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Ovelmen, Natascha Viljoen, Thomas R. Palmer against James Karas entered by Chief Judge Daniel D. Domenico on 9/17/2026. (rkeec) (Entered: 09/17/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/474541219/","id":474541219,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/69603503/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/490043994/","id":490043994,"tags":[],"absolute_url":"/docket/69603503/52/karas-v-newmont-corporation/","date_created":"2026-08-14T14:06:41.652235-07:00","date_modified":"2026-09-09T04:52:55.121320-07:00","sha1":"9cd712848688edd57b864c5957f196da1d65af01","page_count":27,"file_size":436443,"filepath_local":"recap/gov.uscourts.cod.240976/gov.uscourts.cod.240976.52.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cod.240976/gov.uscourts.cod.240976.52.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 1 of 27\n\n\n\n\n IN THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLORADO\n Judge Daniel D. Domenico\n\n Civil Action No. 1:25-cv-00341-DDD-KAS\n\n JAMES KARAS, individually and on behalf of all others similarly situ-\n ated,\n\n Plaintiff,\n\n v.\n\n NEWMONT CORPORATION, THOMAS R. PALMER,\n NATASCHA VILJOEN, and KARYN F. OVELMEN,\n\n Defendants.\n\n\n ORDER GRANTING MOTION TO DISMISS\n\n\n Plaintiff James Karas alleges that Newmont Corporation and its of-\n ficers, Thomas Palmer, Natascha Viljoen, and Karyn Ovelmen, made\n false or misleading statements about Newmont\u2019s newly acquired gold\n mines that artificially inflated its stock price. And when the truth about\n those mines was revealed, the stock price tumbled, harming sharehold-\n ers. Plaintiff sued, alleging violations of Sections 10(b) and 20(a) of the\n Exchange Act.\n\n Defendants moved to dismiss. Doc. 45. For the reasons stated below,\n the motion to dismiss is granted.\n\n\n\n\n -1-\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 2 of 27\n\n\n\n\n BACKGROUND 1\n\n Newmont Corporation mines gold. In 2024, it operated 17 mines\n across 13 countries. Doc. 45 at 6. In 2023, Newmont purchased New-\n crest, another gold-mining company. In the deal, Newmont acquired two\n new Tier 1 mines: Lihir in Papua New Guinea and Brucejack in North-\n west Canada. A Tier 1 mine is one projected to produce 500,000 ounces\n of gold each year over at least ten years with relatively lower costs and\n in a stable country. See Doc. 39 \u00b6 32. Lihir reported 17.5 million ounces\n of gold reserves at the time of the acquisition, and Brucejack reported\n 3.1 million ounces.\n\n But these mines were more trouble than expected. Lihir was de-\n scribed during a 2023 earnings call as a \u201cperennial underperformer\u201d un-\n der Newcrest. Id. \u00b6 47. Even though Newmont expressed confidence\n that they could turn the asset around, it struggled to do so. The com-\n plaint alleges, through the testimony of Former Employee 1, before the\n acquisitionthe mine suffered from \u201cmachinery breakdowns, ocean\n dumping, and, despite a bunker, the potential for waste to overflow into\n the pond which fed back into the tanks.\u201d Id. \u00b6 58. Most troublesome were\n the autoclaves\u2014containers in which ore is exposed to high pressure,\n high temperatures, and oxygen to aid gold extraction. One of the auto-\n claves had not been operational for a year before the Newmont purchase.\n Former Employee 1 alleges that Newmont knew of these and other is-\n sues when it established a new reliability plan during the 2024 transi-\n tion. Id. \u00b6 63. Former Employee 2 similarly alleges frequent shutdowns\n due to electrical system failures and other machinery breakdowns.\n\n\n\n\n 1 Unless otherwise noted, all facts come from Plaintiff\u2019s Amended\n Complaint with the original emphasis. Doc. 39.\n\n\n -2-\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 3 of 27\n\n\n\n\n Brucejack had its own problems. Former Employee 3 stated that\n Brucejack was never a Tier 1 mine. Id. \u00b6 80. The mine had a \u201cnuggety\u201d\n ore body, meaning the concentration of gold on the site had a high vari-\n ance. The simple result is that it is very difficult to estimate the amount\n of gold that will actually be produced. And the complaint alleges that\n Newmont overestimated production. It further alleges that, even if New-\n mont did not know about Brucejack\u2019s nuggety ore body at the time of the\n purchase, by July 2024, it should have known due to frequent reconcili-\n ation drilling. Id. \u00b6 90.\n\n On October 23, 2024, Newmont issued a press release announcing\n disappointing earnings, lower production, and increased cost. Ms.\n Viljoen said of Lihir\n\n [O]ur operational focus at Lihir will remain on reducing\n complexity to deliver more sustainable and predictable re-\n sults at this Tier 1 operation. In the short term, these ef-\n forts will result in lower than initially anticipated\n production next year due to lower throughput to al-\n low for asset reliability improvement work and\n changes to the mine sequencing, including the estab-\n lishment of wider ramps to manage surface water\n and repositioning all roads to be more effective and\n efficient.\n Id. \u00b6 146. Similarly, about Brucejack she said\n\n [W]e have taken a step back this year to do the devel-\n opment and drilling work to ensure that we improve\n our knowledge of this nuggety ore body. We continue to\n experience periods of exceptional high grades, including a\n 1-day average of 52 grams per ton last month and an aver-\n age of over 20 grams per ton in the same week. As a result\n of the work we are doing, we anticipate that the gold\n production next year from Brucejack will also be\n largely consistent with this year, all around 100,000\n ounces lower than our initial guidance for 2025 that\n we provided back in February.\n\n\n\n\n -3-\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 4 of 27\n\n\n\n\n Id. Mr. Palmer confirmed that reduced production and increase costs\n would continue into 2025 \u201cdriven by the lower than previously ex-\n pected production from two of our new operations in Lihir and\n Brucejack.\u201d Id. \u00b6 148.\n\n Once investors learned that these literal gold mines were not figura-\n tive gold mines, Newmont\u2019s stock price dropped 14.7% from $57.74 to\n $49.25 per share.\n\n APPLICABLE LAW\n\n Section 10(b) of the Securities Exchange Act, 15 U.S.C. \u00a7 78j(b), \u201cpro-\n hibit[s] making any material misstatement or omission in connection\n with the purchase or sale of any security.\u201d Smallen v. W. Union Co., 950\n F.3d 1297, 1304 (10th Cir. 2020) (quoting Halliburton Co. v. Erica P.\n John Fund, Inc., 573 U.S. 258, 267 (2014)). To recover damages for a\n violation of Section 10(b), Plaintiffs must allege \u201c(1) a material misrep-\n resentation or omission by the defendant; (2) scienter; (3) a connection\n between the misrepresentation or omission and the purchase or sale of\n a security; (4) reliance upon the misrepresentation or omission; (5) eco-\n nomic loss; and (6) loss causation.\u201d Halliburton, 573 U.S. at 267.\n\n Defendants move to dismiss, arguing that Plaintiff has not properly\n alleged an actionable misstatement or scienter. Under Federal Rule of\n Civil Procedure 12(b)(6), a court\u2019s role is to \u201cdetermine whether the com-\n plaint sufficiently alleges facts supporting all the elements necessary to\n establish an entitlement to relief under the legal theory proposed.\u201d For-\n est Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).\n\n The Private Securities Litigation Reform Act of 1995, Pub. L. No.\n 104\u201367, 109 Stat. 737, applies a heightened pleading standard to both\n the material misrepresentation and scienter elements. In re Level 3\n Commc\u2019ns, Inc. Sec. Litig., 667 F.3d 1331, 1333 (10th Cir. 2012). \u201cIn\n\n\n\n -4-\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 5 of 27\n\n\n\n\n order to overcome a motion to dismiss, a complaint must \u2018specify each\n statement alleged to have been misleading, the reason or reasons why\n the statement is misleading, and, if an allegation regarding the state-\n ment or omission is made on information and belief, the complaint shall\n state with particularity all facts on which that belief is formed.\u2019\u201d Id.\n (quoting 15 U.S.C. \u00a7 78u\u20134(b)(1)). And \u201cit is not enough for a plaintiff to\n allege generally that the defendant acted with scienter. . . a plaintiff\n must, \u2018with respect to each act or omission alleged . . ., state with partic-\n ularity facts giving rise to a strong inference that the defendant acted\n with the required state of mind.\u2019\u201d Id. (quoting 15 U.S.C. \u00a7 78u\u20134(b)(2)).\n But as with any other motion to dismiss, the court takes all well pled\n factual allegations in the complaint as true. Tellabs, Inc. v. Makor Issues\n & Rts., Ltd., 551 U.S. 308, 322 (2007).\n\n DISCUSSION\n\n I. Motion to Strike\n\n As a threshold matter, Plaintiff moved to strike Defendants\u2019 motion\n to dismiss on the grounds that the motion\u2019s appendices either wrongfully\n exceed the Court\u2019s word limits or are improper for consideration at the\n motion to dismiss stage.\n\n Plaintiff is correct that \u201c[g]enerally, we only consider facts alleged in\n the complaint itself in evaluating the sufficiency of the complaint.\u201d\n Smallen, 950 F.3d at 1305. But a court can also \u201cconsider documents the\n complaint incorporates by reference, documents referred to in the com-\n plaint if the documents are central to the plaintiff\u2019s claim and the parties\n do not dispute the documents\u2019 authenticity, and matters of which a court\n may take judicial notice.\u201d Id. (internal quotations omitted).\n\n I agree with the Defendants that the exhibits fit into those permissi-\n ble categories. Plaintiff does not dispute their authenticity or centrality.\n\n\n\n -5-\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 6 of 27\n\n\n\n\n The Tenth Circuit recognizes that \u201c[i]n securities cases it is not unusual\n to consider documents incorporated by reference into the complaint,\n public documents filed with the [Securities and Exchange Commission],\n and documents the plaintiffs relied upon in bringing suit.\u201d Employees\u2019\n Ret. Sys. of Rhode Island v. Williams Companies, Inc., 889 F.3d 1153,\n 1158 (10th Cir. 2018) (internal quotations omitted). This practice can be\n abused to dispute facts found in the complaint. See Khoja v. Orexigen\n Therapeutics, Inc., 899 F.3d 988, 1003 (9th Cir. 2018). So I am mindful\n that \u201csuch documents may properly be considered only for what they\n contain, not to prove the truth of their contents.\u201d Employees\u2019 Ret. Sys. of\n Rhode Island, 889 F.3d at 1158 (quoting Roth v. Jennings, 489 F.3d 499,\n 511 (2d Cir. 2007)).\n\n I also see no issue with Defendants\u2019 chart of the alleged misstate-\n ments. The chart merely reproduces and numbers the allegedly false\n misleading statements. This chart contains no argument and so does not\n flout the Court\u2019s word limits. Like the district court and Tenth Circuit\n in Pluralsight, I adopt the Defendants\u2019 numbering, which I find helpful\n and convenient, but should the chart and complaint differ, I rely \u201csolely\n on the statements as alleged in the complaint.\u201d Indiana Pub. Ret. Sys.\n v. Pluralsight, Inc., 45 F.4th 1236, 1249 n.2 (10th Cir. 2022).\n\n The motion to strike is denied.\n\n II. Motion to Dismiss\n\n A. Actionable Misstatements\n\n Plaintiff alleges that between July and October 2024, Defendants\n made several materially false statements about the financial prospects\n of the company. I begin by reproducing the statements and Plaintiff\u2019s\n allegations about their falsity from the complaint. The statements come\n from the Amended Complaint, and include the emphasis from that\n\n\n\n -6-\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 7 of 27\n\n\n\n\n filing, see Doc. 39 \u00b6\u00b6 110\u201344, but for clarity and consistency, I adopt the\n Defendants\u2019 numbering, see Doc. 45-1.\n\n Statement 1\n\n The first allegedly actionable statement was made in Newmont\u2019s sec-\n ond quarter 2024 press release, issued and filed with the SEC on July\n 24, 2024. It read:\n\n Attributable gold production1 decreased 4 percent to 1,607\n thousand ounces from the prior quarter primarily due to\n lower production at Cerro Negro as a result of the suspen-\n sion of operations during the quarter following the tragic\n fatalities of two members of the Newmont workforce on\n April 9, 2024. Operations at Cerro Negro safely resumed on\n May 24, 2024. In addition, operations were suspended as of\n April 14, 2024 at Telfer, one of Newmont's non-core assets,\n as further work is completed to remediate the safe opera-\n tion of the tailings storage facility. Second quarter pro-\n duction was also impacted by lower production at\n Lihir due to heavy rainfall impacting mine sequenc-\n ing, as well as lower production at Akyem due to lower\n grades as a result of the ongoing stripping campaign. These\n impacts were partially offset by higher production at Por-\n cupine, Brucejack and Pe\u00f1asquito.\n Full year production for 2024 is expected to be second-\n half weighted as previously indicated, with a sequen-\n tial increase weighted towards the fourth quarter.\n The second-half weighting is expected to be driven\n primarily by improved grades at Pe\u00f1asquito, Ahafo and\n Tanami, improved throughput from Lihir and Bodding-\n ton and sequential improvements delivered from our non-\n managed joint venture operations.\n Doc. 39 \u00b6 110. Plaintiff alleges this statement was false and misleading\n because \u201cproduction problems such as outdated and unreliable machin-\n ery, ocean dumping, and potential for waste overflow had already mate-\n rially impacted Lihir\u2019s performance as to both reliability and safety.\u201d Id.\n \u00b6 111.\n\n Statement 2\n\n\n\n -7-\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 8 of 27\n\n\n\n\n The same press release also stated \u201cGold AISC 2 per ounce increased\n 9 percent to $1,562 per ounce compared to the prior quarter primarily\n due to higher CAS 3 and higher sustaining capital spend.\u201d Id.\n \u00b6 112. Plaintiff alleges this statement was misleading because \u201cmaterial\n problems at Lihir and Brucejack relating to both production and costs\n had caused and would continue to cause Newmont to expend more to\n produce each ounce of gold . . ..\u201d Id. \u00b6 113. He adds that \u201c[b]y choosing\n to discuss AISC, Defendants had a duty to disclose these facts.\u201d Id.\n\n Statement 3\n\n The next day, July 25, 2024, during Newmont\u2019s second quarter 2024\n earnings call, Defendants made seven additional statements that Plain-\n tiff alleges were false or misleading. First, Mr. Palmer stated\n\n We delivered solid operational performance as planned,\n keeping us firmly on track to achieve our 2024 guid-\n ance and positioning us to deliver improving finan-\n cial results. These solid results have also enabled us to\n progress our capital allocation priorities, which I\u2019ll touch\n on in a moment. With a continued focus on safely deliver-\n ing, we\u2019ve also made meaningful progress on the 4 key com-\n mitments we made to our shareholders at the start of the\n year.\n Id. \u00b6 114. Plaintiff alleges that \u201cDefendants failed to disclose they knew\n or recklessly disregarded that material adverse circumstances at Lihir\n and Brucejack would materially, adversely impact Newmont\u2019s produc-\n tion and increase its AISC, contracting margins materially.\u201d Id. \u00b6 115.\n\n Statement 4\n\n Mr. Palmer continued:\n\n Looking at the 3 components of our synergy delivery, and\n starting with full potential. We are now advancing into\n\n 2 Lingo for \u201call-in sustaining costs.\u201d\n\n 3 Lingo for \u201ccost applicable to sales.\u201d\n\n\n\n\n -8-\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 9 of 27\n\n\n\n\n the delivery stage of the initiatives we have identified\n at Lihir, Cadia and Red Chris, with the largest value\n drivers coming from our 2 new Tier 1 assets in Lihir\n and Cadia. On our call last quarter, we provided an up-\n date on the opportunities we have identified at Lihir. In\n this quarter, I\u2019ll briefly describe some of the opportunities\n we see in front of us at Cadia. We recently completed our\n full potential diagnosis phase at Cadia, from which\n we have identified a series of initiatives that are ex-\n pected to deliver more than $100 million of value by\n the end of next year.\n Id. \u00b6 116. Plaintiff challenges this statement because of \u201cproduction\n problems and rising AISC at Lihir that had already reduced Newmont\u2019s\n production and decreased its operating margins, materially adversely\n impacting Newmont\u2019s performance for both 3Q2024 and Newmont\u2019s\n near and medium-term financial results.\u201d Id. \u00b6 117.\n\n Statement 5\n\n On the same call, Ms. Viljoen delivered prepared remarks that\n claimed:\n\n Our managed operations delivered solid second quarter re-\n sults in line with our expectations and outlook for the year.\n With a focus on size and efficient production at each\n of our managed operations, we are heading into the\n second half of the year with confidence in our ability\n to deliver on our business plan and the commitments\n Tom reiterated earlier. And similar to the first half of\n the year, our operational results in the third and fourth\n quarters will be largely driven by reduction from our 6\n managed Tier 1 operations.\n Id. \u00b6 118. Plaintiff again states that it is false or misleading to forecast\n efficient production and ability to deliver because of \u201cmaterial produc-\n tion issues plagued at least Newmont\u2019s Lihir and Brucejack\u201d and those\n factual conditions \u201cundermined the basis of Defendants\u2019 statement.\u201d Id.\n at \u00b6 119.\n\n Statement 6\n\n\n\n -9-\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 10 of 27\n\n\n\n\n Ms. Viljoen continued:\n\n And finally, at Lihir, second quarter production de-\n creased from the first quarter primarily due to heavy\n rainfall, which contributed to soft ground conditions\n that in turn impacted mine sequencing. Production\n levels are expected to remain consistent in the third quar-\n ter as the site commences a planned 120-day shutdown of\n the primary autoclave. And just to bring the autoclave\n shutdown into perspective, the process includes not only\n shutting down the autoclave itself, but also removing the\n brick layer at [indiscernible] membrane, inspecting the 5.5-\n meter diameter steel shell, applying a high-temperature\n tolerant membrane and rebricking the 48-meter long struc-\n ture, which is nearly the length of a new Olympic swim-\n ming pool. Once complete, we anticipate gold production\n will return to normal levels in the fourth quarter, position-\n ing Lihir for a strong finish to the year. Taking everything\n into account, we anticipate an increase in gold production\n mix quarter, setting us up to deliver Lihir\u2019s higher produc-\n tion in the fourth quarter.\n Id. \u00b6 120. Plaintiff alleges that this statement is misleading because it\n was not just rain that decreased production at Lihir, but \u201cmaterial, ad-\n verse production issues with both reliability and safety such as outdated\n and unreliable machinery, ocean dumping, and potential for waste over-\n flow . . ..\u201d Id. \u00b6 121.\n\n Statement 7\n\n Ms. Ovelmen also delivered prepared remarks during the call. He\n told investors\n\n And whilst we are pleased with the improvement in free\n cash flow, we are still not satisfied and are working to fur-\n ther improve margins. Looking ahead, we anticipate\n higher free cash flows in the second half of the year\n driven by increased production values and lower unit\n costs, as Tom and Natascha just mentioned. Heading into\n the second half of the year, we remain firmly on track to\n achieve our full year guidance of reduction, cost and capital\n spend. And as Natascha mentioned, production is expected\n\n\n\n - 10 -\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 11 of 27\n\n\n\n\n to increase in the third quarter with the year\u2019s strongest\n performance anticipated in the fourth quarter.\n Id. \u00b6 122. Plaintiff alleges it is false or misleading to tout higher cash\n flows and lower production costs without disclosing the production and\n cost issues at Lihir and Brucejack. Id. \u00b6 123.\n\n Statement 8\n\n At the end prepared remarks, Mr. Palmer reiterated that \u201c[w]e\n safely delivered solid production as planned, keeping us firmly\n on track to meet our full year guidance for both ounces and\n costs.\u201d Id. \u00b6 124. Plaintiff again alleges that this statement is actionable\n because Mr. Palmer failed to disclose that he knew of material issues at\n Lihir and Brucejack. Id. \u00b6 125.\n\n Statement 9\n\n The Defendants took questions from analysists on the earnings call.\n In response to a question from a Scotiabank analyst, Mr. Palmer stated:\n\n Think about -- I made the picture this way, and I think\n you\u2019re not too far off the mark. You certainly got to see the\n synergies getting through -- particularly those coming from\n full potential in the fourth quarter as those programs get\n their momentum up. You\u2019re certainly going to see the high-\n est quarter 4 gold ounces in the fourth quarter. That\u2019s from\n some of our key assets that Natascha covered in her com-\n ments. The 2 non-managed joint ventures, so NGM need to\n deliver on their commitments and they\u2019ve got that strong\n fourth quarter. Our direct costs are pretty stable across\n the year. And certainly what we\u2019re seeing in the first\n half flowing through the second half, pretty stable. So\n I think the picture you\u2019re painting in terms of that third\n quarter weighting to the fourth quarter weighting is a rea-\n sonable position to be thinking about in terms of that\n weight between the third and the fourth quarter. You will\n see a step up in the third and then a step up into the fourth\n to get to our numbers.\n Id. \u00b6 127. Plaintiff alleges that this answer was false or misleading be-\n cause Mr. Palmer knew that production and cost issues at Lihir and\n\n\n - 11 -\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 12 of 27\n\n\n\n\n Brucejack had already and would continue to impact Newmont\u2019s mar-\n gins. Id. \u00b6 128.\n\n Statement 10\n\n On July 25, 2024, Newmont filed its quarterly 10-Q report with the\n SEC. That report stated that \u201c[t]here were no material changes from the\n risk factors set forth under Part I, Business; Item 1A, Risk Factors in\n our Annual Report on Form 10-K for the fiscal year ended December 31,\n 2023, as filed with the SEC on February 29, 2024.\u201d Id. \u00b6 129. Plaintiff\n alleges that statements from that section of the 2023 10-K that New-\n mont readopted were false or misleading. The complaint identifies the\n following section:\n\n Increased operating and capital costs could affect\n our profitability.\n Costs at any particular mining location are subject to vari-\n ation due to a number of factors, such as variable ore grade,\n changing metallurgy and revisions to mine plans in re-\n sponse to the physical shape and location of the ore body,\n as well as the age and utilization rates for the mining and\n processing related facilities and equipment. In addition,\n costs are affected by the price and availability of input com-\n modities, such as fuel, electricity, labor, chemical reagents,\n explosives, steel, concrete and mining and processing re-\n lated equipment and facilities. Commodity costs are, at\n times, subject to volatile price movements, including in-\n creases that could make production at certain operations\n less profitable. Further, changes in laws and regulations\n can affect commodity prices, uses, and transport. Reported\n costs may also be affected by changes in accounting stand-\n ards. A material increase in costs at any significant\n location could have a significant effect on our profit-\n ability and operating cash flow.\n Our operational costs, including, without limitation,\n labor costs, can be impacted by inflation. Certain of\n our operations are located in countries that have in the\n past experienced high rates of inflation, such as in Argen-\n tina, Suriname, and Ghana. It is possible that in the future,\n high inflation in the countries in which we operate may\n\n\n - 12 -\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 13 of 27\n\n\n\n\n result in an increase in operational costs in local currencies\n (without a concurrent devaluation of the local currency of\n operations against the dollar or an increase in the dollar\n price of gold, copper, silver, lead or zinc). A material in-\n crease in costs at any significant location could have\n a significant effect on our profitability and operating\n cash flow.\n We could have significant increases in capital and\n operating costs over the next several years in connec-\n tion with new projects, costs related to closure reclama-\n tion activities, and in the sustaining and/or expansion\n of existing mining and processing operations. Costs\n associated with capital expenditures may increase in the\n future as a result of factors beyond our control. Increased\n capital expenditures may have an adverse effect on\n the profitability of and cash flow generated from ex-\n isting operations, as well as the economic returns antici-\n pated from new projects. Significantly higher and sus-\n tained increases in operational costs or capital expendi-\n tures could result in the deferral or closure of projects and\n mines in the event that costs become prohibitive.\n Id. Plaintiff challenges these risk disclosures, arguing that when they\n were readopted in the 10-Q, defendants already knew about or reck-\n lessly disregarded production and cost issues at the new mine. Id. \u00b6 130.\n\n Statement 11\n\n Nearly two months later, on September 17, 2024, Ms. Viljoen and Ms.\n Ovelmen spoke at the Denver Gold Forum (held in Colorado Springs,\n oddly enough). When asked about Newmont\u2019s new assets, Ms. Viljoen\n answered:\n\n So firstly, when I think about our new assets, I can\u2019t think\n about it without stepping back and looking at the full\n portfolio of assets because what it enabled for us is to\n really step back and turn these inside -- these assets\n inside out in a way that we haven\u2019t done before, be-\n cause we have the opportunity now to look at this entire\n portfolio of assets.\n The flexibility that we can build in our operational perfor-\n mance and how we think about our sustaining capital\n\n\n - 13 -\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 14 of 27\n\n\n\n\n profile and staging that to ensure that we have a stable\n ounce profile and a sustainable -- sustainable capital pro-\n file.\n When we consider the full potential program on the new\n assets, particularly, we\u2019ve run all 4 assets that will remain\n in the portfolio now through our full potential program.\n And that is -- all of those are in execution at the moment.\n We have committed $200 million are as part of the syner-\n gies that will come from that process, and we're well on\n track.\n But I do want to emphasize that not only through the full\n potential program, but in stepping back and changing the\n constraints that we\u2019ve put on our operations, the con-\n straints that we've put on how we look at our portfolio of\n assets and how that enterprise have interdependency, it is\n an opportunity for us to make a real step change in\n productivity, bringing costs down to sustainable low\n cost base and working towards that economic margin\n expansion that Karyn has been talking about.\n Id. \u00b6 131. Plaintiff points out that these statements claim that the com-\n pany had thoroughly reviewed the new mines\u2014\u201cturned these assets in-\n side out\u201d\u2014but still did not disclose cost and production issues. Id. \u00b6 132.\n\n Statement 12\n\n Plaintiffs next challenge a chart distributed to BNP Paribas and in-\n vestors in London and Paris near or after the close of Q3 2024.\n\n\n\n\n - 14 -\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 15 of 27\n\n\n\n\n Id. \u00b6 136. Plaintiffs assert that this October 2024 chart shows the same\n projections that the Defendants presented in February 2024 despite De-\n fendants\u2019 knowledge of production and cost uses that were flattening\n gold production relative to the February forecast. Id. \u00b6 137.\n\n Statement 13\n\n Similarly, in October 2024, Defendants distributed the following\n costs chart to investors:\n\n\n\n\n - 15 -\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 16 of 27\n\n\n\n\n Id. \u00b6 139. Again Plaintiff alleges that this chart is false because it is\n substantially the same as a chart distributed in February 2024, but De-\n fendants failed to adjust for the cost issues at the new mines. Id. \u00b6 140.\n\n 1. Safe Harbour\n\n Defendants first argue that most of the statements fall under the\n PSLRA\u2019s safe harbor for forward-looking statements. The statute ex-\n empts some such statements from liability so long as:\n\n (A) the forward-looking statement is--\n (i) identified as a forward-looking statement, and is accom-\n panied by meaningful cautionary statements identify-\n ing important factors that could cause actual results to\n differ materially from those in the forward-looking\n statement; or\n (ii) immaterial; or\n (B) the plaintiff fails to prove that the forward-looking state-\n ment--\n (i) if made by a natural person, was made with actual\n knowledge by that person that the statement was false\n or misleading; or\n (ii) if made by a business entity; was--\n (I) made by or with the approval of an executive officer\n of that entity; and\n (II) made or approved by such officer with actual\n knowledge by that officer that the statement was\n false or misleading.\n 15 U.S.C. \u00a7 78u-5(c)(1)(A)\u2013(B). The statement is protected (1) if the\n statement is forward-looking and accompanied by meaningful caution-\n ary statements; (2) if the statement is immaterial; or (3) if Plaintiff fails\n to show the statement was made or approved by an executive with ac-\n tual knowledge of falsity. See In re Gold Res. Corp. Sec. Litig., 957 F.\n Supp. 2d 1284, 1293 (D. Colo. 2013), aff\u2019d, 776 F.3d 1103 (10th Cir.\n 2015).\n\n\n\n\n - 16 -\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 17 of 27\n\n\n\n\n Newmont argues that statements 1(b), 3, 4, 5, 7, 9, 10, 11, 12, and 13\n fall under this safe harbor.\n\n Statement 1(b)\n\n In relevant part, statement 1(b) states, \u201c[f]ull year production for\n 2024 is expected to be second-half weighted as previously indicated, with\n a sequential increase weighted towards the fourth quarter. The second-\n half weighting is expected to be driven primarily by . . . improved\n throughput from Lihir.\u201d Doc. 39 \u00b6 110 (emphasis omitted). This is a\n \u201cclassic growth and revenue projection[], which [is] forward-looking on\n [its] face.\u201d Police Ret. Sys. of St. Louis v. Intuitive Surgical, Inc., 759 F.3d\n 1051, 1058 (9th Cir. 2014). The press release from which that statement\n was taken, Doc. 45-10 at 6, concludes with a disclaimer on forward-look-\n ing statements. It warns that the press release contains forward looking\n statements that \u201cimpl[y] an expectation or belief as to future events or\n results,\u201d that such expectations are \u201cexpressed in good faith and be-\n lieved to have a reasonable basis,\u201d and that \u201csuch statements are subject\n to risks, uncertainties and other factors, which could cause actual re-\n sults to differ materially.\u201d Id. at 33.\n\n Plaintiff does not argue that this statement is not forward-looking or\n that it lacks cautionary statements. He broadly argues that cautionary\n statements are inadequate if the identified risk has already occurred,\n but he does not explain what has already occurred that would make\n these projections already false. Statement 1(b) is protected by the safe\n harbor.\n\n Statements 3\u20135 and 7\u20139 all come from Newmont\u2019s Second-Quarter\n earnings call. Doc. 45-9. And they all rely on the same cautionary state-\n ments. To analyze these statements, I begin by determining whether\n each statement is forward-looking. Then I will determine whether the\n cautionary statements were adequate.\n\n\n - 17 -\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 18 of 27\n\n\n\n\n Statement 3\n\n Statement 3 reads \u201cWe delivered solid operational performance as\n planned, keeping us firmly on track to achieve our 2024 guidance\n and positioning us to deliver improving financial results.\u201d Doc.\n 39 \u00b6 114 (emphasis in original). Plaintiff argues that this is not a for-\n ward-looking statement because it describes the present state of the\n company. While the first part of the statement may describe current fi-\n nancial conditions, that statement is not challenged. When this state-\n ment was made, Newmont had just released its second-quarter earn-\n ings, and Plaintiff makes no reference to those earnings and does not\n argue they are not \u201csolid.\u201d He challenges only the forward-looking appli-\n cation of the information. The complaint alleges that Defendants knew\n adverse circumstances \u201cwould materially, adversely impact Newmont\u2019s\n production and increase its [costs].\u201d Id. (emphasis added). The complaint\n takes issue with the predicted future performance, not the current re-\n sults.\n\n Courts have split on the issue, but I agree with the circuits who have\n held that \u201can unadorned statement that a company is \u2018on track\u2019 to\n achieve an announced objective, or a simple statement that a company\n knows of no issues that would make a goal impossible to achieve, are\n merely alternative ways of declaring or reaffirming the objective itself.