Allergan Reply To Request For Expedited Proceedings

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ATTORNEYS AT LAW
ORANGE COUNTY

CASE NO. 8:14-CV-01214-DOC (ANx)
REPLY ISO PLAINTIFFS REQUEST FOR
EXPEDITED PROCEEDINGS

LATHAM & WATKINS LLP
Peter A. Wald (Bar No. 85705)
peter.wald@lw.com
505 Montgomery Street, Suite 2000
San Francisco, California 94111-6538
Telephone: +1.415.391.0600
Facsimile: +1.415.395.8095

LATHAM & WATKINS LLP
Michele D. Johnson (Bar No. 198298)
michele.johnson@lw.com
650 Town Center Drive, 20th Floor
Costa Mesa, California 92626-1925
Telephone: +1.714.540.1235
Facsimile: +1.714.755.8290

Attorneys for Plaintiffs
ALLERGAN, INC. and
KARAH H. PARSCHAUER

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION

ALLERGAN, INC., a Delaware
corporation, and KARAH H.
PARSCHAUER, an individual,

Plaintiffs,

v.

VALEANT PHARMACEUTICALS
INTERNATIONAL, INC., VALEANT
PHARMACEUTICALS
INTERNATIONAL, AGMS, INC.,
PERSHING SQUARE CAPITAL
MANAGEMENT, L.P., PS
MANAGEMENT, GP, LLC, PS
FUND 1, LLC and WILLIAM A.
ACKMAN, an individual, and Does 1-
10,

Defendants.

CASE NO. 8:14-cv-01214-DOC (ANx)

REPLY IN SUPPORT OF
PLAINTIFFS REQUEST FOR

Judge: Hon. David O. Carter
Ctrm: 9D
Date: August 20, 2014
Time: 8:30 a.m.

Case 8:14-cv-01214-DOC-AN Document 37 Filed 08/18/14 Page 1 of 30 Page ID #:1285
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TABLE OF CONTENTS
Page
I. INTRODUCTION .......................................................................................... 1
II. ARGUMENT ................................................................................................. 4
A. Defendants Do Not Oppose Expedited Proceedings ........................... 4
B. Defendants Fundamentally Mischaracterize the Reasons
for Plaintiffs Request .......................................................................... 5
1. Plaintiffs Seek Expedited Proceedings to Preserve
the Stockholder Vote, Not to Undermine It............................... 6
2. This Court Is the Appropriate Forum for Plaintiffs
Claims ...................................................................................... 10
C. Defendants Misconstrue Rule 57, Which Provides for
Expedited Proceedings in Exactly These Circumstances .................. 11
1. Plaintiffs Are Entitled to Declaratory Relief ........................... 11
2. Rule 57 Expedited Proceedings Are Warranted ...................... 15
3. Plaintiffs Did Not Delay in Bringing This Action .................. 19
4. Allergan Has Standing to Bring an Insider Trading
Claim ........................................................................................ 20
D. Expedited Proceedings Are Available Whether or Not
Plaintiffs Pursue Preliminary Injunctive Relief ................................. 21
III. CONCLUSION ............................................................................................ 24

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TABLE OF AUTHORITIES
Page(s)
CASES
Am. Trim, LLC v. Oracle Corp.,
383 F.3d 462 (6th Cir. 2004) ............................................................................ 15
Apache Corp. v Chevedden,
No. 4:12-cv-00137-LHR (S.D. Tex. Feb. 3, 2012) .......................................... 19
Apache Corp. v. New York City Employees Ret. Sys.,
No. CIV. A. H-08-1064, 2008 WL 1775221 (S.D. Tex. Apr. 15,
2008) ................................................................................................................. 12
Avon Prods., Inc. v. Chartwell Assocs. L.P.,
738 F. Supp. 686 (S.D.N.Y. 1990) ................................................................... 22
Bauman v. U.S. Dist. Ct.,
557 F.2d 650 (9th Cir. 1977) ............................................................................ 16
Bautista-Perez v. Holder,
No. C 07-4192 TEH, 2009 WL 2031759 (N.D. Cal. July 9, 2009) ................. 15
Beacon Looms, Inc. v. S. Lichtenberg & Co.,
552 F. Supp. 1305 (S.D.N.Y. 1982) ........................................................... 14, 15
Brody v. Transitional Hospitals Corp.,
280 F.3d 997 (9th Cir. 2002) ............................................................................ 21
Burlington Indus., Inc. v. Edelman,
666 F. Supp. 799 (M.D.N.C. 1987) .................................................................. 20
Chamberlain v. Allstate Ins. Co.,
931 F.2d 1361 (9th Cir. 1991) .......................................................................... 17
Chevron Corp. v. Donziger,
800 F. Supp. 2d 484 (S.D.N.Y. 2011) ............................................ 12, 16, 17, 18
CNW Corp. v. Japonica Partners, L.P.,
776 F. Supp. 864 (D. Del. 1990) ...................................................................... 13
Diamond Offshore Co. v. A & B Builders, Inc.,
302 F.3d 531 (5th Cir. 2002) ............................................................................ 14
Essex Chem. Corp. v. Gurit-Heberlein AG,
No. 88-2478, 1988 U.S. Dist. LEXIS 19515 (D.N.J. June 24, 1988) .............. 20
Express Scripts Holding Co. v. Chevedden,
No. 4:13-cv-02S20-JAR (E.D. Mo. Jan. 3, 2014) ............................................ 19
Flores v. EMC Mortg. Co.,
-- F. Supp. 2d --, No. CV F 14-0047 LJO GSA, 2014 WL 641097
(E.D. Cal. Feb. 18, 2014) .................................................................................. 13
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iii

