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(Hawkins, Scott) (Entered: 04/25/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/461383742/","id":461383742,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/69406698/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/476473150/","id":476473150,"tags":[],"absolute_url":"/docket/69406698/79/shelby-township-police-fire-retirement-system-v-celsius-holdings-inc/","date_created":"2026-04-20T15:06:15.188556-07:00","date_modified":"2026-07-24T00:10:04.764604-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"79","attachment_number":null,"pacer_doc_id":"051029719390","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Amended Complaint/Amended Notice of Removal","acms_document_guid":""}],"date_created":"2026-04-20T15:06:15.170872-07:00","date_modified":"2026-07-24T00:10:04.713458-07:00","date_filed":"2026-04-20","time_filed":"17:56:19","entry_number":79,"recap_sequence_number":"2026-04-20.001","pacer_sequence_number":319,"description":"Second AMENDED COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS against Celsius Holdings, Inc., John Fieldly, Jarrod Langhans filed in response to Order Granting Motion for Leave, filed by The Zarabi Family Trust Dated September 3, 1992.(Dubin, Joshua) (Entered: 04/20/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/459163480/","id":459163480,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/69406698/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/474182827/","id":474182827,"tags":[],"absolute_url":"/docket/69406698/78/shelby-township-police-fire-retirement-system-v-celsius-holdings-inc/","date_created":"2026-03-31T10:27:46.217917-07:00","date_modified":"2026-07-24T00:10:04.625449-07:00","sha1":"79fa08765e644566f0426993c8f054bb74ec6b9e","page_count":15,"file_size":260586,"filepath_local":"recap/gov.uscourts.flsd.679408/gov.uscourts.flsd.679408.78.0_1.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.flsd.679408/gov.uscourts.flsd.679408.78.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 9:24-cv-81472-MD Document 78 Entered on FLSD Docket 03/31/2026 Page 1 of 15\n\n\n\n                           UNITED STATES DISTRICT COURT\n                           SOUTHERN DISTRICT OF FLORIDA\n\n                       CASE NO. 24-81472-CIV-DAMIAN/Reinhart\n\n\nIn re CELSIUS HOLDINGS, INC.\nSECURITIES LITIGATION\n_____________________________________/\n\n           ORDER AFFIRMING AND ADOPTING MAGISTRATE JUDGE\u2019S\n                REPORT AND RECOMMENDATION [ECF NO. 74]\n         AND GRANTING DEFENDANTS\u2019 MOTION TO DISMISS [ECF NO. 64]\n\n         THIS CAUSE is before the Court on the Report and Recommendation on Defendants\u2019\n\nMotion to Dismiss [ECF No. 64] of United States Magistrate Judge Bruce E. Reinhart, entered\n\nDecember 4, 2025. [ECF No. 74 (\u201cReport\u201d)]. Judge Reinhart recommends that Defendants\u2019\n\nMotion to Dismiss be granted. Lead Plaintiff, the Zarabi Family Trust Dated September 3, 1992\n\n(\u201cLead Plaintiff\u201d), filed Objections to the Report on December 18, 2025, [ECF No. 76], and\n\nDefendants, Celsius Holdings, Inc. (\u201cCelsius\u201d) and its officers John Fieldly, Jarrod Langhans,\n\nand Toby David (the \u201cIndividual Defendants\u201d), filed a Joint Response to Lead Plaintiff\u2019s\n\nObjections on January 2, 2026 [ECF No. 77].\n\n         THE COURT has conducted a de novo review of the Report, Lead Plaintiff\u2019s Objections,\n\nDefendants\u2019 Response, the record in this case, and relevant authorities and is otherwise fully\n\nadvised. As discussed below, this Court agrees with the analysis and conclusions in the Report\n\nand finds Magistrate Judge Reinhart\u2019s recommendation to be well-reasoned and correct.\n\n                          I.   RELEVANT BACKGROUND 1\n\n         On November 22, 2024, Plaintiff Shelby Township Police and Fire Retirement System\n\nfiled a Class Action Complaint for Violations of the Federal Securities Laws, pursuant to\n\n\n     1\n      The Report\u2019s thorough summary of the allegations in the Amended Complaint and the\n  arguments raised in Defendants\u2019 Motion to Dismiss are incorporated herein.\n\fCase 9:24-cv-81472-MD Document 78 Entered on FLSD Docket 03/31/2026 Page 2 of 15\n\n\n\n\nSections 10(b) and 20(a) of the Securities Exchange Act of 1934 (\u201cExchange Act\u201d) and Rule\n\n10b-5, against Celsius and the Individual Defendants. [ECF No. 1]. The putative class includes\n\n\u201call persons who acquired Celsius common stock during the Class Period.\u201d Id. \u00b6 12. In another\n\nrelated securities class action filed on January 14, 2025, Plaintiff Anthony M. Abraham filed a\n\ncomplaint with factual allegations that are nearly identical to those in this litigation. Abraham\n\nv. Celsius Holdings, Inc., No. 25-cv-80053 (S.D. Fla.).\n\n         On March 3, 2025, the Court 2 consolidated the two related actions and directed that all\n\nfuture pleadings be filed only in the instant Consolidated Lead Action, Case No. 24-cv-81472;\n\nappointed the Zarabi Family Trust as Lead Plaintiff for the Class; and approved the selection\n\nof Grant & Eisenhoffer P.A. as Lead Counsel for the Class and Josh Dubin, P.A. as Liaison\n\nCounsel for the Class. [ECF No. 44]; see also Abraham, No. 25-cv-80053, [ECF No. 9]. The\n\nCourt also granted Lead Plaintiff leave to file an Amended Complaint. Id. at 9.\n\n         On April 25, 2025, Lead Plaintiff, individually and on behalf of all others who purchased\n\nor otherwise acquired Celsius securities between May 9, 2023 and November 5, 2024 (the\n\n\u201cClass Period\u201d), filed an Amended Complaint for Violations of the Federal Securities Laws\n\nagainst Celsius and the Individual Defendants. [ECF No. 57].\n\n         In the Amended Complaint, Lead Plaintiff alleges that throughout the Class Period,\n\nCelsius and the Individual Defendants made materially false and misleading statements\n\nregarding the company\u2019s business, including misrepresenting inventory levels after a business\n\ndeal with PepsiCo, Inc. (\u201cPepsi\u201d), the amount of consumer demand for Celsius products, and\n\n\n\n     2\n      This action was originally assigned to United States District Judge Robin L. Rosenberg.\n  [ECF No. 2]. The matter was reassigned to the undersigned on August 4, 2025, pursuant to\n  Administrative Order 2025-59. [ECF No. 69].\n                                               2\n\fCase 9:24-cv-81472-MD Document 78 Entered on FLSD Docket 03/31/2026 Page 3 of 15\n\n\n\n\nthe company\u2019s growth rate. See generally id. \u00b6\u00b6 7\u201319. Specifically, Lead Plaintiff alleges that after\n\nCelsius entered into a distribution agreement with Pepsi in August 2022, Defendants made\n\nstatements that defrauded investors by suggesting that sales of product to Pepsi pursuant to the\n\ndistribution agreement (\u201csell-in\u201d) and sales to end consumers (\u201csell-out\u201d) were growing at the\n\nsame rate, thereby misrepresenting consumer demand for Celsius products. Id. Lead Plaintiff\n\nfurther alleges that Defendants\u2019 statements were false because the growth in sales to Pepsi\n\nresulted from a one-time inventory build (or \u201cpipe fill\u201d) after the distribution agreement was\n\nexecuted, rather than from growing consumer demand. Id. Lead Plaintiff and other members\n\nof the Class allege that they suffered significant losses and damages because of Defendants\u2019 false\n\nand misleading statements and omissions and the resulting decline in the market value of the\n\ncompany\u2019s securities. Id. \u00b6\u00b6 19, 169. Lead Plaintiff asserts two causes of action in the Amended\n\nComplaint: in Count I, Lead Plaintiff alleges that Defendants violated Section 10(b) of the\n\nExchange Act and Rule 10b-5, and in Count II, Lead Plaintiff alleges that Individual\n\nDefendants Fieldly and Langhans violated Section 20(a) of the Exchange Act. Id. \u00b6\u00b6 184\u201395.\n\n       On June 13, 2025, Defendants filed a Motion to Dismiss the Amended Complaint\n\npursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6). [ECF No. 64]. Lead Plaintiff\n\nfiled a Response to the Motion [ECF No. 68], and Defendants filed a Reply [ECF No. 71]. The\n\nundersigned referred the Motion to Magistrate Judge Reinhart for a Report and\n\nRecommendation. [ECF No. 70].\n\n       On December 4, 2025, Judge Reinhart issued the Report recommending that the Motion\n\nto Dismiss be granted. [ECF No. 74]. Defendants filed a Notice of Non-Objection to the Report.\n\n[ECF No. 75]. Lead Plaintiff timely filed Objections to the Report [ECF No. 76], and\n\nDefendants filed a Response to Lead Plaintiff\u2019s Objections [ECF No. 77].\n                                                3\n\fCase 9:24-cv-81472-MD Document 78 Entered on FLSD Docket 03/31/2026 Page 4 of 15\n\n\n\n\n                              II.   LEGAL STANDARDS\n\n       A. Standard of Review of Magistrate Judge\u2019s Report and Recommendation.\n\n       The Court may accept, reject, or modify, in whole or in part, the findings or\n\nrecommendations made by the magistrate judge. 28 U.S.C. \u00a7 636(b)(1); Fed. R. Civ. P. 72(b)(3).\n\nWhen a magistrate judge\u2019s \u201cdisposition\u201d has properly been objected to, district courts must\n\nreview the disposition de novo. Fed. R. Civ. P. 72(b)(3). When no party has timely objected,\n\nhowever, \u201cthe court need only satisfy itself that there is no clear error on the face of the record\n\nin order to accept the recommendation.\u201d Fed. R. Civ. P. 72 advisory committee\u2019s notes (citation\n\nomitted). Although Rule 72 itself is silent on the standard of review, the Supreme Court has\n\nacknowledged Congress\u2019s intent was to only require a de novo review where objections have\n\nbeen properly filed, not when neither party objects. See Thomas v. Arn, 474 U.S. 140, 150 (1985)\n\n(\u201cIt does not appear that Congress intended to require district court review of a magistrate\n\n[judge]\u2019s factual or legal conclusions, under a de novo or any other standard, when neither party\n\nobjects to those findings.\u201d). In any event, the \u201c[f]ailure to object to the magistrate [judge]\u2019s\n\nfactual findings after notice precludes a later attack on these findings.\u201d Lewis v. Smith, 855 F.2d\n\n736, 738 (11th Cir. 1988) (citing Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982)). Here,\n\nsince Lead Plaintiff filed timely objections, this Court has reviewed the record de novo.\n\n       B. Motion to Dismiss Standard.\n\n       Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss\n\na complaint that does not satisfy the applicable pleading requirements for \u201cfailure to state a\n\nclaim upon which relief can be granted.\u201d In considering a Rule 12(b)(6) motion, the court\n\naccepts all of the complaint\u2019s allegations as true, construing them in the light most favorable to\n\n\n                                                 4\n\fCase 9:24-cv-81472-MD Document 78 Entered on FLSD Docket 03/31/2026 Page 5 of 15\n\n\n\n\nthe plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). However, pleadings that \u201care no\n\nmore than conclusions[ ] are not entitled to the assumption of truth. While legal conclusions\n\ncan provide the framework of a complaint, they must be supported by factual allegations.\u201d\n\nAshcroft v. Iqbal, 556 U.S. 662, 679 (2009). Dismissal pursuant to a Rule 12(b)(6) motion is\n\nwarranted \u201conly if it is clear that no relief could be granted under any set of facts that could be\n\nproved consistent with the allegations of the complaint.\u201d Shands Teaching Hosp. & Clinics, Inc. v.\n\nBeech St. Corp., 208 F.3d 1308, 1310 (11th Cir. 2000) (internal quotation marks omitted)\n\n(quoting Hishon, 467 U.S. at 73).\n\n       C. Section 10(b) Claim.\n\n       Under Rule 10b-5, promulgated by the Securities and Exchange Commission (\u201cSEC\u201d)\n\nunder Section 10(b) of the Exchange Act, it is unlawful for any person:\n\n         (a) To employ any device, scheme, or artifice to defraud, (b) To make any\n         untrue statement of a material fact or to omit to state a material fact necessary\n         in order to make the statements made, in the light of the circumstances under\n         which they were made, not misleading, or (c) To engage in any act, practice,\n         or course of business which operates or would operate as a fraud or deceit upon\n         any person, in connection with the purchase or sale of any security.\n\n17 C.F.R. \u00a7 240.10b-5.\n\n       To state a claim for securities fraud based on misrepresentations under Section 10(b) of\n\nthe Exchange Act and Rule 10b\u20135, a plaintiff must allege six elements: \u201c(1) a material\n\nmisrepresentation or omission; (2) made with scienter; (3) a connection with the purchase or\n\nsale of a security; (4) reliance on a misstatement or omission; (5) economic loss; and (6) a causal\n\nconnection between the material misrepresentation or omission and the loss, commonly called\n\nloss causation.\u201d Instituto De Prevision Militar v. Merrill Lynch, 546 F.3d 1340, 1352 (11th Cir.\n\n2008) (quotation omitted). To survive a motion to dismiss, a claim brought under Section 10(b)\n\n                                                 5\n\fCase 9:24-cv-81472-MD Document 78 Entered on FLSD Docket 03/31/2026 Page 6 of 15\n\n\n\n\nof the Act or Rule 10b\u20135 must satisfy (1) the federal notice pleading requirements; (2) the special\n\nfraud pleading requirements found in Federal Rule of Civil Procedure 9(b), see Ziemba v. Cascade\n\nInt\u2019l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001); and (3) the additional pleading requirements\n\nimposed by the Private Securities Litigation Reform Act (\u201cPSLRA\u201d). See Phillips v. Scientific\u2013\n\nAtlanta, Inc., 374 F.3d 1015, 1016 (11th Cir. 2004).\n\n       Under the federal notice pleading standards, a complaint must contain \u201ca short and plain\n\nstatement of the claim showing that the pleader is entitled to relief.\u201d Fed. R. Civ. P. 8(a)(2).\n\nThe court must construe the reasonable inferences from well-pleaded facts in the light most\n\nfavorable to the plaintiff. FindWhat Investor Grp. v. FindWhat.com, 658 F.3d 1282, 1296 (11th\n\nCir. 2011). Additionally, Rule 9(b) requires that, for complaints alleging fraud or mistake, \u201ca\n\nparty must state with particularity the circumstances constituting fraud or mistake,\u201d although\n\n\u201c[m]alice, intent, knowledge, and other conditions of a person\u2019s mind may be alleged\n\ngenerally.