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    Rocky's Corner:

    1. #941
      rocky301's Avatar
      Quote Originally Posted by Actc_fan View Post
      Rocky, when would you expect a decision from today's proceedings? Thanks
      Actc_fan,

      CRANSHIRE UPDATE:

      I expect a decision NOW..lol

      Not sure if the 10,730,265 shares delivered tomorrow is final
      or not. Cranshire started at 12MM+ then went to 18MM+ and so far ended up with 10.7MM. I will take
      that and wait for CAMOFI to dismiss and settle too..


      12/15/2011 21 ORDER: that ACTI shall deliver 10,730,265 shares of its common stock to Cranshire by 12/16/2011 at noon. IT IS FURTHER ORDERED that a conference is scheduled for 2/17/2012, at noon in Courtroom 15B, 500 Pearl Street. All pretrial conferences must be attended by the attorney who will serve as principal trial counsel. (Status Conference set for 2/17/2012 at 12:00 PM in Courtroom 15B, 500 Pearl Street, New York, NY 10007 before Judge Denise L. Cote.) (Signed by Judge Denise L. Cote on 12/15/2011) (ft) (Entered: 12/15/2011)
      Last edited by rocky301; 12-15-2011 at 09:34 PM.
      Actc_fan, saxxie, jckrdu and 4 others like this.
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    2. #942
      stemdynasty
      Guest stemdynasty's Avatar
      If the Cranshire case is decided based on the .0353, that would make
      3 FED cases decided the same.(Alpha, Black Mountain and Cranshhire).
      One would think this would provide CAMOFI will all the facts and substance
      to agree to settlement rather quickly. This would end it all assuming shareholders
      approve Proxy


      Thanks so much Rocky. THEY SETTLED!!! 10.7 million is a heck of alot better than 18 million. Nice.
      Last edited by stemdynasty; 12-15-2011 at 08:15 PM.

    3. #943
      StemcellsCURE's Avatar

      Thanks Rocky!

      Your "Corner" is a great source for clarification and understanding of all the "legalese" that goes on with ACTC's lawsuits. Thanks for your very labor intensive contribution!
      Isaac, catchall, LongDolly and 1 others like this.

    4. #944
      jckrdu's Avatar
      Quote Originally Posted by rocky301 View Post
      Actc_fan,

      CRANSHIRE UPDATE:

      I expect a decision NOW..lol Not sure if the 10,730,265 shares delivered tomorrow is final
      or not. Cranshire started at 12MM+ then went to 18MM+ and so far ended up with 10.7MM. I will take
      that and wait for CAMOFI to dismiss and settle too..


      12/15/2011 21 ORDER: that ACTI shall deliver 10,730,265 shares of its common stock to Cranshire by 12/16/2011 at noon. IT IS FURTHER ORDERED that a conference is scheduled for 2/17/2012, at noon in Courtroom 15B, 500 Pearl Street. All pretrial conferences must be attended by the attorney who will serve as principal trial counsel. (Status Conference set for 2/17/2012 at 12:00 PM in Courtroom 15B, 500 Pearl Street, New York, NY 10007 before Judge Denise L. Cote.) (Signed by Judge Denise L. Cote on 12/15/2011) (ft) (Entered: 12/15/2011)
      Rocky - Interesting, thanks! Hmmmm.... 10,730,265 shares is not a round number. Any theories on how that number could have been derived?

    5. #945
      Regenerative Guru Member tradeup's Avatar
      Closure is near. I have to say GR and team have navigated pretty well through this. 2012 is shaping up to truly be a new chapter for this company.

    6. #946
      rocky301's Avatar
      Quote Originally Posted by jckrdu View Post
      Rocky - Interesting, thanks! Hmmmm.... 10,730,265 shares is not a round number. Any theories on how that number could have been derived?
      jckrdu,

      On the surface it appears this way to me.

      Originally claimed 12,680,095..received 10,730,265....approx 18% less which means
      conversion was approx 18% more which in turns means if they originally figured
      .0353(per Rabin declaration) multiply by 118% and you have around .0416 conversion.
      Note in Rabin's declaration that the average of 3 JMJ conversions was

      Average of a, b, and c = $0.0454

      That's the best I got now jckrdu and that is providing tomorrows issuance of shares
      is the final version and something else isn't issued at FEB meeting.(doubtful but who knows)
      jckrdu likes this.
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    7. #947
      rocky301's Avatar
      ARONSON

      11 more filings since my earlier post. The "TRUST" for Caldwell active now.
      Will update when I have read some ...thanks

      12/15/2011 10 NOTICE of Appearance by Brenda R. Sharton on behalf of Wilmington Trust, N.A. (Sharton, Brenda) (Entered: 12/15/2011)

      12/15/2011 11 NOTICE of Appearance by Stuart M. Glass on behalf of Wilmington Trust, N.A. (Glass, Stuart) (Entered: 12/15/2011)

      12/15/2011 12 NOTICE of Appearance by Ai Tajima on behalf of Wilmington Trust, N.A. (Tajima, Ai) (Entered: 12/15/2011)

      12/15/2011 13 MOTION to Dismiss the First Amended Complaint by Wilmington Trust, N.A..(Glass, Stuart) (Entered: 12/15/2011)

      12/15/2011 14 MEMORANDUM in Support re 13 MOTION to Dismiss the First Amended Complaint filed by Wilmington Trust, N.A.. (Glass, Stuart) (Entered: 12/15/2011)

      12/15/2011 15 DECLARATION re 13 MOTION to Dismiss the First Amended Complaint of Ai Tajima by Wilmington Trust, N.A.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Tajima, Ai) (Entered: 12/15/2011)

      12/15/2011 16 APPENDIX/EXHIBIT re 14 Memorandum in Support of Motion to Dismiss the First Amended Complaint by Wilmington Trust, N.A.. (Attachments: # 1 Tab 1, # 2 Tab 2)(Glass, Stuart) (Entered: 12/15/2011)

      12/15/2011 17 SUMMONS Returned Executed Advanced Cell Technology, Inc. served on 10/18/2011, answer due 11/8/2011. (Herron, Matthew) (Entered: 12/15/2011)

      12/15/2011 18 SUMMONS Returned Executed Wilmington Trust, N.A. served on 10/18/2011, answer due 11/8/2011. (Herron, Matthew) (Entered: 12/15/2011)

      12/15/2011 19 MOTION to Dismiss First Amended Complaint by Advanced Cell Technology, Inc..(Kotlier, Jonathan) (Entered: 12/15/2011)

      12/15/2011 20 MEMORANDUM in Support re 19 MOTION to Dismiss First Amended Complaint filed by Advanced Cell Technology, Inc.. (Attachments: # 1 Exhibit s 1-4)(Kotlier, Jonathan) (Entered: 12/15/2011)
      Jameson and catchall like this.
      'TIME IS BUT THE STREAM I GO A-FISHING IN'<img src="http://investorstemcell.com/images/scipro.png" border="0" />

    8. #948
      Regenerative Guru Member Actc_fan's Avatar
      Geez, lawyers really trying to get those 2011 billable hours in to hit that bonus.