Florida Commercial Banks v. Culverhouse,
772 F.2d 1513 (11th Cir. 1985) ........................................................................ 21
Garanti Finansal Kiralama A.S. v. Aqua Marine & Trading, Inc.,
697 F.3d 59 (2d Cir. 2012) ............................................................................... 16
GEM Acquisitionco, LLC v. Sorenson Grp. Holdings, LLC,
No. C 09-01484 SI, 2009 WL 3246747 (N.D. Cal. Oct. 8, 2009) ................... 18
Grand Isle Shipyard, Inc. v. Seacor Marine, LLC,
589 F.3d 778 (5th Cir. 2009) ............................................................................ 14
Hanes Dye & Finishing Co. v. Caisson Corp.,
309 F. Supp. 237 (M.D.N.C. 1970) .................................................................. 16
Hasbro Bradley, Inc. v. Sparkle Toys, Inc.,
780 F.2d 189 (2d Cir. 1985) ............................................................................. 14
Klungvedt v. Unum Grp.,
No. 2:12-CV-00651 JWS, 2012 WL 2368623
(D. Ariz. June 21, 2012) ....................................................................... 12, 15, 22
Leu v. Intl Boundary Commn,
605 F.3d 693 (9th Cir. 2010) ............................................................................ 13
MedImmune, Inc. v. Genentech, Inc.,
549 U.S. 118 (2007) ......................................................................................... 15
Neuberger Berman Real Estate Income Fund, Inc. v. Lola Brown Trust
No. 1B,
342 F. Supp. 2d 371 (D. Md. 2004) ................................................................. 19
Newdow v. Roberts,
603 F.3d 1002 (D.C. Cir. 2010) ................................................................. 22, 23
Notaro v. Koch,
95 F.R.D. 403 (S.D.N.Y. 1982) ........................................................................ 16
Pac. Realty Trust v. APC Invs., Inc.,
685 F.2d 1083 (9th Cir. 1982) .................................................................... 21, 23
Pincay v. Andrews,
389 F.3d 853 (9th Cir. 2004) ............................................................................ 16
Planned Parenthood of the Heartland v. Heineman,
724 F. Supp. 2d 1025 (D. Neb. 2010) .............................................................. 22
Polaroid Corp. v. Disney,
862 F.2d 987 (3d Cir. 1988) ............................................................................. 20
Pratt v. Wilson,
770 F. Supp. 539 (E.D. Cal. 1991) ................................................................... 22
Professional Programs Group v. Department of Commerce,
29 F.3d 1349 (9th Cir. 1994) ............................................................................ 18
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Robertson v. Dean Witter Reynolds, Inc.,
749 F.2d 530 (9th Cir. 1984) ...................................................................... 20, 21
Seattle Audubon Socy v. Moseley,
80 F.3d 1401 (9th Cir. 1996) ............................................................................ 15
Sherwood Med. Indus., Inc. v. Deknatel, Inc.,
512 F.2d 724 (8th Cir. 1975) ............................................................................ 16
Sierra Foothills Pub. Util. Dist. v. Clarendon Am. Ins. Co.,
No. CV-F-05-736 REC/JLO, 2005 WL 2089832
(E.D. Cal. Aug. 29, 2005) ................................................................................. 13
Southwind Aviation, Inc. v. Bergen Aviation, Inc.,
23 F.3d 948 (5th Cir. 1994) .............................................................................. 14
Steel Co. v. Citizens for a Better Envt,
523 U.S. 83 (1998) ........................................................................................... 13
Steffel v. Thompson,
415 U.S. 452 (1974) ......................................................................................... 22
Stein v. KPMG, LLP,
486 F.3d 753 (2d Cir. 2007) ............................................................................... 9
StreamCast Networks, Inc. v. IBIS LLC,
No. CV 05-04239 MMM (Ex), 2006 WL 5720345
(C.D. Cal. May 2, 2006) ................................................................................... 13
Super Tire Engg Co. v. McCorkle,
416 U.S. 115 (1974) ......................................................................................... 22
Tri-State Generation & Transmission Assn, Inc. v. BNSF Ry. Co.,
No.CV08-272-PHX-MHM, 2008 WL 2465407
(D. Ariz. June 17, 2008) ............................................................................. 15, 22
Turner Indus. Grp., LLC v. Intl Union of Operating Engrs, Local 450,
No. Civ. A. H-13-0456, 2013 WL 2147515 (S.D. Tex. May 10, 2013) .......... 17
U.S. Philips Corp. v. KBC Bank N.V.,
590 F.3d 1091 (9th Cir. 2010) .......................................................................... 22
United States v. Stein,
452 F. Supp. 2d 230 (S.D.N.Y. 2006), vacated on other grounds sub
nom. Stein v. KPMG, LLP, 486 F.3d 753 (2d Cir. 2007) ............................. 9, 18
United States v. Washington,
759 F.2d 1353 (9th Cir. 1985) .......................................................................... 11
STATUTES
15 U.S.C. 78aa .............................................................................................. 10, 12
28 U.S.C. 2201(a) ..................................................................................... 3, 12, 14
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RULES
Fed. R. Civ. P. 26 ................................................................................................... 19
Fed. R. Civ. P. 57 ............................................................................................. 14, 18
L.R. Civ. 16-11 ...................................................................................................... 18
TREATISES
10B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure (3d ed. 2014) ................................................................................... 17
Anderson, Actions for Declaratory Judgments, Vol. 1 ......................................... 16