\u201d Fed. R. Civ. P. 9(b). Rule 9(b) dictates that the complaint must allege:\n\n       (1) precisely what statements or omissions were made in which documents or\n       oral representations; (2) the time and place of each such statement and the person\n       responsible for making (or, in the case of omissions, not making) them; (3) the\n       content of such statements and the manner in which they misled the plaintiff; and\n       (4) what the defendant obtained as a consequence of the fraud.\n\nFindWhat Investor Grp., 658 F.3d at 1296.\n\n       The PSLRA imposes additional heightened pleading requirements. For section 10(b)\n\nand Rule 10b\u20135 claims predicated on allegedly false or misleading statements or omissions, the\n\nPSLRA provides that \u201cthe complaint shall specify each statement alleged to have been\n\nmisleading, the reason or reasons why the statement is misleading, and, if an allegation\n\nregarding the statement or omission is made on information and belief, the complaint shall state\n\nwith particularity all facts on which that belief is formed.\u201d 15 U.S.C. \u00a7 78u\u20134(b)(1). In addition,\n                                                    6\n\fCase 9:24-cv-81472-MD Document 78 Entered on FLSD Docket 03/31/2026 Page 7 of 15\n\n\n\n\nthe complaint must \u201cplead with particularity facts giving rise to a strong inference that the\n\ndefendants either intended to defraud investors or were severely reckless when they made the\n\nalleged materially false or incomplete statements.\u201d Mizzaro v. Home Depot, Inc., 544 F.3d 1230,\n\n1238 (11th Cir. 2008) (quotation marks omitted).\n\n                                 III.     DISCUSSION\n\n       A. Magistrate Judge Reinhart\u2019s Findings And Conclusions.\n\n       In the Report, Magistrate Judge Reinhart engages in an extensive analysis of the\n\nsufficiency of the allegations in the Amended Complaint and, as explained in the Report, Judge\n\nReinhart determines that the Amended Complaint fails to satisfy the elements of falsity,\n\nmateriality, and scienter required to state a claim for violation of Section 10(b) of the Exchange\n\nAct and Rule 10b-5. See Report at 13\u201335. Judge Reinhart further concludes that because Count\n\nI fails to adequately plead a violation of Section 10(b) and Rule 10b-5, Count II, alleging that\n\nIndividual Defendants Fieldly and Langhans are liable as \u201ccontrol persons\u201d under Section 20(a)\n\nof the Exchange Act, necessarily fails as well. Id. at 35. Accordingly, Magistrate Judge Reinhart\n\nrecommends that the Motion to Dismiss be granted.\n\n       This Court turns to Lead Plaintiff\u2019s Objections to the specific findings and conclusions\n\nin the Magistrate Judge\u2019s Report.\n\n       B. Lead Plaintiff\u2019s Objections.\n\n       Lead Plaintiff argues that the Report contains errors with respect to the findings and\n\nconclusions on the elements of materiality and scienter. Lead Plaintiff further argues that the\n\nMagistrate Judge erred by failing to address Lead Plaintiff\u2019s request for leave to replead in the\n\nevent the Court dismisses the Complaint in whole or in part. See Obj. at 7\u20138. This Court\n\naddresses the objections in turn below.\n                                                 7\n\fCase 9:24-cv-81472-MD Document 78 Entered on FLSD Docket 03/31/2026 Page 8 of 15\n\n\n\n\n              1. Objections Regarding Material Misrepresentation.\n\n       Lead Plaintiffs first objects to the Magistrate Judge\u2019s finding that the Defendants\u2019\n\nstatements are not \u201cmaterially false,\u201d \u201camount to corporate optimism and opinion,\u201d and \u201cdo\n\nnot rise to the level of materially misleading.\u201d Obj. at 11\u201317. Lead Plaintiff argues that the\n\nMagistrate Judge \u201cmixes up the timing of the alleged misstatements and certain \u2018disclosures\u2019\u201d\n\nincluded in the \u201ctotal mix of information available to the market\u201d and \u201cwrongly includes in the\n\ntotal mix of information disclosures that were made weeks after the alleged false statements.\u201d\n\nObj. at 13.\n\n       After thoroughly reviewing the statements alleged to be materially false, Magistrate\n\nJudge Reinhart concludes that the \u201cmajority fall short of the pleading standards because the\n\nfacts alleged do not support falsity and materiality.\u201d Report at 13\u201325. Specifically, Judge\n\nReinhart concludes that several statements in the Amended Complaint fail to allege falsity or\n\nmateriality \u201ceither because the statements appear to be true, do not provide facts to show they\n\nare false, or amount to non-actionable puffery or opinions.\u201d Id. at 16. With regards to certain\n\nstatements, \u201csuch as references to Pepsi\u2019s \u2018massive distribution,\u2019 Defendants\u2019 confidence that\n\nsales were increasing and growth was strong, that the distribution system was a \u2018key factor\u2019 in\n\nCelsius\u2019 growth, and that Celsius was in a good place,\u201d Judge Reinhart concludes that \u201cthese\n\nstatements also amount to corporate optimism and opinion, and are not actionable under the\n\nPSLRA.\u201d Id. at 18\u201319.\n\n       While Judge Reinhart determines that many of the alleged statements are not actionable,\n\nhe concludes that certain statements \u201care a closer call\u201d and might be actionable because they\n\ncould be materially misleading. Id. at 19\u201325. Specifically, Judge Reinhart finds that \u201ca factual\n\nstatement that Pepsi\u2019s buildup of inventory was \u2018not a pipe fill\u2019 standing alone could rise to the\n                                               8\n\fCase 9:24-cv-81472-MD Document 78 Entered on FLSD Docket 03/31/2026 Page 9 of 15\n\n\n\n\nlevel of a material misrepresentation.\u201d Id. at 22. Judge Reinhart further finds that other\n\nstatements, including \u201cthe increase in distribution didn\u2019t slow the overall velocity,\u201d \u201c[t]he sales\n\nare moving quicker out of the register,\u201d and \u201cit is not really a pipe fill,\u201d could be considered\n\nmisleading. Id. at 24. Nevertheless, despite these potentially actionable statements, Judge\n\nReinhart determines, upon considering the record as a whole and the \u201ctotal mix\u201d of information\n\navailable to investors, that these statements do not rise to the level of materially misleading. Id.\n\nat 24. In so concluding, Judge Reinhart points to the fact that investors were well aware that\n\nCelsius recognized revenue when it delivered products to Pepsi and that the earnings reports\n\nwere based on sales to Pepsi, not sales to the ultimate consumers. Id. Judge Reinhart also finds\n\nthat certain disclosures by Defendants regarding Pepsi\u2019s buildup inventory, increase in the\n\nlength of time products were sitting in the warehouses, and uncertainty as to how Pepsi would\n\nmanage the inventory going forward indicate that investors had information relating to the\n\ninventory. Id.\n\n       Lead Plaintiff takes issue with the fact that the Report takes into consideration certain\n\ndisclosures made in June, August, and November 2023 as altering the total mix of information\n\nas of May 9, 2023 \u2013 when the alleged misstatements were made. Id. at 12\u201314. However, even if\n\nsuch disclosures were made after the relevant time period and regardless of whether they are\n\nconsidered as part of the total mix of information, the undersigned agrees with Judge Reinhart\u2019s\n\nconclusion that the statements at issue are not actionable as currently pled.\n\n       As noted above, the PSLRA requires that a complaint for a securities violation \u201cspecify\n\neach statement alleged to have been misleading, the reason or reasons why the statement is\n\nmisleading, and, if an allegation regarding the statement or omission is made on information\n\nand belief, the complaint shall state with particularity all facts on which that belief is formed.\u201d\n                                                 9\n\fCase 9:24-cv-81472-MD Document 78 Entered on FLSD Docket 03/31/2026 Page 10 of 15\n\n\n\n\n 15 U.S.C. \u00a7 78u\u20134(b)(1). Upon a de novo review of the allegations in the Amended Complaint,\n\n the undersigned finds that Lead Plaintiff has not complied with these heightened pleading\n\n requirements. Moreover, as further discussed below, even if the alleged statements were\n\n materially false and misleading, the undersigned agrees with Judge Reinhart\u2019s conclusion that\n\n the Amended Complaint does not set forth particular facts that give rise to a strong inference\n\n that Defendants acted with the requisite state of mind.\n\n            2. Objections Regarding Scienter.\n\n        Lead Plaintiff objects to the Magistrate Judge\u2019s finding that the Amended Complaint\n\n \u201cfails to adequately allege that Defendants acted with scienter.\u201d Obj. at 17\u201325. Lead Plaintiff\n\n asserts that the Magistrate Judge incorrectly applies an actual knowledge standard to\n\n Defendants\u2019 scienter and overlooks the well-pled allegations that Defendants\u2019 own statements\n\n create a strong inference that they at least acted with severe recklessness. Id.\n\n        Under Section 10(b) and Rule 10b-5 of the Exchange Act, a plaintiff must, \u201cwith respect\n\n to each act or omission alleged . . . state with particularity facts giving rise to a strong inference\n\n that the defendant acted with the required state of mind.\u201d Carvelli v. Ocwen Fin. Corp., 934 F.3d\n\n 1307, 1318 (11th Cir. 2019) (internal quotation marks omitted). As further explained in the\n\n Report, the Eleventh Circuit sets a high standard for establishing scienter, the \u201cmental state\n\n embracing intent to deceive, manipulate, or defraud.\u201d Bryant v. Avado Brands, Inc., 187 F.3d\n\n 1271, 1282 (11th Cir. 1999) (quoting Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n.12 (1976)).\n\n To adequately plead scienter in the Eleventh Circuit, Lead Plaintiff must \u201cstate with\n\n particularity facts giving rise to a strong inference\u201d that each Defendant acted \u201cpurposefully or\n\n with \u2018severe recklessness.\u2019 \u201d 15 U.S.C. \u00a7 78u-4(b)(2); Richard Thorpe & Darrel Weisheit v. Walter\n\n Inv. Mgmt., Corp., 111 F. Supp. 3d 1336, 1359 (S.D. Fla. 2015) (Ungaro, J.) (quoting Thompson\n                                                10\n\fCase 9:24-cv-81472-MD Document 78 Entered on FLSD Docket 03/31/2026 Page 11 of 15\n\n\n\n\n v. RelationServe Media, Inc., 610 F.3d 628, 634 (11th Cir. 2010)). \u201cSevere recklessness\u201d requires\n\n a showing of \u201chighly unreasonable omissions or misrepresentations that involve not merely\n\n simple or even inexcusable negligence, but an extreme departure from the standards of ordinary\n\n care,\u201d such that they \u201cpresent a danger of misleading buyers or sellers which is either known to\n\n the defendant or is so obvious that the defendant must have been aware of it.\u201d Richard Thorpe,\n\n 111 F. Supp. 3d at 1359 (citation omitted). The inference of scienter \u201cmust be more than merely\n\n \u2018reasonable\u2019 or \u2018plausible\u2019\u2014it must be cogent and compelling\u201d and \u201cstrong in light of other\n\n explanations,\u201d and courts must \u201ctake into account plausible opposing inferences\u201d suggesting\n\n the absence of any wrongful intent. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 309,\n\n 323 (2007). Stated differently, in order to sufficiently allege scienter, \u201ca plaintiff must allege\n\n facts from which a reasonable person would infer that it is at least as likely as not that the\n\n individual high-ranking defendants either orchestrated the alleged fraud (and thus always knew\n\n about it), learned about the alleged fraud, or were otherwise severely reckless in not learning of\n\n the alleged fraud when they made the purportedly false or misleading statements.\u201d Richard\n\n Thorpe, 111 F. Supp. 3d at 1359 (citing Mizzaro, 544 F.3d at 1247). See also Brophy v. Jiangbo\n\n Pharm., Inc., 781 F.3d 1296, 1302 (11th Cir. 2015) (\u201cAccordingly, [a] complaint will survive [a\n\n motion to dismiss] only if a reasonable person would deem the inference of scienter cogent and\n\n at least as compelling as any opposing inference one could draw from the facts alleged . . . .\n\n Although we draw any reasonable inferences available on the face of the complaint in the\n\n investors\u2019 favor, we also must look to plausible, nonculpable explanations for the defendant\u2019s\n\n conduct in evaluating an inference of scienter.\u201d) (internal quotation marks and citation\n\n omitted).\n\n\n                                                  11\n\fCase 9:24-cv-81472-MD Document 78 Entered on FLSD Docket 03/31/2026 Page 12 of 15\n\n\n\n\n        In the Report, Magistrate Judge Reinhart states the correct scienter standard and\n\n concludes that the allegations in the Amended Complaint do not rise to the level of a \u201cstrong\n\n inference\u201d of scienter that is at least as compelling as opposite inferences. See Report at 10\u201311,\n\n 25\u201329. With respect to allegations that the Individual Defendants \u201cknew that there was a\n\n massive glut of Celsius products sitting unsold in Pepsi\u2019s warehouses because Defendants had\n\n access to Pepsi\u2019s inventory data\u201d and that they \u201cknew of the slowdown in orders from Pepsi\u201d\n\n (Am. Compl. \u00b6\u00b6 61, 64), Magistrate Judge Reinhart concludes that \u201cthere are no allegations\n\n that the individual Defendants had these logins or accessed these programs, or that any\n\n employee provided them with information gained through this access.\u201d Report at 27. Upon a\n\n de novo review of the allegations, the undersigned agrees. The Amended Complaint contains no\n\n allegations that each of the Individual Defendants themselves monitored Pepsi\u2019s inventory levels\n\n and were aware of the \u201csevere excess of \u2018several million more cases\u2019 of unsold product\u201d to give\n\n rise to a \u201cstrong inference\u201d that each Defendant acted purposefully or with severe recklessness.\n\n Further, as discussed in the Report, the allegations that the Individual Defendants attended\n\n meetings and were copied in emails relating to distribution and financial data, including Pepsi\u2019s\n\n inventory data (Am. Compl. \u00b6\u00b6 65, 66, 112), are insufficient to satisfy the high standard for\n\n establishing scienter in the Eleventh Circuit. See Report at 28\u201329 (citing cases).