequately alleged in the complaint. 17 Here we're at summary judgment. We've shown it for 18 each of the disclosures. And so the law is not what they say 19 it is. 14:49:52 20 And going all the way back to Basic, Judge, the 21 courts are clear that there are no magic words, there's no 22 particular specific language that you need, and there's more 23 than one way to prove loss causation. 24 In Gilead, for example, there was a disclosure -- 14:50:08 25 this was an off-label marketing case. There was a disclosure 36 1 14:50:11 1 of two instances of off-label marketing. The market didn't 2 react. Doctors reacted and stopped buying the product for 3 off-label purposes, and ultimately that worked its way through 4 later to the finances and the true financial condition came 14:50:26 5 out and the stock price declined. 6 So there are many different ways to skin a cat with 7 loss causation. 8 Here we have, for example, omissions of an LPM 9 problem. And in July 2010 they disclosed an LPM problem and 14:50:41 10 they disclosed $100 million guidance reduction. The LPM 11 problem is the very thing they had omitted. Now, they lied 12 about the size of the problem and the scope of the problem, 13 but the market still cared a lot about that problem. 14 In addition, we've shown, and they haven't refuted it 14:50:58 15 at all, that that guidance reduction was due to expected sales 16 loss because of the LPM problem. They were going to have to 17 commit $100 million worth of modules to remediate instead of 18 selling them to customers. They were going to lose $100 19 million. We've done this with each of the disclosures. The 14:51:20 20 last disclosure, I mean for them to say that they never 21 retracted the 4 percent is just wrong. In every Q and K where 22 they discussed the LPM problem up to February 2012, they had 23 that 4 percent disclosure. They kept it out of that 10-K. 24 In addition, as for correcting statements, they took 14:51:42 25 a $70 million charge on their warranty accrual. That's an 37 1 14:51:49 1 admission that the accrual is wrong. 2 Now, the other thing they did is they changed their 3 warranty accrual, both going forward for the heat degradation 4 problem, they were going to accrue now 1 percent more going 14:52:02 5 forward, and they did it backward, too, Your Honor. So they 6 said we need to accrue for modules that should have been 7 accrued at the time we sold them, we need to accrue now an 8 extra 1 percent in order to cover the degradation from those 9 modules. Your Honor, that is a restatement. That is a 14:52:20 10 restatement. 11 So when they stand up here and say there are no 12 corrections of these problems, that simply isn't true. When 13 they stand up here and say we need a disclosure that fraud was 14 committed, that's not true when -- even if the standard is in 14:52:36 15 every case you have to show the underlying practice, we have 16 that here. The LPM problem was concealed; it was disclosed. 17 The LPM problem was minimized; it is was disclosed. The heat 18 problem was concealed; in the end it was disclosed. 19 There's -- it's a one-to-one disclosure. 14:52:55 20 Some of the other disclosures that in the interim are 21 connected through either statements by defendants -- so if you 22 look at the February 2011, they miss guidance in February 23 2011. They specifically attributed that to the LPM problem. 24 They reduced their guidance in May 2011. The defendants admit 14:53:17 25 in their brief they did that because of the LPM problem. 38 1 14:53:21 1 The dismissal of Gillette. The stock price declined 2 because the analysts knew there was a huge problem at the 3 company. It portended trouble to come. One day later they 4 issued -- they preannounced their 3Q '11 financials, and the 14:53:38 5 financials were terrible because of LPM and because of heat 6 and because of a couple other defects that the company had, 7 yet the stock went up because the market had already accounted 8 for these problems when it went down in response to Gillette's 9 termination. 14:53:55 10 More trouble came just as the analysts predicted. 11 In December 2011, again, they reduce guidance again. 12 We've shown that is connected to problems. And, of course, we 13 have the February 29th, 2012 disclosure. 14 So they cited Loos to say analysts' speculation isn't 14:54:15 15 enough, and I think that's a gross oversimplification. 16 In Loos the plaintiffs tried to add that causative 17 link by pointing to later disclosures. In that case they 18 waived the argument in district court and didn't show what 19 happened to the stock price. But the Ninth Circuit didn't 14:54:33 20 reject that argument because you can't look at other 21 disclosures to see if there's a link for a prior disclosure. 22 They rejected the argument for those two other reasons. 23 Same with in Metzler, Judge, another case they 24 love -- 14:54:48 25 THE COURT: I've read every one of these cases, 39 1 14:54:50 1 Counsel, so I do know the points you're making. 2 MR. BROOKS: Your Honor, I'll stop there since we've 3 gone over the time. If the Court has any questions -- if you 4 want to talk to defendants first -- 14:55:01 5 THE COURT: I will have some questions for you. 6 MR. BROOKS: Should I stay here? 7 THE COURT: No, let me talk to defendants first. 8 I want to talk first about the loss causation. 9 Traci, would you hand these to counsel. 14:55:43 10 You'll have to forgive my hand-drawn hypothetical, 11 but as I was thinking through loss causation I thought I ought 12 to illustrate the hypothetical I want to ask you about, 13 Mr. Eth. 14 So I've just made this up, but it's to make sure I 14:55:57 15 understand your position. 16 So my hypothetical is an assumption that on January 1 17 of 2010 I sold stock in a manufacturing company that was going 18 to manufacture widgets. Both of these timelines start January 19 1, 2010. 14:56:17 20 MR. ETH: Sold stock. 21 THE COURT: I sold stock. 22 And the assumption I've made is that I lied when I 23 sold the stock about the manufacturing capacity of my plant. 24 I overstated it. Knowingly overstated it. And the result of 14:56:32 25 my overstating the manufacturing capacity of the plant was 40 1 14:56:36 1 that the stock sold at $50 per share. That's the top graph. 2 MR. ETH: Yes. 3 THE COURT: On the basis of my misrepresentation, 4 there were projected revenues that were made based on the 14:56:51 5 manufacturing capacity that would develop over time in this 6 plant which I had overstated. So in the bottom chart the top 7 line is the projected revenue line based on my 8 misrepresentation. 9 Now, this is an oversimplification. Let's just 14:57:12 10 assume we fast forward a year. One year out revenues are not 11 meeting their projection because the plant's manufacturing 12 capacity is not what it would have been projected to be. So 13 my assumption is there is a $1.6 million shortfall from 14 projected revenues a year out. The reason is because the 14:57:33 15 plant doesn't have the capacity. But for assumption purposes, 16 that's not known. Nobody knows why there's been a $1.6 17 million revenue loss. All that's disclosed is 1.6 million 18 shortfall. The stock price drops $10 per share as a result of 19 that. That is B on the top chart reflecting the shortfall, 14:57:56 20 which is A on the bottom chart. 21 Fast forward another year. My assumption is that at 22 the end of two years it's disclosed not only that there's a 23 larger shortfall, but that I misrepresented the capacity of 24 the plant. So the stock price drops another $15 per share at 14:58:16 25 two years. That's C on the top chart. 41 1 14:58:19 1 MR. ETH: Yes. 2 THE COURT: So even though the shortfall at the end 3 of Year 1 was based on the actual manufacturing capacity which 4 I had misrepresented, that fact isn't disclosed. All that's 14:58:37 5 known is there is a shortfall. 6 Now, to talk through transaction and loss causation, 7 my understanding of transaction causation is the mere fact 8 that I misled investors into buying my stock for $50 per share 9 is not enough for them to prove a securities fraud claim 14:58:58 10 against me. I got them into the transaction with my 11 misrepresentation, so that's transaction causation, but they 12 also have to prove loss causation. I assume you agree with 13 that. 14 MR. ETH: Yes. 14:59:12 15 THE COURT: And that's what Justice Breyer meant in 16 Dura when he said that the securities fraud laws are not an 17 insurance policy for any losses that might come. 18 MR. ETH: Correct. Agreed. 19 THE COURT: For example, if the stock were to lose 14:59:25 20 value not because of my misrepresentation but because a better 21 project comes out than my widgets and I lose market share, 22 plaintiffs in a securities fraud case couldn't recover for 23 that because the cause of that loss has nothing to do with my 24 misrepresentation. Agreed? 14:59:44 25 MR. ETH: Yes. Yes. 42 1 14:59:46 1 THE COURT: But I think your position is that the 2 loss at B -- that is, the loss at the end of Year 1 that is 3 clearly because there was less manufacturing capacity -- could 4 not be recovered from me because my misrepresentation of 15:00:04 5 capacity has not been disclosed. So even though I caused the 6 drop, no plaintiff could recover it from me under Ninth 7 Circuit law because my misrepresentation is not public. Do 8 you agree with that? 9 MR. ETH: Agree with it partially. Partially. 15:00:21 10 THE COURT: Okay. 11 MR. ETH: Reason I say partially is because of C. 12 Because of C. Because that would transform it into the Loos 13 situation. Because what happened in Loos is there's an 14 announcement of there may be a problem and the stock fell. 15:00:35 15 What the plaintiffs didn't do is include the restatement, 16 which was the revelation correcting what had happened before. 17 The Ninth Circuit left open whether once you have that 18 corrective disclosure, then as a matter of causation could you 19 then recover for something besides just C? So the key is what 15:00:59 20 correction -- was there a corrective disclosure. 21 THE COURT: Well, I think you're saying that until it 22 is disclosed that I misrepresented manufacturing capacity, 23 there isn't a loss causation. 24 MR. ETH: Up until C, correct. That is correct, Your 15:01:12 25 Honor. 43 1 15:01:13 1 THE COURT: So if this -- in this hypothetical, if a 2 lawsuit was brought in June of 2011 for the $10 per share drop 3 which is B, those plaintiffs are out of luck; even though the 4 very thing that caused the drop was the fact that I misstated, 15:01:31 5 they can't recover for that loss because the fact I misstated 6 that hasn't been disclosed. 7 MR. ETH: Yes. That's the financial impact test, 8 which the plaintiffs have argued for here and which has been 9 discussed by the Ninth Circuit twice and rejected twice. 15:01:51 10 Rejected twice. 11 Financial impact of the practice is not what governs. 12 It's not the financial impact because this is a fraud on the 13 market efficient market case. Why did the market fall? And 14 it's a limitation on the damage in a fraud case. So it's a 15:02:07 15 financial impact discussed in Oracle, discussed in Loos, where 16 the Court says we reject that assertion. 17 That policy argument, that policy issue has been 18 raised with the Ninth Circuit twice, and that argument has 19 been rejected. 15:02:24 20 THE COURT: Well, let me ask you this question, then. 21 What do you make of Daou where the district court in Daou said 22 that the district court threw out plaintiffs' claims in Daou 23 because the third amended complaint, and I'm now reading from 24 the district court opinion which is quoted on page 1026 of 15:02:47 25 Daou, does not allege that there were any negative public 44 1 15:02:50 1 statements, announcements, or disclosures at the time the 2 stock price dropped that defendants were engaged in improper 3 accounting practices. 4 So the district court says the fraud wasn't 15:03:03 5 disclosed, no loss causation, threw it out. 6 The Ninth Circuit reversed. 7 MR. ETH: Yes. 8 THE COURT: This is the sentence I'd like your 9 comment on. 15:03:11 10 The Ninth Circuit said, plaintiffs allege that these 11 disclosures of Daou's true financial health, the result -- 12 they use the result, not impact -- the result of prematurely 13 recognizing revenue before it was earned led to a dramatic 14 negative effect on the market causing Daou stock to decline to 15:03:33 15 3.25 per share, which was sufficient for loss causation. 16 MR. ETH: Yes. So here's what was going on in Daou: 17 In Daou the Ninth Circuit didn't change or adopt a different 18 test. What the Ninth Circuit said is we read the complaint, 19 third amended complaint in that case, differently from the way 15:03:53 20 the district court record read it. 21 In particular, what the Ninth Circuit said is if you 22 look at another account that was disclosed in that same 23 disclosure called the work-in-process account, what the Court 24 said is that that reveals they're booking revenues that they 15:04:11 25 hadn't earned because they were using a 45 1 15:04:12 1 percentage-of-completion method for booking revenues. 2 And this is stated in Metzler -- 3 THE COURT: I think it's incorrectly stated in 4 Metzler, because in Daou what the Ninth Circuit was saying is 15:04:25 5 not that the fact that this $10 million account was growing 6 was directly due to improper accounting was disclosed to the 7 market, they're not concluding it was disclosed to the market, 8 they're saying it is alleged in the complaint. Just like the 9 plaintiffs here alleged it. So there is no market disclosure 15:04:46 10 of that fact in Daou. 11 MR. ETH: But what Loos and Metzler say about Daou is 12 you can infer accounting fraud -- infer accounting fraud -- at 13 the pleading stage. That actually was issued before Dura and 14 then amended after Dura. So what they added to the case was 15:05:06 15 some indication, because it's the pleading stage. They added 16 that language, Ninth Circuit added that language. But the way 17 the Ninth Circuit itself has interpreted Daou, the way they've 18 interpreted Daou is you could infer accounting fraud because 19 they released data about a different account in a balance 15:05:24 20 sheet entry that, according to the Ninth Circuit, shows that 21 they were booking revenues that hadn't been earned given the 22 accounting method that was being used. That's what the Ninth 23 Circuit has said about Daou -- 24 THE COURT: I know they've said that. 15:05:39 25 MR. ETH: -- Metzler and Loos. Metzler and Loos. 46 1 15:05:43 1 THE COURT: I agree. I think they're wrong. I think 2 it's a mischaracterization of Daou. But I want to ask you in 3 a minute what we do with that if I conclude that. 4 First let me ask you about Nuveen. I think your 15:05:58 5 answer to Nuveen is going to be this isn't an efficient 6 market. 7 MR. ETH: That's correct. And I can explain why it 8 matters. 9 THE COURT: I think I know why you're going to say it 15:06:07 10 matters. But Nuveen cites to Judge Scirica opinion in the 11 Third -- 12 MR. ETH: McCabe versus Ernst and Young. 13 THE COURT: That's not the only Ninth Circuit case 14 that cited to McCabe. In fact, it's also cited -- 15:06:18 15 MR. ETH: Livid versus Salomon -- 16 THE COURT: -- Gilead. 17 MR. ETH: Yes. 18 THE COURT: Favorably in Gilead. The test Judge 19 Scirica describes in McCabe that is quoted in Nuveen is this: 15:06:36 20 Put another way, a plaintiff can satisfy loss causation by 21 showing that the defendant misrepresented or omitted the very 22 facts that were a substantial factor in causing the 23 plaintiffs' economic loss. 24 So what it focuses on is what facts caused the loss, 15:06:57 25 and were those facts misrepresented by the plaintiff? If so, 47 1 15:07:01 1 there is loss causation. 2 So in my hypothetical -- 3 MR. ETH: Yes. 4 THE COURT: -- because the fact that caused the loss 15:07:08 5 was the insufficient manufacturing capacity and that's what 6 was misrepresented, I think McCabe would say you get to 7 recover B in my hypothetical because the very facts 8 misrepresented were those that caused the loss. 9 What do I do with Nuveen and with Gilead, which 15:07:25 10 isn't, by the way -- I think Gilead is an efficient market 11 case. 12 MR. ETH: Yes, it is. 13 THE COURT: -- that cite this language from McCabe 14 that seems quite different from the language in Metzler and 15:07:37 15 its progeny? 16 MR. ETH: Sure. Nuveen, page 1119 of Nuveen uses the 17 word "typically." Says typically you need a corrective 18 disclosure, which is exactly what I was talking about. It 19 cites to another Ninth Circuit case Livid versus Salomon Smith 15:07:56 20 Barney. 21 Footnote 1 of that case talks about the distinction 22 between private securities and public securities. So does the 23 McCabe case from the Third Circuit. Both those cases talk 24 about that. So that's where Nuveen and its Alameda County 15:08:13 25 bonds go. 48 1 15:08:14 1 The Loos case doesn't say we've got a bunch of 2 different tests, there's a lot of ways to skin a cat. Loos 3 case 887 says "our precedent requires." It flat out says 4 that. 15:08:25 5 Gilead. Gilead, there was a corrective disclosure. 6 There's an FDA warning letter. What the court held is a brief 7 temporal gap, the way the court puts it, a brief temporal gap 8 between a corrective disclosure and when the market can figure 9 out what it means, very highly technical, is okay at the 15:08:47 10 pleading stage. That's what the Court found. That's what 11 Gilead's about, that's what Nuveen is about. 12 And the one time an efficient market case in the 13 Ninth Circuit talks about materialization of the risk in the 14 Ninth Circuit is Apollo where it says, well, there are other 15:09:05 15 tests other circuits use and one of them is materialization of 16 the risk. That's in deciding if the Ninth Circuit now will, 17 starting in December 2014, will use 9(b) for loss position. 18 They mentioned materialization of risk in the context of that 19 risk. 15:09:24 20 THE COURT: I read Apollo, too, so I understand that. 21 What do you make of Berson, Judge Kozinski's opinion in 22 Berson? 23 MR. ETH: In Berson the company made a misleading 24 statement about backlog, as if backlog included all sorts of 15:09:39 25 orders. Then they came out with another statement that says, 49 1 15:09:41 1 well, what we said about backlog, it doesn't really include 2 stop-work orders, which is 80 percent of the business, which 3 turns the company into a ghost town. So for pleading 4 purposes, some indication Judge Kozinski and other judges 15:09:56 5 working on the panel said that's enough because of what the 6 meaning of the word "backlog" is and how it revealed they used 7 it in a different way. 8 THE COURT: Well, the way that Judge Kozinski 9 described his holding on loss causation is this. He says the 15:10:11 10 complaint describes the stop-work orders in detail, the orders 11 that really made the backlog worthless. 12 MR. ETH: Yes. 13 THE COURT: Explains that the order -- this is the 14 complaint, not the public disclosure. Explains that the 15:10:26 15 orders halted a significant amount of work, alleges that the 16 reduced workload, not the disclosure of an incorrect 17 definition of backlog, alleges that the reduced workload 18 caused revenue fall by 25 percent, and claims that this 19 revenue reduction caused the stock price to drop sufficient 15:10:50 20 for loss causation. 21 So it was the fact of what the true revenue was that 22 led to the stock price drop that Judge Kozinski said there's 23 loss causation. 24 MR. ETH: Judge Kozinski goes on in that case, excuse 15:11:06 25 me, to point to a conference call in which the defendants 50 1 15:11:10 1 described what backlog means and that it doesn't include -- it 2 doesn't include those stop-work -- that it did include the 3 stop-work orders. So that is in there as a corrective 4 disclosure. 15:11:27 5 THE COURT: Well, he doesn't go on to do that because 6 I was reading right at the end of his opinion. You're 7 saying -- 8 MR. ETH: Perhaps earlier. It's in the ruling. 9 THE COURT: But he doesn't seem to attach any -- I 15:11:36 10 haven't -- I don't remember that. I'll go back and reread it. 11 He doesn't seem to attach any significance to that when he 12 says the facts misrepresented led to a drop in revenue, led to 13 a drop in stock price, and that's sufficient for loss 14 causation. 15:11:52 15 MR. ETH: Of course that was still at the Sohn 16 indication point. But nevertheless, there was a correction in 17 there in terms of the market learning, oh, backlog means this? 18 We thought it meant that. 19 THE COURT: If I conclude that Daou and Nuveen and 15:12:14 20 Gilead and Berson are inconsistent with Oracle and Metzler and 21 Apollo and Loos, what do I do? 22 MR. ETH: I think you grant summary judgment and let 23 the plaintiffs appeal. That's what you do. Because what we 24 heard from the plaintiffs is the law isn't what they say it 15:12:35 25 is. I'm going to go with the four Ninth Circuit cases that 51 1 15:12:38 1 are most recent that are right on point in the public market 2 context. That's what I'm going to go with. 3 THE COURT: What do I do with the prior panel rule 4 that says -- the prior panel rule says -- 15:12:51 5 MR. ETH: Yes -- 6 THE COURT: -- if you have panels in a Court of 7 Appeals that disagree with each other, you go with the earlier 8 decision because the subsequent panel can't overrule circuit 9 law. 15:13:01 10 MR. ETH: That's right. Which means they have to be 11 harmonized. For them to be harmonized, we've seen exactly how 12 the Ninth Circuit has harmonized. It's not how I read Daou, 13 it's how the Ninth Circuit reads Daou. 14 The Ninth Circuit has surveyed all of these cases, 15:13:16 15 loos and Apollo. They're aware of all these cases. So do -- 16 are the Ninth Circuit judges and four panels violating their 17 oath? I don't think so. They're reading them consistently 18 with what they're doing, and what they're doing is stated in 19 black and white. Black and white. So -- 15:13:36 20 THE COURT: But that's a subsequent decision. You 21 agree those are all after Daou? 22 MR. ETH: Yes. They're the ones that take into 23 account all the prior decisions and come up with a very clear 24 statement. 15:13:45 25 THE COURT: What you're saying is these two lines of 52 1 15:13:48 1 cases are not in disagreement -- 2 MR. ETH: Correct. 3 THE COURT: -- that I should conclude that. 4 MR. ETH: Correct. 15:13:52 5 THE COURT: If I do conclude there is agreement, 6 though -- 7 MR. ETH: Grant summary judgment and let them appeal, 8 and the Ninth Circuit will sort it out for you. 9 THE COURT: Okay. I've got another question or two 15:14:02 10 for the defense, but let me ask the plaintiffs a question 11 while we're on loss causation. 12 MR. ETH: Yes. 13 THE COURT: I think where I want to -- I want to 14 start on loss causation, but I have another question that one 15:14:35 15 or the other of you hopefully can address as well. 16 I read the opinion from Steinholt. The law, Daou, 17 says that even though you don't have to prove that the stock 18 price was the sole cause -- I'm sorry, the misrepresented 19 facts were the sole cause of the drop in stock price, you have 15:15:01 20 to prove that they were a substantial cause of the drop. 21 Steinholt is pretty careful in his wording. He says that with 22 respect to three of the disclosures, second quarter 2010, 23 fourth quarter 2010, and fourth quarter 2011, the disclosure 24 of the truth explains all or at least a substantial portion of 15:15:36 25 it. That sort of sounds like a substantial cause opinion. 53 1 15:15:40 1 But then he says -- he uses different words when he 2 talks about the first quarter 2011 and the December 14th 3 update. He doesn't say that the revelation of the truth 4 explains all or at least a substantial portion. He says it 15:15:57 5 contributed to. 6 How does that establish that it was a substantial 7 cause of those two drops in stock price? 8 MR. BROOKS: Well, Your Honor, ultimately when we -- 9 so when we're talking about loss causation it is intertwined 15:16:16 10 with damages; right? Because the stock price declined, if 11 stock declines $10 it may be that only three of those dollars 12 of the decline are attributable to the fraud and seven are to 13 other factors or other statements that are released on that 14 day. So -- and that's just a hypothetical out of the air. 15:16:37 15 So what Mr. Steinholt is saying on those days, the 16 two days of March -- of May 2011 and December 2011 is that 17 there is information that was material that went into the 18 market that related to the fraud, but if you're looking at the 19 entire decline, I can't say that it substantially caused that 15:17:00 20 entire decline. What we would do later at the damages stage 21 is parse it out. 22 So he does some of this work in his report. Just as 23 examples, I think in May he did an extrapolation of what the 24 expected impact would be on the shares if you multiplied out 15:17:24 25 the EPS hit -- the portion of the EPS hit that was due to the 54 1 15:17:28 1 fraud. And he does a similar thing, I believe, in December. 2 THE COURT: Sounds as though you're thinking that 3 there's going to be a second trial in this case if I deny 4 summary judgment, a damages trial. 15:17:41 5 MR. BROOKS: I don't believe so, Your Honor. 6 THE COURT: Where else does Steinholt express his 7 opinion that's disputed by defendants and a fact finder decide 8 who's right? 9 MR. BROOKS: At the trial. So this is a declaration 15:17:53 10 he put in at summary judgment. We haven't done our experts. 11 The way that confounding factors work, and it's a damages 12 question and not a loss causation question, is if confounding 13 factors are identified, they're taken out of the stock price 14 decline and what's left over is the amount of the decline. 15:18:15 15 But what's clear from his opinion is they contributed to the 16 decline. It's a 100 percent cause of the portion of the 17 decline that is due to the fraud. That's a substantial factor 18 of that part of the decline. The law is very clear that there 19 can be confounding factors and loss causation. 15:18:35 20 THE COURT: Well, here's my problem. We agreed at 21 the time of the case management order we were only going to do 22 summary judgment motions once. The defendants made a Celotex 23 motion putting you to your proof. I've now got an opinion 24 from Steinholt that they say you couldn't even introduce, but 15:18:55 25 you put it in, that doesn't close that gap on substantial 55 1 15:18:59 1 cause for at least these two dates. When do they ever get a 2 shot at summary judgment on that issue if your answer is, 3 well, that's in his next opinion, that's not in this one? 4 MR. BROOKS: Their shot is now, Your Honor. He has 15:19:13 5 put into his opinion a quantification of a portion of the 6 stock price decline that was due to the fraud. So they can 7 take a shot at that. It's 100 percent of that portion of the 8 decline. So they can take a shot at that now -- 9 THE COURT: Well, but, okay, so they're taking a shot 15:19:31 10 at it now. So when I go back into my office and I ask where 11 have you met your Celotex burden in proving -- if I go the way 12 I was talking about with Mr. Eth on the loss causation cases, 13 I want to go back and reread them in light of what he said. 14 But if I go that way, then what I've got to ask myself is 15:19:49 15 where have you come up with enough evidence for a reasonable 16 jury to find that a particular disclosure that resulted in a 17 stock drop resulted in the misrepresentation being a 18 substantial cause of that stock drop? How do I conclude that 19 you've put in enough evidence when he isn't using language 15:20:10 20 close to that? 21 MR. BROOKS: You look at the substance of the 22 opinion, Your Honor. The substance of the opinion and the 23 evidence -- supported by the evidence, identifies the portion 24 of, for example, the EPS miss that's due to the fraud. That 15:20:27 25 was caused by the fraud. He then extrapolates that out and 56 1 15:20:31 1 says this is what this would translate into in his 2 declaration. 3 THE COURT: Well, show me where that is, would you, 4 with respect to the May 3rd, 2011, disclosure. 15:20:52 5 MR. BROOKS: Sure, Your Honor. 6 Paragraph 49 on page 24. 7 THE COURT: Right. 8 MR. BROOKS: He writes: Given that the company's 9 stock traded at approximately 13 times First Solar's midpoint 15:21:04 10 guidance of 9.50 per share, a 20 cent per share hit to 11 guidance would imply a 2.66 per share negative impact on the 12 company's value and stock price. That would be that 100 13 percent due to the 20 cents reduction in guidance. 14 THE COURT: Hold on just a minute. 15:22:21 15 What was the amount of the drop as a result of that 16 disclosure? 17 MR. BROOKS: The amount of the drop was -- sorry, 18 Your Honor. 19 It was 8.35 per share, and that would be -- and 15:22:50 20 that's in paragraph 51. But Your Honor -- 21 THE COURT: All right. So there's an 8.35 per share 22 drop. Are you saying that I should read paragraph 49 as his 23 opinion that $2.66 of that $8.35 per share drop was 24 substantially caused by the defendants' alleged fraud? 15:23:19 25 MR. BROOKS: I believe, Your Honor, what he's saying 57 1 15:23:20 1 here, using this methodology, that 100 percent of the 260 -- 2 of the 2.66 out of that 8-some-odd dollar drop was caused by 3 the fraud because it's all based on 20 cent guidance 4 reduction. 15:23:38 5 There are additional pieces of information that came 6 in on May 3rd, but he's saying as far as loss causation goes, 7 there's a link between the fraud and the decline. It's just 8 that it's not the whole thing. And that's where he's being 9 careful, Your Honor. 15:23:56 10 THE COURT: At the bottom of page 24 he goes through 11 his calculation and says it would imply a $2.66 per share 12 negative impact. Is that an opinion that it was a substantial 13 cause to say that it implies it? 14 MR. BROOKS: I believe it is, Your Honor. A 15:24:16 15 substantial cause of that 2.66, yes. And the question is, 16 what's it a substantial cause of? What does it have to be a 17 substantial cause of? There are lots of cases where there 18 were multiple disclosures and the parties have to sort them 19 out. And just because a disclosure doesn't cause more than 50 15:24:40 20 percent of the stock price decline that day does not mean that 21 that artificial inflation relating to that fraud hasn't been 22 taken out on that day, Your Honor. 23 THE COURT: All right. Let me ask you a similar loss 24 causation question with respect to the October 25, 2011, 15:24:56 25 decline. That's the announcement, as you know, of 58 1 15:24:59 1 Mr. Gillette's departure. 2 What evidence is there that the defendants' fraud 3 caused the departure which caused the stock drop? 4 MR. BROOKS: There's scant evidence that the 15:25:11 5 defendants' fraud caused the departure. There's some 6 information we got after discovery closed, in the notes, 7 attorney notes, based on those interviews that ties the 3Q '11 8 disclosure and their inability to issue that disclosure on the 9 day of Gillette's firing together. 15:25:30 10 I concede, Your Honor, there's scant information 11 other than the obvious inference that a jury would be allowed 12 to draw that in the midst of this company which is having 13 these massive undisclosed problems with LPM and with heat 14 degradation and has handled them about as poorly as you can 15:25:52 15 handle them, that that would be a reason to terminate your 16 CEO. He's not doing his job. 17 But I don't think, Judge, we have to prove that in 18 order to get that drop, because what's happened here from an 19 economic perspective is that analysts understand there is 15:26:06 20 trouble at the company. The trouble at the company, Your 21 Honor, is the undisclosed size of the LPM problem and the 22 undisclosed heat degradation problem. And ultimately those 23 issues are disclosed first on the next day, the 3Q, and the 24 fact that the stock goes up on 3Q shows the connection between 15:26:29 25 the firing and the issues because they take big charges, 59 1 15:26:34 1 Judge, in 3Q 2011 for LPM and for heat, but they don't tell 2 the market until later. 3 And then you have in December the same thing where 4 there's evidence that the guidance reduction is connected to 15:26:48 5 the fraud. 6 And then you have February 2012 where they announce 7 the 94 million in additional warranty charges, the 31.8 power 8 comp and they disclose the heat problem for the first time. 9 So if the analysts are suspecting trouble and 15:27:08 10 artificial inflation is removed from the stock and that 11 trouble is confirmed later, the only reason a stock isn't 12 declining more is because it's already come out. The analysts 13 were right. The analysts were right that there were huge 14 problems. The firing of the CEO presaged bad news later on. 15:27:27 15 And they were 100 percent correct that there were big problems 16 at the company, and they were revealed in the end. 17 THE COURT: Well, what you're saying, I think, is 18 that you don't have to prove that the defendants' alleged 19 fraud was a substantial cause of Mr. Gillette's departure even 15:27:49 20 though that is a key link in the chain of causation, or loss 21 causation. 22 MR. BROOKS: What I'm saying is that it's up for a 23 jury to decide whether the drop on October -- in October 2011 24 was substantially caused and related to the fraud. And the 15:28:11 25 jury can decide that based on the economics of it, Your Honor. 60 1 15:28:15 1 If -- if, for example, the factory burns down and the company 2 fires the CEO and somebody says we think the factory -- they 3 fired the CEO because the factory burned down, but we're 4 speculating because we don't know, and later it comes out that 15:28:37 5 the factory burned down, is there a loss causation there 6 because they fired the CEO because he was embezzling? 7 So we have to look at these things all together. 8 THE COURT: But the thing that hasn't come out, to 9 use the hypothetical, is that he left because of the fraud. 15:28:50 10 That's never come out. So it seems to me you're still asking 11 the jury to guess that that's why he left and that his 12 departure caused the loss. 13 MR. BROOKS: What I'm saying, Your Honor, is if there 14 is an event that removes artificial inflation from the stock 15:29:07 15 price and the analysts -- because analysts on that day think 16 that there's huge problems to come, that there could be 17 accounting fraud, that the company is having major undisclosed 18 problems, and then -- and the inflation's gone, it's out of 19 the stock -- and then you have your disclosed major problems, 15:29:32 20 the stock won't fall as far. It's an economic reality. And 21 loss causation is all about economics. And this is a question 22 of how much damages, ultimately. I mean, if you eliminate a 23 decline, it takes away damages. But those damages in that 24 artificial inflation would have been removed later but for the 15:29:55 25 fact that it had already been removed when they fired the CEO 61 1 15:30:00 1 in the middle of the day. 2 THE COURT: I think I understand that point. 3 MR. BROOKS: Your Honor, there was one thing. You 4 were going through some of the cases with Mr. Eth, and I 15:30:09 5 wanted to point out part of the Apollo case, you may have seen 6 it, but in Apollo the Court addresses the First Circuit's 7 decision in CVS Caremark that was a decision that the 8 plaintiffs had submitted after the oral argument. 9 And the court didn't say in Apollo, well, CVS 15:30:26 10 Caremark, the rule there is different from what we have in 11 this circuit. What the court said is -- they distinguished 12 Caremark from the Apollo case, but what they said was, unlike 13 the present case, CVS Caremark involved a specific statement 14 made by a high-level executive about the exact fact that had 15:30:46 15 been represented in the past, the successful integration of 16 the company. 17 Our disclosures in July 2010, February 2011, at the 18 end of the class period, in May and in December, all are 19 disclosures by the company about the exact fact that is 15:31:05 20 concealed by the fraud. So even Apollo is not going so far as 21 to say you need to show that there was fraud and that the 22 market understood fraud in order to have loss causation. 23 THE COURT: When I read that discussion in Apollo, it 24 seemed to me what the Ninth Circuit was saying is that when 15:31:22 25 that high-level disclosure of an exact fact that was opposite 62 1 15:31:26 1 to what the company had said before was made, everybody knew 2 that the company had lied. 3 MR. BROOKS: Well, it's the same here, Your Honor. 4 When -- when they disclosed in February -- on February 28th 15:31:39 5 and 29, 2012, if you look at the analysts' reports and what 6 they're saying, they're saying there's this huge new charge 7 that six months ago we thought was zero. This is them saying 8 every -- the analysts are interpreting this as the company has 9 been lying to us. 15:31:58 10 I could go through the slides right now, Your Honor, 11 but it's all in our brief. 12 THE COURT: Okay. Thank you. 13 Thank you. 14 We're going to take a ten-minute break for the 15:32:14 15 benefit of the court reporter, and then I've got a few more 16 questions for you. 17 (Recess taken from 3:32 to 3:43.) 18 THE COURT: All right. What I'd like to do is ask 19 defense counsel -- I'm sorry, plaintiffs' counsel a question 15:43:33 20 about the alleged misrepresentations. I've got a concern, 21 actually, for both counsel at the outset. 22 All right. Actually, I'm interested in both of your 23 comments on this, and I've got a more detailed question for 24 plaintiffs' counsel. 15:45:11 25 We have attached to plaintiffs' brief Appendix A, 63 1 15:45:16 1 which is titled Table of Misrepresentations and Omissions 2 Alleged in First Amended Complaint. And the there are a total 3 of 96 of them. 4 We've got Exhibit 1 to the defense brief titled 15:45:37 5 Statements Challenged in First Amended Complaint, and we have 6 167 of them. 7 I just assumed when I turned to the plaintiffs' table 8 we'd be talking about the same statements, but they're not the 9 same. The numbers aren't the same, the paragraphs cited 15:45:53 10 aren't the same. It's like two ships passing in the night. 11 What do I do with that? 12 I kind of assumed you all had reached agreement on 13 what the misstatements and omissions were that were at issue 14 in the case, but it appears not. 15:46:06 15 MR. DROSMAN: I think that the core misstatements, we 16 both agree on misstatements, we both agree those are at issue. 17 I think there are some statements that obviously don't 18 correspond. 19 We've provided a list of the statements, the 93 or 15:46:19 20 96, that we believe are the statements that are operative in 21 this case. The misrepresentations. 