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I. INTRODUCTION
Plaintiffs contend that Defendants have broken the federal securities laws
prohibiting insider trading and the use of false and misleading proxy statements.
Defendants say they have not. Fair enough. But given that Valeant has made a
live hostile tender offer seeking to acquire Allergan, and that Defendants are
actively soliciting the Companys stockholders in an effort to call a special meeting
and remove a majority of Allergans directors, Allergans board and its
stockholders are entitled to a prompt resolution of these questions. Accordingly,
Plaintiffs seek expedited discovery and a prompt adjudication of their claims for
declaratory relief.
In response, Defendants perplexingly seek to characterize Plaintiffs request
for expedition as an attempt to delay. Nonsense. Precisely the reverse is true:
Plaintiffs seek to move this case forward promptly to an adjudication on the merits,
while Defendants oppose that requestsort of. While styling their submission as
an Opposition, Defendants agree that expedition is warrantedbut only if
Plaintiffs file a preliminary injunction motion rather than seek expedited
proceedings under Rule 57. Defendants position reflects a substantial retreat from
their prior statement that they were prepared to prove the absence of merit to this
case under any procedure or schedule convenient for the Court. Regardless, there
is no basis for Defendants sudden insistence that Plaintiffs pursue preliminary
injunctive relief. While such relief may be appropriate, it is not the only relief
available under the Federal Rulesand it is not Defendants prerogative to dictate
the relief that Plaintiffs may seek. Courts routinely order expedited proceedings
under Rule 57, regardless of whether other remedies, including injunctive relief,
might be available.
The reason for Defendants opposition to Plaintiffs proposal is readily
understood: Defendants hope to delay the adjudication of Plaintiffs Exchange Act
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claims so that they can secure a vote of Allergans stockholders without having to
disclose all of the facts surrounding their conduct. And the facts disclosed thus far
are striking. Valeant secretly tipped Pershing Square about its intention to launch a
tender offer for Allergan, and armed with that information, Pershing Square
through its newly created entity PS Fund 1bought up almost 10% of Allergans
shares for over $3 billion. When Valeant announced its plans, PS Fund 1s stake in
Allergan shot up in value by more than $1 billion. For Defendants, their ability to
delay an adjudication of Plaintiffs claims on the merits while seeking to convene a
special meeting of stockholders and remove a majority of the Allergan board is
critical.
In their attempt to portray Plaintiffs as the architects of delay, Defendants
make much of a lawsuit in Delawarea lawsuit that does not exist. Defendants
have publicly stated that by mid- to late August, they plan to submit request forms
from the holders of record of at least 25% of Allergan shares, calling for a special
stockholder meeting. The Companys bylaws direct the Secretary of Allergan to
call such a meetingunless Defendants have violated the Exchange Act or other
applicable law, or have otherwise not complied with the Companys charter or
bylaws. If the Secretary does not set the special stockholder meeting within a
reasonable period of time, Defendants say they will file suit in Delaware. Plaintiffs
have filed this application to expedite an adjudication of their claims (Dkt. No. 11)
(hereinafter, the Motion), expressly to avoid any unnecessary delay of the special
meeting.
Because the bylaws provide that the Secretary of Allergan shall not accept
a special stockholder meeting request if the request forms were made in a manner
that involved a violation of applicable law, Plaintiffs seek an adjudication of that
question from this Courtthe only court with jurisdiction to adjudicate Plaintiffs
federal claims. Plaintiffs thus ask this Court for a schedule that contemplates
expedited discovery, a narrow window for summary judgment, and, if necessary, a
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trial on any question of material fact that remains. The schedule Plaintiffs seek is
designed to produce an expedited resolution of their claims on the merits
something in which Defendants profess to be interested as well. Indeed, in
response to the press announcement of an investigation by the Securities and
Exchange Commission (SEC) into insider trading issues surrounding
Defendants conduct, Defendants claim to welcome the SECs review of the
facts. Supplemental Declaration of Colleen C. Smith (Supp. Smith Decl.) Ex.
A (David Gelles, SEC Reviews Bid for Botox Maker by Valeant and Ackmans
Hedge Fund, N.Y. TIMES (Aug. 14, 2014, 3:27 p.m.)). Defendants should
welcome a review by this Court as wellyet their Opposition to Plaintiffs Motion
suggests otherwise.
Defendants also claim that Allergan could have filed this lawsuit earlier.
Not so. It was not until June 18 that Valeant officially launched its tender offer to
Allergans stockholdersa move that Valeant CEO J. Michael Pearson admitted,
in an unscripted moment, he had suspected would be necessary all along. And
not until July 11, 2014 did Defendants file their final proxy statement, containing
the full set of disclosures that Defendants would use to solicit proxies from
Allergans stockholders. Allergan filed suit shortly thereafter (within three weeks),
and immediately sought expedited proceedings under Rule 57.
Plaintiffs claims are precisely the type that courts routinely resolve by
means of declaratory relief under Rule 57frequently on an expedited basis.
Defendants are incorrect that a declaratory judgment is proper only if it would
resolve the entire case. Rather, a declaration is proper to clarify the rights and
legal relations of the parties, whether or not further relief is or could be sought.
28 U.S.C. 2201(a) (2014). Because Allergans bylaws prohibit the Secretary
from accepting a special meeting request if it was made in a manner that involved a
violation of applicable law, a declaration by the Court as to whether the law has
been violated will resolve a live controversy with critical impact on future events.
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Where, as here, the situation arises amidst a live takeover attempt, the resolution of
the controversy should be expedited.
As a final roadblock to a speedy hearing under Rule 57, Defendants claim
they plan to file counterclaims against Allergan and, therefore, that the case should
not proceed to judgment on an expedited basis. If Defendants want to assert
counterclaims, they should do so. If Defendants want expedition on their
counterclaims, they should request it. Irrespective of Defendants anticipated
filings, Plaintiffs insider trading and disclosure claims should proceed to an
adjudication on the merits expeditiously.
At bottom, the parties agree that some form of expedited proceeding is
needed here so that the issues raised by Plaintiffs complaint can be addressed
promptly. In the absence of any disagreement on this fundamental point, the Court
should order expedited proceedings consistent with Plaintiffs request and Rule 57.
II. ARGUMENT
A. Defendants Do Not Oppose Expedited Proceedings
First and foremost, there is no disagreement between the parties as to the
need for expedition. Within days of filing the complaint, Plaintiffs reached out to
Defendants and sought their agreement to an expedited schedule. August 4, 2014
Declaration of Colleen C. Smith (Smith Decl.) 4. Since the expedition motion
was filed, Defendants have repeatedly offered to expedite proceedings and
indicated that they will agree to whatever schedule is necessary if Plaintiffs file a
motion for a preliminary injunction. Opp. at 18; see also Supp. Smith Decl. Ex. D.
Based on Defendants recognition that expedition may be appropriate, Plaintiffs
continued to seek a negotiated schedule and proposed a draft joint stipulation and
schedule reflecting Defendants intention to expedite their own responses to
Plaintiffs complaint. Supp. Smith Decl. Ex. B. Even in their Opposition,
Defendants confirm that they are prepared to proceed on an expedited basis by
agreeing, for example, to file their answer and expected Rule 12(c) motion on an
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expedited basis, immediately confer with Plaintiffs regarding mutual expedited
discovery, serve their own discovery requests the day after the August 20 hearing,
accept the appointment of a referee to expeditiously resolve discovery disputes,
and accept any hearing date convenient to the [C]ourt. Opp. at 18.
The parties disagree only on the procedural framework for the expedited
schedule. Plaintiffs are seeking a speedy hearing on the merits under Rule 57,
while Defendants insist that Plaintiffs pursue a preliminary injunction. Id.
Defendants insistence on the course that Plaintiffs should pursue is passing
strange as a matter of principle, and wrong as a matter of law. See infra Section D.
In any event, because the parties agree that expedited proceedings are in order, this
Court should set a schedule that permits resolution of Plaintiffs claims before any
special meeting of stockholders is held.
1

B. Defendants Fundamentally Mischaracterize the Reasons for
Plaintiffs Request
While acknowledging the need for expedition, Defendants nevertheless seek
to characterize Plaintiffs Motion as an attempt to delay a special meeting and
avoid adjudication of that issue in Delaware. Opp. at 1. On the contrary,
Plaintiffs Motion asks this Courtthe only court with jurisdiction over the
Exchange Act claimsto adjudicate those claims promptly on the merits, so that
Allergans board and its stockholders can be properly informed in advance of any
special meeting.

1
Plaintiffs requested that the Court order expedited proceedings on an ex parte
basis because, according to recent public statements, Defendants plan to submit
requests for a special meeting any day, and it is important to resolve Plaintiffs
claims within an approximately four-month (120-day) period. See Smith Decl. Ex.
E at 17, 39. Recognizing the heavy burden required for an ex parte motion but
also the urgency of the circumstances presented, the Court denied Plaintiffs ex
parte motion but ordered an accelerated briefing schedule on their request for
expedition. Dkt. No. 24.
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1. Plaintiffs Seek Expedited Proceedings to Preserve the
Stockholder Vote, Not to Undermine It
As summarized in Plaintiffs Motion (Mot. at 3-4), Plaintiffs claims arise
from Valeants ongoing efforts to acquire Allergan by means of a hostile tender
offer with support from the Pershing Square Defendants. See Compl. (Dkt No. 1)
35, 40, 43. In February 2014, Valeant began to take substantial yet undisclosed
steps towards a hostile bid for Allergan, including retaining financial and legal
advisors, holding multiple board meetings, and entering into contractual and
financial arrangements to facilitate the takeover. Id. 63. Following the initiation
of these steps, Pershing Square formed PS Fund 1 and, in violation of the
Exchange Act, rapidly acquired 9.7% of Allergans stock between February 25 and
April 21, 2014, primarily through purchases of over-the-counter call options and
equity futures. Id. 66, 84-88. Attempting to legitimize their conduct,
Defendants concealed material facts regarding their relationship, history, and
intentions in various public statements and SEC filings. Id. 132-58.
On April 22, 2014, once Defendants acquisition of Allergan shares became
known, Allergans board, in consultation with its financial and legal advisors,
adopted a one-year stockholder rights plan, which would be triggered if any single
person or group acquired more than 10% of Allergans stock. Smith Decl. Ex. A
(Allergan Form 8-K, Apr. 23, 2014). Pershing Square, in turn, announced its
intention to seek a special meeting of stockholdersamong other things, to
remove a majority of the current directors and pack the Allergan board with
sympathetic directors who might remove the rights plan and negotiate with
Valeant. Compl. 16, 130. Defendants public statements suggest that Pershing
Square expects to havein the near futurea sufficient number of proxies (25%
of outstanding shares) to require Allergans directors to consider the meeting
request. Mot. at 6.
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As explained in Plaintiffs Motion, Allergans bylaws contain a number of
conditions that must be satisfied in order for the special meeting request to be
valid. Id. at 4-5. Among other things, any such request must comply with the
requirements of the Exchange Act, and if it does not, Allergans Secretary shall
not accept, and shall consider ineffective, a Special Meeting Request if . . .
(f) such Special Meeting Request was made in a manner that involved a violation
of Regulation 14A under the Exchange Act, or other applicable law. Smith
Decl. Ex. C, Art. II, 3(B)(1) (emphasis added); see also id., Art. II, 3(B)(5)
(emphasis added) (In addition to the requirements of this Section 3, each
Proposing Person shall comply with all requirements of applicable law, including
all requirements of the Exchange Act, with respect to any request to fix a Special
Meeting Request.).
Thus, under Allergans bylaws, the validity of Defendants special meeting
request depends upon whether they have complied with the Exchange Act. That
issue is at the heart of this lawsuit.
2
Plaintiffs contend that any special meeting
request forms that Defendants may submit were obtained in violation of the
Exchange Actincluding Sections 13(d), 14(a), 14(e), and 20A and the rules
promulgated thereunderand are therefore invalid. Compl. 1, 159-93. Yet,