\n\n        \u201cMoreover, the complaint must allege facts supporting a strong inference of scienter for\n\n each defendant with respect to each violation.\u201d Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1238\n\n (11th Cir. 2008) (emphasis added) (citing Phillips v. Scientific\u2013Atlanta, Inc., 374 F.3d 1015, 1016\n\n (11th Cir. 2004)). Thus, the group pleading doctrine does not apply to the PSLRA\u2019s scienter\n\n requirements. In re Sunbeam Sec. Litig., 89 F. Supp. 2d 1326, 1341 (S.D. Fla. 1999)\n\n\n                                                  12\n\fCase 9:24-cv-81472-MD Document 78 Entered on FLSD Docket 03/31/2026 Page 13 of 15\n\n\n\n\n (Middlebrooks, J.) (holding that the group pleading doctrine survives the PSLRA as to Rule\n\n 9(b)\u2019s particularity requirements, but does not apply to the PSLRA\u2019s scienter requirements).\n\n        Here, the Amended Complaint includes scienter allegations that improperly group the\n\n Defendants as \u201cIndividual Defendants\u201d or \u201cDefendants\u201d instead of clearly distinguishing how\n\n each defendant acted purposefully or with severe recklessness. See, e.g., Am. Compl. \u00b6\u00b6 29, 64,\n\n 85, 93, 125, 134. These allegations are insufficient under Rule 9(b) and the PSLRA, which\n\n requires Plaintiff to allege what each Defendant knew, how the Defendant knew that\n\n information and when each Defendant knew or should have known that information. See City\n\n of St. Clair Shores Gen. Emps. Ret. Sys. v. Lender Processing Servs., Inc., No. 3:10\u2013cv\u20131073\u2013J\u201332JBT,\n\n 2012 WL 1080953, at *4 (M.D. Fla. Mar. 20, 2012) (dismissing complaint without prejudice\n\n because plaintiff failed to allege scienter with respect to each defendant); Durham v. Whitney\n\n Info. Network, Inc., No. 06\u2013CV\u201300687, 2009 WL 3783375, at *17 (M.D. Fla. Nov. 10, 2009)\n\n (\u201cRule 9(b) does not allow a complaint to merely lump multiple defendants together but\n\n require[s] plaintiffs to differentiate their allegations when suing more than one defendant . . .\n\n and inform each defendant separately of the allegations surrounding his alleged participation\n\n in the fraud.\u201d) (internal quotation marks and citation omitted).\n\n        Therefore, to the extent allegations supporting scienter are not attributed to a specific\n\n Defendant, those allegations are also subject to dismissal for this reason, in addition to the\n\n reasons set forth in the Report. Lead Plaintiff also objects to the Magistrate Judge\u2019s findings\n\n and conclusions with respect to the allegations of the Individual Defendants\u2019 suspicious trading.\n\n However, because the undersigned finds that Lead Plaintiff has not adequately alleged\n\n particularized facts to support a strong inference of scienter for each defendant as an\n\n\n                                                   13\n\fCase 9:24-cv-81472-MD Document 78 Entered on FLSD Docket 03/31/2026 Page 14 of 15\n\n\n\n\n independent basis for dismissal, the undersigned will not address the remainder of Plaintiff\u2019s\n\n Objections regarding the suspicious trading allegations.\n\n        C. Leave To Amend.\n\n        In both the Response to the Motion and in the Objections to the Report, Lead Plaintiff\n\n requests an opportunity to amend the pleadings. Resp. at 25; Obj. at 6. Inclusion of this request\n\n for affirmative relief in the response rather than filing a motion is improper. See Fed. R. Civ. P.\n\n Rule 7(b)(1); see also Rosenberg v. Gould, 554 F.3d 962, 967 (11th Cir. 2009) (\u201cWhere a request\n\n for leave to file an amended complaint simply is imbedded within an opposition memorandum,\n\n the issue has not been raised properly.\u201d) (quoting Posner v. Essex Ins. Co., 178 F.3d 1209, 1222\n\n (11th Cir. 1999)).\n\n        Nonetheless, having carefully considered the allegations and Lead Plaintiff\u2019s arguments\n\n in opposition to the Motion to Dismiss and in the Objections to the Report, this Court finds\n\n that it is possible that a more carefully drafted pleading including additional factual support\n\n may satisfy the pleading requirements discussed in the Report and above. \u201cGenerally, where a\n\n more carefully drafted complaint might state a claim, a plaintiff must be given at least one\n\n chance to amend the complaint before the district court dismisses the action with prejudice.\u201d\n\n Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (cleaned up). Mindful that courts \u201cshould\n\n freely give leave [to amend] when justice so requires,\u201d Fed. R. Civ. P. 15(a)(2), this Court\n\n concludes that Lead Plaintiff should be permitted an opportunity to file a second amended\n\n complaint to correct the deficiencies discussed herein.\n\n\n\n\n                                                  14\n\fCase 9:24-cv-81472-MD Document 78 Entered on FLSD Docket 03/31/2026 Page 15 of 15\n\n\n\n\n                                 IV.    CONCLUSION\n\n        Therefore, upon a de novo review, this Court finds Magistrate Judge Reinhart\u2019s Report\n\n to be thorough, well-reasoned, and correct. This Court fully agrees with the analysis in Judge\n\n Reinhart\u2019s Report and adopts the conclusions stated therein.\n\n        Accordingly, for the reasons stated in Magistrate Judge Reinhart\u2019s Report, and upon a\n\n de novo review, it is hereby\n\n        ORDERED AND ADJUDGED as follows:\n\n        1. The Report and Recommendation [ECF No. 74] is AFFIRMED AND ADOPTED\n\n            in its entirety and incorporated by reference for all purposes, including appellate\n\n            review.\n\n        2. Defendants\u2019 Motion to Dismiss [ECF No. 64] is GRANTED.\n\n        3. The Amended Complaint [ECF No. 57] is DISMISSED WITHOUT PREJUDICE\n\n            and with leave to amend.\n\n        If Lead Plaintiff intends to file a Second Amended Complaint, Lead Plaintiff shall do so\n\n within twenty (20) days of the date of this Order and is admonished to address the issues raised\n\n in the Magistrate Judge\u2019s Report and incorporated herein in any amended pleading.\n\n        DONE AND ORDERED in Chambers in the Southern District of Florida this 31st day\n\n of March, 2026.\n\n\n\n                                              ______________________________________\n                                              MELISSA DAMIAN\n                                              UNITED STATES DISTRICT JUDGE\n\n\n\n\n                                                15\n\f","ocr_status":2,"date_upload":"2026-04-13T03:47:42.442489-07:00","document_number":"78","attachment_number":null,"pacer_doc_id":"051029634431","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Order on Motion to Dismiss for Failure to State a Claim AND Order on Report and Recommendations","acms_document_guid":""}],"date_created":"2026-03-31T10:27:46.186702-07:00","date_modified":"2026-07-24T00:10:04.566357-07:00","date_filed":"2026-03-31","time_filed":"13:13:09","entry_number":78,"recap_sequence_number":"2026-03-31.001","pacer_sequence_number":316,"description":"ORDER Affirming And Adopting 74 Report and Recommendation and Granting 64 Motion to Dismiss. (Amended Complaint due by 4/20/2026). Signed by Judge Melissa Damian on 3/31/2026. See attached document for full details. (oco) (Entered: 03/31/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/449112869/","id":449112869,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/69406698/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/463897473/","id":463897473,"tags":[],"absolute_url":"/docket/69406698/77/shelby-township-police-fire-retirement-system-v-celsius-holdings-inc/","date_created":"2026-01-02T13:54:28.763044-08:00","date_modified":"2026-07-24T00:10:04.464229-07:00","sha1":"5c64dc147d0aac41f8786dbe991700d618de6987","page_count":27,"file_size":466331,"filepath_local":"recap/gov.uscourts.flsd.679408/gov.uscourts.flsd.679408.77.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.flsd.679408/gov.uscourts.flsd.679408.77.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 1 of 27\n\n\n\n\n                       UNITED STATES DISTRICT COURT\n                       SOUTHERN DISTRICT OF FLORIDA\n\n                     Case No. 24-CV-81472-DAMIAN-REINHART\n   In re CELSIUS HOLDINGS, INC.\n   SECURITIES LITIGATION                      CLASS ACTION\n                                         /\n\n               RESPONSE TO LEAD PLAINTIFF\u2019S OBJECTIONS TO\n              REPORT AND RECOMMENDATION ON DEFENDANTS\u2019\n               MOTION TO DISMISS THE AMENDED COMPLAINT\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 2 of 27\n\n\n\n\n                                                 TABLE OF CONTENTS\n\n                                                                                                                                        Page\n\n  I.     INTRODUCTION .............................................................................................................. 1\n\n  II.    FACTUAL BACKGROUND ............................................................................................. 3\n\n  III.   APPLICABLE LEGAL STANDARD ............................................................................... 5\n\n  IV.    ARGUMENT ...................................................................................................................... 5\n\n         A.        The Court Should Adopt the R&R\u2019s Holding that the AC Failed to Plead\n                   Material Misstatements or Omissions..................................................................... 5\n\n                   1.         The R&R correctly held Defendants\u2019 statements regarding the\n                              alleged \u201cpipe fill\u201d were not materially false. .............................................. 6\n\n                   2.         The R&R correctly identified statements as not materially false or\n                              misleading. .................................................................................................. 9\n\n                              a)         The R&R correctly found the AC failed to plead falsity\n                                         with respect to certain statements. .................................................. 9\n\n                              b)         The R&R correctly identified nonactionable puffery. .................. 10\n\n         B.        The Court Should Adopt the R&R\u2019s Holding that the AC Failed to Plead\n                   Scienter. ................................................................................................................ 11\n\n                   1.         The R&R applied the correct pleading standard for scienter. ................... 12\n\n                   2.         Defendants\u2019 own statements do not demonstrate scienter. ....................... 13\n\n                   3.         The R&R considered and rejected the insider trading allegations. ........... 15\n\n                   4.         The R&R correctly held the CW allegations did not contribute to a\n                              strong inference of scienter. ...................................................................... 18\n\n         C.        The Court Should Dismiss the Section 20 Claim. ................................................ 20\n\n         D.        Lead Plaintiff\u2019s Request for Leave to Amend Was Improper. ............................. 20\n\n  V.     CONCLUSION ................................................................................................................. 20\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 3 of 27\n\n\n\n\n                                               TABLE OF AUTHORITIES\n\n                                                                                                                           Page(s)\n  CASES\n\n  Barnes v. Leon Cnty. Sch. Bd.,\n     No. 4:22-cv-78-AW-MAF, 2025 WL 895216 (N.D. Fla. Mar. 24, 2025) ...........................5, 16\n\n  Bryant v. Avado Brands, Inc.,\n     187 F.3d 1271 (11th Cir. 1999) ...............................................................................................11\n\n  Carvelli v. Ocwen Fin. Corp.,\n     934 F.3d 1307 (11th Cir. 2019) .......................................................................................6, 7, 10\n\n  City of Hollywood Police Officers\u2019 Ret. Sys. v. Citrix Sys., Inc.,\n      649 F. Supp. 3d 1256 (S.D. Fla. 2022) ....................................................................9, 15, 16, 17\n\n  City of Sunrise General Employees\u2019 Retirement Plan v. FleetCor Techs.,\n      No. 1:17-CV-2207-LMM, 2018 WL 4293143 (N.D. Ga. May 15, 2018) ...............................18\n\n  City of Warren Gen. Emps. Ret. Sys. v. Teleperformance SE,\n      No. 23-cv-24580, 2024 WL 2320209 (S.D. Fla. May 22, 2024) .............................................14\n\n  City of Warren Police & Fire Ret. Sys. v. Foot Locker, Inc.,\n      412 F. Supp. 3d 206 (E.D.N.Y. 2019) .....................................................................................11\n\n  Davidco Invs., LLC v. Anchor Glass Container Corp.,\n     No. 8:04-cv-2561-T-24-EAJ, 2006 WL 547989 (M.D. Fla. Mar. 6, 2006) .............................15\n\n  Doller v. Hertz Global Holdings, Inc.,\n     No. 2:24-cv-513-KCD-DNF, 2025 WL 2896919 (M.D. Fla. Oct. 10, 2025) ....................14, 15\n\n  Druskin v. Answerthink, Inc.,\n     299 F. Supp. 2d 1307 (S.D. Fla. 2004) ....................................................................................16\n\n  Edge v. Tupperware Brands Corp.,\n     No. 07-cv-61057, 2023 WL 6310236 (M.D. Fla. Sept. 28, 2023) ...........................................19\n\n  Edward J. Goodman Life Income Tr. v. Jabil Cir., Inc.,\n     594 F.3d 783 (11th Cir. 2010) .................................................................................................16\n\n  Garfield v. NDC Health Corp.,\n     466 F.3d 1255 (11th Cir. 2006) .................................................................................................5\n\n  Grand Lodge of Pennsylvania v. Peters,\n     550 F.Supp.2d 1363 (M.D. Fla. 2008) .....................................................................................19\n\n  In re 21st Century Holding Co. Sec. Litig.,\n      No. 07-cv-61057, 2008 WL 5749572 (S.D. Fla. Nov. 7, 2008) ..............................................19\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 4 of 27\n\n\n\n\n  In re Aaron\u2019s Sec. Litig.,\n      No. 17-cv-2270, 2018 WL 11343741 (N.D. Ga. Sep. 26, 