\u201d\n Wochos v. Tesla, Inc., 985 F.3d 1180, 1192 (9th Cir. 2021); see also Insti-\n tutional Invs. Grp. v. Avaya, Inc., 564 F.3d 242, 256 (3d Cir. 2009) (\u201cThe\n \u2018on track\u2019 and \u2018position us\u2019 language here, however, does not advert to a\n particular current fact such as cash on hand, but expresses only defend-\n ants\u2019 continuing comfort with the earlier, October annual projection,\n which they were then reiterating; that is, it amounts in essence to a re-\n affirmation of that projection.\u201d). Like those statements, the \u201con track\u201d\n\n\n\n\n - 18 -\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 19 of 27\n\n\n\n\n claim here merely reiterates a previous projection and is forward-look-\n ing.\n\n Statement 4\n\n Statement 4 touts that the company was \u201cnow advancing into the\n delivery stage of the initiatives we have identified at Lihir, Cadia and\n Red Chris, with the largest value drivers coming from our 2 new Tier 1\n assets in Lihir and Cadia.\u201d Doc. 39 \u00b6 116 (emphasis omitted). 4 This\n statement describes what the company is \u201cnow\u201d doing, and so is a veri-\n fiable, present fact not subject to the statutory safe harbor.\n\n Statement 5\n\n The complaint emphasizes the following part of Statement 5: \u201cWith\n a focus on size and efficient production at each of our managed opera-\n tions, we are heading into the second half of the year with confidence in\n our ability to deliver on our business plan and the commitments Tom\n reiterated earlier.\u201d Id. \u00b6 118 (emphasis omitted). Like the \u201con track\u201d\n claims, this statement merely reinforces previous projections and so is\n forward-looking. 5\n\n\n\n\n 4 The Complaint also emphasizes a second sentence: \u201c[w]e recently com-\n\n pleted our full potential diagnosis phase at Cadia, from which we have\n identified a series of initiatives that are expected to deliver more than\n $100 million of value by the end of next year.\u201d Doc. 39 \u00b6 116 (emphasis\n omitted). But it does not allege why this sentence is false and alleges no\n facts about the Cadia mine. And, in any event, its $100 million dollar\n projection is forward-looking.\n 5 Even if the statement describes the present thinking of management,\n\n it is not actionable because it is immaterial. It is \u201cvague (if not meaning-\n less) management-speak upon which no reasonable investor would base\n a trading decision.\u201d In re Level 3, 667 F.3d at 1340.\n\n\n\n\n - 19 -\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 20 of 27\n\n\n\n\n Statement 7\n\n \u201c[W]e anticipate higher free cash flows in the second half of the year\n driven by increased production values and lower unit costs,\u201d Id. \u00b6 122,\n is cash flow projection and plainly forward-looking, see Intuitive Surgi-\n cal, 759 F.3d at 1058.\n\n Statement 8\n\n Statement 8 claims \u201c[w]e safely delivered solid production as\n planned, keeping us firmly on track to meet our full year guidance for\n both ounces and costs.\u201d Doc. 39 \u00b6 124 (emphasis omitted). The complaint\n does not allege that the then-present statement that the company deliv-\n ered solid production is false, and, like Statement 3, the claim that the\n company remained \u201con track\u201d merely reaffirms a previous projection.\n\n Statement 9\n\n In the last alleged misstatement from the earnings call, Statement\n 9, Mr. Plamer stated \u201c[o]ur direct costs are pretty stable across the year.\n And certainly what we\u2019re seeing in the first half flowing through the\n second half, pretty stable.\u201d Id. \u00b6 127. He made this statement in the con-\n text of projecting increased revenues in the second-half of the year, so\n Defendants argue that the statement is forward-looking because it pro-\n jects stable costs to continue. But this statement is different from the\n \u201con track\u201d claims. Here, Mr. Palmer\u2019s claim is of a current state, \u201cdirect\n costs are pretty sable,\u201d that he expects to continue. Id. The Seventh Cir-\n cuit found a similar statement fell outside the safe harbor; a claim that\n \u201csales are \u2018still going strong\u2019 does not entitle [Defendant] to a safe harbor\n with regard to the statement\u2019s representation concerning current sales.\u201d\n Makor Issues & Rts., Ltd. v. Tellabs Inc., 513 F.3d 702, 705 (7th Cir.\n 2008). So too here, the safe harbor does not apply to the statement that\n direct costs were stable over the first half of the year.\n\n\n\n - 20 -\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 21 of 27\n\n\n\n\n Statements 3, 5, 7, and 8\u2014Cautionary Statements\n\n Having concluded that Statements 3, 5, 7 and 8 are forward-looking.\n The question is whether they were accompanied by cautionary state-\n ments. The second quarter earnings call begins with Mr. Palmer direct-\n ing listeners to \u201cnote our cautionary statement and refer to our SEC fil-\n ings.\u201d Doc. 45-9 at 5. This directs listeners to the 10-Q filed the day be-\n fore, and the written cautionary statements therein. Doc. 45-11 at 78.\n The second quarter 10-Q also incorporates by reference the risk factors\n from the company\u2019s annual 10-K statement. Id. at 79.\n\n Plaintiff argues that these cautionary statements are inadequate\n only because he alleges that the risks had already occurred. He in fact\n alleges that, by adopting the 10-K statements without change, the cau-\n tionary statements in the 10-Q were materially misleading. The 10-K\n included several warnings: \u201c[i]ncreased operating and capital costs could\n affect our profitability;\u201d \u201c[a] material increase in costs at any significant\n location could have a significant effect on our profitability and operating\n cash flow;\u201d \u201c[o]ur operational costs, including, without limitation, labor\n costs, can be impacted by inflation;\u201d \u201c[a] material increase in costs at\n any significant location could have a significant effect on our profitabil-\n ity and operating cash flow;\u201d \u201c[w]e could have significant increases in\n capital and operating costs over the next several years in connection\n with new projects, costs related to closure reclamation activities, and in\n the sustaining and/or expansion of existing mining and processing oper-\n ations;\u201d and \u201c[i]ncreased capital expenditures may have an adverse ef-\n fect on the profitability of and cash flow generated from existing opera-\n tions.\u201d Doc. 39 at \u00b6 129. If these risks had already materialized and they\n were false when made, then Plaintiff is correct that they are inadequate\n cautionary statements.\n\n\n\n\n - 21 -\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 22 of 27\n\n\n\n\n But Plaintiff alleges that these statements were misleading only be-\n cause vague \u201cproduction and cost issues\u201d had already \u201cimpacted New-\n mont\u2019s margins\u201d and would continue to do so. But the complaint does\n not allege with any specificity what changed between February and\n July. True, the complaint contains general allegations that Lihir and\n Brucejack were not as profitable as the company had hoped. But Plain-\n tiff alleges only in conclusory fashion that Defendants knew of these\n problems \u201cno later than late July 2024.\u201d Id. \u00b6 4. The Tenth Circuit has\n rejected that type of claim: \u201callegations that defendants should have an-\n ticipated future events and made certain disclosures earlier than they\n actually did do not suffice to make out a claim of securities fraud.\u201d City\n of Philadelphia v. Fleming Companies, Inc., 264 F.3d 1245, 1260 (10th\n Cir. 2001) (discussing scienter).\n\n And Plaintiff gives us no specific failures that occurred before the\n July statement. Despite claiming the production and cost issues \u201chad\n materially, adversely impacted\u201d margins, id. \u00b6 130, Plaintiff does not\n point to any second-quarter financial results. And despite stating that\n the issues \u201cwould continue impacting for the near-term and medium\n term,\u201d id., the complaint contains no specific facts that allege any prob-\n lems in the past were certain to continue in the future, or that the com-\n pany knew that was the case. In short, the complaint leaves the Court\n to guess what specifically changed between February and July. 6\n\n\n\n\n 6 Courts have remarked that \u201c[w]hat makes many securities fraud cases\n\n more complicated is that often there is no reason to assume that what is\n true at the moment plaintiff discovers it was also true at the moment of\n the alleged misrepresentation, and that therefore simply because the al-\n leged misrepresentation conflicts with the current state of facts, the\n charged statement must have been false.\u201d Philadelphia, 264 F.3d at\n 1260; In re GlenFed Sec. Litig., 42 F.3d 1541, 1548\u201349 (9th Cir.1994) (en\n banc) (stating the same).\n\n\n - 22 -\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 23 of 27\n\n\n\n\n Because the complaint does not properly allege Statement 10, the cau-\n tionary statements, were false, Statement 10 is not actionable and\n Statements 3, 5, 7 and 8 are protected by the statutory safe harbor.\n\n The remaining three statements were made separately from the sec-\n ond-quarter earnings release, but Defendants argue that they too are\n properly forward-looking. Even if they are forward looking, it is not clear\n that they were accompanied by effective cautionary statements. See Doc.\n 45 at 13 (identifying only a generic disclaimer from the Denver Gold\n Group and the company\u2019s general practice for \u201cpresentations like\n these.\u201d). I need not decide those questions, however, because Plaintiff\n fails to allege falsity.\n\n 2. Falsity\n\n For the remaining statements (1(a), 2, 4, 6, 9, 10, 11, 12, and 13),\n Plaintiff must plausibly allege falsity, materiality, and scienter. But\n Plaintiffs claims meet a common end: under the heightened pleading\n standard, he has failed to plausibly allege falsity.\n\n The Court evaluates the facts alleged in the complaint to determine\n \u201cwhether, taken as a whole, they support a reasonable belief that the\n defendant\u2019s statements identified by the plaintiff were false or mislead-\n ing.\u201d Hampton v. root9B Techs., Inc., 897 F.3d 1291, 1298 (10th Cir.\n\n\n\n\n This is particularly true in mining, a famously unpredictable business.\n For example, Newmont\u2019s stock fell from $57.74 to $49.25 on October 24,\n 2024. Doc. 39 at \u00b6 6. But as of this writing, the price is $118. Stock In-\n formation, Newmont Corp. (last visited Aug. 14, 2026, at 1:01 MT),\n https://www.newmont.com/investors/stock-information/default.aspx.\n This growth is at least in part because of Lihir. See Cecilia Jamasmie,\n Newmont eyes 5M-ounce boost from Lihir gold mine, (July 24, 2026),\n https://www.mining.com/newmont-eyes-5m-ounce-boost-from-lihir-\n gold-mine/. The PLSRA is not in place to punish statements that turn\n out to be wrong, just those that are fraudulent when made.\n\n\n - 23 -\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 24 of 27\n\n\n\n\n 2018). The Tenth Circuit has identified six factors to consider when eval-\n uating falsity:\n\n (1) the level of detail provided by the facts stated in a com-\n plaint; (2) the number of facts provided; (3) the coherence\n and plausibility of the facts when considered together; (4)\n whether the source of the plaintiff's knowledge about a\n stated fact is disclosed; (5) the reliability of the sources\n from which the facts were obtained; and (6) any other indi-\n cia of how strongly the facts support the conclusion that a\n reasonable person would believe that the defendant's state-\n ments were misleading.\n Id. at 1298\u201399. And, under the PLSRA\u2019s heightened pleading standard\n \u201cthe facts alleged in an information and belief complaint will usually\n have to be particularly detailed, numerous, plausible, or objectively ver-\n ifiable by the defendant before they will support a reasonable belief that\n the defendant\u2019s statements were false or misleading.\u201d Adams v. Kinder-\n Morgan, Inc., 340 F.3d 1083, 1103 (10th Cir. 2003).\n\n In Plaintiff\u2019s telling, Defendants purchased these new mines and, in\n February 2024, made optimistic financial projections based off their new\n assets. By October 2024, Defendants realized the mines had significant\n problems and this resulted in lower production and higher costs than\n expected. See Doc. 39 \u00b6\u00b6 145\u201346. But Plaintiff alleges that Defendants\n knew, or at least should have known, this truth earlier and should have\n disclosed it. See id. at \u00b6 121 (\u201cno later than July 2024, Lihir had already\n begun experiencing material, adverse production issues\u201d); \u00b6 147 (\u201cIt is\n clear, however, that no later than July 24, 2024, Defendants had either\n gained sufficient understanding of Newmont\u2019s Brucejack investment or\n were severely reckless in failing to understand that Brucejack was nug-\n gety.\u201d).\n\n The complaint describes, citing anonymous former employees, the\n general state of both Lihir and Brucejack. Former employees 1 and 2\n explain that Lehir was not profitable, had high operational costs, and\n\n\n - 24 -\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 25 of 27\n\n\n\n\n had frequently unreliable equipment. Similarly, former employee 3 as-\n serts that Brucejack did not qualify as a Tier 1 mine and had other costly\n infrastructural issues.\n\n But these allegations describe only the general state of the mines.\n The complaint does not allege any specific facts that allow the Court to\n conclude that the statements were false in July as opposed to October.\n The closest the complaint comes to a specific fact about Lihir is the alle-\n gation that the largest autoclave \u201chad been out of operation for 2 or 3\n years and was considered a disaster.\u201d Doc. 29 at \u00b6 59. But Mr. Palmer\n disclosed that Autoclave 4 would be shut down for 120 days. Id. \u00b6 54\n (\u201cthe guidance for Lihir for the year respected that the largest of the\n autoclaves being down from 120 days.\u201d). If Newmont knew about but\n failed to disclose the autoclave shutdown, that kind of fact may suggest\n falsity. But because Mr. Palmer disclosed the shutdown as early as Feb-\n ruary, see Doc. 39 \u00b6 50, so it is unclear how investors were misled.\n\n Brucejack\u2019s biggest problem was its inconsistent, \u201cnuggety\u201d ore body,\n and the complaint only states in conclusory fashion that \u201creconciliation\n drilling during 2024 necessarily alerted Defendants to issues with re-\n spect to production at Brucejack no later than July 24, 2024.\u201d Id. \u00b6 90.\n The complaint contains no specific facts about what the reconciliation\n drilling revealed, and when.\n\n The October revelations confirm that Lihir and Brucejack were not\n as profitable as Newmont hoped. But taking that October fact and as-\n suming Newmont knew it was also the case in July is impermissible\n \u201cfraud by hindsight.\u201d Grossman v. Novell, Inc., 120 F.3d 1112, 1124\n (10th Cir. 1997). The October revelations occurred because Newmont at-\n tained and reported disappointing earnings. Doc. 39 \u00b6 145. Plaintiff does\n not point to any concerning financials in July, the date of the alleged\n fraud, nor does he point to specific production issues that occurred before\n\n\n - 25 -\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 26 of 27\n\n\n\n\n July and were expected to recur. In fact, some of the allegations are not\n just conclusory, they are circular. See id. \u00b6 115. (\u201cDefendants failed to\n disclose they knew or recklessly disregarded that material adverse cir-\n cumstances at Lihir and Brucejack would materially, adversely impact\n Newmont\u2019s production and increase its AISC, contracting margins ma-\n terially.\u201d (emphasis added)).\n\n Plaintiff must do more than simply allege the generally disappoint-\n ing nature of Lihir and Brucejack. Instead, he \u201cmust set forth, as part of\n the circumstances constituting fraud, an explanation as to why the dis-\n puted statement was untrue or misleading when made.\u201d Grossman, 120\n F.3d at 1124 (internal quotation omitted). And because Statements 10,\n 12, and 13 are readoptions of statements made in February, Plaintiff\n must specifically allege what changed and when and what defendants\n knew and when. He must do so with precise facts. Under this heightened\n standard, the allegations in the complaint are too general to conclude\n that these statements were false when made. 7\n\n CONCLUSION\n\n It is ORDERED that:\n\n Plaintiff\u2019s MOTION TO STRIKE, Doc. 47, is DENIED;\n\n Defendants\u2019 MOTION TO DISMISS, Doc. 45, is GRANTED;\n\n\n\n\n 7 Though the Court need not reach this point, the failure to plead that\n\n the statements were known to be false when made is also dispositive as\n to the scienter element. See Philadelphia, 264 F.3d at 1260 (\u201c[B]ecause\n corporate officials should be liable for failing to reveal only those mate-\n rial facts reasonably available to them . . . allegations that defendants\n should have anticipated future events and made certain disclosures ear-\n lier than they actually did do not suffice to make out a claim of securities\n fraud.\u201d (analyzing scienter) (quotations omitted)).\n\n\n - 26 -\n\fCase No. 1:25-cv-00341-DDD-KAS Document 52 filed 08/14/26 USDC Colorado\n pg 27 of 27\n\n\n\n\n Plaintiffs\u2019 request for leave to amend complaint is GRANTED. Plain-\n tiff may file an amended complaint no later than 9/11/2026. Failure to\n do so will result in the Court closing the case.\n\n DATED: August 14, 2026 BY THE COURT:\n\n\n\n Daniel D. Domenico\n Chief United States District Judge\n\n\n\n\n - 27 -\n\f","ocr_status":2,"date_upload":"2026-09-02T18:38:31.947314-07:00","document_number":"52","attachment_number":null,"pacer_doc_id":"039012884386","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Order on Motion to Dismiss AND Order on Motion to Strike","acms_document_guid":""}],"date_created":"2026-08-14T14:06:41.622362-07:00","date_modified":"2026-10-15T06:57:14.317243-07:00","date_filed":"2026-08-14","time_filed":"14:54:16","entry_number":52,"recap_sequence_number":"2026-08-14.001","pacer_sequence_number":175,"description":"ORDER Granting Motion to Dismiss. It is ORDERED that Plaintiff's MOTION TO STRIKE, Doc. 47, is DENIED; Defendants' MOTION TO DISMISS, Doc. 45, is GRANTED. Plaintiffs' request for leave to amend complaint is GRANTED. Plaintiff may file an amended complaint no later than 9/11/2026. Failure to do so will result in the Court closing the case. SO ORDERED by Chief Judge Daniel D. Domenico on 08/14/2026.(agryan) (Entered: 08/14/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/448317491/","id":448317491,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/69603503/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/463090141/","id":463090141,"tags":[],"absolute_url":"/docket/69603503/50/karas-v-newmont-corporation/","date_created":"2025-12-25T19:41:42.899310-08:00","date_modified":"2025-12-25T19:41:42.918664-08:00","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":"50","attachment_number":null,"pacer_doc_id":"039012346896","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-12-25T19:41:42.671538-08:00","date_modified":"2025-12-25T19:41:42.778248-08:00","date_filed":"2025-12-04","time_filed":null,"entry_number":50,"recap_sequence_number":"2025-12-04.001","pacer_sequence_number":167,"description":"REPLY to Response to 45 MOTION to Dismiss the Amended Complaint filed by Defendants Newmont Corporation, Karyn F. Ovelmen, Thomas R. Palmer, Peter Toth, Natascha Viljoen. (Schwartz, Paul) (Entered: 12/04/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/448317490/","id":448317490,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/69603503/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/463090140/","id":463090140,"tags":[],"absolute_url":"/docket/69603503/49/karas-v-newmont-corporation/","date_created":"2025-12-25T19:41:42.564670-08:00","date_modified":"2026-05-14T07:06:11.242892-07:00","sha1":"dccaa823d0d4f1670bff2430eae34ae1bbd8cd2b","page_count":10,"file_size":500394,"filepath_local":"recap/gov.uscourts.cod.240976/gov.uscourts.cod.240976.49.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cod.240976/gov.uscourts.cod.240976.49.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case No. 1:25-cv-00341-DDD-KAS Document 49 filed 11/26/25 USDC Colorado\n pg 1 of 10\n\n\n\n\n IN THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLORADO\n\nCivil Action No. 1:25-cv-00341-DDD-KAS\n\nJAMES KARAS, Individually and on Behalf of All Others Similarly Situated,\n\nPlaintiffs,\n\nv.\n\nNEWMONT CORPORATION, THOMAS R. PALMER, NATASCHA VILJOEN, KARYN F.\nOVELMEN, and PETER TOTH,\n\nDefendants.\n\n\n REPLY MEMORANDUM IN FURTHER SUPPORT OF PLAINTIFFS\u2019\n MOTION TO STRIKE OR TO CONVERT DEFENDANTS\u2019\n MOTION TO DISMISS TO A MOTION FOR SUMMARY\n JUDGMENT AND FOR FULL DISCOVERY\n\n\nI. ARGUMENT\n\n A. The Court Should Strike Defendants\u2019 Appendix\n\n As Plaintiffs argue in their Memorandum, Dkt. 47, Defendants\u2019 Appendix \u201cfacilitates\u201d\n\nnothing, adding a step to the Court\u2019s evaluation and prompting the Court to review it and not the\n\nComplaint. Indeed, the Appendix is necessary to decode Defendants\u2019 Motion to Dismiss (Dkt. 45)\n\n(\u201cMotion\u201d), referring as it does to the Appendix\u2019s designations and not to the Complaint\u2019s\n\nparagraph numbers.\n\n Defendants counter, asserting without explanation that the Appendix \u201cmakes it easy for the\n\nCourt to see and refer to the statements.\u201d DMem.2.1 But so too does the Complaint. Rather than\n\n\n1\n Plaintiffs cite to Defendants\u2019 Opposition to Plaintiffs\u2019 Motion to Strike, Dkt. 47, as \u201cDMem.__.\u201d\nPlaintiffs cite to the Complaint, Dkt. 39, as \u201c\u00b6__.\u201d Defendants suggest that Local Rule 7.1 required\nPlaintiffs to confer about this motion to strike, DMem.2, n.2, ignoring that Plaintiffs seek to strike\nDefendants\u2019 Motion, in its entirety. As they concede, see id., a conference was unnecessary.\n\n 1\n\fCase No. 1:25-cv-00341-DDD-KAS Document 49 filed 11/26/25 USDC Colorado\n pg 2 of 10\n\n\n\n\nsubmitting the Appendix, Defendants could have referred to or quoted from the Complaint, citing\n\nit by paragraph number. Instead, Defendants\u2019 Motion and Appendix require the Court to find the\n\ncode that returns it to the Complaint, setting forth each statement in question. Far from easing this\n\nCourt\u2019s burden, it adds to it.\n\n Unable to explain how or why their Appendix renders easier this Court\u2019s analysis,\n\nDefendants cite Indiana Pub. Ret. Sys. v. Pluralsight, Inc., 45 F.4th 1236, 1249 n.2 (10th Cir. 2022),\n\nimplying that the Tenth Circuit approves of the practice of defendants\u2019 submitting appendices\n\nreproducing a Complaint\u2019s allegations but creating designations different from a Complaint\u2019s\n\nnumbering. Defendants, however, failed to read the whole footnote. Certainly, the Tenth Circuit\n\nreferred to the defendants\u2019 chart\u2014which the plaintiffs \u201cadopted\u201d\u2014\u201cfor convenience.\u201d 2 As a matter\n\nof law, however, Defendants ignore the footnote\u2019s conclusion in which the Tenth Circuit wrote\n\nwith crystal clarity, \u201c[h]owever, for purposes of our substantive analysis, we rely solely on the\n\nstatements as alleged in the complaint.\u201d Id. (emphasis added). Thus, even as the Tenth Circuit\n\nindulged the Pluralsight defendants\u2019 misleading the district court for \u201cconvenience,\u201d as a matter\n\nof law, it promoted that it and, therefore, this Court must \u201crely solely on the statements alleged in\n\nthe [C]omplaint.\u201d\n\n Defendants\u2019 citation to Fogel v. Wal-Mart de M\u00e9xico SAB de CV, 2017 WL 751155, at *18\n\n(S.D.N.Y. Feb. 27, 2017) fares no better, again missing the conclusion. In Fogel, the court ruled\n\nthat the plaintiff\u2019s motion to strike was moot because \u201cthe Court did not utilize Defendants\u2019\n\nappendices in reaching its decision in this case.\u201d Id. Additionally, in Fogel, the defendants\u2019\n\n\n\n2\n \u201cConvenience\u201d as the Tenth Circuit expressed it, Pluralsight, 45 F.4th at 1249 n.2, applies not to\nwhether the district court\u2019s referring to the chart ab initio was proper or whether the chart rendered\nits evaluation easier. Rather, the \u201cconvenience\u201d was seemingly a matter of consistency, referring\nto the same designations because the district court did.\n\n 2\n\fCase No. 1:25-cv-00341-DDD-KAS Document 49 filed 11/26/25 USDC Colorado\n pg 3 of 10\n\n\n\n\nmemorandum, Dkt. 98, referred first to the complaint\u2019s paragraph numbers, enabling the court to\n\navoid relying on the appendix. See, e.g., Dkt 98 at 16-17. Just like Pluralsight, in rendering its\n\ndecision, the Fogel court relied on the amended complaint and not on an appendix reprinting the\n\nfalse statements. Unlike Fogel, Defendants\u2019 Motion does not refer to the Complaint\u2019s paragraph\n\nnumbers, forcing the Court to look to the appendix first to discern to what paragraph in the\n\nComplaint Defendants are referring. Far from a convenience, Defendants\u2019 Appendix adds steps to\n\nthe analysis the Pluralsight and Fogel courts require.\n\n Defendants attempt to analogize their inclusion of the Appendix to appellate rules,\n\nrequiring parties to attach as addenda the text of statutes and rules. DMem.2-3 (citing F.R.A.P.\n\n28(f)); 32(f)). True, but irrelevant. If, for example, a party quotes from a statute in its argument,\n\nthen no question exists that the text it quotes is included in the word count. More, appending\n\nstatutory text saves appellate courts from having to download the statute, providing ease of access\n\nto critical text. In evaluating a motion to dismiss, the critical text, as the Tenth Circuit stated in\n\nPluralsight, is the Complaint. The Court already has it, needing nothing further, especially a\n\ndocument on which it cannot rely.\n\n Defendants also analogize their Appendix to images of text the defendants in Akhras v. SSR\n\nMining Inc., No. 1:24-cv-00739-DDD-TPO (D. Colo.) (Domenico, J) embedded in their motion\n\nto dismiss. D.Mem.3. But, in Akhras, the plaintiff did not object to the images, so this Court did\n\nnot address the defendants\u2019 excessive word count. Further, the images in the Akhras brief cited\n\ndirectly to the complaint in that case and thus did not require the court to look to an extrinsic,\n\nmade-for-litigation document. Here, Plaintiffs object for, among other reasons, Defendants\u2019 abuse\n\nof the word limitation. The Court should, therefore, add the Appendix to the word count, forcing\n\n\n\n\n 3\n\fCase No. 1:25-cv-00341-DDD-KAS Document 49 filed 11/26/25 USDC Colorado\n pg 4 of 10\n\n\n\n\nDefendants either to refile their Motion without the Appendix, referring to the Complaint\u2019s\n\nparagraph numbers, or strike it for exceeding the word count.\n\n Defendants force this, ultimately to refer the Court to the Complaint on which, the Tenth\n\nCircuit mandates for purposes of a substantive analysis, this Court must solely rely. Defendants\n\nconcede, as they must, that \u201creproducing the statements adds no substance to the MTD,\u201d D.Mem.2,\n\neven as it obviated their need to reproduce those statements in their motion. Defendants\u2019 assertion\n\nthat the Appendix facilitates fails, begging the question: why submit it, forcing this Court to read\n\nthe Appendix for a designation to a statement only to return it to the Complaint?\n\n Defendants call \u201cnonsense\u201d Plaintiffs\u2019 assertion \u201cthat the appendix is a \u201c\u2019tacit attempt to\n\ndistract the Court from evaluating the Complaint as a whole.\u2019\u201d DMem.3. But Defendants\u2019 ipse\n\ndixit argument, failing to demonstrate that the Appendix facilitates the Court\u2019s analysis and\n\nignoring the law requiring the Court to evaluate the Complaint\u2019s sufficiency based solely on the\n\nComplaint, contradicts that assertion. Indeed, no reason whatsoever exists for Defendants to have\n\nsubmitted the Appendix except to offload word count to a document outside the brief and otherwise\n\nto dissociate the Court\u2019s analysis from the Complaint. Neither is acceptable and both should cause\n\nthe Court to strike the Appendix and Defendants\u2019 Motion, requiring them to refile the Motion,\n\nreferring to the Complaint\u2019s paragraphs instead.\n\n B. Defendants\u2019 Inappropriate, Wholesale Submissions Lard the Record and Must\n Not Impact the Court\u2019s Analysis\n\n Without real analysis, Defendants assert that it is per se proper to submit wholesale\n\ndesignations of documents the Complaint references or of which the Court can take judicial notice.\n\nD.Mem.4-7. Absent from their opposition, however, is any proper purpose for submitting these\n\ndocuments or submitting voluminous documents while referring only to small portions thereof.\n\nThus, Defendants miss the point. The Supreme Court\u2019s mandate is clear but specifically relates to\n\n\n 4\n\fCase No. 1:25-cv-00341-DDD-KAS Document 49 filed 11/26/25 USDC Colorado\n pg 5 of 10\n\n\n\n\navoiding selective citation to documents \u201cwhile omitting portions of those very documents that\n\nweaken \u2013 or doom \u2013 their claims.\u201d Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th\n\nCir. 2018). The Complaint, however, does not strategically \u201comit portions\u201d of documents or omit\n\nnecessary context, and Defendants do not contend otherwise. Defendants assert that Khoja is\n\nimmaterial because Tenth Circuit law is \u201cwell developed,\u201d D.Mem.5, but the Tenth Circuit agrees\n\nwith Khoja that courts may not consider extrinsic documents for their truth and must accept well-\n\npleaded facts as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Hartlieb\n\nv. Wiser L. Firm, P.C., 861 F. App\u2019x 714, 718-19 (10th Cir. 2021) (citation omitted). Khoja\n\nenunciates a practical application of judicial notice and incorporation by reference that balances\n\nthose doctrines with a proper purpose so as not to poison the Rule 12(b)(6) analysis.\n\n First, Defendants ignore this Court\u2019s Local Rule 56.1(c), discouraging \u201cvoluminous\n\nexhibits\u201d and mandating parties to \u201climit exhibits to essential portions of documents.\u201d D.C. Colo.\n\nL Civ.R. 56.1(c). Defendants contend that their submission of voluminous exhibits is proper\n\nbecause they \u201ccite[d] specific pages of each\u201d Exhibit, but the MTD reveals that the \u201cpages\u201d that\n\nDefendants cited are themselves voluminous. See, e.g., Motion at 8 (citing pages 12-47 of Ex. 6);\n\nMotion at 12 (citing pages).3\n\n Next, Defendants argue that they submitted no exhibit for the truth of the matter but for the\n\nfact that Newmont publicly disclosed certain information, D.Mem.6, then arguing vaguely but\n\n\n\n3\n Defendants argue that the exhibits they foist upon this Court \u201care less than half the volume of\nthose in Akhras\u201d and that this Court cited some of exhibits the Akhras defendants submitted.\nD.Mem.5 (citing Akhras Dkt 64 at 7). This accurate description, however, is irrelevant. Nothing of\nrecord suggests that the Akhras plaintiffs objected to the inclusion of the documents the Court\nconsidered. More, this Court\u2019s consideration of several, limited risk disclosures ultimately to reject\nthe defendants\u2019 arguments that the alleged materially false statements were verifiable and,\ntherefore, not immaterial puffery, Akhras Dkt. 64 at 8, was proper. Plaintiffs agree as they noted\nin their Memorandum. Dkt. 47 at 5-6.\n\n 5\n\fCase No. 1:25-cv-00341-DDD-KAS Document 49 filed 11/26/25 USDC Colorado\n pg 6 of 10\n\n\n\n\nfailing to connect each document meaningfully to an argument about context or the Complaint\u2019s\n\nomitting relevant information. Id. at 6-7. For example, Defendants submitted Exhibits 1-2 and 11\n\npurportedly to \u201cprovide a fuller picture surrounding the forecasts.\u201d D.Mem.6. Defendants\u2019 Motion,\n\nhowever, connects nothing in Exhibits 1, 2, or 11 to a fuller picture surrounding forecasts nor\n\ndiscusses what \u201cfuller picture\u201d is necessary for this Court\u2019s evaluation of the Complaint\u2019s\n\nsufficiency. Accordingly, Exhibits 1, 2, and 11 offer neither missing context nor information that\n\nthe Complaint omits that may damage the claims Plaintiffs assert. Defendants\u2019 submitting them,\n\ntherefore, has no proper purpose.\n\n Additionally, asserting that disclosures they submitted are \u201clegally significant,\u201d Defendants\n\nclaim that they include Exhibits disclosing risks, for example, about \u201cthe Newcrest acquisition, the\n\nLihir and Brucejack mines and the challenged projections.\u201d D.Mem.6 (citing, e.g., Dkt. 45, at 14,\n\nn.10). The Complaint, however, includes that prior to the Class Period, Defendants \u201cflag[ged]\u201d\n\nspecifics problems about the Lihir mine\u2019s autoclave and planned maintenance in 3Q2024. \u00b650. The\n\nExhibits to which Defendants refer, therefore, disclose purportedly public information that the\n\nComplaint disclosed, defying the purported \u201clegal signific[ance]\u201d of those Exhibits. Thus, when\n\nDefendants issued guidance based on purported improved throughput from Lihir, e.g., \u00b6110, the\n\nComplaint presupposes investors\u2019 awareness of the autoclave issue. 