2
Defendants reference to hearsay reports issued by shareholder advisory firms
ISS and Glass Lewis regarding Allergans bylaws, Opp. at 1, 4-5, are irrelevant to
this lawsuit and the present motion. Those reports express opinions regarding the
procedural requirements stockholders seeking to call a special meeting must follow
under the bylaws, and whether such requirements are overly cumbersome. Id. But
contrary to Defendants selective presentation of these reports, they say nothing
about Allergans lawsuit or its request for expedited consideration of its claims
and certainly do not address whether Defendants actions have violated the
securities laws. Indeed, one cited section of the ISS report specifically focuses on
how the board may act upon receipt of a valid request for a special meeting.
Shipley Decl. Ex. 1, at 12; see also id. at Ex. 2 (Glass Lewis Report), at 17 (Valid
submission of Written Requests in favor of a special meeting will require full
compliance with the provisions set forth in Allergans charter, bylaws and
applicable law.). It is precisely to protect the stockholders right to properly call a
special meeting, by determining as early as possible whether any submitted
meeting request is valid, that Allergan has requested expedited proceedings for
declaratory relief.
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rather than simply refusing to call the special meeting based on such violations (see
Smith Decl. Ex. C, Art. II, 3(B)(1)-(5)), Plaintiffs filed this lawsuit seeking
declaratory relief on their Exchange Act claims so that these issues can be
definitively resolved by this Court.
Plaintiffs are not interested in delay. The entire reason for Plaintiffs
expedition request is to resolve their claims as promptly as possible, and thereby
arm both the board and stockholders with the information they need in determining
how to proceed. No fair-minded person could characterize Plaintiffs attempt to
achieve resolution of their claims before any special meeting is held as a delay
tactic. If Defendants submit request forms that have been procured on the basis of
Exchange Act violations, Allergans Secretary is directed not to call a special
meeting. See Smith Decl. Ex. C, Art. II, 3(B)(1)-(5).
With respect to timing, Allergans Secretary will seek to call a special
meeting within a reasonable time following the submission of request forms
provided such forms are valid. A provision in Allergans bylaws provides that in
lieu of Allergans Secretary calling the stockholder-requested special meeting, the
board may set its own meeting within 120 days of receiving a special meeting
request. Id. Art. II, 3(B)(3). While this 120-day provision does not apply to a
stockholder-requested special meeting, Defendants have publicly expressed their
view that Allergan must call the stockholders special meeting within 120 days of a
valid request. Smith Decl. Ex. E at 17 (Mr. Schiller: Pershing Square has
commenced the process called special meeting and expects the votes to call the
special meeting will be presented to Allergan for certification in August.
Assuming we get greater than 25 percent, Allergan will call a special meeting
within 10 to 120 days.); id. at 39 (Mr. Pearson: Pershing is intending to deliver
the requisite number of proxies in mid-August and once theyre certified, Allergan
has nocant call a meeting at any fewer than 10 days and they have up to 120
days.).
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Plaintiffs accordingly propose an expedited schedule that would
accommodate discovery, motion practice, and (if necessary) a trial on the merits of
Plaintiffs claims, all within 120 days (Mot., at Attachment A). In light of
Defendants stated intention to file its answer and counterclaims before the August
25 deadline (Opp. at 16, 18), and certain meet and confer discussions, Plaintiffs
have proposed the following schedule:
No deadline for Defendants anticipated Rule 12(c) motion;
Discovery may commence immediately;
Deadlines for other proceedings will be triggered by the submission of
the special meeting requests, as reflected in Plaintiffs initial
proposal.
3

In particular, Plaintiffs ask for briefing on a Rule 57 summary judgment
motion as to their Section 13(d), 14(a), and 14(e) claims (see Compl. at 48-49), and
appropriate declaratory relief, within 98 days of any special meeting request that
Defendants may submit and, if necessary, a trial within 110 days.
4
Should the

3
Defendants incorrectly contend that Plaintiffs proposed schedule seeks to jam
Defendants while allowing Plaintiffs extra time for briefing. Opp. at 2. To the
contrary, Plaintiffs attempted to craft a proposed schedule allowing for adequate
discovery while maximizing the time available to the parties and the Court to
adjudicate their claims. While Defendants assert that Plaintiffs proposal included
an additional week for Plaintiffs opposition briefing, in fact, Plaintiffs proposal
contemplated that Plaintiffs would move for summary judgment, allowing
additional time for Defendants to submit their opposition papers. If, however,
Defendants intend to file their own cross motion for summary judgment, Plaintiffs
are willing to submit their opposition to Defendants motion within a shortened
period of time. Indeed, Plaintiffs have repeatedly reached out to Defendants to
discuss the schedule and expressed their willingness to discuss modifications.
Smith Decl. Ex. I; Suppl. Smith Decl. Ex. B, C. Likewise, should the Court prefer
a shortened briefing period prior to the scheduled hearing date, Plaintiffs will
adhere to any proposal that is convenient for the Court.
4
Plaintiffs have requested a trial by jury on all legal claims (see Compl. at 1).
Should the Court determine that any issues remaining for trial implicate such
claims, Plaintiffs request a jury trial as to those claims. See United States v. Stein,
452 F. Supp. 2d 230, 274 (S.D.N.Y. 2006), vacated on other grounds sub nom.
Stein v. KPMG, LLP, 486 F.3d 753 (2d Cir. 2007).
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Court grant declaratory relief, then the remaining issues before the Court may be
addressed thereafter in accordance with the Federal Rules.
2. This Court Is the Appropriate Forum for Plaintiffs Claims
Defendants also attack Plaintiffs request for expedited proceedings as some
sort of attempt to avoid adjudication of these issues in Delaware. Opp. at 1. That
accusation is baseless. As discussed, Allergans bylaws expressly require
compliance with the Exchange Act as the predicate for any special meeting
request. Smith Decl. Ex. C, Art. II, 3(B)(1), (5). Whether Defendants violated
the Exchange Act by engaging in insider trading and issuing false and misleading
proxy statements are issues of federal law within this Courts exclusive
jurisdiction. 15 U.S.C. 78aa (2014). Once those issues are resolved, any further
dispute concerning the special meeting request can be pursued in Delaware.
Accordingly (and contrary to Defendants assertion, Opp. at 1, 12), the present
case acknowledges and honors the different roles to be played by this Court and
the Delaware court in regard to the scheduling of a special meeting.
5