      Please make Aronson/Gorton go away!
      JHam likes this.

    9. #949
      rocky301's Avatar
      Partial document but states reasons for dismissal

      MEMORANDUM OF LAW OF DEFENDANT WILMINGTON TRUST, N.A. AS
      ADMINISTRATOR WITH WILL ANNEXED OF
      THE ESTATE OF WILLIAM MACKAY CALDWELL, IV, DECEASED
      IN SUPPORT OF MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

      Wilmington Trust submits this memorandum to address the following grounds for
      dismissal:

      First, plaintiff’s federal securities fraud claims, including the Section 20(a) claim, are
      time-barred by the five-year statute of repose. Plaintiff filed the complaint on August 23, 2011,
      more than five years after ACT’s alleged violations, namely ACT’s failure to disclose the
      existence of two warrant agreements (the Engstrom Warrant on April 1, 2005 and the Woodward
      Warrant on September 15, 2005).

      Second, plaintiff’s Section 10(b) claim against ACT and, necessarily, the Section 20(a)
      claim against Wilmington Trust fail because ACT had no duty to disclose the Engstrom Warrant
      or the Woodward Warrant under the federal securities laws and had no duty to disclose the
      Engstrom Warrant under the express terms of the warrant agreement between plaintiff and ACT.
      Case 1:11-cv-11492-NMG Document 14 Filed 12/15/11 Page 5 of 15

      Third, plaintiff’s Section 20(a) claim fails because plaintiff has not adequately alleged
      particularized facts supporting the essential elements of reliance and loss causation for the
      underlying Section 10(b) claim.

      CONCLUSION
      For the foregoing reasons as well as those contained in ACT’s motion to dismiss brief,
      the sole claim in the Amended Complaint asserted against Wilmington Trust should be dismissed
      with prejudice.
      'TIME IS BUT THE STREAM I GO A-FISHING IN'<img src="http://investorstemcell.com/images/scipro.png" border="0" />

    10. #950
      rocky301's Avatar
      ACT'S reasons to dismiss. This document I was able to copy/paste so I thought
      sharing the "pain" in reading these would be appreciated...


      UNITED STATES DISTRICT COURT
      DISTRICT OF MASSACHUSETTS
      - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
      x
      GARY D. ARONSON,
      Plaintiff,
      v.
      ADVANCED CELL TECHNOLOGY, INC., ET AL.,
      Defendants.

      Civ. A. No. 1:11-CV-11492-NMG
      [ORAL ARGUMENT REQUESTED]
      - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
      x
      MEMORANDUM OF LAW
      IN SUPPORT OF MOTION TO DISMISS
      Defendant Advanced Cell Technology, Inc. (“ACT”), through its undersigned counsel, submits this memorandum of law in support of its motion to dismiss the First Amended Complaint (the “Complaint”) filed by Plaintiff, Gary D. Aronson (“Aronson”).
      Introduction
      The Complaint fails to state any claim upon which relief can be granted. Aronson attempts to allege claims for federal securities fraud and breach of contract against ACT, a biotechnology research and development firm. These claims are purportedly based on a Warrant To Purchase Securities (the “Warrant”) dated September 14, 2005.
      The Complaint simply does not allege any fraudulent misrepresentation or omission by ACT in connection with the Warrant, nor does it allege a breach of the Warrant. Further, even if Aronson alleged fraud, there is no strong inference of scienter sufficient to satisfy the rigorous pleading requirements of the Private Securities Litigation Reform Act (the “PSLRA”) (15 U.S.C. § 78u-4). Finally, Aronson‟s fraud claims are barred by the applicable two-year statute of limitations and five-year statute of repose. Case 1:11-cv-11492-NMG Document 20 Filed 12/15/11 Page 1 of 21