2018) .............................................13\n\n  In re Astea Int\u2019l Inc. Sec. Litig.,\n      No. 06-1467, 2007 WL 2306586 (E.D. Pa. Aug. 8, 2007) ......................................................18\n\n  In re Equifax Inc. Sec. Litig.,\n      357 F. Supp. 3d 1189 (N.D. Ga. 2019) ....................................................................................11\n\n  In re Faro Technologies Sec. Litig.,\n      534 F. Supp. 2d 1248 (M.D. Fla. 2007) ...................................................................................18\n\n  In re Galectin Therapeutics, Inc.,\n      843 F.3d 1257 (11th Cir. 2016) ...............................................................................................20\n\n  In re KLX, Inc. Sec. Litig.,\n      232 F. Supp. 3d 1269 (S.D. Fla. 2017) .................................................................................6, 9\n\n  In re Mako Surgical Corp. Sec. Litig.,\n      No. 12-cv-60875, 2013 WL 2145661 (S.D. Fla. May 15, 2013) .......................................13, 20\n\n  In re Miller Industries Sec. Litig.,\n      12 F. Supp. 2d 1323 (N.D. Ga. 1998) ......................................................................................18\n\n  In re Netbank, Inc. Sec. Litig.,\n      No. 1:07-CV-2298-BBM, 2009 WL 2432359 (N.D. Ga. Jan. 29, 2009) ................................15\n\n  In re Ocwen Fin. Corp. Sec. Litig.,\n      No. 14-cv-81057, 2015 WL 12780960 (S.D. Fla. Sep. 4, 2015) .......................................12, 19\n\n  In re Royal Caribbean Cruises Ltd.,\n      No. 11-cv-22855, 2013 WL 3295951 (S.D. Fla. Apr. 18, 2013) .......................................12, 19\n\n  Jackson Inv. Grp., LLC v. Thomas,\n     325 F. Supp. 3d 1334 (N.D. Ga. 2017) ....................................................................................11\n\n  Maloney v. Ollie\u2019s Bargain Outlet Holdings, Inc.,\n     518 F. Supp. 3d 772 (S.D.N.Y. 2021)......................................................................................19\n\n  Marlite, Inc. v. Eckenrod,\n    No. 10-cv-23641, 2012 WL 3614212 (S.D. Fla. Aug. 20, 2012) ......................................13, 18\n\n  Martin v. Kijakazi,\n    No. 22-cv-20469, 2023 WL 2623315 (S.D. Fla. Mar. 24, 2023) ........................................5, 10\n\n  Mizzaro v. Home Depot, Inc.,\n     544 F.3d 1230 (11th Cir. 2008) .............................................................................11, 12, 13, 20\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 5 of 27\n\n\n\n\n  Mogensen v. Body Cent. Corp.,\n    15 F. Supp. 3d 1191 (M.D. Fla. 2014) ...............................................................................10, 19\n\n  N. Collier Fire Control & Rescue Dist. Firefighter Pension Plan v. MDC Partners, Inc.,\n     No. 15-cv-6034, 2016 WL 5794774 (S.D.N.Y. Sep. 30, 2016) ..............................................17\n\n  Next Century Commc\u2019ns. Corp. v. Ellis,\n     318 F.3d 1023 (11th Cir. 2013) ...............................................................................................10\n\n  Patel v. Ga. Dep\u2019t BHDD,\n     485 F. App\u2019x 982 (11th Cir. 2012) ..........................................................................................20\n\n  Phillips v. Scientific-Atlanta, Inc.,\n     374 F.3d 1015 (11th Cir. 2004) ...............................................................................................11\n\n  Pritchard v. Apyx Medical Corp.,\n      No. 8:19-cv-00919-SCB-AEP, 2020 WL 1180731 (M.D. Fla. Mar. 11, 2020) ......................10\n\n  Ronconi v. Larkin,\n     253 F.3d 423 (9th Cir. 2001) ...................................................................................................17\n\n  S.E.C. v. Morgan Keegan & Co.,\n      678 F.3d 1233 (11th Cir. 2012) .............................................................................................6, 9\n\n  Tellabs, Inc. v. Makor Issues & Rights, Ltd.,\n      551 U.S. 308 (2007) ...........................................................................................................11, 17\n\n  Thorpe v. Walter Inv. Mgmt., Corp.,\n     111 F. Supp. 3d 1336 (S.D. Fla. 2015) ....................................................................................12\n\n  Vitalone v. Logitech Int\u2019l,\n      No. C 11-03855 RS, 2012 WL 13041992 (N.D. Cal. July 13, 2012) ......................................10\n\n  Williams v. McNeil,\n     557 F.3d 1287 (11th Cir. 2009) .............................................................................................5, 9\n\n  Willis v. Bowman,\n     No. 4:23-cv-40, 2023 WL 3337247 (S.D. Ga. May 10, 2023) ..................................................8\n\n  Woods v. Barnett Bank of Ft. Lauderdale,\n    765 F.2d 1004 (11th Cir. 1985) ...............................................................................................11\n\n  RULES\n\n  17 CFR 240.10b-5 ..........................................................................................................................20\n\n  Fed. R. Civ. P. 9(b) ......................................................................................................................1, 5\n\n  Fed. R. Civ. P. 72(b)(3)....................................................................................................................5\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 6 of 27\n\n\n\n\n  S.D. Fla. Mag. J. R. 4(b) ..................................................................................................................5\n\n  STATUTES\n\n  15 U.S.C. \u00a7 78u-4(b)(1) ...................................................................................................................5\n\n  28 U.S.C. \u00a7 636(b)(1) ......................................................................................................................5\n\n  Private Securities Litigation Reform Act of 1995, 15 U.S.C. \u00a7 78u-4 et seq. .......................1, 5, 19\n\n  Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. \u00a7 78j(b) ..................................20\n\n  Section 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. \u00a7 78t(a) ...................................20\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 7 of 27\n\n\n\n\n         Defendants John Fieldly, Jarrod Langhans, and Toby David (together, the \u201cIndividual\n  Defendants\u201d) and Celsius Holdings, Inc. (\u201cCelsius\u201d) submit this response to Lead Plaintiff\u2019s\n  Objections (the \u201cObjections\u201d or \u201cObj.\u201d) (ECF No. [76]) to Magistrate Judge Reinhart\u2019s Report and\n  Recommendation (the \u201cR&R\u201d) (ECF No. [74]) on Defendants\u2019 Motion to Dismiss (ECF No. [64])\n  (the \u201cMotion\u201d) the Amended Complaint for Violations of the Federal Securities Laws (ECF No.\n  [57]) (the \u201cAC\u201d).1\n  I.     INTRODUCTION\n         On December 4, 2025, Magistrate Judge Bruce Reinhart issued a thorough, thirty-five-page\n  opinion recommending this Court dismiss Lead Plaintiff\u2019s claims that Celsius and the Individual\n  Defendants violated the federal securities laws. The R&R rejected the AC\u2019s theory of alleged\n  fraud, based on statements made by Defendants concerning a distribution agreement announced\n  August 1, 2022 (the \u201cDistribution Agreement\u201d) between Celsius and an independent distributor of\n  Celsius beverages, PepsiCo, Inc. (\u201cPepsi\u201d). The AC alleges that Defendants\u2019 statements misled\n  the market by conflating sales of product to Pepsi under the Distribution Agreement (\u201csell-in\u201d)\n  and sales to end consumers (\u201csell-out\u201d or \u201cvelocity\u201d), thereby misrepresenting demand for Celsius\n  products. The AC also alleges that Defendants represented robust sales but were purportedly\n  aware of a glut of Celsius product in Pepsi\u2019s warehouses that would result in a downturn in future\n  Pepsi orders.\n         In addition to the particularity requirements for pleading fraud under Federal Rule of Civil\n  Procedure 9(b), the AC\u2019s securities fraud claims are subject to heightened pleading standards under\n  the Private Securities Litigation Reform Act of 1995, 15 U.S.C. \u00a7 78u-4 et seq. (the \u201cPSLRA\u201d).\n  The R&R faithfully applied these heightened pleading requirements, and Eleventh Circuit\n  precedent, to conclude the AC warranted dismissal because it failed to plead falsity or scienter.\n         On December 18, 2025, Lead Plaintiff filed the Objections, mischaracterizing the R&R\u2019s\n  holdings and its careful analysis. The Court should reject the Objections and adopt the R&R.\n         The Court should adopt the R&R\u2019s holding that the AC fails to plead falsity. The R&R\n  held that the alleged misstatements were not actionable because they were not materially false or\n  misleading. (R&R at 15\u201325). The R&R considered the challenged statements in context, as the\n  PSLRA requires, and concluded that investors were \u201cwell aware\u201d that Celsius recognized revenue\n\n  1\n   The AC is cited herein as (\u201c\u00b6 _\u201d). Pinpoint citations to the R&R, the parties\u2019 briefing, and exhibits\n  refer to the page numbers generated by the CM/ECF system that appear at the top of each page.\n\n                                                    1\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 8 of 27\n\n\n\n\n  when product was delivered to Pepsi, as Celsius reports each quarter in its public filings, not to the\n  ultimate retail consumer, and that Celsius disclosed information about Pepsi\u2019s initial inventory\n  build and Pepsi\u2019s responsibility for inventory management. Id. at 18, 24. The R&R also concluded\n  that Defendants\u2019 statements concerning revenue growth and velocity did not conflate those two\n  metrics. Id. at 25. Finally, the R&R held the remaining alleged misstatements concerned mere\n  expressions of corporate optimism, not actionable as a matter of law. Id. at 18\u201319.\n          In the face of this careful analysis, the Objections argue the R&R erred by considering\n  disclosures made after the date of challenged May 9, 2023 statements, in its assessment of whether\n  they were misleading in light of the \u201ctotal mix\u201d of information known to investors. (Obj. at 12\u2013\n  14). But this is a blatant distortion of the R&R, which limits its analysis of the May 9, 2023\n  statements to information contemporaneously disclosed. (R&R at 24\u201325). The Objections\n  similarly misconstrue the R&R\u2019s analysis of statements it deemed not adequately alleged to be\n  false, as well as its consideration of immaterial \u201cpuffery\u201d statements, or corporate optimism,\n  arguing the R&R failed to consider the statements in context. (Obj. at 15\u201317). In reality, the R&R\n  did just that, considering the contested statements in the light of Celsius\u2019s robust disclosures, the\n  statements in their entirety, and the AC\u2019s allegations. (R&R at 16\u201319). The Objections also raise\n  a new theory, claiming the R&R failed to consider certain statements as actionable omissions,\n  rather than misstatements. (Obj. at 15\u201316). But omissions must still be material, and there is no\n  duty to disclose information already known to the market. The R&R held that investors were\n  aware of the allegedly omitted facts, including the distinction between sales to Pepsi and sales to\n  consumers. (R&R at 24). Thus, the Objections fail to undermine the R&R\u2019s well-reasoned rulings\n  on falsity.\n          As discussed further below, the R&R thoroughly applied Eleventh Circuit precedent to\n  view the challenged statements in context and concluded they were not actionable.\n          The Court should adopt the R&R\u2019s holding that the AC does not plead scienter. The\n  R&R also held that the AC did not plead, for each of the Defendants, particularized facts giving\n  rise to scienter, the requisite strong inference of a culpable state of mind. (R&R at 25\u201335). The\n  R&R concluded the AC failed to allege any facts to show that Defendants had access to\n  information contradicting their public statements. Id. at 28\u201329. In reaching this conclusion, the\n  R&R conducted a holistic inquiry, considering allegations by former employee confidential\n  witnesses (\u201cCWs\u201d) and allegations of insider stock sales, to conclude those allegations did not give\n\n                                                    2\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 9 of 27\n\n\n\n\n  rise to a strong inference of severe recklessness for each Defendant that is at least as compelling\n  as opposing inferences, as is required in this Circuit. Id. at 26\u201333.\n           In response, the Objections claim the R&R applied an erroneous \u201cactual knowledge\u201d\n  standard to scienter, based on a single sentence in which the R&R rejected Lead Plaintiff\u2019s own\n  argument that the CW allegations demonstrated Defendants were \u201caware\u201d of a glut of inventory\n  in Pepsi warehouses. (Obj. at 18\u201319). The R&R\u2019s 10-page discussion of scienter, however,\n  repeatedly references and applies this Circuit\u2019s severe recklessness precedent, and conducts a\n  thorough inquiry of the AC\u2019s insider trading and CW allegations to conclude the scienter element\n  was not well pled. (R&R at 25\u201335). As discussed in detail below, the Objections\u2019 remaining\n  arguments on scienter are also unavailing, and primarily amount to an improper attempt to rehash\n  arguments the R&R properly considered and rejected. (Obj. at 19\u201325).\n         For these reasons, and the reasons set forth in Defendants\u2019 Motion and below, the Court\n  should overrule Lead Plaintiff\u2019s Objections, adopt the R&R, and dismiss the AC in its entirety.\n  II.    FACTUAL BACKGROUND\n         Celsius is an energy drink company based in Boca Raton, Florida, and sells its products in\n  the U.S. and internationally.2 (Ex. A at 2, 6).3 The Individual Defendants are current Celsius\n  executives. Mr. Fieldly has served as Celsius\u2019s Chief Executive Officer since 2018, and as\n  Chairman of the Board of Directors of Celsius since 2020. (\u00b6 26). Mr. Langhans is Celsius\u2019s\n  Chief Financial Officer and has served in that role since April 2022. (\u00b6 27). Mr. David is Celsius\u2019s\n  Chief of Staff, a position he assumed in March 2024. (\u00b6 28).