Finally, Defendants suggestion that Allergan is seeking a ruling from this
Court in order to later ask the Delaware court to decide the implications of this

5
Defendants also mischaracterize previous litigation between the parties in
Delaware. Defendants claim that Allergan forced them to file a case in Delaware
to adjudicate whether their efforts to solicit meeting request forms would trigger
the stockholder rights plan. Ex Parte Opp., Dkt. No. 15, at 6-7. That is not true.
As the record reflects, Pershing Square sent Allergans board a letter seeking broad
assurances that any potential interactions with other stockholders would not trigger
Allergans rights plan. Supp. Smith Decl. Ex. E. Allergan replied that the mere
solicitation and receipt of proxies pursuant to the bylaws and in accordance with
the Exchange Act would not, by itself, trigger the rights plan. Id. Ex. F. Allergan
further stated that it could not provide full and complete responses to Pershing
Squares questions without a better understanding of the facts, and offered to
arrange a conference call to discuss any specific questions. Id. Rather than
accept Allergans offer to confer, PS Fund 1 filed a lawsuit in the Delaware Court
of Chancery the very next day. See PS Fund 1, LLC v. Allergan, Inc., C.A. No.
9760-CB, Compl. 43. Allergan continued to engage with Pershing Square, see
Supp. Smith. Decl. Ex. G, as it had offered to do, and the parties settled the matter
and submitted a joint stipulation to the Delaware court on June 27, 2014. Shipley
Decl. Ex. 3 (Stipulation and [Proposed] Order Regarding Application of Allergan
Rights Plan and Dismissal Without Prejudice).
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Courts decision is mystifying. Id. at 6. Plaintiffs seek a ruling from this Court
on their Exchange Act claims because this Court has exclusive jurisdiction over
those claims and the Allergan bylaws prohibit the acknowledgement and
acceptance of special meeting requests secured and submitted in violation of the
Exchange Act. Once this Court has ruled on the Exchange Act issues, Allergans
board and stockholders will be able to assess any special meeting requests that
Defendants may tender, subject to the Delaware courts oversight.
C. Defendants Misconstrue Rule 57, Which Provides for Expedited
Proceedings in Exactly These Circumstances
Defendants argue that Plaintiffs claims are not appropriate for declaratory
relief, and that even if declaratory relief were available, Rule 57 does not provide
for expedited proceedings here. Opp. B(1). Each of Defendants arguments is
incorrect.
1. Plaintiffs Are Entitled to Declaratory Relief
Plaintiffs assert three claims for declaratory relief under the Exchange Act:
(i) Section 14(a) and the rules promulgated thereunder; (ii) Section 14(e) and the
rules promulgated thereunder; and (iii) Section 13(d) and Schedule 13D
promulgated thereunder. Compl. 19, 159-189.
6
Each of these claims is
appropriate for declaratory relief. As Defendants acknowledge, declaratory
judgment is proper where it serves in clarifying and settling the legal relations in