      Material Allegations
      I. Aronson’s Warrant.
      The Warrant provided Aronson with the right to purchase from ACT up to 375,756 shares of ACT common stock, for the price of $2.20 per share. (Complaint at ¶ 26.)1 Aronson could exercise the Warrant at any time up to January 15, 2009. (Id.)
      The Warrant included two provisions that entitled Aronson to an adjustment of the number of purchasable shares and the price of those shares. The first provision permitted such an adjustment before Aronson exercised the Warrant. (Complaint at ¶ 27.) The Warrant stated, in part:
      The Warrant Purchase Price [$2.20] shall be subject to decrease and the number of shares purchasable [375,756] upon the exercise of this Warrant shall be subject to increase from time to time upon the occurrence of certain events and/or price determinations described in this Section 3. Upon each decrease of the Warrant Purchase Price per share of Common Stock, if any, the Holder of this Warrant shall thereafter be entitled to purchase, at the Warrant Purchase Price resulting from such adjustment, the number of Equity Units obtained by multiplying the Warrant Purchase Price per share of Common Stock in effect immediately prior to such adjustment by the number of shares purchasable pursuant hereto immediately prior to such adjustment, and dividing the product thereof by the Warrant Purchase Price per share of Common Stock resulting from such adjustment.2
      ***
      If and whenever during the Pricing Period, the Company shall issue or agree to issue any Equity Units or other securities, other than Excluded Units (as defined below), for a consideration per share or providing for a conversion or an exercise price per share which is less than the Warrant Purchase Price in effect
      1 A copy of the Warrant is attached to the Complaint as Exhibit B. All exhibits attached to the Complaint are considered parts of the Complaint for purposes of a motion to dismiss. See Fed. R. Civ. P. 10(c). Additionally, Aronson‟s well-pleaded factual allegations are assumed true only for purposes of this memorandum.
      2 “Equity Unit” is defined in the Warrant as “Common Stock or Preferred Stock, either alone or issued, offered or sold together as an integrated investment unit with any warrants or similar non-debt securities convertible or exchangeable, directly or indirectly into Common Stock or Preferred Stock.” (Complaint at ¶ 28.)
      Case 1:11-cv-11492-NMG Document 20 Filed 12/15/11 Page 2 of 21
      3
      immediately prior to such issue, the Warrant Purchase Price shall be reduced to the per-share price applicable to such issuance.
      (Id.) (“Pricing Period” is defined in the Warrant as the period from May 1, 2005, to January 15, 2009 (Complaint, Ex. B at 2).)
      In other words, if ACT issued “any Equity Units or other securities” during the Pricing Period for less than $2.20 per share, then Aronson‟s exercise price under the Warrant would be reduced to that lower price and the number of purchasable shares would be subject to an upward adjustment under the formula provided therein.
      The second provision permitted an adjustment after Aronson exercised some or all of his stock purchase rights under the Warrant. (Complaint at ¶ 30.) The Warrant stated:
      If, at any time (and on each time) between May 1, 2005 and January 15, 2009 (the “Pricing Period”), after the exercise of any or all of the Warrants hereunder, the Company issues any Equity Units other than Excluded Units (as defined below), and the effective per share purchase price of Common Stock represented by such Equity Units (the “Effective Price”) being issued is lower than the Warrant Purchase Price paid in connection with such prior exercise, then the Company shall issue to the Holder sufficient additional Equity Units (of the same security(ies) that was (were) previously issued to the Holder upon the previous exercise of the Warrant) such that the total number of Equity Units issued to the Holder equals the number determined by multiplying 375,756 by a fraction, the numerator of which is $2.20 and the denominator of which is the Effective Price, as the same may be amended.
      (Id.)
      The Warrant required ACT to notify Aronson of the issuance of any Equity Units that triggered an adjustment under the Warrant. (Complaint at ¶ 29.)
      Aronson exercised his Warrant through a subscription agreement and letter to ACT dated August 25, 2006, which he later amended through a letter dated September 12, 2006. (Complaint at ¶¶ 36-37, 47.)3 Aronson requested the issuance of 2,870,362 shares of ACT common stock. (Id. at ¶
      3 Aronson‟s subscription agreement and letters are attached to the Complaint as Exhibits C, D, and I.
      Case 1:11-cv-11492-NMG Document 20 Filed 12/15/11 Page 3 of 21
      4
      47.) Aronson apparently calculated this amount of stock based on ACT‟s alleged issuance of Equity Units to other parties during the Pricing Period for a price less than $2.20 per share. (Id. at ¶¶ 35-51.) On October 4, 2006, ACT transferred and Aronson accepted 2,870,362 shares of ACT common stock in satisfaction of the Warrant. (Id. at ¶ 51.)
      II. The Gunnar Engstrom Warrant.
      Aronson alleges that ACT breached the Warrant and committed securities fraud by failing to disclose to him the issuance of a stock warrant to Mr. Gunnar Engstrom, ACT‟s former CFO. (Complaint at ¶¶ 52-63.) Aronson alleges that the Engstrom warrant permitted Mr. Engstrom to purchase up to 100,000 shares of ACT common stock for $0.25 per share, and that ACT issued that warrant during the Pricing Period, on May 9, 2005. (Id. at ¶¶ 52, 61.) According to Aronson, ACT fraudulently backdated the Engstrom warrant to November 30, 2004, to attempt to remove it from the Pricing Period and thereby avoid providing Aronson with an adjustment under the Warrant. (Id. at ¶¶ 53-56.)
      The Engstrom warrant, which is attached to the Complaint as part of Exhibit M, is dated November 30, 2004 (id. at 6), but has an effective date of April 1, 2005 (id. at 1). The November 30 date is located on the signature page just next to the crossed-out date of April 1, 2005. Aronson alleges that April 1, 2005, was the “original issuance date” of the Engstrom warrant. (Complaint at ¶ 57.)
      A May 9, 2005, letter from ACT to Mr. Engstrom, which is also attached to the Complaint as part of Exhibit M, explained the circumstances of the date change:
      Enclosed for your execution is a revised Warrant. This Warrant is the same in all respects to the Warrant which you previously executed, with the exception of the date. The revised Warrant is dated November 30, 2004, the date of your termination [from ACT]. Please sign this Warrant and return a copy of the fully executed Warrant to me in the enclosed, self-addressed, stamped envelope. I
      Case 1:11-cv-11492-NMG Document 20 Filed 12/15/11 Page 4 of 21
      5
      would also appreciate it if you would return the incorrect warrant which you received on April 29, 2005.
      (Id. at 1; emphasis added.)
      Contemporaneous emails dated May 3 and May 5, 2005, between ACT and its then counsel, shed further light on the Engstrom warrant and the reason for the date change. Those emails, which are attached to the Complaint as Exhibit L, stated that the Engstrom warrant was part of a settlement agreement between ACT and Mr. Engstrom related to the termination of his employment with ACT on November 30, 2004; that the original April 1, 2005 warrant date was the date contemplated by the settlement agreement; that the parties executed the initial Engstrom warrant bearing the date of April 1, 2005; and that the Engstrom warrant was subsequently re-dated to November 30, 2004, to match the date of Mr. Engstrom‟s termination.
      ACT repeatedly disclosed the Engstrom warrant in its public disclosures to the SEC in 2005. For example, ACT‟s Form 10-QSB for the period ending March 31, 2005, which was filed on or about May 23, 2005, stated that on
      November 30, 2004, ACT granted warrants to purchase 100,000 shares of common stock at a per share price of $0.25. The warrants are exercisable on or after April 1, 2005 and lapse if unexercised on April 1, 2010. The warrants were granted in connection with the termination of an employment contract.