\n         On August 1, 2022, after rigorous arm\u2019s-length negotiations, Celsius announced the\n  Distribution Agreement, making Pepsi Celsius\u2019s primary customer and distributor in the U.S., and\n  its preferred distributor internationally. (Ex. B at 2, 6, 15). The Distribution Agreement positioned\n  Celsius to gain immediate scale and accelerate market share through access to Pepsi\u2019s well-\n  developed distribution network. Id. at 5\u20138. In other words, access to Pepsi\u2019s distribution network\n  would expand the availability of Celsius products in various channels, including food service,\n\n  2\n    Lead Plaintiff again represents to the Court that Celsius \u201csold diet pills, had a run-in with the\n  FTC, and was dogged by allegations of operating as a Pyramid scheme.\u201d (Obj. at 8). This brazen\n  mischaracterization is not even alleged in the AC, which attributes the same allegations to a\n  separate company. (\u00b6 38).\n  3\n   Unless otherwise noted, referenced exhibits are those filed with the Declaration of Elizabeth\n  Clark accompanying Defendants\u2019 Motion to Dismiss. (ECF No. [64-1]).\n\n                                                    3\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 10 of 27\n\n\n\n\n  convenience, vending, college campuses, concession, and military installations. Id.\n         From the start, Celsius disclosed how revenue from sales to Pepsi would be recognized.\n  Celsius attached a copy of the Distribution Agreement to its quarterly filing following the\n  transaction and explained in subsequent filings that Celsius would \u201crecognize revenues when\n  control of the underlying goods are transferred to Pepsi.\u201d (Ex. C at 16); (Ex. L at 221). The terms\n  of the Distribution Agreement also made clear that Pepsi alone determined how much Celsius\n  product it needed. (Ex. L at 240). Put simply, the market was aware that Pepsi was responsible\n  for ordering the amount of product that it deemed appropriate based on its knowledge of its own\n  distribution network and of that network\u2019s future demand for product; Celsius was tasked with\n  filling the orders but had no control over Pepsi\u2019s inventory levels or ordering practices.\n         In addition, Celsius\u2019s public filings with the Securities and Exchange Commission (the\n  \u201cSEC\u201d), press releases, and earnings calls throughout 2023 disclosed that the new Distribution\n  Agreement empowered Pepsi to exercise sole control of Pepsi\u2019s inventory, and made clear Pepsi\n  would need time to determine the appropriate level of inventory to meet the demands of Pepsi\u2019s\n  customers. (Ex. L at 240); (Ex. G. at 16). Celsius also disclosed that it benefited from \u201cinventory\n  building\u201d by Pepsi because Celsius revenue increased as Pepsi filled its warehouses and\n  distribution chain with Celsius product. (Ex. F at 4, 15); (Ex. H at 7). Because of these public\n  statements the market knew:\n     \u2022   Celsius benefited from Pepsi increasing inventory levels in Q1 2023, and the market\n         expected \u201cdistributor inventory levels\u201d to \u201cremain elevated at least over the next few\n         months\u201d (Ex. F at 9, 14);\n     \u2022   Pepsi, as an independent distributor, was responsible for \u201cfind[ing] the right inventory\n         levels\u201d (Ex. G at 16);\n     \u2022   Pepsi engaged in an \u201cinventory build\u201d in Q3 2023 that boosted Celsius\u2019s reported revenue\n         (Ex. H at 7);\n     \u2022   Pepsi was responsible for determining whether it would engage in any \u201cmanagement\n         around the inventory [] going into Q1 [2024]\u201d Id. at 10; and\n     \u2022   Celsius did not control how Pepsi managed its inventory and could not make any\n         \u201cguarantees\u201d to the market around its inventory levels as a result. Id.\n         On May 28, 2024, Nielsen released a report on weekly retail data. (\u00b6 113). Analysts\n  digesting that report noted that the data indicated a slowdown in consumer sales (sell-out) and\n  perceived that Pepsi might reduce its Celsius inventory as a result. (\u00b6\u00b6 113\u2013114). Celsius\n  disclosed on September 4, 2024, that Pepsi orders for the third quarter had declined. (\u00b6\u00b6 121\u2013124).\n\n                                                   4\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 11 of 27\n\n\n\n\n  Celsius\u2019s gross and operating margins allegedly fell as a result, as reflected in its third quarter 2024\n  financial results. (\u00b6\u00b6 128\u2013129). Seizing on the stock drop that followed, the present action was\n  filed a few weeks later on November 22, 2024. (ECF No. [57]).\n  III.    APPLICABLE LEGAL STANDARD\n          A district court reviews de novo those portions of a report and recommendation to which a\n  party objects. 28 U.S.C. \u00a7 636(b)(1); Fed. R. Civ. P. 72(b)(3). \u201cObjections must specifically\n  identify the portions of the proposed findings and recommendation to which objection is made and\n  the specific basis for objection.\u201d S.D. Fla. Mag. J. R. 4(b). But \u201cportions of a magistrate judge\u2019s\n  report and recommendation to which no proper objection has been made are reviewed for clear\n  error.\u201d Martin v. Kijakazi, No. 22-cv-20469, 2023 WL 2623315, at *2 (S.D. Fla. Mar. 24, 2023).\n  The Court \u201cmay accept, reject, or modify, in whole or in part, the findings or recommendations\n  made by the magistrate judge.\u201d 28 U.S.C. \u00a7 636(b)(1).\n          The District Court \u201cneed not consider new evidence or arguments submitted after a report\n  and recommendation issues.\u201d Barnes v. Leon Cnty. Sch. Bd., No. 4:22-cv-78-AW-MAF, 2025 WL\n  895216, at *1 n.2 (N.D. Fla. Mar. 24, 2025) (citing Williams v. McNeil, 557 F.3d 1287, 1291 (11th\n  Cir. 2009)). The Eleventh Circuit has observed that \u201c[t]o require a district court to consider\n  evidence not previously presented to the magistrate judge would effectively nullify the magistrate\n  judge\u2019s consideration of the matter and would not help to relieve the workload of the district court.\u201d\n  Williams, 557 F.3d at 1292 (internal quotation marks omitted).\n  IV.     ARGUMENT\n          A.      The Court Should Adopt the R&R\u2019s Holding that the AC Failed to Plead\n                  Material Misstatements or Omissions.\n          Lead Plaintiff objects to the R&R\u2019s conclusions that the statements alleged in the AC are\n  not \u201cmaterially false,\u201d \u201camount to corporate optimism and opinion,\u201d and \u201cdo not rise to the level\n  of materially misleading.\u201d (Obj. at 11). As discussed below, these objections are unfounded and\n  should be rejected by the Court.\n          To successfully plead falsity, a complaint \u201cmust \u2018specify each statement alleged to have\n  been misleading [and] the reason or reasons why the statement is misleading.\u2019\u201d Garfield v. NDC\n  Health Corp., 466 F.3d 1255, 1262 (11th Cir. 2006) (quoting 15 U.S.C. \u00a7 78u-4(b)(1)). Because\n  securities fraud claims must satisfy the pleading requirements of Rule 9(b) and the PSLRA, they\n  must be pled \u201cin detail,\u201d including the \u201cwho, what, when, where, and how.\u201d Id. (citation omitted).\n  A misrepresentation or omission is only actionable if it is material, meaning, \u201cin the light of the\n\n                                                     5\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 12 of 27\n\n\n\n\n  facts existing at the time, a reasonable investor, in the exercise of due care, would have been misled\n  by it.\u201d Carvelli v. Ocwen Fin. Corp., 934 F.3d 1307, 1317 (11th Cir. 2019) (internal quotations\n  omitted). \u201cIn other words, materiality depends on whether a \u2018substantial likelihood\u2019 exists that a\n  reasonable investor would have viewed a misrepresentation or omission as significantly alter[ing]\n  the \u2018total mix\u2019 of information made available.\u201d Id. (quoting S.E.C. v. Morgan Keegan & Co., 678\n  F.3d 1233, 1245 (11th Cir. 2012)). To assess materiality, the Court must consider the alleged\n  misstatements and omissions in the full context of the company\u2019s public disclosures. In re KLX,\n  Inc. Sec. Litig., 232 F. Supp. 3d 1269, 1276\u201377 (S.D. Fla. 2017).\n                 1.      The R&R correctly held Defendants\u2019 statements regarding the alleged\n                         \u201cpipe fill\u201d were not materially false.\n         Lead Plaintiff objects to the R&R\u2019s conclusions concerning the following statements made\n  during Celsius\u2019s May 9, 2023 first quarter earnings call: \u201cthe increase in distribution didn\u2019t slow\n  the overall velocity\u201d; \u201c[t]he sales are moving quicker out of the register\u201d; and \u201cit is not really a\n  pipe fill.\u201d (Obj. at 12\u201315). Lead Plaintiff claims the R&R erroneously relied on disclosures made\n  after May 9, 2023, to determine the challenged statements were not misleading in light of the \u201ctotal\n  mix\u201d of information available to the market. Id. at 12\u201313. This misreads the R&R, which\n  discusses these later-in-time disclosures in its summation of Defendants\u2019 broader arguments on\n  falsity. (R&R at 22\u201323). In fact, the R&R quotes the June 1, 2023, August 8, 2023, and November\n  7, 2023 disclosures in its discussion of alleged misstatements concerning Pepsi\u2019s inventory\n  generally (id.) but does not cite them in its analysis of the May 9, 2023 statements. (Id. at 24\u201325).\n         Instead, the R&R correctly identified information contemporaneously disclosed to\n  investors at the time of the May 9, 2023 statements, undercutting any allegation that the market\n  was misled. First, the R&R noted that \u201cinvestors were well-aware that Celsius recognized revenue\n  when it delivered products to Pepsi, and that the earnings reports were based on sales to Pepsi, not\n  sales to the ultimate consumers.\u201d (R&R at 24). There is no question that those disclosures had\n  been in place, and known to the market, since the Distribution Agreement was announced in 2022.4\n  Second, the R&R concluded \u201cdisclosures regarding Pepsi\u2019s buildup of inventory, increase in the\n  length of time products were sitting in the warehouses, and uncertainty as to how Pepsi would\n\n\n  4\n    (See, e.g., Ex. K at 72) (\u201cFor product sales under the Distribution Agreement, the Company will\n  recognize revenues when control of the underlying goods are transferred to Pepsi based on the\n  contractual terms of noncancellable purchase orders issued by Pepsi.\u201d); (Ex. L at 240).\n\n                                                    6\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 13 of 27\n\n\n\n\n  manage the inventory going forward indicate that investors had information relating to the\n  inventory.\u201d Id. These disclosures were similarly made prior to, or on the same date as, the\n  contested May 2023 statements.5 Third, the R&R concluded that \u201cCelsius\u2019 disclosures show\n  differentiation between sales to Pepsi and other sales, plus statistics showing large quantities of\n  Celsius products entering the marketplace through large retailers such as Sam\u2019s Club and\n  Amazon.\u201d (R&R at 25). These disclosures were also made at the same time as the contested\n  statements.6 (R&R at 24\u201325). Finally, the R&R concluded \u201cthe fact that Defendants mentioned\n  revenue growth in the same dialogue as velocity or other metrics does not conflate these metrics\n  or show that Defendants were trying to bury weak consumer sales under high revenue growth.\u201d\n  Id. Accordingly, each of these concurrent facts was appropriate for the R&R to cite in the\n  discussion of whether the May 9, 2023 statements were materially misleading given the \u201ctotal\n  mix\u201d of information available. See Carvelli, 934 F.3d at 1317. In addition, the statement that sales\n  were \u201cnot really a pipe fill\u201d was made in response to an analyst question about the foodservice\n  industry specifically, and not sales to Pepsi as a whole.7\n\n  5\n    As reflected in the May 9, 2023 Earnings Call Transcript, analysts distinguished between an\n  \u201cinitial channel fill . . . versus reorders derived from sell through at retail\u201d and said they understood\n  \u201cdistributor inventory levels [were] going to remain elevated at least over the next few months.\u201d\n  (Ex. F at 9, 14). Celsius also disclosed that it \u201cexperienced an inventory build\u201d due to \u201canticipated\n  retailer resets and to build inventory levels,\u201d it \u201csaw Pepsi increase inventory levels,\u201d it\n  \u201ccontinue[d] to see opportunities for future efficiencies\u201d around inventory, and it \u201csaw an increase\n  in the days inventory outstanding within the mixing centers.\u201d Id. at 4, 5. Similarly, Celsius\u2019s\n  March 1, 2023 10-K specifically cautioned that, \u201c[i]f the inventory of our products held by our\n  distributors and/or retailers is too high, they will not place orders for additional products, which\n  could unfavorably impact our future sales and adversely affect our operating results.\u201d (Ex. K at\n  20).\n  6\n    An analyst asked Mr. Fieldly if data showed \u201cthe same kind of like the lag between scanned and\n  reported\u201d or whether there was \u201cany line of sight [Celsius had] to some lumpiness or more or less\n  or any kind of swings in that regard?\u201d (Ex. F at 13). In response, Mr. Fieldly stated, \u201cI think\n  there\u2019s probably some lumpiness in regards to kind of the value chain as it\u2019s going through the\n  Pepsi mixing centers, and then into their sales barns, and then into the customers and then cycling\n  through. . . . You also have the mix of our Amazon business as well as our club business, and that\u2019s\n  in there. It didn\u2019t grow at those faster rates.\u201d Id. Similarly, Celsius\u2019s Q1 2023 financials explicitly\n  distinguish sales to Pepsi, Amazon, and others, and note the total amount of net sales to Pepsi\n  separately. (See, e.g., Ex. C at 10, 20).\n  7\n    (See Ex. F at 9, 13). Lead Plaintiff has not objected to Judge Reinhart\u2019s exercise of discretion to\n  consider the footnote with Defendants\u2019 argument on this point. Instead, Lead Plaintiff suggests\n  the fact that foodservice accounted for 10% of sales to Pepsi could make this statement material.