22 THE COURT: Well, but what do I do with the defense 23 argument that I should look at each misstatement and see 24 whether there's any evidence that it was a misstatement or 15:46:33 25 that it was made by the defendants when I can't even find a 64 1 15:46:37 1 corresponding misstatement discussed in your chart or your 2 brief? 3 It's a completely different chart. How in the 4 world -- I was thinking for a while I'm going to have them 15:46:50 5 make another matrix and we're going have them cite evidence, 6 but we don't even have agreement in the chart what was 7 misstated. How in the world can I be precise in my ruling 8 given that fundamental disagreement? 9 MR. DROSMAN: There was no coordination in terms of 15:47:05 10 the statements that were at issue, the false statements that 11 were at issue prior to filing. We've made clear in our chart 12 which statements we believe are at issue. Defendants were 13 free to deal with those on reply as they saw fit. 14 THE COURT: That doesn't help much. 15:47:21 15 MR. DROSMAN: I know. I apologize, Your Honor. I 16 don't have a good answer for you. 17 MR. LOBDELL: Your Honor, I can represent to the 18 court we prepared our exhibit based on the length and response 19 to the interrogatory we sent with respect to whether the 15:47:34 20 statement's active in this case. They haven't withdrawn any 21 statements, as far as we know. Although they make no 22 arguments with respect to some of the statements, the 23 statements concerning revenue recognition that were a focus of 24 their complaint. They make no claim where false or made with 15:47:58 25 scienter. 65 1 15:47:59 1 THE COURT: But how do I figure that out? 2 MR. LOBDELL: As a practical matter, Your Honor, 3 those should be gone from the case. 4 THE COURT: How do I figure out which ones they are? 15:48:08 5 MR. LOBDELL: Well, what we tried to do in our chart 6 is, based upon what was alleged in the complaint, list all of 7 the statements. And at that point, and I don't think there's 8 any dispute here, we have shifted the burden in our Celotex 9 motion for them to now come forward, and false statements are 15:48:27 10 an essential element of the Section 10(b) claim. 11 THE COURT: Well, I understand that. But are you 12 saying what I need to do is take your 167 statements, I need 13 to take number seven, which isn't in their chart, and I need 14 to go read their entire brief to figure out if they've 15:48:42 15 addressed number seven? 16 MR. LOBDELL: Your Honor -- 17 THE COURT: How do I know whether they have or not? 18 They even characterize it as a different statement in some 19 instances. 15:48:51 20 MR. LOBDELL: Your Honor, it's a bit of what the 21 Ninth Circuit called pigs and truffles, frankly. 22 The fact they alleged a four year, seven defendant 23 huge, sprawling mess of a case, Your Honor, is -- does not in 24 any way reduce their ability to very clearly set out -- 15:49:12 25 THE COURT: I know your argument on that. My problem 66 1 15:49:14 1 is as a practical matter how in the world do I do it given 2 this record when I can't tell what their response is to any 3 statement in your chart, and I can't tell what your response 4 is to any specific statement in theirs because they're 15:49:26 5 completely different? 6 MR. LOBDELL: Your Honor, what I would suggest is -- 7 because our chart was prepared from their complaint, and 8 they've never withdrawn any of their statements, that those 9 are the statements that are at issue now. And it was their 15:49:41 10 obligation, because we have shifted the burden under Celotex, 11 to present to the Court in a clear way with respect to each of 12 the statements that we identified what their evidence was with 13 respect to all of the elements. And they have failed to do 14 that. 15:49:58 15 One thing that is notable in its absence in the 16 opposition is any argument that we have not shifted the 17 Celotex burden. 18 THE COURT: So you're suggesting I should grant 19 summary judgment on all 167 statements because they didn't 15:50:11 20 organize their response to address them individually? 21 MR. LOBDELL: I'm suggesting that with respect to 22 those statements where the Court cannot, without undue effort 23 that the Court should not have to exert, because this was -- 24 THE COURT: So the answer to my question is yes? 15:50:27 25 That's what you're -- 67 1 15:50:28 1 MR. LOBDELL: The answer to your question is yes. I 2 have to say, in fairness to us, that we were very clear in our 3 opening papers on this point. I mean, we went to great 4 lengths to explain how important it would be for the 15:50:44 5 plaintiffs to very clearly link up each statement with each 6 defendant and the evidence that that particular defendant knew 7 information that was contrary to what that defendant said on 8 that date and rendered that particular statement false. We 9 were not in any way shy about pointing out how rigorous this 15:51:07 10 analysis had to be, and their failure to meet us on that 11 point, yes, that does merit entry of summary judgment. 12 THE COURT: Okay. Thank you. 13 Mr. Drosman, let's talk for a minute about your 14 chart. 15:51:23 15 Your chart has statements, as you characterize them, 16 and then over on the right-hand side a column for each of the 17 seven individual defendants. And you have an X, as I 18 understand it, if you are asserting that the statement is 19 attributable to that defendant -- 15:51:40 20 MR. DROSMAN: That's correct, Your Honor. 21 THE COURT: -- and a dash for those if the defendant 22 is not attributable for that statement. 23 MR. DROSMAN: That's right. 24 THE COURT: I read the chart and looked at those, and 15:51:49 25 it appeared to me you put an X in a box for a defendant simply 68 1 15:51:54 1 if the defendant was at the company at the time. 2 MR. DROSMAN: Well, I think that we put an X in the 3 box -- I'm looking at, for example -- we can take any of these 4 statements. I'm looking at, for example, Statement 54. It's 15:52:09 5 a press release. Okay? We've got the defendants who are 6 members of the disclosure committee and of E staff at this 7 time, and we've got Xs under those particular defendants. 8 So this is a press release from May 3rd, 2011. We've 9 got defendant Ahearn, who's on the board at this time as the 15:52:28 10 executive chairman. He's participating in disclosure 11 committee meetings earlier than this. We've got Defendant 12 Gillette who's on E staff and disclosure committee. Defendant 13 Widmar, likewise, on both those committees. Defendant Zhu, 14 who's also attended those committees, and Defendant Eaglesham 15:52:45 15 who has as well. So it was a bit more involved than whether 16 they were still at the company. 17 THE COURT: Well, if they were at the company and if 18 they were in a management position, an E staff position. 19 MR. DROSMAN: And on the disclosure committee. 15:53:02 20 Because remember, the disclosure committee would meet three 21 times before a financial release was put forth. Once to 22 discuss what should be said, once to look at a draft of 23 disclosure, and once to review the final. 24 This was a group of people at the company who are 15:53:15 25 responsible for those disclosures. 69 1 15:53:25 1 THE COURT: Well, the reason that you don't have Sohn 2 on Statement 54 is because he had left the company in April 3 2011. Right? 4 MR. DROSMAN: I believe that's correct, Your Honor. 15:53:40 5 THE COURT: And the reason you don't have Meyerhoff 6 is because he had finished his job as chief financial officer. 7 MR. DROSMAN: That's right, in December 2010. 8 THE COURT: So what you're, I think, asking me to do 9 is to conclude that wherever you have an X in this chart, I 15:53:54 10 should conclude that the defendant knew about and made the 11 false statement simply by virtue of what position that person 12 was in at the company. 13 MR. DROSMAN: No, I think it's -- what we're asking 14 you to do is look at the defendants' roles in the company. In 15:54:09 15 some cases there's no question who made the statement. It's 16 pretty simple to determine who made the statement in Q3 2011 17 that the remediation programs were substantially concluded. 18 That was Widmar who went on and said that during a conference 19 call. 15:54:23 20 But in other cases where you have these financial 21 statements Qs, Ks, SEC filings or press releases, you have to 22 look at who's responsible for the disclosure. Who 23 authorizes -- whose ultimately -- whose ultimate authority 24 over those particular statements and in that case it's the 15:54:39 25 members of E staff, the top executives at the company, who are 70 1 15:54:42 1 also members of the disclosure committee. 2 THE COURT: Well, here's a general concern I have 3 with the briefing. When I saw that in the chart, that these 4 Xs appeared to correspond with when people were in the 15:55:01 5 positions, what I initially thought was I'm just going to give 6 them the chart back and have them cite evidence for the X so 7 that they can show where exactly in the record -- in this 8 record, not the record -- does it show a particular individual 9 knew about and made a false statement at the time. 15:55:14 10 Then I saw, well, these seem to correspond with them 11 being in positions. So I went back to your brief to try to 12 find the evidence that would suggest that simply by virtue of 13 them being in a position they would know the false statement. 14 And I had real difficulty. 15:55:30 15 I mean, for example, if you turn to page 52 of your 16 brief, which is where you're responding to your argument that 17 the bottom-up process meant all of these statements were 18 developed by people other than the executive staff, you're 19 dealing with that very fundamental argument on page 52, and 15:55:51 20 you say in Roman -- not Roman numeral 1, I think Section I on 21 line 16, you say defendants' suggestion that a so-called 22 bottom-up process absolves this process is baseless. And then 23 you say, in this company and on these issues defendants had 24 the final say on everything. Then you cite to a deposition. 15:56:15 25 I went to that deposition. That citation is Mr. Ahearn saying 71 1 15:56:19 1 he wasn't required to attend the meeting. That's all it says. 2 Doesn't say anything to support that in this company on these 3 issues the defendants had the final say on everything. 4 So I thought, well, let me read on. I read the next 15:56:36 5 sentence: The individual defendants were intimately involved 6 in the day-to-day operations, knew that the LPM and hot 7 climate defects were much greater than disclosed, discussed 8 these problems on a near daily basis and carefully crafted 9 First Solar's false representations. 15:56:55 10 You have a general cite that I'll talk about in a 11 minute, then you cite to Exhibit 138, which is the note of a 12 guy named Amonett who happened to refer to LPM being greater 13 than necessary, apparently in a conversation with Gillette, 14 but when asked in his deposition where did this come from and 15:57:12 15 why did you write it down, he said "I don't know." 16 So that hardly supports that all of the individual 17 defendants were intimately involved day to day and knew 18 everything. 19 So I looked at the next cite, which is Exhibit 2 at 15:57:25 20 page 54. That's a Meyerhoff to -- that's the smoking gun 21 e-mail. Doesn't say anything about roles of anybody in the 22 company or how involved they were day to day. So I went to 23 that general section and started looking for the stuff that 24 would suggest that individuals were involved. I picked out a 15:57:44 25 defendant, I read it, and I go to the cite and it wouldn't 72 1 15:57:47 1 support it. Or it would only support a little bit. 2 For example, on Mr. Eaglesham I went to page 5 and it 3 says, line 17, he reviewed and approved all disclosures made 4 in the company's public filings and drafted, edited, and 15:58:06 5 approved press releases and conference call scripts. Then 6 there's a citation to his deposition where he says, "I 7 reviewed technical information in the 10-K." That's all it 8 says. Doesn't say he approved it, says nothing about him 9 drafting, editing, or approving press releases and conference 15:58:26 10 call scripts. Not a word in that citation. 11 I read the next sentence and citation, and it was the 12 same thing; there was no support. 13 So when you are saying these defendants were involved 14 in everything, touched everything, knew everything and you 15:58:43 15 give me a general cite to a 40 page section of your brief 16 that's a long narrative and I start digging into some of the 17 sentences and find they're not supported, what am I supposed 18 to do with that? How can I adopt the notion that everybody 19 knew everything and therefore was responsible for every false 15:58:59 20 statement? 21 MR. DROSMAN: I don't think there's any dispute that 22 all of these people who we've talked about were on the 23 disclosure committee. There's no dispute that they were 24 members of E staff. Okay? And we talked about what the 15:59:11 25 disclosure committee did. 73 1 15:59:13 1 Let me just give you four additional cites. They're 2 in our brief, but I want to tell you about this. Summary 3 judgment exhibits 18, 17, 70, and 77. In those exhibits what 4 you see, and this is an example, just an example, but an 15:59:32 5 important one, in July of 2010, Ahearn, Gillette, Eaglesham, 6 Sohn, Meyerhoff, and Zhu, are all reviewing and approving the 7 initial LPM disclosure. That's what they're doing. We're 8 talking about the 4 percent number we talked about. They are 9 reviewing and approving that particular statement in those 15:59:53 10 exhibits. 11 THE COURT: That's fine. I'll go look at them. But 12 my fundamental problem is I don't have any way that I can see 13 to go to the evidence you've cited in your brief and confirm 14 that the false statements where you put an X next to a 16:00:09 15 defendant's name in Appendix A was in fact known by, 16 attributable to, and made by that defendant with scienter. 17 MR. DROSMAN: I apologize -- first of all, I 18 apologize for the fact that not all of the citations 19 supported -- apparently supported the assertions. If Your 16:00:29 20 Honor would allow us, we would be happy to do that, and we 21 would put in each of those boxes where we placed an X just the 22 exhibit numbers in the summary judgment record, not in the 23 record at large, that support that particular assertion. We 24 could have that done in short order and provide it to the 16:00:47 25 Court. 74 1 16:00:48 1 THE COURT: Well, I will let you know if I think we 2 should do that. 3 What is your response to the general proposition that 4 since you have identified 96 -- I can't remember the exact 16:01:03 5 number -- false statements, that you should be required at 6 this point in the case to present evidence from which a jury 7 could conclude that the individual defendants you have sued 8 made each of these statements? 9 MR. DROSMAN: I believe we've done that. And I 16:01:19 10 believe -- 11 THE COURT: Do you believe you're required to do 12 that? 13 MR. DROSMAN: I don't know whether we're required. I 14 think we've done that here. We have -- we've done it by 16:01:26 15 category -- 16 THE COURT: I know you think you've done it, and I'll 17 hear what you have to say, but should I go into this saying, 18 yeah, they have to prove that? 19 MR. DROSMAN: I think what Your Honor should look at 16:01:37 20 is whether a reasonable jury obviously could conclude that the 21 particular statements that we've set forth in our chart, which 22 is Appendix A, are false and misleading. And I think we've 23 done that. We have not done it by individual statements. 24 Instead, we've done it categorically. 16:01:54 25 So we've looked at, for example, statements relating 75 1 16:01:56 1 to LPM, we explained why and how and when those statements 2 were false. We've done it with heat degradation, we've done 3 that with cost per watt. 4 Now, could we realign the charts so the categories 16:02:10 5 are clear? Absolutely. And we're happy to do that if that 6 would assist the Court. 7 So, for example, we could assign Category A to LPM 8 and put an A next to all of the LPM statements so Your Honor 9 could see these are category LPM. 16:02:23 10 I note that the defendants say they somehow have met 11 their Celotex burden by putting in a chart somehow defining 12 our case with hundreds of statements, but they in very rare 13 instances discuss specific statements. Instead, they talk 14 about statements broadly by category, just as we did. We 16:02:42 15 responded to their assertions we didn't have any evidence 16 showing falsity or scienter for LPM, falsity or scienter for 17 heat degradation. That's what we did. That's what they did. 18 So we responded to their arguments. It wasn't as 19 though they went category -- or statement by statement and 16:03:02 20 explained why each of these false statements wasn't indeed 21 false. You know, I mean, obviously we have some limits in 22 terms of pages and so we're limited in that way. But if Your 23 Honor would like us to put additional information in this 24 chart, we're happy to do it. 16:03:21 25 THE COURT: Okay. All right. 76 1 16:03:30 1 Let me ask a couple questions of defense counsel. 2 MR. DROSMAN: Sure. 3 THE COURT: Thanks. 4 Let me give you an opportunity to respond, if you 16:03:59 5 want to, on those issues I was just raising. 6 MR. LOBDELL: Yes, Your Honor. And there's been 7 quite a bit said in the initial highlights presentation I 8 would also, if the Court would -- 9 THE COURT: That's fine. 16:04:12 10 MR. LOBDELL: -- indulge me. 11 THE COURT: Go ahead. 12 MR. LOBDELL: Should I do that now? 13 THE COURT: Yeah. Pull the mic up higher, I'm having 14 a hard time hearing you. 16:04:21 15 MR. LOBDELL: Let me hit the highlights of the 16 highlights. The first point is that this fact that, well, 17 module quality was of concern to the company, and of course it 18 was of concern to the company. But the Eaglesham declaration, 19 which all of the declarations, by the way, the plaintiffs have 16:04:37 20 ignored, and these declarations set out very clearly how it 21 was this process went about and that ultimately resulted in 22 these statements being made. And who was responsible for 23 making the statements and who was responsible for the content 24 of those statements. 16:04:54 25 So that's set out in those declarations that the 77 1 16:04:58 1 plaintiffs, with two exceptions that are irrelevant to this 2 issue, don't even cite. And their expert does not even cite. 3 But this issue of module quality, Mr.-- excuse me, 4 Dr. Eaglesham very clearly sets out that the company kept 16:05:15 5 track of the performance of its modules throughout the class 6 period and they were performing above customer expectations 7 notwithstanding this LPM issue throughout the entire four year 8 class period. That's in the Eaglesham declaration. 9 They mention that there was a directive from 16:05:31 10 defendants to somehow change the cost per watt issue from 86 11 cents to 85 cents, one penny, in the third quarter of 2009. 12 Well, the fact is, Your Honor, that that person who was 13 allegedly making this direction to Ms. Georgette Gillen, who 14 is one of the CW -- in fact, the only CW they actually present 16:05:57 15 now, it was Mr. Wood, her direct supervisor. 16 And despite all of the discovery in this case, they 17 have absolutely no evidence that any individual defendant in 18 this case was in any way involved in Mr. Wood urging 19 Ms. Gillen to make a change in that metric. That was -- in 16:06:14 20 fact, that was the top-down case they alleged in order to get 21 past the motion to dismiss. They said -- they invoked the 22 core operations inference and said this metric of CPW is the 23 magic metric for this company, and included within CPW is all 24 the information an investor needs to value the company, and 16:06:37 25 yet from the top down that metric had been manipulated. That 78 1 16:06:41 1 case is entirely gone. They have absolutely no evidence any 2 individual defendant was involved and manipulating CPW 3 whatsoever. 4 They talk aboutSTBi information and the period before 16:06:56 5 the excursion, the Fast Ramp 421 process was identified in 6 June 2009. Well, there are many, many problems with that 7 argument. 8 First, what the Court was getting at earlier, the 9 fact that these are e-mails between engineers. The only 16:07:14 10 individual defendant who was involved in that is 11 Dr. Eaglesham, but at that point he was vice president of 12 technology, he was not yet chief technology officer. He was 13 not on the disclosure committee. He did not make any 14 statements during that period. 16:07:32 15 And the fact that in the course of over a year there 16 were some e-mails between engineers about accelerated life 17 testing data is -- should hardly be surprising. If there was 18 a line not performing well, that's the whole reason they had 19 this STBi data. And one thing absolutely undisputed is STBi 16:07:53 20 data was a included in the analysis of what the warranty 21 accrual should be. That accrual was prepared according to 22 this process that's described in the declarations and is not 23 in any way -- those declarations are not impeached in any way. 24 So all of the effect of the STBi was included. 16:08:11 25 The plaintiffs don't identify any public statement 79 1 16:08:14 1 the company made that would have obligated them to disclose 2 STBi information. This is highly technical information about 3 accelerated life testing that even in the company they didn't 4 fully understand the correlations between the accelerated life 16:08:32 5 test, STBi data on the one hand and the effect of module field 6 power, power in the field, on the other hand until March or 7 February of 2010. And that's why a classic example of robbed 8 by hindsight. Whenever they point to that STBi data of 9 indicating low performance in the modules in the field, 16:08:56 10 they're citing to the documents that were created in the 2010 11 time period for the idea that STBi correlates to field power 12 loss. It's a classic case of fraud by hindsight. It wasn't 13 known at that time. 14 Throughout this presentation, again, I think this 16:09:13 15 gets to some of the Court's questions, Mr. Drosman referred to 16 defendants. And "they." And this is what they said, this is 17 what they knew. Overwhelmingly in the brief when that's being 18 done he's referring to the engineers, Mr. Koralewski or 19 Mr. Kallenbach. Now, they're very experienced engineers and 16:09:39 20 they had a very important role in quantifying information and 21 making estimates about how expensive it would be ultimately 22 for the company to remediate this excursion, but they're not 23 individual defendants. 24 In fact, it's the individual defendants who relied on 16:09:55 25 Mr. Koralewski and Mr. Kallenbach. They weren't in there in 80 1 16:09:59 1 the engine room as those discussions were going on about what 2 is the correct number of modules we need to remove from this 3 site or that? How many modules are we going to have to 4 remediate? What is the STBi correlation with this or that? 16:10:15 5 The individual defendants relied on those engineers, 6 who are not defendants in this case. And the whole point of 7 our process argument, which is supported by the Ninth Circuit 8 decisions, is that whether these individuals got it right or 9 even whether they acted reasonably or even whether they acted 16:10:34 10 honestly is not an issue as long as that process was 11 reasonable and it was reasonable for the defendants to rely on 12 the results of that process. And so all of this STBi 13 information is completely off point. 14 The plaintiffs refer to this obligation to disclose 16:11:02 15 the existence of the excursion. Well, the anti-fraud 16 provisions of federal securities law, Section 10(b), does not 17 require a company to disclose information. It only prohibits 18 statements that are false or misleading. There's no -- 19 companies all the time perform tests on their products and 16:11:25 20 they compare their products to the products of competitors, 21 and sometimes the comparison goes well and maybe that leads to 22 a marketing campaign. Or sometimes it goes poorly, in which 23 case companies don't disclose that information. And simply 24 because the company has publicly traded stock does not in any 16:11:44 25 way require a company to go out with disclosures about the 81 1 16:11:49 1 results of internal tests. It's simply not the law. And 2 we've cited a myriad cases that say that. 3 There was a reference to a Sarbanes-Oxley 4 subcertification by Mr. Sohn in which he mentions the 16:12:09 5 excursion, low power module issue and that it has not been 6 disclosed. That subcertification and all of the other 7 hundreds of subcertifications that were executed during the 8 course of this class period was clear, and that's referred to 9 in the Schumaker deposition. Mr. Sohn indicated that that was 16:12:30 10 clear in his deposition. There's no question that -- and 11 besides, it's completely incompatible with any kind of 12 coherent narrative of fraud that Mr. Sohn was somehow trying 13 to execute a fraud by signing a SOX certification. It makes 14 no sense. The plaintiffs say there is a $72 million cost and 16:12:55 15 that is such a large number, surely at that point the company 16 needed to disclose the existence of the excursion. 17 Well, the fact is, Your Honor, that that $72 million 18 has two components. One of those components is the expense 19 involved in remediation, and the other is the reduction in 16:13:15 20 expected revenue due to the fact that some modules that would 21 otherwise be sold are used in the remediation process. 22 Well, the company accrued for its expected expenses 23 according to the process that we've laid out. And it reduced 24 its revenue guidance. The financial planning and analysis 16:13:35 25 people got the same information about the number of modules 82 1 16:13:38 1 that would have to be used in the remediation as did the -- as 2 did the accountants, and they reduced revenue guidance to 3 reflect that fact. And, again, that's in the briefing and in 4 the declarations. And in fact, Mr. Steinholt acknowledges 16:13:54 5 that fact, claims that it helps him on his loss causation 6 argument. But it's not disputed. 7 They refer to Mr. Ahearn. Mr. Ahearn has come up 8 once now, I think, and in reference to an e-mail where he 9 wrote "fingers crossed." This is a terribly disingenuous 16:14:14 10 reference, as if Mr. Ahearn was somehow involved in making 11 misrepresentations of some kind. 12 That e-mail concerns his hope that a customer site 13 does not experience power degradation as a result of having 14 some Fast Ramp 421 modules installed at that site. He's 16:14:39 15 hoping the site doesn't experience power loss and there won't 16 be any need to perform any remediation or address this issue 17 with the customer. That's all that e-mail says. 18 There's a huge focus in this case, despite the fact 19 that GAAP sets forth very clear rules about how to accrue for 16:15:04 20 expected expenses and despite the fact there were these 21 processes in place with this obscure metric that the 22 plaintiffs have focused on, which is number of modules 23 affected by the excursion. 24 I want to put this in context, Your Honor. When this 16:15:19 25 statement is made -- and, by the way, the statement is based, 83 1 16:15:22 1 again, on the opinions, the engineering judgment of 2 Mr. Koralewski and Mr. Kallenbach and confirm the math is 3 correct. They endorsed that number. So there's no argument 4 that there's any scienter involved. 16:15:36 5 But furthermore, when that statement is made, Your 6 Honor, there's no question that Fast Ramp 421 has been 7 discontinued. So there's no ongoing issue. So what does an 8 investor care about when he's been told there's been some kind 9 of manufacturing problem? I guess the first question is, is 16:15:56 10 this an ongoing concern? The answer is unquestionably no. 11 Fast Ramp 421 has been discontinued. So it's not an ongoing 12 concern. 13 What's the other question an investor may have? 14 Well, what's it going to cost to fix? That number is derived 16:16:14 15 through the bottom-up process of the accruals. 16 Well, might it have some impact on revenue? Again, 17 unquestionably, that number is derived through the bottom-up 18 process of revenue forecasting. And none of the individual 19 defendants are even accused of taking any action to manipulate 16:16:34 20 those numbers. 21 In light of that fact, the number of modules affected 22 by the excursion has no possible significance that is additive 23 of those numbers. 24 Additionally, Your Honor, it's, again, terribly 16:16:49 25 disingenuous for the plaintiffs to throw out these numbers as 84 1 16:16:52 1 if they were somehow inconsistent with that disclosure. The 2 numbers they throw out, 3 million, 2 million, 1.4 million, and 3 we've tried best we could in our reply to make this point, 4 refer to all kinds of different things. 16:17:05 5 It's fine to throw out numbers, but it's essential to 6 also explain what those numbers denote. And they don't denote 7 modules affected by the excursion. They denote in some 8 occasions the number of modules that will be required to be 9 remediate. On some occasions the number of modules that were 16:17:26 10 produced under certain STBi conditions. On some occasions 11 they address a metric called suspect population that is an 12 intermediate step in the Monte Carlo statistical estimation 13 model. But in any event, they denote a whole range of things. 14 In fact, the person who put this best was the 16:17:51 15 auditor, the audit partner from PwC who said in his depo -- 16 Mr. D'Angelo said in his deposition it wasn't enough just to 17 see an LPM next to something. LPM meant all kinds of 18 different things. LPM stands for low power module and it 19 doesn't -- wasn't even necessarily tied to this excursion. To 16:18:14 20 simply throw out those numbers accomplishes absolutely 21 nothing. 22 With respect to the accruals, it is quite telling 23 they don't even get around to saying anything about the 24 accruals, with the exception of the issue of settlement, which 16:18:32 25 I'll address in just a moment. But without exception they say 85 1 16:18:37 1 nothing about accruals until second quarter of 2011. This is 2 a class period that begins in April 2008, and they say nothing 3 about those accruals until second quarter of 2011. When they 4 do, who do they criticize? Mr. T K Kallenbach and his 16:18:57 5 engineering judgment that the claims that had not yet been 6 analyzed would be rejected. 7 He had concluded that the GTS group in Germany was 8 doing a lot of remediation. 9 By the way, the company was not obligated, I hope 16:19:12 10 this is clear from the briefing, was not obligated to engage 11 in any kind of remediation, any kind of rip and replace 12 mediation on modules even if they fell outside of warranty. 13 But Mr. Kallenbach had concluded that a lot of the 14 remediation that this GTS group wanted to perform in order to 16:19:31 15 make the customers in Germany happy had nothing to do with the 16 LPM Fast Ramp 421 issue and the company would not pay for it. 17 And that's why he concluded that the accrual should stay where 18 it was and shouldn't be increased, notwithstanding what 19 these -- what the people in Germany said. 16:19:49 20 But that's not really the issue. The issue isn't 21 whether Mr. Kallenbach reached a reasonable engineering 22 judgment. The issue is that he did reach a judgment. And he 23 communicated that judgment to Mr. Schumaker and that's the 24 number that got into the accrual and Mr. Ahearn and Gillette 16:20:08 25 and Meyerhoff and Widmar and none of the individual defendants 86 1 16:20:13 1 did anything to manipulate that number. It's the exact 2 opposite of the situation we have in the VeriFone case that 3 they rely on. 4 I said I'd address the issue of the settlements and 16:20:28 5 their claim in the fourth quarter of 2010 there had been a 6 change in methodology and therefore and that had an impact on 7 a settlement number that's buried in the financial statements. 8 Again, a couple things to say about that. First, there was no 9 change in methodology. The methodology was always valuing 16:20:48 10 refurbished modules, which this addressed, at the lower of 11 cost and market. And in the fourth quarter of 2010, the 12 company sold roughly 160,000 of these refurbished modules, I 13 think I got that number right, to three of its seven 14 distributors. And it presented that evidence of sale to PwC, 16:21:10 15 and PwC agreed at that point the company had adequate evidence 16 of a market price for those modules, and therefore should 17 value those modules at the lower of cost and market in 18 inventory and that number reduced the settlement number. 19 There's nothing improper about that. In fact, the 16:21:31 20 PwC, outside independent accountants, reviewed that and agreed 21 with it. And there's no disclosure obligation associated. 22 Again, there was no change in methodology. It was always the 23 lower of cost and market that was applied. 24 I want to address also this allegation that 16:21:49 25 Mr. Schumaker said that an individual defendant told him to 87 1 16:21:58 1 make that change. That is a very serious allegation. And I 2 say that because we all have been in this room now for some 3 time and we've all read the briefing and it should be no 4 secret as to the primary thrust of at least my part of this 16:22:18 5 argument about why summary judgment should be granted, and 6 that is that there was no interference by any individual 7 defendant in this process that resulted in the financial 8 statements and other disclosures being prepared. And that 9 that is critical. 16:22:35 10 And they have said now, well, there is such evidence. 11 I invite the Court to look at Plaintiff's Exhibit 19, pages 47 12 to 48, which is what they cite. It says absolutely no such 13 thing. It says that management was directing that modules be 14 removed and new modules be put in place in place of those 16:23:02 15 removed modules and that that process occur before the removed 16 modules were tested. And that's what management -- doesn't 17 refer to any individual defendant, but that's what management 18 told Mr. Schumaker how that remediation effort should be 19 conducted. No one said anything to him about manipulating any 16:23:22 20 accounting or how to account for anything. That was always 21 the assistant corporate controller Bryan Schumaker's decision 22 and never interfered with, and to suggest it was, Your Honor, 23 is terribly disingenuous. 24 I guess I ought to address the Janis standard, but I 16:23:42 25 don't know that we really have any disagreement because 88 1 16:23:45 1 Mr. Drosman articulated it correctly when he said ultimate 2 authority. It's ultimate authority over the statements. And 3 so simple membership on a disclosure committee in which the 4 statements are discussed does not satisfy that standard. 16:24:00 5 I should also point out that he's got it wrong when 6 he says that Mr. Ahearn was a member of the disclosure 7 committee. He was not. Nor was Mr. Gillette. Nor was 8 Mr. Eaglesham during this period where STBi was discussed in 9 2008 that plaintiffs make such a big deal about, although he 16:24:22 10 did later join that committee. But ultimate authority is the 11 test, Your Honor. The test isn't membership on a committee. 12 And there has been a complete failure of proof. And it begins 13 with the most basic element of who made the statements, and it 14 continues through what did the individual defendants who made 16:24:40 15 those statements who are not specified, what did they know? 16 What did they know when they made the statements. It's 17 absolutely critical that it be broken out in that manner 18 because the concept of scienter applies to the state of mind 19 of the speaker. And so without knowing who it is who made the 16:25:02 20 statement or what specific information that that individual 21 had at the time he made a statement, it is impossible to make 22 a scienter determination. 23 Except, Your Honor, for the fact that it is 24 absolutely undisputed now, based on declarations we've 16:25:18 25 submitted that have not even been cited, that all of these 89 1 16:25:22 1 disclosures were performed pursuant to a controlled and 2 carefully audited process that the individual defendants had 3 no basis to believe was corrupted and did not themselves 4 corrupt in any way. 16:25:36 5 THE COURT: All right. Thank you. 6 A question for defense counsel. Switching to the 7 plaintiffs' motion for summary judgment. My understanding is 8 that you have said that 12 of the affirmative defenses they 9 address are in fact not affirmative defenses, they're simple 16:25:53 10 denials. Why don't we just strike those as affirmative 11 defenses. You also say they're unnecessary. 12 MS. WHITE: It's okay to strike them. Our main 13 concern -- 14 THE COURT: You want summary judgment that takes away 16:26:05 15 their burden, I understand that. Can't we just get them out 16 of the case by striking? 17 MS. WHITE: We can get them out of the case by 18 striking them, we just don't want to go as far as plaintiffs 19 are asking to. 16:26:13 20 THE COURT: That's fine. That was the only question 21 I had. 22 MS. WHITE: Thank you. 23 THE COURT: Counsel, we can go on for hours, I know. 24 You've all got things you want to say in addition, but we 16:26:28 25 don't have the time to do that. 90 1 16:26:30 1 I will take this under advisement. If I think I need 2 some additional organization of the evidence, I will let you 3 know. But I want to first go back and reread the briefs and 4 the cases in light of what we've talked about. 16:26:44 5 I should get you a decision -- I usually say within a 6 week or two. I'm not sure that will happen in this case. But 7 certainly within the next several weeks I'll get you a 8 decision. 9 All right. Thanks very much. 16:26:55 10 MR. DROSMAN: Thank you, Your Honor. 11 (End of transcript.) 12 * * * * * 13 14 15 16 17 18 19 20 21 22 23 24 25 91 1 1 C E R T I F I C A T E 2 3 I, PATRICIA LYONS, do hereby certify that I am duly 4 appointed and qualified to act as Official Court Reporter for 5 the United States District Court for the District of Arizona. 6 7 I FURTHER CERTIFY that the foregoing pages constitute 8 a full, true, and accurate transcript of all of that portion 9 of the proceedings contained herein, had in the above-entitled 10 cause on the date specified therein, and that said transcript 11 was prepared under my direction and control, and to the best 12 of my ability. 13 14 DATED at Phoenix, Arizona, this 24th day of July, 15 2015. 16 17 18 19 20 s/ Patricia Lyons, RMR, CRR Official Court Reporter 21 22 23 24 25