4\n\n With respect to Lihir, therefore, the Complaint disclosed the very information that,\n\nDefendants assert, required them to attach and refer to the Exhibits. The Complaint pleads that\n\n\n4\n Similarly, contrary to Defendants\u2019 assertion, their including as Exhibits the UBS and BNP analyst\nreports adds no context. D.Mem.7. Indeed, their Motion acknowledges that the Complaint\ndiscloses challenges that Lihir and Brucejack experienced, referring directly to the Complaint. Dkt\n45 at 13 (citing \u00b647). The UBS and BNP reports Defendants submit as Exhibits provide no further\ncontext. Their inclusion, therefore, tacitly accuses the Complaint of omitting context that the\nComplaint included, information that does not undermine the Complaint\u2019s allegations of material\nfalsity.\n\n 6\n\fCase No. 1:25-cv-00341-DDD-KAS Document 49 filed 11/26/25 USDC Colorado\n pg 7 of 10\n\n\n\n\nboth before and during the Class Period, Defendants assumed control of Lihir, warts and all,\n\npromising higher production and lower costs. See, e.g., \u00b6\u00b647-48. By including and arguing from\n\nthese documents with no explanation, Defendants surreptitiously shift focus from the Complaint\n\nthat disclosed the pre-existing issues at Lihir, attempting to change the narrative from the\n\nComplaint\u2019s thrust\u2014that after due diligence and operating Lihir for seven months, Defendants\n\nknew or recklessly disregarded that they had ameliorated none of the adverse operating conditions\n\nthat had plagued Lihir but that they promised were improving and were, therefore, not on track to\n\nmeet forecasts. See, e.g., \u00b6115. Defendants\u2019 arguing that the Complaint\u2019s false statements were not\n\nfalse because investors already knew of problems at Lihir attempts to shift the narrative when the\n\nComplaint plainly disclosed Lihir\u2019s pre-existing problems. These Exhibits add neither context nor\n\ninformation the Complaint omitted, and Defendants offer no proper purpose for including them.\n\nDefendants\u2019 attempt to use extraneous documents to change the narrative comprises the\n\nunscrupulous conduct about which Khoja warns. It is improper considering the Tenth Circuit\u2019s\n\nadmonition in Pluralsight, see supra, that the Complaint and its allegations and theories must form\n\nthe foundation for this Court\u2019s evaluation of its sufficiency.\n\n Last, Defendants accuse Plaintiffs of arguing merits in their Motion to Strike. D.Mem.6.\n\nThey are wrong. Defendants created this issue, submitting voluminous exhibits without bothering\n\nto argue why they may properly be considered on a 12(b)(6) motion, forcing Plaintiffs to address\n\nDefendants\u2019 \u201cunscrupulous use of extrinsic documents\u201d to \u201cpresent their own version of the facts\n\nat the pleading stage.\u201d Khoja, 889 F.3d at 998-99. Plaintiffs\u2019 arguments properly address the\n\nstandards for consideration of extrinsic documents at this stage. Defendants\u2019 wholesale designation\n\nmust not disadvantage Plaintiffs, especially when Defendants offer virtually no proper purpose for\n\n\n\n\n 7\n\fCase No. 1:25-cv-00341-DDD-KAS Document 49 filed 11/26/25 USDC Colorado\n pg 8 of 10\n\n\n\n\nsubmitting voluminous documents and where Plaintiffs show that Defendants submitted Exhibits\n\nfor improper purposes.\n\n For these reasons, the Court should strike all of Defendants\u2019 Exhibits and the portions of\n\ntheir Motion referring thereto. In the alternative, if the Court accepts Defendants\u2019 Exhibits in their\n\nentirety, pursuant to Fed. R. Civ. P. 12(d), the Court should convert Defendants\u2019 Motion to one for\n\nsummary judgment, permitting full discovery.\n\nII. CONCLUSION\n\n For the foregoing reasons, Plaintiffs respectfully request that the Court strike Defendants\u2019\n\nAppendix, the Exhibits they filed, and their Motion, requiring them to refile the Motion with\n\nreferences to the Complaint\u2019s paragraph numbers and to include only pages of exhibits they submit\n\nand briefly explaining their proper purpose for including them. In the alternative, pursuant to Fed.\n\nR. Civ. P. 12(d), the Court should convert Defendants\u2019 Motion to one for summary judgment,\n\npermitting full discovery.\n\nDated: November 26, 2025 Respectfully submitted,\n\n THE ROSEN LAW FIRM, P.A.\n /s/ Jacob A. Goldberg\n Jacob A. Goldberg\n Leah Heifetz-Li\n 101 Greenwood Avenue\n Suite 440\n Jenkintown, PA 19046\n Tel: (215) 600-2817\n Fax: (212) 202-3827\n Email: jgoldberg@rosenlegal.com\n lheifetz@rosenlegal.com\n\n POMERANTZ LLP\n Jeremy A. Lieberman\n Jonathan D. Park\n 600 3rd Avenue\n New York, NY 10016\n Tel: (212) 661-1100\n Fax: (917) 463-1044\n 8\n\fCase No. 1:25-cv-00341-DDD-KAS Document 49 filed 11/26/25 USDC Colorado\n pg 9 of 10\n\n\n\n\n Email: jalieberman@pomlaw.com\n jpark@pomlaw.com\n\n Co-Lead Counsel for Lead Plaintiffs and the Class\n\n LEVI & KORSINSKY, LLP\n Shannon L. Hopkins\n Tyler Winterich\n 1111 Summer Street, Suite 403\n Stamford, CT 06905\n Tel: (203) 992-4523\n Fax: (212) 363-7171\n Email: shopkins@zlk.com\n twinterich@zlk.com\n\n BRONSTEIN, GEWIRTZ\n & GROSSMAN, LLC\n Peretz Bronstein (admission forthcoming)\n 60 East 42nd Street, Suite 4600\n New York, New York 10165\n Telephone: (212) 697-6484\n Facsimile: (212) 697-7296\n Email: peretz@bgandg.com\n\n Additional Counsel for Plaintiffs\n\n\n\n\n 9\n\fCase No. 1:25-cv-00341-DDD-KAS Document 49 filed 11/26/25 USDC Colorado\n pg 10 of 10\n\n\n\n\n CERTIFICATE OF COMPLIANCE\n\n I hereby certify that the foregoing pleading complies with the type-volume limitation set\n\nforth in Judge Domenico\u2019s Practice Standard III(A)(1). I used Microsoft Word to prepare this\n\nDocument. The Word Count shows 2,238 words.\n\n\n /s/ Jacob A. Goldberg\n Jacob A. Goldberg\n\n\n\n\n 10\n\f","ocr_status":2,"date_upload":"2026-05-12T03:09:35.545937-07:00","document_number":"49","attachment_number":null,"pacer_doc_id":"039012333432","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-12-25T19:41:42.505964-08:00","date_modified":"2025-12-25T19:41:42.522888-08:00","date_filed":"2025-11-26","time_filed":null,"entry_number":49,"recap_sequence_number":"2025-11-26.001","pacer_sequence_number":164,"description":"REPLY to Response to 47 MOTION to Strike 45 MOTION to Dismiss the Amended Complaint or to Convert Defendants' Motion to Dismiss to a Motion for Summary Judgment and For Full Discovery filed by Movants Catherine Almrud Holdings Inc., Shahid Latif Mian, Plaintiff James Karas. (Goldberg, Jacob) (Entered: 11/26/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/448317489/","id":448317489,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/69603503/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/463090139/","id":463090139,"tags":[],"absolute_url":"/docket/69603503/48/karas-v-newmont-corporation/","date_created":"2025-12-25T19:41:42.425722-08:00","date_modified":"2026-05-14T06:52:19.246265-07:00","sha1":"45bd2cb90dbbab02db1471185eeeb8ae682cea3b","page_count":10,"file_size":231641,"filepath_local":"recap/gov.uscourts.cod.240976/gov.uscourts.cod.240976.48.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cod.240976/gov.uscourts.cod.240976.48.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case No. 1:25-cv-00341-DDD-KAS Document 48 filed 11/12/25 USDC Colorado\n pg 1 of 10\n\n\n\n\n IN THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLORADO\n\n\nCase No. 1:25-cv-00341-DDD-KAS\n\nJAMES KARAS, Individually and on Behalf\nof All Others Similarly Situated,\n\n Plaintiff,\n\n v.\n\nNEWMONT CORPORATION, THOMAS R.\nPALMER, NATASCHA VILJOEN, KARYN\nF. OVELMEN, and PETER TOTH,\n\n Defendants.\n\n\n\n DEFENDANTS\u2019 OPPOSITION TO PLAINTIFFS\u2019 MOTION TO STRIKE OR TO\n CONVERT DEFENDANTS\u2019 MOTION TO DISMISS TO A MOTION FOR SUMMARY\n JUDGMENT AND FOR FULL DISCOVERY\n\n\n\n Plaintiffs\u2019 baseless motion to strike or to convert Defendants\u2019 motion to dismiss to a motion\n\nfor summary judgment and for full discovery [ECF 47, filed Nov. 4, 2025] should be denied.\n\n1. Defendants Properly Reproduced the Challenged Statements for the Court\u2019s\n Convenience\n\n The sole purpose of the appendix to Defendants\u2019 motion to dismiss (ECF 45, the \u201cMTD\u201d)\n\nis to facilitate the Court\u2019s review of the Complaint and motion-to-dismiss briefing in this action.1\n\nThe appendix simply reproduces each challenged statement verbatim, organized by presentation\n\nor document in which the statement was made, without argument or commentary. See ECF 45-1.\n\n\n\n\n1\n The Complaint, which is Plaintiffs\u2019 amended complaint, is ECF 39.\n\fCase No. 1:25-cv-00341-DDD-KAS Document 48 filed 11/12/25 USDC Colorado\n pg 2 of 10\n\n\n\n\nThe appendix makes it easy for the Court to see and refer to the statements that Plaintiffs challenge\n\nas purportedly false or misleading and thus to which the MTD must repeatedly refer.\n\n Plaintiffs\u2019 assertion that this non-argumentative reproduction\u2014a routine practice in cases\n\nsuch as this\u2014\u201cflouts\u201d the Court\u2019s rules and should count toward Defendants\u2019 word limit is wrong\n\nand transparently tactical.2 Plaintiffs would have mere identification of the challenged statements,\n\nwhich total 1,743 words, eat up nearly a quarter of Defendants\u2019 7,500-word allotment. But\n\nreproducing the statements adds no substance to the MTD; it simply provides a convenient way to\n\nsee what the statements are. And courts have recognized the practical benefits of tables such as\n\nthis one. Indeed, the Tenth Circuit recently decided a case where the defendants prepared a similar\n\nchart of allegedly false or misleading statements from the complaint and attached it as an exhibit\n\nto their motion to dismiss. See Indiana Pub. Ret. Sys. v. Pluralsight, Inc., 45 F.4th 1236, 1249 n.2\n\n(10th Cir. 2022). The court noted that \u201cthe district court adopted Defendants\u2019 numbering of the\n\nstatements for reference,\u201d adding that it would \u201calso refer to these statement numbers and include\n\nDefendants\u2019 chart in an appendix for convenience.\u201d Id.; see also Fogel v. Wal-Mart de M\u00e9xico\n\nSAB de CV, 2017 WL 751155, at *18 (S.D.N.Y. Feb. 27, 2017) (stating that the court \u201cdoes not\n\nfind that Defendants\u2019 appendices were attached in an attempt to skirt the Court\u2019s orders, but rather\n\ncredits Defendants\u2019 argument that their appendices were intended to serve as mere organizational\n\ntools\u201d). Though the Court\u2019s practice standards do not address the reproduction of such information,\n\nthe reproduction is analogous to addenda reproducing statutes and rules that the Federal Rules of\n\n\n\n\n2\n It also is hypocritical, as Plaintiffs violated D.C.COLO.LCivR 7.1 by filing their motion without\nconferring with Defendants. Though Local Rule 7.1 excepts from the duty to confer a motion under\nFed. R. Civ. P. 12 and Rule 12(f) authorizes certain motions to strike, Rule 12(f) concerns motions\nto strike \u201cpleadings,\u201d which Rule 7(a) defines as complaints, answers, counterclaims, etc. A\nmotion to strike exhibits to a motion to dismiss is not a Rule 12(f) motion, which presumably is\nwhy the motion to strike does not mention Rule 12(f).\n\n\n -2-\n\fCase No. 1:25-cv-00341-DDD-KAS Document 48 filed 11/12/25 USDC Colorado\n pg 3 of 10\n\n\n\n\nAppellate Procedure exclude from the length limit on briefs. See Fed. R. App. P. 28(f), 32(f). It\n\nalso is analogous to the reproduction of images of challenged statements the defendants embedded\n\nin a motion the Court recently granted dismissing similar securities claims against another mining\n\ncompany. See Akhras v. SSR Mining Inc., No. 1:24-cv-00739-DDD-TPO, ECF 59 (ordering 9,000-\n\nword limit); id. ECF 60 (motion with 8,978 words plus images of the challenged statements\n\nembedded on pp.14-15); id. ECF 64 (dismissing case). There is no practical difference between\n\nimages of the challenged statements pasted in a motion and verbatim copies of the statements\n\nappended to a motion. The appendix should thus be treated as ancillary to, not part of, the MTD.\n\n Plaintiffs\u2019 accusation that the appendix is a \u201ctacit attempt to distract the Court from\n\nevaluating the Complaint as a whole\u201d is nonsense. ECF 47 at 2. Far from \u201csurreptitiously\n\ndissociating the Court\u2019s evaluation of the [Complaint\u2019s] adequacy from the Complaint itself,\u201d id.\n\nat 1, the appendix identifies where each reproduced statement appears in the Complaint. ECF 45-\n\n1. The appendix adds nothing about how the Court should consider the Complaint\u2019s allegations,\n\nhowever, because, again, it is non-argumentative. Improperly, it is Plaintiffs who use their motion\n\nto strike to characterize the Complaint and argue how the Court should view and evaluate it, ECF\n\n47 at 1-3, thereby expanding their MTD-merits argument beyond the 7,453 words that already\n\ncomprise their MTD response. See ECF 46. For these reasons, the Court should deny Plaintiffs\u2019\n\nrequest to strike the appendix.\n\n\n\n\n -3-\n\fCase No. 1:25-cv-00341-DDD-KAS Document 48 filed 11/12/25 USDC Colorado\n pg 4 of 10\n\n\n\n\n2. Defendants Properly Attached Undisputedly Authentic Documents the Complaint\n References that Are Central to Plaintiffs\u2019 Claims\n\n Equally baseless is Plaintiffs\u2019 motion to strike the MTD\u2019s exhibits or, alternatively, convert\n\nthe MTD to a motion for summary judgment (\u201cMSJ\u201d) and thus circumvent the PSLRA\u2019s automatic\n\nstay of discovery during the pendency of Defendants\u2019 MTD.3 Tenth Circuit law is clear: courts\n\nmay consider, without converting a motion to dismiss to an MSJ, \u201c\u2018documents referred to in the\n\ncomplaint if the documents are central to the plaintiff\u2019s claim and the parties do not dispute the\n\ndocuments\u2019 authenticity.\u2019\u201d Smallen v. Western Union Co., 950 F.3d 1297, 1305 (10th Cir. 2020)\n\n(quoting Employees\u2019 Ret. Sys. of R.I. v. Williams Cos., 889 F.3d 1153, 1158 (10th Cir. 2018)\n\n(quotation omitted)). \u201cIn securities cases it is not unusual to consider \u2026 \u2018public documents filed\n\nwith the SEC [Securities and Exchange Commission], and documents the plaintiffs relied upon in\n\nbringing suit.\u2019\u201d Williams Cos., 889 F.3d at 1158 (quoting Slater v. A.G. Edwards & Sons, Inc.,\n\n719 F.3d 1190, 1196 (10th Cir. 2013)). As set forth in the MTD, each of its exhibits, several of\n\nwhich are SEC filings, is an indisputably authentic document that is referenced in the Complaint\n\nand central to Plaintiffs\u2019 claims. MTD at 2 n.2. Neither Plaintiffs\u2019 motion to strike nor their\n\nresponse to the MTD denies that the exhibits are authentic, referenced in the Complaint, and central\n\nto the Complaint\u2019s claims. See ECF 47 at 1-7; ECF 46 at 1-24.\n\n Relying on a Ninth Circuit case, Plaintiffs label Defendants\u2019 submission of the exhibits\n\n\u201cabusive.\u201d ECF 47 at 3-4 (citing Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir.\n\n2018)). But Khoja suggests nothing of the sort. The practice it criticizes is using extrinsic\n\ndocuments \u201cto resolve competing theories against the complaint,\u201d like adopting a construction of\n\nan investor call transcript that is \u201csubject to varying interpretations.\u201d 899 F.3d at 998-1000\n\n\n\n3\n The PSLRA (Private Securities Litigation Reform Act) provides for an automatic stay of\ndiscovery during the pendency of a motion to dismiss. 15 U.S.C. \u00a7 78u-4(b)(3)(B).\n\n\n -4-\n\fCase No. 1:25-cv-00341-DDD-KAS Document 48 filed 11/12/25 USDC Colorado\n pg 5 of 10\n\n\n\n\n(quotation omitted). The opinion specifically acknowledges the Supreme Court\u2019s admonition that\n\n\u201cin assessing securities fraud claims, \u2018courts must consider,\u2019\u201d not only \u201c\u2018the complaint in its\n\nentirety,\u2019\u201d but \u201c\u2018other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to\n\ndismiss, in particular, documents incorporated into the complaint by reference.\u2019\u201d Id. at 998\n\n(quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)) (emphasis added).\n\nThis incorporation-by-reference doctrine\u2014the \u201cdoctrine that treats certain documents as though\n\nthey are part of the complaint\u201d\u2014\u201cprevents plaintiffs from selecting only portions of documents\n\nthat support their claims, while omitting portions of those very documents that weaken \u2013 or doom\n\n\u2013 their claims.\u201d Id. at 1002. Khoja went on to discuss when Ninth Circuit courts should consider\n\ndocuments the complaint references, id. at 1002-08, but that discussion is immaterial here because,\n\nas shown above, Tenth Circuit law on that subject is well developed.\n\n Plaintiffs also accuse Defendants of \u201clarding\u201d up the record. ECF 47 at 3. But the volume\n\nof the MTD\u2019s exhibits is a function of the documents on which the Complaint relies. Though\n\nDefendants generally filed the full documents out of respect for the principle of completeness, the\n\nMTD cites specific pages of each one. According to PACER, the MTD exhibits in this case are\n\nless than half the volume of those in Akhras. Compare ECF 45 to 45-15 with Akhras, ECF 60 to\n\n60-21. In granting the Akhras motion to dismiss, the Court cited some of the exhibits,\n\ndemonstrating further the propriety of considering documents outside the complaint when deciding\n\na securities-case motion to dismiss. Akhras, ECF 64 at 7. None of this is a reason to strike the\n\nexhibits or convert Defendants\u2019 MTD to an MSJ.\n\n Plaintiffs\u2019 remaining arguments are more examples of their doing what they falsely accuse\n\nDefendants of doing: expanding their MTD merits argument far beyond the 7,500-word limit for\n\ntheir MTD response. Arguments about how the Court should consider the exhibits\u2019 \u201cquantity of\n\n\n\n\n -5-\n\fCase No. 1:25-cv-00341-DDD-KAS Document 48 filed 11/12/25 USDC Colorado\n pg 6 of 10\n\n\n\n\ninformation\u201d versus what they contend is the \u201cquality of the Complaint\u2019s allegations,\u201d ECF 47 at\n\n3-4; the matter in the exhibits and the \u201cfactual universe\u201d they create, id. at 4; the significance to\n\nthe MTD of the cautionary language in Newmont\u2019s 2023 Form 10-K, id. at 5; and that Defendants,\n\nin the MTD, \u201ctake statements in exhibits out of context,\u201d id. at 6, are not arguments about whether\n\nthe exhibits meet the Tenth Circuit\u2019s standard for considering documents outside the Complaint.\n\nThey are MTD merits arguments.\n\n Plaintiffs try to shoehorn these arguments into a motion-to-strike format by saying that\n\n\u201c[w]ith the exception of perhaps several pages from the 2023 10-K, Defendants assert no proper\n\npurpose for which the Court should consider the 14 Exhibits,\u201d so the Court \u201cshould reject the\n\nexhibits to avoid the risk that any or all cumulatively impacts its evaluation of the Complaint\u2019s\n\nsufficiency.\u201d Id. at 7. But Plaintiffs cite no case striking exhibits for such a reason. Nor is there\n\nrisk that the Court\u2019s evaluation of the MTD will be unduly influenced by \u201ccumulativ[e] impac[t].\u201d\n\nDefendants trust that the Court will decide the MTD based on all the pertinent considerations,\n\nincluding the parties\u2019 briefs, the Complaint, the relevant portions of the exhibits, and the law.\n\n In any event, the MTD makes clear the reasons it cites each exhibit. Most of the MTD\u2019s\n\nexhibit citations are to disclosures Newmont made to the investing public setting forth cautions it\n\nprovided about the Newcrest acquisition, the Lihir and Brucejack mines, and the challenged\n\nprojections; risk factors it identified for investors; explanations it made to investors that certain\n\nstatements were forward-looking; and explanations of adverse incidents that occurred at mines\n\nother than Lihir and Brucejack. See MTD at 3-8, 14 & n.10, 16, 22 (discussing Exs. 2-11, 13). The\n\nrelevance of these citations, and the purpose for which Defendants offer the exhibits to which the\n\ncitations refer, is not the truth of the underlying assertions but the undisputed fact that Newmont\n\nmade the disclosures to the public. As the MTD explains, that Newmont made these disclosures is\n\n\n\n\n -6-\n\fCase No. 1:25-cv-00341-DDD-KAS Document 48 filed 11/12/25 USDC Colorado\n pg 7 of 10\n\n\n\n\nlegally significant. See id. Other exhibit citations provide a fuller picture surrounding the forecasts\n\nand other challenged statements that the Complaint only partially quotes or describes. See id. at 2,\n\n5 (discussing Exs. 1-2, 11). Citations to the remaining exhibits similarly provide context for the\n\nstatements that Plaintiffs referred to from the UBS and BNP Paribas reports cited in their\n\nComplaint. See id. at 13 (discussing Exs. 12, 14). Because the Complaint asserts, for example, that\n\nUBS \u201cexpressed its belief\u201d in its September 17, 2024 report (Ex. 14), see ECF 39 \u00b6 133, Defendants\n\nare entitled to show other beliefs UBS expressed in the document beyond the ones the Complaint\n\ncherry-picks.\n\n In sum, the Court should reject Plaintiffs\u2019 attempt to use their motion to strike (and, we can\n\nanticipate, their forthcoming reply brief in support of the motion to strike) to expand their MTD\n\narguments in violation of the Court\u2019s length-of-brief order (ECF 43). Because the MTD\u2019s exhibits\n\nare all referenced in the Complaint, central to its claims, and undisputedly authentic, the motion to\n\nstrike should be denied.\n\n November 12, 2025. SHOEMAKER GHISELLI +\n SCHWARTZ, LLC\n\n /s/ Paul H. Schwartz_______\n Paul H. Schwartz\n 1811 Pearl Street\n Boulder, CO 80302\n Tel: (303) 530-3452\n Fax: (303) 530-4071\n Email: pschwartz@sgslitigation.com\n\n WACHTELL, LIPTON, ROSEN &\n KATZ\n\n Jonathan M. Moses\n Carrie M. Reilly\n Lorenzo A. H. Villegas\n 51 W. 52nd Street\n New York, NY 10019\n Tel: (212) 403-1000\n Fax: (212) 403-2000\n\n\n -7-\n\fCase No. 1:25-cv-00341-DDD-KAS Document 48 filed 11/12/25 USDC Colorado\n pg 8 of 10\n\n\n\n\n Email: JMMoses@wlrk.com\n Email: CMReilly@wlrk.com\n Email: LVillegas@wlrk.com\n\n Attorneys for Defendants Newmont\n Corporation, Thomas R. Palmer,\n Natascha Viljoen, Karyn F. Ovelmen, and\n Peter Toth\n\n\n\n\n -8-\n\fCase No. 1:25-cv-00341-DDD-KAS Document 48 filed 11/12/25 USDC Colorado\n pg 9 of 10\n\n\n\n\n PRACTICE STANDARD III(A)(1) CERTIFICATE\n\n I hereby certify that the foregoing motion complies with the type-volume limitation set\n\nforth in Judge Domenico\u2019s Practice Standard III(A)(1).\n\n /s/ Paul H. Schwartz\n Paul H. Schwartz\n\n\n\n\n -9-\n\fCase No. 1:25-cv-00341-DDD-KAS Document 48 filed 11/12/25 USDC Colorado\n pg 10 of 10\n\n\n\n\n CERTIFICATE OF SERVICE\n\n I hereby certify that on November 12, 2025, a true and correct copy of the foregoing\n\nDEFENDANTS\u2019 OPPOSITION TO PLAINTIFFS\u2019 MOTION TO STRIKE OR TO\n\nCONVERT DEFENDANTS\u2019 MOTION TO DISMISS TO A MOTION FOR SUMMARY\n\nJUDGMENT AND FOR FULL DISCOVERY was e-filed with the Court through CM/ECF and\n\nserved on all counsel of record.\n\n /s/ Paul H. Schwartz\n Paul H. Schwartz\n\n\n\n\n -10-\n\f","ocr_status":1,"date_upload":"2026-05-12T03:09:35.502679-07:00","document_number":"48","attachment_number":null,"pacer_doc_id":"039012305262","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-12-25T19:41:42.361968-08:00","date_modified":"2025-12-25T19:41:42.379342-08:00","date_filed":"2025-11-12","time_filed":null,"entry_number":48,"recap_sequence_number":"2025-11-12.001","pacer_sequence_number":161,"description":"RESPONSE to 47 MOTION to Strike 45 MOTION to Dismiss the Amended Complaint or to Convert Defendants' Motion to Dismiss to a Motion for Summary Judgment and For Full Discovery filed by Defendants Newmont Corporation, Karyn F. Ovelmen, Thomas R. Palmer, Peter Toth, Natascha Viljoen. (Schwartz, Paul) (Entered: 11/12/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/448317488/","id":448317488,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/69603503/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/463090138/","id":463090138,"tags":[],"absolute_url":"/docket/69603503/46/karas-v-newmont-corporation/","date_created":"2025-12-25T19:41:42.080348-08:00","date_modified":"2025-12-25T19:41:42.100254-08:00","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":"46","attachment_number":null,"pacer_doc_id":"039012288769","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-12-25T19:41:42.032525-08:00","date_modified":"2025-12-25T19:41:42.047613-08:00","date_filed":"2025-11-04","time_filed":null,"entry_number":46,"recap_sequence_number":"2025-11-04.001","pacer_sequence_number":153,"description":"RESPONSE to 45 MOTION to Dismiss the Amended Complaint Attorney Jonathan D. Park added to party James Karas(pty:pla), Attorney Jonathan D. Park added to party Shahid Latif Mian(pty:mov) filed by Movants Catherine Almrud Holdings Inc., Shahid Latif Mian, Plaintiff James Karas. (Attachments: # 1 Exhibit Order on Motion to Dismiss, Akhras v. SSR Mining Inc., Civil Action No. 1:24-cv-00739-DDD-TPO (D. Colo. Sep. 30, 2025))(Park, Jonathan) (Entered: 11/04/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/448317487/","id":448317487,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/69603503/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/463090137/","id":463090137,"tags":[],"absolute_url":"/docket/69603503/44/karas-v-newmont-corporation/","date_created":"2025-12-25T19:41:41.861355-08:00","date_modified":"2025-12-25T19:41:41.882789-08:00","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":"44","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-12-25T19:41:41.804776-08:00","date_modified":"2025-12-25T19:41:41.819690-08:00","date_filed":"2025-09-05","time_filed":null,"entry_number":44,"recap_sequence_number":"2025-09-05.001","pacer_sequence_number":null,"description":"ORDER GRANTING 43 Unopposed Motion for Leave to Exceed Word Limitation. The defendants may file a single motion to dismiss not to exceed 7,500 words. The plaintiff's response must not exceed 7,500 words, and the defendants may file a single reply not to exceed 3,500 words. SO ORDERED by Judge Daniel D. Domenico on 9/5/2025. Text Only Entry (dddlc1, ) (Entered: 09/05/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/448317486/","id":448317486,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/69603503/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/463090136/","id":463090136,"tags":[],"absolute_url":"/docket/69603503/42/karas-v-newmont-corporation/","date_created":"2025-12-25T19:41:41.657876-08:00","date_modified":"2025-12-25T19:41:41.676271-08:00","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":"42","attachment_number":null,"pacer_doc_id":"039012073550","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-12-25T19:41:41.610901-08:00","date_modified":"2025-12-25T19:41:41.623257-08:00","date_filed":"2025-07-16","time_filed":null,"entry_number":42,"recap_sequence_number":"2025-07-16.001","pacer_sequence_number":143,"description":"NOTICE of Entry of Appearance by Jonathan D. Park on behalf of Catherine Almrud Holdings Inc.Attorney Jonathan D. Park added to party Catherine Almrud Holdings Inc.(pty:mov) (Park, Jonathan) (Entered: 07/16/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/448317485/","id":448317485,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/69603503/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/463090135/","id":463090135,"tags":[],"absolute_url":"/docket/69603503/41/karas-v-newmont-corporation/","date_created":"2025-12-25T19:41:41.560561-08:00","date_modified":"2025-12-25T19:41:41.579548-08:00","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":"41","attachment_number":null,"pacer_doc_id":"039012071856","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-12-25T19:41:41.513347-08:00","date_modified":"2025-12-25T19:41:41.525884-08:00","date_filed":"2025-07-15","time_filed":null,"entry_number":41,"recap_sequence_number":"2025-07-15.002","pacer_sequence_number":141,"description":"SUMMONS issued by Clerk on 7/15/2025. (angar, ) (Entered: 07/15/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/448317484/","id":448317484,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/69603503/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/463090134/","id":463090134,"tags":[],"absolute_url":"/docket/69603503/40/karas-v-newmont-corporation/","date_created":"2025-12-25T19:41:41.462095-08:00","date_modified":"2025-12-25T19:41:41.480158-08:00","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":"40","attachment_number":null,"pacer_doc_id":"039012071400","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-12-25T19:41:41.412903-08:00","date_modified":"2025-12-25T19:41:41.427654-08:00","date_filed":"2025-07-15","time_filed":null,"entry_number":40,"recap_sequence_number":"2025-07-15.001","pacer_sequence_number":138,"description":"SUMMONS REQUEST as to Peter Toth re 39 Amended Complaint by Movants Shahid Latif Mian, Catherine Almrud Holdings Inc., Plaintiff James Karas. (Goldberg, Jacob) (Entered: 07/15/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/448317483/","id":448317483,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/69603503/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/463090133/","id":463090133,"tags":[],"absolute_url":"/docket/69603503/39/karas-v-newmont-corporation/","date_created":"2025-12-25T19:41:41.361848-08:00","date_modified":"2025-12-27T18:54:22.147526-08:00","sha1":"92df57535a8e5b9d7953d84c74d0954390e3a67f","page_count":84,"file_size":1969821,"filepath_local":"recap/gov.uscourts.cod.240976/gov.uscourts.cod.240976.39.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cod.240976/gov.uscourts.cod.240976.39.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 1 of 84\n\n\n\n\n IN THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLORADO\n\nCivil Action No. 1:25-cv-00341-DDD-KAS\n\nJAMES KARAS, Individually and on Behalf of All Others Similarly Situated,\n\nPlaintiffs,\n\nv.\n\nNEWMONT CORPORATION, THOMAS R. PALMER, NATASCHA VILJOEN, KARYN F.\nOVELMEN, and PETER TOTH,\n\nDefendants.\n\n\n AMENDED COMPLAINT FOR VIOLAION\n OF THE FEDERAL SECURITIES LAWS\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 2 of 84\n\n\n\n TABLE OF CONTENTS\n\n\nI. NATURE OF THE CASE ........................................................................................................ 1\n\nII. JURISDICATION AND VENUE ............................................................................................ 3\n\nIII. PARTIES .................................................................................................................................. 4\n\nIV. SUBSTANTIVE ALLEGATIONS ........................................................................................... 6\n\n A. Newmont\u2019s Business .................................................................................................... 6\n\n 1. Production of Gold and Other Metals .............................................................. 7\n\n 2. Costs associated with mining ........................................................................... 9\n\n B. Newmont Focuses on Tier 1 Assets ........................................................................... 11\n\n 1. Tier 1 Assets ................................................................................................... 11\n\n 2. The Newcrest acquisition ............................................................................... 12\n\n 3. The Tier 1 Assets Newmont Acquired From Newcrest .................................. 16\n\n a) Lihir .................................................................................................... 16\n\n b) Brucejack ............................................................................................ 27\n\n C. Defendants Focus on Increasing Production and Decreasing Costs .......................... 35\n\nV. FALSE AND MISLEADING STATEMENTS ...................................................................... 43\n\nVI. THE TRUTH EMERGES ...................................................................................................... 57\n\nVII. INSIDER TRADING ............................................................................................................. 66\n\n A. Defendants Palmer and Toth Institute Stock Trading Plans at Suspicious\n Times, Enabling Them to Sell Material Amounts of their Own Shares at\n Artificially Inflated Prices .......................................................................................... 66\n\n 1. Palmer\u2019s Stock Sales Before and After He Instituted His 10b5-1 Plan ......... 66\n\n 2. Toth\u2019s Stock Sales Before and After He Instituted His 10b5-1 Plan .............. 68\n\n 3. The Insider Sales by Palmer and Toth Demonstrate Scienter ........................ 69\n\nVIII. LOSS CAUSATION AND ECONOMIC LOSS .................................................................... 70\n\n\n i\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 3 of 84\n\n\n\nIX. NEITHER THE PSLRA SAFE HARBOR NOR THE BESPEAKS CASUTION\n DOCTRINE APPLIES ........................................................................................................... 71\n\nX. THE FRAUD ON THE MARKET PRESUMPTION ........................................................... 72\n\nXI. CLASS ALLEGATIONS ....................................................................................................... 73\n\nXII. COUNTS ................................................................................................................................ 75\n\nXIII. PRAYER FOR RELIEF ......................................................................................................... 79\n\nXIV. JURY DEMAND .................................................................................................................... 