\n  But this overlooks the R&R\u2019s detailed analysis that, given all of the information available to the\n                                                     7\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 14 of 27\n\n\n\n\n         Lead Plaintiff now attempts to reframe its argument by claiming the revenue recognition\n  disclosures are irrelevant because investors \u201cdid not know the degree to which the Company\u2019s\n  sales constituted channel fill as opposed to sales to consumers.\u201d (Obj. at 14). But this argument\n  also fails. Investors knew exactly how much of the Company\u2019s sales were to Pepsi, because\n  Celsius disclosed this information in its financials.8 Furthermore, as the R&R concluded, none of\n  the challenged statements \u201cconflate\u201d sales to Pepsi with sales to consumers, or otherwise suggest\n  that they were the same. (R&R at 25). In fact, Celsius\u2019s disclosures consistently distinguished\n  between the two metrics, and frequently referenced third-party scanner data tracking sales to\n  consumers, separate and apart from Celsius\u2019s reported revenue. (R&R at 24\u201326); (Ex. F at 4\u20135,\n  Ex. G at 4\u20135, Ex. H at 5).\n         Finally, Lead Plaintiff quotes specific statements made by Mr. Fieldly during the August\n  8, 2023 earnings call, and by Mr. Langhans during the November 7, 2023 earnings call, seemingly\n  to suggest the R&R failed to correctly assess their falsity when it considered them in its analysis\n  of disclosures. (Obj. at 13); (R&R at 22\u201323). But Lead Plaintiff quotes snippets out of context to\n  try to distort the R&R\u2019s careful analysis.9 More importantly, the AC does not allege that either of\n  these statements is false or misleading. Compare (\u00b6\u00b6 82, 88), with (Obj. at 13). Lead Plaintiff\n  cannot amend the AC\u2019s allegations through argument in its Objections. Willis v. Bowman, No.\n  4:23-cv-40, 2023 WL 3337247, at *1 (S.D. Ga. May 10, 2023) (\u201cAttempts to amend pleadings in\n  objections are ineffective.\u201d).\n\n\n  market, a reasonable investor would not have been misled by this statement, notwithstanding the\n  amount of foodservice sales attributable to Pepsi as a whole.\n  8\n   (See, e.g., Ex. C at 20) (\u201cNet sales to Pepsi amounted to $156.5 million for three months ended\n  March 31, 2023 and are included in revenue on the accompanying consolidated statements of\n  operations and comprehensive income.\u201d).\n  9\n    For example, Mr. Fieldly\u2019s response to the analyst question about days in inventory (\u201cDIO\u201d) and\n  whether Pepsi was still trying to find the right inventory levels speaks for itself: \u201cSo, the DIO is\n  very consistent quarter-over-quarter. And that goes back to in Q4 [2022], we felt inventories were\n  low. So, they are at a level that we would prefer they stay. But obviously it\u2019s part of the\n  partnership, so it\u2019s not just us. Now, will that change? It could. Again, right now, Q1 and Q2\n  has been consistent from a DIO perspective. We\u2019d expect that to continue on into Q3. When we\n  get to Q4, I\u2019m not sure that\u2019ll stay at its kind of, what I\u2019ll call, preferred run rate or if it would\n  go down, that\u2019s something that our partner will have to make that decision in terms of how they\n  want to kind of end the year prior to moving into the Q1 2024.\u201d (Ex. G at 16) (emphasis added).\n  The fact that Celsius felt Pepsi\u2019s levels were low in Q4 2022, the earliest days of the Distribution\n  Agreement, is unremarkable, and consistent with Defendants\u2019 other statements on this issue.\n\n                                                    8\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 15 of 27\n\n\n\n\n         Thus, the R&R correctly concluded that, in light of the \u201ctotal mix\u201d of information available\n  to the market, a reasonable investor would not have been misled by the May 9, 2023 statements.\n  The Court should adopt the R&R\u2019s holdings finding these statements non-actionable.\n                 2.      The R&R correctly identified statements as not materially false or\n                         misleading.\n         As to the remaining alleged misstatements, the Objections challenge two aspects of the\n  R&R\u2019s holdings: the determination that certain statements did not plead falsity, and the conclusion\n  that other statements constitute non-actionable puffery. The R&R\u2019s holdings with respect to each\n  are supported by thorough analysis and well-settled precedent, as addressed separately below.\n                         a.      The R&R correctly found the AC failed to plead falsity with respect\n                                 to certain statements.\n         Lead Plaintiff objects to the R&R\u2019s holding that the AC failed to plead falsity with respect\n  to certain statements by Mr. Langhans. (R&R at 16\u201317). This objection focuses solely on Mr.\n  Langhans\u2019s statements that \u201c[t]he primary factors behind the increase in North American sales\n  volume were related to our integration into the Pepsi distribution system\u201d and that Celsius had\n  \u201cseen [] velocity increase\u201d (\u00b6 69). (Obj. at 16).\n         Lead Plaintiff complains that the R&R should have conducted an inquiry \u201cinto the meaning\n  of\u201d these statements. (Obj. at 16). The R&R did just that. The R&R assessed these statements in\n  detail to conclude they would not have been viewed by a reasonable investor as having\n  significantly altered the \u201ctotal mix\u201d of information made available. (R&R at 18) (citing Morgan\n  Keegan, 678 F.3d at 1245). The R&R also considered the full text of the statements (rather than\n  the AC\u2019s sliced and diced version), along with the actual allegations of falsity in the AC, to\n  conclude Lead Plaintiff had not met its burden to \u201cspecify each allegedly misleading statement\n  and explain why it is misleading.\u201d City of Hollywood Police Officers\u2019 Ret. Sys. v. Citrix Sys., Inc.,\n  649 F. Supp. 3d 1256, 1265 (S.D. Fla. 2022) (emphasis added).\n         Lead Plaintiff now appears to argue that these statements were actionable under an\n  omissions theory. (Obj. at 15). As an initial matter, new arguments such as this need not be\n  considered by the Court. Williams, 557 F.3d at 1291. Moreover, it is well settled that \u201ca duty of\n  disclosure only arises when an omitted fact was necessary to render a preexisting statement not\n  misleading, or because securities law otherwise required its disclosure.\u201d In re KLX, Inc. Sec. Litig.,\n  232 F. Supp. 3d at 1276 (internal quotation marks omitted). As the R&R noted, investors knew at\n  this time that the sales to Pepsi \u201ccontributed significantly to Celsius\u2019 sales and revenue\u201d and that\n\n                                                      9\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 16 of 27\n\n\n\n\n  \u201cCelsius recognized sales revenue at the time Pepsi received the products.\u201d (R&R at 18). Thus,\n  Lead Plaintiff cannot advance a theory of fraud when the allegedly omitted fact (the distinction\n  between sales to Pepsi and sales to consumers) was already known to the market. The facts alleged\n  in the AC are thus distinguishable from Pritchard v. Apyx Medical Corp., No. 8:19-cv-00919-\n  SCB-AEP, 2020 WL 1180731, at *4\u20135 (M.D. Fla. Mar. 11, 2020), which concerned alleged\n  misrepresentations about the status of the company\u2019s products with federal regulators. There, the\n  court expressly noted the statements were \u201ctargeted\u201d to the alleged fraud and not \u201cwide-ranging\n  statement[s]\u201d about the company\u2019s health. Id. Accordingly, the Court should adopt the R&R\u2019s\n  holdings as to these statements.\n                         b.      The R&R correctly identified nonactionable puffery.\n         Lead Plaintiff objects to the R&R\u2019s conclusion that certain statements were non-actionable\n  puffery as \u201cmistaken.\u201d (Obj. at 16). The Court should reject this argument because the R&R\u2019s\n  well-reasoned analysis of statements of corporate optimism, or puffery, comports with well-settled\n  Eleventh Circuit precedent.\n         Puffery is defined as \u201cgeneralized, vague, nonquantifiable statements of corporate\n  optimism\u201d that the Eleventh Circuit and other courts have held inactionable, because it is\n  immaterial to a reasonable investor as a matter of law. Carvelli, 934 F.3d at 1318. The R&R\n  identified as corporate optimism statements \u201creferencing Pepsi\u2019s \u2018massive distribution,\u2019\n  Defendants\u2019 confidence that sales were increasing and growth was strong, that the distribution\n  system was a \u2018key factor\u2019 in Celsius\u2019 growth, and that Celsius was in a good place.\u201d (R&R at 19)\n  (citing \u00b6\u00b6 77, 90\u201391, 108, 111, 117).10 These statements mirror language routinely held immaterial\n  as a matter of law. Next Century Commc\u2019ns. Corp. v. Ellis, 318 F.3d 1023, 1028\u201329 (11th Cir.\n  2013) (\u201ccharacterization of a company\u2019s performance as \u2018strong\u2019 constitutes puffery\u201d); Mogensen\n  v. Body Cent. Corp., 15 F. Supp. 3d 1191, 1211\u201313 (M.D. Fla. 2014) (holding that optimistic\n  statements relating to sales results, performance, drivers, and strategies were puffery); Vitalone v.\n  Logitech Int\u2019l, No. C 11-03855 RS, 2012 WL 13041992, at *6 (N.D. Cal. July 13, 2012)\n  (allegations that consumer demand was \u201cstrong\u201d and inventory levels were \u201chealthy\u201d were\n\n\n\n  10\n     These are the only puffery statements addressed in the Objections. (Obj. at 16). Defendants\n  respond only to the challenged statements, and the R&R\u2019s findings on remaining statements are\n  reviewed only for clear error. Martin, 2023 WL 2623315, at *2.\n\n                                                   10\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 17 of 27\n\n\n\n\n  puffery); City of Warren Police & Fire Ret. Sys. v. Foot Locker, Inc., 412 F. Supp. 3d 206, 223\u2013\n  24 (E.D.N.Y. 2019) (descriptions of relationships with \u201cworld-class\u201d vendors puffery).\n         The authority cited by Lead Plaintiff is unavailing. In In re Equifax Inc. Securities\n  Litigation, the court rejected arguments that specific statements and representations concerning\n  that company\u2019s cybersecurity efforts and its commitment to data security were not puffery, against\n  a backdrop of a later data breach. 357 F. Supp. 3d 1189, 1224 (N.D. Ga. 2019). The Equifax court\n  concluded that statements concerning cybersecurity made specifically \u201cto assure investors that\n  Equifax\u2019s systems were secure\u201d could be material to a reasonable investor. Id. In contrast, the\n  general statements by Defendants here expressing confidence around Celsius\u2019s growth and sales\n  overall would not have misled a reasonable investor and fall far short of the standard for\n  materiality. Thus, the R&R correctly identified these statements as puffery, and the District Court\n  should adopt the R&R\u2019s holding.\n         B.      The Court Should Adopt the R&R\u2019s Holding that the AC Failed to Plead\n                 Scienter.\n         The Objections to the R&R\u2019s holding that the AC \u201cfails to adequately allege that\n  Defendants acted with scienter\u201d distort the R&R\u2019s analysis and should be rejected by the Court.\n  (Obj. at 17). As the R&R recognized, to satisfy the PSLRA\u2019s scienter pleading requirements, a\n  complaint must allege \u201cparticular facts that give rise to a strong inference that the defendant acted\n  in a severely reckless manner.\u201d Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1287 (11th Cir.\n  1999) (emphasis added). Statements made with \u201c[s]evere recklessness\u201d involve \u201cnot merely\n  simple or even inexcusable negligence, but an extreme departure from the standards of ordinary\n  care, and that present a danger of misleading buyers or sellers which is either known to the\n  defendant or is so obvious that the defendant must have been aware of it.\u201d Jackson Inv. Grp., LLC\n  v. Thomas, 325 F. Supp. 3d 1334, 1349 (N.D. Ga. 2017) (citing Woods v. Barnett Bank of Ft.\n  Lauderdale, 765 F.2d 1004, 1010 (11th Cir. 1985)). \u201cTo qualify as \u2018strong\u2019 . . . an inference of\n  scienter must be more than merely plausible or reasonable \u2013 it must be cogent and at least as\n  compelling as any opposing inference of nonfraudulent intent.\u201d Tellabs, Inc. v. Makor Issues &\n  Rights, Ltd., 551 U.S. 308, 314 (2007). Notably, a \u201ccomplaint must allege facts supporting a strong\n  inference of scienter \u2018for each defendant with respect to each violation.\u2019\u201d Mizzaro v. Home Depot,\n  Inc., 544 F.3d 1230, 1238 (11th Cir. 2008) (emphasis added) (quoting Phillips v. Scientific-Atlanta,\n  Inc., 374 F.3d 1015, 1016 (11th Cir. 2004)).\n\n\n                                                   11\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 18 of 27\n\n\n\n\n                 1.      The R&R applied the correct pleading standard for scienter.\n         From the R&R\u2019s robust, 10-page discussion of scienter, Lead Plaintiff cherry-picks a single\n  sentence to argue the R&R applied the incorrect standard. (Obj. at 18\u201319). In that sentence, the\n  Court noted that the CW allegations failed to \u201cshow the individual Defendants had actual\n  knowledge of specific inventory levels and could foresee Pepsi\u2019s intentions with its inventory.\u201d\n  (R&R at 28). Contrary to Lead Plaintiff\u2019s assertion, the R&R was not applying an \u201cactual\n  knowledge\u201d standard to its assessment of scienter, as evidenced by its discussion of the Eleventh\n  Circuit\u2019s \u201csevere recklessness\u201d standard. (R&R at 10). Instead, the R&R referenced \u201cactual\n  knowledge\u201d merely in response to Lead Plaintiff\u2019s own argument that the CW allegations\n  demonstrated \u201cDefendants monitored Pepsi\u2019s inventory levels and were aware of\u201d supposed\n  excess inventory sitting in Pepsi\u2019s warehouses. (R&R at 26) (emphasis added). The R&R\n  disagreed, concluding that the CW allegations concerning inventory levels were too attenuated,\n  and unspecific, to link the Individual Defendants to any awareness of a \u201cglut\u201d at Pepsi. (R&R at\n  28\u201329). The R&R\u2019s statements on \u201cactual knowledge\u201d were directly limited to its rejection of\n  Lead Plaintiff\u2019s argument that the CW allegations show the Individual Defendants were aware of\n  facts rebutting their public statements.