USCA Case Number re: {{414}} Notice of Interlocutory Appeal. Case number 16-16937, Ninth Circuit. (copies sent by the Ninth Circuit)

Case 2:12-cv-00555-DGC Document 415 Filed 10/27/16 Page 1 of 1 Office of the Clerk United States Court of Appeals for the Ninth Circuit Post Office Box 193939 San Francisco, California 94119-3939 415-355-8000 Molly C. Dwyer Clerk of Court October 25, 2016 No.: 16-16937 D.C. No.: 2:12-cv-00555-DGC Mineworkers' Pension Scheme, et al v. First Solar Short Title: Incorporated, et al Dear Appellant/Counsel A copy of your notice of appeal/petition has been received in the Clerk's office of the United States Court of Appeals for the Ninth Circuit. The U.S. Court of Appeals docket number shown above has been assigned to this case. You must indicate this Court of Appeals docket number whenever you communicate with this court regarding this case. Please furnish this docket number immediately to the court reporter if you place an order, or have placed an order, for portions of the trial transcripts. The court reporter will need this docket number when communicating with this court. The due dates for filing the parties' briefs and otherwise perfecting the appeal have been set by the enclosed "Time Schedule Order," pursuant to applicable FRAP rules. These dates can be extended only by court order. Failure of the appellant to comply with the time schedule order will result in automatic dismissal of the appeal. 9th Cir. R. 42-1.

APPEAL DOCUMENT by Britt Nederhood, Eng Kwang Tan, Clifford Tindall re: {{414}} Notice of Appeal Notice Regarding Transcripts.

Case 2:12-cv-00555-DGC Document 416 Filed 11/23/16 Page 1 of 4 1 ROBBINS ARROYO LLP Brian J. Robbins 2 (CA SBN 190264; pro hac vice) 3 George C. Aguilar (CA SBN 126535; pro hac vice) 4 Jay N. Razzouk (CA SBN 258511; pro hac vice) 5 600 B Street, Suite 1900 San Diego, CA 92101 6 Telephone: (619) 525-3990 Facsimile: (619) 525-3991 7 brobbins@robbinsarroyo.com gaguilar@robbinsarroyo.com 8 jrazzouk@robbinsarroyo.com 9 BOTTINI & BOTTINI, INC. 10 Francis A. Bottini, Jr. (CA SBN 175783; pro hac vice) 11 7817 Ivanhoe Avenue, Suite 102 La Jolla, CA 92037 12 Telephone: (858) 914-2001 Facsimile: (858) 914-2002 13 fbottini@bottinilaw.com 14 Co-Lead Counsel for Derivative Plaintiffs 15 [Additional counsel listed on signature page.] 16 17 IN THE UNITED STATES DISTRICT COURT 18 FOR THE DISTRICT OF ARIZONA 19 Mark Smilovits, et al., on behalf of District Court No. CV-12-0555-PHX-DGC 20 themselves and all others similarly situated, This Document Relates To: 21 Ninth Circuit Appeal No. 16-16937 Plaintiffs, 22 vs. The Derivative Plaintiffs' Notice 23 Regarding Transcripts First Solar Incorporated, et al., 24 Defendants. 25 26 27 28 The Derivative Plaintiffs' Notice Regarding Transcripts Case 2:12-cv-00555-DGC Document 416 Filed 11/23/16 Page 2 of 4 1 Pursuant to Ninth Circuit Rule 10-3(c), Clifford Tindall, Britt Nederhood, 2 Eng Kwang Tan, and Eric Feigin (collectively, the "Derivative Plaintiffs"), who 3 are the appellants in Appeal No. 16-16937 pending in the U.S. Court of Appeals 4 for the Ninth Circuit, file this Notice that the Derivative Plaintiffs do not intend 5 to order any transcript from the District Court for Appeal No. 16-16937. There 6 were no oral proceedings (including hearings or oral arguments) in the District 7 Court in connection with the subject of this appeal – specifically, Plaintiffs' 8 motion to (1) lift the stay for a limited purpose; (2) intervene for a limited 9 purpose; and (3) unseal court records. Accordingly, there are no transcripts to 10 order. 11 Dated: November 23, 2016 Respectfully submitted, 12 ROBBINS ARROYO LLP 13 Brian J. Robbins* 14 George C. Aguilar* Jay N. Razzouk* 15 s/George C. Aguilar 16 George C. Aguilar 17 600 B Street, Suite 1900 San Diego, CA 92101 18 Telephone: (619) 525-3990 Facsimile: (619) 525-3991 19 brobbins@robbinsarroyo.com 20 gaguilar@robbinsarroyo.com jrazzouk@robbinsarroyo.com 21 BOTTINI & BOTTINI, INC. 22 Francis A. Bottini, Jr.* 23 s/Francis A. Bottini, Jr. (with permission) Francis A. Bottini, Jr. 24 7817 Ivanhoe Avenue, Suite 102 25 La Jolla, CA 92037 26 Telephone: (858) 914-2001 Facsimile: (858) 914-2002 27 fbottini@bottinilaw.com 28 Co-Lead Counsel for Derivative Plaintiffs-1-The Derivative Plaintiffs' Notice Regarding Transcripts Case 2:12-cv-00555-DGC Document 416 Filed 11/23/16 Page 3 of 4 1 DESSAULES LAW GROUP 2 Jonathan A. Dessaules (019439) 5353 North 16th Street, Suite 110 3 Phoenix, AZ 85016 Telephone: (602) 274-5400 4 Facsimile: (602) 274-5401 jdessaules@dessauleslaw.com 5 Liaison Counsel for Derivative Plaintiffs 6 GLANCY PRONGAY & MURRAY LLP 7 Lionel Z. Glancy Ex Kano S. Sams II* 8 Michael M. Goldberg 1925 Century Park East, Suite 2100 9 Los Angeles, CA 90067 Telephone: (310) 201-9150 10 Facsimile: (310) 201-9160 lglancy@glancylaw.com 11 esams@glancylaw.com mmgoldberg@glancylaw.com 12 WOLF HALDENSTEIN ADLER 13 FREEMAN & HERZ LLP Betsy Manifold 14 Francis M. Gregorek 750 B Street, Suite 2770 15 San Diego, CA 92101 Telephone: (619) 239-4599 16 Facsimile: (619) 234-4599 manifold@whafh.com 17 gregorek@whafh.com 18 Executive Committee Counsel for Derivative Plaintiffs 19 *admitted pro hac vice 20 21 22 23 24 25 26 27 28-2-The Derivative Plaintiffs' Notice Regarding Transcripts Case 2:12-cv-00555-DGC Document 416 Filed 11/23/16 Page 4 of 4 1 CERTIFICATE OF SERVICE 2 I hereby certify that on November 23, 2016, I caused the foregoing 3 document to be electronically transmitted to the Clerk’s Office using the CM/ECF 4 System for filing and transmittal of a Notice of Electronic Filing to all CM/ECF 5 registrants. 6 I further certify that a copy of the foregoing was sent via electronic mail to 7 the following party: 8 Patricia Lyons, RPR, CRR 9 Federal Official Court Reporter patricia.lyons@azd.uscourts.gov 10 11 s/George C. Aguilar 12 George C. Aguilar 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28-3-The Derivative Plaintiffs' Notice Regarding Transcripts

NOTICE of Attorney Withdrawal MAUREEN BEYERS filed by Joseph Nathaniel Roth.

Case 2:12-cv-00555-DGC Document 417 Filed 03/17/17 Page 1 of 2 1 Joseph N. Roth, No. 025725 2 OSBORN MALEDON, P.A. 2 2929 North Central Avenue, 21st Floor 3 3 Phoenix, Arizona 85012-2793 (602) 640-9000 4 jroth@omlaw.com 4 5 5 Jordan Eth (CA SBN 121617) (Admitted pro hac vice) 6 Anna Erickson White (CA SBN 161385) (Admitted pro hac vice) 6 Philip T. Besirof (CA SBN 185053) (Admitted pro hac vice) 7 7 MORRISON & FOERSTER LLP 8 425 Market Street, 32nd Floor 8 San Francisco, California 94105-2482 9 (415) 268-7000 9 JEth@mofo.com 10 AWhite@mofo.com 10 11 PBesirof@mofo.com 11 12 Attorneys for Defendants 12 13 14 13 IN THE UNITED STATES DISTRICT COURT 15 14 FOR THE DISTRICT OF ARIZONA 16 15 Mark Smilovits, Individually and on Case No. CV12-00555-PHX-DGC 17 behalf of all other persons similarly 16 18 situated, NOTICE OF WITHDRAWAL OF 17 ATTORNEY WITHIN FIRM 19 Plaintiff, 18 20 19 vs. 21 20 First Solar, Inc., Michael J. Ahearn, Robert 22 J. Gillette, Mark R. Widmar, Jens 21 Meyerhoff, James Zhu, Bruce Sohn, and 23 David Eaglesham, 22 24 23 Defendants. 25 24 26 27 25 Osborn Maledon, P.A., counsel of record for Defendants, hereby gives notice 28 26 under L.R. Civ. 83.3(b) that Maureen Beyers, one of the lawyers within Osborn Case 2:12-cv-00555-DGC Document 417 Filed 03/17/17 Page 2 of 2 1 Maledon with responsibility for this matter, has left her employment with the firm and 2 2 will no longer be appearing on behalf of the Defendants. Defendants will continue to 3 3 be represented by their other existing counsel of record. 4 Osborn Maledon, P.A. requests that Maureen Beyers, Arizona Bar No. 017134, 4 5 be removed from the electronic notice system for this matter effective immediately. 5 6 Dated this 17th day of March, 2017. 6 7 OSBORN MALEDON, P.A. 7 8 8 9 By s/Joseph N. Roth 9 Joseph N. Roth 10 2929 N. Central Avenue, 21st Floor 10 11 Phoenix, Arizona 85012 11 12 Jordan Eth 12 13 Anna Erickson White Philip T. Besirof 14 13 MORRISON & FOERSTER LLP 425 Market Street, 32nd Floor 15 14 San Francisco, California 94105-2482 16 15 Attorneys for Defendants 17 16 18 CERTIFICATE OF SERVICE 17 19 18 I hereby certify that on March 17, 2017, the attached document was 20 19 electronically transmitted to the Clerk of the Court using the CM/ECF System which 21 20 will send notification of such filing and transmittal of a Notice of Electronic Filing to 22 21 all CM/ECF registrants. 23 22 s/Patricia D. Palmer 24 23 25 7059061 24 26 27 25 28 26 2

MANDATE of USCA (16-16937) dismissing re: {{414}} Notice of Appeal filed by Britt Nederhood, Eng Kwang Tan, Clifford Tindall.

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Memorandum

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16-16937 Mineworkers' Pension Scheme, et al v. First Solar Inc., et al "Ma... Page 1 of 2 16-16937 Mineworkers' Pension Scheme, et al v. First Solar Inc., et al "Mandate Issued" ca9_ecfnoticing to: 02/13/2018 05:49 PM Hide Details From: ca9_ecfnoticing@ca9.uscourts.gov To: ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. United States Court of Appeals for the Ninth Circuit Notice of Docket Activity The following transaction was entered on 02/13/2018 at 4:48:17 PM PST and filed on 02/13/2018 Case Name: Mineworkers' Pension Scheme, et al v. First Solar Inc., et al Case Number: 16-16937 Document(s): Document(s) Docket Text: MANDATE ISSUED.(JCW, JBR and PJW) [10763074] (Roberts, Rhonda) Notice will be electronically mailed to: Mr. George C. Aguilar, Attorney Ms. Susan Katina Alexander, Attorney Darryl James Alvarado James Patrick Bennett Philip Besirof, Attorney Francis A. Bottini, Jr., Attorney Luke Orion Brooks Albert Y. Chang, Attorney Jonathan A. Dessaules Daniel Steven Drosman Jordan Eth, Attorney Paul Flum, Attorney Mr. Jason Forge Mark Ryan Scott Foster, Attorney Mr. Andrew S. Friedman, Attorney Tor Gronborg Yury Kolesnikov Mr. Bryan J. Leitch Judson E. Lobdell Andrew Love Brian Matsui Ms. Deanne Maynard, Counsel Danielle Suzanne Myers Brian J. Robbins, Attorney Darren Jay Robbins Mr. Joseph Nathaniel Roth, Attorney James Sigel Christopher Dennis Stewart USDC, Phoenix Ms. Anna Erickson White, Attorney The following document(s) are associated with this transaction: Document Description: Mandate Order Original Filename: /opt/ACECF/live/forms/RhondaRoberts_1616937_10763074_v2Order-Mandate_216.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1106763461 [Date=02/13/2018] [FileNumber=10763074-0] [4edb8350994ec9778935b4283752f31307f119ca797e84f1433676814104a3553a4bc9a5758a6411a365e1cdc2093fb743cca198acfab63038bacc4c673 Recipients: • Mr. George C. Aguilar, Attorney file:///C:/Users/ldixon/AppData/Local/Temp/notes0CAC14/~web8265.htm 2/14/2018 16-16937 Mineworkers' Pension Scheme, et al v. First Solar Inc., et al "Ma... Page 2 of 2 • Ms. Susan Katina Alexander, Attorney • Darryl James Alvarado • James Patrick Bennett • Philip Besirof, Attorney • Francis A. Bottini, Jr., Attorney • Luke Orion Brooks • Albert Y. Chang, Attorney • Jonathan A. Dessaules • Daniel Steven Drosman • Jordan Eth, Attorney • Paul Flum, Attorney • Mr. Jason Forge • Mark Ryan Scott Foster, Attorney • Mr. Andrew S. Friedman, Attorney • Tor Gronborg • Yury Kolesnikov • Mr. Bryan J. Leitch • Judson E. Lobdell • Andrew Love • Brian Matsui • Ms. Deanne Maynard, Counsel • Danielle Suzanne Myers • Brian J. Robbins, Attorney • Darren Jay Robbins • Mr. Joseph Nathaniel Roth, Attorney • James Sigel • Christopher Dennis Stewart • USDC, Phoenix • Ms. Anna Erickson White, Attorney The following information is for the use of court personnel: DOCKET ENTRY ID: 10763074 RELIEF(S) DOCKETED: DOCKET PART(S) ADDED: 12846744 file:///C:/Users/ldixon/AppData/Local/Temp/notes0CAC14/~web8265.htm 2/14/2018

*MOTION for Hearing or Conference re: Status Conference by Plaintiffs British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme. *Modified to correct event on 6/27/2018