      (ACT March 31, 2005 Form 10-QSB, the relevant parts of which are attached hereto as Exhibit 1, at 12.)4
      4 Another section of this Form 10-QSB, which also disclosed the Engstrom warrant, is attached to the Complaint as Exhibit N. This Court may take judicial notice of SEC filings, and consider those filings in connection with a motion to dismiss. See, e.g., OrbusNeich Medical Co. Ltd., BVI v. Boston Scientific Corp., 694 F. Supp.2d 106, 111 (D. Mass. 2010); In re CYTYC Corp. Securities Litig., 2005 WL 3801468, at *2, fn. 2 (D. Mass. Mar. 2, 2005); In re Stone & Webster, Inc., Securities Litig., 253 F. Supp.2d 102, 129, fn. 11 (D. Mass. 2003); Guerra v. Teradyne Inc., 2004 WL 1467069, at *2 (D. Mass. Jan. 16, 2004).
      Case 1:11-cv-11492-NMG Document 20 Filed 12/15/11 Page 5 of 21
      6
      ACT filed a copy of the Engstrom warrant with its Form 10-QSB, as well as a copy of the Engstrom settlement agreement. (Ex. 1.) The settlement agreement, which is dated January 28, 2005, contemplated that ACT would grant to Engstrom “options to purchase One Hundred Thousand (100,000) shares of ACT common stock,” at a price of $0.25 per share. (Id.) Under the settlement agreement, the warrant was to be executed by March 1, 2005, and was to be “effective as of April 1, 2005.” (Id.) These terms were included in the Engstrom warrant that was later executed by the parties. (Ex. 1; Complaint, Ex. M.)
      III. The William Woodward Warrant.
      Aronson alleges that ACT also breached the Warrant and committed securities fraud by failing to disclose to him the issuance of a stock warrant to Mr. William Woodward. (Complaint at ¶¶ 64-67.) Aronson alleges that ACT issued a warrant to Mr. Woodward in September 2005, during the Pricing Period, that entitled Mr. Woodward to purchase up to 33,000 shares of common stock for $0.10 per share. (Id.) Aronson claims that the $0.10 Woodward warrant was not disclosed until November 2009, after the Pricing Period, in an ACT Form S-1 filed with the SEC. (Id. at ¶ 66.)
      Contrary to Aronson‟s allegations, the Woodward warrant was disclosed in numerous ACT public disclosures to the SEC in 2005 and 2006. For example, ACT‟s Form 10-QSB for the period ending September 30, 2005, which was filed on or about November 14, 2005, stated: “On September 14, 2005, we issued a warrant to purchase 33,000 shares of common stock at an exercise price of $2.20 per share to William Woodward in connection with consulting services provided to us.” (ACT September 30, 2005 Form 10-QSB, the relevant parts of which are attached hereto as Exhibit 2, at 29.) Case 1:11-cv-11492-NMG Document 20 Filed 12/15/11 Page 6 of 21
      7
      ACT reported an exercise price of $2.20 per share -- the same price set forth in Aronson‟s Warrant -- because that was Mr. Woodward‟s original exercise price. (Woodward warrant, attached hereto as Exhibit 3, at 1.)5 The termination date for the Woodward warrant was September 14, 2010. (Id. at 6.)
      In November 2009, ten months after the Pricing Period, ACT publicly disclosed an amendment to the Woodward warrant. ACT‟s Form S-1, filed with the SEC on November 18, 2009 (Complaint at ¶ 66, Ex. S), reflected amendments to the Woodward warrant that extended the termination date from September 14, 2010, to December 30, 2014, and lowered the exercise price from $2.20 to $0.10 per share (id.).
      Standard Of Review
      “In order to survive a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a complaint must contain factual allegations sufficient „to raise a right to relief above the speculative level.‟” Urman v. Novelos Therapeutics, Inc., ___ F. Supp.2d ___, 2011 WL 2532445, at *3 (D. Mass. June 23, 2011) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007)).6 A plaintiff must allege facts giving rise to a facially plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
      5 Although a copy of the Woodward warrant appears not to have been filed with the SEC, this Court may still consider it as part of the pleadings in the context of a motion to dismiss. The Woodward warrant is referenced in, relied upon, and integral to Aronson‟s Complaint as a primary basis (along with the Engstrom warrant) for ACT‟s alleged liability in this action. See, e.g., Clorox Co. Puerto Rico v. Proctor & Gamble Commercial Co., 228 F.3d 24, 32 (1st Cir. 2000); Kenney v. State Street Corp., 694 F. Supp.2d 67, 70 (D. Mass. 2010).
      6 Internal citations and quotations are omitted herein unless otherwise noted. Case 1:11-cv-11492-NMG Document 20 Filed 12/15/11 Page 7 of 21
      8
      Argument
      Aronson asserts two claims against ACT based on its alleged failure to properly disclose (and adjust the Warrant in light of) the Engstrom and Woodward warrants: (1) a violation of § 10(b) of the Exchange Act (15 U.S.C. 78j) and SEC Rule 10b-5 (17 C.F.R. 240.10b-5) (First Claim For Relief); and (2) a breach of the Warrant (Third, Fourth, and Fifth Claims For Relief). These claims should be dismissed.
      I. Aronson Fails To State A Claim For Securities Fraud.
      For a complaint to state a claim for securities fraud under § 10(b) and Rule 10b-5, it must plead six elements: (1) a material misrepresentation or omission; (2) scienter, or a wrongful state of mind; (3) a connection with the purchase or sale of a security; (4) reliance; (5) economic loss; and (6) loss causation. Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S. Ct. 1627, 1631 (2005). Aronson has failed to plead several of these required elements.
      A. Aronson Has No Plausible Allegation Of A Material Misrepresentation Or Omission By ACT.
      Aronson‟s fraud claim fails at a threshold level. The Complaint, the exhibits thereto, and the relevant SEC filings do not allege a plausible claim that ACT made a misrepresentation or omission with respect to either the Engstrom or Woodward warrant.
      1. The Engstrom Warrant.
      Aronson alleges that ACT failed to disclose that the Engstrom warrant was issued in May 2005, during the Pricing Period, and failed to effectuate an appropriate adjustment of his Warrant in light of the Engstrom warrant. (Complaint at ¶¶ 58-61.) But the Engstrom warrant was not issued in May 2005, or at any other time during the Pricing Period.
      Aronson‟s allegations and exhibits show that the Engstrom warrant was negotiated, agreed upon, executed, and issued before the Pricing Period began on May 1, 2005. The Case 1:11-cv-11492-NMG Document 20 Filed 12/15/11 Page 8 of 21
      9
      settlement agreement between ACT and Mr. Engstrom (Ex. 1) required that the warrant be negotiated and fully executed by March 1, 2005, and that it be effective as of April 1, 2005. There is no allegation in the Complaint that these deadlines were not met.
      The allegations and exhibits confirm that the Engstrom warrant was issued before May 1, 2005. For example, the original date affixed to the Engstrom warrant was April 1, 2005 (Complaint, Ex. M at 7), which Aronson alleges to have been the “original issuance date” (Complaint at ¶ 57; emphasis added). The May 9, 2005, letter from ACT to Mr. Engstrom memorialized the fact that the warrant had been negotiated, executed, and issued to Mr. Engstrom by at least April 2005 -- before the Pricing Period. (See Complaint, Ex. M.) The internal ACT emails attached as Exhibit L to the Complaint likewise demonstrate that ACT issued the warrant to Mr. Engstrom prior to May 1, 2005, the beginning of the Pricing Period.
      Further, the “new” warrant mailed to Mr. Engstrom on May 9, 2005, was exactly the same as the warrant previously negotiated, executed, and issued by ACT, with the exception of a revised date on the signature page. (Id.) There is no allegation, and no plausible inference, that the alleged May 2005 re-dating interrupted or otherwise impacted the enforceability of Mr. Engstrom‟s rights under the warrant previously issued to him.