80\n\n\n\n\n ii\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 4 of 84\n\n\n\n 1. Lead Plaintiffs Shahid Latif Mian (\u201cMian\u201d) and Catherine Almrud Holdings, Inc.\n\n(\u201cAlmrud Holdings\u201d), and named Plaintiff James Karas (\u201cKaras\u201d and together with Almrud Holdings\n\nand Mian \u201cPlaintiffs\u201d), individually and on behalf of all other persons similarly situated, by their\n\nundersigned attorneys, allege in this Amended Complaint for violations of the federal securities laws\n\n(\u201cComplaint\u201d) the following based upon knowledge with respect to their own acts, and upon facts\n\nobtained through an investigation conducted by their counsel, including, without limitation: (a)\n\nreview and analysis of Newmont Corporation\u2019s (\u201cNewmont\u201d or \u201cCompany\u201d) filings with the United\n\nStates Securities and Exchange Commission (\u201cSEC\u201d); (b) review and analysis of Newmont\u2019s public\n\ndocuments, conference calls, press releases, and stock chart; (c) review and analysis of securities\n\nanalysts\u2019 reports and advisories concerning the Company; and (d) information readily obtainable on\n\nthe internet. Plaintiffs believe that further substantial evidentiary support will exist for the allegations\n\nset forth herein after a reasonable opportunity for discovery. Most of the facts supporting the\n\nallegations contained herein are known only to the Defendants or are exclusively within their control.\n\nI. NATURE OF THE CASE\n\n 2. This is a federal securities class action on behalf of all investors who purchased or\n\notherwise acquired Newmont common stock between July 24, 2024, and October 23, 2024, inclusive\n\n(\u201cClass Period\u201d), seeking to recover damages caused by Defendants\u2019 violations of Sections 10(b) and\n\n20(a) of the Securities Exchange Act of 1934 (\u201cExchange Act\u201d) and SEC Rule 10b-5, promulgated\n\nthereunder (\u201cClass\u201d).\n\n 3. Newmont is the world\u2019s largest gold mining company by market cap. In 2023, it\n\nacquired Newcrest Mining Limited (\u201cNewcrest\u201d), another large cap gold mining company. Newcrest\n\nowned a portfolio of mines, including, notably, Lihir, in Papua New Guinea, and Brucejack, in\n\nNorthwest Canada. Defendants repeatedly boasted about the Newcrest acquisition, touting plans to\n\nincrease production and reduce costs. In reality, Newmont management conducted woefully\n 1\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 5 of 84\n\n\n\ninsufficient due diligence to support these claims. In actuality, the Lihir mine was prone to significant\n\nshortfalls in reliability and safety, and the \u201cnuggety\u201d ore of the Brucejack deposit was of virtually\n\nunprecedented variability, making it extremely difficult to accurately predict the \u201chead grade\u201d\n\n(concentration of gold) of ore fed to the Brucejack mill in any particular quarter. Indeed, Brucejack\u2019s\n\nnuggety ore required significantly more stope development than had been accomplished by Newcrest,\n\nrequiring time consuming and costly mine development operations.\n\n 4. In February 2024, after three months operating the mines Newmont acquired from\n\nNewcrest, Defendants issued guidance for 2024 and beyond, forecasting increasing production year\n\nover year and decreasing all-in-sustaining costs (\u201cAISC\u201d). Whether Defendants issued their February\n\n2024 guidance in good faith is not at issue. No later than late July 2024, however, with Newmont\n\nhaving owned and operated the Newcrest projects for over eight months, Defendants knew or\n\nrecklessly disregarded that materially adverse operational, production, and cost issues at Lihir (such\n\nas outdated and unreliable machinery, ocean dumping, and potential for waste overflow) and\n\noperational and grade issues at Brucejack (nuggety nature of deposits that required further, expensive\n\ndevelopment of the site) would adversely impact Newmont\u2019s production, margins, and financial\n\nresults in 3Q2024 and beyond.\n\n 5. On October 23, 2024, and October 24, 2024, Defendants shocked investors, disclosing\n\nthat material, adverse production and cost issues had caused Newmont to report poor results from at\n\nleast two gold mines it had acquired a year earlier. Analysts at J.P. Morgan summarized the bad news.\n\nNewmont\u2019s EBITDA was 15% below estimates and its most salient measure of costs, all in sustaining\n\ncosts, were 22% higher than J.P. Morgan\u2019s forecast. In addition, gold production at important mines\n\nwas flat, and Defendants disclosed for the first time that the increase in production and decrease in\n\ncosts through 2028 which they had repeatedly forecast was now highly unlikely in the near and\n\nmedium terms. In direct response to this news, Newmont\u2019s common stock price fell nearly 15% from\n 2\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 6 of 84\n\n\n\nan October 23, 2024, closing price of $57.74 to an October 24, 2024, closing price of $49.25 on\n\nrelatively high volume of over 37 million shares traded.\n\n 6. In direct response to this news, Newmont\u2019s common stock price fell nearly 15% from\n\nan October 23, 2024 closing price of $57.74 per share to an October 24, 2024 closing price of $49.25\n\nper share on relatively high volume of over 37 million shares traded, causing investor losses.\n\n 7. Plaintiffs bring this action, on behalf of themselves and other similarly situated\n\ninvestors, to recover losses sustained in connection with Defendants\u2019 fraud.\n\nII. JURISDICATION AND VENUE\n\n 8. Plaintiffs assert claims under and pursuant to \u00a7\u00a710(b) and 20(a) of the Securities\n\nExchange Act, 15 U.S.C. \u00a7\u00a7 78j(b) and 78t(a), and SEC Rule 10b-5, promulgated thereunder. 17\n\nC.F.R. \u00a7240.10b-5).\n\n 9. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C.\n\n\u00a7\u00a71331 and 1337, and Section 27 of the Exchange Act, 15 U.S.C. \u00a778aa.\n\n 10. Venue is proper in this District pursuant to \u00a727 of the Exchange Act and 28 U.S.C.\n\n\u00a71391(b), as Defendant Newmont is headquartered in this District and a significant portion of its\n\nbusiness, actions, and the subsequent damages to Plaintiff and the Class, took place within this\n\nDistrict.\n\n 11. In connection with the acts, conduct and other wrongs alleged in this Complaint,\n\nDefendants, directly or indirectly, used the means and instrumentalities of interstate commerce,\n\nincluding but not limited to, the United States mail, interstate telephone communications and the\n\nfacilities of the national securities exchange.\n\n\n\n\n 3\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 7 of 84\n\n\n\nIII. PARTIES\n\n 12. Plaintiff Mian\u2019s Certification (Dkt. No. 18-2) evidences his transactions in Newmont\n\ncommon during the Class Period. Mian purchased Newmont stock at artificially inflated prices and\n\nwas damaged upon the revelation of the Defendants\u2019 fraud.\n\n 13. Plaintiff Almrud Holdings\u2019s Certification (Dkt. No. 19-5) evidences its transactions in\n\nNewmont common during the Class Period. Almrud Holdings purchased Newmont stock at\n\nartificially inflated prices and was damaged upon the revelation of the Defendants\u2019 fraud.\n\n 14. Plaintiff Karas\u2019s Certification (Dkt. No. 16-1) evidences his transactions in Newmont\n\ncommon during the Class Period. Plaintiff Karas purchased Newmont stock at artificially inflated\n\nprices and was damaged upon the revelation of the Defendants\u2019 fraud.\n\n 15. Newmont Corporation is a Delaware corporation with its principal executive offices\n\nlocated at 6900 E Layton Avenue, Denver, Colorado 80237. During the Class Period, the Company\u2019s\n\ncommon stock traded on the New York Stock Exchange (the \u201cNYSE\u201d) under the symbol \u201cNEM.\u201d\n\n 16. Defendant Thomas R. Palmer (\u201cPalmer\u201d) was, at all relevant times, the President and\n\nChief Executive Officer (\u201cCEO\u201d) of Newmont. According to the Company\u2019 March 11, 2024, Proxy\n\nStatement on Schedule 14(a), \u201c[a]s President, CEO, and a member of the Board of Directors, Mr.\n\nPalmer is responsible for setting and overseeing the Company\u2019s strategic direction, operating results,\n\norganizational health, culture, ethics and compliance, and corporate responsibility.\u201d\n\n 17. Defendant Natascha Viljoen (\u201cViljoen\u201d) was, at all relevant times, Executive Vice\n\nPresident and Chief Operating Officer (\u201cCOO\u201d) of Newmont. According to the Company\u2019 March 11,\n\n2024, Proxy Statement on Schedule 14(a), \u201c[a]s [COO], Ms. Viljoen serves as a member of\n\nNewmont\u2019s executive leadership team that sets the strategic direction for the Company. As of year-\n\nend 2023,\u201d the Proxy continued, \u201cMs. Viljoen was responsible for leading the mine operations in\n\n\n\n 4\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 8 of 84\n\n\n\nAustralia, Latin America and Caribbean, North America, and Papua New Guinea, as well as\n\noverseeing Global Projects.\u201d\n\n 18. Defendant Karyn F. Ovelmen (\u201cOvelmen\u201d) was, at all relevant times, the Executive\n\nVice President and Chief Financial Officer (\u201cCFO\u201d) of Newmont. According to the Company\u2019 March\n\n11, 2024, Proxy Statement on Schedule 14(a) \u201c[a]s [CFO], Ms. Ovelmen serves as a member of\n\nNewmont\u2019s executive leadership team that sets the strategic direction for the Company. Ms. Ovelmen\n\nleads the Company\u2019s financial planning and analysis, accounting, controller, tax, treasury, and\n\ninternal audit functions, as well as oversees investor relations and enterprise risk management.\u201d\n\n 19. Defendant Peter Toth (\u201cToth\u201d) was, at all relevant times Newmont\u2019s Chief\n\nDevelopment Officer, a member of Newmont\u2019s executive leadership team that sets the strategic\n\ndirection for the Company. Toth was responsible for leading the development of Newmont\u2019s mid-\n\nand long-term strategy, as well as leading the corporate development, commercial, and external\n\nrelations functions.\n\n 20. Defendants Palmer, Viljoen, Ovelmen, and Toth are sometimes referred to herein as\n\nthe \u201cIndividual Defendants.\u201d Newmont together with the Individual Defendants are referred to herein\n\nas the \u201cDefendants.\u201d\n\n 21. The Individual Defendants, because of their positions with the Company, possessed\n\nthe power and authority to control the contents of Newmont reports to the SEC, press releases, and\n\npresentations to securities analysts, money and portfolio managers, and institutional investors, i.e.,\n\nthe market. Each Individual Defendant was provided with copies of the Company\u2019s reports and press\n\nreleases alleged herein to be misleading prior to, or shortly after, their issuance and had the ability\n\nand opportunity to prevent their issuance or cause them to be corrected. Because of their positions\n\nand access to material non-public information available to them, each of these Individual Defendants\n\nknew that the adverse facts specified herein had not been disclosed to, and were being concealed\n 5\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 9 of 84\n\n\n\nfrom, the public, and that the positive representations which were being made were then materially\n\nfalse and/or misleading. The Individual Defendants are liable for the false statements pleaded herein,\n\nas those statements were each \u201cgroup-published\u201d information, the result of the collective actions of\n\nthe Individual Defendants.\n\n 22. Newmont is liable for the acts of its employees under the doctrine of respondeat\n\nsuperior and common law principles of agency as all the wrongful acts complained of herein were\n\ncarried out within the scope of their employment with authorization.\n\n 23. The scienter of the Individual Defendants, and other employees and agents of the\n\nCompany, are similarly imputed to Newmont under respondeat superior and agency principles.\n\nIV. SUBSTANTIVE ALLEGATIONS\n\n A. Newmont\u2019s Business\n\n 24. In its Annual Report on Form 10-K for the year ended December 31, 2023, filed with\n\nthe SEC on February 29, 2024, (\u201c2023 10-K\u201d), Newmont describes the Company as \u201cprimarily a gold\n\nproducer with significant operations and/or assets in the United States, Canada, Mexico, Dominican\n\nRepublic, Peru, Suriname, Argentina, Chile, Australia, Papua New Guinea, Ecuador, Fiji and Ghana.\n\nAt December 31, 2023,\u201d the 2023 10-K continued, \u201cNewmont had attributable proven and probable\n\ngold reserves of 135.9 million ounces, attributable measured and indicated gold resources of 104.8\n\nmillion ounces, attributable inferred gold resources of 69.1 million ounces, and an aggregate land\n\nposition of approximately 24,900 square miles (64,400 square kilometers).\u201d In addition to gold,\n\nNewmont produces \u201ccopper, silver, lead, and zinc.\u201d Defendants describe the Company \u201c[a] the\n\nworld\u2019s leading gold company, . . . committed to creating value and improving lives through\n\nsustainable and responsible mining.\u201d\n\n\n\n\n 6\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 10 of 84\n\n\n\n 25. According to the 2023 10-K, with respect to its competition, Defendants boasted of\n\nhigh-quality assets and lower than average all-in sustaining costs (\u201cAISC\u201d) 1, stating:\n\n The top 10 producers of gold comprise approximately twenty-five\n percent of total worldwide mined gold production. We currently rank\n as the top gold producer with approximately five percent of estimated\n total worldwide mined gold production. Our competitive position is\n based on the size and grade of our ore bodies anchored in a large\n portfolio of Tier 1 assets located in favorable mining jurisdictions. A\n Tier 1 asset is defined as having, on average over such asset\u2019s mine\n life: (1) production of over 500,000 GEO\u2019s/year on a consolidated\n basis, (2) average AISC/oz in the lower half of the industry cost curve,\n (3) an expected mine life of over 10 years, and (4) operations in\n countries that are classified in the A and B rating ranges for Moody\u2019s,\n S&P and Fitch.\n\n We have a diverse portfolio of mining operations with varying ore\n grades and cost structures. Our costs are driven by the location, grade\n and nature of our ore bodies, and the level of input costs, including\n energy, labor and equipment. The metals markets are cyclical, and our\n ability to maintain our competitive position over the long term is based\n on our ability to acquire and develop quality deposits, hire and retain a\n skilled workforce, and to manage our costs.\n\n 1. Production of Gold and Other Metals\n\n 26. Newmont primarily produces gold but also other metals. Per industry standard,\n\nNewmont uses the mining industry term \u201cgold equivalent ounces\u201d (\u201cGEOs\u201d) to express the value of\n\ngold production alongside other mined materials, like silver, copper, or zinc. Newmont expresses\n\nGEOs by converting the revenue from these other metals into an equivalent amount of gold, based on\n\ntheir respective market prices. The GEOs of those non-gold materials can be added to the amount of\n\ngold produced to create an overall total of GEOs. According to the 2023 10-K, \u201cNewmont has\n\ndeveloped gold equivalent ounces (\u201cGEO\u201d) metrics to provide a comparable basis for analysis and\n\n\n\n1\n AISC is a metric used by gold mining companies to calculate the cost of their operations. AISC\nconsists of cash costs, sustaining capital, exploration expenses, and general and administrative\nexpenses. AISC per ounce quantifies how much it costs to extract each ounce of gold from a particular\nmine.\n 7\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 11 of 84\n\n\n\nunderstanding of our operations and performance related to copper, silver, lead and zinc.\u201d Moreover,\n\nthe 2023 10-K continued, the Company calculates GEOs \u201cas pounds or ounces produced multiplied\n\nby the ratio of the other metals\u2019 price to the gold price, using the metal prices\u201d for copper, silver, lead,\n\nand zinc.\n\n 27. Newmont\u2019s 2023 10-K described gold process as follows. For context, \u201ctailings\u201d are\n\nthose materials left over after the process of separating gold (or another valuable metal) from ore.\n\n Gold and Other Metals Processing Methods\n\n Dor\u00e9. Gold is extracted from naturally-oxidized ores by either milling\n or heap leaching, depending on the amount of gold contained in the ore,\n the amenability of the ore to treatment and related capital and operating\n costs. Higher grade oxide ores are generally processed through mills,\n where the ore is ground into a fine powder and mixed with water into\n a slurry, which then passes through a carbon-in-leach circuit to recover\n the gold. Lower grade oxide ores are generally processed using heap\n leaching. Heap leaching consists of stacking crushed or run-of-mine\n ore on impermeable, synthetically lined pads where a weak cyanide\n solution is applied to the surface of the heap to dissolve the gold\n contained within the ore. In both cases, the gold-bearing solution is\n then collected and pumped to process facilities to remove the gold by\n collection on carbon or by zinc precipitation.\n\n Gold contained in ores that are not naturally-oxidized can be directly\n milled if the gold is liberated and amenable to cyanidation, generally\n known as free milling ores. Ores that are not amenable to cyanidation,\n known as refractory ores, require more costly and complex processing\n techniques than oxide or free milling ore. Higher grade refractory ores\n are processed through either roasters or autoclaves. Roasters heat finely\n ground ore to a high temperature, burn off the carbon and oxidize the\n sulfide minerals that prevent efficient leaching. Autoclaves use heat,\n oxygen and pressure to oxidize sulfide ores.\n\n Some gold sulfide ores may be processed through a flotation plant. In\n flotation, ore is finely ground, turned into slurry, then placed in a tank\n known as a flotation cell. Chemicals are added to the slurry causing the\n gold-containing sulfides to attach to air bubbles and float to the top of\n the tank. The sulfides are removed from the cell and converted into a\n concentrate that can then be processed in an autoclave, roaster, or fine\n grinding circuit to recover the gold through leaching. Gold-bearing\n solution is then plated onto cathodes in an electrowinning process or\n\n 8\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 12 of 84\n\n\n\n precipitated using zinc powder. In both cases, the precipitate is melted\n with fluxes in a furnace to produce dor\u00e9.\n\n Concentrate. Sulfide ore is delivered to a crushing and grinding plant\n which feeds a sulfide processing plant. The sulfide processing plant\n primarily comprises lead and zinc flotation stages. In the lead and zinc\n flotation, the slurry is conditioned with reagents to activate the desired\n minerals and produce lead and zinc concentrate. The lead concentrate\n is highly enriched in gold and silver, with a smaller fraction of the\n precious metal recovered in the zinc concentrate. The resulting\n concentrate is sold to smelters or traders for further processing.\n\n Ore containing copper and gold is crushed to a coarse size at the mine\n and then transported via conveyor to a process plant, where it is further\n crushed and then finely ground as a slurry. The ore is initially treated\n by successive stages of flotation resulting in a gold/copper concentrate\n containing approximately 10% to 26% copper. The flotation tailings\n have a residual gold content that is recovered in either a carbon-in-leach\n circuit or is dewatered and loaded onto trucks for transportation off-\n site.\n\n Ore containing silver and gold is crushed to a coarse size at the mine\n and then transported via conveyor to a process plant, where it is further\n crushed and then finely ground as a slurry. The ore is initially treated\n by successive stages of flotation resulting in a gold-silver concentrate.\n The flotation tailings have a residual gold content that is recovered in\n either a carbon-in leach circuit or is dewatered and loaded onto trucks\n for transportation off-site. The gold-silver concentrate is further refined\n in the gold room to produce gold-silver dor\u00e9.\n\n 2. Costs associated with mining\n\n 28. The Company also describes the costs associated with production of gold and GEOs.\n\nA principle non-GAAP2 measure for assessing the costs to produce gold ounces or GEOs is \u201cAISC\u201d\n\nor all-in sustaining costs. According to Endnotes to Defendants\u2019 February 29, 2024, First Quarter\n\n2024 Investor Presentation (\u201c1Q2024 Investor Presentation\u201d), Slide 47, \u201cAISC or all-in sustaining\n\ncost is a non-GAAP metric. AISC as used in the Company\u2019s outlook is a forward-looking statement\n\nand is therefore subject to uncertainties.\u201d Defendants continued:\n\n\n\n2\n GAAP are generally accepted accounting principles.\n 9\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 13 of 84\n\n\n\n AISC a non-GAAP metric defined as the sum of cost applicable to sales\n (including all direct and indirect costs related to current gold\n production incurred to execute on the current mine plan), remediation\n costs (including operating accretion and amortization of asset\n retirement costs), G&A, exploration expense, advanced projects and\n R&D, treatment and refining costs, other expense, net of one-time\n adjustments, sustaining capital and finance lease payments.\n\n 29. Explaining the need for reporting actual and estimated AISC, the 2023 10-K states:\n\n Current GAAP measures used in the mining industry, such as cost of\n goods sold, do not capture all of the expenditures incurred to discover,\n develop and sustain production. Therefore, Newmont calculates All-In\n Sustaining Costs (\u201cAISC\u201d) based on the definition published by the\n World Gold Council. . . .\n\n AISC is a metric that expands on GAAP measures, such as cost of\n goods sold, and non-GAAP measures, such as costs applicable to sales\n per ounce, to provide visibility into the economics of our mining\n operations related to expenditures, operating performance and the\n ability to generate cash flow from our continuing operations. We\n believe that AISC is a non-GAAP measure that provides additional\n information to management, investors and others that aids in the\n understanding of the economics of our operations and performance\n compared to other producers and provides investors visibility by better\n defining the total costs associated with production.\n\n 30. The Company claims to adjust certain GAAP and non-GAAP measures in determining\n\nits AISC. According to the 2023 10-K, the components include, among others, costs applicable to\n\nsales (\u201cCAS\u201d), among others. The 2023 10-K defined CAS as:\n\n Costs applicable to sales. Includes all direct and indirect costs related\n to current production incurred to execute the current mine plan. We\n exclude certain exceptional or unusual amounts from CAS, such as\n significant revisions to recovery amounts. CAS includes by-product\n credits from certain metals obtained during the process of extracting\n and processing the primary ore-body. CAS is accounted for on an\n accrual basis and excludes Depreciation and amortization and\n Reclamation and remediation, which is consistent with our presentation\n of CAS on the Consolidated Statements of Operations. In determining\n AISC, only the CAS associated with producing and selling an ounce of\n gold is included in the measure. Therefore, the amount of gold CAS\n included in AISC is derived from the CAS presented in the Company\u2019s\n Consolidated Statements of Operations less the amount of CAS\n attributable to the production of other metals. The other metals' CAS at\n 10\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 14 of 84\n\n\n\n those mine sites is disclosed in Note 4 of the Consolidated Financial\n Statements. The allocation of CAS between gold and other metals is\n based upon the relative sales value of gold and other metals produced\n during the period.\n\n 31. In addition, with respect to CAS, the 2023 10-K provides tables, reconciling non-\n\nGAAP measures to the most directly comparable GAAP measures, explaining:\n\n Costs applicable to sales per ounce/gold equivalent ounce are non-\n GAAP financial measures. These measures are calculated by dividing\n the costs applicable to sales of gold and other metals by gold ounces or\n gold equivalent ounces sold, respectively. These measures are\n calculated for the periods presented on a consolidated basis. We believe\n that these measures provide additional information to management,\n investors and others that aids in the understanding of the economics of\n our operations and performance compared to other producers and\n provides investors visibility into the direct and indirect costs related to\n production, excluding depreciation and amortization, on a per\n ounce/gold equivalent ounce basis. Costs applicable to sales per\n ounce/gold equivalent ounce statistics are intended to provide\n additional information only and do not have any standardized meaning\n prescribed by GAAP and should not be considered in isolation or as a\n substitute for measures of performance prepared in accordance with\n GAAP. The measures are not necessarily indicative of operating profit\n or cash flow from operations as determined under GAAP. Other\n companies may calculate these measures differently.\n\n B. Newmont Focuses on Tier 1 Assets\n\n 1. Tier 1 Assets\n\n 32. In the 1Q2024 Investor Presentation, Slide 46, Defendants described a Tier 1 asset\n\n as having, on average over such asset\u2019s mine life: (1) production of\n over 500,000 GEO\u2019s/year on a consolidated basis, (2) average AISC/oz\n in the lower half of the industry cost curve, (3) an expected mine life\n of over 10 years, and (4) operations in countries that are classified in\n the A and B rating ranges for Moody\u2019s, S&P and Fitch. For the\n definition of GEOs and AISC, see Newmont\u2019s annual report on Form\n 10-K on file with the SEC. With respect to other assets in the industry,\n such terms and metrics are as published in public filings of the third\n party entities reporting with respect to those assets. Our methods of\n calculating operating metrics, such as AISC, and those of third parties\n may differ for similarly titled metrics published by other parties due to\n differences in methodology.\n\n\n 11\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 15 of 84\n\n\n\n 33. In the 2023 10-K, Defendants described Newmont as \u201c. . . the top gold producer with\n\napproximately five percent of estimated total worldwide mined gold production. Our competitive\n\nposition is based on the size and grade of our ore bodies anchored in a large portfolio of Tier 1 assets\n\nlocated in favorable mining jurisdictions.\u201d\n\n 34. In May 2023, Defendants announced that they had reached a deal to acquire a portfolio\n\nof Tier 1 assets from Newcrest, a deal that closed on November 6, 2023. According to the 2023 10-\n\nK, this acquisition caused Newmont\u2019s Board of Directors to engage in a strategic review as follows:\n\n Based on a comprehensive review of the Company\u2019s portfolio of assets\n following the Newcrest acquisition, the Company\u2019s Board of Directors\n approved a portfolio optimization program to divest six non-core assets\n and a development project in February 2024. The non-core assets to be\n divested include Akyem, CC&V, \u00c9l\u00e9onore, Porcupine, Musselwhite,\n Telfer, and a development project in Canada. In February 2024, the\n Company concluded that these non-core assets and the development\n project met the accounting requirements to be presented as Held for\n Sale in the first quarter of 2024, based on progress made through our\n active sales program and management\u2019s expectation that the sale is\n probable and will be completed within 12 months. As of December 31,\n 2023, the aggregate net book value of the non-core assets and the\n development project was $3,419[,000,000].\n\n 2. The Newcrest acquisition\n\n 35. In an April 10, 2023, press release, Defendants disclosed that \u201cNewmont Corp. . .\n\nsubmitted a revised non-binding indicative proposal to the Board of Directors of Newcrest Mining\n\nLimited (Newcrest) to acquire 100 percent of the issued share capital of Newcrest . . . . The Newcrest\n\nBoard of Directors,\u201d the press release continued, \u201cagreed to grant Newmont confirmatory due\n\ndiligence access to enable Newmont to put forward a binding proposal. Due diligence is expected to\n\nbe completed within approximately four weeks.\u201d Newcrest has indicated that it intends to grant\n\nexclusivity to Newmont during the due diligence period, with the terms of that exclusivity still to be\n\nagreed. Newcrest will also undertake confirmatory due diligence on Newmont during this period.\u201d\n\n\n\n 12\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 16 of 84\n\n\n\n 36. In that April 10, 2023, press release, Defendant Palmer stated \u201c[w]e are entering a new\n\nera in which mining companies must hold themselves to a higher standard of sustainability and long-\n\nterm value creation.\u201d He continued, \u201c[t]his transaction would strengthen our position as the world\u2019s\n\nleading gold company by joining two of the sector\u2019s top senior gold producers and setting the new\n\nstandard in safe, profitable and responsible mining.\u201d Defendant Palmer concluded that \u201c[t]ogether as\n\nthe clear gold-mining leader, we would be well-positioned to generate strong, stable and lasting\n\nreturns with best-in-class sustainability performance for decades to come.\u201d\n\n 37. During an April 27, 2023, conference call about the possible merger of Newcrest into\n\nNewmont, Defendant Palmer stated, \u201c[o]n April 10th, the Newcrest Board then agreed to grant\n\nNewmont access to confirmatory due diligence to enable us to put forward a binding proposal. . . .\u201d\n\nPalmer added that \u201c[b]ut I want to be clear with everyone on today's call, that we will continue to be\n\ndisciplined as we work through the due diligence process and determine synergies, and we will act in\n\nthe best interest of our shareholders.\u201d\n\n 38. Also on that April 27, 2023, conference call analyst Jackie Przybylowski asked about\n\nthe timing of the transaction\u2019s close and the prospects for integration. In response, Defendant Palmer\n\nstated, \u201c[w]e\u2019re certainly in due diligence, so first and foremost, we'll go through that due-diligence\n\nprocess as an exclusivity period for four weeks, but we will remain disciplined in terms of\n\nunderstanding that information and assessing that and making our judgments and decisions.\u201d\n\nDefendant Palmer continued, indicating that due diligence was \u201ca core capability of Newmont.\u201d He\n\ncontinued, praising Newmont\u2019s \u201coperating and technical teams,\u201d concluding, \u201cSo when it comes to\n\ndue diligence, we have a very strong team who is very experienced in doing this work. So we are\n\napplying the full force of the Newmont organization on this due diligence exercise.\u201d\n\n 39. Again, according to Defendant Palmer, Defendants had access to and \u201cbor[ed]\n\nthrough\u201d the data room Newcrest had established, scrutinizing resource models, mine plans, and other\n 13\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 17 of 84\n\n\n\nsource documents to assess fair value. In addition, he stated, \u201c[s]o as we think about due diligence\n\nand site visits, folks like Rob, Aaron Puna, Dean Gehring, all of my team with Bernard Wessels, Mia\n\nGous, Francois Hardy, so all very senior operational leaders at the site.\u201d About site visits, Defendant\n\nPalmer continued, \u201c. . . having senior leaders on the ground, any day to spend a day, but you learn a\n\nlot walking around an operation within a day in terms of the culture in that operation, in particularly,\n\nthe safety culture. And that is a very important part of our due diligence process . . . .\u201d\n\n 40. In a May 14, 2023, press release, Defendants announced that having completed due\n\ndiligence, Newmont had entered a definitive agreement to acquire Newcrest. In a presentation that\n\nday, defendants claimed to \u201c[f]urther strengthen[] Newmont\u2019s position as the responsible gold mining\n\nleader through the combination of high-quality operations, projects and reserves concentrated in low-\n\nrisk jurisdictions, including 10 Tier 1 operations that will support decades of safe, profitable and\n\nresponsible gold and copper production. The combination of Newmont and Newcrest,\u201d the\n\nannouncement continued, quoting Defendant Palmer, \u201crepresents an exceptional value proposition\n\nfor shareholders and other stakeholders. It creates an industry-leading portfolio with a multi-decade\n\ngold and copper production profile in the world\u2019s most favorable mining jurisdictions.\u201d In that same\n\nannouncement, Defendant Palmer described Newmont\u2019s due diligence process as \u201crobust, . . .\n\nidentifying a number of opportunities to unlock substantial value and will apply our experience and\n\nexpertise to Newcrest\u2019s complementary and exceptional portfolio of long-life, low-cost gold and\n\ncopper assets.\u201d\n\n 41. During a May 15, 2023, conference call about Newmont\u2019s acquisition of Newcrest,\n\nsupporting the quality of the due diligence Newmont conducted, Defendant Palmer stated, \u201c[a]s an\n\nimportant part of our due-diligence process over the last four weeks, we had key members of our\n\nexecutive team lead site visits.\u201d Defendant Palmer disclosed that \u201cDean Gehring led the visit to\n\nBrucejack and Red Chris in Canada\u201d and \u201cAaron Puna to Lihir in Papua New Guinea.