1 ROBBINS GELLER RUDMAN & DOWD LLP 2 Daniel S. Drosman (CA SBN 200643) (Admitted pro hac vice) Luke O. Brooks (CA SBN 212802) (Admitted pro hac vice) 3 Darryl J. Alvarado (CA SBN 253213) (Admitted pro hac vice) Christopher D. Stewart (CA SBN 270448) (Admitted pro hac vice) 4 Hillary B. Stakem (CA SBN 286152) 655 West Broadway, Suite 1900 5 San Diego, CA 92101 Telephone: 619/231-1058 6 619/231-7423 (fax) dand@rgrdlaw.com 7 lukeb@rgrdlaw.com dalvarado@rgrdlaw.com 8 cstewart@rgrdlaw.com hstakem@rgrdlaw.com 9 Lead Counsel for Plaintiffs 10 [Additional counsel appear on signature page.] 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Mark Smilovits, Individually and on Behalf) No. 2:12-cv-00555-DGC 14 of All Others Similarly Situated,)) CLASS ACTION 15 Plaintiff,)) REQUEST FOR STATUS 16 vs.) CONFERENCE) 17 First Solar, Inc., Michael J. Ahearn, Robert) J. Gillette, Mark R. Widmar, Jens) 18 Meyerhoff, James Zhu, Bruce Sohn and) David Eaglesham,) 19) Defendants.) 20) 21 22 23 24 25 26 27 28 1446864_1 1 Plaintiffs request that the Court set a status conference at its earliest convenience to 2 schedule the remaining pretrial activities and to calendar the long-overdue trial in this matter. 3 This case has been stayed for 1,051 days since the Court denied in substantial part 4 defendants' motion for summary judgment on August 10, 2015. See ECF No. 401. In the 5 6 intervening two years and ten months, the parties have briefed exhaustively the issue of loss 7 causation in the Ninth Circuit Court of Appeals, which earlier this year affirmed the Court's 8 summary judgment loss causation conclusion "that the evidence, if accepted by the jury, 9 could satisfy the proximate cause loss causation test with respect to five of the six alleged 10 11 stock price declines." Mineworkers' Pension Scheme v. First Solar Inc., 881 F.3d 750, 754 12 (9th Cir. 2018). Defendants then sought both panel rehearing and rehearing en banc of the 13 Ninth Circuit panel's per curiam decision. Both were denied by unanimous vote of the 14 panel, the latter after the full court was advised of defendants' petition "and no judge of the 15 16 court. . . requested a vote on the petition for rehearing en banc." Mineworkers' Pension 17 Scheme v. First Solar Inc., No. 15-17272, slip op. at 1 (ECF No. 70) (9th Cir. May 7, 2018). 18 Next, defendants asked the Ninth Circuit panel to stay issuance of the mandate to this 19 Court pending the filing of a petition for writ of certiorari in the Supreme Court. In opposing 20 21 the motion, plaintiffs demonstrated that (1) the Ninth Circuit has provided the clarity this 22 Court sought on loss causation; (2) there is no circuit split on the standard for loss causation; 23 (3) there is no important federal question requiring Supreme Court review; and (4) there is 24 no basis for assuming the standard defendants now seek would lead to any different outcome 25 26 on summary judgment. Id., Plaintiffs' Opposition to Defendants' Motion to Stay the 27 Mandate (ECF No. 74) (9th Cir. May 14, 2018). The panel denied defendants' motion in 28 -1- 1446864_1 1 full. Id., slip op. at 1 (ECF No. 76) (9th Cir. June 18, 2018); accord Ninth Circuit Rule 41-1 2 (a motion to stay the issuance of the mandate pending petition to the Supreme Court for 3 certiorari "will be denied if the Court determines that the petition for certiorari would be 4 frivolous or filed merely for delay"). 5 6 On June 25, 2018, before the mandate issued, defendants filed yet another motion 7 asking this Court to stay the case. See ECF No. 421. Defendants' latest motion relies on the 8 exact same arguments previously advanced in their motion to stay issuance of the mandate, 9 which the Ninth Circuit panel considered and rejected just last week. Mineworkers' Pension 10 11 Scheme, slip op. at 1 (ECF No. 76). For the reasons accepted by the Ninth Circuit, and as 12 will be described in more detail in plaintiffs' opposition to defendants' motion to stay 13 (should the Court wish to entertain full briefing on that motion), defendants have no basis for 14 a further stay of this case. 15 16 This case has already been delayed for two years and ten months. The mandate has 17 issued, and the delay to judgment must come to an end. Accordingly, plaintiffs request a 18 status conference at the Court's earliest convenience to schedule the remaining pretrial 19 activities and to calendar the long-overdue trial in this matter. 20 21 DATED: June 26, 2018 Respectfully submitted, 22 ROBBINS GELLER RUDMAN & DOWD LLP 23 Daniel S. Drosman Luke O. Brooks 24 Darryl J. Alvarado Christopher D. Stewart 25 Hillary B. Stakem 26 27 s/ Darryl J. Alvarado Darryl J. Alvarado 28 -2- 1446864_1 1 655 West Broadway, Suite 1900 2 San Diego, CA 92101 Telephone: 619/231-1058 3 619/231-7423 (fax) 4 Lead Counsel for Plaintiffs 5 BONNETT FAIRBOURN FRIEDMAN & BALINT, P.C. 6 Andrew S. Friedman (AZ005425) Kevin Hanger (AZ027346) 7 2325 E. Camelback Road, Suite 300 Phoenix, AZ 85016 8 Telephone: 602/274-1100 602/274-1199 (fax) 9 Liaison Counsel for Plaintiffs 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- 1446864_1 1 CERTIFICATE OF SERVICE 2 I hereby certify that on June 26, 2018, I authorized the electronic filing of the 3 foregoing with the Clerk of the Court using the CM/ECF system which will send notification 4 of such filing to the e-mail addresses denoted on the attached Electronic Mail Notice List, 5 and I hereby certify that I caused to be mailed the foregoing document or paper via the 6 7 United States Postal Service to the non-CM/ECF participants indicated on the attached 8 Manual Notice List. 9 I certify under penalty of perjury under the laws of the United States of America that 10 the foregoing is true and correct. Executed on June 26, 2018. 11 12 s/ Darryl J. Alvarado Darryl J. Alvarado 13 ROBBINS GELLER RUDMAN 14 & DOWD LLP 655 West Broadway, Suite 1900 15 San Diego, CA 92101-8498 Telephone: 619/231-1058 16 619/231-7423 (fax) 17 E-mail: dalvarado@rgrdlaw.com 18 19 20 21 22 23 24 25 26 27 28 1446864_1 CM/ECF - azd- Page 1 of 4 Mailing Information for a Case 2:12-cv-00555-DGC Smilovits v. First Solar Incorporated et al Electronic Mail Notice List The following are those who are currently on the list to receive e-mail notices for this case. z George C Aguilar gaguilar@robbinsarroyo.com,notice@robbinsarroyo.com z Kathryn B Allen kallen@kmllp.com z Darryl J Alvarado Dalvarado@rgrdlaw.com z Stephen Richard Basser sbasser@barrack.com z Philip T Besirof pbesirof@mofo.com,magdalena-blackmer-3352@ecf.pacerpro.com,mblackmer@mofo.com z Francis A Bottini, Jr fbottini@bottinilaw.com,sammirati@bottinilaw.com z Willie Briscoe wbriscoe@thebriscoelawfirm.com z Luke Brooks lukeb@rgrdlaw.com z Lonnie A Browne LBrowne@rgrdlaw.com z Jennifer N Caringal Jcaringal@rgrdlaw.com z Keith Michael Cochran kcochran@cfsblaw.com z Patrick V Dahlstrom pdahlstrom@pomlaw.com,mzehel@pomlaw.com z Jonathan Adam Dessaules jdessaules@dessauleslaw.com,minuteentries@dessauleslaw.com z Michael J Dowd miked@rgrdlaw.com,e_file_sd@rgrdlaw.com z Daniel S Drosman dand@rgrdlaw.com,hectorm@rgrdlaw.com,karenc@rgrdlaw.com,tholindrake@rgrdlaw.com z Jordan Eth https://ecf.azd.uscourts.gov/cgi-bin/MailList.pl?733665511077362-L_1_0-1 6/26/2018 CM/ECF - azd- Page 2 of 4 jeth@mofo.com,gmartinez@mofo.com,jrahman@mofo.com z Paul Flum PaulFlum@mofo.com,PaulFlum@MoFo.com,lroiz@mofo.com z Jason A Forge jforge@rgrdlaw.com,e_file_sd@rgrdlaw.com z Mark Ryan Scott Foster mfoster@mofo.com,lroiz@mofo.com z Andrew S Friedman afriedman@bffb.com,paquilino@bffb.com,rcreech@bffb.com z Jeffrey Dale Gardner jgardner@jsslaw.com,eblackmountain@jsslaw.com z Richard W Gonnello rgonnello@faruqilaw.com,ecf@faruqilaw.com,dbehnke@faruqilaw.com z Bryan Jens Gottfredson Bryan.Gottfredson@sackstierney.com z Salvatore Jo Graziano salvatore@blbglaw.com,errol.hall@blbglaw.com z Tor Gronborg Torg@rgrdlaw.com z Joseph P Guglielmo jguglielmo@scott-scott.com z Kevin Richard Hanger khanger@strucklove.com,tgation@strucklove.com z Craig Kennedy mbeyers@omlaw.com z Jennifer Lynn Kroll jkroll@martinbonnett.com z Cody R LeJeune clejeune@rgrdlaw.com z Jeffrey S Leonard jeffrey.leonard@sackstierney.com,michelle.curtsinger@sackstierney.com,jessica.chester@sackstierney.com z Jeremy A Lieberman jalieberman@pomlaw.com,disaacson@pomlaw.com z Peter S Linden plinden@kmllp.com z Judson E Lobdell https://ecf.azd.uscourts.gov/cgi-bin/MailList.pl?733665511077362-L_1_0-1 6/26/2018 CM/ECF - azd- Page 3 of 4 jlobdell@mofo.com,judson-lobdell-6493@ecf.pacerpro.com,mblackmer@mofo.com z Susan Joan Martin smartin@martinbonnett.com,tmahabir@martinbonnett.com,mblawfirm@aol.com z Michael Craig McKay mmckay@schneiderwallace.com,efilings@schneiderwallace.com,5256699420@filings.docketbird.com z Danielle S Myers danim@rgrdlaw.com z Patrick Powers patrick@powerstaylor.com,sarah@powerstaylor.com z Ira Michael Press ipress@kmllp.com,bmirza@kmllp.com z Jay N Razzouk jrazzouk@robbinsarroyo.com,notice@robbinsarroyo.com z Brian J Robbins brobbins@robbinsarroyo.com,rsalazar@robbinsarroyo.com,notice@robbinsarroyo.com z Darren J Robbins darrenr@rgrdlaw.com,E_File_SD@rgrdlaw.com z Hart Lawrence Robinovitch AZDocketing@zimmreed.com,sabine.king@zimmreed.com,Hart.Robinovitch@zimmreed.com z Joseph Nathaniel Roth jroth@omlaw.com,bwendt@omlaw.com z David R Scott drscott@scott-scott.com,efile@scott-scott.com z Daniel Slifkin dslifkin@cravath.com,mao@cravath.com,lrosenberg@cravath.com,mbyars@cravath.com z Mark Solomon marks@rgrdlaw.com z Christopher Dennis Stewart CStewart@rgrdlaw.com,e_file_sd@rgrdlaw.com,ldeem@rgrdlaw.com z Edward M Varga, III evarga@kmllp.com z Samuel M Ward sward@barrack.com,jmueller@barrack.com z Anna Erickson White awhite@mofo.com,rwebb@mofo.com,avickery@mofo.com z Garrett Webster Wotkyns https://ecf.azd.uscourts.gov/cgi-bin/MailList.pl?733665511077362-L_1_0-1 6/26/2018 CM/ECF - azd- Page 4 of 4 gwotkyns@schneiderwallace.com,efilings@schneiderwallace.com Manual Notice List The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing). You may wish to use your mouse to select and copy this list into your word processing program in order to create notices or labels for these recipients. z (No manual recipients) https://ecf.azd.uscourts.gov/cgi-bin/MailList.pl?733665511077362-L_1_0-1 6/26/2018

Opinion

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RESPONSE to Motion re: {{423}} MOTION for Hearing or Conference re: Status Conference filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.

1 Joseph N. Roth, No. 025725 2 OSBORN MALEDON, P.A. 2 2929 North Central Avenue, 21st Floor 3 3 Phoenix, Arizona 85012-2793 (602) 640-9000 4 jroth@omlaw.com 4 5 5 Attorneys for Defendants 6 6 7 IN THE UNITED STATES DISTRICT COURT 7 8 FOR THE DISTRICT OF ARIZONA 8 9 Mark Smilovits, individually and on Case No. CV12-00555-PHX-DGC 9 10 behalf of all other persons similarly 10 situated, DEFENDANTS' RESPONSE TO 11 PLAINTIFFS' REQUEST FOR 11 12 Plaintiff, STATUS CONFERENCE 12 13 vs. 14 13 First Solar, Inc., Michael J. Ahearn, 15 14 Robert J. Gillette, Mark R. Widmar, Jens Meyerhoff, James Zhu, Bruce Sohn, and 16 15 David Eaglesham, 17 16 Defendants. 18 17 19 Defendants are in receipt of Plaintiffs' motion, dated June 26, 2018, requesting 18 20 a status conference. (Doc. 423.) Defendants concur that a status conference is 19 21 appropriate prior to the resumption of any further proceedings in this Court. 20 22 Defendants, however, disagree with Plaintiffs' characterization of the recent 21 23 proceedings and are not seeking to extend the stay for the sake of delay. To the 22 24 contrary, as set out in further detail in Defendants' Motion to Extend Stay of 23 25 Proceedings (Doc. 421), a relatively short extension of the stay until the Supreme 24 26 Court has had a chance to weigh in on this urgent and important question is both 27 25 "efficient for [the Court's] own docket and the fairest course for the parties". Leyva v. 28 26 Certified Grocers of Cal., Ltd., 593 F.2d 857, 863 (9th Cir. 1979). Plaintiffs have 1 neither identified any prejudice that would result from a brief extension of the stay, 2 2 nor suggested that it would meaningfully prolong this litigation any further. After all, 3 3 when the Court certified this matter for interlocutory appeal, all must have anticipated 4 that the non-prevailing party at the court of appeals would seek the Supreme Court's 4 5 review. 5 6 Should the Court wish to schedule a status conference while Defendants' 6 7 Motion to Extend Stay of Proceedings remains pending, Defendants request that the 7 8 Court consider the motion at that time. 8 9 Dated this 28th day of June, 2018. 9 10 OSBORN MALEDON, P.A. 10 11 11 12 By s/ Joseph N. Roth 12 13 Joseph N. Roth 2929 N. Central Avenue, 21st Floor 14 13 Phoenix, Arizona 85012 15 14 Attorneys for Defendants 16 15 17 CERTIFICATE OF SERVICE 16 18 I hereby certify that on June 28, 2018, the attached document was 17 19 electronically transmitted to the Clerk of the Court using the CM/ECF System which 18 20 will send notification of such filing and transmittal of a Notice of Electronic Filing to 19 21 all CM/ECF registrants. 20 22 s/ Brenda Wendt 21 23 22 24 23 25 24 26 27 25 28 26 2

ORDER granting {{429}} Motion to Substitute Attorney. Daniel Slifkin, Michael T. Reynolds and Karin A. DeMasi are substituted as counsel of record for Defendants in place of James P. Bennett, Paul Flum, Jordan Eth, Judson E. Lobdell, Anna Erickson White, Philip T. Besirof, and Mark R.S. Foster. Joseph N. Roth will remain as co-counsel for Defendants. Signed by Judge David G Campbell on 7/6/18.

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Mark Smilovits, Individually and on No. CV12-0555-PHX-DGC 9 behalf of all other persons similarly situated, ORDER GRANTING MOTION 10 FOR SUBSTITUTION OF 11 Plaintiff, COUNSEL 12 vs. 13 First Solar, Inc., et al., 14 Defendants. 15 16 17 Pursuant to Defendants' Motion for Substitution of Counsel. Doc. 429. 18 IT IS ORDERED that Defendants' motion for substitution of counsel 19 (Doc. 429) is granted. 20 1. Daniel Slifkin, Michael T. Reynolds and Karin A. DeMasi from Cravath, 21 Swaine & Moore LLP are substituted as counsel of record for Defendants in place of 22 James P. Bennett, Paul Flum, Jordan Eth, Judson E. Lobdell, Anna Erickson White, 23 Philip T. Besirof, and Mark R.S. Foster of the firm of Morrison & Foerster LLP. 24 2. Joseph N. Roth of the firm of Osborn Maledon, P.A., will remain as co- 25 counsel for Defendants. 26 Dated this 6th day of July, 2018. 27 28

REPORT Joint Report per Court's July 2, 2018 Order re: 428 by Plaintiffs British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.

1 ROBBINS GELLER RUDMAN & DOWD LLP 2 Daniel S. Drosman (CA SBN 200643) (Admitted pro hac vice) Luke O. Brooks (CA SBN 212802) (Admitted pro hac vice) 3 Darryl J. Alvarado (CA SBN 253213) (Admitted pro hac vice) Christopher D. Stewart (CA SBN 270448) (Admitted pro hac vice) 4 Hillary B. Stakem (CA SBN 286152) (Admitted pro hac vice) 655 West Broadway, Suite 1900 5 San Diego, CA 92101 Telephone: 619/231-1058 6 619/231-7423 (fax) dand@rgrdlaw.com 7 lukeb@rgrdlaw.com dalvarado@rgrdlaw.com 8 cstewart@rgrdlaw.com hstakem@rgrdlaw.com 9 Lead Counsel for Plaintiffs 10 [Additional counsel appear on signature page.] 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Mark Smilovits, Individually and on Behalf) No. 2:12-cv-00555-DGC 14 of All Others Similarly Situated,)) CLASS ACTION 15 Plaintiff,)) JOINT REPORT 16 vs.)) 17 First Solar, Inc., Michael J. Ahearn, Robert) J. Gillette, Mark R. Widmar, Jens) 18 Meyerhoff, James Zhu, Bruce Sohn and) David Eaglesham,) 19) Defendants.) 20) 21 22 23 24 25 26 27 28 1455503_1 1 Pursuant to the Court's July 2, 2018 Order (ECF No. 428), the parties submit this joint 2 report to inform the Court of their views on the remaining schedule for the case. The parties 3 have conferred and have agreed on a proposed schedule to complete the remaining pretrial 4 activities and trial. The parties' proposed schedule is set forth below and a proposed order is 5 6 being filed with this joint report. 7 In addition, regarding the time needed for trial, the parties agree that each side shall 8 have a total of 5 hours for opening and closing statements (including any rebuttal), and 55 9 hours each for the remainder of trial time (excluding voir dire). 10 11 EVENT DATE 12 Plaintiffs provide Defendants with a list of August 31, 2018 specific alleged misrepresentations and 13 omissions forming the basis for Plaintiffs' case 14 Plaintiffs submit opening expert reports September 14, 2018 15 Defendants submit opening expert reports October 26, 2018 16 Plaintiffs provide Defendants with a November 13, 2018 17 preliminary witness list for Plaintiffs' case-in-chief 18 Parties submit any rebuttal expert reports November 30, 2018 19 Defendants provide Plaintiffs with: (1) a December 21, 2018 preliminary witness list for Defendants' 20 case-in-chief; (2) a list of those individuals identified in Plaintiffs' November 13, 21 2018 witness list that (a) defense counsel represents and (b) are available to testify 22 live at trial 23 Expert depositions completed January 11, 2019 24 Motions in limine filed February 1, 2019 25 Daubert motions filed February 1, 2019 26 Oppositions to motions in limine filed March 1, 2019 27 28 -1- 1455503_1 1 EVENT DATE 2 Oppositions to Daubert motions filed March 1, 2019 3 Proposed Final Pretrial Order filed March 8, 2019 4 Replies to Daubert motions filed March 15, 2019 5 Final Pretrial Conference held March 22, 2019 (or at a time thereafter 6 convenient to the Court) 7 Trial begins March 26, 2019 (or a time thereafter convenient to the Court) 8 9 DATED: July 26, 2018 ROBBINS GELLER RUDMAN & DOWD LLP 10 Daniel S. Drosman Luke O. Brooks 11 Darryl J. Alvarado Christopher D. Stewart 12 Hillary B. Stakem 13 s/ Darryl J. Alvarado 14 Darryl J. Alvarado 655 West Broadway, Suite 1900 15 San Diego, CA 92101 Telephone: 619/231-1058 16 619/231-7423 (fax) 17 Lead Counsel for Plaintiffs 18 BONNETT FAIRBOURN FRIEDMAN & BALINT, P.C. 19 Andrew S. Friedman (AZ005425) Kevin Hanger (AZ027346) 20 2325 East Camelback Road, Suite 300 Phoenix, AZ 85016 21 Telephone: 602/274-1100 602/274-1199 (fax) 22 Liaison Counsel for Plaintiffs 23 DATED: July 26, 2018 CRAVATH, SWAINE & MOORE LLP 24 Daniel Slifkin Michael T. Reynolds 25 Karin A. Demasi 26 27 s/ Daniel Slifkin Daniel Slifkin 28 -2- 1455503_1 1 825 Eighth Avenue 2 Worldwide Plaza New York, NY 10019 3 Telephone: 212/474-1000 4 212/474-3700 (fax) 5 OSBORN MALEDON, PA Joseph N. Roth 6 2929 North Central Avenue, 21st Floor Phoenix, AZ 85012 7 Telephone: 602/640-9000 8 602/640-9050 (fax) 9 Attorneys for Defendants 10 CERTIFICATE OF SERVICE 11 I hereby certify that on July 26, 2018, the attached document was electronically 12 transmitted to the Clerk of the Court using the CM/ECF System which will send notification 13 of such filing and transmittal of a Notice of Electronic Filing to all CM/ECF registrants. 14 15 s/ Darryl J. Alvarado 16 Darryl J. Alvarado 17 18 19 20 21 22 23 24 25 26 27 28 -3- 1455503_1 012312456 Case 2:12-cv-00555-DGC Document781 97 ÿ ÿ Filed 07/26/18 Page 5 of 7)*+,+-.ÿ0-1234*5+2-ÿ123ÿ*ÿ6*78ÿ9:;9<=><??@@@<AB6ÿC4+,2>+57ÿ>DÿE+375 431 C2,*3ÿ0-=23F23*58Gÿ85ÿ*,ÿ H,8=532-+=ÿ)*+,ÿI25+=8ÿJ+75 KLMÿOPQQPRSTUÿVWMÿXLPYMÿRLPÿVWMÿZ[WWMTXQ\ÿPTÿXLMÿQSYXÿXPÿWMZMS]MÿM^_VSQÿTPXSZMYÿOPWÿXLSYÿZVYM` B823.8ÿ6ÿa.b+,*3ÿ UVU[SQVWcWPddSTYVWWP\P`ZP_eTPXSZMcWPddSTYVWWP\P`ZP_ f*5g3h-ÿiÿa,,8-ÿ jVQQMTcj_QQk`ZP_ A*33h,ÿlÿa,>*3*G2ÿ mVQ]VWVnPcWUWnQVR`ZP_ C58Fg8-ÿo+=g*3Gÿi*7783ÿ YdVYYMWcdVWWVZj`ZP_ E3*-=+7ÿaÿi255+-+ÿpÿl3ÿ OdPXXSTScdPXXSTSQVR`ZP_eYV__SWVXScdPXXSTSQVR`ZP_ q+,,+8ÿi3+7=28ÿ RdWSYZPMcXLMdWSYZPMQVROSW_`ZP_ Jbr8ÿi322r7ÿ Q[jMdcWUWnQVR`ZP_ J2--+8ÿaÿi32s-8ÿ tuWPRTMcWUWnQVR`ZP_ l8--+183ÿIÿ6*3+-.*,ÿ vZVWSTUVQcWUWnQVR`ZP_ f8+5gÿ)+=g*8,ÿ62=g3*-ÿ jZPZLWVTcZOYdQVR`ZP_ w*53+=rÿxÿA*g,75324ÿ knVLQYXWP_ckP_QVR`ZP_e_yMLMQckP_QVR`ZP_ f*3+-ÿaÿA8)*7+ÿ jnM_VYScZWV]VXL`ZP_e_VPcZWV]VXL`ZP_ l2-*5g*-ÿaG*4ÿA877*b,87ÿ znMYYV[QMYcnMYYV[QMYQVR`ZP_e_ST[XMMTXWSMYcnMYYV[QMYQVR`ZP_)+=g*8,ÿlÿA2sGÿ _SjMncWUWnQVR`ZP_ejVWMTZcWUWnQVR`ZP_eM{OSQM{YncWUWnQVR`ZP_ A*-+8,ÿCÿA3274*-ÿ nVTncWUWnQVR`ZP_eXLPQSTnWVjMcWUWnQVR`ZP_e||}~|~€‚cOSQSTUY`nPZjMXdSWn`ZP_ l*72-ÿaÿE23.8ÿ zOPWUMcWUWnQVR`ZP_eM{OSQM{YncWUWnQVR`ZP_ 11 ent781 97 ÿ ÿ Filed 431 07/26/18 Page 6 of 7)*+,-.ÿ0ÿ1,2-+34*ÿ 56789:;5<=>66>?@A;BC5DE8F8<A=>66>?@A;B7@799@G=>66>?@A; H-II,-JÿK4L-ÿM4,+*-,ÿ NO57:<97=NPPF5Q?@A;B9>F5@R;AE<S58<=NPPF5Q?@A; T2UV4,+ÿWÿMX**-LLXÿ 7OA<<9FFA=657ED8F5Q?@A;B9@6=657ED8F5Q?@A;B:>9G<R9=657ED8F5Q?@A; Y,J4*ÿH-*ZÿMX[[I,-+ZX*ÿ \7]5<?^ASS679:PA<=P5@RPS897<9]?@A; 04L_4[X,-ÿHXÿM,4`24*Xÿ P5Fa5SA79=>F>OF5Q?@A;B977AF?G5FF=>F>OF5Q?@A; bX,ÿM,X*cX,dÿ eA7O=7O7:F5Q?@A; HXZ-fVÿgÿMhdL2-L3Xÿ NOEOF89F;A=P@ASSiP@ASS?@A; j-_2*ÿT2UV4,+ÿk4*d-,ÿ RG5<O97=PS7E@RFAa9?@A;BSO5S8A<=PS7E@RFAa9?@A; lhd-*-ÿMÿmLLX_ZnJÿ 98FFAaPR]=;A6A?@A; o,42dÿj-**-+Jÿ;>9]97P=A;F5Q?@A; H-**2I-,ÿqJ**ÿj,XLLÿ NR7AFF=;57S8<>A<<9SS?@A; oX+JÿTÿq-H-h*-ÿ @F9N9E<9=7O7:F5Q?@A; H-II,-Jÿ0ÿq-X*4,+ÿ N96679]?F9A<57:=P5@RPS897<9]?@A;B;8@G9FF9?@E7SP8<O97=P5@RPS897<9]?@A;BN9PP8@5?@G9PS97=P5@RPS897<9]?@A; H-,-3Jÿ)ÿq2-c-,34*ÿ N5F89>97;5<=CA;F5Q?@A;B:8P55@PA<=CA;F5Q?@A; g-[-,ÿ0ÿq2*+-*ÿ CF8<:9<=R;FFC?@A; 0hZ4*ÿHX4*ÿr4,[2*ÿ P;57S8<=;57S8<>A<<9SS?@A;BS;5G5>87=;57S8<>A<<9SS?@A;B;>F5Q687;=5AF?@A; r2UV4-Lÿo,42dÿrUj4Jÿ;;@R5]=P@G<98:97Q5FF5@9?@A;B968F8<OP=P@G<98:97Q5FF5@9?@A;Bstsuuvvwtx=68F8<OP?:A@R9S>87:?@A; K4*2-LL-ÿ0ÿrJ-,Zÿ:5<8;=7O7:F5Q?@A; g4[,2UnÿgX.-,Zÿ C5S78@R=CAQ97PS5]FA7?@A;BP575G=CAQ97PS5]FA7?@A; 11 ent781 97 ÿ ÿ Filed 431 07/26/18 Page 7 of 7)*+ÿ-./0+12ÿ3*144ÿ 567899:;<==6>?@<AB<57CD:;<==6>?@< E+FÿGÿH+IIJKLÿ M7DCC@N;:7@BB5O9D77@P@>?@<AO@Q5?8:7@BB5O9D77@P@>?@< -./0+12ÿRÿH1FSJ2T4ÿ <78PO@=U9:?7DVDQW>?@<A<D@:?7DVDQW>?@< X*.+SÿEÿHJYY.S4ÿ B7@BB5O9:7@BB5O9D77@P@>?@<A79D=DCD7:7@BB5O9D77@P@>?@<AO@Q5?8:7@BB5O9D77@P@>?@< Z+**1SÿEÿHJYY.S4ÿ UD778O7:7[7U=D\>?@<A]^_5=8^`a:7[7U=D\>?@< b+*cÿd+e*1S/1ÿHJY.SJf.c/0ÿ gha@?;8Q5O[:C5<<788U>?@<A9DB5O8>;5O[:C5<<788U>?@<AiD7Q>j@B5O@V5Q?W:C5<<788U>?@< EJ41k0ÿG+c0+S.12ÿHJc0ÿ M7@QW:@<=D\>?@<AB\8OUQ:@<=D\>?@< Z+f.TÿHÿl/Jccÿ U79?@QQ:9?@QQm9?@QQ>?@<A8n5=8:9?@QQm9?@QQ>?@< Z+S.12ÿl2.oL.Sÿ U9=5n;5O:?7DVDQW>?@<A<D@:?7DVDQW>?@<A<BPD79:?7DVDQW>?@< -+*LÿlJ2JpJSÿ <D7;9:7[7U=D\>?@< b.22+*FÿXÿlc+L1pÿ W9QD;8<:7[7U=D\>?@<A=U88<:7[7U=D\>?@< q0*.4cJk01*ÿZ1SS.4ÿlc1e+*cÿ r`Q8\D7Q:7[7U=D\>?@<A8^n5=8^9U:7[7U=D\>?@< sTe+*Tÿ-ÿt+*u+ÿvÿ)))ÿ 8VD7[D:;<==6>?@< l+pK12ÿ-ÿx+*Tÿ 9\D7U:BD77D?;>?@<AM<N8==87:BD77D?;>?@< y+**1ccÿx1Y4c1*ÿxJcLFS4ÿ [\@Q;PO9:9?WO85U87\D==D?8>?@<A8n5=5O[9:9?WO85U87\D==D?8>?@< -+SK+2ÿGJc./1ÿd.4c zW8ÿn@==@\5O[ÿ59ÿQW8ÿ=59Qÿ@nÿDQQ@7O8P9ÿ\W@ÿD78ÿSJcÿ@OÿQW8ÿ=59QÿQ@ÿ78?85V8ÿ8m<D5=ÿO@Q5?89ÿn@7ÿQW59ÿ?D98ÿ{\W@ÿQW878n@78 78|N578ÿ<DOND=ÿO@Q5?5O[}>ÿ~@Nÿ<DPÿ\59WÿQ@ÿN98ÿP@N7ÿ<@N98ÿQ@ÿ98=8?QÿDOUÿ?@6PÿQW59ÿ=59Qÿ5OQ@ÿP@N7ÿ\@7Uÿ67@?8995O[ 67@[7D<ÿ5Oÿ@7U87ÿQ@ÿ?78DQ8ÿO@Q5?89ÿ@7ÿ=DB8=9ÿn@7ÿQW898ÿ78?5658OQ9> €ÿƒ„ †„‡ÿˆ‰Š‹Œ‹‰ Ž 11 1 18 !" !#$%5%&3$$$3%%' "(5(4 5 $1$

