                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 04 2017
                   UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


BRADLEY COOPER; TODD LABAK,                      No.   15-17369
Individually and On Behalf of All
Others Similarly Situated,                       D.C. No. 4:14-cv-00360-CW

              Plaintiffs-Appellants,
                                                 MEMORANDUM*
 v.

THORATEC CORPORATION;
GERHARD F. BURBACH; TAYLOR
C. HARRIS; DAVID V. SMITH,

              Defendants-Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                     Claudia Wilken, District Judge, Presiding

                    Argued and Submitted September 14, 2017
                            San Francisco, California

Before:      KOZINSKI and FRIEDLAND, Circuit Judges, and ARTERTON,**
             District Judge.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Janet Bond Arterton, United States District Judge for
the District of Connecticut, sitting by designation.
                                                                                    page 2
      “[A] statement is misleading if it would give a reasonable investor the

impression of a state of affairs that differs in a material way from the one that

actually exists.” In re Cutera Sec. Litig., 610 F.3d 1103, 1109 (9th Cir. 2010)

(citation and internal quotation marks omitted). During the class period, Thoratec

received data on HeartMate II thrombosis events that strongly suggested

thrombosis rates were significantly higher than initially advertised. The

company’s affirmative statements during the class period downplayed this

increase. Appellants have accordingly alleged, with sufficient specificity to

survive appellees’ motion to dismiss, that Thoratec’s statements were misleading.


      REVERSED AND REMANDED.