\u201d Palmer\n 14\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 18 of 84\n\n\n\ncontinued that \u201c[t]heir insights were key inputs to developing our synergies and how we plant to\n\nintegrate Newcrest operations into our portfolio and operating model.\u201d\n\n 42. According to the 2023 10-K, \u201con November 6, 2023, Newmont closed its acquisition\n\nof Newcrest following receipt of all regulatory approvals and approval by Newmont\u2019s and Newcrest\u2019s\n\nshareholders . . . respectively. The Newcrest transaction,\u201d Defendants continued, \u201ccould subject us to\n\nsignificant risks, including those described below. In particular, the 2023 10-K stated:\n\n We may not realize the anticipated benefits of the Newcrest transaction\n and the integration of Newcrest and Newmont may not occur as\n planned.\n\n The Newcrest transaction was pursued with the expectation that its\n implementation will result in an increase in sustained profitability,\n cost savings and enhanced growth opportunities for Newmont. These\n anticipated benefits will depend in part on whether Newcrest\u2019s and\n Newmont\u2019s operations can be integrated in an efficient and effective\n manner. The on-going integration of the two companies will present\n challenges to management, including the integration of systems and\n personnel of the two companies which may be geographically\n separated, anticipated and unanticipated liabilities, unanticipated costs\n (including substantial capital expenditures required by the integration)\n and the loss of key employees.\n\n The performance of operations could be adversely affected if, among\n other things, Newmont is not able to achieve the anticipated savings\n and synergies expected to be realized in entering the Newcrest\n transaction, or retain key employees to assist in the integration and\n operation of Newcrest and Newmont. The integration of Newmont and\n Newcrest may pose special risks, including one-time write-offs,\n restructuring charges and unanticipated costs. In addition, the\n integration process could result in diversion of the attention of\n management and disruption of existing relationships with suppliers,\n employees, customers and other constituencies of Newmont. Although\n Newmont and its advisors have conducted due diligence on the\n operations of Newcrest, there can be no guarantee that Newmont is\n aware of any and all liabilities of Newcrest. For example, the\n compliance mechanisms and monitoring programs adopted and\n implemented by Newcrest prior to the Newcrest transaction may not\n adequately prevent or detect possible violations of environmental,\n health and safety, taxes, employment, labor standards, money\n laundering, terrorist financing and other applicable laws and failure by\n Newcrest to comply with any of the foregoing legislation prior to the\n 15\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 19 of 84\n\n\n\n Newcrest transaction could result in severe criminal or civil sanctions\n and may subject Newmont to other liabilities, including fines,\n prosecution and reputational damage, all of which could have a\n material adverse effect on the business, consolidated results of\n operations and consolidated financial condition of Newmont. As a\n result of these factors, it is possible that certain benefits expected from\n the Newcrest transaction may not be realized.\n\n 3. The Tier 1 Assets Newmont Acquired From Newcrest\n\n 43. Among the Tier 1 assets Newmont acquired from Newcrest were Lihir, in Papua New\n\nGuinea, and Brucejack in Northwest Canada. In conversations with investors after the Newcrest\n\nacquisition closed, Defendants boasted about the Newcrest acquisition. As such, prior to the Class\n\nPeriod, analysts questioned Defendants about production assumptions and Newmont\u2019s ability to\n\nreduce costs at the Tier 1 assets Newmont acquired from Newcrest.\n\n a) Lihir\n\n 44. About Lihir the 2023 10-K described:\n\n Lihir, Papua New Guinea. (100% owned) Lihir is an open pit mine\n located near the town of Londolovit on Lihir Island, approximately 560\n miles (900 kilometers) northeast of Port Moresby, the national capital.\n Access to Lihir Island is through the Kunaye airport located\n approximately 4 miles (7 kilometers) north of the mine. Newcrest\n acquired the Lihir mine in 2010. Newmont obtained the 100%\n ownership of Lihir when Newmont acquired Newcrest in 2023. The\n Lihir deposit is considered to be an example of an epithermal gold\n deposit. Lihir Island is part of a 155 mile (250-kilometers) long,\n northwest-trending, alkalic volcanic island chain that sits within an area\n where several micro-plates (Solomon Sea Plate, South Bismarck Plate\n and North Bismarck Plate) developed between the converging\n Australian and South Pacific plates. Lihir Island comprises two Plio\u2013\n Pleistocene volcanic blocks, Londolovit Block and Wurtol Wedge and\n three Pleistocene volcanic edifices, Huniho, Kinami, and Luise. Lihir\n consists of a granted Special Mining Lease, two granted Mining\n Leases, one granted Exploration License, five granted Leases for\n Mining Purposes, and three Mining Easements held in the name of\n Lihir Gold. The total area under license is approximately 63,506 acres\n (25,700 hectares). Lihir is situated on land held variously under\n customary, State of PNG, and private ownership, including under State\n of PNG lease. The bulk of the land that is or will be affected by\n development, operations and closure of the Lihir Operations is\n\n 16\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 20 of 84\n\n\n\n customary owned. Newmont has been granted rights to undertake\n mining and processing of gold and related activities, through\n negotiations with the state and local government, and landowners in the\n area. Environment Permits for water extraction and waste disposal are\n in place to support mining operations. The Londolovit River is the main\n source of water for the process plant and surrounding area. A 2%\n royalty is payable to the State on the realized prices of all gold and\n silver bullion sold. In addition, a production levy of 0.5% is also\n payable to the PNG Mineral Resource Authority on the gross income\n from the sale of the minerals (i.e., excluding the offsets of treatment\n and refining charges, payable terms and freight) and other income\n derived from or in connection with the mining operations. Operations\n at Lihir are conducted using a fleet of seven shovels and 49 haul trucks,\n with payload ranging from 85 to 135-tonnes. The process plant consists\n of crushing and grinding followed by partial flotation, pressure\n oxidation, and recovery of gold from washed oxidized slurry using\n conventional cyanidation. For tailings management, Lihir utilizes\n deep-sea tailings placement in a suitable deep-ocean location. The plant\n has undergone a number of alterations and expansions since first\n commissioning in 1997. Lihir\u2019s gross property, plant and mine\n development at December 31, 2023 was $2,645[,000,000]. As of\n December 31, 2023, Lihir reported 17.5 million ounces of gold\n reserves. As of December 31, 2023, Lihir reported 20.2 million ounces\n of gold resources.\n\n 45. About Lihir, the 2023 10-K describes performance issues, disclosing:\n\n In 2023, Lihir\u2019s performance was impacted following extreme rainfall\n limiting pit access and causing material handling issues at the crushers.\n Lihir has also experienced reduced milling rates due to limited raw\n water supply to the plant driven by drought conditions experienced\n across the New Ireland Province in PNG. Lihir continues to progress\n options to improve its water management resilience, including\n improving its internal water recycling and identifying additional water\n sources and storage options. . .\n\n 46. On February 22, 2024, Defendants convened an earnings conference call (\u201c2023\n\nEarnings Call\u201d) to discuss Newmont\u2019s fiscal 2023 results and, in particular, the integration of and\n\nexpectations for the operations Newmont acquired from Newcrest. In their prepared remarks during\n\nthe 2023 Earnings Call, about Lihir, Defendant Viljoen stated:\n\n As a result, we are entering the year with a strong focus on integration\n and the safe delivery of our targets. Our success in 2024 will be largely\n determined by the performance of our 6 managed Tier 1 operations,\n 17\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 21 of 84\n\n\n\n Boddington, Tanami, Penasquito, Ahafo, Lihir and Cadia, not\n underestimating the significant impact of the delivery from the full\n portfolio of operating assets.\n\n 47. Also during the 2023 Earning Call, analysts focused on Lihir, questioning Defendants\n\nabout why Newmont believed it could improve upon Lihir\u2019s operations. Daniel Edward Major of\n\nUBS Investment Bank asked:\n\n Questions around some of the Newcrest assets observing, I guess, from\n a distance company for quite a long time. Two things, the Lihir asset\n has been a perennial underperformer ever since Newcrest barter, why\n do you think you're going to be able to deliver better results and more\n consistent results at Lihir than the Newcrest were able to over the last\n 10 years or so?\n\n 48. In response, Defendant Palmer stated:\n\n Daniel, . . . Lihir is a big asset developed by, [indiscernible] Mining\n and then Newcrest picked it up kind of a dozen years ago. A big mine\n like Lihir is best placed in a big Tier 1 portfolio, we were able to\n balance out the ebbs and flows of a large complex mine. So first and\n foremost, you can with Lihir in a balanced portfolio with 9 other Tier\n 1 operations, you can develop strategic life of mine plans to optimize\n the value and allow the ebb and flow of gold production that flows from\n that as you were through the mining cycle to be appropriately managed.\n That'd be my first observation.\n\n A second observation that [indiscernible] suffered from being a cash-\n generating asset in a small portfolio. Therefore, there haven't been the\n appropriate time and attention on equipment reliability, base fixed and\n mobile. We're getting after that this year. There's also complexity in\n that mine plan that we believe can be simplified as we think about how\n we present the different types of ore and [indiscernible] the materials\n handling that all through a complex processing plan [indiscernible].\n And we see real opportunities there as well.\n\n And one data point, Daniel, that I'd put out there for you One\n [indiscernible] doesn't make a spring. But as we are in the 3 months\n that we've had Lihir in the Newmont portfolio, and we've worked with\n the team there, the dedication of our [indiscernible] or on the ground\n Managing Director to build a 2024 mine plan and budget that they can\n get after. The Lihir in the month of January, better plan for the first\n time in 4 years. And the cultural change and the moral that comes to be\n able to set a time to get after that feeds on itself, and we see a real\n opportunity to set the Lihir, so stretching the [indiscernible] targets for\n 18\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 22 of 84\n\n\n\n them to hit the marks and they get the confidence that they can do\n things because they set in Newmont portfolio and they were able to\n give it the support and attention that it deserves. And so hopefully that\n gives you some color for how we're thinking about the year.\n\n 49. On April 25, 2024, Defendants convened an earnings call to discuss Newmont\u2019s\n\nresults for the first quarter of fiscal 2024, ended March 31, 2024 (\u201c1Q2024 Earnings Call\u201d). In\n\nprepared remarks, about Lihir, Defendant Palmer stated:\n\n At Lihir, we recently completed the first phase of full potential from\n which we have identified initiatives that will deliver more than $150\n million of value close to double the synergy target we allocated to this\n new Tier 1 operation in our portfolio. I've just returned from Lihir and\n the key to extracting this value will be simplification. Following a very\n similar approach to the 1 we used at Penasquito 5 years ago. We have\n key members of our Newmont technical team on the ground in P&G\n supporting the site team to work on simplifying operations by focusing\n on the areas that would genuinely move the needle and stopping the\n non-value activities that have historically played this operation.\n\n One example of this work is the work we are doing to debottleneck the\n materials handling and crushing circuits, which have been limited by\n Lihir's different oil properties, resulting in downtime from spillage,\n block shoots and block crushes. From this initiative alone, we expect\n to improve mill throughput and generate over $50 million in annual\n cash flow improvements and the future waves of opportunities already\n identified at Lihir we remain very excited about the untapped potential\n at this Q1 operation.\n\n 50. Also, during the 1Q2024 Earnings Call, Defendant Viljoen discussed Newmont\n\nManagement\u2019s focus on Lihir, stating:\n\n Tom and I visited a Lihir in early April, and we're impressed with the\n team's dedication and understanding and then implementing full\n potential work. As Tom said, this work will focus on simplifying the\n operation and being clear on the highest value option that will drive\n stability through the mining value chain. In addition, I want to flag that\n the largest of our 4 autoclave [sic] at Lihir will come down in quarter\n 3 for planned maintenance. This shutdown is included in our guidance.\n\n 51. In colloquy during the 1Q2024 Earnings Call, about Lihir, Defendants boasted about\n\na full potential program to achieve synergies, manifesting their understanding and focus on the Tier\n\n 19\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 23 of 84\n\n\n\n1 projects they acquired like Lihir. Analyst Jackie Przybylowski of BMO Capital Markets Equity\n\nResearch asked about the benefits that newly acquired sites could achieve from implementing what\n\nshe called the \u201cfull potential program,\u201d which she understood had benefited Newmont\u2019s Penasquito\n\nproject. In response Defendant Palmer boasted of management\u2019s understanding of Lihir, stating:\n\n Yes. Jackie. I'll kick off and Natascha you might want to build on that\n a little bit degearing in there as well, and I want to chip in as well. We're\n further -- most advanced at Lihir and Lihir was where we saw the most\n opportunity, which is why we jumped into the -- literally on day 1. 3\n main productivity and cost opportunities at Lihir. The 1 I mentioned in\n the prepared remarks, it's really around consistent for the so that you\n can manage and address materials handling.\n\n So sure, you've got the right balance of different ores so that you've got\n managing conveyer belts and block shoots and block crushers just to\n allow a big plan to get a good consistency coming into it. It's a key\n value driver. Asset management and improving plant availability and\n other plant losses, a real opportunity at Lihir just the basics of wood\n quality work management reliability engineering with the strength of\n the team that we have to support Lihir.\n\n 52. On July 24, 2024, Defendants issued a press release announcing Newmont\u2019s results\n\nfor the second quarter of 2024 ended June 30, 2024 (the \u201c2Q2024 Press Release\u201d). The following\n\nday, Defendants convened a conference call to discuss these results (\u201c2Q2024 Earnings Call\u201d). In\n\nprepared remarks, Defendant Palmer discussed synergies, Defendants\u2019 thorough understanding of\n\nwhat they had purchased, and their focus on the former Newcrest properties including Lihir and\n\nBrucejack, stating:\n\n Looking at the 3 components of our synergy delivery, and starting with\n full potential. We are now advancing into the delivery stage of the\n initiatives we have identified at Lihir, Cadia and Red Chris, with the\n largest value drivers coming from our 2 new Tier 1 assets in Lihir and\n Cadia. On our call last quarter, we provided an update on the\n opportunities we have identified at Lihir. In this quarter, I'll briefly\n describe some of the opportunities we see in front of us at Cadia. We\n recently completed our full potential diagnosis phase at Cadia, from\n which we have identified a series of initiatives that are expected to\n deliver more than $100 million of value by the end of next year.\n\n 20\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 24 of 84\n\n\n\n During this first phase, we had a team of experts from Newmont's\n Global Technical Services group working to support the site to identify\n opportunities to higher production and improve cash flows. As one\n example of this, and through collaboration with Boddington, Cadia is\n working to optimize the output from its high pressure riding roll circuit\n in the mill. With these HPGR improvements, Cadia will be able to lift\n its mill feed by approximately 80 tonnes an hour or more than 600,000\n tonnes a year, implementing the initiatives we have identified and\n leveraging the experience we have gained over the last 10 years with\n our Full Potential program. We are working with the team at Cadia to\n increase average mill throughput to 34 million tonnes per annum\n representing a meaningful step up in productivity from this world-class\n gold and copper asset. With Lihir, Cadia and Red Chris all now\n entering the delivery phase of full potential, we are on track to meet our\n initial $200 million commitment.\n\n 53. Also, in prepared remarks during the 2Q2024 Earning Call, about Lihir, Defendants\n\nValjoen stated:\n\n And finally, at Lihir, second quarter production decreased from the first\n quarter primarily due to heavy rainfall, which contributed to soft\n ground conditions that in turn impacted mine sequencing. Production\n levels are expected to remain consistent in the third quarter as the site\n commences a planned 120-day shutdown of the primary autoclave.\n And just to bring the autoclave shutdown into perspective, the process\n includes not only shutting down the autoclave itself, but also removing\n the brick layer at [indiscernible] membrane, inspecting the 5.5-meter\n diameter steel shell, applying a high-temperature tolerant membrane\n and rebricking the 48-meter long structure, which is nearly the length\n of a new Olympic swimming pool. Once complete, we anticipate gold\n production will return to normal levels in the fourth quarter, positioning\n Lihir for a strong finish to the year. Taking everything into account, we\n anticipate an increase in gold production mix quarter, setting us up to\n deliver Lihir's higher production in the fourth quarter.\n\n Our performance in the second half of the year will be driven by higher\n grades at Penasquito, hafo and Tanami, improved throughput 3 from\n Lihir and Boddington, along with an expected improvement from our\n non-managed operations.\n\n\n\n\n3\n In this case, \u201cthroughput\u201d refers to the amount of material (ore, waste rock, etc.) that a mining\noperation can process within a specific timeframe, typically measured in tons per day or per year. It\nessentially defines the \"speed\" or capacity at which the mine can extract and handle material.\n 21\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 25 of 84\n\n\n\n 54. Lastly, one month into 3Q2024, during the 2Q2024 Earnings Call, in colloquy,\n\nDefendants discussed the anticipated autoclave shut down at Lihir as follows:\n\n Robert Alan Brackett\n Sanford C. Bernstein & Co., LLC., Research Division\n\n A bit in the weeds around Lihir. Trying to understand the cadence of\n the shutdown and the guidance. So there's roughly 5 months left in the\n year. The shutdown is 4 months, but we should think about volumes\n as being sort of evenly split first half and second half. Are all 4 other\n claims being shut down? Or is it in series or parallel? Or how do I think\n about that cadence?\n\n Thomas Ronald Palmer\n President, CEO & Director\n\n [indiscernible] is the largest of the 4 autoclaves, represents 40% of the\n throughput. So still at other 3 autoclaves running, you get some more\n recoveries running through those other 3 autoclaves. So the guidance\n for Lihir for the year respected that the largest of the autoclaves being\n down from 120 days shut. And then that you're obviously going to see\n that impact through predominantly the third quarter and into the start\n of the fourth. So we're certainly reflecting the impact of that shutdown\n for Lihir this year in sudden. I think Natascha said in her prepared\n remarks, the third quarter is similar to the second quarter, and then\n you'll see the fourth quarter higher as you get that autoclave up and\n running again with Lihir. It's not too far of being 50-50 waiting for the\n year as a consequence of that.\n\n 55. In the Quarterly Report on Form 10-Q for the period ended March 31, 2025, filed with\n\nthe SEC on April 24, 2025 (\u201c1Q2025 10-Q\u201d), about Lihir\u2019s production, Defendants reported, \u201c[g]old\n\nproduction decreased 9% primarily due to lower mill throughput and lower mill recovery, partially\n\noffset by higher ore grade milled.\u201d About costs, Defendants reported \u201c[c]osts applicable to sales per\n\ngold ounce increased 8% primarily due to lower gold ounces sold and higher materials costs. . . . All-\n\nin sustaining costs per gold ounce increased 7% primarily due to higher Costs applicable to sales per\n\ngold ounce.\u201d\n\n 56. Former Employees of Lihir confirm that Newmont knew well prior to the Class Period\n\nthat operations at Lihir were troublesome, preventing increased production and reduction of AISC.\n 22\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 26 of 84\n\n\n\nFor example, FE1 served as the Senior Shutdown Coordinator at Lihir for Newcrest from July 2021\n\nthrough November 2023, and then for Newmont from November 2023 to November 2024. FE1\n\nreported to Newcrest Superintendent Keith Wigram who moved over to Newmont during the\n\nacquisition. Wigram reported to Brian Berney, a General Manager from Newmont. 4 A shutdown\n\ncoordinator is responsible for the planning, execution, and oversight of shutdowns, which are\n\ntemporary suspensions of mining operations for maintenance, repairs, upgrades, or emergencies.\n\n 57. FE1 scheduled coordinated shutdowns of Lihir in order to perform major maintenance.\n\nWhen operations stopped, FE1 coordinated the work performed during these shutdowns, including\n\nall logistics at the site. FE1\u2019s main concern was the safety of the department performing the work as\n\nwell as prioritizing the health and safety of all employees. They safeguarded the site, ensuring it was\n\nin good working condition and that equipment was functioning efficiently. When management\n\nswitched off machines, FE1 managed a team that ensured the plant was securely shut down so that\n\nmaintenance could be completed. This included handling confined spaces with high voltage.\n\n 58. FE1 was familiar with Lihir and the issues Newmont faced there. Initially, according\n\nto FE1, Newmont's efforts to comprehend Lihir\u2019s operations occurred somewhat belatedly, following\n\nthe acquisition. Notwithstanding Newmont\u2019s claim to have performed robust due diligence at Lihir,\n\naccording to FE1, Newmont management was unaware before the acquisition of machinery\n\nbreakdowns, ocean dumping, and, despite a bunker, the potential for waste to overflow into the pond\n\nwhich fed back into the tanks.\n\n\n\n\n4\n According to FE4, who served at Newmont as a Project Mine Manager, Underground through\nDecember 2023 and reported directly to Brian Berney, Newmont transferred Berney to serve as\nGeneral Manager at Lihir on December 1, 2023. Berney informed FE4 that Newmont was conducting\na broad review of Lihir.\n 23\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 27 of 84\n\n\n\n 59. FE1 had firsthand knowledge of the autoclaves at Lihir.5 When asked, he stated that\n\nLihir\u2019s autoclaves experienced significant issues. According to FE1, Lihir had four autoclaves in total.\n\nFE1 recalls that Autoclave 4 had been out of operation for 2 or 3 years and was considered a disaster,\n\nwhile the others frequently failed to operate properly. Indeed, Autoclave 4 did not operate for an\n\nentire year before the Newmont acquisition and had been down since 2022. FE1 attributed these\n\nproblems to management issues and the lack of proper maintenance. Autoclaves consistently broke\n\ndown and experienced sudden power losses and load shifts. Due to their position, FE1 monitored the\n\nissues with the autoclaves closely. More, it was not just the autoclaves but also the grinding machines\n\nat Lihir\u2014Machines 1 and 2\u2014that often broke down or ran with difficulty.\n\n 60. According to FE1, Lihir was not profitable. The mine's operational costs were high\n\ndue to outdated equipment and low output, which led to improbable production forecasts. FE1\n\nconsidered Newmont\u2019s projected gold production levels questionable. Additionally, during the\n\nacquisition, even as Newmont labeled Lihir a Tier 1 asset, according to FE1, it did not meet the\n\nforecasted expectations. Even as FE1 noted that Newmont should have identified these issues had\n\nthey conducted comprehensive due diligence, Lihir\u2019s problems soon became evident once Newmont\n\nassumed control of the mine.\n\n 61. In addition to autoclaves, according to FE1, other essential equipment at Lihir was\n\noutdated and problematic, hampering profitability. For example, the Motor Control Center (\u201cMCC\u201d)\n\nwas problematic from both safety and reliability perspectives. FE1 also worked closely with the\n\n\n\n5\n An autoclave is a strong heated container used for chemical reactions and other processes using high\npressures and temperatures, e.g. steam sterilization. In gold mining, autoclaves are used in a process\ncalled pressure oxidation (POX) to extract gold from refractory ores. These ores contain gold encased\nin sulfide minerals, making it difficult to recover gold using traditional methods like cyanide leaching.\nThe autoclave process involves subjecting the ore slurry to high temperature and pressure, typically\nwith oxygen, to break down the sulfide minerals and release the gold. This pre-treatment makes the\ngold amenable to subsequent extraction through conventional methods like cyanidation.\n 24\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 28 of 84\n\n\n\npower utilities department to address High Voltage (\u201cHV\u201d) power concerns, noting that the MCC\n\ncontained substantial HV equipment that posed safety risks. FE1reported that Switchboard 930 at the\n\nsubstation frequently experienced failures. Additionally, a mine shutdown occurred when a breaker\n\ntripped, which can cause an explosion if relays are damaged.\n\n 62. Recently, it was noted that switchboard feeds were changed in the mine area.\n\nMaintenance had been scheduled by Lihir, but the company extended the required maintenance period\n\nfrom five years to ten years. FE1 emphasized that all equipment and machinery have maintenance\n\ndue dates, and Newmont/Newcrest compromised safety and risk plans by declaring the equipment\n\nand machinery safe to run.\n\n 63. According to FE1, Newmont knew of these issues, establishing a new reliability plan\n\nduring the 2024 transition to ensure the safety of all personnel. According to FE1, even though\n\nNewmont knew that a total plant shutdown was necessary in 2024, they postponed it until March\n\n2025, undermining safety. The 1Q2025 10-Q mentions no shutdown at Lihir.\n\n 64. FE2 worked at Lihir for both Newcrest and Newmont from 2015 through March 2025.\n\nAs a Permit to Work Supervisor, FE2 was responsible for ensuring that safety risks were assessed\n\nand safety measures considered. According to FE2, they were in charge of ensuring all work\n\nconducted at the Lihir site and within the plant was carried out responsibly and maintained in a safe\n\nmanner. They managed the workforce on-site, including those working in the mines, on the\n\nequipment, and within the infrastructure. FE2 reported to Thomas Grubb, Manager-Power and\n\nUtilities.\n\n 65. Confirming FE1, according to FE2, the Lihir mine was designed to produce over 1\n\nmillion ounces of gold annually but consistently fell short due to frequent electrical system failures\n\nand other machinery breakdowns. Based on former co-workers still at Lihir, FE2 relates that\n\n\n\n 25\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 29 of 84\n\n\n\nsignificant breakdowns continue to impact the site. Last year, these issues caused operations to\n\ndecline significantly.\n\n 66. To manage breakdowns effectively, FE2 reported, a strategy that minimizes their\n\nfrequency and impact is essential. According to FE2, however, Newmont lacked such a strategy or\n\nplan, leading to poor performance. Typically, planned shutdowns of a mine should occur perhaps\n\nonce a year for repairs, updates, and improvements, ensuring efficient operation. According to FE2,\n\nhowever, due to frequent breakdowns, Lihir had to shut down the mine every three months, sometimes\n\nclosing it for a whole day depending on the severity of the issue.\n\n 67. Confirming FE1, FE2 stated that Lihir suffered from persistent, adverse autoclave\n\nissues during FE2\u2019s tenure. FE2 recalls frequent breakdowns, with some lasting months, including\n\ntheir last six months there. According to FE2, Lihir had too many mills and processors, and inadequate\n\npower.\n\n 68. Having been at Lihir since 2015, with ten years at Newcrest and Newmont, including\n\nseven years focused on mine processes around the mills and autoclaves, FE2 recalls that Lihir\n\nautoclaves and other faulty equipment lacked reliability, rendering Lihir prone to persistent\n\nbreakdowns that materially reduced gold production. FE2 stated that poor machinery and electrical\n\nsystems were mainly to blame. For example, according to FE2, while Autoclave #4, the largest in the\n\nSouthern Hemisphere, had the potential to handle substantial workloads, it did not because it never\n\nfunctioned properly. According to FE2, while Autoclave #4 had been designed to contribute to one\n\nmillion ounces of annual gold production, it actually was completely offline far more than it was\n\nonline, a major failure.\n\n 69. According to FE2, other issues hampered gold production at Lihir. For example, Lihir\n\nused steam through a jet oil compressor to generate power for the mine. It was efficient and cost-\n\neffective, and the initial plan for its use revealed low operational costs. According to FE2, however,\n 26\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 30 of 84\n\n\n\neven as Lihir had used steam to power the mines since 2004, Newmont terminated it when managers\n\nconvinced Newmont to shut it down due to cost and safety concerns. According to FE2, however,\n\ncost and safety concerns alone did not drive that decision. Rather, Newmont management lacked the\n\nnecessary skills and maintenance strategy for the mine. According to FE2, his manager, Wingfield\n\nKila, persuaded the Brian Berney, general manager at Lihir, to shut it down, citing maintenance issues\n\nrather than safety concerns.\n\n 70. FE2 raised engineering reliability issues in daily meetings with Lihir management,\n\nincluding Grubb. FE2 conveyed that the main fuel supply line to the generators had significant\n\nreliability issues, leading to its offline status for a year. This left only one tank supplying fuel. Without\n\nredundancy, a problem with the working tank would mean a mine shutdown. More, according to FE2,\n\nthe auto tank has been under maintenance for over a year, since Newmont assumed control.\n\n 71. Lihir experienced a complete power shutdown for two weeks about a month ago.\n\nAccording to FE2, the power bus, the main highway and essential for distribution, had performance\n\nissues. Even as FE2 reported these issues multiple times, Newmont never addressed them.\n\n 72. Thus, from before the Class Period, Defendants knew or should have known that Lihir\n\nsuffered from material problems with its equipment and management, rendering gold production\n\nunreliable and AISC subject to frequent, material increases.\n\n b) Brucejack\n\n 73. In addition, Newmont acquired Brucejack from Newcrest. About Brucejack, the 2023\n\n10-K described:\n\n Brucejack, Canada. (100% owned) Brucejack, located in western\n British Columbia, approximately 40 miles (65 kilometers) north of\n Stewart and 28 miles (45 kilometers) southwest of the Stewart-Cassiar\n Highway 37, is an underground operation. The Brucejack operation\n comprises four mining leases and six core mineral claims which cover\n 8,169 acres (3,306 hectares) and 337 mineral claims covering 298,795\n acres (120,918 hectares). The mining leases expire in 2045. Brucejack\n 27\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 31 of 84\n\n\n\n is a deformed, porphyry-related transitional to intermediate\n sulphidation epithermal high-grade gold-silver deposit. Gold is hosted\n in quartz-calcite vein stockworks, sheeted veins and veinlets and can\n also be associated with arsenian pyrite. Process facilities include a mill\n building containing process equipment, including a rock bin, SAG\n mill-ball mill circuit followed by conventional flotation, concentrate\n dewatering, concentrate load-out and tailings dewater operations, a\n water treatment plant, a paste backfill plant, and a metallurgical\n laboratory. The mining fleet includes a fleet of load-haul-dump\n vehicles, trucks for material loading and transport to surface,\n excavators, bolters, shotcrete sprayers, long-hole drills, and cable\n bolters. Brucejack\u2019s gross property, plant and mine development at\n December 31, 2023 was $2,910[,000,000]. Brucejack reported 3.1\n million ounces of gold reserves at December 31, 2023.