Text of Proposed Order

1 ROBBINS GELLER RUDMAN & DOWD LLP 2 Daniel S. Drosman (CA SBN 200643) (Admitted pro hac vice) Luke O. Brooks (CA SBN 212802) (Admitted pro hac vice) 3 Darryl J. Alvarado (CA SBN 253213) (Admitted pro hac vice) Christopher D. Stewart (CA SBN 270448) (Admitted pro hac vice) 4 Hillary B. Stakem (CA SBN 286152) (Admitted pro hac vice) 655 West Broadway, Suite 1900 5 San Diego, CA 92101 Telephone: 619/231-1058 6 619/231-7423 (fax) dand@rgrdlaw.com 7 lukeb@rgrdlaw.com dalvarado@rgrdlaw.com 8 cstewart@rgrdlaw.com hstakem@rgrdlaw.com 9 Lead Counsel for Plaintiffs 10 [Additional counsel appear on signature page.] 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Mark Smilovits, Individually and on Behalf) No. 2:12-cv-00555-DGC 14 of All Others Similarly Situated,)) CLASS ACTION 15 Plaintiff,)) [PROPOSED] ORDER 16 vs.)) 17 First Solar, Inc., Michael J. Ahearn, Robert) J. Gillette, Mark R. Widmar, Jens) 18 Meyerhoff, James Zhu, Bruce Sohn and) David Eaglesham,) 19) Defendants.) 20) 21 22 23 24 25 26 27 28 1455863_1 1 Based upon the Parties' Joint Report and good cause appearing, 2 IT IS HEREBY ORDERED setting the following schedule for the remainder of the 3 litigation: 4 1. Plaintiffs provide Defendants with a list of specific alleged misrepresentations 5 6 and omissions forming the basis for Plaintiffs' case: August 31, 2018. 7 2. Plaintiffs submit opening expert reports: September 14, 2018. 8 3. Defendants submit opening expert reports: October 26, 2018. 9 4. Plaintiffs provide Defendants with a preliminary witness list for Plaintiffs' 10 11 case-in-chief: November 13, 2018. 12 5. Parties submit any rebuttal expert reports: November 30, 2018. 13 6. Defendants provide Plaintiffs with: (1) a preliminary witness list for 14 Defendants' case-in-chief; (2) a list of those individuals identified in Plaintiffs' November 15 16 13, 2018 witness list that (a) defense counsel represents and (b) are available to testify live at 17 trial: December 21, 2018. 18 7. Expert depositions completed: January 11, 2019. 19 8. Motions in limine filed: February 1, 2019. 20 21 9. Daubert motions filed: February 1, 2019. 22 10. Oppositions to motions in limine filed: March 1, 2019. 23 11. Oppositions to Daubert motions filed: March 1, 2019. 24 12. Proposed Final Pretrial Order filed: March 8, 2019. 25 26 13. Replies to Daubert motions filed: March 15, 2019. 27 28 -1- 1455863_1 1 14. Final Pretrial Conference held: March 22, 2019 (or at a time thereafter 2 convenient to the Court). 3 15. Trial begins: March 26, 2019 (or a time thereafter convenient to the Court). 4 16. Each side shall have a total of 5 hours for opening and closing statements, 5 6 including any rebuttal statement. Each side shall have a total of 55 hours for the remainder 7 of trial, excluding voir dire. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- 1455863_1

TRANSCRIPT REQUEST relating to status conference by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme for proceedings held on 08/02/2018, Judge David G Campbell hearing judge(s).

2AO 435 Case 2:12-cv-00555-DGC Document Administrative Office of the 433 Filed 08/03/18 Page United States Courts 1 of 1USE ONLY FOR COURT AZ Form (Rev. an & Dowd LLP 5. MAILING ADDRESS 6. CITY 7. STATE 8. ZIP CODE 655 West Broadway, Suite 1900 San Diego CA 92101 9. CASE NUMBER 10. JUDGE DATES OF PROCEEDINGS 2:12-cv-00555-DGC Campbell 11. 8/2/2018 12. 13. CASE NAME LOCATION OF PROCEEDINGS Smilovits v. First Solar, Inc. 14. Phoenix 15. STATE AZ 16. ORDER FOR APPEAL CRIMINAL CRIMINAL JUSTICE ACT BANKRUPTCY ✔ NON-APPEAL ✔ CIVIL IN FORMA PAUPERIS OTHER 6SHFLI\ 17. TRANSCRIPT REQUESTED (Specify portion(s) and date(s) of proceeding(s) for which transcript is requested) PORTIONS DATE(S) PORTION(S) DATE(S) VOIR DIRE TESTIMONY (6SHFLI\ OPENING STATEMENT (Plaintiff) OPENING STATEMENT (Defendant) CLOSING ARGUMENT (Plaintiff) PRE-TRIAL PROCEEDING CLOSING ARGUMENT (Defendant) OPINION OF COURT JURY INSTRUCTIONS ✔ OTHER (6SHFLI\) SENTENCING Status Conference 8/2/2018 BAIL HEARING 18. ORDER ORIGINAL + 1 FIRST # OF DELIVERY INSTRUCTIONS CATEGORY (original to Court, ADDITIONAL ESTIMATED COSTS COPY (&heck all that apply) copy to ordering party) COPIES 30 DAYS PAPER COPY 14 DAYS 7 DAYS ✔ 3') H PDLO '$<6 DAILY ✔ $6&,, H PDLO HOURLY REALTIME E-MAIL ADDRESS cstewart@rgrdlaw.com; ldeem@rgrdlaw.com CERTIFICATION (19. & 20.) By signing below, I certify that I will pay all charges (deposit plus additional). NOTE: IF ORDERING 025(7+$1 21()250$7, 19. SIGNATURE s/Christopher D. Stewart THERE WILL BE AN ADDITIONAL CHARGE. 20. DATE 8/3/2018 TRANSCRIPT TO BE PREPARED BY ESTIMATE TOTAL PROCESSED BY PHONE NUMBER ORDER RECEIVED DATE BY DEPOSIT PAID DEPOSIT PAID TRANSCRIPT ORDERED TOTAL CHARGES TRANSCRIPT RECEIVED LESS DEPOSIT ORDERING PARTY NOTIFIED TOTAL REFUNDED TO PICK UP TRANSCRIPT PARTY RECEIVED TRANSCRIPT TOTAL DUE DISTRIBUTION: COURT COPY TRANSCRIPTION COPY ORDER RECEIPT ORDER COPY

TRANSCRIPT REQUEST by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu for proceedings held on August 2, 2018, Judge David G Campbell hearing judge(s).

OAO 435 Case 2:12-cv-00555-DGC Document Administrative Office of the 435 Filed 08/07/18 Page United States Courts 1 of 1USE ONLY FOR COURT AZ Form (Rev. 3/2018) DUE DATE: TRANSCRIPT ORDER 1. NAME 2. PHONE NUMBER 3. DATE Daniel Slifkin (212) 474-1000 08/07/2018 4. FIRM NAME Cravath, Swaine & Moore LLP 5. MAILING ADDRESS 6. CITY 7. STATE 8. ZIP CODE 825 Eighth Avenue New York NY 10019 9. CASE NUMBER 10. JUDGE DATES OF PROCEEDINGS 2:12-cv-00555-DGC Campbell 11. 08/02/2018 12. 13. CASE NAME LOCATION OF PROCEEDINGS Smilovits v. First Solar Incorporated et al 14. Phoenix 15. STATE AZ 16. ORDER FOR 9 APPEAL 9 CRIMINAL 9 CRIMINAL JUSTICE ACT BANKRUPTCY 9 NON-APPEAL ✔ 9 CIVIL 9 IN FORMA PAUPERIS OTHER (Specify) 17. TRANSCRIPT REQUESTED (Specify portion(s) and date(s) of proceeding(s) for which transcript is requested.) PORTIONS DATE(S) PORTION(S) DATE(S) 9VOIR DIRE 9TESTIMONY (Specify) 9OPENING STATEMENT (Plaintiff) 9OPENING STATEMENT (Defendant) 9CLOSING ARGUMENT (Plaintiff) 9PRE-TRIAL PROCEEDING 9CLOSING ARGUMENT (Defendant) 9OPINION OF COURT 9JURY INSTRUCTIONS ✔9OTHER (Specify) 8/2/18 Status Conference 9SENTENCING 9BAIL HEARING 18. ORDER ORIGINAL + 1 FIRST # OF DELIVERY INSTRUCTIONS CATEGORY (original to Court, ADDITIONAL ESTIMATED COSTS COPY (Check all that apply.) copy to ordering party) COPIES 30 DAYS 9 9 PAPER COPY 14 DAYS 9 9 7 DAYS 9 9 ✔ PDF (e-mail) 3 DAYS 9 9 DAILY 9 9 ASCII (e-mail) HOURLY 9 9 REALTIME ✔ E-MAIL ADDRESS mao@cravath.com CERTIFICATION (19. & 20.) By signing below, I certify that I will pay all charges (deposit plus additional). NOTE: IF ORDERING MORE THAN ONE FORMAT, 19. SIGNATURE /s/ Daniel Slifkin THERE WILL BE AN ADDITIONAL CHARGE. 20. DATE 8/7/2018 TRANSCRIPT TO BE PREPARED BY ESTIMATE TOTAL PROCESSED BY PHONE NUMBER ORDER RECEIVED DATE BY DEPOSIT PAID DEPOSIT PAID TRANSCRIPT ORDERED TOTAL CHARGES TRANSCRIPT RECEIVED LESS DEPOSIT ORDERING PARTY NOTIFIED TOTAL REFUNDED TO PICK UP TRANSCRIPT PARTY RECEIVED TRANSCRIPT TOTAL DUE DISTRIBUTION: COURT COPY TRANSCRIPTION COPY ORDER RECEIPT ORDER COPY

AMENDED TRANSCRIPT REQUEST pursuant to 436 Notice of Deficiency by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu for proceedings held on August 2, 2018, Judge David G Campbell hearing judge(s).

OAO 435 Case 2:12-cv-00555-DGC Document Administrative Office of the 437 Filed 08/07/18 Page United States Courts 1 of 1USE ONLY FOR COURT AZ Form (Rev. 3/2018) DUE DATE: TRANSCRIPT ORDER 1. NAME 2. PHONE NUMBER 3. DATE Daniel Slifkin (212) 474-1000 08/07/2018 4. FIRM NAME Cravath, Swaine & Moore LLP 5. MAILING ADDRESS 6. CITY 7. STATE 8. ZIP CODE 825 Eighth Avenue New York NY 10019 9. CASE NUMBER 10. JUDGE DATES OF PROCEEDINGS 2:12-cv-00555-DGC Campbell 11. 08/02/2018 12. 13. CASE NAME LOCATION OF PROCEEDINGS Smilovits v. First Solar Incorporated et al 14. Phoenix 15. STATE AZ 16. ORDER FOR 9 APPEAL 9 CRIMINAL 9 CRIMINAL JUSTICE ACT BANKRUPTCY 9 NON-APPEAL ✔ 9 CIVIL 9 IN FORMA PAUPERIS OTHER (Specify) 17. TRANSCRIPT REQUESTED (Specify portion(s) and date(s) of proceeding(s) for which transcript is requested.) PORTIONS DATE(S) PORTION(S) DATE(S) 9VOIR DIRE 9TESTIMONY (Specify) 9OPENING STATEMENT (Plaintiff) 9OPENING STATEMENT (Defendant) 9CLOSING ARGUMENT (Plaintiff) 9PRE-TRIAL PROCEEDING 9CLOSING ARGUMENT (Defendant) 9OPINION OF COURT 9JURY INSTRUCTIONS ✔9OTHER (Specify) 8/2/18 Status Conference 9SENTENCING 9BAIL HEARING 18. ORDER ORIGINAL + 1 FIRST # OF DELIVERY INSTRUCTIONS CATEGORY (original to Court, ADDITIONAL ESTIMATED COSTS COPY (Check all that apply.) copy to ordering party) COPIES 30 DAYS 9 9 PAPER COPY 14 DAYS 9 9 7 DAYS 9 9 ✔ PDF (e-mail) 3 DAYS 9 9 DAILY 9 9 ASCII (e-mail) HOURLY 9 9 ✔ REALTIME E-MAIL ADDRESS mao@cravath.com CERTIFICATION (19. & 20.) By signing below, I certify that I will pay all charges (deposit plus additional). NOTE: IF ORDERING MORE THAN ONE FORMAT, 19. SIGNATURE /s/ Daniel Slifkin THERE WILL BE AN ADDITIONAL CHARGE. 20. DATE 8/7/2018 TRANSCRIPT TO BE PREPARED BY ESTIMATE TOTAL PROCESSED BY PHONE NUMBER ORDER RECEIVED DATE BY DEPOSIT PAID DEPOSIT PAID TRANSCRIPT ORDERED TOTAL CHARGES TRANSCRIPT RECEIVED LESS DEPOSIT ORDERING PARTY NOTIFIED TOTAL REFUNDED TO PICK UP TRANSCRIPT PARTY RECEIVED TRANSCRIPT TOTAL DUE DISTRIBUTION: COURT COPY TRANSCRIPTION COPY ORDER RECEIPT ORDER COPY

ORDER. Motions in limine due by 2/1/2019; responses to motions in limine due 3/1/2019. Proposed Pretrial Order due by 3/15/2019. Jury Trial set for 4/9/2019 at 09:00 AM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Status Conference set for 12/7/2018 at 11:00 AM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Signed by Judge David G Campbell on 8/7/2018.

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 Mark Smilovits, Individually and on Behalf) No. CV12-0555-PHX DGC of All Others Similarly Situated,) 9) CLASS ACTION Plaintiff,) 10) SCHEDULING ORDER vs.) 11 First Solar, Inc, et al.,) 12) Defendants.) 13)) 14 15 Based upon the parties' joint report and the status conference on August 2, 2018, the 16 following schedule will apply to the remainder of this litigation. 17 1. Plaintiffs shall provide Defendants with a list of specific alleged 18 misrepresentations and omissions forming the basis for Plaintiffs' case by August 31, 2018. 19 2. Plaintiffs shall provide full and complete expert disclosures, as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure, by September 14, 2018.1 20 3. Defendants shall provide full and complete expert disclosures, as required by 21 Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure, by October 26, 2018. 22 23 1 As stated in the Advisory Committee Notes to Rule 26 (1993 Amendments), expert reports 24 under Rule 26(a)(2)(B) must set forth "the testimony the witness is expected to present 25 of suchdirect during examination, together with the reasons therefor." Full and complete disclosures testimony are required on the dates set forth above; absent extraordinary 26 circumstances, parties will not be permitted to supplement expert reports after these dates. The Court notes, however, that it usually permits parties to present testimony of their experts 27 that was elicited by opposing counsel during depositions of the experts. Counsel should depose experts with this fact in mind. Each side shall be limited to one retained or 28 specifically employed expert witness per issue. -1- 1 4. Plaintiffs provide Defendants with a preliminary witness list for Plaintiffs' 2 case-in-chief: November 13, 2018. 3 5. Plaintiff shall provide rebuttal expert reports, if any, by November 30, 2018. 4 Rebuttal reports shall be limited to responding to opinions stated by initial experts. 6. The Court will hold a status conference with the parties on December 7, 2018, 5 at 11:00 a.m. The parties may participate by phone. Counsel for Plaintiff shall initiate a 6 conference call to include counsel for all parties and the Court. If a dial-in number is used, 7 counsel for Plaintiff shall provide the dial-in number to counsel for all parties and the Court 8 no later than December 5, 2018 at 12:00 noon. 9 7. Defendants shall provide Plaintiffs with: (1) a preliminary witness list for 10 Defendants' case-in-chief; (2) a list of those individuals identified in Plaintiffs' 11 November 13, 2018 witness list that (a) defense counsel represents and (b) are available to 12 testify live at trial, by December 21, 2018. 13 8. Expert depositions completed: January 11, 2019. 14 9. Motions in limine filed: February 1, 2019. 15 10. Daubert motions filed: February 1, 2019. 16 11. Oppositions to motions in limine filed: March 1, 2019. 17 12. Oppositions to Daubert motions filed: March 1, 2019. 18 13. Replies to Daubert motions filed: March 12, 2019. 19 14. Proposed Final Pretrial Order filed: March 15, 2019. 15. Final Pretrial Conference: March 22, 2019, at 2:00 p.m. 20 16. Trial begins: April 9, 2019. 21 17. Each side shall have a total of 40 hours of trial time, excluding voir dire. 22 18. If a discovery dispute arises, the parties promptly shall call the Court to request 23 a telephone conference concerning the dispute. The Court will seek to resolve the dispute 24 during the telephone conference, and may enter appropriate orders on the basis of the 25 telephone conference. The Court may order written briefing if it does not resolve the dispute 26 during the telephone conference. The parties shall not file written discovery motions without 27 leave of Court. Absent extraordinary circumstances, the Court will not entertain expert 28 discovery disputes after the deadline for completion of expert discovery. -2- 1 19. All memoranda filed with the Court shall comply with Local Rule of Civil 2 Procedure 7.1(b) requiring 13 point font in text and footnotes. Citations in support of any 3 assertion in the text shall be included in the text, not in footnotes. 4 Dated this 7th day of August, 2018. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

ORDER. Final Pretrial Conference set for 3/22/2019 at 02:00 PM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. See Order for complete details. Signed by Judge David G Campbell on 8/7/2018.

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Mark Smilovits, individually and on behalf No. CV12-0555-PHX-DGC 9 of all others similarly situated, ORDER SETTING TRIAL 10 Plaintiff, 11 vs. 12 First Solar, Inc., et al., 13 Defendants. 14 15 A Final Pretrial Conference shall be held on March 22, 2019 at 2:00 p.m. 16 Counsel on behalf of Plaintiff and Defendants shall appear in person at the hearing. 17 IT IS HEREBY ORDERED: 18 1. Trial in this matter shall begin on April 9, 2019, at 9:00 a.m. 19 2. The trial shall last 16 days (April 9-12, 15-19, 23-26, 29-30 and May 1). 20 Plaintiffs shall be allotted 40 hours of trial time and Defendants shall be allotted 40 hours 21 of trial time. The Court will keep track of each side's time. Opening and closing 22 statements, direct examination, and cross-examination shall be counted against the 23 parties' allotted time. 24 3. The parties' proposed final pretrial order shall be filed on March 15, 2019 25 The final pretrial order shall govern the presentation of evidence and other trial issues, 26 and, pursuant to Rule 16(e) of the Federal Rules of Civil Procedure, shall be modified 27 only to prevent manifest injustice. Evidence, objections, legal arguments, and relief not 28 requested or identified in the order shall not be available at trial, except to prevent 1 manifest injustice. Objections to witnesses and documents should also be listed. 2 4. The parties shall exchange drafts of the Proposed Final Pretrial Order no 3 later than 14 days before the submission deadline. The Plaintiff(s) shall have the burden 4 of initiating communications concerning the Proposed Final Pretrial Order. 5 5. The parties shall (a) number and mark exhibits in accordance with the 6 instructions found in Exhibit Marking Instructions at www.azd.uscourts.gov under Judges 7 and Courtrooms and Orders, Forms and Procedures (such numbers shall correspond to 8 exhibits numbers listed in the Proposed Final Pretrial Order); (b) meet in person and 9 exchange marked copies of all exhibits to be used at trial no later than 14 days before the 10 submission deadline for the Proposed Final Pretrial Order (any exhibit not marked and 11 exchanged at this meeting shall be precluded at trial); and (c) eliminate any duplicate 12 exhibits while meeting to exchange exhibits. 13 6. If this case will be tried to a jury, the parties shall complete the following 14 tasks by the time of the lodging of the Proposed Final Pretrial Order: 15 (a) The parties shall file a stipulated description of the case to be read to 16 the jury. 17 (b) The parties shall jointly file a proposed set of voir dire questions. 18 The voir dire questions shall be drafted in a neutral manner. To the extent possible, the 19 parties shall stipulate to the proposed questions. If the parties have any disagreement 20 about a particular question, they shall state the reason for their objection below the 21 question. The parties shall also provide, for the purposes of voir dire, a joint master list 22 of the names of every witness who may be called at trial. 23 (c) The parties shall file proposed jury instructions in accordance with 24 "Guidelines for Jury Instructions in Civil Cases" found at www.azd.uscourts.gov under: 25 (1) Judges and Courtrooms, (2) Orders, Forms and Procedures, and (3) David G. 26 Campbell. 27 (d) Each party shall file a proposed form of verdict, including any 28 -2- 1 proposed special verdict forms or juror interrogatories. 2 (e) The joint statement of the case, proposed voir dire questions, 3 proposed jury instructions, and forms of verdict shall be submitted in Word format to 4 Nancy_Outley@azd.uscourts.gov. 5 7. In order to facilitate the creation of an accurate record, the parties shall file 6 a "Notice to Court Reporter" one week before trial containing the following information 7 that may be used at trial: 8 (a) Proper names, including those of witnesses. 9 (b) Acronyms. 10 (c) Geographic locations. 11 (d) Technical (including medical) terms, names or jargon. 12 (e) Case names and citations. 13 (f) Pronunciation of unusual or difficult words or names. 14 8. The parties shall be prepared to advise the Court at the Final Pretrial 15 Conference of the status of settlement discussions. Should settlement be reached at any 16 time, the parties promptly shall file a Notice of Settlement with the Clerk of the Court. 17 9. Counsel shall review Judge Campbell's statement of Trial Conduct and 18 Decorum before the Final Pretrial Conference. A copy can be found on the Court's 19 website at www.azd.uscourts.gov under: (1) Judges and Courtrooms, (2) Orders, Forms 20 and Procedures, and (3) David G. Campbell. 21 10. Full and complete compliance with this Order shall be required by the 22 Court. 23 Dated this 7th day of August, 2018. 24 25 26 27 28 -3-