      Aronson‟s allegations show nothing more than a ministerial date change effected to match the date of Mr. Engstrom‟s termination from ACT. (Complaint, Exs. L, M.) That date change merely removed one date that predated the Pricing Period (April 1, 2005) and inserted another date that predated the Pricing Period (November 30, 2004). The effective date of the Engstrom warrant was always April 1, 2005, a month before the Pricing Period, and the operative terms of the warrant have always been the same. Accordingly, it is implausible for Case 1:11-cv-11492-NMG Document 20 Filed 12/15/11 Page 9 of 21
      10
      Aronson to allege that the mere date change constituted a new issuance of the Engstrom warrant.7
      2. The Woodward Warrant.
      Aronson‟s allegations also fail to show any misrepresentation or omission with respect to the Woodward warrant. Aronson alleges in substance that ACT secretly granted a $0.10 warrant to Mr. Woodward in September 2005, during the Pricing Period, but failed to disclose it until a November 2009 SEC filing, after the Pricing Period. (Complaint at ¶¶ 65-66.) These allegations are simply false.
      ACT granted Mr. Woodward a $2.20 stock warrant in September 2005, not a $0.10 warrant. (Ex. 3.) That warrant was promptly and accurately disclosed in ACT‟s Form 10-QSB filed in November 2005. (Ex. 2.)
      Years later, ACT amended the Woodward warrant by extending the termination date and reducing the per share price from $2.20 to $0.10. (Complaint at ¶ 66, Ex. S.) That amendment was disclosed in ACT‟s Form S-1 filed in November 2009. (Id.) There is no allegation that ACT‟s November 2009 disclosure was inaccurate or misleading.
      Further, Aronson does not allege that the amendments to the Woodward warrant were made during the Pricing Period; he makes no allegation at all with respect to the date of the amendments. In fact, Aronson does not even acknowledge the original $2.20 Woodward warrant in his Complaint, which raises serious doubts about the adequacy of his pre-suit investigation.
      7 Additionally, Aronson has not alleged any facts suggesting that the date change caused him any harm. Urman, 2011 WL 2532445, at *4 (securities fraud claims under § 10(b) and Rule 10b-5 require the plaintiff to plead economic loss and loss causation). Aronson would have no claim against ACT had the date change never occurred; all events related to the Engstrom warrant occurred before May 1, 2005, with the exception of the date change on May 9. Thus, contrary to Aronson‟s allegations, the date change did not have the purported effect of removing the Warrant from the Pricing Period. (Complaint at ¶ 56). It was never in the Pricing Period.
      Case 1:11-cv-11492-NMG Document 20 Filed 12/15/11 Page 10 of 21
      11
      See Fed. R. Civ. P. 11(b). Aronson had constructive notice, at least, of the $2.20 Woodward warrant by virtue of its disclosure in ACT‟s SEC filings. See, e.g., Eckstein v. Balcor Film Investors, 58 F.3d 1162, 1169 (7th Cir. 1995) (holding that a registration statement gives “actual notice to professional investors and constructive notice to ordinary investors”).8 Aronson‟s failure to adequately investigate the alleged basis for his claims led to his false allegation that ACT hid the Woodward transaction until November 2009.
      Aronson‟s failure to allege the date of the Woodward warrant amendments, combined with the allegation that the amendments were disclosed in November 2009, plainly gives rise to the reasonable inference that the amendments were made after the Pricing Period ended on January 15, 2009, and shortly before the November 2009 disclosure. There is no other reasonable or plausible inference to be drawn from Aronson‟s allegations.
      Because there are no plausible allegations that either the Engstrom or the $0.10 amended Woodward warrant was issued during the Pricing Period, Aronson‟s allegations of misrepresentations by ACT on September 27, 2006, and October 16, 2006, are patently false and implausible. (Complaint at ¶¶ 49, 70.)
      Accordingly, Aronson has failed to allege a misrepresentation or omission material to either the Engstrom or Woodward warrant.
      B. There Is No Strong Inference Of Scienter.
      A plaintiff asserting a claim under § 10(b) or Rule 10b-5 must “state with particularity facts giving rise to a strong inference” of scienter, or an “intention to deceive, manipulate, or
      8 The sophistication of Aronson‟s Warrant, his allegation that he is “an investor in very early stage and start-up biotechnology companies” (Complaint at ¶ 4), and his allegations about monitoring ACT‟s public filings (see Complaint at ¶¶ 37, 38, 45) belie any notion that Aronson is an ordinary investor.
      Case 1:11-cv-11492-NMG Document 20 Filed 12/15/11 Page 11 of 21
      12
      defraud.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 127 S. Ct. 2459, 2504, 2508 (2007). To determine whether a pleading alleges a strong inference of scienter, a court must
      consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice. The inquiry . . . is whether all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard.
      Tellabs at 2509. Further, “a court must consider plausible, nonculpable explanations” and inferences related to the defendant‟s conduct, weigh those nonculpable inferences against any inference of scienter, and determine which inference is stronger. Id. at 2510. “A complaint will survive . . . only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.” Id. Accord ACA Financial Guaranty Corp. v. Advest, Inc., 512 F.3d 46, 59 (1st Cir. 2008) (same).9 1. The Engstrom Warrant.
      The only relevant allegation of scienter with respect to the Engstrom warrant is that ACT changed the date in an attempt to “avoid its contractual obligations to Aronson” to make an adjustment of the number of shares purchasable and share price under the Warrant. (Complaint at ¶ 63(a).) This scienter allegation is not reasonable, let alone strong or cogent.10
      9 See also Greebel v. FTP Software, Inc., 194 F.3d 185, 196 (1st Cir. 1999) (“The most salient feature of the PSLRA is that whatever the characteristic pattern of the facts alleged, those facts must now present a strong inference of scienter. A mere reasonable inference is insufficient to survive a motion to dismiss.”) (emphasis in original).
      10 Aronson makes a number of other irrelevant and conclusory allegations about ACT‟s purported motives. (Complaint at ¶¶ 63(b)-(i).) None of these has any relation to Aronson, and none is supported by factual allegations, and thus none should be considered by this Court in examining the strength of the scienter inference. See Greebel, 194 F.3d at 197 (“catch-all allegations that defendants stood to benefit from wrongdoing and had the opportunity to implement a fraudulent scheme are not sufficient”). Case 1:11-cv-11492-NMG Document 20 Filed 12/15/11 Page 12 of 21
      13
      Aronson‟s allegations establish a nonculpable inference related to ACT‟s re-dating of the Engstrom warrant that is far stronger than any inference of scienter. For example, The re-dating of the Engstrom warrant occurred several months before ACT even issued the Warrant to Aronson. Aronson alleges that the Engstrom warrant was re-dated on May 9, 2005. (Complaint at ¶¶ 54-56.) Yet, at that time, Aronson‟s Warrant was not even in existence. The Warrant is dated September 14, 2005. (Ex. 1; Complaint, Ex. B at 8-9.) There is no plausible, let along strong, inference that ACT would re-date the Engstrom warrant in May 2005 in order to avoid obligations under another warrant that was not yet in existence. See ACA Financial, 512 F.3d at 59. The real motive for re-dating the Engstrom warrant from April 1, 2005, to November 30, 2004 -- to match the date of Engstrom‟s termination from ACT -- is set forth in Aronson‟s own exhibits to the Complaint. (See Complaint, Exs. L, M.) That motive has nothing to do with avoiding any obligation under the Warrant, which makes sense given that the Warrant did not exist at that time.11 ACT avoided nothing by re-dating the Engstrom warrant. As stated above, the original date on the warrant was April 1, 2005, a month before the Pricing Period. According to Aronson, this was the “original issuance date.” (Complaint at ¶ 57.) Thus, had ACT not re-dated the document, it clearly would not have been obligated to adjust the Aronson Warrant