\n\n 74. During the 2023 Earnings Call, an analyst asked about the potential in the \u201cGolden\n\nTriangle,\u201d an area in the Canadian province of British Columbia well-known for rich mineral\n\ndeposits, particularly gold, silver, and copper. The analyst asked, \u201c[e]ven as you guys talked about\n\nthe potential in the Golden Triangle area, no plan set out here, but can you talk a little bit about how\n\nyou see that? How that region evolves over the next few years?\u201d Defendant Palmer responded:\n\n Yes. Thanks, Carey. . . . I actually have a couple of trips up there sadly\n over the last couple of months. Real potential at Brucejack to get a\n really solid understanding of that ore body in life and they have a\n contributing nice cash for quite some time to come from a nice ore body\n and exploration potential around that Valley of the Kings area. So a\n really nice, really nice gold opportunity there.\u201d\n\n 75. Thus, in February 2024, having conducted due diligence on Brucejack and having\n\nowned it for over 3 months, Defendants committed themselves in the short term to understanding the\n\noperations at Brucejack, touting its opportunities.\n\n 76. During Defendants\u2019 1Q2024 Earnings Call, in prepared remarks, Defendant Palmer\n\nstated about Brucejack:\n\n We are also well into the first phase of our full potential work at Cadia,\n Red Chris and Brucejack and have already identified several high-\n value opportunities that we will progress in parallel with the initiatives\n now underway at Lihir. For our supply chain synergies we have already\n realized close to $30 million from negotiating more favorable terms\n 28\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 32 of 84\n\n\n\n and pricing for materials and equipment as well as first consolidating\n and then renegotiating service contracts.\n\n 77. Aside from commenting on the December 2023 death of a Brucejack employee,\n\nDefendants did not discuss Brucejack further during the 1Q2024 Earnings Call. Even as Defendants\n\nlisted Brucejack as a material, purported Tier 1 project, Defendants did not mention it at all during\n\nDefendants\u2019 2Q2024 Earnings Call.\n\n 78. Former employees confirm serious operational and grade issues at Brucejack from\n\nbefore Newmont acquired it. For example, FE3 was Manager of Strategic Geology at Newcrest Mines\n\nbefore moving to the same position at Newmont following the November 2023 acquisition. They\n\nwere with Newmont from November 2023 to October 2024 working from Vancouver, Canada. At\n\nNewmont, they reported to Chief Geologist/Head of Resource Management Arja Jewbali.\n\n 79. According to FE3, they worked at Pretium Resources Inc. from August 2018 to\n\nFebruary 2022 as the Manager of Geological Operations. Notably, Pretium previously operated\n\nBrucejack when Newcrest acquired Pretium in 2022. FE3 continued to work at Brucejack through\n\nboth acquisitions. FE3\u2019s primary focus was on site-based operations. FE3 recalls that Arja Jewbali\n\nreported to Francois (Hardy) until Hardy's promotion. Afterwards, Jewbali began reporting through\n\nthe Exploration Group. Generally, FE3 focused on forward-looking resource and reserve statements\n\nwhile overseeing the day-to-day operations of geologists, data management, and planning at\n\nBrucejack. They also acted as Melbourne's liaison in Vancouver and vice versa.\n\n 80. According to FE3, Newmont focused on developing Tier 1 mines. According to FE3,\n\nbased on their extensive experience at that location, Brucejack did not qualify as a Tier 1 mine.\n\nAlthough the Brucejack mine had significant prospects, FE3 believes that Newmont's overarching\n\nambition to add Tier 1 mines caused them to rush the due diligence process. According to FE3\n\n\n\n\n 29\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 33 of 84\n\n\n\nNewmont management spent insufficient time inspecting/touring the mines and only conducted their\n\nfirst thorough technical tour in December 2023.\n\n 81. According to FE3, Brucejack never achieved the production targets of 550,000 gold\n\nounces per year. This was the amount required for Tier 1 status that Newmont set. Instead Brucejack\n\nproduced only 325,000 ounces at best. Despite its high grade, Brucejack production showed\n\nsignificant variability. According to FE3, Defendant Palmer felt Brucejack had Tier 1 potential due\n\nto its location in what he termed Newmont\u2019s Golden Triangle alongside Red Chris and Galore Creek\n\nExploration. Palmer made these statements both publicly and internally.\n\n 82. According to FE3, in its haste, Newmont\u2019s original Brucejack assessment overlooked\n\nmaterial issues requiring significant time and expense to correct, in turn resulting in material\n\nunexpected capital expenditures. For example, Brucejack had an access road over a glacier that\n\nrequired immediate repair and restoration, which represented a significant expense.\n\n 83. In addition to material capital expenditures, according to FE3, Brucejack experienced\n\nsignificant variability in gold production at the mine, creating boom-or-bust potential in quarterly\n\nearnings results.\n\n 84. With respect to costs, although Newmont knew about Brucejack's cost variability and\n\nits impact on cash flows, it was surprised by Brucejack\u2019s G&A costs. For example, according to FE3,\n\ndue to the large snowfalls near Brucejack, Brucejack must maintain a large workforce of people for\n\nlabor-intensive tasks such as clearing snow from roofs and roadways to ensure transportation routes\n\nremain open. Additionally, avalanche experts are constantly required on staff to maintain safe mining\n\noperations. These special workforce requirements increase Brucejack\u2019s ongoing G&A costs.\n\n 85. Last, according to FE3, at Brucejack, additional concerns included a unique power\n\nline through the coastal mountains. Despite having diesel backup, prolonged power outages lasting\n\nup to 8-10 days frequently occurred, negatively impacting operations. While the mills remained\n 30\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 34 of 84\n\n\n\noperational with the diesel backup power, production and processing shortcuts were necessary,\n\nfrequently leading to production and earnings shortfalls from forecasted results. This could happen\n\nseveral times a year due to weather conditions.\n\n 86. More, correcting their Class Period material misrepresentations and highlighting their\n\nrecklessness, during an earnings call to discuss Newmont\u2019s results for the third quarter of fiscal 2024,\n\nended September 30, 2024 (\u201c3Q2024 Earnings Call\u201d), Defendants Valjoen stated:\n\n at Brucejack, we have taken a step back this year to do the\n development and drilling work to ensure that we improve our\n knowledge of this nuggety ore body. We continue to experience\n periods of exceptional high grades, including a 1-day average of 52\n grams per ton last month and an average of over 20 grams per ton in\n the same week. As a result of the work we are doing, we anticipate\n that the gold production next year from Brucejack will also be largely\n consistent with this year, all around 100,000 ounces lower than our\n initial guidance for 2025 that we provided back in February.\n\n(Emphasis added).\n\n 87. \u201cNuggety\u201d refers to the Geological Nugget Effect. The nugget effect is a geostatistical\n\nterm that refers to the variability of grade within an orebody. An orebody with a high nugget effect\n\nhas extremely high variability of grade6 within it. Narrow vein structures are often characterized by\n\na high geological nugget effect. The combination of an irregular distribution of gold throughout\n\nmineralization and the uncertainty associated with the location of the mineralization within the host\n\nrock contribute to the difficulty in characterizing its overall grade. Simply stated, where metals such\n\nas gold cluster in a given deposit, drill cores which intersect a nugget can vastly overestimate the\n\norebody\u2019s aggregate grade. Conversely, drill cores which do not intersect high grade nuggets will\n\nunderestimate the amount of metal in the general ore body.\n\n\n6\n \u201cGrade\u201d or \u201cgrading\u201d refers to the concentration of valuable minerals within the ore body, often\nexpressed as a percentage or grams per tonne, indicating how much of the desired material is present\nin the mined rock. High-grade ore contains a larger proportion of the valuable mineral, making it\nmore profitable to extract.\n 31\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 35 of 84\n\n\n\n 88. Brucejack is well known in the industry as an unusually extreme heterolithic deposit\n\nwith virtually unprecedented nugget effect.7 By stating that Newmont would step back and do the\n\ndevelopment and drilling at Brucejack, after a supposedly thorough due diligence process before\n\npurchasing Newcrest and having owned Brucejack for well over eight months, Valjoen admitted that\n\nDefendants forecasted production and costs at Brucejack with materially insufficient understanding\n\nof the deposit\u2019s true composition. Moreover, Defendants still believed considerable time and cost\n\nwould need to be devoted to develop sufficient understanding of the Brucejack deposit to attempt to\n\nmine it to its full potential.\n\n 89. According to Newmont\u2019s Report on 2024 mineral reserves, \u201c[p]roven and probable\n\nreserves are based on extensive drilling, sampling, mine modeling and metallurgical testing from\n\nwhich Newmont determined economic feasibility.\u201d To assess reserves, as frequently as monthly,\n\nNewmont engaged in reconciliation drilling, a process mining companies employ, comparing\n\npredicted geological models with actual mining and processing results to assess and improve the\n\naccuracy of resource estimation and operational efficiency.\n\n 90. Reconciliation drilling is critical for monitoring how expectations for gold grade and\n\ntonnage are aligning with the ore Newmont actually extracts and processes. By implementing robust\n\nreconciliation practices and leveraging appropriate drilling and sampling techniques, gold mining\n\noperations can improve the accuracy of their predictions, optimize their processes, and enhance their\n\noverall performance and profitability. Thus, even if Newmont was unaware of the challenges that\n\nfaced the Newcrest properties it purchased in November 2023, reconciliation drilling during 2024\n\n\n\n\n7\n https://northernminer.com/news/strathconas-farquharson-responds-to-pretiums-bulk-sample-\nresult/1002752061/ \u201cHeterolithic\u201d in mining refers to the interbedded nature of deposits containing\nvarying sediment types like sand and mud, which has implications for resource characterization,\nhydrogeology, engineering considerations, and exploration efforts\n 32\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 36 of 84\n\n\n\nnecessarily alerted Defendants to issues with respect to production at Brucejack no later than July 24,\n\n2024.\n\n 91. In addition, in the 2023 10-K, Defendants claimed:\n\n The Company has internal controls for reviewing and documenting the\n information supporting the mineral reserve and mineral resource\n estimates, describing the methods used, and ensuring the validity of the\n estimates. Information that is utilized to compile mineral reserves and\n resources is prepared and certified by appropriately qualified persons\n at the mine site level and is subject to our internal review process which\n includes review by the Newmont-designated site and the Qualified\n Person (\u201cQP\u201d) based in our corporate office in Denver, Colorado.\n Additionally, all material sites are audited every three years and the\n non-material sites on a four-year cycle by subject matter experts for\n compliance to internal standards and guidelines as well as regulatory\n requirements. The QP presents the mineral reserve and mineral\n resource information to the Audit Committee and the Disclosure\n Committee on an annual basis for further review.\n\n 92. Defendants stated clearly in their Q42023 Earnings Call that the single greatest priority\n\nat the recently acquired Brucejack mine was to \u201cget a really solid understanding of that ore body.\u201d\n\nWhile defendants failed to update shareholders on these ongoing efforts during Newmont\u2019s Q12024\n\nand Q22024 Earnings Calls, Defendants\u2019 activities such as reconciliation drilling and reworking of\n\nthe Brucejack resource model uncovered early in 2024 that they had overstated the proven and\n\nprobable reserves in the Brucejack deposit as of year-end 2023.\n\n 93. Defendants failed to inform shareholders of the questionable nature of Brucejack\u2019s\n\nresource model until the 3Q2024 conference call. In Newmont\u2019s 2024 year-end Resource Statement,\n\nthe full extent of Brucejack\u2019s overstated proven and probable reserves was finally revealed.\n\nDefendants cut the total tonnage in the Brucejack resource model 25% (from 11.5 million tonnes to\n\n8.6 million tonnes), the deposit grade was cut 18% (from 8.44 grams per tonne to 6.95 grams per\n\ntonne), and total proven and probable reserves were slashed by an eye-opening 39% (from 3.1 million\n\nounces to 1.9 million ounces). For their steep reserve restatement, Defendants blamed \u201cunfavorable\n\n 33\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 37 of 84\n\n\n\nnet revisions of 1.5 million ounces due to updated resource model assumptions, including tighter drill\n\nhole spacing requirements and other technical considerations.\u201d\n\n 94. In Newmont\u2019s 2024 year-end Reserve Statement, Defendants also slashed Lihir\u2019s\n\nproven and probable reserves by 10% (from 17.5 million ounces to 15.8 million ounces), stating\n\n\u201cfavorable price related revisions of 1.8 million ounces (net of cost escalation assumptions) were\n\noffset by unfavorable net revisions of 2.9 million ounces, largely due to pit design updates and\n\ngeotechnical changes.\u201d\n\n 95. Even if Defendants lied about the due diligence they conducted at Brucejack and Lihir,\n\nby no later than the first half of 2024, having completed their own reconciliation drilling and other\n\nanalyses, Defendants were severely reckless in disregarding that the Brucejack and Lihir deposits had\n\nproven and probable reserves that were materially lower than they had believed in later 2023 and that\n\nboth projects would produce less gold and GEOs over the near and medium terms. Defendants failed\n\nto update shareholders in a timely manner about Newmont\u2019s reconciliation processes and the resultant\n\ndecline in proven and probable reserves at Brucejack and Lihir.\n\n 96. The following chart demonstrates the precipitous decline in metrics for the Brucejack\n\nand Lihir projects, in particular, showing that what Newmont purchased from Newcrest in late 2023\n\nwould yield materially less production than Defendants led investors to believe. Reconciliation\n\ndrilling and other analyses alerted Defendants to these materially less robust proven and provable\n\nreserves by no later than July 2024:\n\n\n\n\n 34\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 38 of 84\n\n\n\n\n 97. In Newmont\u2019s 3Q 2024 earnings conference call, Defendants materially reduced\n\nproduction guidance by 100,000 ounces of gold per year, and admitted further development would\n\nbe necessary to further develop mine stopes8 at Brucejack. Defendants also materially reduced\n\nproduction guidance for Lihir by 250,000 ounces. To investors and analysts in the mining industry,\n\n\u201cfurther development\u201d is code for \u201cwe did not properly understand the true composition of the deposit\n\nand we will need significant drilling and development work to allow mining stopes to achieve their\n\nanticipated productivity.\u201d These additional mine development programs will significantly increase\n\nAISC. Given the well-known nature of Brucejack\u2019s nuggety composition, either Defendants were\n\nreckless in their due diligence or irresponsible in not sharing Brucejack risks with shareholders.\n\n C. Defendants Focus on Increasing Production and Decreasing Costs\n\n 98. During the 2023 Earnings Call, Defendant Palmer described the Company\u2019s\n\n\u201cCommitments to Investors,\u201d a plan for transforming Newmont into the world\u2019s best mining\n\ncompany. During the 2023 Earnings Call, in prepared remarks, Palmer stated:\n\n But before we do that, I would like to describe how we're transforming\n our business into a unique collection of the world's best gold and copper\n operations and projects following last year's transaction. When we\n announced our binding agreement to acquire Newcrest in May last\n\n8\n Mine stopes are underground excavations where ore is extracted. It is essentially a large, open space\ncreated within a mine to remove the desired mineral deposit. Stoping is the process of creating these\nexcavations and removing the ore.\n 35\n\fCase No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 39 of 84\n\n\n\n year, we outlined a powerful value proposition built around 4 key\n commitments. First, to set the new sustainability standard and\n strengthened Newmont's position as the gold sector recognize\n sustainability leader.\n\n Second, to create the industry's strongest portfolio of world-class gold\n and copper assets in the most favorable mining jurisdictions. Third, to\n deliver $500 million of annual synergies and realize over $2 billion in\n cash from portfolio optimization. And finally, to continue driving a\n disciplined, balanced approach to capital allocation.\n\n After closing the transaction on November 6 last year, the integration\n of the 5 new operations into our Newmont operating model has been\n progressing very well. And as we enter this critically important year of\n integration and transformation, I'll be holding myself and my executive\n leadership team accountable for delivering on these commitments and\n this will be our key focus in 2024.\n\n To support this work, earlier today, we announced 4 key actions that\n together will enhance our ability to deliver on our clear and consistent\n strategy. First, we plan to divest 6 high-quality but noncore assets this\n year. From this point forward, our world-class portfolio will consist\n entirely of Tier 1, an emerging Tier 1 operations and districts. And it\n will have a significant exposure to growth in copper and gold from our\n industry-leading organic project pipeline. Second, we provided our\n 2024 and 5-year outlook, getting a clear picture of the work we're doing\n today to expand margins and appropriately sequence our projects to\n deliver sustainable value.\n\n Third, with the clarity, simplicity and focus that our Tier 1 portfolio\n provides, we have committed to deliver a further $500 million in cost\n and productivity improvements across the entire portfolio. And these\n improvements are over and above our synergy commitment from the\n Newcrest acquisition. We expect to hit this $500 million annual run\n rate of improvement by the end of 2025. And finally, we announced a\n balanced shareholder return framework, consisting of $1 per share\n annualized base dividend and a new $1 billion share repurchase\n program.\n\n Our go-forward Newmont portfolio is focused on Tier 1, gold and\n copper, operations and projects located in the world's most favorable\n mining jurisdictions. And it has 4 key features. First, it contains 10 Tier\n 1 operations, representing all the half of the world Tier 1 guidelines in\n the Newmont portfolio. Second, it has 3 emerging Tier 1 operations\n that each has a clear path for growth. And we have the opportunity to\n create a Tier 1 district in British Columbia, a district in which Newmont\n will be operating for at least the next [indiscernible]. And third, it has\n 36\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 40 of 84\n\n\n\n an unmatched organic development pipeline with 6 large-cale top of\n gold projects. And fourth, underpinning our Tier 1 portfolio, is the\n industry's most robust foundation of reserves and resources.\n Going forward, Newmont has the industry's largest gold resource base\n and we also have the largest base of copper resources in the gold\n industry. To put these numbers into perspective, Newmont has an\n almost 30% large gold reserve resource base than our nearest peer. And\n we have a 40% larger copper reserve resource base than our nearest\n gold peer. No other gold producing in the world can offer the depth and\n quality that Newmont's Tier 1 portfolio can today.\n\n Later on, I'll provide a little bit more color about Newmont's longer-\n term outlook and the exciting gold, copper opportunities ahead of us.\n But first, I'd like to step back and give some insight into how we are\n framing the year ahead.\n\n 2023 brought with a number of unique challenges, which are now\n certainly behind us. The 120-day labor dispute at Pe\u00f1asquito, asset\n integrity issues that were inherent in the original design of equipment\n at Ahafo and wildfires in Canada impacting \u00c9l\u00e9onore. Those 3 events,\n mean that our final production number did not reflect the full capability\n of our assets.\n\n As we emerge on the other side of these events, I am proud of the\n decisions that we took to protect the long-term interest of our company\n rather than looking to seek short-term experience solutions. However,\n I'm also not happy with the underlying level of our operating\n performance. We have the opportunity to improve our compliance to\n mine plants to improve our fixed and mobile equipment reliability and\n to improve our mill throughputs and recoveries. So our focus to '24 will\n be on safely integrating new teams, new operations in our Newmont\n operating model and culture, transforming our portfolio, underlying the\n groundwork for sustainable operating performance, margin expansion\n and strong returns.\n\n 99. On that same 2023 Earnings Call, Defendant Viljoen 2023 discussed Defendants\u2019\n\nintense focus on the performance of all of Newmont\u2019s properties. She stated:\n\n This year, we will have a laser focus on the performance of our 11\n managed operations in our go-forward portfolio, while also guiding our\n 6 noncore assets through a safe and productive process for divestment.\n As we work to deliver efficiency and reliability from our global\n portfolio, we are committed to progressing our 4 key projects in\n execution and keeping them on track in 2024.\n\n\n\n 37\n\fCase No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 41 of 84\n\n\n\n As a result, we are entering the year with a strong focus on integration\n and the safe delivery of our targets. Our success in 2024 will be largely\n determined by the performance of our 6 managed Tier 1 operations,\n Boddington, Tanami, Penasquito, Ahafo, Lihir and Cadia, not\n underestimating the significant impact of the delivery from the full\n portfolio of operating assets.\n\n ***\n\n Now bringing all of this together, as we focus on the integration and\n size delivering this year, we expect our Tier 1 portfolio to produce\n around 5.6 million ounces of gold and an all-in sustaining cost of\n $1,300 per ounce. Combined with the very significant 1.9 million gold\n equivalent ounces from copper, silver, lead, zinc and molybdenum. Our\n unit costs are expected to improve compared to 2023 due to steady\n production of net volumes and the delivery of synergies and full\n potential improvements with the lowest unit cost coming from\n Newmont's managed Tier 1 portfolio.\n\n 100. According to the 2023 10-K, Defendants define \u201cfree cash flow\u201d as:\n\n Free Cash Flow\n\n Management uses Free Cash Flow as a non-GAAP measure to analyze\n cash flows generated from operations. Free Cash Flow is Net cash\n provided by (used in) operating activities less Net cash provided by\n (used in) operating activities of discontinued operations less Additions\n to property, plant and mine development as presented on the\n Consolidated Statements of Cash Flows. The Company believes Free\n Cash Flow is also useful as one of the bases for comparing the\n Company\u2019s performance with its competitors. Although Free Cash\n Flow and similar measures are frequently used as measures of cash\n flows generated from operations by other companies, the Company\u2019s\n calculation of Free Cash Flow is not necessarily comparable to such\n other similarly titled captions of other companies.\n\n The presentation of non-GAAP Free Cash Flow is not meant to be\n considered in isolation or as an alternative to net income as an indicator\n of the Company\u2019s performance, or as an alternative to cash flows from\n operating activities as a measure of liquidity as those terms are defined\n by GAAP, and does not necessarily indicate whether cash flows will\n be sufficient to fund cash needs. The Company\u2019s definition of Free\n Cash Flow is limited in that it does not represent residual cash flows\n available for discretionary expenditures due to the fact that the measure\n does not deduct the payments required for debt service and other\n contractual obligations or payments made for business acquisitions.\n Therefore, the Company believes it is important to view Free Cash\n 38\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 42 of 84\n\n\n\n Flow as a measure that provides supplemental information to the\n Company\u2019s Consolidated Statements of Cash Flows.\n\n The following table sets forth a reconciliation of Free Cash Flow, a\n non-GAAP financial measure, to Net cash provided by (used in)\n operating activities, which the Company believes to be the GAAP\n financial measure most directly comparable to Free Cash Flow, as well\n as information regarding Net cash provided by (used in) investing\n activities and Net cash provided by (used in) financing activities.\n\n 101. During the 2023 Earning Call, about improving margins and generating strong free\n\ncash flow, Defendant Palmer stated:\n\n Newmont go forward Tier 1 portfolio sets the new standard for gold\n and copper mining and provides our shareholders with exposure to the\n highest concentration of Tier 1 assets in the sector, located in the most\n favorable mining jurisdictions, and with improving cost profile to\n maximize margins and generate strong free cash flow. The industry-\n leading growth optionality in copper and gold through disciplined\n reinvestment and project execution and a balanced shareholder return\n framework.\n\n As we look forward to this very important year of integration and\n transformation, I am very confident in the quality of our assets and the\n capability of our team to deliver on our commitments and justify our\n position as the benchmark gold equity. This year, we'll also be\n continuing to work on transforming our go-forward portfolio and\n importantly, building out the strategic and life-of-mine plans for each\n of our managed sections.\n\n 102. As companion to the 2023 Earnings Call, Defendants provided a slide presentation in\n\nwhich they represented their strategy from the Newcrest acquisition on, including expanding margins\n\nand a commitment to productivity improvements.\n\n\n\n\n 39\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 43 of 84\n\n\n\n\n 103. In addition, Defendants provided a slide, summarizing their guidance for 2024.\n\n\n\n\n 104. Indeed, in that February 2024 slide presentation, Defendants broke down production\n\nand cost guidance for 2024 by site.\n\n\n\n\n 40\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 44 of 84\n\n\n\n\n 105. Similarly, with respect to margins expansion and costs, the February 2024 slide\n\npresentation provided near-term and long-term guidance for what Defendants purportedly projected\n\nas decreasing AISC over time.\n\n\n\n\n 106. Among the means of reducing costs and rationalizing operation of the new, Tier 1\n\nfocused Newmont, the February 2024 slide presentation presented Defendants\u2019 purported projection\n\nof synergies they could deliver through 2025.\n\n 41\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 45 of 84\n\n\n\n\n 107. Later, with respect to synergies, during the 2Q2024 Earnings Call, Defendants\n\ndiscussed completing certain in-depth reviews of the sites they had purchased. For example,\n\nDefendant Palmer stated:\n\n During this first phase, we had a team of experts from Newmont's\n Global Technical Services group working to support the site to\n identify opportunities to higher production and improve cash flows.\n As one example of this, and through collaboration with Boddington,\n Cadia is working to optimize the output from its high pressure\n [g]ri[n]ding roll circuit in the mill.9 With these HPGR improvements,\n Cadia will be able to lift its mill feed by approximately 80 tonnes an\n hour or more than 600,000 tonnes a year, implementing the initiatives\n we have identified and leveraging the experience we have gained over\n the last 10 years with our Full Potential program. We are working with\n the team at Cadia to increase average mill throughput to 34 million\n tonnes per annum representing a meaningful step up in productivity\n from this world-class gold and copper asset. With Lihir, Cadia and\n Red Chris all now entering the delivery phase of full potential, we are\n on track to meet our initial $200 million commitment.\u201d (Emphasis\n added).\n\n\n\n9\n High-pressure grinding rolls (\u201cHPGRs\u201d) offer an energy-efficient comminution method for gold\nmining, enhancing throughput and sustainability by reducing bottlenecks and energy costs associated\nwith traditional milling. HPGRs apply high pressure to break down ore through inter-particle\ncrushing, which is more energy-efficient than traditional methods like ball milling.\n 42\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 46 of 84\n\n\n\n 108. Even later during the Class Period, Defendants described their in-depth reviews of\n\nnewly acquired assets during the September 17, 2024, Denver Gold Forum. According to Defendant\n\nValjoen:\n\n So firstly, when I think about our new assets, I can't think about it\n without stepping back and looking at the full portfolio of assets because\n what it enabled for us is to really step back and turn these inside -- these\n assets inside out in a way that we haven't done before, because we have\n the opportunity now to look at this entire portfolio of assets. The\n flexibility that we can build in our operational performance and how\n we think about our sustaining capital profile and staging that to ensure\n that we have a stable ounce profile and a sustainable -- sustainable\n capital profile. When we consider the full potential program on the new\n assets, particularly, we've run all 4 assets that will remain in the\n portfolio now through our full potential program. And that is -- all of\n those are in execution at the moment. We have committed $200 million\n are as part of the synergies that will come from that process, and we're\n well on track.\u201d\n\n 109. Thus, by the beginning of the Class Period, eight months after closing the Newcrest\n\nacquisition, Defendants conveyed to the market that they had an in-depth understanding of the upside\n\nand the downside of each of the Tier 1 assets Newmont acquired from Newcrest. With this knowledge,\n\nDefendants expressed confidence in their ability to increase gold production and decrease costs over\n\nthe five-year guidance period of 2024 through 2028.\n\nV. FALSE AND MISLEADING STATEMENTS10\n\n 110. In Newmont\u2019s 2Q2024 Press Release, issued July 24, 2024 and filed with the SEC the\n\nsame day, about gold production, Defendants stated:\n\n Attributable gold production1 decreased 4 percent to 1,607 thousand\n ounces from the prior quarter primarily due to lower production at\n Cerro Negro as a result of the suspension of operations during the\n quarter following the tragic fatalities of two members of the Newmont\n workforce on April 9, 2024. Operations at Cerro Negro safely resumed\n on May 24, 2024. In addition, operations were suspended as of April\n 14, 2024 at Telfer, one of Newmont's non-core assets, as further work\n\n10\n Statements alleged to be false and misleading are bolded and italicized. The rest of the statements\nare provided for context.\n 43\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 47 of 84\n\n\n\n is completed to remediate the safe operation of the tailings storage\n facility. Second quarter production was also impacted by lower\n production at Lihir due to heavy rainfall impacting mine sequencing,\n as well as lower production at Akyem due to lower grades as a result\n of the ongoing stripping campaign. These impacts were partially offset\n by higher production at Porcupine, Brucejack and Pe\u00f1asquito.\n\n Full year production for 2024 is expected to be second-half weighted\n as previously indicated, with a sequential increase weighted towards\n the fourth quarter. The second-half weighting is expected to be driven\n primarily by improved grades at Pe\u00f1asquito, Ahafo and Tanami,\n improved throughput from Lihir and Boddington and sequential\n improvements delivered from our non-managed joint venture\n operations.\n\n 111. The foregoing statements about improved throughput from Lihir and 2024 gold\n\nproduction generally were materially false and misleading. Through their reconciliation processes\n\nand lower production rates, twenty-four days into the 3Q2024, Defendants knew or recklessly\n\ndisregarded that production problems such as outdated and unreliable machinery, ocean dumping,\n\nand potential for waste overflow had already materially impacted Lihir\u2019s performance as to both\n\nreliability and safety.