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Description
1
03/15/2012
COMPLAINT. Filing fee received: $350.00, receipt number PHX 0970-6523903, filed by Mark Smilovits (submitted by Susan Martin).
1
Exhibit
2
Exhibit
3
Civil Cover Sheet)(REK
3 Attachments
2
03/15/2012
SUMMONS Submitted by Mark Smilovits (submitted by Susan Martin).
1
Summons
2
Summons
3
Summons
4
Summons
5
Summons)(REK
5 Attachments
3
03/15/2012
Filing fee paid, receipt number PHX 0970-6523903. This case has been assigned to the Honorable David G. Campbell. All future pleadings or documents should bear the correct case number: CV 12-00555-PHX-DGC. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached.
4
03/15/2012
Summons Issued as to Michael J Ahearn, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Mark R Widmar, James Zhu. *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document.
1
Summons
2
Summons
3
Summons
4
Summons
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Summons)(REK
5 Attachments
5
04/03/2012
*SUMMONS Returned Executed by Mark Smilovits. First Solar Incorporated served on 4/2/2012. *Modified to reflect document submitted without the case caption on 4/3/2012
6
04/03/2012
*SUMMONS Returned Executed by Mark Smilovits. Mark R Widmar served on 4/2/2012. *Modified to reflect case caption omitted from document on 4/3/2012
7
04/03/2012
SUMMONS Returned Executed by Mark Smilovits. Michael J Ahearn served on 4/2/2012.
8
04/03/2012
MOTION for Admission Pro Hac Vice as to attorney Patrick V Dahlstrom on behalf of Mark Smilovits.
04/03/2012
PRO HAC VICE FEE PAID. $ 50, receipt number PHX210569 as to Patrick V Dahlstrom. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
9
04/03/2012
ORDER pursuant to General Order 09-08 granting 8 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
10
04/05/2012
MOTION for Admission Pro Hac Vice as to attorney Jeremy A. Lieberman by Mark Smilovits.
1
Certificate of Good Standing
1 Attachment
04/05/2012
PRO HAC VICE FEE PAID. $ 50, receipt number PHX120653 as to Jeremy A Lieberman. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
11
04/05/2012
ORDER pursuant to General Order 09-08 granting 10 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
12
04/12/2012
MOTION for Admission Pro Hac Vice as to attorney Jordan Eth on behalf of First Solar Incorporated.
04/12/2012
PRO HAC VICE FEE PAID. $ 50, receipt number PHX120955 as to Jordan Eth. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
13
04/12/2012
MOTION for Admission Pro Hac Vice as to attorney Anna Erickson White on behalf of First Solar Incorporated.
04/12/2012
PRO HAC VICE FEE PAID. $ 50, receipt number PHX120954 as to Anna Erickson White. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
14
04/12/2012
ORDER pursuant to General Order 09-08 granting 12 Motion for Admission Pro Hac Vice; granting 13 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
15
04/27/2012
*NOTICE of Appearance by Anna Erickson White and Jordan Eth on behalf of Michael J Ahearn, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Mark R Widmar, James Zhu. *Modified to add additional attorney to docket text on 4/30/2012
16
04/27/2012
NOTICE of Appearance by Maureen Beyers on behalf of Michael J Ahearn, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Mark R Widmar, James Zhu.
17
04/27/2012
Corporate Disclosure Statement by Michael J Ahearn, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Mark R Widmar, James Zhu.
18
04/27/2012
*STIPULATION for Extension of Time to Answer the Complaint Re Deadlines by Michael J Ahearn, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Mark R Widmar, James Zhu.
1
Text of Proposed Order) *Modified to correct event type on 4/30/2012 (TLJ
1 Attachment
05/01/2012
Remark as to out of state counsel Marc I Gross and Peretz Bronstein - removed for noncompliance with admission procedures; party or parties represented by other admitted counsel. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
19
05/01/2012
ORDER pursuant to 18 Stipulation: Defendants' counsel will accept service of the complaint on behalf of all Defendants; Defendants will not be required to answer or otherwise respond to the complaint previously filed in this action; the parties shall meet and confer about the timing to file an amended complaint and responses thereto within 7 days of the order appointing lead counsel; motions for appointment as lead counsel due on or before 5/15/2012. Signed by Judge David G Campbell on 5/1/2012.
20
05/15/2012
MOTION to Reassign Case (Motion to Transfer Related Cases) by Michael J Ahearn, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Mark R Widmar, James Zhu.
1
Exhibit A
2
Exhibit B
2 Attachments
21
05/15/2012
MOTION to Appoint Counsel as Lead Plaintiff and for Approval of Selection of Scott+Scott LLP as Lead Counsel and Memorandum of Law in Support Thereof by Mark Smilovits.
1
Text of Proposed Order Proposed Order Appointing Retirement Funds Group as Lead Plaintiff and Approving Its Choice of Lead and Liaison Counsel
1 Attachment
22
05/15/2012
DECLARATION of Joseph P. Guglielmo in Support of Motion of the Retirement Funds Group for Appointment as Lead Plaintiff and for Approval of Its Selection of Lead Counsel re 21 MOTION to Appoint Counsel as Lead Plaintiff and for Approval of Selection of Scott+Scott LLP as Lead Counsel and Memorandum of Law in Support Thereof MOTION to Appoint Counsel as Lead Plaintiff and for Approval of Selection of Scott+Scott LLP as Lead Counsel and Memorandum of Law in Support Thereof by Plaintiff Mark Smilovits.
1
Exhibit A
2
Exhibit B
3
Exhibit C
4
Exhibit D
5
Exhibit E
6
Exhibit F
6 Attachments
23
05/15/2012
MOTION to Appoint Lead Plaintiff and Lead Counsel, MOTION to Appoint Counsel by Mark Smilovits, Raymond W O'Brien, George Conway, Vikean Ltd.
1
Text of Proposed Order
1 Attachment
24
05/15/2012
DECLARATION of Jeremy A. Lieberman In Support of Conway's, O'Brien's, Smilovits' and Vikean Ltd.'s (the "First Solar Investors Group") motion to be appointed Leead Plaintiff and Approval of Lead Counsel and Liaison Counsel filed by George Conway, Raymond W O'Brien, Mark Smilovits, Vikean Ltd.
1
Exhibit A, Press Releases
2
Exhibit B, Certifications
3
Exhibit C, Joint Declaration
4
Exhibit D, chart
5
Exhibit E, Pomerantz Haudek Grossman & Gross firm resume
6
Exhibit F, Martin & Bonnett firm resume
6 Attachments
25
05/15/2012
MOTION for Admission Pro Hac Vice as to attorney Stephen R. Basser by Oakland County Employees Retirement System, Louisiana Municipal Police Employees Retirement System, Wiltshire Pension Fund, Erste-Sparinvest Kapitalanlagegesellschaft m.b.H.
26
05/15/2012
MOTION for Admission Pro Hac Vice as to attorney Samuel M. Ward by Erste-Sparinvest Kapitalanlagegesellschaft m.b.H., Louisiana Municipal Police Employees Retirement System, Oakland County Employees Retirement System, Wiltshire Pension Fund.
27
05/15/2012
MOTION to Appoint Counsel Motion of Global Institutional Investors Group for Appointment as Lead Plaintiff and Appointment of Lead Counsel and Memorandum of Points and Authorities in Support Thereof by Erste-Sparinvest Kapitalanlagegesellschaft m.b.H., Louisiana Municipal Police Employees Retirement System, Oakland County Employees Retirement System, Wiltshire Pension Fund.
1
Text of Proposed Order
1 Attachment
28
05/15/2012
DECLARATION of Samuel M. Ward re 27 MOTION to Appoint Counsel Motion of Global Institutional Investors Group for Appointment as Lead Plaintiff and Appointment of Lead Counsel and Memorandum of Points and Authorities in Support Thereof filed by Erste-Sparinvest Kapitalanlagegesellschaft m.b.H., Louisiana Municipal Police Employees Retirement System, Oakland County Employees Retirement System, Wiltshire Pension Fund.
1
Exhibit 1
2
Exhibit 2
3
Exhibit 3
4
Exhibit 4
5
Exhibit 5
6
Exhibit 6
7
Exhibit 7
8
Exhibit 8
9
Exhibit 9
10
Exhibit 10
10 Attachments
29
05/15/2012
Additional Attachments to Main Document re 28 Declaration, by Movants Erste-Sparinvest Kapitalanlagegesellschaft m.b.H., Louisiana Municipal Police Employees Retirement System, Oakland County Employees Retirement System, Wiltshire Pension Fund.
1
Exhibit 11
2
Exhibit 12
2 Attachments
30
05/15/2012
CERTIFICATE OF SERVICE by Erste-Sparinvest Kapitalanlagegesellschaft m.b.H., Louisiana Municipal Police Employees Retirement System, Oakland County Employees Retirement System, Wiltshire Pension Fund re 27 MOTION to Appoint Counsel Motion of Global Institutional Investors Group for Appointment as Lead Plaintiff and Appointment of Lead Counsel and Memorandum of Points and Authorities in Support Thereof, 25 MOTION for Admission Pro Hac Vice as to attorney Stephen R. Basser, 26 MOTION for Admission Pro Hac Vice as to attorney Samuel M. Ward, 29 Additional Attachments to Main Document, 28 Declaration
31
05/15/2012
MOTION to Appoint Johnny Hyldmar's Motion For Appointment As Lead Plaintiff And Approval Of His Selection Of Lead And Liaison Counsel by Johnny Hyldmar.
1
Text of Proposed Order
1 Attachment
32
05/15/2012
DECLARATION of Gregory M. Monaco In Support Of Johnny Hyldmar's Motion For Appointment As Lead Plaintiff And Approval Of His Selection Of Lead And Liaison Counsel by Plaintiff Johnny Hyldmar.
1
Exhibit
2
Exhibit
3
Exhibit
4
Exhibit
5
Exhibit
5 Attachments
33
05/15/2012
MOTION to Appoint LEAD PLAINTIFF AND APPROVAL OF LEAD COUNSEL by New York State Teachers' Retirement System ("NYSTRS").
1
Text of Proposed Order
1 Attachment
34
05/15/2012
*MOTION Appointment as Lead Plaintiff Motion of Wayne County Employees' Retirement System for Appointment as Lead Plaintiff, and Approval of its Selection of Counsel by Wayne County Employees' Retirement System.
1
Exhibit Declaration
2
Exhibit Exhibits A-C to Declaration
3
Exhibit Exhibit D to Declaration
4
Exhibit Order) *Modified to correct Motion type on 5/16/2012 (LFIG
4 Attachments
35
05/15/2012
DECLARATION of J. JAMES CHRISTIAN re 33 MOTION to Appoint LEAD PLAINTIFF AND APPROVAL OF LEAD COUNSEL by Movant New York State Teachers' Retirement System ("NYSTRS").
1
Exhibit A
2
Exhibit B
3
Exhibit C
4
Exhibit D
5
Exhibit E
6
Exhibit F
6 Attachments
36
05/15/2012
*MOTION to Appoint as Lead Plaintiff Mineworkers' Pension Scheme and British Coal Staff Superannuation Scheme's Motion for Appointment as Lead Plaintiff and for Approval of Lead Plaintiff's Selection of Lead Counsel by Mineworkers' Pension Scheme, British Coal Staff Superannuation Scheme.
1
Text of Proposed Order) *Modified to correct Motion type on 5/16/2012 (LFIG
1 Attachment
37
05/15/2012
MEMORANDUM in Support of 36 MOTION to Appoint Counsel Mineworkers' Pension Scheme and British Coal Staff Superannuation Scheme's Motion for Appointment as Lead Plaintiff and for Approval of Lead Plaintiff's Selection of Lead Counsel by Movants British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
1
Exhibit 1 (with Exhibit Index)
2
Exhibit 2
3
Exhibit 3
3 Attachments
38
05/16/2012
NOTICE of Errata re 34 MOTION Appointment as Lead Plaintiff Motion of Wayne County Employees' Retirement System for Appointment as Lead Plaintiff, and Approval of its Selection of Counsel by Movant Wayne County Employees' Retirement System.
1
Declaration of Edward M. Varga
2
Exhibit Exhibits A - C of Declaration
3
Exhibit Exhibit D of Declaration
3 Attachments
05/16/2012
PRO HAC VICE FEE PAID. $ 50, receipt number PHX122104 as to Samuel M Ward. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
05/16/2012
PRO HAC VICE FEE PAID. $ 50, receipt number PHX122105 as to Stephen Richard Basser. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
39
05/16/2012
ORDER pursuant to General Order 09-08 granting 25 Motion for Admission Pro Hac Vice; granting 26 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
40
05/21/2012
MOTION for Admission Pro Hac Vice as to attorney Salvatore J Graziano on behalf of New York State Teachers' Retirement System.
05/21/2012
PRO HAC VICE FEE PAID. $ 50, receipt number PHX122245 as to Salvatore J Graziano. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
41
05/21/2012
ORDER pursuant to General Order 09-08 granting 40 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
42
05/23/2012
RESPONSE to Motion re 21 MOTION to Appoint Counsel as Lead Plaintiff and for Approval of Selection of Scott+Scott LLP as Lead Counsel and Memorandum of Law in Support Thereof MOTION to Appoint Counsel as Lead Plaintiff and for Approval of Selection of Scott+Scott LLP as Lead Counsel and Memorandum of Law in Support Thereof, 36 MOTION to Appoint, 23 MOTION to Appoint Lead Plaintiff and Lead Counsel MOTION to Appoint Counsel, 31 MOTION to Appoint Johnny Hyldmar's Motion For Appointment As Lead Plaintiff And Approval Of His Selection Of Lead And Liaison Counsel, 34 MOTION to Appoint, 33 MOTION to Appoint LEAD PLAINTIFF AND APPROVAL OF LEAD COUNSEL filed by Erste-Sparinvest Kapitalanlagegesellschaft mbH, Louisiana Municipal Police Employees Retirement System, Oakland County Employees Retirement System, Wiltshire Pension Fund.
43
05/29/2012
MOTION to Reassign Case (Motion to Transfer Related Case) by Michael J Ahearn, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Mark R Widmar, James Zhu.
1
Exhibit A
2
Text of Proposed Order
2 Attachments
44
05/29/2012
RESPONSE in Opposition re 20 MOTION to Reassign Case (Motion to Transfer Related Cases) filed by Britt Nederhood.
1
Affidavit Declaration of Keith Cochran
2
Exhibit Exhibit 1 to Cochran Declaration
3
Exhibit Exhbit 2 to Cochran Declaration
3 Attachments
45
05/29/2012
Joinder re 44 Response in Opposition to Motion, 20 MOTION to Reassign Case (Motion to Transfer Related Cases) Clifford Tindall's Joinder in Support of Plaintiff Britt Nederhood's Opposition to Defendants' Motion to Transfer by Interested Party Clifford Tindall filed by Clifford Tindall.
46
05/31/2012
MOTION for Admission Pro Hac Vice as to attorney Daniel S. Drosman by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
47
06/01/2012
RESPONSE to Motion re 21 MOTION to Appoint Counsel as Lead Plaintiff and for Approval of Selection of Scott+Scott LLP as Lead Counsel and Memorandum of Law in Support Thereof MOTION to Appoint Counsel as Lead Plaintiff and for Approval of Selection of Scott+Scott LLP as Lead Counsel and Memorandum of Law in Support Thereof filed by Mark Smilovits.
48
06/01/2012
Joinder re 44 Response in Opposition to Motion, 20 MOTION to Reassign Case (Motion to Transfer Related Cases) [Plaintiff Kathleen Morris' Joinder in Support of Plaintiff Britt Nederhood's Opposition to Defendants' Motion to Transfer Under Local Rule 42.1(a)] by Interested Party Kathleen Morris. (Sams, Ex Kano)
49
06/01/2012
RESPONSE to Motion re 23 MOTION to Appoint Lead Plaintiff and Lead Counsel MOTION to Appoint Counsel filed by George Conway, Raymond W O'Brien, Mark Smilovits, Vikean Limited.
50
06/01/2012
MOTION for Admission Pro Hac Vice as to attorney RICHARD W. GONNELLO by Mark Smilovits.
51
06/01/2012
RESPONSE to Motion re 21 MOTION to Appoint Counsel as Lead Plaintiff and for Approval of Selection of Scott+Scott LLP as Lead Counsel and Memorandum of Law in Support Thereof MOTION to Appoint Counsel as Lead Plaintiff and for Approval of Selection of Scott+Scott LLP as Lead Counsel and Memorandum of Law in Support Thereof, 27 MOTION to Appoint Counsel Motion of Global Institutional Investors Group for Appointment as Lead Plaintiff and Appointment of Lead Counsel and Memorandum of Points and Authorities in Support Thereof, 36 MOTION to Appoint, 23 MOTION to Appoint Lead Plaintiff and Lead Counsel MOTION to Appoint Counsel, 34 MOTION to Appoint, 33 MOTION to Appoint LEAD PLAINTIFF AND APPROVAL OF LEAD COUNSEL Johnny Hyldmar's Response to Competing Motions for Appointment as Lead Plaintiff filed by Johnny Hyldmar.
52
06/01/2012
MOTION for Admission Pro Hac Vice as to attorney Edward M Varga III on behalf of Wayne County Employees' Retirement System.
06/01/2012
PRO HAC VICE FEE PAID. $ 50, receipt number PHX122651 as to Edward M Varga, III. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
53
06/01/2012
MOTION for Admission Pro Hac Vice as to attorney Ira M Press on behalf of Wayne County Employees' Retirement System.
06/01/2012
PRO HAC VICE FEE PAID. $ 50, receipt number PHX122652 as to Ira Michael Press. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
54
06/01/2012
MOTION for Admission Pro Hac Vice as to attorney Peter S Linden on behalf of Wayne County Employees' Retirement System.
06/01/2012
PRO HAC VICE FEE PAID. $ 50, receipt number PHX122653 as to Peter S Linden. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
55
06/01/2012
MOTION for Admission Pro Hac Vice as to attorney Luke Brooks on behalf of British Coal Staff Superannuation Scheme, and Mineworkers' Pension Scheme.
56
06/01/2012
MOTION for Admission Pro Hac Vice as to attorney Michael Dowd on behalf of British Coal Staff Superannuation Scheme, and Mineworkers' Pension Scheme.
57
06/01/2012
MOTION for Admission Pro Hac Vice as to attorney Jason A Forge on behalf of British Coal Staff Superannuation Scheme, and Mineworkers' Pension Scheme.
58
06/01/2012
MOTION for Admission Pro Hac Vice as to attorney Danielle S Myers on behalf of British Coal Staff Superannuation Scheme, and Mineworkers' Pension Scheme.
59
06/01/2012
MOTION for Admission Pro Hac Vice as to attorney Mark Solomon on behalf of British Coal Staff Superannuation Scheme, and Mineworkers' Pension Scheme.
06/01/2012
PRO HAC VICE FEE PAID. $ 300, receipt number PHX122654 as to Daniel S Drosman, Mark Solomon, Danielle S Myers, Jason A Forge, Michael J Dowd, Luke Brooks. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
60
06/01/2012
ORDER pursuant to General Order 09-08 granting 52 Motion for Admission Pro Hac Vice; granting 53 Motion for Admission Pro Hac Vice; granting 54 Motion for Admission Pro Hac Vice; granting 55 Motion for Admission Pro Hac Vice; granting 56 Motion for Admission Pro Hac Vice; granting 57 Motion for Admission Pro Hac Vice; granting 58 Motion for Admission Pro Hac Vice; granting 59 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
61
06/01/2012
MOTION to Reassign Case (Motion to Transfer Related Case) by Michael J Ahearn, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Mark R Widmar, James Zhu.
1
Exhibit A
2
Text of Proposed Order
2 Attachments
62
06/01/2012
RESPONSE to Motion re 21 MOTION to Appoint Counsel as Lead Plaintiff and for Approval of Selection of Scott+Scott LLP as Lead Counsel and Memorandum of Law in Support Thereof MOTION to Appoint Counsel as Lead Plaintiff and for Approval of Selection of Scott+Scott LLP as Lead Counsel and Memorandum of Law in Support Thereof, 27 MOTION to Appoint Counsel Motion of Global Institutional Investors Group for Appointment as Lead Plaintiff and Appointment of Lead Counsel and Memorandum of Points and Authorities in Support Thereof, 36 MOTION to Appoint, 23 MOTION to Appoint Lead Plaintiff and Lead Counsel MOTION to Appoint Counsel, 31 MOTION to Appoint Johnny Hyldmar's Motion For Appointment As Lead Plaintiff And Approval Of His Selection Of Lead And Liaison Counsel, 34 MOTION to Appoint, 33 MOTION to Appoint LEAD PLAINTIFF AND APPROVAL OF LEAD COUNSEL filed by Michael J Ahearn, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Mark R Widmar, James Zhu.
63
06/01/2012
RESPONSE in Opposition re 21 MOTION to Appoint Counsel as Lead Plaintiff and for Approval of Selection of Scott+Scott LLP as Lead Counsel and Memorandum of Law in Support Thereof MOTION to Appoint Counsel as Lead Plaintiff and for Approval of Selection of Scott+Scott LLP as Lead Counsel and Memorandum of Law in Support Thereof, 27 MOTION to Appoint Counsel Motion of Global Institutional Investors Group for Appointment as Lead Plaintiff and Appointment of Lead Counsel and Memorandum of Points and Authorities in Support Thereof, 31 MOTION to Appoint Johnny Hyldmar's Motion For Appointment As Lead Plaintiff And Approval Of His Selection Of Lead And Liaison Counsel, 34 MOTION to Appoint, 33 MOTION to Appoint LEAD PLAINTIFF AND APPROVAL OF LEAD COUNSEL, 23 MOTION to Appoint Lead Plaintiff and Lead Counsel MOTION to Appoint Counsel, 36 MOTION to Appoint Mineworkers' Pension Scheme and British Coal Staff Superannuation Scheme's Memorandum of Law in Opposition to Competing Motions for Appointment as Lead Plaintiff filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
64
06/01/2012
RESPONSE in Opposition re 21 MOTION to Appoint Counsel as Lead Plaintiff and for Approval of Selection of Scott+Scott LLP as Lead Counsel and Memorandum of Law in Support Thereof MOTION to Appoint Counsel as Lead Plaintiff and for Approval of Selection of Scott+Scott LLP as Lead Counsel and Memorandum of Law in Support Thereof, 27 MOTION to Appoint Counsel Motion of Global Institutional Investors Group for Appointment as Lead Plaintiff and Appointment of Lead Counsel and Memorandum of Points and Authorities in Support Thereof, 36 MOTION to Appoint, 23 MOTION to Appoint Lead Plaintiff and Lead Counsel MOTION to Appoint Counsel, 31 MOTION to Appoint Johnny Hyldmar's Motion For Appointment As Lead Plaintiff And Approval Of His Selection Of Lead And Liaison Counsel, 34 MOTION to Appoint Memorandum of Law in Opposition to the Competing Motions for Appointment of Lead Plaintiffs and in Further Support of the Motion of the New York State Teachers' Retirement System for its Appointment as Lead Plaintiff filed by New York State Teachers' Retirement System.
65
06/02/2012
DECLARATION of J. James Christian in Support of the Memorandum of Law in Opposition to the Competing Motions for Appointment of Lead Plaintiffs and in Further Support of the Motion of The New York State Teachers' Retirement System for Its Appointment as Lead Plaintiff re 64 Response in Opposition to Motion, by Movant New York State Teachers' Retirement System.
1
Exhibit A-D
2
Exhibit E-L
2 Attachments
66
06/02/2012
DECLARATION of Wayne Schneider in Further Support of the Motion of The New York State Teachers' Retirement System for Appointment as Lead Plaintiff and Approval of Its Selection of Counsel as Lead Counsel for the Class re 64 Response in Opposition to Motion, by Movant New York State Teachers' Retirement System.
06/04/2012
PRO HAC VICE FEE PAID. $ 50, receipt number PHX122685 as to Richard W Gonnello. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
67
06/04/2012
ORDER pursuant to General Order 09-08 granting 46 Motion for Admission Pro Hac Vice; granting 50 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
68
06/08/2012
REPLY re 34 MOTION to Appoint as Lead Plaintiff. Reply of Wayne County Employees' Retirement System for Appointment as Lead Plaintiff, and Approval of Its Selection of Counsel by Movant Wayne County Employees' Retirement System.
69
06/08/2012
REPLY to Response to Motion re 20 MOTION to Reassign Case (Motion to Transfer Related Cases) filed by Michael J Ahearn, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Mark R Widmar, James Zhu.
1
Exhibit A
2
Text of Proposed Order
2 Attachments
70
06/11/2012
*REPLY MEMORANDUM (Reply to Response to Motion) Mineworkers' Pension Scheme and British Coal Staff Superannuation Scheme's Reply Memorandum of Law in Further Support of Their Motion for Appointment as Lead Plaintiff 36 and in Response to Defendants' Response to Motions for Appointment of Lead Plaintiff and Lead Plaintiff's Counsel 62 Response to Motion, by Movants British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
1
Exhibit A
2
Exhibit B) *Modified to correct event type and to link to document on 6/12/2012 (TLJ
2 Attachments
71
06/11/2012
REPLY to Response to Motion re 36 MOTION to Appoint Mineworkers' Pension Scheme and British Coal Staff Superannuation Scheme's Reply Memorandum of Law in Further Support of Their Motion for Appointment as Lead Plaintiff and for Approval of Lead Plaintiff's Selection of Lead Counsel filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
1
Exhibit A
2
Exhibit B
3
Exhibit C
4
Exhibit D
5
Exhibit E
6
Exhibit F
7
Exhibit G
8
Exhibit H
9
Exhibit I
10
Exhibit J
10 Attachments
72
06/11/2012
REPLY to Response to Motion re 33 MOTION to Appoint LEAD PLAINTIFF AND APPROVAL OF LEAD COUNSEL filed by New York State Teachers' Retirement System.
73
06/11/2012
*DECLARATION of Gerard C. Lane re 71 Reply to Response to Motion re 36 Declaration of Gerard C. Lane in Further Support of the Mineworkers' Pension Scheme's and British Coal Staff Superannuation Scheme's Motion for Appointment as Lead Plaintiff by Movants British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
1
Exhibit A
2
Exhibit B
3
Exhibit C) *Modified to add document on 6/12/2012 (TLJ
3 Attachments
74
06/11/2012
DECLARATION of J. James Christian in Support of the Reply Memorandum of Law re 72 Reply to Response to Motion by Movant New York State Teachers' Retirement System.
1
Exhibit A-C
1 Attachment
75
06/18/2012
RESPONSE in Opposition re 61 MOTION to Reassign Case (Motion to Transfer Related Case) filed by Eng Kwang Tan.
1
Declaration of Keith M. Cochran
2
Exhibit 1 to Declaration of Keith M. Cochran
3
Exhibit 2 to Declaration of Keith M. Cochran
3 Attachments
76
06/20/2012
ORDER, Hearing set as to all motions to Appoint Counsel as Lead Plaintiff. Motion Hearing set for 7/17/2012 at 02:00 PM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Signed by Judge David G Campbell on 6/20/2012. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
77
06/28/2012
REPLY to Response to Motion re 61 MOTION to Reassign Case (Motion to Transfer Related Case) Defendants' Reply in Support of Motion to Transfer filed by Michael J Ahearn, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Mark R Widmar, James Zhu, James F Nolan, Michael Sweeney, J Thomas Presby, Paul H Stebbins, Craig Kennedy, Jose H Villarreal, William J Post.
78
07/09/2012
MOTION for Admission Pro Hac Vice as to attorney Kathryn B Allen on behalf of Wayne County Employees' Retirement System.
07/09/2012
PRO HAC VICE FEE PAID. $ 50, receipt number PHX123861 as to Kathryn B Allen. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
79
07/09/2012
ORDER pursuant to General Order 09-08 granting 78 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
80
07/11/2012
NOTICE of Appearance by Jeffrey Dale Gardner on behalf of Wayne County Employees' Retirement System.
81
07/12/2012
MOTION for Admission Pro Hac Vice as to attorney Darren J. Robbins by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
82
07/12/2012
NOTICE re Waiver of Appearance by Johnny Hyldmar.
07/13/2012
PRO HAC VICE FEE PAID. $ 50, receipt number PHX124053 as to Darren J Robbins. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
83
07/13/2012
ORDER pursuant to General Order 09-08 granting 81 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
84
07/17/2012
Minute Entry. Proceedings held before Judge David G Campbell: Appearances: Darren Robbins, Mark Solomon, Andrew Friedman for British Coal Staff Superannuation Scheme and Mine Workers Pension; Kathryn Allen, Jeffrey Gardner for Wayne County Employee's Retirement System; James Christian, Richard Himelrick, Salvatore Graziano, Client Rep Joseph Indelicato for New York State Teacher's Retirement System; Maureen Beyers and Jordan Eth for defendants Motion Hearing held on 7/17/2012. ORDERED taking under advisement 23 Motion to Appoint Lead counsel. ; taking under advisement 23 Motion to Appoint Counsel ; taking under advisement 27 Motion to Appoint Counsel ; taking under advisement 31 Motion to Appoint Lead counsel ; taking under advisement 33 Motion to Appoint Lead counsel ; taking under advisement 34 Motion to Appoint Lead counsel ; taking under advisement 36 Motion to Appoint Lead counsel ; taking under advisement 21 Motion to Appoint Counsel. Court will issue an order on the motions to appoint and the motions to transfer related cases. (Court Reporter Patricia Lyons.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
85
07/18/2012
ORDER Defendants motions to transfer (Docs. 20 43, 61) are granted. The following cases are transferred to the undersigned judge: 12-CV-00769-PHX-ROS, 12-CV-00819-PHX-JWS, 12-CV-01031-PHX-JAT, 12- CV-01144-PHX-NVW. The Clerk shall file a copy of this order in each of the transferred cases. The Court will hold a case management conference on August 7, 2012 at 3:00 PM as set forth above. Signed by Judge David G Campbell on 7/17/12.
86
07/19/2012
Additional Attachment to Main Document re 85 Order on Motion to Reassign Case.
87
07/20/2012
TRANSCRIPT REQUEST by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme for proceedings held on 07/17/2012 before Judge Campbell.
88
07/20/2012
TRANSCRIPT REQUEST by New York State Teachers' Retirement System for proceedings held on 07/17/2012 before Judge Campbell.
89
07/23/2012
ORDER denying 23 Motion to Appoint; denying 23 Motion to Appoint Counsel; denying 27 Motion to Appoint Counsel; denying 31 Motion to Appoint; denying 33 Motion to Appoint; denying 34 Motion to Appoint; granting 36 Motion to Appoint; denying 21 Motion to Appoint Counsel. Lead plaintiff shall file an amended complaint on or before 8/17/2012; Defendants may file a motion to dismiss on or before 9/14/2012. Signed by Judge David G Campbell on 7/23/2012.
90
07/27/2012
NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing Proceedings held on 7/17/2012, before Judge David G. Campbell. Court Reporter Patricia Lyons. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/17/2012. Redacted Transcript Deadline set for 8/27/2012. Release of Transcript Restriction set for 10/25/2012.
91
07/30/2012
TRANSCRIPT REQUEST by Michael J Ahearn, First Solar Incorporated, Robert J Gillette, Craig Kennedy, Jens Meyerhoff, James F Nolan, William J Post, J Thomas Presby, Paul H Stebbins, Michael Sweeney, Jose H Villarreal, Mark R Widmar, James Zhu for proceedings held on July 17, 2012 before Judge Campbell.
92
08/17/2012
NOTICE re Joint Submission Regarding Cost Saving Measures Pursuant to the Court's July 23, 2012 Order by Michael J Ahearn, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Mark R Widmar, James Zhu re 89 Order on Motion to Appoint Counsel.
93
08/17/2012
AMENDED COMPLAINT First Amended Complaint For Violation of the Federal Securities Laws against All Defendants, filed by Mineworkers' Pension Scheme, British Coal Staff Superannuation Scheme.
1
Exhibit A - Chart of insider sales
1 Attachment
94
08/17/2012
SUMMONS Submitted by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
1
Summons
1 Attachment
95
08/20/2012
Summons Issued as to David Eaglesham, Bruce Sohn. *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document.
1
Summons)(REW
1 Attachment
96
08/27/2012
ORDER. The parties have filed a notice that they have been unable to agree on any of the cost saving measures suggested by the Court. Doc. 92. That result is not acceptable. Most of the proposed measures are neither difficult nor controversial. The parties shall confer again and agree upon reasonable cost saving measures, or modifications of the measures, by September 7, 2012. Signed by Judge David G Campbell on 8-27-12. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
97
08/28/2012
NOTICE of Change of Address by Andrew S Friedman.
98
09/07/2012
NOTICE re Joint Submission Regarding Cost Saving Measures Pursuant to the Court's August 27, 2012 Order by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu re 96 Order.
1
Exhibit 1
1 Attachment
99
09/11/2012
WITHDRAWN by (doc. 119) MOTION Lead Plaintiffs' Motion to Limit Confidentiality Agreements by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
1
Text of Proposed Order) Modified on 1/22/2013 (TLJ
1 Attachment
100
09/11/2012
MEMORANDUM of Points and Authorities in Support of 99 MOTION Lead Plaintiffs' Motion to Limit Confidentiality Agreements by Plaintiffs British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
101
09/11/2012
AFFIDAVIT in Support re 99 MOTION Lead Plaintiffs' Motion to Limit Confidentiality Agreements Declaration of Jason A. Forge filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
1
Exhibit 1 - Letter to Gillen
2
Exhibit 2 - sample agreement
3
Exhibit 3 - meet and confer Forge email
4
Exhibit 4 - 2011 10-K excerpt
5
Exhibit 5 - Declaration of Georgette Gillen
6