      11 This competing inference must be weighed against Aronson‟s preferred (but implausible) interpretation of the facts. This Court “must engage in a comparative evaluation; it must consider, not only inferences urged by the plaintiff . . . but also competing inferences rationally drawn from the facts alleged.” ACA Financial, 512 F.3d at 59. Case 1:11-cv-11492-NMG Document 20 Filed 12/15/11 Page 13 of 21
      14
      based on the Engstrom warrant. It is implausible to infer that ACT re-dated the Engstrom warrant with a motive to avoid contractual obligations that it did not owe to Aronson.12 ACT did nothing to hide or conceal the date change on the Engstrom warrant. Aronson alleges that ACT crossed out the old date (April 1, 2005), inserted the new date (November 30, 2004), and sent the re-dated warrant to Mr. Engstrom with a cover letter memorializing the re-dating. (Complaint, Ex. M.) Had ACT intended to defraud someone or commit real backdating, then it would obviously have taken steps to hide its actions. But the facts alleged here simply do not give rise a strong inference that ACT intended to hide anything.
      2. The Woodward Warrant.
      Likewise, there is no strong inference of scienter associated with the Woodward warrant. Aronson has failed to allege any misrepresentation or omission by ACT that could have been made with scienter. The original Woodward warrant was promptly and accurately disclosed, as was the amended Woodward warrant.
      12 The re-dating of the Engstrom warrant did not constitute “backdating.” Fraudulent backdating occurs when parties agree to the terms of a stock option or warrant on Day 1 (the so-called “measurement date”), but they select a date prior to Day 1 as the effective date of the option, a date on which the stock price was much lower. The parties would then seek to hide the fact that the terms were actually agreed to on Day 1. By doing so, the company can confer a great financial benefit on the recipient of the option while avoiding the need to recognize a compensation expense and pay the necessary taxes. See, e.g., New Mexico State Investment Council v. Ernst & Young LLP, 641 F.3d 1089, 1096 (9th Cir. 2011) (the measurement date is the first date on which both the number of shares purchasable and the purchase price is known, and under GAAP a compensation expense must only be recognized “if the options had an exercise price lower than the fair market value of the stock as of the measurement date”); In re CNET Networks, Inc., 483 F. Supp.2d 947, 955 (N.D. Cal. 2007) (fraudulent backdating occurs only in instances of “[i]ntentionally employing hindsight to adjust the grant date to an advantageously low price”).
      Here, the measurement date for the Engstrom warrant was not later than January 28, 2005, the date of the settlement agreement between ACT and Mr. Engstrom in which the number of shares purchasable and the price per share were fixed. (Ex. 1.) The alleged May 9, 2005, re-dating of the warrant, which did not impact its substantive terms or its effective date of April 1, 2005, simply did not constitute backdating. Case 1:11-cv-11492-NMG Document 20 Filed 12/15/11 Page 14 of 21
      15
      Accordingly, Aronson has failed to allege a strong inference of scienter sufficient to state a claim for securities fraud under the PSLRA.
      C. Aronson’s Claims Are Barred By The Applicable Statute Of Limitations And Statute Of Repose.
      Under 28 U.S.C. § 1658(b)(1), there is a two-year limitations period for § 10(b) and Rule 10b-5 actions. “[T]he limitations period in § 1658(b)(1) begins to run once the plaintiff did discover or a reasonably diligent plaintiff would have discovered the facts constituting the violation -- whichever comes first.” Merck & Co., Inc. v. Reynolds, ___ U.S. ___, 130 S. Ct. 1784, 1798 (2010). A court may determine the accrual date as a matter of law in the context of a motion to dismiss, where the factual allegations are assumed to be true. See, e.g., Maggio v. Gerard Freezer & Ice Co., 824 F.2d 123, 128 (1st Cir. 1987) (holding in the context of a securities fraud claim that the accrual date “may be determined as a matter of law where, as here, the underlying facts are admitted or undisputed”); FirstBank Puerto Rico, Inc. v. La Vida Merger Sub, Inc., 638 F.3d 37, 39 (1st Cir. 2011), cert. denied 132 S. Ct. 248 (2011) (affirming the district court‟s dismissal after determining, as a matter of law, that the securities fraud claim had accrued more than two years before the suit was filed); Merck, 130 S. Ct. at 1798-99 (finding, as a matter of law, that the claim had not accrued more than two years before the suit was filed).
      Aronson filed suit against ACT on August 23, 2011. His securities fraud claims must therefore have accrued no earlier than August 23, 2009. The Complaint shows that his claim with respect to the Engstrom warrant accrued much earlier.
      Specifically, on October 1, 2007, Aronson filed another action against ACT in the Superior Court of California for Alameda County, entitled Aronson v. Advanced Cell Technology, Inc. (case no. RG07348990). Aronson served answers to a set of ACT
      Case 1:11-cv-11492-NMG Document 20 Filed 12/15/11 Page 15 of 21
      16
      interrogatories on March 4, 2009.13 That case, like this case, centered on allegations that ACT had breached the Warrant by failing to notify Aronson of stock issuances made during the Pricing Period for less than $2.20 per share. (See Ex. 4 at 4.)
      Aronson answered ACT‟s interrogatories with an attachment titled “List of Confirmed and Potential Breaches by ACT.” (Ex. 4 at 4.) The attachment listed the provisions of the Warrant that ACT had allegedly breached and the instances of alleged breaches. (Id. at 4-10.) Item nos. 3 and 4 of that attachment identified the Engstrom warrant as a specific basis for liability. (Id. at 5.) Based on his interrogatory answers, it appears that Aronson was alleging in the California action that ACT breached the Warrant when Mr. Engstrom allegedly exercised his warrant on October 3, 2005; here, he alleges a breach based on the alleged May 9, 2005, re-dating of the Engstrom warrant.
      Aronson‟s shifting theory does not alter the limitations analysis, however. The fundamental fact remains that by at least October 7, 2007 -- the date Aronson filed his California action and nearly four years before Aronson filed this action -- Aronson had actual knowledge of, was concerned about, was diligently investigating, and was pursuing a claim against ACT based on the Engstrom warrant.14 Further, by March 4, 2009, which is still well more than two years before Aronson filed this action, Aronson had advanced his California action to formal
      13 A copy of those interrogatory answers is attached as Exhibit 4. This Court may consider the interrogatory answers in the context of ACT‟s motion to dismiss because Aronson has attempted to make the parties‟ prior litigation history a part of this lawsuit. (See Complaint at ¶¶ 12-24.) Further, there can be no legitimate dispute as to the authenticity of the interrogatory answers -- they are Aronson‟s own answers. See Beddall v. State Street Bank & Trust Co., 137 F.3d 12, 17 (1st Cir. 1998) (permitting plaintiffs to avoid dismissal by making allegations without attaching relevant documents that contradict those allegations would undermine Fed. R. Civ. P. 12(b)(6) as a “swift, uncomplicated way to weed out unmeritorious cases”).
      14 Notwithstanding his apparent failure to do so in this action, the filing of the California action implies that Aronson and his counsel conducted a diligent pre-suit investigation of the circumstances related to the Engstrom warrant. Case 1:11-cv-11492-NMG Document 20 Filed 12/15/11 Page 16 of 21
      17
      discovery and was still alleging a breach of the Warrant based on ACT‟s handling of the Engstrom warrant. (Ex. 4.) Thus, as a matter of law, Aronson either had actual knowledge of the alleged facts upon which his current claim related to the Engstrom warrant rests, or, with a reasonable investigation, would have discovered the facts constituting the alleged fraud more than two years before he filed this action.