\n\n 112. About AISC, in the 2Q2024 Press Release, Defendants stated, \u201cGold AISC per ounce\n\nincreased 9 percent to $1,562 per ounce compared to the prior quarter primarily due to higher CAS\n\nand higher sustaining capital spend.\u201d\n\n 113. The foregoing statement about AISC was materially false and misleading. Even as\n\nDefendants disclosed rising AISC in 2Q2024, they failed to disclose that they knew or recklessly\n\ndisregarded material problems at Lihir and Brucejack relating to both production and costs had caused\n\nand would continue to cause Newmont to expend more to produce each ounce of gold, materially\n\nincreasing AISC, contracting Newmont\u2019s margins and impacting its profitability for the near-term\n\nand the medium-term. By choosing to discuss AISC, Defendants had a duty to disclose these facts.\n\n\n\n\n 44\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 48 of 84\n\n\n\n 114. On July 25, 2024, Defendants convened the 2Q2024 Earnings Call. During prepared\n\nremarks, Defendant Palmer stated, \u201cWe delivered solid operational performance as planned, keeping\n\nus firmly on track to achieve our 2024 guidance and positioning us to deliver improving financial\n\nresults. These solid results have also enabled us to progress our capital allocation priorities, which\n\nI'll touch on in a moment. With a continued focus on safely delivering, we\u2019ve also made meaningful\n\nprogress on the 4 key commitments we made to our shareholders at the start of the year.\u201d\n\n 115. The foregoing opinion about Newmont\u2019s solid operational performance in the context\n\nof Defendants\u2019 then-present statement that Newmont was on track to meet their guidance was\n\nmaterially false and misleading because Defendants failed to disclose they knew or recklessly\n\ndisregarded that material adverse circumstances at Lihir and Brucejack would materially, adversely\n\nimpact Newmont\u2019s production and increase its AISC, contracting margins materially.\n\n 116. Also during the 2Q2024 Earnings Call, in scripted remarks, Defendant Palmer stated:\n\n Looking at the 3 components of our synergy delivery, and starting with\n full potential. We are now advancing into the delivery stage of the\n initiatives we have identified at Lihir, Cadia and Red Chris, with the\n largest value drivers coming from our 2 new Tier 1 assets in Lihir\n and Cadia. On our call last quarter, we provided an update on the\n opportunities we have identified at Lihir. In this quarter, I'll briefly\n describe some of the opportunities we see in front of us at Cadia. We\n recently completed our full potential diagnosis phase at Cadia, from\n which we have identified a series of initiatives that are expected to\n deliver more than $100 million of value by the end of next year.\n\n 117. The foregoing statements about advancing into the delivery stage and Lihir and Cadia\n\nconstituting Newmont\u2019s largest value drivers were materially false. Defendants failed to disclose that,\n\nby no later than July 24, 2024, Defendants knew or recklessly disregarded production problems and\n\nrising AISC at Lihir that had already reduced Newmont\u2019s production and decreased its operating\n\nmargins, materially adversely impacting Newmont\u2019s performance for both 3Q2024 and Newmont\u2019s\n\nnear and medium-term financial results.\n\n 45\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 49 of 84\n\n\n\n 118. During the 2Q2024 Earnings Call, Defendant Viljoen also delivered prepared remarks,\n\nstating:\n\n Our managed operations delivered solid second quarter results in line\n with our expectations and outlook for the year. With a focus on size\n and efficient production at each of our managed operations, we are\n heading into the second half of the year with confidence in our ability\n to deliver on our business plan and the commitments Tom reiterated\n earlier. And similar to the first half of the year, our operational results\n in the third and fourth quarters will be largely driven by reduction from\n our 6 managed Tier 1 operations.\n\n 119. The foregoing statement about efficient production in the context of Defendants\u2019\n\nexpressing confidence in Newmont\u2019s ability to deliver on its business plan was materially false and\n\nmisleading because Defendants failed to disclose they knew or recklessly disregarded that material\n\nproduction issues plagued at least Newmont\u2019s Lihir and Brucejack, factual conditions that\n\nundermined the basis of Defendants\u2019 statement.\n\n 120. Also during the 2Q2024 Earnings Call, Defendant Viljoen stated:\n\n And finally, at Lihir, second quarter production decreased from the\n first quarter primarily due to heavy rainfall, which contributed to soft\n ground conditions that in turn impacted mine sequencing. Production\n levels are expected to remain consistent in the third quarter as the site\n commences a planned 120-day shutdown of the primary autoclave.\n And just to bring the autoclave shutdown into perspective, the process\n includes not only shutting down the autoclave itself, but also removing\n the brick layer at [indiscernible] membrane, inspecting the 5.5-meter\n diameter steel shell, applying a high-temperature tolerant membrane\n and rebricking the 48-meter long structure, which is nearly the length\n of a new Olympic swimming pool. Once complete, we anticipate gold\n production will return to normal levels in the fourth quarter, positioning\n Lihir for a strong finish to the year. Taking everything into account, we\n anticipate an increase in gold production mix quarter, setting us up to\n deliver Lihir's higher production in the fourth quarter.\u201d\n\n 121. The foregoing statement about heavy rainfall impairing production at Lihir in the\n\ncontext of consistent results in 3Q2024 was materially false and misleading because Defendants failed\n\nto disclose that they knew, or recklessly disregarded, no later than July 2024, Lihir had already begun\n\n 46\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 50 of 84\n\n\n\nexperiencing material, adverse production issues with both reliability and safety such as outdated and\n\nunreliable machinery, ocean dumping, and potential for waste overflow that had materially impaired\n\nproduction, increased AISC, and reduced Newmont\u2019s margins.\n\n 122. Defendant Ovelmen also delivered prepared remarks during the 2Q2024 Earnings\n\nCall, stating, in material part:\n\n And whilst we are pleased with the improvement in free cash flow, we\n are still not satisfied and are working to further improve margins.\n Looking ahead, we anticipate higher free cash flows in the second\n half of the year driven by increased production values and lower unit\n costs, as Tom and Natascha just mentioned. Heading into the second\n half of the year, we remain firmly on track to achieve our full year\n guidance of reduction, cost and capital spend. And as Natascha\n mentioned, production is expected to increase in the third quarter with\n the year's strongest performance anticipated in the fourth quarter.\n\n 123. The foregoing statements about increased production and lower unit costs in the\n\ncontext of Defendants\u2019 efforts to improve margins were materially false and misleading because\n\nDefendants failed to disclose they knew or recklessly disregarded that production and cost issues at\n\nLihir (such as outdated and unreliable machinery, ocean dumping, and potential for waste overflow)\n\nand Brucejack (nuggety nature of deposits that required further, expensive development of the site)\n\nhad materially, adversely impacted Newmont\u2019s margins and results and would continue impacting\n\nfor the near-term and medium term.\n\n 124. Concluding Defendants\u2019 prepared remarks during the 2Q2024 Earnings Call,\n\nDefendant Palmer stated, in material part, \u201c[w]e safely delivered solid production as planned,\n\nkeeping us firmly on track to meet our full year guidance for both ounces and costs.\u201d\n\n 125. The foregoing opinion statement about keeping the Company firmly on track to meet\n\nits full-year guidance was materially false and misleading because Defendants failed to disclose they\n\nknew or recklessly disregarded that material production issues plagued at least Newmont\u2019s Lihir and\n\nBrucejack, factual conditions that undermined the basis of Palmer\u2019s statement.\n 47\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 51 of 84\n\n\n\n 126. During the 2Q2024 Earnings call, analysts questioned Defendants about the 2Q2024\n\nresults and Defendants\u2019 guidance. Scotiabank analyst Tanya Jakusconek asked:\n\n Okay. As I think about the second half, and I think you mentioned that\n there will be a step-up in production to volume and then stronger\n volumes in Q4, I think about this cost structure because in order for us\n to get these costs down, we do need the volume, number one. And\n obviously, the $130 million in synergies that you mentioned. I'm just\n trying to picture for myself, should I be thinking that the stepup into\n Q3 like almost like 26% of production coming out of the year and then\n 28% in Q4 and $130 million, majority of those savings coming in Q4?\n I'm just trying to understand how I'm going to get to your guidance on\n the costing side with the volume and the synergies and also where the\n $130 million in synergies are coming from, if I can have a breakdown\n of those.\n\n 127. In response to Scotiabank\u2019s question, Defendant Palmer falsely stated:\n\n Think about -- I made the picture this way, and I think you're not too\n far off the mark. You certainly got to see the synergies getting through\n -- particularly those coming from full potential in the fourth quarter as\n those programs get their momentum up. You're certainly going to see\n the highest quarter 4 gold ounces in the fourth quarter. That's from\n some of our key assets that Natascha covered in her comments. The 2\n non-managed joint ventures, so NGM need to deliver on their\n commitments and they've got that strong fourth quarter. Our direct\n costs are pretty stable across the year. And certainly what we're seeing\n in the first half flowing through the second half, pretty stable. So I\n think the picture you're painting in terms of that third quarter weighting\n to the fourth quarter weighting is a reasonable position to be thinking\n about in terms of that weight between the third and the fourth quarter.\n You will see a step up in the third and then a step up into the fourth to\n get to our numbers.\u201d\n\n 128. The foregoing then-present statement about cost stability was materially false and\n\nmisleading because Defendants failed to disclose they knew or recklessly disregarded that production\n\nand cost issues at Lihir (such as outdated and unreliable machinery, ocean dumping, and potential for\n\nwaste overflow) and Brucejack (nuggety nature of deposits that required further, expensive\n\ndevelopment of the site) had materially, adversely impacted Newmont\u2019s margins and results and\n\nwould continue impacting for the near-term and medium term.\n\n 48\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 52 of 84\n\n\n\n 129. After the close of trading on July 25, 2024, Defendants filed with the SEC Newmont\u2019s\n\nQuarterly Report on Form 10-Q for the period ended June 30, 2024. In the 2Q10-Q, Defendants stated\n\nthat \u201cThere were no material changes from the risk factors set forth under Part I, Business; Item 1A,\n\nRisk Factors in our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, as\n\nfiled with the SEC on February 29, 2024.\u201d Among the risks in the 2023 10-K to which, Defendants\n\nclaimed, there was \u201cno material changes\u201d was the risks of increasing operating costs, stating:\n\n Increased operating and capital costs could affect our profitability.\n Costs at any particular mining location are subject to variation due to a\n number of factors, such as variable ore grade, changing metallurgy and\n revisions to mine plans in response to the physical shape and location\n of the ore body, as well as the age and utilization rates for the mining\n and processing related facilities and equipment. In addition, costs are\n affected by the price and availability of input commodities, such as\n fuel, electricity, labor, chemical reagents, explosives, steel, concrete\n and mining and processing related equipment and facilities.\n Commodity costs are, at times, subject to volatile price movements,\n including increases that could make production at certain operations\n less profitable. Further, changes in laws and regulations can affect\n commodity prices, uses, and transport. Reported costs may also be\n affected by changes in accounting standards. A material increase in\n costs at any significant location could have a significant effect on our\n profitability and operating cash flow.\n\n Our operational costs, including, without limitation, labor costs, can\n be impacted by inflation. Certain of our operations are located in\n countries that have in the past experienced high rates of inflation, such\n as in Argentina, Suriname, and Ghana. It is possible that in the future,\n high inflation in the countries in which we operate may result in an\n increase in operational costs in local currencies (without a concurrent\n devaluation of the local currency of operations against the dollar or an\n increase in the dollar price of gold, copper, silver, lead or zinc). A\n material increase in costs at any significant location could have a\n significant effect on our profitability and operating cash flow.\n\n We could have significant increases in capital and operating costs\n over the next several years in connection with new projects, costs\n related to closure reclamation activities, and in the sustaining and/or\n expansion of existing mining and processing operations. Costs\n associated with capital expenditures may increase in the future as a\n result of factors beyond our control. Increased capital expenditures\n may have an adverse effect on the profitability of and cash flow\n 49\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 53 of 84\n\n\n\n generated from existing operations, as well as the economic returns\n anticipated from new projects. Significantly higher and sustained\n increases in operational costs or capital expenditures could result in the\n deferral or closure of projects and mines in the event that costs become\n prohibitive.\n\n 130. The foregoing risk disclosure about increasing operating costs impacting profitability\n\nwas materially false and misleading because Defendants failed to disclose they knew or recklessly\n\ndisregarded that production and cost issues at Lihir (such as outdated and unreliable machinery, ocean\n\ndumping, and potential for waste overflow) and Brucejack (nuggety nature of deposits that required\n\nfurther, expensive development of the site) had materially, adversely impacted Newmont\u2019s margins\n\nand results and would continue impacting for the near-term and medium term such that the risk of\n\nincreased costs impacting profitability had already materialized.\n\n 131. On September 17, 2024, only thirteen days before the end of Newmont\u2019s third quarter,\n\nDefendants Viljoen and Ovelmen spoke at the Denver Gold Forum Americas 2024 in Colorado\n\nSprings, Colorado. In response to a question about what Newmont management had \u201clearned about\n\nthe newly acquired assets\u201d and the impact of integrating those assets \u201cin terms of deploying the full\n\npotential program just by integrating those assets within Newmont,\u201d Defendant Viljoen stated:\n\n So firstly, when I think about our new assets, I can't think about it\n without stepping back and looking at the full portfolio of assets\n because what it enabled for us is to really step back and turn these\n inside -- these assets inside out in a way that we haven't done before,\n because we have the opportunity now to look at this entire portfolio of\n assets.\n\n The flexibility that we can build in our operational performance and\n how we think about our sustaining capital profile and staging that to\n ensure that we have a stable ounce profile and a sustainable --\n sustainable capital profile.\n\n When we consider the full potential program on the new assets,\n particularly, we\u2019ve run all 4 assets that will remain in the portfolio now\n through our full potential program. And that is -- all of those are in\n execution at the moment. We have committed $200 million are as part\n\n 50\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 54 of 84\n\n\n\n of the synergies that will come from that process, and we're well on\n track.\n\n But I do want to emphasize that not only through the full potential\n program, but in stepping back and changing the constraints that we've\n put on our operations, the constraints that we've put on how we look at\n our portfolio of assets and how that enterprise have interdependency, it\n is an opportunity for us to make a real step change in productivity,\n bringing costs down to sustainable low cost base and working towards\n that economic margin expansion that Karyn has been talking about.\n\n 132. The foregoing statements about material changes in productivity, reducing costs, and\n\nexpanding margins with respect to Newmont\u2019s recently acquired Newcrest assets were materially\n\nfalse and misleading. In the context of having conducted a thorough review of the Tier 1 Assets\n\nNewmont acquired from Newcrest, including the projects at Brucejack and Lihir, having \u201cturned\n\nthese assets inside out,\u201d Defendants failed to disclose they knew or recklessly disregarded that\n\nproduction and cost issues at Lihir (such as outdated and unreliable machinery, ocean dumping, and\n\npotential for waste overflow) and Brucejack (nuggety nature of deposits that required further,\n\nexpensive development of the site) had materially, adversely impacted Newmont\u2019s margins and\n\nresults and would continue impacting for the near-term and medium term.\n\n 133. In response to Ovelmen\u2019s and Valjoen\u2019s September 17, 2024, presentation at the\n\nDenver Gold Forum, analysts praised the Company. For example, in a September 17, 2024, report,\n\nUBS analysts, including Daniel Major, upgraded Newmont to a buy rating calling it their \u201cpreferred\n\nlarge cap gold miner. . . .\u201d UBS expressed its belief that among the key drivers for Newmont\u2019s success\n\nwas Lihir. More, UBS believed that Newmont could achieve FY2024 guidance and that post\n\ndivestment of non-core assets, accelerating de-leveraging and creating cash returns, that Newmont\n\nwould \u201chave one of the best portfolios in the industry consisting of predominantly large long-life\n\nassets in low risk jurisdictions & attractive brownfield growth projects.\u201d UBS concluded its\n\n\n\n\n 51\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 55 of 84\n\n\n\nSeptember 17, 2024, reports, stating, \u201c[i]f NEM can rebuild investor confidence, we believe it can\n\nrecapture a valuation premium.\u201d\n\n 134. Similarly, in a September 17, 2024, Report, RBC analyst Joshua Wolfson, discussing\n\nOvelmen\u2019s and Valjoen\u2019s performance at the Denver Gold Forum wrote positively about Newmont,\n\nstating:\n\n \u2022 Focused on return on capital invested. NEM outlined the company\n offered shareholders exposure to a suite of Tier 1 assets, plus a team\n with the operational/technical excellence, and the discipline to deliver\n against its plans. Historical industry challenges with generating\n sufficient returns on capital invested was reviewed, and NEM has a\n renewed focus on this metric, plus FCF per share growth.\n\n \u2022 Carefully evaluating growth. Following the Newcrest acquisition,\n NEM is delivering on its full asset potential program across the new\n assets, plus is re-evaluating capital requirements to deliver sustainable\n production. NEM is advancing four growth projects today (Cadia block\n caves, Tanami II, Ahafo North, Cerro Negro), and any new projects\n advanced must create a positive impact and value. Any project\n advancement requires meeting NEM's technical and economic filters.\n\n \u2022 Divestiture process advancing well. In Feb, NEM outlined an\n objective to raise $2b in proceeds from non-core asset sales, and this\n process was reviewed as progressing well. Following the recent\n announcement of the Telfer sale, Akyem is next on track to be\n completed, and the full process is guided to be completed by the end of\n 1Q25. Potential acquisitions are a low priority, and capital allocation\n priorities are firmly focused on the buyback. NEM still sees\n tremendous value in its shares, and asset disposition proceeds will be\n directed here. (Emphasis added).\n\n 135. Demonstrating Defendants\u2019 recklessness, their bad faith disclosures during 3Q2024,\n\nclose to and even after the quarter\u2019s conclusion, they continued misleading, failing to disclose the\n\ntruth about Lihir and Brucejack and their drag on Newmont\u2019s results both near and medium term. On\n\nOctober 3, 2024, BNP Paribas reported that it had hosted Defendants Palmer and Ovelmen to meet\n\ninvestors in London and Paris. According to BNP Paribas, Defendants Palmer and Ovelmen\n\nexpressed confidence in delivering on $500 million in synergies from the Newcrest acquisition. In\n\n 52\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 56 of 84\n\n\n\naddition, they expressed no appetite for further acquisition, instead focusing on the assets in\n\nNewmont\u2019s portfolio and divesting non-core assets.\n\n 136. With respect to delivering on the potential from Newmont\u2019s current portfolio of Tier\n\n1 assets, near or after the close of 3Q2024, Defendants Palmer and Ovelmen distributed a chart to\n\nBNP Paribas and investors in London and Paris, confirming the production projections that they\n\nwould effectively disavow in revealing the truth on October 23, 2024, and October 24, 2024.\n\nAccording to BNP Paribas, the chart they distributed to investors showed:\n\n\n\n\n 137. The foregoing chart, virtually identical to the chart Defendants included in their\n\nFebruary 2024 Presentation, repeating their February 2024 guidance with respect to production, was\n\nmaterially false and misleading. Defendants failed to disclose that, by the end of 3Q2024, Defendants\n\nknew or recklessly disregarded that production and cost issues at Lihir (such as outdated and\n\nunreliable machinery, ocean dumping, and potential for waste overflow) and Brucejack (nuggety\n\n\n 53\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 57 of 84\n\n\n\nnature of deposits that required further, expensive development of the site) had materially, adversely\n\nimpacted Newmont\u2019s margins and results and would continue impacting for the near-term and\n\nmedium term. Defendants also failed to disclose they knew or recklessly disregarded that because of\n\nmaterial issues at Brucejack and Lihir, in particular, gold production was flattening relative to\n\nDefendants\u2019 February 2024 forecast in the near and medium terms.\n\n 138. That is, at or after the end of 3Q2024, with actual knowledge of flattening production,\n\nDefendants distributed to investors and BNP Paribas reproduced a chart that was substantially similar\n\nto the chart Defendants distributed as Slide 15 of their February 25, 2024, Investor Presentation of\n\n1Q2024 as follows:\n\n\n\n\n 139. Similarly, with respect to costs, at the very end of 3Q2024, Defendants Palmer and\n\nOvelmen continued to misrepresent that AISC were and would continue declining in 2024 and\n\nbeyond, distributing the following chart to investors.\n\n\n\n\n 54\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 58 of 84\n\n\n\n\n 140. The foregoing statements about AISC and production were materially false and\n\nmisleading. Defendants failed to disclose they knew or recklessly disregarded that production and\n\ncost issues at Lihir (such as outdated and unreliable machinery, ocean dumping, and potential for\n\nwaste overflow) and Brucejack (nuggety nature of deposits that required further, expensive\n\ndevelopment of the site) had materially, adversely impacted Newmont\u2019s margins and results and\n\nwould continue impacting for the near-term and medium-term. Defendants, therefore, knew or\n\nrecklessly disregarded that that because of material issues at Brucejack and Lihir, in particular, AISC\n\nwere not decreasing materially and would not relative to Defendants\u2019 February 2024 forecast.\n\n 141. Once again, at or after the end of 3Q2024, with actual knowledge of flattening\n\nproduction, Defendants distributed to investors and BNP Paribas reproduced a chart that was\n\nsubstantially similar to the chart Defendants distributed as Slide 16 of their February 25, 2024,\n\nInvestor Presentation of 1Q2024 as follows:\n\n\n\n\n 55\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 59 of 84\n\n\n\n\n 142. In direct response to Defendants false and misleading statements coinciding with the\n\nend of 3Q2024, on October 3, 2024, BNP Paribas rated Newmont \u201coutperform\u201d with a price target of\n\n$65/share. Stating its investment case, it disclosed:\n\n Newmont is a solid player with the largest gold production footprint.\n Newmont's US primary listing and its membership of the S&P 500\n index should continue to draw both active and passive investors\n towards the stock. Poor operating performance last year with guidance\n downgrades across production/ cost/ project capex did raise question\n marks about future years' consensus earnings/cash flow forecasts. The\n recently completed Newcrest acquisition brings into the portfolio\n additional options for organic growth while also optimising the\n portfolio by shedding short life, smaller assets.\n\n We believe real interest rates peaking will be a positive catalyst for gold\n prices. We find value in the shares on our revised financial estimates\n before the M&A transaction and the achievement of targeted synergies\n would make the investment case even more attractive.\n\n 143. Among the downside risks to investing in Newmont, BNP Paribas stated were\n\n\u201coperational challenges,\u201d \u201chigher costs/capex\u201d and \u201clower production.\u201d\n\n\n\n 56\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 60 of 84\n\n\n\n 144. Thus, just before and after 3Q2024\u2019s close, as they prepared to disclose material\n\noperational challenges, materially higher costs, and materially lower production relative to guidance,\n\nDefendants directly misled investors.\n\nVI. THE TRUTH EMERGES\n\n 145. On October 23, 2024, at 4:05 P.M., after the close of trading, Newmont issued a press\n\nrelease correcting Defendants\u2019 previous omission of material problems, announcing disappointing\n\nthird quarter EBITDA, lower production guidance and an increase in the Company\u2019s operating costs,\n\nstating Third Quarter 2024 Production and Financial Summary, in relevant part:\n\n Gold CAS totaled $1.9 billion for the quarter. Gold CAS per ounce3\n increased 5 percent to $1,207 per ounce compared to the prior quarter\n primarily due to higher direct costs at Lihir, as a result of planned\n autoclave maintenance, as well as higher direct operating costs\n primarily due to increased contract services across the portfolio.\n\n Gold AISC per ounce increased 3 percent to $1,611 per ounce\n compared to the prior quarter primarily due to higher CAS.\n\n * * *\n\n CAS from other metals totaled $418 million for the quarter. CAS per\n GEO increased 21 percent from the prior quarter to $1,015 per ounce\n due to higher costs allocated to co-products at Pe\u00f1asquito, Cadia, and\n Red Chris, as well as the impact of the shutdown at Telfer due to the\n tailings remediation work AISC per GEO increased 11 percent to\n $1,338 per ounce compared to the prior quarter primarily due to higher\n CAS from other metals, partially offset by lower treatment and refining\n costs.\n\n Net income attributable to Newmont stockholders was $922 million or\n $0.80 per diluted share, an increase of $69 million from the prior\n quarter primarily due to higher average realized gold prices and higher\n sales volumes, partially offset by higher unit costs of production, as\n well as a loss on assets held for sale of $115 million recognized in the\n third quarter compared to $246 million recognized in the second\n quarter of 2024.\n\n\n\n\n 57\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 61 of 84\n\n\n\n 146. On October 24, 2024, at 3:00 P.M., Defendants convened the 3Q2024 Earnings Call.\n\nIn prepared remarks, Defendant Viljoen commented on Newmont\u2019s lower production levels from its\n\nnew operations, specifically in Lihir and Brucejack, stating, in pertinent part:\n\n As we look ahead to 2025, our operational focus at Lihir will remain\n on reducing complexity to deliver more sustainable and predictable\n results at this Tier 1 operation. In the short term, these efforts will\n result in lower than initially anticipated production next year due to\n lower throughput to allow for asset reliability improvement work and\n changes to the mine sequencing, including the establishment of wider\n ramps to manage surface water and repositioning all roads to be\n more effective and efficient.\n\n Whilst we complete this work, we will be processing a higher\n proportion of lower grade stockpiles in 2025. And we anticipate that\n gold production next year from Lihir will be largely consistent with this\n year's and around 250,000 ounces lower than our initial guidance for\n 2025 that we provided back in February.\n\n * * *\n\n Similarly, at Brucejack, we have taken a step back this year to do the\n development and drilling work to ensure that we improve our\n knowledge of this nuggety ore body. We continue to experience\n periods of exceptional high grades, including a 1-day average of 52\n grams per ton last month and an average of over 20 grams per ton in\n the same week. As a result of the work we are doing, we anticipate\n that the gold production next year from Brucejack will also be largely\n consistent with this year, all around 100,000 ounces lower than our\n initial guidance for 2025 that we provided back in February.\n (Emphasis added).\n\n 147. Defendant Palmer acknowledged that when Defendants guided in February 2024, they\n\ndid not have a deep understanding of the long-term contributions of the true composition and long-\n\nterm profit potential of the ore bodies composing leading projects and mines acquired through the\n\nNewcrest acquisition. It is clear, however, that no later than July 24, 2024, Defendants had either\n\ngained sufficient understanding of Newmont\u2019s Brucejack investment or were severely reckless in\n\nfailing to understand that Brucejack was nuggety, requiring costly development work to better\n\n\n\n 58\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 62 of 84\n\n\n\nunderstand its actual long term contribution to production. During Palmer\u2019s prepared remarks, he\n\nstated:\n\n We strengthened our balance sheet with $233 million in debt\n reductions, and we approved an additional $2 billion share repurchase\n program, bringing our total authorization to $3 billion. Having now\n gained almost a year of experience working with our new operations,\n we have developed a much deeper understanding of their long-term\n contribution to our core portfolio and the work needed to create\n consistent and lasting value for our shareholders. (Emphasis added).\n\n 148. With respect to the future, Defendant Palmer continued, addressing the Company\u2019s\n\nincrease in direct costs and disappointing production, stating, in relevant part:\n\n Looking ahead to 2025, we expect gold production from our go-\n forward Tier 1 portfolio to remain largely consistent with this year,\n driven by the lower than previously expected production from two of\n our new operations in Lihir and Brucejack. We expect unit costs for\n our core portfolio in 2025 to align with the trends we are observing this\n year. We also remain committed to the critical tailings work in Cadia,\n which may result in an annual sustaining capital spend of around $1.8\n billion from our core portfolio over the next few years.\n\n And we continue to see higher previously expected direct costs and\n G&A spend. But with the clarity of our go-forward portfolio, we are\n now working to manage. With this context, my leadership team and I\n have a laser focus on the work we need to do to optimize our go-\n forward portfolio of 11 managed operations and 3 projects in\n execution. Whilst we do anticipate production growth over time, our\n focus is firmly on expanding margins, generating a strong return on\n capital invested and creating value versus chasing volume. We are\n taking a critical look at our organic project pipeline and spending\n time to ensure that any reinvestment we make into our portfolio is\n both disciplined and deliberate. (Emphasis added).\n\n 149. During the question-and-answer portion of the call, several analysts questioned\n\nNewmont executives on the Company\u2019s change in cost guidance. For example, analyst Daniel\n\nEdward Major of UBS Investment Bank, asked,\n\n But when I look back to February and you look at your cost profile in\n medium term, like many in the gold industry, you've got costs coming\n down over time over the next few years, yet this year, all-in sustaining\n costs are $100 higher than you saw in February. Is it realistic and\n 59\n\fCase No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 63 of 84\n\n\n\n credible to actually assume that unit costs will moderate over time?\n Or should we rather be assuming the best case outcome is limiting\n inflation?