\n         In addition, the bulk of authority cited by the R&R in its consideration of the CW\n  allegations applies the Eleventh Circuit\u2019s severe recklessness standard, supporting the R&R\u2019s\n  holdings. See In re Royal Caribbean Cruises Ltd., No. 11-cv-22855, 2013 WL 3295951, at *18\n  (S.D. Fla. Apr. 18, 2013) (holding scienter not pled under severe recklessness standard where\n  confidential witness allegations of \u201csales reports\u201d and \u201cmeetings\u201d lacked \u201cspecific facts\u201d to show\n  that the defendants \u201chad specific information that contradicted the public statements\u201d); see\n  Mizzaro, 544 F.3d at 1247\u201348 (applying severe recklessness scienter standard to hold confidential\n  witness allegations inadequate where they did not \u201csay that any one of the individual defendants\n  ever discussed the alleged fraud\u201d and did not \u201ceven claim[] to know\u201d the individual defendants);\n  In re Ocwen Fin. Corp. Sec. Litig., No. 14-cv-81057, 2015 WL 12780960, at *8\u201310 (S.D. Fla. Sep.\n  4, 2015) (deeming confidential witness allegations deficient under a severe recklessness pleading\n  standard); see Thorpe v. Walter Inv. Mgmt., Corp., 111 F. Supp. 3d 1336, 1379 (S.D. Fla. 2015)\n  (holding confidential witness allegations inadequate under severe recklessness standard where\n\n\n\n\n                                                 12\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 19 of 27\n\n\n\n\n  they were \u201cdevoid of any allegations showing\u201d the confidential witnesses communicated with the\n  individual defendants).11\n         Accordingly, the R&R was unequivocal in its application of the Eleventh Circuit\u2019s severe\n  recklessness standard to conclude scienter had not been adequately pled, and the Court should\n  reject the Objections\u2019 distortion of this analysis.\n                  2.     Defendants\u2019 own statements do not demonstrate scienter.\n         Lead Plaintiff asserts that the R&R overlooks its allegations that Defendants\u2019 own\n  statements give rise to an inference of scienter. (Obj. at 19). As an initial matter, this objection\n  amounts to an improper attempt by Lead Plaintiff to rehash an argument that was already fully\n  briefed. But it \u201cis improper for an objecting party to submit papers to a district court which are\n  nothing more than a rehashing of the same arguments and positions taken in the original papers\n  submitted.\u201d Marlite, Inc. v. Eckenrod, No. 10-cv-23641, 2012 WL 3614212, at *2 (S.D. Fla. Aug.\n  20, 2012) (internal citations and punctuation omitted). The Court need not consider it for that\n  reason alone.\n         In any event, Defendants\u2019 statements do not support scienter, and the R&R was right to\n  disregard this argument. Lead Plaintiff again mischaracterizes a February 29, 2024 statement by\n  Mr. Fieldly to argue that Defendants admitted to \u201clook[ing] at [Pepsi\u2019s] inventory levels.\u201d (Obj.\n  at 20). But as Defendants previously explained in their briefing on the Motion, this statement from\n  Celsius\u2019s fourth quarter 2024 earnings call discussed a lookback at Pepsi\u2019s historic inventory\n  levels, quarter-over-quarter: \u201cI think when we looked at our number one customer [Pepsi] and we\n  look at their inventory levels, they\u2019re fairly consistent with Q3 to Q4.\u201d (Ex. I at 8) (emphasis\n  added). Nor can Mr. David\u2019s September 4, 2024 statement that Pepsi was holding \u201cseveral million\n  more cases over the past 1.5 years than they really needed to hold\u201d (\u00b6 124) demonstrate that he\n  possessed the requisite state of mind, as Lead Plaintiff contends. This statement, expressing Mr.\n  David\u2019s opinion about Pepsi\u2019s past inventory levels, with the full benefit of hindsight, sheds no\n  light on Defendants\u2019 contemporaneous knowledge of Pepsi\u2019s inventory levels during the Class\n  Period. See In re Aaron\u2019s Sec. Litig., No. 17-cv-2270, 2018 WL 11343741, at *7 (N.D. Ga. Sep.\n\n\n  11\n     In the sole case cited by the R&R that applied an \u201cactual knowledge\u201d standard to forward-\n  looking statements, the court also discussed the standard Eleventh Circuit courts use to assess\n  confidential witness allegations generally. See In re Mako Surgical Corp. Sec. Litig., No. 12-cv-\n  60875, 2013 WL 2145661, at *12 (S.D. Fla. May 15, 2013) (citing Mizzaro, 544 F.3d at 1240).\n\n                                                    13\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 20 of 27\n\n\n\n\n  26, 2018) (reliance on statements defendants made at the end of the class period amounted to fraud\n  by hindsight and failed to plead scienter).\n         Lead Plaintiff misrepresents the remaining statements (Obj. at 19\u201320), which discuss the\n  impact of Pepsi\u2019s historical inventory levels (\u00b6\u00b6 100\u201302, 105, 112, 117, 118) or optimism\n  concerning Pepsi\u2019s ability to maintain sufficient inventory to service retailers. (\u00b6 108). None of\n  these statements demonstrate a real-time knowledge of an alleged \u201cglut\u201d of inventory in Pepsi\n  warehouses, much less show how Defendants could have known that Pepsi would reduce orders\n  of product from Celsius in the future.\n         Grasping for straws, Lead Plaintiff claims that Defendants\u2019 choice to speak about\n  inventory, in combination with the significance of the Distribution Agreement to Celsius,\n  evidences scienter. (Obj. at 21). This argument also fails.12 As discussed above, Defendants never\n  purported to possess knowledge of Pepsi\u2019s real-time inventory needs or its plans for future orders.\n  In fact, Defendants were transparent with investors that Pepsi alone was responsible for\n  determining whether it would engage in any \u201cmanagement around the inventory\u201d and that Celsius\n  did not control how Pepsi managed its inventory and could not make any \u201cguarantees\u201d to the\n  market around its inventory levels as a result. (Ex. H at 10). Accordingly, none of these statements\n  demonstrate that Defendants acted with the requisite state of mind.\n         Finally, Lead Plaintiff takes issue with the R&R\u2019s conclusion that allegations certain\n  employees at Celsius could access Pepsi inventory data are too attenuated to show the Defendants\n  acted with the requisite state of mind. (Obj. at 20\u201321). Lead Plaintiff again cites Doller v. Hertz\n  Global Holdings, Inc., No. 2:24-cv-513-KCD-DNF, 2025 WL 2896919 (M.D. Fla. Oct. 10, 2025),\n  a non-binding opinion Lead Plaintiff raised in an earlier-filed Notice of Supplemental Authority\n  (ECF No. [72]). Doller does not support Lead Plaintiff\u2019s position.\n         In Doller, the court concluded that allegations defendants had access to \u201cinternal systems\u201d\n  containing information contradicting their challenged statements \u201cin painstaking detail\u201d\n\n\n  12\n     Lead Plaintiff also attempts to resurrect its core operations argument to assert that, because sales\n  to Pepsi were significant to Celsius, this contributes to an inference of scienter. (Obj. at 16). But\n  the \u201cEleventh Circuit has never adopted\u201d the core operations doctrine, holding \u201cit very rarely can\n  create a strong inference of scienter on its own,\u201d and may only be used in limited instances to\n  support otherwise sufficient scienter allegations. City of Warren Gen. Emps. Ret. Sys. v.\n  Teleperformance SE, No. 23-cv-24580, 2024 WL 2320209, at *18 (S.D. Fla. May 22, 2024)\n  (citations omitted).\n\n                                                    14\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 21 of 27\n\n\n\n\n  sufficiently pled scienter. 2025 WL 2896919, at *6. In contrast, the AC fails to allege that the\n  Individual Defendants even could access the data at issue. The only alleged source of \u201con hand\n  inventory\u201d data\u2014Pepsi\u2019s SAP system\u2014is not alleged to have been accessible by the Individual\n  Defendants. (\u00b6 61). More importantly, the information that the Doller individual defendants were\n  alleged to have had access to directly contradicted their public statements. 2025 WL 2896919, at\n  *6. Here, there are no allegations showing Defendants had access to information that demonstrated\n  Pepsi held a glut of product. As a result, even if the AC had alleged the Individual Defendants\n  could access or were otherwise aware of Pepsi\u2019s real-time inventory data, it did not plead\n  Defendants could have known Pepsi was purchasing \u201ctoo much\u201d and would reduce future orders,\n  the issue at the heart of Lead Plaintiff\u2019s fraud claim.\n         The other cases Lead Plaintiff cites also concern distinguishable situations when\n  defendants were alleged to have had access to information directly contradicting their public\n  statements. In re Netbank, Inc. Sec. Litig., No. 1:07-CV-2298-BBM, 2009 WL 2432359, at *8\n  (N.D. Ga. Jan. 29, 2009) (holding scienter pled when the company\u2019s auditor resigned and the SEC\n  notified defendants of related accounting misstatements but defendants failed to publicly disclose\n  that information); Davidco Invs., LLC v. Anchor Glass Container Corp., No. 8:04-cv-2561-T-24-\n  EAJ, 2006 WL 547989, at *20 (M.D. Fla. Mar. 6, 2006) (individual defendants were alleged to\n  have had access to information that directly contradicted their public statements).\n         Accordingly, pointing to Defendants\u2019 own statements cannot save the AC\u2019s deficient\n  scienter allegations, and the Court should reject this argument.\n                 3.      The R&R considered and rejected the insider trading allegations.\n         Lead Plaintiff claims the R&R erred by failing to consider certain alleged stock sales that\n  occurred prior to the start of the Class Period in its assessment of whether the Individual\n  Defendants\u2019 trades were suspicious. (Obj. at 21\u201322). This objection is another distortion of the\n  R&R, which conducted a thorough review of the alleged insider stock sales and concluded that,\n  even in light of certain \u201cvague and conclusory\u201d allegations of earlier trades, the AC did not allege\n  \u201cdetails about the Individual Defendants\u2019 trading practices,\u201d and failed to show scienter. (R&R at\n  31).\n         In this Circuit, \u201c[s]tock sales by insiders are only relevant to scienter when they are\n  suspicious.\u201d Citrix Sys., Inc., 649 F. Supp. 3d at 1266. \u201cAnd they are suspicious if the level of\n  trading is dramatically out of line with prior trading practices at times calculated to maximize the\n\n\n                                                    15\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 22 of 27\n\n\n\n\n  personal benefit from undisclosed inside information.\u201d Id. (internal quotation marks omitted). A\n  plaintiff has \u201cthe burden of showing that sales by insiders were in fact unusual or suspicious in\n  amount and in timing.\u201d Druskin v. Answerthink, Inc., 299 F. Supp. 2d 1307, 1335 (S.D. Fla. 2004).\n  The R&R held that Lead Plaintiff failed to carry that burden because the AC pleads insufficient\n  information about the Individual Defendants\u2019 pre-Class Period trading. (R&R at 31). Thus, it is\n  impossible to \u201cdetermine from the complaint that the sales of [even] large numbers of shares [were]\n  suspicious enough to add to an inference of scienter.\u201d Edward J. Goodman Life Income Tr. v.\n  Jabil Cir., Inc., 594 F.3d 783, 793 (11th Cir. 2010).\n           Lead Plaintiff now argues, for the first time, that the AC alleges a small subset of trades\n  that present a comparative trading history for the Individual Defendants, and that the R&R\n  overlooked these trades when it ruled the AC failed to allege pre-Class Period trades, \u201cnor any\n  details about the individual Defendants\u2019 trading practices.\u201d13 (R&R at 22). Lead Plaintiff is\n  wrong.\n           Defendants discussed the AC\u2019s contradictory lock-up trading allegations and lack of\n  sufficient trading history at length in their Motion. (Motion at 14\u201317). Lead Plaintiff\u2019s Opposition\n  did not argue that the lock-up trading allegations demonstrated the Individual Defendants\u2019 pre-\n  Class Period trading patterns. In fact, as the R&R noted, Lead Plaintiff\u2019s \u201cResponse [did] not\n  address Defendants\u2019 arguments regarding these shortcomings\u201d at all. (R&R at 31). For Lead\n  Plaintiff to raise this new argument now, at this stage in the proceedings, is improper, and the\n  Court need not consider it. See Barnes, 2025 WL 895216, at *1 n.2. At any rate, the R&R noted\n  in its assessment of the alleged insider trades that it considered and rejected what it viewed as\n  \u201cvague and conclusory allegations\u201d of earlier trades by the Individual Defendants. (R&R at 31).\n  Thus, although the R&R did not expressly cite these trades in its stock sales analysis, it is obvious\n\n\n  13\n     These stock sales are referenced in the AC in connection with contradictory allegations\n  concerning the lock-up agreements executed in parallel with the Distribution Agreement. The AC\n  alleges that stock sales that occurred \u201cin violation\u201d of the Lock-Up Agreements evidence scienter,\n  (\u00b6\u00b6 163\u201368), but also alleges that the Individual Defendants \u201chad motive to keep Celsius\u2019s stock\n  price inflated through the end of the lock-up period, when they would be able to sell their shares\u201d\n  (\u00b6 55) and that they made false statements during the first and second quarters of 2023 for the\n  express purpose of inflating the market in advance of the expiration of the lock-up period. (\u00b6\u00b6 84\u2013\n  85). These allegations are illogical, as Defendants cannot have been both motivated to keep\n  Celsius stock artificially inflated through the expiration of an alleged lock-up period while also\n  allegedly trading in violation of the lock-up period.\n\n                                                   16\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 23 of 27\n\n\n\n\n  the R&R weighed them.\n         Moreover, the R&R\u2019s ultimate conclusion that the insider trading allegations failed to\n  establish the requisite strong inference of scienter is correct. The Objections point to just three (3)\n  pre-Class Period trades by Mr. Fieldly, and two (2) pre-Class Period trades by Mr. Langhans, to\n  argue that the AC shows a discrepancy in the Individual Defendants\u2019 trading history. (Obj. at 22).