      Additionally, Aronson‟s claims with respect to both the Engstrom and Woodward warrants are barred by the applicable five-year statute of repose. 28 U.S.C. § 1658(b). Aronson‟s claims are, at bottom, based on ACT‟s alleged failure to provide notice of the Engstrom warrant in May 2005 and the Woodward warrant in September 2005. (See Complaint at ¶¶ 52, 64, 72.) These alleged omissions occurred more than five years before this suit was filed, and, therefore, Aronson‟s claims accrued more than five years before this suit was filed. See In re Prudential Ins. Co. of America Sales Practices Litig., 975 F. Supp. 584, 605 (D.N.J. 1996); Nw. Human Services, Inc. v. Panaccio, 2004 WL 2166293, at *18 (E.D. Pa. Sep. 24, 2004); Malhotra v. Equitable Life Assurance Society of the U.S., 364 F. Supp.2d 299, 305-06 (E.D.N.Y. 2005).
      II. Aronson Fails To State A Claim For Breach Of Contract.
      In the Third, Fourth, and Fifth Claims for Relief, Aronson seeks to allege a breach-of-contract claim.15 Aronson alleges that ACT breached the Warrant by failing to properly notify him of the Engstrom and Woodward warrants, and failing to adjust the number of purchasable
      15 Aronson has for some reason divided his breach-of-contract claim into three parts, with each part seeking a different form of remedy. His Third Claim for Relief seeks injunctive relief; his Fourth Claim for Relief seeks damages; and his Fifth Claim for Relief seeks attorneys‟ fees. None of these claims survives because the Complaint fails to allege a breach of the Warrant.
      Case 1:11-cv-11492-NMG Document 20 Filed 12/15/11 Page 17 of 21
      18
      shares and the share price under his Warrant in light of those warrants. The Complaint does not disclose any plausible inference that ACT breached the Warrant.16
      The Warrant entitled Aronson to notice and an adjustment when ACT issued or agreed to issue Equity Units during the Pricing Period of May 1, 2005, to January 15, 2009, when the issuance was made for a price lower than $2.20 per share.17 (See Complaint, Ex. B at 2, 4, 6.) ACT had no duty to notify Aronson of any Equity Units issued before or after the Pricing Period, regardless of the share price, and no duty to adjust the Warrant in light of such transactions. (Id.)
      As described above, Aronson‟s allegations show that the Engstrom warrant was issued before the Pricing Period. The only allegation of anything occurring with respect to the Engstrom warrant during the Pricing Period was the ministerial re-dating of the document from April 1, 2005, to November 30, 2004. (Complaint, Exs. L, M.) Merely changing the date of the Engstrom warrant, when that date change had no impact on its effective date or any of its substantive terms, cannot reasonably be construed as an issuance under the Warrant.
      The only reasonable interpretation is that the Engstrom warrant was issued, for purposes of Aronson‟s Warrant, when ACT delivered to Mr. Engstrom an enforceable warrant. Under Aronson‟s allegations, that date was indisputably before May 2005. (See Complaint, Exs. L, M.) There is no allegation that the alleged re-dating of May 9, 2005, interrupted or otherwise
      16 ACT will assume, for purposes of this memorandum only, that Massachusetts law governs the Warrant. The Warrant does not contain a choice-of-law provision. (Complaint, Ex. B.)
      17 Although the Warrant does not define the words “issue,” “issues,” or “issued,” this Court may construe them as a matter of law. See Seaco Ins. Co. v. Barbosa, 435 Mass. 772, 779, 761 N.E.2d 946, 951 (Mass. 2002) (courts may interpret unambiguous terms of a contract as a matter of law). A term is ambiguous only if it is susceptible to more than one reasonable interpretation. President and Fellows of Harvard College v. PECO Energy Co., 57 Mass. App. Ct. 888, 896, 787 N.E.2d 595, 601 (Mass. App. Ct. 2003). Whether a term is ambiguous is also a question of law for this Court. Eigerman v. Putnam Investments, Inc., 450 Mass. 281, 283, 877 N.E.2d 1258, 1263 (Mass. 2007). Case 1:11-cv-11492-NMG Document 20 Filed 12/15/11 Page 18 of 21
      19
      impacted the prior enforceability of the Engstrom warrant. Thus, because the Engstrom warrant was issued before the Pricing Period, ACT did not breach the Warrant by allegedly failing to provide notice of it to Aronson, or allegedly failing to adjust the Warrant in light of it.
      The result is the same for the breach-of-contract claim related to the Woodward warrant. The original Woodward warrant was issued during the Pricing Period, in September 2005, but it did not trigger any notice or adjustment under the Warrant because it was issued with a share price of $2.20. (Ex. 3.) The amended Woodward warrant reduced the share price to $0.10, but Aronson makes no allegation as to when that amended warrant was issued; the allegations and exhibits show that it was issued after the Pricing Period.
      Accordingly, there is no plausible allegation in the Complaint that ACT breached the Warrant with respect to the issuance of either the Engstrom or Woodward warrant.
      III. Aronson Is Not Entitled To His Requested Preliminary Injunctive Relief.
      Aronson would not be entitled to his requested preliminary injunctive relief even if the Complaint alleged a plausible claim for relief (it clearly does not). The Warrant permits, under certain circumstances, “an injunction against a violation of any of the terms hereof or otherwise.” (Complaint, Ex. B at 7.) Yet Aronson seeks a sweeping order to preliminarily enjoin ACT “from issuing shares of common stock to any person or entity other than Aronson . . . unless and until ACT complies with its contractual obligation to afford Aronson the opportunity to purchase the number of additional shares and at the price required under the Warrant Agreement.” (Complaint at 34.) That relief is simply not permitted under the Warrant.
      Further, because there is no likelihood of success for Aronson in this action, and because he has alleged no basis for inferring any possibility of irreparable harm, preliminary injunctive relief is unavailable to him as a matter of law. See Peoples Federal Savings Bank v. People‟s Case 1:11-cv-11492-NMG Document 20 Filed 12/15/11 Page 19 of 21
      20
      United Bank, 750 F. Supp.2d 217, 221 (D. Mass. 2010). This case is about money, only, and specifically Aronson‟s unfounded attempt to collect more shares of ACT stock. Accordingly, Aronson‟s request for preliminary injunctive relief should be dismissed.
      Conclusion
      For all the foregoing reasons, ACT respectfully requests that the Complaint be dismissed with prejudice, and that the Court grant such other and further relief it deems appropriate.18
      Dated: December 15, 2011 Respectfully submitted,
      /s/ Jonathan L. Kotlier
      Jonathan L. Kotlier (BBO # 545491)
      Benjamin L. Mack (BBO # 661590)
      Nutter McClennen & Fish LLP
      Seaport West
      155 Seaport Boulevard
      Boston, Massachusetts 02210
      T: 617-439-2683
      F: 617-310-9683
      jkotlier@nutter.com
      Of Counsel:
      Andrew Gendron (admitted pro hac vice)
      Matthew R. Alsip (admitted pro hac vice)
      Venable LLP
      750 East Pratt Street, Suite 900
      Baltimore, Maryland 21202
      T: 410-244-7400
      F: 410-244-7742
      agendron@venable.com
      malsip@venable.com
      Counsel for Advanced Cell Technology, Inc.
      18 ACT incorporates by reference herein the arguments made by co-Defendant Wilmington Trust, N.A., the Administrator with Will Annexed of the Estate of William Mackay Caldwell, IV, Deceased, in support of its motion to dismiss. Case 1:11-cv-11492-NMG Document 20 Filed 12/15/11 Page 20 of 21
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    11. #951
      Vzveteran's Avatar
      Rocky, War and peace was an easier read! Reader's digest got nothing on you. Thanks for all you do here.
      Phx, tobflipped, IkeFromNj and 3 others like this.