6
On August 6, 2014only after Plaintiffs filed this lawsuit alleging that
Defendants had violated Section 13(d) by failing to disclose information and
documents required by the statute, including derivatives contracts and the parties
confidentiality agreements, and more than three months after Defendants initial
Schedule 13D filingsDefendants finally disclosed those documents. Supp.
Smith Decl. Ex. H. While insufficient to cure Defendants numerous other
material omissions chronicled in Plaintiffs complaint, these long-concealed
documents corroborate that Valeant and Pershing Square are not the same person
under Rule 14e-3, but rather distinct persons with separate economic interests. For
example, Defendants amended and restated confidentiality agreement makes clear
that they contemplated two distinct transactions: Valeants transaction involving
Allergan, and a potential equity investment by Pershing Square. See id.
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issue. Opp. at 3 (citing United States v. Washington, 759 F.2d 1353, 135657
(9th Cir. 1985) (en banc)); see also 28 U.S.C. 2201(a) (the Court may declare
the rights and other legal relations of any interested party seeking such
declaration, whether or not further relief is or could be sought) (emphasis added).
That is the essence of Plaintiffs request: a declaration concerning Defendants
conduct and whether it violated provisions of the Exchange Actwhich will
permit Allergans board to make an informed decision regarding the validity of any
special meeting request that is submitted and the proposed hostile exchange offer,
and will permit Allergans stockholders to make an informed decision in
evaluating the legality and sufficiency of Valeants offer.
Defendants suggest three reasons why declaratory relief is not available:
(1) declaratory relief must terminate the controversy, (2) declaratory relief must
address future wrongdoing or impending litigation, and (3) declaratory relief
cannot be combined with other remedies. Opp. at 10-14. Defendants are wrong on
all counts.
First, contrary to Defendants assertion that declaratory relief must terminate
the controversy (id. at 10-11), declaratory relief is proper when it would resolve or
significantly narrow the key issues. See, e.g., Klungvedt v. Unum Grp., No. 2:12-
CV-00651 JWS, 2012 WL 2368623, at *3 (D. Ariz. June 21, 2012) (ruling on
ERISA claim would be dispositive as to state law claims); Chevron Corp. v.
Donziger, 800 F. Supp. 2d 484, 491 (S.D.N.Y. 2011) (explaining that decision on
enforceability of judgment probably would be dispositive of the unjust
enrichment count, dramatically narrow or eviscerate the RICO and fraud claims . . .
.). Here, resolution of Plaintiffs declaratory judgment claims will be dispositive
of the primary issues of liabilityissues of federal law that can only be decided by
this Court. 15 U.S.C. 78aa; see Apache Corp. v. New York City Employees Ret.
Sys., No. CIV. A. H-08-1064, 2008 WL 1775221, at *1 (S.D. Tex. Apr. 15, 2008).
A declaratory judgment unquestionably will remove any uncertainty surrounding
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the legality of Defendants trading activities and disclosures to Allergans
stockholders. See, e.g., StreamCast Networks, Inc. v. IBIS LLC, No. CV 05-04239
MMM (Ex), 2006 WL 5720345, at *45 (C.D. Cal. May 2, 2006) (finding
declaratory relief appropriate where such relief would clarify plaintiffs
prospective right to terminate the agreement without liability); Sierra Foothills
Pub. Util. Dist. v. Clarendon Am. Ins. Co., No. CV-F-05-736 REC/JLO, 2005 WL
2089832, at *7 (E.D. Cal. Aug. 29, 2005) (holding that declaratory relief is
appropriate to resolve insurers potentially continuing duty to defend on the
appeal or thereafter if a re-trial is ordered).
Second, Defendants argue that a party cannot bring a declaratory judgment
claim to declare past conduct unlawful. Opp. at 12. But Defendants discussion of
the cases they cite is completely out of context. Here, the proxy contest between
Allergan and Defendants is ongoing, and a declaratory judgment would
unquestionably impact the parties future conductfor example, a decision by
Allergans Secretary concerning the effectiveness of any special meeting request
that may be submitted. Defendants cases do not suggest that declaratory relief is
unavailable in these circumstances, as they all involve situations where the plaintiff
sought only psychic satisfaction from a judgment that would have no present
effect. See id., citing Leu v. Intl Boundary Commn, 605 F.3d 693, 694 (9th Cir.
2010) (claim for declaratory judgment against President Bush, a non-party, for
unlawful termination); see also CNW Corp. v. Japonica Partners, L.P., 776 F.
Supp. 864 (D. Del. 1990) (no live controversy where defendant had already lost
proxy contest and sold shares); Flores v. EMC Mortg. Co., -- F. Supp. 2d --, No.
CV F 14-0047 LJO GSA, 2014 WL 641097, at *13 (E.D. Cal. Feb. 18, 2014)
(seeking declaration as to completed foreclosure).
Third, there is no basis for Defendants assertion that plaintiffs
intermingling of requests for declaratory relief with coercive demands for damages
and injunctions, removes [a] suit from the realm of a declaratory judgment
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action. Opp. at 14 n.11 (quoting Diamond Offshore Co. v. A & B Builders, Inc.,
302 F.3d 531, 539 (5th Cir. 2002), overruled in part on other grounds by Grand
Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778 (5th Cir. 2009)). In fact,
the Declaratory Judgment Act and Rule 57 expressly permit declaratory relief even
if other remedies are available. 28 U.S.C. 2201(a) (permitting declaratory relief
whether or not further relief is or could be sought); Fed. R. Civ. P. 57 (The
existence of another adequate remedy does not preclude a declaratory judgment
that is otherwise appropriate.); see also Beacon Looms, Inc. v. S. Lichtenberg &
Co., 552 F. Supp. 1305, 1315 (S.D.N.Y. 1982) ([T]he fact that plaintiff seeks, and
may be deserving of, preliminary injunctive relief does not preclude the entry of a
declaratory judgment if appropriate in the instant case.), abrogated in part on
other grounds by Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189 (2d Cir.
1985).
Both cases cited by Defendantsostensibly in support of this proposition
in fact say the opposite. Southwind Aviation, Inc. v. Bergen Aviation, Inc., 23 F.3d
948, 951 (5th Cir. 1994) (Opp. at 14 n.11), held that, in determining whether to
abstain in favor of an ongoing state court proceeding, the existence of a damages
claim requires the trial court to treat the case as more than simply a case for
declaratory judgment (and, on that basis, to defer to the state court). Southwind
makes clear that [a]lthough some of the relief sought by Southwind is declaratory
in nature, Southwind also requests coercive remedies for the breach of contract in
the form of damagesand that both claims were permissible in the same action.
Id. (emphasis added); accord Diamond Offshore, 302 F.3d at 540 (noting that
district court erred in not hearing damages claim as well as declaratory claim).
Here, there is no question of abstention in favor of a pending state court case, and
the claims at issue in this action are exclusively federal. There simply is no barrier
to this Court exercising jurisdiction over Plaintiffs claims for both declaratory
relief and monetary damages.
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Once the Court has addressed the merits of Plaintiffs declaratory relief
claims, appropriate remedies for any violations found can be determined on a
schedule convenient to the Court. See Am. Trim, LLC v. Oracle Corp., 383 F.3d
462, 47475 (6th Cir. 2004) (finding no abuse of discretion where district court
divided trial into three phases); Bautista-Perez v. Holder, No. C 07-4192 TEH,
2009 WL 2031759, at *12 (N.D. Cal. July 9, 2009) (allowing bifurcation of
liability and injunctive/declaratory relief from monetary relief).
Defendants misplaced arguments aside, Plaintiffs declaratory judgment
claims are both proper and justiciable. There exists a substantial controversy in
need of immediate resolution regarding the legality of Defendants conduct in
connection with Valeants efforts to acquire Allergan. See MedImmune, Inc. v.
Genentech, Inc., 549 U.S. 118, 127 (2007); Seattle Audubon Socy v. Moseley, 80
F.3d 1401, 1405 (9th Cir. 1996).
7
These are exactly the circumstances in which
declaratory relief is appropriate.
2. Rule 57 Expedited Proceedings Are Warranted
Because declaratory relief is appropriate, this Court has clear discretion
under Rule 57 to order a discovery and briefing schedule that would facilitate an
expedited ruling on Plaintiffs declaratory judgment claims. See Klungvedt, 2012
WL 2368623, at *3 (ordering discovery and briefing schedule); Tri-State
Generation & Transmission Assn, Inc. v. BNSF Ry. Co., No.CV08-272-PHX-
MHM, 2008 WL 2465407, at *67 (D. Ariz. June 17, 2008) (granting Rule 57
motion and ordering parties to submit a proposed scheduling order); Beacon

7
Seattle Audubon Society, cited by Defendants (Opp. at 12), in fact supports
Plaintiffs request for expedition. There, the court held that declaratory relief was
appropriate to prevent the likelihood of confusion caused by differing judgments
or, at least, the uncertainty and expense associated with proceeding later in another
forum. Seattle Audubon Socy, 80 F.3d at 1406. Similar considerations inform
the present case, given this Courts exclusive jurisdiction over the asserted federal
law claims.
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Looms, 552 F. Supp. at 1315 (ordering parties to submit proposed discovery
schedule to allow the court to try the matter expeditiously).
Expediting proceedings under Rule 57 comports with the well settled rule
that the Declaratory Judgment Act should be liberally construed to accomplish its
purpose of providing a speedy and inexpensive method of adjudicating legal
disputes without invoking coercive remedies and that it is not to be interpreted in
any narrow or technical sense. Garanti Finansal Kiralama A.S. v. Aqua Marine
& Trading, Inc., 697 F.3d 59, 70 (2d Cir. 2012) (quoting Sherwood Med. Indus.,
Inc. v. Deknatel, Inc., 512 F.2d 724, 729 (8th Cir. 1975)); Chevron, 800 F. Supp.
2d at 491. Indeed, [t]he very justification for the existence of the right to maintain
a declaratory action is to expedite the ascertainment of rights, stabilize relations
and dissipate uncertainty. Hanes Dye & Finishing Co. v. Caisson Corp., 309 F.
Supp. 237, 240 (M.D.N.C. 1970) (quoting ANDERSON, ACTIONS FOR
DECLARATORY JUDGMENTS, Vol. 1 228, at 512).
Defendants arguments against expedited proceedings under Rule 57 are
singularly unpersuasive. First, Defendants contend that because there is no clear
precedent applying Rule 57, the Court should rely on general equitable
principles, which justify denial of expedition. Opp. at 15. However, not one of
the cases Defendants cite has anything to do with expedited proceedings, much less
Rule 57. See id. at 15 n.12.
8
Defendants cannot simply manufacture a standard
and then argue that Plaintiffs have failed to meet it. Indeed, the same leading