Exhibit 6 - Declaration of Ken Keatly
6 Attachments
102
09/14/2012
MOTION to Dismiss Case Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
103
09/14/2012
DECLARATION of Anna Erickson White in Support of re 102 MOTION to Dismiss Case Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
1
Exhibit 1
2
Exhibit 2
3
Exhibit 3
4
Exhibit 4
5
Exhibit 5
6
Exhibit 6
7
Exhibit 7
8
Exhibit 8
9
Exhibit 9
10
Exhibit 10
10 Attachments
104
09/14/2012
*REQUEST for Judicial Notice re 102 MOTION to Dismiss Case Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint and 103 Declaration by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
1
Text of Proposed Order) *Modified to correct event type and to link to document on 9/17/2012 (TLJ
1 Attachment
105
09/27/2012
MOTION to Withdraw as Counsel of Record by Johnny Hyldmar.
106
09/28/2012
RESPONSE in Opposition re 99 MOTION Lead Plaintiffs' Motion to Limit Confidentiality Agreements filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
1
Text of Proposed Order
1 Attachment
107
09/28/2012
DECLARATION of Anna Erickson White re 106 Response in Opposition to Motion, to Limit Confidentiality Agreements filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
1
Exhibit 1
1 Attachment
108
10/01/2012
ORDER granting 105 Motion to Withdraw and the law firm of Mack Drucker & Watson, P.L.C., shall be relieved of any further responsibility as counsel of record for Johnny Hyldmar in this matter. Signed by Judge David G Campbell on 10/1/12.
109
10/01/2012
RESPONSE in Opposition re 102 MOTION to Dismiss Case Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
110
10/02/2012
WAIVER OF SERVICE Returned Executed by Mineworkers' Pension Scheme, British Coal Staff Superannuation Scheme. David Eaglesham waiver sent on 8/23/2012.
111
10/02/2012
WAIVER OF SERVICE Returned Executed by Mineworkers' Pension Scheme, British Coal Staff Superannuation Scheme. Bruce Sohn waiver sent on 8/23/2012.
112
10/09/2012
REPLY to Response to Motion re 99 MOTION Lead Plaintiffs' Motion to Limit Confidentiality Agreements filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
113
10/12/2012
REPLY to Response to Motion re 102 MOTION to Dismiss Case Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
1
Supplemental Declaration of Anna Erickson White
2
Exhibit 1
3
Supplemental Request for Judicial Notice
4
Text of Proposed Order
4 Attachments
114
12/17/2012
ORDER denying without prejudice 99 Plaintiff's Motion to Limit Confidentiality agreements ; denying 102 Defendants' Motion to Dismiss. The Court will hold a case management conference on 1/30/13 at 4:00 PM Signed by Judge David G Campbell on 12/17/12.
115
12/17/2012
ORDER SETTING RULE 16 CASE MANAGEMENT CONFERENCE for 1/30/2013 at 04:00 PM before Judge David G Campbell. The Clerk of the Court shall send copies of this order to all counsel of record and to any unrepresented parties Signed by Judge David G Campbell on 12/17/12.
116
01/02/2013
STIPULATION FOR EXTENSION OF TIME TO ANSWER COMPLAINT.
1
Text of Proposed Order
1 Attachment
117
01/08/2013
ORDER pursuant to 116 Stipulation For Extension of Time To Answer Complaint : All Defendants answer to amended complaint due 1/29/2013. Signed by Judge David G Campbell on 1/8/2013.
118
01/17/2013
STIPULATION Regarding Agreement Resolving Motion to Limit Confidentiality Agreements by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
1
Text of Proposed Order
1 Attachment
119
01/22/2013
ORDER APPROVING STIPULATION REGARDING AGREEMENT RESOLVING MOTION TO LIMIT CONFIDENTIALITY AGREEMENTS RE 118 Stipulation and Plaintiffs' Motion to Limit Confidentiality Agreements is deemed withdrawn re 99. Signed by Judge David G Campbell on 1/22/13.
120
01/23/2013
REPORT of Rule 26(f) Planning Meeting by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
121
01/28/2013
MOTION for Admission Pro Hac Vice as to attorney Christopher Dennis Stewart on behalf of British Coal Staff Superannuation Scheme, and Mineworkers' Pension Scheme.
01/29/2013
PRO HAC VICE FEE PAID. $ 50, receipt number PHX130462 as to Christopher Dennis Stewart. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
122
01/29/2013
ORDER pursuant to General Order 09-08 granting 121 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
123
01/29/2013
First Solar, Inc.'s ANSWER to 93 Amended Complaint, with Jury Demand by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
124
02/04/2013
ORDER. Rule 16 Case Management Conference RESET to 2/26/2013 at 04:30 PM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Signed by Judge David G Campbell on 2/4/2013. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
125
02/26/2013
IT IS ORDERED the Rule 16 Case Management Conference presently set for 2/26/2013 at 4:30 PM is RESET AS TO TIME ONLY!!. Rule 16 Case Management Conference RESET for 2/26/2013 at 03:30 PM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Ordered by Judge David G Campbell. (NVO)(This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.)
126
02/26/2013
MOTION for Admission Pro Hac Vice as to attorney Philip T Besirof on behalf of First Solar Incorporated.
02/26/2013
PRO HAC VICE FEE PAID. $ 50, receipt number PHX131441 as to Philip T Besirof. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
127
02/26/2013
ORDER pursuant to General Order 09-08 granting 126 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
128
02/26/2013
Minute Entry for proceedings held before Judge David G Campbell: Scheduling Conference re:class certification held on 2/26/2013.Discussion held. Deadlines discussed. Court will enter a scheduling order as to class certification. A second case managment conference to be set after decision on class certification. APPEARANCES: Jason Forge,Kevin Hanger, Mark Solomon for Plaintiffs. Jordan Eth adn Maureen Beyers for Defendants (Court Reporter Patricia Lyons.) Hearing held 3:31 PM to 3:56 PM This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
129
02/27/2013
TRANSCRIPT REQUEST by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme for proceedings held on 02/26/2013 before Judge David G. Campbell.
130
02/28/2013
TRANSCRIPT REQUEST by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu for proceedings held on 02/26/2013 before Judge David G. Campbell.
131
03/04/2013
CASE MANAGEMENT ORDER: Class Certification Discovery due by 5/3/2013. Plaintiff motion for class certification due 5/17/13; Response due 6/7/13; Reply 6/21/13; Class Certificaiton Hearing set for 7/2/2013 at 02:00 PM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Signed by Judge David G Campbell on 3/1/2013. (see order for additional deadlines)
132
03/06/2013
NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Scheduling Conference Proceedings held on 2/26/2013, before Judge David G. Campbell. Court Reporter Patricia Lyons. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/27/2013. Redacted Transcript Deadline set for 4/8/2013. Release of Transcript Restriction set for 6/4/2013.
133
03/19/2013
NOTICE re Service of Discovery by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
134
03/21/2013
NOTICE re Service of Discovery by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
135
03/22/2013
NOTICE re Service of Discovery by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
136
04/01/2013
NOTICE of Deposition of Lead Plaintiff British Coal Staff Superannuation Scheme, filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
137
04/01/2013
NOTICE of Deposition of Lead Plaintiff Mineworkers' Pension Scheme, filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
138
04/12/2013
STIPULATION to Modify Class Certification Discovery Schedule by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
1
Text of Proposed Order
1 Attachment
139
04/17/2013
*ORDER pursuant to 138 Stipulation: Class Certification Hearing set for 7/2/2013 at 2:00 PM is VACATED and RESET for 8/2/2013 at 02:00 PM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Class Certification Discovery due by 6/14/13. Signed by Judge David G Campbell on 4/17/2013. (NVO) *Modified to add discovery deadline on 4/18/2013
140
04/17/2013
NOTICE re Notice of Service of Discovery by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
141
04/19/2013
STIPULATION Regarding Expert Discovery Protocol by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
1
Text of Proposed Order
1 Attachment
142
04/22/2013
ORDER granting 141 Stipulation re expert discovery protocol. Signed by Judge David G Campbell on 4/22/2013.
143
04/24/2013
NOTICE re Service of Discovery by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
144
04/25/2013
NOTICE re of Service of Discovery by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
145
05/02/2013
NOTICE of Deposition of Baillie Gifford & Co., filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar.
1
Exhibit A
1 Attachment
146
05/02/2013
NOTICE of Deposition of Lead Plaintiff British Coal Staff Superannuation Scheme, filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
147
05/02/2013
NOTICE of Deposition of Lead Plaintiff Mineworkers' Pension Scheme, filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Mark R Widmar, James Zhu.
148
05/31/2013
NOTICE re of Withdrawal of Counsel by Wayne County Employees' Retirement System.
149
06/04/2013
MOTION for Admission Pro Hac Vice as to attorney Eugene G Illovsky on behalf of First Solar Incorporated.
06/04/2013
PRO HAC VICE FEE PAID. $ 50, receipt number PHX134645 as to Eugene G Illovsky. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
150
06/04/2013
ORDER pursuant to General Order 09-08 granting 149 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
151
06/05/2013
NOTICE re Service of Discovery by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
152
06/05/2013
WITHDRAWN by (doc. 153) NOTICE of Deposition of Bjorn I. Steinholt, filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu. Modified on 6/13/2013
153
06/12/2013
NOTICE re CANCELLATION OF DEPOSITION AND WITHDRAWAL OF NOTICE OF DEPOSITION OF BJORN I. STEINHOLT by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu re 152 Notice of Deposition of Bjorn I. Steinholt.
154
06/21/2013
MOTION to Seal Document Motion to File Lead Plaintiffs' Memorandum of Law in Support of Motion for Class Certification Under Seal by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
1
Text of Proposed Order
1 Attachment
155
06/21/2013
*Filed at Doc. 160 *ODGED Proposed Lead Plaintiffs' Memorandum in Support of Class Certification, Exs. 1, 4-5 re: 154 MOTION to Seal Document Motion to File Lead Plaintiffs' Memorandum of Law in Support of Motion for Class Certification Under Seal. Document to be filed by Clerk if Motion to Seal is granted. Filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme. *.
1
Exhibit 1 - Interrogatory response
2
Exhibit 4 - McCormick depo excerpts
3
Exhibit 5 - Urquhart depo excerpts) *Modified on 7/1/2013 (MAP
3 Attachments
156
06/21/2013
MOTION to Certify Class Lead Plaintiffs' Notice of Motion and Motion for Class Certification by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
1
Text of Proposed Order
1 Attachment
157
06/21/2013
MEMORANDUM Lead Plaintiffs' Memorandum of Law in Support of Motion for Class Certification [Redacted Version] 156 MOTION to Certify Class Lead Plaintiffs' Notice of Motion and Motion for Class Certification by Plaintiffs British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
158
06/21/2013
AFFIDAVIT in Support re 156 MOTION to Certify Class Lead Plaintiffs' Notice of Motion and Motion for Class Certification Declaration of Jason A. Forge in Support of Lead Plaintiffs' Motion for Class Certification filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
1
Exhibit 1 - Interrogatory response [Under Seal]
2
Exhibit 2 - Steinholt Declaration
3
Exhibit 3 - RFA response
4
Exhibit 4 - McCormick depo excerpt [Under Seal]
5
Exhibit 5 - Urquhart depo excerpt [Under Seal]
6
Exhibit 6- Gompers depo excerpt
7
Exhibit 7 - Gompers Declaration
7 Attachments
159
07/01/2013
ORDER granting 154 Motion to Seal Lead Plaintiffs' Memorandum of Law in Support of Motion for Class Certification. Signed by Judge David G Campbell on 7/1/13.
160
07/01/2013
Sealed Memorandum in Support of 156 Motion filed by British Coal Staff Superannuation Scheme.
1
Exhibit 1
2
Exhibit 4
3
Exhibit 5)(MAP
3 Attachments
161
07/12/2013
RESPONSE in Opposition re 156 MOTION to Certify Class Lead Plaintiffs' Notice of Motion and Motion for Class Certification filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
1
Text of Proposed Order
1 Attachment
162
07/12/2013
DECLARATION of Philip T. Besirof re 161 Response in Opposition to Motion, filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
1
Exhibit 1
2
Exhibit 2-1
3
Exhibit 2-1
4
Exhibit 2-3
5
Exhibit 3
6
Exhibit 4
7
Exhibit 5
7 Attachments
163
07/18/2013
ORDER re 139 Order on Stipulation. Set/Reset Deadlines/Hearings, DUE TO A CONFLICT IN THE COURT'S CALENDAR, The Class Certification Hearing set for 8/2/2013 at 2:00 PM is VACATED and RESET to 8/15/2013 at 09:30 AM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Signed by Judge David G Campbell on 7/18/2013. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
164
07/22/2013
REPLY to Response to Motion re 156 MOTION to Certify Class Lead Plaintiffs' Notice of Motion and Motion for Class Certification filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
165
07/22/2013
DECLARATION of Jason A. Forge in Support of Lead Plaintiffs' Motion for Class Certification re 164 Reply to Response to Motion, 156 MOTION to Certify Class Lead Plaintiffs' Notice of Motion and Motion for Class Certification by Plaintiffs British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
1
Exhibit 1 - Excerpts from Paul Gompers Deposition
1 Attachment
166
08/08/2013
ORDER, Hearing set as to 156 MOTION to Certify Class: Motion Hearing set for 8/15/2013 at 9:30 AM is VACATED and RESET to 9/20/2013 at 01:00 PM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Signed by Judge David G Campbell on 8/8/2013. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
167
09/20/2013
MINUTE ENTRY for proceedings held before Judge David G Campbell: Motion Hearing held on 9/20/2013. ORDERED taking under advisement 156 Motion to Certify Class. APPEARANCES: Jason Forge, Christopher Stewart, and Kevin Hanger for Plaintiffs. Jordan Eth, Maureen Beyers, and Philip Besirof for Defendants (Court Reporter Patricia Lyons.) Hearing held 1:04 PM to 2:24 PM This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
168
09/23/2013
TRANSCRIPT REQUEST by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu for proceedings held on September 20, 2013 before Judge Campbell.
169
09/24/2013
TRANSCRIPT REQUEST by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme for proceedings held on 9/20/2013 before Judge Campbell.
170
10/01/2013
NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing Proceedings held on 9/20/2013, before Judge Campbell. Court Reporter Patricia Lyons. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/22/2013. Redacted Transcript Deadline set for 11/1/2013. Release of Transcript Restriction set for 12/30/2013.
171
10/08/2013
ORDER granting 156 Motion to Certify Class. Class notice shall be filed on or before 11/8/2013. Case Management Conference set for 11/22/2013 at 3:00 PM Signed by Judge David G Campbell on 10/8/2013.
172
11/08/2013
STIPULATION Regarding Class Notice Procedures by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
1
Text of Proposed Order
2
Exhibit A - Notice of Pendency of Class Action
3
Exhibit B - Summary Notice of Pendency of Class Action
3 Attachments
173
11/15/2013
REPORT of Joint Proposed Schedule by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
174
11/22/2013
MINUTE ENTRY for proceedings held before Judge David G Campbell: Scheduling Conference held on 11/22/2013. Discussion held. Parties to submit in the form of a proposed order the stipulation at doc. 172 with the revisions as discussed the record. Haliburton case discussed. Proposed scheduling deadlines discussed. Court takes the arguments on the Halburton case and the proposed deadlines under advisement and will issue an order. APPEARANCES: Jason Forge for Plaintiff. Jordan Eth and Maureen Beyers for Defendants (Court Reporter Patricia Lyons.) Hearing held 3:00 PM to 3:58 PM This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
175
11/25/2013
TRANSCRIPT REQUEST by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu for proceedings held on 11/22/13 before Judge Campbell.
176
11/25/2013
TRANSCRIPT REQUEST by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme for proceedings held on 11/22/13 before Judge Campbell.
177
11/25/2013
ORDER. Case Management Order No. 2. Discovery due by 10/31/2014. Dispositive motions due by 11/21/2014. Signed by Judge David G Campbell on 11/25/2013.
178
12/03/2013
ORDER 172 Stipulation is granted. Signed by Judge David G Campbell on 12/3/2013.
179
12/04/2013
NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Scheduling Conference held on 11-22-2013, before Judge Campbell. Court Reporter Patricia Lyons. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/26/2013. Redacted Transcript Deadline set for 1/6/2014. Release of Transcript Restriction set for 3/4/2014.
180
12/10/2013
NOTICE of Service of Discovery filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
181
12/13/2013
* NOTICE re Initial Disclosure by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme. * Attorney noticed regarding Notice of Service of Discovery event on 12/16/2013
182
12/13/2013
* NOTICE re Rule 26(a) Initial Disclosures by Defendants by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu. * Attorney noticed about Notice of Service of Discovery event on 12/16/2013
183
12/20/2013
NOTICE of Service of Discovery filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
184
01/02/2014
NOTICE re of Discovery (of Issuance of Plaintiffs' Subpoena Commanding Production of Documents to PricewaterhouseCoopers) by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
185
01/08/2014
NOTICE re of Service of Discovery (of Issuance of Plaintiffs' Subpoenas Commanding Production of Documents to Third Parties) by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
186
01/27/2014
NOTICE of Service of Discovery filed by Michael J Ahearn.
187
02/10/2014
*NOTICE of Service of Discovery by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme. *Modified to correct event type on 2/11/2014
188
03/10/2014
NOTICE by CT Corporation: KCM Capital, LLC is not listed on their records or the records of the State of DE.
189
03/10/2014
NOTICE by National Registered Agents, Inc. re Cyan Opportunities LTD and JRW Capital Growth Opportunites, LP: NRAI is unable to receive the document(s) on behalf of the defendant/party
1
JRW Capital Growth Opportunities, LP)(ALS
1 Attachment
190
03/17/2014
NOTICE of Service of Discovery filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
191
03/17/2014
NOTICE by CT Corporation re Stimpson Grandchildren's LLC.
192
03/26/2014
NOTICE of Service of Discovery filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
193
03/28/2014
MEMORANDUM Joint Memorandum Re Status of Class-Notification Efforts by Plaintiffs British Coal Staff Superannuation Scheme, Johnny Hyldmar, Mineworkers' Pension Scheme, Mark Smilovits.
1
Affidavit Declaration of Carole K. Sylvester Setting Forth Class Notification Efforts and Summarizing Exclusion Requests
1 Attachment
194
04/03/2014
NOTICE of Service of Discovery filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
195
04/28/2014
NOTICE of Service of Discovery filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
196
05/09/2014
STIPULATION [DEFENDANTS' UNCONTESTED APPLICATION FOR MODIFICATION OF DISCOVERY SCHEDULE] by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
1
Exhibit A
2
Text of Proposed Order Order
2 Attachments
197
05/16/2014
ORDER pursuant to 196 Stipulation. Discovery due by 12/30/2014. Dispositive motions due by 1/20/2015. Signed by Judge David G Campbell on 5/16/2014.
198
05/29/2014
MOTION to Withdraw as Attorney for Plaintiff The New York State Teachers' Retirement System by New York State Teachers' Retirement System.
1
Text of Proposed Order
1 Attachment
199
05/29/2014
DECLARATION of J. James Christian re: 198 MOTION to Withdraw as Attorney for Plaintiff The New York State Teachers' Retirement System by Movant New York State Teachers' Retirement System.
200
05/29/2014
MOTION for Admission Pro Hac Vice as to attorney Paul Flum on behalf of First Solar Incorporated.
05/29/2014
PRO HAC VICE FEE PAID. $ 35, receipt number PHX146612 as to Paul Flum. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
201
05/29/2014
ORDER pursuant to General Order 09-08 granting 200 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
202
05/30/2014
ORDER that the 198 Motion to Withdraw as Attorney is granted. The Clerk of the Court shall remove from the docket attorneys Richard G. Himelrick and J. James Christian of Tiffany & Bosco, P.A. as local counsel of record for NYSTRS. Signed by Judge David G Campbell on 5/30/2014.(LFIG)
203
07/08/2014
NOTICE of Service of Discovery filed by Mineworkers' Pension Scheme.
204
07/21/2014
STIPULATION re: 177 Order, Set/Reset Deadlines/Hearings [Joint Application to Modify Deadline for Settlement Talks] by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
1
Text of Proposed Order A (Defendants' version)
2
Text of Proposed Order B (Lead Plaintiffs' version)
2 Attachments
205
07/28/2014
ORDER. The Court will grant the parties' request and extend the deadline for good faith settlement talks to August 29, 2014. The Court concludes that attendance by the company defendant (including the general counsel) and relevant D&O insurers, along with counsel for all defendants, is sufficient. Individual Defendants need not attend, provided those in attendance have full authority to settle on their behalf. Signed by Judge David G Campbell on 7-28-14. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
206
08/26/2014
NOTICE of Service of Discovery filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
207
08/26/2014
MOTION for Admission Pro Hac Vice as to attorney Darryl J Alvarado on behalf of British Coal Staff Superannuation Scheme, and Mineworkers' Pension Scheme.
08/26/2014
PRO HAC VICE FEE PAID. $ 35, receipt number PHX149718 as to Darryl J Alvarado. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
208
08/26/2014
ORDER pursuant to General Order 09-08 granting 207 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
209
08/29/2014
NOTICE of Service of Discovery filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
210
09/02/2014
MOTION for Admission Pro Hac Vice as to attorney Jennifer N Caringal on behalf of British Coal Staff Superannuation Scheme, and Mineworkers' Pension Scheme.
09/02/2014
PRO HAC VICE FEE PAID. $ 35, receipt number PHX149898 as to Jennifer N Caringal. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
211
09/02/2014
ORDER pursuant to General Order 09-08 granting 210 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
212
09/09/2014
REPORT of Settlement Talks/Discussions Joint Notice Regarding Status of Settlement Discussions by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
213
09/16/2014
NOTICE of Service of Discovery filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
214
09/17/2014
ORDER. Telephonic Discovery Conference set for 9/18/2014 at 02:30 PM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Counsel for Plaintiffs shall initiate a conference call to include all parties and the Court. If a dial-in number is established, counsel shall provide the Court with the dial-in number no later than 11:30 AM on 9/18/2014. Signed by Judge David G Campbell on 9/17/2014. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
215
09/18/2014
MINUTE ENTRY for proceedings held before Judge David G Campbell: Telephone Discovery Conference held on 9/18/2014. Discovery due by 2/27/2015. Dispositive motions due by 3/20/2015. (Court Reporter Patricia Lyons.)(see minute entry for details) Hearing held 2:31 PM to 3:45 PM.
216
09/19/2014
TRANSCRIPT REQUEST by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme for proceedings held on 09/18/2014, Judge David G Campbell hearing judge(s).
217
09/19/2014
NOTICE of Service of Discovery filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
218
09/19/2014
NOTICE of Service of Discovery filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
219
09/19/2014
TRANSCRIPT REQUEST by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Craig Kennedy, Jens Meyerhoff, James F Nolan, William J Post, J Thomas Presby, Bruce Sohn, Paul H Stebbins, Michael Sweeney, Jose H Villarreal, Wayne County Employees' Retirement System, Mark R Widmar, James Zhu for proceedings held on 9/18/14, Judge David G Campbell hearing judge(s).
220
09/22/2014
NOTICE of Appearance by Joseph Nathaniel Roth on behalf of Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Craig Kennedy, Jens Meyerhoff, James F Nolan, Bruce Sohn, Mark R Widmar, James Zhu.
221
09/22/2014
STIPULATION Regarding Stipulated Protective Order Governing Confidentiality by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
1
Text of Proposed Order
1 Attachment
222
09/24/2014
NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Discovery Conference Proceedings held on 09/18/2014, before Judge Campbell. Court Reporter: Patricia Lyons. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/15/2014. Redacted Transcript Deadline set for 10/27/2014. Release of Transcript Restriction set for 12/23/2014.
223
09/30/2014
NOTICE of Service of Discovery filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
224
10/01/2014
NOTICE of Service of Discovery filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
225
10/03/2014
ORDER granting 221 Stipulation: re protective order governing confidentiality. Signed by Judge David G Campbell on 10/3/2014.
226
10/03/2014
NOTICE of Service of Discovery filed by Mark Smilovits.
227
10/07/2014
NOTICE of Service of Discovery filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
228
10/09/2014
NOTICE of Service of Discovery filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
229
10/14/2014
NOTICE of Service of Discovery filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
230
10/15/2014
ORDER re matrix ordered in discovery conference call held on 9/18/2014. Signed by Judge David G Campbell on 10/15/2014.
231
10/16/2014
MOTION for Admission Pro Hac Vice as to attorney Mark Ryan Scott Foster on behalf of plaintiffs Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, and James Zhu.
10/16/2014
PRO HAC VICE FEE PAID. $ 35, receipt number PHX151418 as to Mark Ryan Scott Foster. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
232
10/16/2014
ORDER pursuant to General Order 09-08 granting 231 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
233
10/20/2014
ORDER. Telephonic Discovery Conference set for 10/22/2014 at 02:30 PM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Counsel shall initiate a conference call to include counsel for all parties and the Court. Counsel shall provide dial-in information to the Court if appropriate. Signed by Judge David G Campbell on 10/20/2014. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
234
10/20/2014
REPORT of Plaintiffs' and Defendants' Custodian Matrix Regarding Proposed Additional Custodians re: 233 by Plaintiffs British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
235
10/20/2014
NOTICE of Service of Discovery filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
236
10/22/2014
MINUTE ENTRY for proceedings held before Judge David G Campbell: Telephone Discovery Conference held on 10/22/2014. APPEARANCES: Telephonic appearance by Luike Brooks and Daniel Drosman for Plaintiffs. Telephonic appearance by Paul Flum, Jordan Eth, Maureen Beyers for Defendants. (see minute entry for details) (Court Reporter Elaine Cropper.) Hearing held 2:35 PM to 3:54 PM.
237
10/23/2014
TRANSCRIPT REQUEST by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme for proceedings held on 10/22/14, Judge David G Campbell hearing judge(s).
238
10/24/2014
NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Discovery Conference Proceedings held on 10/22/2014, before Judge Campbell. Court Reporter: Elaine Cropper. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/14/2014. Redacted Transcript Deadline set for 11/24/2014. Release of Transcript Restriction set for 1/22/2015.
239
10/24/2014
TRANSCRIPT REQUEST by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu for proceedings held on October 22, 2014, Judge David G Campbell hearing judge(s).
240
10/27/2014
MOTION for Admission Pro Hac Vice as to attorney Cody R Lejeune on behalf of British Coal Staff Superannuation Scheme, and Mineworkers' Pension Scheme.
10/27/2014
PRO HAC VICE FEE PAID. $ 35, receipt number PHX151727 as to Cody R Lejeune. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
241
10/27/2014
ORDER pursuant to General Order 09-08 granting 240 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
242
10/29/2014
NOTICE of Service of Discovery filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
243
11/06/2014
NOTICE of Service of Discovery filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
244
11/12/2014
NOTICE re: Plaintiffs' and Defendants' Discovery Matrix Regarding Plaintiffs Third Request for Production of Documents and Director Subpoenas by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme re: 236 Telephone Conference, Common Prompts (Text Only).
1
Exhibit A - Document Request Matrix
1 Attachment
245
11/13/2014
NOTICE of Service of Discovery filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
246
11/13/2014
NOTICE of Service of Discovery filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
247
11/14/2014
NOTICE of Service of Discovery filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
248
11/20/2014
ORDER re: 236 discovery conference. Defendants shall comply with this order on or before 12/19/2014. Signed by Judge David G Campbell on 11/20/2014.
249
12/04/2014
MOTION for Admission Pro Hac Vice as to attorney Judson E Lobdell on behalf of defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, and James Zhu.
12/04/2014
PRO HAC VICE FEE PAID. $ 35, receipt number PHX153009 as to Judson E Lobdell. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
250
12/04/2014
ORDER pursuant to General Order 09-08 granting 249 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
251
12/08/2014
ORDER. Telephonic Discovery Conference set for 12/9/2014 at 01:30 PM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Counsel shall set up a dial-in number for use by all counsel and Court for the conference call. Signed by Judge David G Campbell on 12/8/2014. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
252
12/09/2014
ORDER. During today's discovery conference call, the Court took under advisement Defendants' request that Plaintiffs be required to respond to contention interrogatories served by Defendants some months ago. The interrogatories focus on false statements at issue in this case, which Defendants are alleged to be legally responsible for which false statements, and other questions designed to determine what evidence underlies Plaintiffs' allegations of falsity, scienter, causation, etc. The Court has reviewed the amended complaint. It sets forth the alleged false statements with reasonable specificity, often quoting the alleged false statements and emphasizing particularly relevant portions. See Doc. 93, paras. 63-209. As Magistrate Judge Brazil noted, "[i]f a complaint presents a relatively detailed specification of the real world events giving rise to it, and proceeds on relatively well established legal theories, an attempt to justify early use of contention interrogatories on the ground that answers would clarify the issues would not be especially persuasive." In re Convergent Technologies Sec. Litig., 108 F.R.D. 328, 337 (N.D. Cal. 1985). The Court also notes that Plaintiffs served their responses to the contention interrogatories in March, and Defendants have not challenged the responses until today, on the eve of the most intensive discovery period in the case, when virtually all witnesses are to be deposed. If Defendants thought they needed more complete responses in order to prepare for the depositions or otherwise fashion their discovery requests, they could have and should have sought the Court's assistance much earlier. The Court will not require Plaintiffs to respond to the contention interrogatories on January 8, 2015 as requested. The responses will be due on March 6, 2015, after the close of discovery, but two weeks before the deadline for filing motions for summary judgment. Signed by Judge David G Campbell on 12-9-14. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
