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report should have been made in earlier reports do not make out a claim of securities

fraud. See e.g., In re Paincare Holdings Sec. Litig., 2007 WL 1229703, at *7 (M.D. Fla.

Apr. 25, 2007) (securities class action complaint dismissed; the fact that an accounting

error resulted in a restatement of earnings “does not serve as an indicium of fraud under

[the] circumstances”).

Paincare involved a decline in the defendant’s share price after the defendant

company restated its financial statements for the previous five years following an inquiry

by the SEC. The plaintiffs sued, alleging that the company’s public filings and

announcements before the reinstatement were false and misleading, and quoted at

length from the company’s previous financial statements and restatements. The court

concluded that plaintiff’s allegations were insufficient to satisfy the PSLRA’s pleading

standard, because the complaint simply expounded on the accounting errors described

in the restated financial statements “instead of identifying exactly which statements it

contends are fraudulent and why they are fraudulent.” See Paincare, 2007 WL

1229703, at * 5

Here, plaintiff’s allegations suffer from the same deficiencies that led to the

dismissal of the Paincare complaint. Plaintiff relies on the Company’s restatement to

support the inference that deferred revenues were manipulated. The CAC, however,

does not provide any factual narrative indicating which specific statements were false or

misleading and how or why these statements were false or misleading. Paincare

makes clear that such particularization is necessary to satisfy the PSLRA.

Plaintiff cites In re AFC Enterprises, Inc. Sec. Litig., 348 F. Supp. 2d 1363 (N.D.

Ga. 2004) to support his argument that the issuance of a restatement may contribute to


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