8
Rather, each case evaluates a procedural issue irrelevant to this case. See Pincay
v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (applying four-factor balancing test
established by the Supreme Court to determine whether excusable attorney neglect
existed to warrant extension of deadline for filing notice of appeal); Bauman v.
U.S. Dist. Ct., 557 F.2d 650, 655 (9th Cir. 1977) (establishing five guidelines
that may not result in bright-line distinctions to help determine whether drastic
circumstances exist to issue writ of mandamus); Mission Power Engg Co. v.
Contl Cas. Co., 883 F. Supp. 488, 49093 (C.D. Cal. 1995) (providing standard
for granting ex parte applications); Notaro v. Koch, 95 F.R.D. 403, 405 (S.D.N.Y.
1982) (requiring four elements that parallel preliminary injunction requirements for
expedited discovery).
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treatise quoted by Defendants (id. at 15) explains that there is a dearth of decided
cases precisely because the Rule 57 provision permitting expedition is so
sensible and appropriate. 10B CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE 2768 (3d ed. 2014). The Court should
reject Defendants transparent attempt to circumvent Rule 57 and its strong policy
favoring early resolution of declaratory judgment actions. Chevron, 800 F. Supp.
2d at 491.
Second, Defendants suggest that Rule 57 should be applied only to avoid
piecemeal litigation. Opp. at 16. That consideration has nothing to do with the
availability of a speedy hearing under Rule 57. See supra Section D; Chamberlain
v. Allstate Ins. Co., 931 F.2d 1361, 136568 (9th Cir. 1991) (Opp. at 16) (noting
that the district court avoided piecemeal litigation by deciding declaratory claims
in one forum). As described above, a grant of declaratory relief would both
effectively resolve this matter (leaving only the question of remedies for the Court
to consider) and streamline any future litigation in Delaware.
Third, Defendants assert that concerns of [the Courts] own docket or the
impact on other litigants justifies denial of expedition. Opp. at 16 (citing Turner
Indus. Grp., LLC v. Intl Union of Operating Engrs, Local 450, No. Civ. A. H-13-
0456, 2013 WL 2147515, at *4 (S.D. Tex. May 10, 2013)). In Turner, the court
found some urgency justifying expedited discovery, but declined the plaintiffs
request for a full trial on the merits in less than six weeks because of the courts
heavy docket. 2013 WL 2147515, at *4. Here, Plaintiffs have proposed a
schedule that seeks to resolve their claims on a prompt and reasonable basis over a
four month period (or longer, depending on when the special meeting request
forms are actually submitted), and of course will abide by whatever specific
scheduling requirements are needed to serve the Courts calendar.
Fourth, Defendants object that expedition would be inconsistent with their
due process rights by permitting an exception to the ordinary scheduling
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deadlines provided by the Local Rules. Opp. at 16. But courts commonly permit
expedited declaratory judgment proceedings notwithstanding claims of due process
problems. See Chevron, 800 F. Supp. 2d at 492 (permitting expedition where
none of the defendants . . . has offered any persuasive basis for concluding that a
separate and early trial of Count 9 would be prejudicial in any material way);
Stein, 452 F. Supp. 2d at 27071 (permitting expedition over due process objection
where defendants failed to advance a single persuasive reason for failing to
proceed expeditiously with this matter). Defendants reliance on GEM
Acquisitionco provides no support. GEM Acquisitionco, LLC v. Sorenson Grp.
Holdings, LLC, No. C 09-01484 SI, 2009 WL 3246747, at *6 (N.D. Cal. Oct. 8,
2009) (Opp. at 15-16). There, the court denied the request for a speedy trial under
Rule 57 because a trial date had already been set with the parties consent. Id.
Here, of course, the parties have reached no such agreement. Furthermore, and
contrary to Defendants assertion (Opp. at 17), there is no question that the Court
may adjust any of the dates and deadlines provided for in the Local Rules to
accommodate expedited proceedings. Fed. R. Civ. P. 57; see also L.R. Civ. 16-11
(specifying procedures for waiver of Local Rule 16-2 to 16-10 pre-trial
requirements).
The only case cited by Defendants on this issue, Professional Programs
Group v. Department of Commerce, 29 F.3d 1349 (9th Cir. 1994), Opp. at 16,
actually supports Plaintiffs request. There, the Ninth Circuit held that the district
court did not deprive the moving party of substantial rights by shortening the
local rule requiring a 24-day notice period, because the rules granted the district
court discretion to order a shorter time. Profl Programs, 29 F.3d at 1353. Rule
57 expressly authorizes district courts to expedite the adjudication of a declaratory
judgment action, which necessarily contemplates shortened scheduling deadlines.
Defendants do not respond to Plaintiffs argument that the Court has
inherent authority and broad discretion under Rule 26 to manage the scheduling of
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its docket. Mot. at 11-12; see Fed. R. Civ. P. 26. Indeed, pursuant to this inherent
power and Rule 26, and notwithstanding typical discovery and briefing timetables,
courts routinely order expedited discovery and briefing schedules to facilitate a
prompt ruling on declaratory judgment claims. See, e.g., Smith Decl. Ex. G
(Order, Express Scripts Holding Co. v. Chevedden, No. 4:13-cv-02S20-JAR (E.D.
Mo. Jan. 3, 2014), ECF No. 13) (granting plaintiffs motion for expedited briefing
schedule and speedy hearing); Smith Decl. Ex. H (Order, Apache Corp. v
Chevedden, No. 4:12-cv-00137-LHR (S.D. Tex. Feb. 3, 2012), ECF No. 7)
(granting motion for speedy hearing and setting conference to establish expedited
schedule two weeks after complaint was filed); Neuberger Berman Real Estate
Income Fund, Inc. v. Lola Brown Trust No. 1B, 342 F. Supp. 2d 371, 372 (D. Md.
2004) (ruling on declaratory judgment one month after target company filed
complaint).
3. Plaintiffs Did Not Delay in Bringing This Action
Defendants also contend that Plaintiffs delayed in bringing suit. Again, that
assertion has no merit. Valeant launched its tender offerthe basis for Plaintiffs
Section 14(e) claimson June 18, 2014. Compl. 130. The day before, in
disclosing for the first time that Valeant would make a tender offer to Allergans
stockholders, Valeants CEO Michael Pearson admitted, in an unscripted moment:
On April 22nd, we announced our offer for Allergan. We suspected at the time it
would ultimately have to go directly to Allergan shareholders. We were correct.
9

Id. 108. Prior to that date, Valeant had publicly maintained the fiction that it was
seeking a friendly merger. Not until July 11, 2014a date noticeably absent from