\n  But the AC does not allege that these trades represent a complete picture of their pre-Class Period\n  trading activity. For Lead Plaintiff to now suggest that this small subset of stock sales somehow\n  provides a sufficient pattern of activity to assess the Individual Defendants\u2019 trading practices\n  strains credulity. Even if the R&R did not address the alleged pre-Class Period stock sales in\n  detail, this isolated data cannot establish a baseline for the Individual Defendants\u2019 trading history,\n  let alone show that their Class Period trades were \u201cdramatically out of line with prior trading\n  practices at times calculated to maximize the personal benefit from undisclosed inside\n  information.\u201d Citrix Sys., Inc., 649 F. Supp. 3d at 1267.\n         Similarly, the fact that the AC alleges Mr. David did not trade before the Class Period does\n  not support Lead Plaintiff\u2019s argument. The AC alleges Mr. David made just two (2) trades during\n  the Class Period, and one of them was made to pay tax liabilities, undercutting any inference of\n  suspicion. (Ex. O at 2); see N. Collier Fire Control & Rescue Dist. Firefighter Pension Plan v.\n  MDC Partners, Inc., No. 15-cv-6034, 2016 WL 5794774, at *20 (S.D.N.Y. Sep. 30, 2016).\n  Mr. David also maintained 70% of his Celsius stock. See Citrix Sys., Inc., 649 F. Supp. 3d at\n  1268. Thus, the allegation that he did not trade prior to the Class Period cannot support an\n  inference of scienter, and the R&R\u2019s conclusion that the AC lacked sufficient \u201cdetails about the\n  individual Defendants\u2019 trading practices\u201d to identify suspicious stock sales was correct. (R&R at\n  31).\n         Finally, the R&R\u2019s thorough analysis of the timing of the alleged insider stock sales\n  demonstrates that they were not suspicious. The R&R relied on the AC\u2019s stock price graph to\n  conclude the overwhelming majority of the Individual Defendants\u2019 sales occurred several months\n  before Celsius stock reached peak prices. (R&R at 32). Courts have routinely held that sales, such\n  as these, occurring well before stock prices peak are not suspicious. Ronconi v. Larkin, 253 F.3d\n  423, 435 (9th Cir. 2001) (sales of stock at prices approximately 25% below peak share price several\n  months prior were not suspicious) (abrogated on other grounds by Tellabs, Inc., 551 U.S. at 315\u2013\n  18); N. Collier Fire Control & Rescue Dist. Firefighter Pension Plan, 2016 WL 5794774, at *19\n\n                                                    17\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 24 of 27\n\n\n\n\n  (\u201c[S]tock sales occurring even a few months before the alleged revelation of the fraud do not raise\n  a strong inference of scienter.\u201d); In re Astea Int\u2019l Inc. Sec. Litig., No. 06-1467, 2007 WL 2306586,\n  at *15 (E.D. Pa. Aug. 8, 2007) (gap between sale and corrective disclosure of \u201cfive months\n  weakens the inference that the individual defendants were motivated to cash out before [the\n  relevant disclosure]\u201d).\n         The authority cited by Lead Plaintiff does not hold otherwise. In In re Faro Technologies\n  Securities Litigation, the court deemed scienter pled based on \u201cmuch more\u201d than the allegations\n  of insider stocks sales, because the plaintiff in that case pled \u201cspecific allegations that [the\n  individual defendants] knew of the true nature\u201d of the alleged fraud. 534 F. Supp. 2d 1248, 1264\n  (M.D. Fla. 2007). Similarly, in In re Miller Industries Securities Litigation, the court held the\n  trading at the beginning of the class period supported an inference of scienter where the plaintiff\n  had shown the stock sales alleged were \u201cdramatically out of line with prior trading practices.\u201d 12\n  F. Supp. 2d 1323, 1332 (N.D. Ga. 1998). And in City of Sunrise General Employees\u2019 Retirement\n  Plan v. FleetCor Techs., the court rejected arguments that if the individual defendants had waited\n  until six months after the class period to sell shares, they would have made more money, limiting\n  its ruling to whether they \u201cacted with scienter during the Class Period.\u201d No. 1:17-CV-2207-LMM,\n  2018 WL 4293143, at *12 (N.D. Ga. May 15, 2018). None of these cases hold, or even suggest,\n  that the R&R\u2019s analysis of the timing of the stock sales alleged in the AC was incorrect or\n  otherwise inappropriate.\n         Accordingly, the Court should adopt the R&R\u2019s holding that the insider stock sales do not\n  contribute to a strong inference of scienter.\n                 4.         The R&R correctly held the CW allegations did not contribute to a\n                            strong inference of scienter.\n         Lead Plaintiff rehashes an argument fully briefed by the parties and considered in the R&R\n  to conclude its assessment of the CW allegations was wrong. (Obj. at 24). This improper attempt\n  at a second bite at the apple should be rejected by the Court. Marlite, Inc., 2012 WL 3614212, at\n  *2.\n         Lead Plaintiff makes the unremarkable point that allegations by confidential former\n  employees generally have been credited by courts in upholding scienter allegations. (Obj. at 24\u2013\n  25). This misses the mark. There is no dispute that allegations by anonymous former employees\n\n\n\n\n                                                  18\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 25 of 27\n\n\n\n\n  may be considered under the PSLRA, and Defendants have not argued otherwise. 14 As the R&R\n  recognized, however, confidential witness allegations must \u201cflesh out at least some of the details\n  of the conversations, meetings, and internal documents that they describe\u201d to be afforded weight.\n  In re Ocwen Fin. Corp. Secs. Litig., 2015 WL 12780960 at *10 (quoting Mogensen, 15 F. Supp.\n  3d at 1219\u201320). The CW allegations at issue here fall far short of that standard, failing to connect\n  Defendants to any information contradicting their public statements.\n         At most, the CW allegations show that Celsius was tracking its sales to Pepsi (\u00b6\u00b6 65\u201366),\n  and that certain low-level, non-party employees at Celsius (not the Individual Defendants) had the\n  ability to access snapshots of Pepsi\u2019s inventory through its SAP systems. (\u00b6\u00b6 61, 67). The AC\u2019s\n  remaining conclusory allegations concerning meetings where \u201cyear-over-year financial data\u201d was\n  presented (\u00b6 65), along with a supposed \u201cdaily sales report\u201d (\u00b6 66), and \u201caged inventory analysis\u201d\n  (\u00b6 67) are similarly insufficient, as they \u201cfail to specify exactly what information was contained in\n  the report or how said information contradicted Defendants\u2019 public statements, as is required to\n  show scienter.\u201d Maloney v. Ollie\u2019s Bargain Outlet Holdings, Inc., 518 F. Supp. 3d 772, 781\n  (S.D.N.Y. 2021); see also In re Royal Caribbean Cruises Ltd., 2013 WL 3295951, at *17\u201318.\n         The cases cited by Lead Plaintiff do not hold otherwise. In Grand Lodge of Pennsylvania\n  v. Peters, the court concluded the CW allegations placed individual defendants in meetings and in\n  teleconference \u201cin which the . . . scheme was discussed.\u201d 550 F.Supp.2d 1363, 1370 (M.D. Fla.\n  2008) (emphasis added). In contrast, even construed in the most generous light, the CWs allege\n  only that Messrs. Fieldly and Langhans attended monthly meetings where slides were presented\n  containing \u201cyear-over-year financial data, including revenue, EBITDA, and adjusted EBITDA,\u201d\n  broken down by distribution channel. (\u00b6 65). Unlike Grand Lodge, there are no allegations in the\n  AC to show how this historic financial data made Defendants aware that Pepsi would reduce its\n  orders of Celsius product, or otherwise contradicted their public statements. Similarly, Defendants\n  previously distinguished In re 21st Century Holding Co. Securities Litigation, No. 07-cv-61057,\n  2008 WL 5749572, at *9 (S.D. Fla. Nov. 7, 2008), and Edge v. Tupperware Brands Corp., No.\n  07-cv-61057, 2023 WL 6310236, at *6 (M.D. Fla. Sept. 28, 2023), in their Reply in support of the\n  Motion. (Reply at 8\u20139) (ECF No. [71]). Both of those cases discussed allegations linking\n  defendants to information directly contrary to their public statements, unlike the CW allegations\n\n  14\n    In fact, in their Reply in support of the Motion, Defendants specifically noted they \u201cdo not\n  quibble with the credibility of confidential witnesses generally.\u201d (Reply at 7 n.6).\n\n                                                   19\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 26 of 27\n\n\n\n\n  here.\n          Accordingly, the R&R properly held the CW allegations, taken together, cannot give rise\n  to the requisite strong inference of scienter that is at least as compelling as opposing inferences,\n  and the Court should adopt the R&R\u2019s holding.\n          C.     The Court Should Dismiss the Section 20 Claim.\n          Where, such as here, a complaint fails to adequately allege a primary violation of Section\n  10(b) or Rule 10b-5, the claim for controlling person liability under Section 20(a) must also be\n  dismissed. See In re Galectin Therapeutics, Inc., 843 F.3d 1257, 1276 (11th Cir. 2016) (\u201cControl\n  person liability . . . cannot exist in the absence of a primary violation.\u201d) (internal quotation marks\n  omitted); Mizzaro, 544 F.3d at 1237. The Court should dismiss the Section 20(a) claim.\n          D.     Lead Plaintiff\u2019s Request for Leave to Amend Was Improper.\n          In the Response in Opposition to Defendants\u2019 Motion, Lead Plaintiff included a single\n  sentence requesting permission to replead if the Motion were granted. (Opposition at 25) (ECF\n  No. [68]). Lead Plaintiff now objects on the basis that the R&R did not discuss its request for\n  leave to amend. Such a \u201cbare request is not sufficient to raise the issue of whether [it] should be\n  granted leave to amend their complaint further.\u201d In re Mako Surgical Corp. Sec. Litig., 2013 WL\n  2145661, at *13. \u201cInstead, when requesting leave to amend, a plaintiff must either attach a\n  proposed amended complaint or describe the substance of the proposed amendments.\u201d Id. Lead\n  Plaintiff did not include any such information with its original request and has not attempted to do\n  so here. Moreover, as discussed in Defendants\u2019 Motion and the R&R, Lead Plaintiff\u2019s entire theory\n  of fraud is flawed, and amendment would be futile. See Patel v. Ga. Dep\u2019t BHDD, 485 F. App\u2019x\n  982, 982 (11th Cir. 2012) (\u201cFutility justifies the denial of leave to amend where the complaint, as\n  amended, would still be subject to dismissal.\u201d).\n          Accordingly, Lead Plaintiff\u2019s request to amend was improper and futile, and the Court\n  should dismiss the AC with prejudice.\n  V.      CONCLUSION\n          For the foregoing reasons, and the reasons discussed in Defendants\u2019 Motion, the Court\n  should adopt the R&R in its entirety and dismiss the AC with prejudice.\n\n\n\n\n                                                     20\n\fCase 9:24-cv-81472-MD Document 77 Entered on FLSD Docket 01/02/2026 Page 27 of 27\n\n\n\n\n  Date: January 2, 2026                      Respectfully submitted,\n                                             JONES FOSTER P.A.\n\n\n                                              BY /s/ Scott G. Hawkins\n                                              SCOTT G. HAWKINS\n                                              Florida Bar No. 460117\n                                              505 South Flagler Drive\n                                              Suite 1100\n                                              West Palm Beach, Florida 33401\n                                              Telephone: (561) 659-3000\n                                              SHawkins@jonesfoster.com\n                                                and\n                                              Additional Counsel (Admitted Pro Hac Vice)\n                                              ALSTON & BIRD\n                                              JOSEPH G. TULLY\n                                              ELIZABETH GINGOLD CLARK\n                                              COURTNEY QUIR\u00d3S\n                                              1201 West Peachtree Street, Suite 4900\n                                              Atlanta, Georgia 30309\n                                              Telephone: (404) 881-7000\n                                              Facsimile: (404) 881-7777\n                                              joe.tully@alston.com\n                                              elizabeth.clark@alston.com\n                                              courtney.quiros@alston.com\n\n                                              Attorneys for Defendants Celsius Holdings, Inc., John\n                                              Fieldly, Jarrod Langhans, and Toby David\n\n\n\n\n                                   CERTIFICATE OF SERVICE\n\n           I hereby certify that on January 2, 2026, I caused the foregoing to be filed electronically\n  with the Court\u2019s Case Management/Electronic Filing System (\u201cCM/ECF\u201d). Notice of this filing\n  was sent to all parties of record by operation of the Notice of Electronic Filing System, and the\n  parties to this action may access the filing through CM/ECF.\n\n\n\n                                                /s/ Scott G. Hawkins\n                                                SCOTT G. HAWKINS\n  #7544000 v2 33851-00001\n\f","ocr_status":2,"date_upload":"2026-05-19T19:53:35.978049-07:00","document_number":"77","attachment_number":null,"pacer_doc_id":"051029290178","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Response to Objection to Report and Recommendations","acms_document_guid":""}],"date_created":"2026-01-02T13:54:28.722107-08:00","date_modified":"2026-07-24T00:10:04.405953-07:00","date_filed":"2026-01-02","time_filed":"15:59:10","entry_number":77,"recap_sequence_number":"2026-01-02.001","pacer_sequence_number":313,"description":"RESPONSE TO OBJECTION to 74 Report and Recommendations by Celsius Holdings, Inc., Toby David, John Fieldly, Jarrod Langhans. (Hawkins, Scott) (Entered: 01/02/2026)","tags":[]}],"entries_total":"https://www.courtlistener.com/api/rest/v4/docket-entries/?count=on&docket=69406698&page_size=40"}