253
12/09/2014
TRANSCRIPT REQUEST by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme for proceedings held on 12/9/14, Judge David G Campbell hearing judge(s).
254
12/09/2014
MINUTE ENTRY for proceedings held before Judge David G Campbell: Telephone Discovery Conference held on 12/9/2014.(see minute entry for details) (Court Reporter Patricia Lyons.) Hearing held 1:36 PM to 2:42 PM.
255
12/10/2014
TRANSCRIPT REQUEST by First Solar Incorporated for proceedings held on 12/09/14, Judge David G Campbell hearing judge(s).
256
12/16/2014
NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Discovery Conference Proceedings held on 12/09/2014, before Judge David G. Campbell. (Court Reporter: Patricia Lyons). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/6/2015. Redacted Transcript Deadline set for 1/16/2015. Release of Transcript Restriction set for 3/16/2015.
257
12/23/2014
NOTICE of Service of Discovery filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
258
01/05/2015
ORDER Telephone Discovery Conference set for 1/6/2015 at 11:30 AM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. The Discovery Conference is limited to 30 minutes (total). Counsel shall set up a conference call dial-in number to include all counsel of record and the Court. Counsel shall provide the Court with dial-in information for the call. Signed by Judge David G Campbell on 1/5/2015. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
259
01/06/2015
TRANSCRIPT REQUEST by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme for proceedings held on 01/06/2015, Judge David G Campbell hearing judge(s).
260
01/06/2015
MINUTE ENTRY for proceedings held before Judge David G Campbell: Telephone Discovery Conference held on 1/6/2015.(see minute entry for details) (Court Reporter Patricia Lyons.) Hearing held 11:34 AM to 12:07 PM.
261
01/07/2015
TRANSCRIPT REQUEST by First Solar Incorporated for proceedings held on 01/06/15, Judge David G Campbell hearing judge(s).
262
01/08/2015
NOTICE re: Regarding Plaintiffs' and Defendants' Discovery Matrix Regarding Plaintiffs' Rule 30(b)(6) Deposition of First Solar by First Solar Incorporated.
263
01/08/2015
NOTICE of Service of Discovery filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
264
01/08/2015
ORDER. The Court provides the following rulings on issues raised in the parties' most recent matrix. (1) The defects addressed in the 30(b)(6) deposition will be limited to those specifically identified in the complaint (LPM and the hot climate issue). (2) For Topic 1(b), First Solar must present a witness prepared to testify regarding First Solar's knowledge regarding when individual defendants learned of defects. The testimony will concern First Solar's knowledge, not the individual defendants' knowledge. First Solar is not required in the 30(b)(6) deposition to provide testimony on behalf of the individual defendants. (3) Topic 3, even as narrowed by Plaintiffs, is clearly overbroad and would impose an unreasonable burden. If Plaintiffs wish to pursue this line of questioning, they shall identify 25 specific statements sufficiently in advance of the deposition to permit First Solar to prepare a witness on the identified statements. (4) First Solar will not be required to present a 30(b)(6) witness on Topic 11. The parties' positions on the causes of stock price fluctuations likely, and appropriately, will be addressed through expert testimony. (5) The Court concludes that responses to contention interrogatories are clearly a more efficient and cost-effective method of learning the factual basis for the affirmative defenses. Defendants shall respond to such a contention interrogatory on the same schedule as Plaintiffs' responses to contention interrogatories. (6) The Court sees merit, and greater efficiency, in setting an aggregate hours total for the 30(b)(6) depositions, and will set a limit of 20 hours. This aggregate total means, however, that Plaintiffs may decide where to allocate their time, even if the allocation results in one or more of the 30(b)(6) witnesses being deposed for more than 7 hours. (7) Defendants shall provide Plaintiffs with 30(b)(6) deposition dates by noon (Arizona time) next Tuesday. Signed by Judge David G Campbell on 1-8-55. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
265
01/07/2015
NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Discovery Conference Proceedings held on 01/06/2015, before Judge David G. Campbell. (Court Reporter: Patricia Lyons). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/28/2015. Redacted Transcript Deadline set for 2/9/2015. Release of Transcript Restriction set for 4/7/2015.
266
01/13/2015
MOTION for Admission Pro Hac Vice as to attorney Tor Gronborg on behalf of British Coal Staff Superannuation Scheme, and Mineworkers' Pension Scheme.
01/13/2015
PRO HAC VICE FEE PAID. $ 35, receipt number PHX154168 as to Tor Gronborg. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
267
01/13/2015
ORDER pursuant to General Order 09-08 granting 266 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
268
01/13/2015
NOTICE re: Plaintiffs' and Defendants' Discovery Matrix Regarding LPM Review Documents by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme re: 260 Telephone Conference.
1
Exhibit A - Internal Audit LPM Review Matrix
1 Attachment
269
01/13/2015
MEMORANDUM Defendants' Memorandum Re Privilege Log Requirements and Whether Production to an Auditor Waives Work Product by Defendant First Solar Incorporated.
270
01/13/2015
NOTICE re: Plaintiffs' Memo. in Support of Waiver of Privilege and Rule 26(B)(5) Requirements by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme re: 260 Telephone Conference.
271
01/13/2015
NOTICE re: The Parties' Proposals for Challenging Withheld and Redacted Documents by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme re: 260 Telephone Conference.
272
01/14/2015
MOTION for Admission Pro Hac Vice as to attorney Lonnie A Browne on behalf of British Coal Staff Superannuation Scheme, and Mineworkers' Pension Scheme.
01/14/2015
PRO HAC VICE FEE PAID. $ 35, receipt number PHX154266 as to Lonnie A Browne. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
273
01/14/2015
ORDER pursuant to General Order 09-08 granting 272 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
274
01/15/2015
NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Luke Brooks.
275
01/16/2015
MOTION for Admission Pro Hac Vice as to attorney James P Bennett on behalf of First Solar Incorporated.
01/16/2015
PRO HAC VICE FEE PAID. $ 35, receipt number PHX154332 as to James P Bennett. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
276
01/16/2015
ORDER pursuant to General Order 09-08 granting 275 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
277
01/23/2015
NOTICE of Service of Discovery filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
278
01/27/2015
ORDER. The Court has reviewed the parties' matrix regarding the LPM review documents. Doc. 268. The Court concludes that Defendants should produce the documents at issue in the matrix, which the Court understands to be related to an internal audit of the LPM issue. The Court does not agree that such clearly relevant documents may be withheld simply because they were created after March 31, 2012. Nor does the Court conclude that Plaintiffs unduly delayed their request. Defendants do not dispute that Plaintiffs learned of the documents in December of 2014. Defendants argue that Plaintiffs, through diligence, could have learned these facts much earlier, but the Court cannot conclude that Plaintiffs' failure to find the information in hundreds of thousands of produced pages constitutes undue delay. The Court notes that both sides' argument in this matrix -- particularly Plaintiffs' -- adopted an unnecessary accusatory tone. The parties should drop the tone in future communications with the Court. The Court also notes that Plaintiffs' argument was about twice as long as it needed to be. Repetition does not help with persuasion. Defendants shall produce the documents to Plaintiffs by January 31, 2015. Signed by Judge David G Campbell on 1-27-15. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
279
01/27/2015
NOTICE of Service of Discovery filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
280
01/27/2015
ORDER. The Court has considered the parties' briefing on the sufficiency of Defendants' privilege logs. Docs. 269, 270. Plaintiffs ask the Court to order Defendants to disclose whether each of the 5,000 documents in the logs was distributed to third parties and the identity of such parties, but cite no authority requiring such information. The Ninth Circuit has endorsed a log that discloses all persons or entities "shown on the document" to have received or sent the document. In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992). The Court will not require more. If Defendants have not identified persons or entities shown on the documents to have received or sent the documents, they shall do so. In addition, to the extent available, Defendants should provide Plaintiffs with names of the attorneys and recipients shown on the documents, and dates of the documents, identified in Plaintiffs' Appendix A. Signed by Judge David G Campbell on 1-27-15. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
281
01/27/2015
ORDER. The Court has reviewed the parties' proposals for challenging withheld or redacted documents. Doc. 271. By the close of business on January 28, 2015, Plaintiffs shall identify 20 documents from Defendants' privilege logs to be reviewed by the Court in camera. To the extent known by Plaintiffs, none of the documents should exceed 20 pages in length. By the close of business on February 2, 2015, Defendants shall deliver to the Court (1) complete and unredacted copies of the documents identified by Plaintiffs; (2) copies of the latest produced, redacted versions of the documents; and (3) the corresponding privilege log entries for the documents. The Court will determine the next step in the process after it has reviewed the documents. Signed by Judge David G Campbell on 1-27-15. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
282
01/27/2015
ORDER. The Court has reviewed the parties' briefs regarding waiver by disclosure of documents to outside auditors. Docs. 269, 270. To the extent the attorney-client privilege is at issue, the Ninth Circuit has held that disclosure of privileged documents to outside auditors waives the privilege. See United States v. Ruehle, 583 F.3d 600, 609 (9th Cir. 2009). As the D.C. Circuit has recognized, however, "[w]hile voluntary disclosure waives the attorney-client privilege, it does not necessarily waive work-product protection." United States v. Deloitte LLP, 610 F.3d 129, 139 (D.C. Cir. 2010). The D.C. Circuit further explained: "To the best of our knowledge, no circuit has addressed whether disclosing work product to an independent auditor constitutes waiver. Among the district courts that have addressed this issue, most have found no waiver." Id. (citing cases). The Court has reviewed the cases cited by Plaintiffs, In re Diasonics Sec. Litig., No. C-83-4584-RFP(FW), 1986 WL 53402 (N.D. Cal. June 15, 1986), and Medinol, Ltd. v. Boston Scientific Corp., 214 F.R.D. 113 (S.D.N.Y. 2002). The Court finds the reasoning of the D.C. Circuit in Deloitte to be more persuasive. See 610 F.3d at 139-143; see also S.E.C. v. Berry, No. C07-04431 RMW HRL, 2011 WL 825742, at *6-8 (N.D. Cal. Mar. 7, 2011). The Court accordingly holds that Defendants' work product protection was not waived by disclosures to First Solar's outside auditors. Plaintiffs allude to other deficiencies in Defendants' work product claim, but these were not raised during the January 6, 2015 conference call. The issue raised was whether disclosure to outside auditors waives the attorney-client privilege or work product protection. Doc. 260. Signed by Judge David G Campbell on 1-27-15. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
283
01/27/2015
NOTICE of Service of Discovery filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
284
01/28/2015
NOTICE re: of Identified Documents for In Camera Review by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme re: 281 Order.
285
02/02/2015
NOTICE re: Regarding Documents for In Camera Review by First Solar Incorporated.
286
02/03/2015
NOTICE of Service of Discovery filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
287
02/03/2015
NOTICE of Service of Discovery filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
288
02/05/2015
ORDER re: 284 Notice (Other) filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme re discovery. Signed by Judge David G Campbell on 2/5/2015.
289
02/05/2015
ORDER re Telephonic Discovery Conference set for 2/6/2015 at 10:00 AM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Counsel shall coordinate a conference call to include all counsel and the Court. Signed by Judge David G Campbell on 2/5/2015. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
290
02/06/2015
TRANSCRIPT REQUEST by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme for proceedings held on 2/6/2015, Judge David G Campbell hearing judge(s).
291
02/06/2015
MINUTE ENTRY for proceedings held before Judge David G Campbell: Telephone Discovery Conference held on 2/6/2015. Dispositive motions deadline extended to 3/27/2015. (see minute entry for details) (Court Reporter Patricia Lyons.) Hearing held 10:12 AM to 10:53 AM.
292
02/07/2015
NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Discovery Conference Proceedings held on 02/06/2015, before Judge David G. Campbell. (Court Reporter: Patricia Lyons). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/2/2015. Redacted Transcript Deadline set for 3/10/2015. Release of Transcript Restriction set for 5/8/2015.
293
02/11/2015
TRANSCRIPT REQUEST ORDER FORM by First Solar Incorporated for proceedings held on 02/06/2015, Judge David G Campbell, Judge Telephonic Discovery Conference hearing judge(s).
294
02/12/2015
TRANSCRIPT REQUEST AMENDED by First Solar Incorporated for proceedings held on 2/6/2015, Judge David G Campbell, Judge Telephonic Discovery Conference Proceedings hearing judge(s).
295
02/13/2015
*SEALED Defendants' Ex Parte Memorandum and Supporting Delarations in Response to the Court's Order of February 5, 2015 re: 288 filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu. *Modified on 2/13/2015 to Change from Lodged to Filed and Correct Document Link (MAP)*.
296
02/17/2015
ORDER. Telephonic hearing re upcoming motions for summary judgment set for 2/17/2015 at 03:30 PM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Counsel shall notify all parties of record of the call and set up a conference call to include all counsel who wish to participate in the call and the Court. Signed by Judge David G Campbell on 2/17/2015. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
297
02/17/2015
MINUTE ENTRY for proceedings held before Judge David G Campbell: Telephone Conference held on 2/17/2015. Motion Hearing set for 6/25/2015 at 02:00 PM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. (Court Reporter Patricia Lyons.) Hearing held 3:30 PM to 3:56 PM.
298
02/18/2015
TRANSCRIPT REQUEST by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme for proceedings held on 2/17/15, Judge David G Campbell hearing judge(s).
299
02/18/2015
ORDER re: 284 Notice (Other) filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme. Signed by Judge David G Campbell on 2/18/2015.
300
02/19/2015
NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Conference Proceedings held on 02/17/2015, before Judge David G. Campbell. (Court Reporter: Patricia Lyons). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/12/2015. Redacted Transcript Deadline set for 3/23/2015. Release of Transcript Restriction set for 5/20/2015.
301
02/24/2015
TRANSCRIPT REQUEST for Telephone Conference by First Solar Incorporated for proceedings held on 2/17/2015, Judge David G Campbell hearing judge(s).
302
03/02/2015
NOTICE of Service of Discovery filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
303
03/13/2015
NOTICE of Service of Discovery filed by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
304
03/16/2015
NOTICE of Service of Discovery filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
305
03/26/2015
MINUTE ENTRY for proceedings held before Judge David G Campbell: Telephone Discovery Conference held on 3/26/2015.Plaintiffs address defendants non-compliance with Court order doc. 278. Discussion held. Court will review the parties matrix at doc. 268, the order at doc. 278 and issue an order. TELEPHONIC APPEARANCES: Daniel Drosman and Luke Brooks for Plaintiffs. Paul Flum for Defendants (Court Reporter Liz Lemke.) Hearing held 2:37 PM to 3:07 PM This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
306
03/26/2015
TRANSCRIPT REQUEST ORDER FORM by First Solar Incorporated for proceedings held on 3/26/2015, Judge David G Campbell hearing judge(s).
307
03/26/2015
ORDER. Following today's discovery conference call, the Court reread the matrix submitted by the parties at Doc. 268-1 and the Court's order regarding the matrix (Doc. 278). The documents at issue in the matrix included "all documents relating to the internal audit" of the LPM issue (Doc. 268-1 at 2); "all documents" related to the audit "includ[ing] interviews of 'key players'" (id.); "documents relating to interviews" (Doc. 268-1 at 4); "all documents" relating to "interviews of key players" (Doc, 168-1 at 11); and "[d]ocuments reflecting those interviews -- no matter who it was that conducted the interviews and no matter who it was that memorialized them" (id.). In short, there is no question that the matrix sought all documents related to the internal LPM audit and all documents relating to interviews conducted as part of the audit. The Court ordered Defendants, by January 31, 2015, to "produce the documents at issue in the matrix," finding them "clearly relevant." Doc. 278. In response to this order, Defendants should have searched the files of the five members of the audit team whose files were not searched, and should also have searched for all documents relating to audit interviews, no matter who created them. Defendants now contend that lawyer notes of LPM audit interviews were taken for a different purpose than the internal audit. Even if this is true, the notes relate to the audit interviews and were covered by the matrix and the Court's order. Defendants also now contend that such notes are work product, but Defendants do not dispute that they have never claimed work product protection for these notes pursuant to Rule 26(b)(5) and that they did not assert work product or privilege as a basis for withholding documents in the matrix. To the contrary, when Plaintiffs specifically asserted in the matrix that Defendants "do not contend the requested documents are privileged or protected" (Doc. 168-1 at 4), Defendants did not disagree. Although waiver of the work product protection is not lightly to be found, the Court finds it here because (1) documents related to the internal LPM audit are plainly relevant in this case and have been from the beginning, interviews related to the LPM audit are plainly relevant, notes of those interviews are plainly relevant, and yet Defendants have never asserted the work product protection with respect to such notes; (2) the attorney notes of interviews were clearly at issue in the matrix, and yet Defendants did not assert the work product protection in response; (3) Defendants did not assert the work product protection in response to Plaintiffs' express statement that Defendants were not asserting that protection; and (4) Defendants have failed to search for clearly relevant documents related to the LPM audit, discovery has now closed, motions for summary judgment are imminent, and it is simply too late in this case to be asserting work product protection for the first time. As a result, Defendants shall, by April 10, 2015, search for and produce (a) all documents related to the internal LPM audit from the files of the five audit team members discussed during the conference call, and (b) all attorney notes of interviews conducted in connection with the internal LPM audit. By requiring the production of attorney notes of interviews, the Court is not requiring the disclosure of attorney "mental impressions, conclusions, opinions, or legal theories. concerning the litigation." Fed. R. Civ. P. 26(b)(3)(B). That information, if any, may be redacted from attorney notes that are produced. Signed by Judge David G Campbell on 3-26-15. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
308
03/26/2015
TRANSCRIPT REQUEST by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme for proceedings held on 3-26-15, Judge David G Campbell hearing judge(s).
309
03/27/2015
* MOTION for Partial Summary Judgment Regarding Defendants' First - Sixteenth, and Nineteenth - Twentieth Affirmative Defenses by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme. * Modified to correct event; attorney noticed on 3/30/2015
310
03/27/2015
MEMORANDUM in Support of 309 MOTION for Summary Judgment Regarding Defendants' First - Sixteenth, and Nineteenth - Twentieth Affirmative Defenses by Plaintiffs British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
1
Exhibit A - Interrogatory Response
1 Attachment
311
03/27/2015
MOTION for Summary Judgment Defendants Motion For Summary Judgment by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
312
03/27/2015
Additional Attachments to Main Document re: 311 MOTION for Summary Judgment Defendants Motion For Summary Judgment Attachment A and Attachment B by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
1
Exhibit Attachment B
1 Attachment
313
03/27/2015
DECLARATION Declaration Of Michael J. Ahearn In Support Of Defendants Motion For Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
314
03/27/2015
DECLARATION Declaration Of David Eaglesham In Support Of Defendants Motion For Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
315
03/27/2015
DECLARATION Declaration Of Robert J. Gillette In Support Of Defendants Motion For Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
316
03/27/2015
DECLARATION Declaration Of Jens Meyerhoff In Support Of Defendants Motion For Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
317
03/27/2015
DECLARATION Declaration Of Bruce Sohn In Support Of Defendants Motion For Summary Judgment by Defendants Bruce Sohn, Mark R Widmar, James Zhu.
318
03/27/2015
DECLARATION Declaration Of Mark R. Widmar In Support Of Defendants Motion For Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
319
03/27/2015
DECLARATION Declaration Of James Zhu In Support Of Defendants Motion For Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
320
03/27/2015
DECLARATION Declaration Of Chris Bueter In Support Of Defendants Motion For Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
321
03/27/2015
DECLARATION Declaration Of Adam DAngelo In Support Of Defendants Motion For Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
322
03/27/2015
DECLARATION Declaration Of Paul Flum In Support Of Defendants Motion For Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
323
03/27/2015
DECLARATION Declaration Of TK Kallenbach In Support Of Defendants Motion For Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
324
03/27/2015
DECLARATION Declaration Of Michael Koralewski In Support Of Defendants Motion For Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
325
03/27/2015
DECLARATION Declaration Of Bryan Schumaker In Support Of Defendants Motion For Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
326
03/27/2015
DECLARATION Declaration Of Samantha Sloan In Support Of Defendants Motion For Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
327
03/27/2015
Additional Attachments to Main Document re: 311 MOTION for Summary Judgment Defendants Motion For Summary Judgment Appendix of Exhibits, Exhibits 1 through 10 by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
1
Exhibits 1 - 10
1 Attachment
328
03/27/2015
Additional Attachments to Main Document re: 311 MOTION for Summary Judgment Defendants Motion For Summary Judgment Exhibits 11-20 to Appendix of Exhibits by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
329
03/27/2015
Additional Attachments to Main Document re: 311 MOTION for Summary Judgment Defendants Motion For Summary Judgment Exhibits 21 to 25 to Appendix of Exhibits by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
330
03/27/2015
Additional Attachments to Main Document re: 311 MOTION for Summary Judgment Defendants Motion For Summary Judgment Exhibits 26 through 44 to Appendix of Exhibits by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
331
03/27/2015
Additional Attachments to Main Document re: 311 MOTION for Summary Judgment Defendants Motion For Summary Judgment Exhibits 45 through 55 to Appendix of Exhibits by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
332
03/27/2015
Additional Attachments to Main Document re: 311 MOTION for Summary Judgment Defendants Motion For Summary Judgment Exhibits 56 through 59 to Appendix of Exhibits by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
333
03/27/2015
Additional Attachments to Main Document re: 310 Memorandum Exhibit 60 to the Appendix of Exhibits by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
334
03/27/2015
Additional Attachments to Main Document re: 310 Memorandum Exhibits 61 through 66 to the Appendix of Exhibits by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
335
03/27/2015
Additional Attachments to Main Document re: 310 Memorandum Exhibits 67 through 70 to the Appendix of Exhibits by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
336
03/27/2015
Additional Attachments to Main Document re: 310 Memorandum Exhibits 71 through 73 to the Appendix of Exhibits by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
337
03/27/2015
Additional Attachments to Main Document re: 310 Memorandum Exhibits 76 and 78 to the Appendix of Exhibits by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
338
03/27/2015
Additional Attachments to Main Document re: 310 Memorandum Exhibits 79 through 81 and Exhibit 83 to the Appendix of Exhibits by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
339
03/27/2015
Additional Attachments to Main Document re: 310 Memorandum Exhibit 84 to the Appendix of Exhibits by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
340
03/27/2015
Additional Attachments to Main Document re: 310 Memorandum Exhibits 86 through 90 to the Appendix of Exhibits by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
341
03/27/2015
REQUEST re: Request for Judicial Notice In Support Of Defendants Motion For Summary Judgment by Defendants Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
342
03/27/2015
MOTION to Seal Document Defendants Motion To File Documents Under Seal by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
1
Affidavit Delson Declaration In Support Of Defendants Motion To File Documents Under Seal
2
Text of Proposed Order
2 Attachments
343
03/27/2015
*FILED at Doc. 402 *SEALED LODGED Proposed Exhibit 64 to the Appendix of Exhibits re: 342 MOTION to Seal Document Defendants Motion To File Documents Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu. *Modified on 8/11/2015 (MAP)*.
344
03/27/2015
*FILED at Doc. 402 *SEALED LODGED Proposed Exhibit 74 to the Appendix of Exhibits re: 342 MOTION to Seal Document Defendants Motion To File Documents Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu. *Modified on 8/11/2015 (MAP)*.
345
03/27/2015
*FILED at DOc. 402 *SEALED LODGED Proposed Exhibit 75 to the Appendix of Exhibits re: 342 MOTION to Seal Document Defendants Motion To File Documents Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu. *Modified on 8/11/2015 (MAP)*.
346
03/27/2015
*FILED at Doc. 402 *SEALED LODGED Proposed Exhibit 77 to the Appendix of Exhibits re: 342 MOTION to Seal Document Defendants Motion To File Documents Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu. *Modified on 8/11/2015 (MAP)*.
347
03/27/2015
*FILED at Doc. 402 *SEALED LODGED Proposed Exhibit 82 to the Appendix of Exhibits re: 342 MOTION to Seal Document Defendants Motion To File Documents Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu. *Modified on 8/11/2015 (MAP)*.
348
03/27/2015
*FILED at Doc. 402 *SEALED LODGED Proposed Exhibit 85 to the Appendix of Exhibits re: 342 MOTION to Seal Document Defendants Motion To File Documents Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu. *Modified on 8/11/2015 (MAP)*.
349
03/27/2015
NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Conference Proceedings held on 03/26/2015, before Judge David G. Campbell. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/17/2015. Redacted Transcript Deadline set for 4/27/2015. Release of Transcript Restriction set for 6/25/2015.
350
03/30/2015
TRANSCRIPT REQUEST of Telephonic Conference Proceedings held on 03/26/2015 by First Solar Incorporated for proceedings held on 3/26/2015, Judge David G Campbell hearing judge(s). *TRANSCRIPT REQUEST CANCELLED PER REQUESTOR ON 30MAR2015 *Modified on 3/30/2015
351
04/09/2015
* MOTION for Reconsideration re: 307 Defendants Motion for Reconsideration and Objections to Order of March 26, 2015 by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
1
Exhibit A
2
Exhibit B
3
Exhibit C
4
Proposed Order) *Modified to add document number/link on 4/10/2015* (REW
4 Attachments
352
04/15/2015
ORDER. Defendants have filed a Motion for Reconsideration. Doc. 351. Plaintiffs shall file a response to the motion, not to exceed 8 pages, by April 22, 2015. No reply shall be filed unless requested by the Court. Signed by Judge David G Campbell on 4-15-15. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
353
04/16/2015
MOTION for Extension of Time to Respond to Defendants' Motion for Reconsideration (First Request) by British Coal Staff Superannuation Scheme, Mineworkers' Pension Scheme.
1
Text of Proposed Order
1 Attachment
354
04/16/2015
ORDER granting 353 Motion for Extension of Time Deadline as to 351 MOTION for Reconsideration re: Order 307. Response to motion for reconsideration shall be filed on or before 5/6/2015. The parties are advised that the Court will not grant further extension to this deadline absent truly extraordinaray circumstances. Signed by Judge David G Campbell on 4/16/2015.
355
04/27/2015
RESPONSE to Motion re: 309 MOTION for Partial Summary Judgment Regarding Defendants' First - Sixteenth and Nineteenth - Twentieth Affirmative Defenses Defendants Opposition To Plaintiffs Motion For Partial Summary Judgment Regarding Defendants First Through Sixteenth, And Nineteenth Through Twentieth Affirmative Defenses filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
1
Exhibit A
1 Attachment
356
04/27/2015
*DECLARATION Declaration Of Anna Erickson White In Support Of 309 Defendants Opposition To Plaintiffs Motion For Partial Summary Judgment Regarding Defendants First Through Sixteenth, And Nineteenth Through Twentieth Affirmative Defenses. filed by Michael J Ahearn, David Eaglesham, First Solar Incorporated, Robert J Gillette, Jens Meyerhoff, Bruce Sohn, Mark R Widmar, James Zhu.
1
Exhibit 1)* Modified to add document link on 4/28/2015 (REK
1 Attachment
357
04/27/2015