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neither of which is pled. All that plaintiff has alleged are the names of some individual

defendants, the dates that shares were allegedly sold within the Purported Class

Period, the number of shares sold on that date, and the total dollar amount of each sale.

CAC at ¶ 132. For example, plaintiff alleges that during the Class Period, Kane

“liquidated over $414,00 of his personally-held Whitney common stock.” CAC at ¶ 8

and Simon “liquidated over $911,999 worth of his personally-held Whitney common

stock.” CAC at ¶ 6. Plaintiff then alleges that these sales show defendants took

advantage of the artificially inflated price. See id. However, conspicuously absent is

any allegation that these sales were inconsistent with either of their trading histories or

part of an unusual trading pattern. By failing to allege facts to show unusual scope or

timing of the stock sales, plaintiff has not created an inference of scienter stronger than

the more logical inference that Kane, Simon and Whitney sales of Company stock were

simply routine.8

Similarly, plaintiff alleges that certain of the individual defendants signed certain

of the Company’s SEC filings. CAC at ¶ 70 (alleging that Whitney, Maturo and Simon

“among others” signed the Company’s Form 1_Q for 3Q:05), ¶ 80 (alleging that Whitney

and Simon “signed Sarbanes-Oxley Certifications for period ending June 30, 2004 -

which is outside the Class Period), and ¶ 96 (alleging that Whitney and Novas certified

the Company’s 1Q:06 Form 10-Q). However, such allegations are insufficient to give

8It is also worth noting that the CAC identifies only three of the six individual defendants as selling their stock during the Class Period. If there was a massive fraud, as alleged, then it would be expected that all of the individual defendants would have sold their shares. The fact that three defendants did not sell any stock undermines a showing of fraudulent intent.


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