9
In a recent interview, Mr. Ackman admitted he took a toehold position in
Allergan before Valeant announced its plana common tactic in advance of tender
offersthereby indicating he knew in advance that a tender offer would result
from Valeants interest in Allergan. Supp. Smith Decl. Ex. I (Stuart Pfeifer, SEC
Is Investigating Bid by Valeant and Bill Ackman for Allergan, L.A. TIMES (Aug.
14, 2014)).
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Defendants timeline of events, see Opp. at 7did Defendants file a definitive
statement soliciting proxies to call a special meeting. Even then, Defendants failed
to disclose material information necessary to inform stockholders of their
relationships, history, and plans. Compl. 16-18, 131, 135-43. Plaintiffs filed
suit promptly thereafter.
4. Allergan Has Standing to Bring an Insider Trading Claim
Despite later acknowledging that Allergans insider trading claim entail[s]
potentially serious consequences, Defendants weakly assert that the claim fails
on its face because Allergan does not have standing to bring it. Defendants are
wrong. Courts consistently have held that a target company has standing under
Rule 14e-3. See, e.g., Burlington Indus., Inc. v. Edelman, 666 F. Supp. 799
(M.D.N.C. 1987) (holding that target company has standing to obtain preliminary
injunction against Rule 14e-3 violations), affd, 1987 WL 91498 (4th Cir. 1987);
Essex Chem. Corp. v. Gurit-Heberlein AG, No. 88-2478, 1988 U.S. Dist. LEXIS
19515, at *1415 (D.N.J. June 24, 1988) (A target company has standing to assert
an insider trader violation under the rule.) (citing Burlington Indus., 666 F. Supp.
at 813). Defendants cite no case holding to the contrary.
Furthermore, that issuers have standing under Section 14(e) of the Exchange
Act also supports their standing under Rule 14e-3. In Robertson v. Dean Witter
Reynolds, Inc., 749 F.2d 530, 536 (9th Cir. 1984), the Ninth Circuit held that where
a rule is promulgated pursuant to an enabling statute that contains an implied
private remedy, there is a strong presumption that a rule drafted pursuant to such a
statute reflects the governing judicial construction. Courts uniformly have held
that Section 14(e) of the Exchange Act contains an implied private right of action
for shareholders and target corporations. See, e.g., Polaroid Corp. v. Disney, 862
F.2d 987, 1003 (3d Cir. 1988) (target company has private right of action under
Section 14(e) to enjoin a tender offerors misrepresentations); Florida Commercial
Banks v. Culverhouse, 772 F.2d 1513, 1519, n.2 (11th Cir. 1985) (We conclude
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that it is necessary to grant this private right of action to issuers in order for the
Williams Act to be effective) (collecting cases); Pac. Realty Trust v. APC Invs.,
Inc., 685 F.2d 1083 (9th Cir. 1982) (allowing target company to bring suit under
Section 14(e) for injunctive relief against offeror corporation). Allergans standing
is thus further supported by the strong presumption under Robertson that issuer
standing exists under Rule 14e-3.
Defendants misconstrue the Ninth Circuits decision in Brody v. Transitional
Hospitals Corp., 280 F.3d 997 (9th Cir. 2002), by suggesting that it imposes a
contemporaneous trading requirement on any litigant bringing an insider trading
claim under Rule 14e-3. Opp. at 9. There is no basis for that broad reading.
Brody addressed the standing of an individual shareholder plaintiff and did not
address whether issuers have standing to bring claims under Rule 14e-3 or in what
circumstances. Defendants cite no case after Brody that has applied the
contemporaneous trading requirement to preclude issuer standing, and Plaintiffs
are aware of none.
10

D. Expedited Proceedings Are Available Whether or Not Plaintiffs
Pursue Preliminary Injunctive Relief
In an attempt to avoid the expedited proceedings available under Rule 57
when declaratory relief is sought, Defendants offer the specious argument that
expedited proceedings are not available here because Plaintiffs could have but
failed to move for a preliminary injunction. Opp. at 6-9. That argument is
misguided at every level. Plaintiffs are not required to pursue preliminary

10
Ms. Parschauer, as an individual shareholder, plainly meets the
contemporaneous trading requirement under Brody. As alleged in the Complaint,
on February 25 and 26, 2014, PS Fund 1 acquired outright approximately 600,000
shares of the outstanding common stock of Allergan. Compl. 84. Ms.
Parschauer exercised stock options and sold Allergan stock on February 26, 2014,
for a price of $127.60, and on March 11, 2014, for a price of $129.08. Id. 21.
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injunctive relief, and the availability of declaratory relief or expedited proceedings
under Rule 57 is unaffected by whether Plaintiffs have done so.
Indeed, Defendants assertion flies in the face of established authority
regarding the different purposes of declaratory and injunctive relief. In the
Declaratory Judgment Act, Congress plainly intended declaratory relief to act as
a[] [milder] alternative to the strong medicine of the injunction . . . . Pratt v.
Wilson, 770 F. Supp. 539, 545 (E.D. Cal. 1991) (granting declaratory judgment and
denying preliminary injunction) (quoting Steffel v. Thompson, 415 U.S. 452, 466
67 (1974)). Accordingly, courts long have held that each remedy involves
different considerations and requires a separate analysis. See Super Tire Engg Co.
v. McCorkle, 416 U.S. 115, 121 (1974); Planned Parenthood of the Heartland v.
Heineman, 724 F. Supp. 2d 1025, 1040 (D. Neb. 2010).
Cases applying Rule 57 to allow expedited proceedings consistently have
recognized this fact, and as a consequence have allowed expedition under Rule 57
regardless of whether a preliminary injunction is sought. See, e.g., Klungvedt,
2012 WL 2368623, at *1 (permitting expedited proceedings where plaintiffs did
not seek injunctive relief); Tri-State Generation, 2008 WL 2465407, at *67
(same); Avon Prods., Inc. v. Chartwell Assocs. L.P., 738 F. Supp. 686, 68788
(S.D.N.Y. 1990) (same), affd, 907 F.2d 322 (2d Cir. 1990).
Defendants two cases (see Opp. at 8) do not support their position. Neither
case requires plaintiffs to seek a preliminary injunction; rather, those cases
concerned plaintiffs attempts to secure relief after the controversy central to their
claims had become moot. See U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d
1091, 1094 (9th Cir. 2010) (discussing the modification of a preliminary injunction
after a final order); Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010) (denying
plaintiffs claims for declaratory and injunctive relief on mootness and standing
grounds). In Newdow, plaintiffs sought injunctive and declaratory relief against
religious elements in the Presidential Inauguration Ceremony. 603 F.3d at 1006.
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The district court denied plaintiffs motion for preliminary injunction and plaintiffs
chose not to appealat which point the court concluded that plaintiffs claims had
become moot. See id. at 1009. Plaintiffs claims here are not moot: the ongoing
dispute regarding Valeants efforts to acquire Allergan is very much a live issue.
Defendants also cite numerous cases supporting the unremarkable
proposition that preliminary injunctions may lead to curative disclosures. Opp. at
8 (citing cases). For example, they quote Pacific Realty Trust for the proposition
that [i]njunctions normally play a supporting role: a court enjoins the tender offer
until it can decide whether the Act requires further disclosures, and until all
required disclosures are made. Id. (quoting Pac. Realty Trust, 685 F.2d at 1086).
However, the next lineomitted by Defendantsreads: But no court has ever
declared disclosure to be the exclusive remedy under the Williams Act. Pac.
Realty Trust, 685 F.2d at 1086. The relief sought by Plaintiffs here is not limited
to corrective disclosures. If Plaintiffs prevail on their insider trading claims, they
intend to seek, among other possible remedies, rescission of the Pershing Square
Defendants shares, and an order preventing the Pershing Square Defendants from
voting, tendering, or otherwise utilizing the beneficial ownership rights associated
with their shares.
Plaintiffs simply are not required to choose between declaratory and
preliminary injunctive relief. These separate forms of relief are not mutually
exclusive, and Defendants may not dictate the form of relief that Plaintiffs seek.

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III. CONCLUSION
For the foregoing reasons and as stated in Plaintiffs Motion, Plaintiffs
respectfully request that the Court grant Plaintiffs Motion and direct expedited
proceedings pursuant to Rule 57.

Dated: August 18, 2014 LATHAM & WATKINS LLP

By: /s/ Peter A. Wald
Peter A. Wald
Michele D. Johnson

WACHTELL LIPTON ROSEN &
KATZ LLP
William D. Savitt (pro hac vice)
Bradley R. Wilson (pro hac vice)
51 W. 52
nd
Street
New York, NY 10019

Attorneys for Plaintiffs
ALLERGAN, INC. and
KARAH H. PARSCHAUER

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