    12. #952
      michaelbrom's Avatar
      thx Rocky

    13. #953
      bo-bo241's Avatar
      OMG!!!Many More Thanks Rocky

    14. #954
      stemdynasty
      Guest stemdynasty's Avatar
      Blah blah blah. Bottom line no backdating was done by ACT with intention to cover up anything and even if there was it would not cause harm or change the outcome to Aronson so there was no reason for it anyway. The slam dunk is the statute of limitations has expired on his claims. The law is the law. He is fuqed. I don't see how Aronson will get anything above the .035. What a piece of work. I am not an attorney, yet it is clear how the law works and the law is law. There timelines for damages and those have expired. Unless Aronson can find a time machine and go back in time he is cooked. ACT will prevail. JMHO
      GMAN, Junior, saxxie and 2 others like this.

    15. #955
      Regenerative Guru Member stemboat's Avatar
      Here is Rocky's first post on this forum:
      "Hi Folks,
      Not real sure how this will work out but I have agreed to give it a try.
      I am more than willing to help or share things I have relative to ACT.
      Let it be known I certainly don't have all the answers, not even close, but
      I may be able to guide some of you on where to look or link you up with something.
      If I don't have an answer for you I will tell you that and hopefully from there
      we can find an answer. Thanks...rock"
      It has worked out just fine. Bravo. Thanks Rocky.
      DMSOB, stemedga, Isaac and 6 others like this.
      [img]http://investorstemcell.com/images/icellbronze.png[/img]<img src="http://investorstemcell.com/images/icp.png" border="0" />

    16. #956
      jaoflw's Avatar
      Rocky,

      info4netdata from the Yahoo message board says thank you to you

      Yahoo! Message Boards - Advanced Cell Technology Inc. - Rocky301 is an amazing person!!!!!


      Rocky301 is an amazing person!!!!!

      Every post I read from this person I feel like a student in awe.....

      Since I am not a member (never was) I will say my thank you from a distance...hopefully someone will tell him info4netdata says thanks for all the hard work he puts in explaining sometimes complicated issues.

      "I expect a decision NOW..lol Not sure if the 10,730,265 shares delivered tomorrow is final
      or not. Cranshire started at 12MM+ then went to 18MM+ and so far ended up with 10.7MM. I will take
      that and wait for CAMOFI to dismiss and settle too..


      12/15/2011 21 ORDER: that ACTI shall deliver 10,730,265 shares of its common stock to Cranshire by 12/16/2011 at noon. IT IS FURTHER ORDERED that a conference is scheduled for 2/17/2012, at noon in Courtroom 15B, 500 Pearl Street. All pretrial conferences must be attended by the attorney who will serve as principal trial counsel. (Status Conference set for 2/17/2012 at 12:00 PM in Courtroom 15B, 500 Pearl Street, New York, NY 10007 before Judge Denise L. Cote.) (Signed by Judge Denise L. Cote on 12/15/2011) (ft) (Entered: 12/15/2011)"


      Sounds like great news....to get this behind us now....10 million is better than 18 million in my books so I look at it as a win on a bad situation.


      And I myself thank you very much for all your hard work doing DD and for sharing that DD and your expertise with us here at this board.

      jaoflw
      Last edited by jaoflw; 12-16-2011 at 09:10 AM.
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      The best way to predict the future is to invent it.
      -- Alan Kay, Distinguished Pioneering Computer Scientist

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    17. #957
      Skulbone's Avatar
      Amazing work Rocky, thank you from all of us.
      DMSOB likes this.
      Long ACTC since Nov. 2008 FTW!

    18. #958
      Participant Member Pavlov's Avatar
      Quote Originally Posted by stemdynasty View Post
      Blah blah blah. Bottom line no backdating was done by ACT with intention to cover up anything and even if there was it would not cause harm or change the outcome to Aronson so there was no reason for it anyway. The slam dunk is the statute of limitations has expired on his claims. The law is the law. He is fuqed. I don't see how Aronson will get anything above the .035. What a piece of work. I am not an attorney, yet it is clear how the law works and the law is law. There timelines for damages and those have expired. Unless Aronson can find a time machine and go back in time he is cooked. ACT will prevail. JMHO
      Stem,

      I am not as convinced as you are on the dismissal of Fraud due to the expiration of the statute of limitations. I'm no lawyer, but I wonder how the statute of limitations applies in cases such as this where they had no way of knowing that anything was wrong until after the statute of limitations had technically expired. Just playing devil's advocate...

    19. #959
      stemdynasty
      Guest stemdynasty's Avatar
      Pavlov, he is not being harmed any differently than any of the others that settled. They all had the same probable cause yet NONE followed that path accusing ACT or Caldwell of fraud.
      You have to follow the law. Once the statute expires there is NO RECOURSE if the claim isn't filed after the cause. Look it up. The court documents site precedents that back this up in defense of ACT. The judge has to follow the law. Iwould be surprised if anything beyond what everyone else received is awarded, and at the same time this could go on for quite awhile

    20. #960
      rocky301's Avatar
      Quote Originally Posted by stemdynasty View Post
      Pavlov, he is not being harmed any differently than any of the others that settled. They all had the same probable cause yet NONE followed that path accusing ACT or Caldwell of fraud.
      You have to follow the law. Once the statute expires there is NO RECOURSE if the claim isn't filed after the cause. Look it up. The court documents site precedents that back this up in defense of ACT. The judge has to follow the law. Iwould be surprised if anything beyond what everyone else received is awarded, and at the same time this could go on for quite awhile
      stem and all,

      The .035 conversion figure used to determine number of shares in global
      settlement doesn't apply here. Aronson's warrant "pricing period" May 1, 2005 - January 15, 2009.
      The global settlement is based on conversions lower than .10 in 2010 due to the JMJ Financial
      transactions...thanks
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