\n\n 150. In response to the question from UBS analyst Major, Defendant Palmer responded:\n\n Certainly, if I think about the gold industry, there's always been a\n strong correlation between gold price and the cost of producing an\n ounce of gold, given that inflation is one of those key structural\n elements behind the gold price. So as you look forward, if gold price\n eases, then you'd expect the cost of producing an ounce to ease. And\n obviously, you're going to see some tracking between the cost per\n ounce and the gold price. Our focus is on what we're putting in place\n is that we have 11 managed operations going forward where we're\n going to be in a position to be looking over the long term and\n strengthening and growing those margins.\n\n The other comment I'd make before I pass to Karyn, if you wanted to\n build on that, is when you look at the out-year numbers that we had\n provided back in February, that assumed 0 escalation. And so when\n you think about any forward-looking numbers, there's no escalation.\n And obviously, what we're seeing as we are closer to 2025, the run\n rates we're seeing as we close out this year and that is going to flow\n into next year as we understand the cost for the next 12 to 15 months.\n\n 151. Also in response to UBS analyst Major, Defendant Ovelmen added:\n\n Generally speaking, as we indicated, the cost that we're seeing here in\n 2024, we do expect those to trend into 2025. Costs were higher,\n driven by higher direct costs, primarily. If you think about contracted\n labor, which is 50% of our cost structure, we've seen those increase\n into the third quarter and through the year. And so we expect that,\n that's been built in now into our cost estimates as we head into 2025.\n\n 152. Following up, UBS analyst Major asked:\n\n Yes, just again, just thinking about your guidance comments for 2025.\n You previously looked at in February around 6 million ounces from the\n core portfolio in terms of gold. You highlight in the comments, 250,000\n ounces lower than your previous plans at Lihir and 100 at Brucejack.\n So is it fair to then assume 350,000 off the 6 million is the new base\n when we look into 2025?\n\n 153. Defendant Palmer answered UBS analyst Major, stating:\n\n Certainly, the two movers in terms of our managed portfolio, and as I\n think as Natascha said in her remarks, and I followed up with the\n 60\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 64 of 84\n\n\n\n drivers behind that mine sequence at Lihir and getting in front of\n understanding the resource definition of Brucejack and the\n development work and the drilling you need to do for that. Both of\n those are progressing well, but it's the ounces for next year reflect that\n important work. I think the numbers, if you then look at the rest of the\n portfolio on those trends coming through from '24 flowing into '25 the\n number is more like 5.6 as you think about this portfolio for 2025, the\n core portfolio of the 2025. Obviously, we've got some divestments to\n close out and still got some more work to do on that front. Some of that\n will flow into 2025, as we complete that divestment work, but that core\n portfolio, 5.6% is about their gold production number for next year.\n\n 154. Expressing surprise at Defendant\u2019s disclosures, RBC Capital Markets analyst Joshua\n\nMark Wolfson stated and then asked:\n\n I'm trying to wrap my head around the change -- the significant change\n in sort of cost expectations and to some degree, production\n expectations going forward versus what we had been hearing about\n previously. And I guess, there's sort of two different aspects, at least\n that I can understand. One is despite the synergy targets being achieved,\n it sounds like there's some larger integration issues, given the\n challenges or higher costs mentioned across Brucejack, Lihir and\n Cadia.\n\n And then on the other hand, we're hearing significant and unexpected\n inflation expectation changes, which I guess would be a larger\n industry-related item. I just want to sort of clarify how should we be\n thinking about these things? And am I sort of assessing this\n appropriately?\n\n 155. In response to RBC analyst Wolfson, Defendant Palmer stated:\n\n So maybe pick it up in a few parts. I think the commentary around\n Lihir, Cadia, Cerro Negro, I think you mentioned, is really the Q3 cost\n story. So it's around Lihir, we had some costs that we had assumed\n would be in the fourth quarter for the large autoclave shutdown\n specialist labor in the remote part of the world moving into Q3. So that's\n one of the drivers there.\n\n Cadia was power, where a higher power cost coming off our contract\n for price taker. Cerro Negro, it was more around ramping up following\n the tragedy earlier this year and making sure we're focused on doing\n that work safely, some productivity impacts. And then the other factor\n in the third quarter was we had some concentrate sales at Pe\u00f1asquito\n didn't get away at the end of the third quarter due to some weather\n impacts there that obviously flowed into the fourth quarter.\n 61\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 65 of 84\n\n\n\n\n So that's sort of bit of a ramp up of the third quarter cost story. When I\n look at '24 flowing into '25, so there's two impacts, the volume impact\n we just talked about with Dan and the Lihir and Brucejack work next\n year linked to that. And then the cost impact is sustaining capital and\n particularly around the work we're putting into the tailings facilities at\n Cadia. Cadia has got a 30-plus year life, several Panel Caves from come\n on. And there's work we need to do to ensure that Telfer capacity is\n matched to the volumes coming out of those Panel Caves. So that story\n is around volume for those couple of key drivers and then sustaining\n capital.\n\n 156. Also in response to RBC analyst Wolfson, Defendant Ovelmen stated:\n\n Sure. Just a little more granularity in terms of 2024. So about 1/3 of\n that is increased due to that lower sales volume, including impacts from\n Telfer, Lihir and Brucejack. Another 1/3 relates to that higher\n sustaining capital that we've been talking about largely driven by\n Nevada. And then the remaining 1/3, half of that is by royalties due to\n higher gold price and half associated with the G&A. So our run rate\n synergies are driven by the targeted benefits at Cadia, Red Chris and\n Lihir. However, we've also had performance challenges within the\n business, including the Telfer tailings as well as the nonmanagement\n of underperformed expectations. But -- and I think further to that\n supply chain, G&A benefits have been impacted by our need to invest\n in the future of this combined Tier 1 portfolio with a key focus in areas\n with the integration from Newcrest to new mines as needed. But we're\n not happy with where we're at, and we're working to reduce these costs.\n\n 157. With respect to Defendants\u2019 disclosures about G&A expenses National Bank\n\nFinancial, Inc. analyst Michael Parkin congratulated Defendants on achieving synergies, but asked\n\n\u201cOf the $500 million, how much of that flows through OpEx?\u201d in response, Defendant Palmer stated:\n\n Yes, obviously, the G&A component of that is part of your OpEx. The\n supply chain is a combination between improving costs and\n opportunity to get to productivity and volume. A lot of the full potential\n work is around volume. So you get some more productivity with\n current gold price, you get that benefit flowing through. So probably of\n the amount of that delivery, it's probably less than half has come from\n that an operational exit the soft improvements as opposed to the\n productivity and volume improvements and the free cash flow that you\n get coming through. And if I look through that, if I look at where we\n sit is one of the earlier questions, as we're closing out the integration\n and the important part of closing out the integration is completing our\n\n 62\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 66 of 84\n\n\n\n divestments and having a clear line of sight to 11 managed operations,\n 3 projects in execution.\n\n I'm not happy with the G&A that we have that go-forward business.\n And that's an area that we're going to be focusing on to get that number\n down to match the go-forward business. And that's a little bit of that\n higher cost to carry as you work through that transition. But as we get\n that clarity on the remaining divestments going out the door, we need\n to ensure that our G&A is matching the size of the go-forward business\n and expect to see some -- we'll be working hard to get some\n improvement in that area in the months ahead. (Emphasis added).\n\n 158. A number of well-known analysts who had been following Newmont expressed\n\nsurprise and concern over Defendants\u2019 disclosures, and proceeded to slash their price targets in\n\nresponse. CIBC Capital Markets analyst commented on Newmont\u2019s increase in costs, in relevant part:\n\n On the operating cost front, we had previously expected costs would\n decline; however, NEM is now guiding to flat costs YoY. Given the\n increased uncertainty we believe now exists regarding the company\u2019s\n asset performance over the medium and longer terms, we are lowering\n our NAV target multiple from 1.4x to 1.3x. We are also reducing our\n CFPS target multiple from 10.0x to 9.0x.\n\n 159. Similarly, Scotiabank released commentary on the Company\u2019s disappointing third\n\nquarter results, stating, in pertinent part:\n\n Despite the sharp decline in the shares, we believe NEM still faces\n some headwinds in the short term, given the recent release. This\n includes 1) uncertainty over cost containment of portfolio with the\n increase in costs into 2025 (and beyond), 2) uncertainty over the mid-\n term to LT outlook on the tier 1 portfolio (which now may be very\n different from February 2024 guidance) and 3) lack on information on\n several NCM assets acquired with respect to overall progress and\n outlook.\n\n 160. On October 30, 2024, UBS issued a report, downgrading Newmont to Neutral and\n\nreducing its price target from $67 to $54, citing a \u201closs of confidence.\u201d According to UBS:\n\n 2025 guidance downgrade and lack of confidence in medium-term\n\n We downgrade to Neutral and cut our price target to $54/sh (vs $67/sh)\n as we have limited conviction in NEM's ability to hit guidance and\n restore market confidence. Factoring in guidance from 3Q results\n 63\n\fCase No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 67 of 84\n\n\n\n drives material downgrades to our medium-term production and FCF\n forecasts, impacting NEM's ability to offer superior/sustainable cash\n returns vs peers. Offsetting this is the expectation that NEM announce\n further asset sales that will support near-term cash returns & our\n positive outlook on gold (LINK). Key drivers in our Buy on NEM\n were: (1) restoring confidence in operational performance after missing\n guidance in recent years; (2) divestments accelerating cash returns; (3)\n modest upside to production/lower costs & limited upside to capex\n medium-term resulting in superior FCF & sustainable returns vs peers\n medium-term. NEM 3Q results were a significant negative surprise to\n us (& the market) with management implying no improvement in core\n production (-9% vs guide) & costs (+16% vs guide) in 2025 & lack\n of visibility on medium-term outlook, undermining points 1 & 3 of our\n Buy thesis.\n\n Is it all priced in after ~15% decline in NEM shares since 3Q\n results?\n\n We cut 2025 core gold production to 5.6moz (~600koz/~10%),\n implying flat production y/y; 2025 cash costs +5% to $1,080/oz\n (slightly higher y/y); lift sustaining capex from $1.5bn to $1.8bn\n driving ~15% lift to 2025 all in sustaining costs (AISC) to $1,450/oz.\n The impact of non-core assets still remaining in our forecasts and\n limited impact of copper/silver limits 2025 EBITDA/EPS downgrades\n to 10-17%; but we cut 2025/26 FCF forecasts by ~30%. NEM no longer\n has the visibility/conviction to reiterate previous 2028 guidance of\n 6.7moz (8.3moz GEO) at $1,150/oz AISC and referenced long-term\n run rate of ~6moz (2028 700koz lower vs Feb-24) & 150kt of copper.\n The definition of this 'long-term run rate' is not clear and we continue\n to give NEM some benefit of the doubt forecasting 2028 gold\n production of 6.3moz @ AISC of ~$1,350/oz (real). Based on these\n assumptions we reduce NPV ~15%; cutting to 6moz @ >$1,400/oz\n (real) AISC would reduce NPV >20%. With NEM down <15% since\n results in our view the market has priced in an appropriate response to\n the cautious medium-term outlook.\n\n Valuation: Neutral (vs Buy) PT US$54/sh (vs $67/sh)\n\n We base our target price on 12m forward EBITDA at UBS price deck\n (average $2,825/oz); cut target multiple to 5.5x (vs 6.0) reflecting loss\n of confidence post guidance downgrades & reduce our target price to\n $54/sh. At spot (~$2,740/oz) we estimate NEM core assets are trading\n at 6.7x EV/EBITDA; at 5.5x NEM is discounting ~$2,800/oz. AEM is\n trading at spot EV/EBITDA premium of ~7.5x but higher FCF yield of\n ~6% and has superior track record of achieving guidance and\n delivering value accretive projects/M&A (LINK). We shift preference\n to AEM within the North American golds.\n 64\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 68 of 84\n\n\n\n\n 161. Lastly, twenty-one days after reporting on Defendant Palmer\u2019s and Defendant\n\nOvelmen\u2019s meetings with investors either near the very end or after the close of 3Q2024, on October\n\n24, 2024, BNP Paribas issued a report titled \u201cSin Bin,\u201d stating, \u201cNewmont shares have been put in\n\nthe sin bin, -15% today as the results call highlighted a weaker-than-expected outlook for 2025. Drip\n\nfeeding bad news doesn\u2019t work and the share price reaction today is on track for its worst day since\n\n2008.\u201d About Defendants\u2019 \u201csin,\u201d BNP Paribas, criticized Defendants belated disclosures, writing:\n\n Newmont released its 3Q24 results after US close last night. It was\n weaker-than-expected with elevated costs leading to a miss. 2024\n guidance was reiterated though and 4Q24 painted an improved outlook.\n You can find a more detailed summary of results here.\n\n What was subsequently disclosed on the results call today was that\n 2025 was going to be light of expectations. Mgmt noted on the call that\n Lihir was going to be 250koz less than their prior expectations and\n Brucejack 100koz less than expected. Managed gold volumes for 2025\n of 6.0Moz would thus be 5.6Moz (-7%) and AISC would be flat vs\n prior guidance and expectations for a cUSD 100/oz decline.\n Considering this was known at the time of publication of 3Q24 results\n last night, we firmly believe this should also have been disclosed at the\n same time.\n\n 162. That these analysts, and others, discussed Newmont\u2019s disclosure of then-existing,\n\nmaterial, and adverse production and costs circumstances that cause Defendants to modify near and\n\nmedium term expectations about margins and profitability below-expectations suggests the public\n\nplaced significant weight on Newmont\u2019s statements of prior confidence in goal to deliver higher\n\ngrades of gold production as well as copper, silver, lead, zinc and molybdenum from a global,\n\ndiversified Tier 1 portfolio, improve mining operations and cost profile to provide a steady production\n\nvolume and lower all-in sustaining costs at its Tier 1 operations. The frequent, in-depth discussion of\n\nNewmont\u2019s guidance confirms that Defendants\u2019 Class Period statements were material.\n\n 163. As a direct result of Defendants\u2019 disclosures of the truth about production issues at\n\nLihir and Brucejack that impacted Newmont\u2019s margins, investors bid down the price of Newmont\n 65\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 69 of 84\n\n\n\nfrom a close of $57.74 per share on October 23, 2024, to a close of $49.25 per share on October 24,\n\n2024, a 14.7% decline on unusually heavy volume of 37.2 million shares traded.\n\nVII. INSIDER TRADING\n\n A. Defendants Palmer and Toth Institute Stock Trading Plans at Suspicious Times,\n Enabling Them to Sell Material Amounts of their Own Shares at Artificially\n Inflated Prices\n\n 164. The trading activities of Defendants Palmer and Toth indicate their respective motives\n\nto achieve personal financial benefits by the sales of stock at artificially inflated prices, while making\n\nfalse and misleading statements and withholding material adverse facts from the market.\n\n 1. Palmer\u2019s Stock Sales Before and After He Instituted His 10b5-1 Plan\n\n 165. In its 1Q2024 10-Q, Newmont disclosed that Defendant Palmer had adopted an equity\n\ntrading plan pursuant to Exchange Act Rule 10b5-1, stating:\n\n During the three months ended March 31, 2024, the following directors\n and executive officers adopted or terminated Rule 10b5-1 trading plans\n intended to satisfy the affirmative defense conditions of Rule 10b5-\n 1(c):\n\n On January 29, 2024, Rob Atkinson, Executive Vice President and\n Chief Operating Officer, terminated a trading arrangement previously\n adopted with respect to the sale of securities of the Company\u2019s common\n stock (a \u201cRule 10b5-1 Trading Plan\u201d). Mr. Atkinson\u2019s Rule 10b5-1\n Trading Plan was adopted on May 30, 2023, had a term of 14 months,\n and provided for the sale of up to 66,000 shares of common stock\n pursuant to the terms of the plan. As of the date of termination of the\n Rule 10b5-1 Trading Plan, Mr. Atkinson had sold 27,500 shares of\n common stock under its terms. The adoption of such 10b5-1 Trading\n Plan, and its subsequent termination, each occurred during an open\n insider trading window and complied with the Company\u2019s standards on\n insider trading.\n\n On March 28, 2024, Tom Palmer, President, Chief Executive Officer\n and Director, adopted a Rule 10b5-1 Trading Plan. Mr. Palmer\u2019s Rule\n 10b5-1 Trading Plan has a term of 11 months and provides for the sale\n of up to 104,000 shares of common stock pursuant to the terms of the\n plan. The adoption of such 10b5-1 Trading Plan occurred during an\n open insider trading window and complied with the Company\u2019s\n standards on insider trading.\n\n 66\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 70 of 84\n\n\n\n\n 166. Prior to instituting this Rule 10b5-1 plan on March 28, 2024, Defendant Palmer had\n\npreviously maintained a Rule 10b5-1 trading plan instituted on March 4, 2022, through which he\n\nmade sales of Newmont common stock through November 2023.\n\n 167. Rule 10b5-1 requires directors and officers to wait 90 days after the adoption or\n\nmodification of a Rule 10b5-1 plan for the plan to make its first trade.\n\n 168. Defendant Palmer sold 13,000 shares of Newmont common stock on July 1, 2024\n\n(before the start of the Class Period), at a price of $42.13 per share, pursuant to his Rule 10b5-1\n\ntrading plan dated March 28, 2024.\n\n 169. Defendant Palmer sold 20,000 shares of Newmont common stock on August 1, 2024,\n\nat a weighted average sales price of $49.5125 per share, pursuant to a Rule 10b5-1 trading plan dated\n\nMarch 28, 2024.\n\n 170. Then, Defendant Palmer sold another 20,000 shares of Newmont common stock on\n\nSeptember 3, 2024, at the price of $52.47 per share, again pursuant to his Rule 10b5-1 trading plan\n\ndated March 28, 2024.\n\n 171. On October 1, 2024, Defendant Palmer sold another 20,000 shares of Newmont\n\ncommon stock, at the price of $53.81 per share, again pursuant to his Rule 10b5-1 trading plan dated\n\nMarch 28, 2024.\n\n 172. In total, Defendant Palmer sold 60,000 shares of common stock for proceeds of\n\n$3,115,850 of Newmont common stock during the Class Period.\n\n 173. After the Class Period, Defendant Palmer made two more regular sales pursuant to his\n\nRule 10b5-1 trading plan dated March 28, 2024, selling 13,000 shares of Newmont common stock\n\non November 1, 2024 at a price of $45.45 per share and 13,000 shares of Newmont common stock\n\non December 2, 2024 at a price of $41.59 per share.\n\n 67\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 71 of 84\n\n\n\n 2. Toth\u2019s Stock Sales Before and After He Instituted His 10b5-1 Plan\n\n 174. In its 2Q2024 10-Q, Newmont disclosed that Defendant Toth had adopted an equity\n\ntrading plan pursuant to Exchange Act Rule 10b5-1, stating:\n\n Our directors and executive officers may purchase or sell shares of our\n common stock in the market from time to time, including pursuant to\n equity trading plans adopted in accordance with Rule 10b5-1 under the\n Exchange Act and in compliance with guidelines specified by the\n Company\u2019s stock trading standard. In accordance with Rule 10b5-1 and\n the Company\u2019s insider trading policy, directors, officers and certain\n employees who, at such time, are not in possession of material non-\n public information about the Company are permitted to enter into\n written plans that pre-establish amounts, prices and dates (or formula\n for determining the amounts, prices and dates) of future purchases or\n sales of the Company\u2019s stock, including shares acquired pursuant to the\n Company\u2019s employee and director equity plans. Under the Company\u2019s\n stock trading standard, the first trade made pursuant to a Rule 10b5-1\n trading plan may take place no earlier than 90 days after adoption of\n the trading plan. Under a Rule 10b5-1 trading plan, a broker executes\n trades pursuant to parameters established by the director or executive\n officer when entering into the plan, without further direction from\n them. The use of these trading plans permits asset diversification as\n well as financial and tax planning. Our directors and executive officers\n also may buy or sell additional shares outside of a Rule 10b5-1 plan\n when they are not in possession of material nonpublic information,\n subject to compliance with SEC rules, the terms of our stock trading\n standard and holding requirements. During the three months ended\n June 30, 2024, the following directors and executive\n officers adopted or terminated Rule 10b5-1 trading plans intended to\n satisfy the affirmative defense conditions of Rule 10b5-1(c):\n\n On June 3, 2024, Peter Toth, Executive Vice President and Chief\n Development Officer, adopted a Rule 10b5-1 Trading Plan. Mr.\n Palmer\u2019s Rule 10b5-1 Trading Plan has a term of 14 months and\n provides for the sale of up to 36,000 shares of common stock pursuant\n to the terms of the plan. The adoption of such 10b5-1 Trading Plan\n occurred during an open insider trading window and complied with the\n Company\u2019s standards on insider trading.\n\n 175. Defendant Toth sold 3,000 shares of Newmont common stock on September 3, 2024,\n\nat the price of $52.47 per share, pursuant to his Rule 10b5-1 trading plan dated June 3, 2024.\n\n\n\n\n 68\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 72 of 84\n\n\n\n 176. Also on October 1, 2024, Defendant Toth sold 3,000 shares of Newmont common\n\nstock, at the price of $53.81 per share, again pursuant to his Rule 10b5-1 trading plan dated June 3,\n\n2024.\n\n 177. In total, Defendant Toth sold 6,000 shares for proceeds of $318,840 of Newmont\n\ncommon stock pursuant his Rule 10b5-1 trading plan during the Class Period.\n\n 178. On November 1, 2024, Defendant Toth sold 3,000 shares of Newmont common stock,\n\nat the price of $45.45 per share, again pursuant to his Rule 10b5-1 trading plan dated June 3, 2024.\n\n 179. On December 2, 2024, Defendant Toth sold 3,000 shares of Newmont common stock,\n\nat the price of $41.59 per share, again pursuant to his Rule 10b5-1 trading plan dated June 3, 2024.\n\n 180. On January 10, 2025, Defendant Toth sold 3,000 shares of Newmont common stock,\n\nat the price of $40 per share, again pursuant to his Rule 10b5-1 trading plan dated June 3, 2024.\n\n 181. On February 3, 2025, Defendant Toth sold 3,000 shares of Newmont common stock,\n\nat the price of $42.89 per share, again pursuant to his Rule 10b5-1 trading plan dated June 3, 2024.\n\n 182. On March 3, 2025, Defendant Toth sold 3,000 shares of Newmont common stock, at\n\nthe price of $43.71 per share, again pursuant to his Rule 10b5-1 trading plan dated June 3, 2024.\n\n 183. On April 1, 2025, Defendant Toth sold 3,000 shares of Newmont common stock, at\n\nthe price of $48.46 per share, again pursuant to his Rule 10b5-1 trading plan dated June 3, 2024.\n\n 184. On May 1, 2025, Defendant Toth sold 3,000 shares of Newmont common stock, at the\n\nprice of $51.48 per share, again pursuant to his Rule 10b5-1 trading plan dated June 3, 2024.\n\n 185. On June 1, 2025, Defendant Toth sold 3,000 shares of Newmont common stock, at the\n\nprice of $54.09 per share, again pursuant to his Rule 10b5-1 trading plan dated June 3, 2024.\n\n 3. The Insider Sales by Palmer and Toth Demonstrate Scienter\n\n 186. Knowing information adverse to Newmont\u2019s guidance concerning material adverse\n\nproblems at its new mines, Defendants Palmer and Toth failed to disclose that information and instead\n 69\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 73 of 84\n\n\n\ninstituted Rule 10b5-1 trading plans to capitalize on the Company\u2019s inflated share price for as long\n\nas possible without suspicion.\n\n 187. Palmer and Toth\u2019s stock sales during the Class Period benefited them materially.\n\nAccording to Newmont\u2019s Proxy Statement filed with the SEC on March 24, 2025, in 2024, Defendant\n\nPalmer was paid a salary of $1,490,192, non-equity incentive plan compensation in the amount of\n\n$1,719,848, and stock awards of $9,286,203. Relative to this compensation, and considering that\n\nstock awards were not immediately liquid, Palmer\u2019s Class Period insider sales proceeds of $3,115,850\n\nwere material and establish a strong inference of his scienter. Defendant Toth was paid a salary of\n\n$729,742, non-equity incentive plan compensation in the amount of $567,290, and stock awards of\n\n$2,003,855. Relative to this compensation, and considering that stock awards were not immediately\n\nliquid, Toth\u2019s Class Period insider sales of $318,840 were material and establish a strong inference\n\nof his scienter.\n\nVIII. LOSS CAUSATION AND ECONOMIC LOSS\n\n 188. During the Class Period, as detailed herein, Defendants made materially false and\n\nmisleading statements and engaged in a scheme to deceive the market and a course of conduct that\n\nartificially inflated the price of Newmont\u2019s common stock and operated as a fraud or deceit on Class\n\nPeriod purchasers of Newmont\u2019s common stock by materially misleading the investing public. Later,\n\nDefendants\u2019 prior misrepresentations and fraudulent conduct became apparent to the market, the price\n\nof Newmont\u2019s common stock materially declined, as the prior artificial inflation came out of the price\n\nover time. As a result of their purchases of Newmont\u2019s common stock during the Class Period,\n\nPlaintiff and other members of the Class suffered economic loss, i.e., damages under federal securities\n\nlaws.\n\n 189. In particular, on October 23, 2024, and October 24, 2024, Defendants announced\n\nmaterial production and cost issues at two of Newmont\u2019s Teir 1 assets, Lihir and Brucejack, that led\n 70\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 74 of 84\n\n\n\nthe Company to downgrade production estimates and increase cost estimates materially. As a direct\n\nand proximate cause of Defendants\u2019 disclosures of the truth about Lihir and Brucejack and its impact\n\nupon the Company\u2019s results, the price of Newmont common stock fell by 14.7%.\n\n 190. These disclosures corrected Defendants\u2019 prior misstatements, among others, that\n\nNewmont \u201csafely delivered solid production as planned, keeping us firmly on track to meet our full\n\nyear guidance for both ounces and costs\u201d and Newmont was \u201cnow advancing into the delivery stage\n\nof the initiatives we have identified at Lihir, Cadia and Red Chris, with the largest value drivers\n\ncoming from our 2 new Tier 1 assets in Lihir and Cadia.\u201d\n\nIX. NEITHER THE PSLRA SAFE HARBOR NOR THE BESPEAKS CASUTION\n DOCTRINE APPLIES\n\n 191. The statutory safe harbor provided for forward-looking statements under certain\n\ncircumstances does not apply to any of the material misrepresentations and omissions alleged in this\n\nComplaint. As alleged above, Defendants\u2019 liability stems from the fact that they provided investors\n\nwith revenue projections while at the same time failing to maintain adequate forecasting processes.\n\nDefendants provided the public with forecasts that failed to account for this decline in sales and/or\n\nadequately disclose the fact that the Company at the current time did not have adequate forecasting\n\nprocesses.\n\n 192. To the extent certain of the statements alleged to be misleading or inaccurate may be\n\ncharacterized as forward looking, they were not identified as \u201cforward- looking statements\u201d when\n\nmade and there were no meaningful cautionary statements identifying important factors that could\n\ncause actual results to differ materially from those in the purportedly forward-looking statements.\n\n 193. Defendants are also liable for any false or misleading \u201cforward-looking statements\u201d\n\npleaded because, at the time each \u201cforward-looking statement\u201d was made, the speaker knew the\n\n\u201cforward-looking statement\u201d was false or misleading and the \u201cforward-looking statement\u201d was\n\n\n 71\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 75 of 84\n\n\n\nauthorized and/or approved by an executive officer of Newmont who knew that the \u201cforward-looking\n\nstatement\u201d was false. Alternatively, none of the historic or present-tense statements made by\n\nDefendants were assumptions underlying or relating to any plan, projection, or statement of future\n\neconomic performance, as they were not stated to be such assumptions underlying or relating to any\n\nprojection or statement of future economic performance when made, nor were any of the projections\n\nor forecasts made by the defendants expressly related to or stated to be dependent on those historic\n\nor present-tense statements when made.\n\nX. THE FRAUD ON THE MARKET PRESUMPTION\n\n 194. At all relevant times, the market for Newmont\u2019s common stock was an efficient market\n\nfor the following reasons, among others:\n\n a. Newmont\u2019s common stock met the requirements for listing and was listed and\n\n actively traded on the NYSE during the Class Period, a highly efficient and\n\n automated market;\n\n b. Newmont communicated with public investors via established market\n\n communication mechanisms, including disseminations of press releases on the\n\n national circuits of major newswire services and other wide-ranging public\n\n disclosures, such as communications with the financial press and other similar\n\n reporting services;\n\n c. Newmont was followed by several securities analysts employed by major\n\n brokerage firms who wrote reports that were distributed to the sales force and\n\n certain customers of their respective brokerage firms during the Class Period.\n\n Each of these reports was publicly available and entered the public\n\n marketplace; and\n\n\n\n 72\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 76 of 84\n\n\n\n d. Unexpected material news about Newmont was reflected in and incorporated\n\n into the Company\u2019s stock price during the Class Period.\n\n 195. As a result of the foregoing, the market for Newmont\u2019s common stock promptly\n\ndigested current information regarding the Company from all publicly available sources and reflected\n\nsuch information in Newmont\u2019s stock price. Under these circumstances, all purchasers of Newmont\u2019s\n\ncommon stock during the Class Period suffered similar injury through their purchase of Newmont\u2019s\n\nsecurities at artificially inflated prices, and a presumption of reliance applies.\n\n 196. Alternatively, reliance need not be proven in this action because the action involves\n\nomissions and deficient disclosures. Positive proof of reliance is not a prerequisite to recovery\n\npursuant to ruling of the United States Supreme Court in Affiliated Ute Citizens of Utah v. United\n\nStates, 406 U.S. 128 (1972). All that is necessary is that the facts withheld be material in the sense\n\nthat a reasonable investor might have considered the omitted information important in deciding\n\nwhether to buy or sell the subject security.\n\nXI. CLASS ALLEGATIONS\n\n 197. Plaintiff brings this action as a class action pursuant to Federal Rule of Civil Procedure\n\n23(a) and (b)(3) on behalf of a Class, consisting of all those who purchased or otherwise acquired\n\nNewmont securities during the Class Period (the \u201cClass\u201d); and were damaged upon the revelation of\n\nthe alleged corrective disclosure. Excluded from the Class are defendants herein, the officers and\n\ndirectors of the Company, at all relevant times, members of their immediate families and their legal\n\nrepresentatives, heirs, successors or assigns and any entity in which defendants have or had a\n\ncontrolling interest.\n\n 198. The members of the Class are so numerous that joinder of all members is\n\nimpracticable. Throughout the Class Period, Newmont\u2019s securities were actively traded on the NYSE.\n\nWhile the exact number of Class members is unknown to Plaintiff at this time and can be ascertained\n 73\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 77 of 84\n\n\n\nonly through appropriate discovery, Plaintiff believes that there are hundreds or thousands of\n\nmembers in the proposed Class. Record owners and other members of the Class may be identified\n\nfrom records maintained by Newmont or its transfer agent and may be notified of the pendency of\n\nthis action by mail, using the form of notice similar to that customarily used in securities class actions.\n\nAs of October 23, 2024, there were approximately 1.1 billion shares of the Company\u2019s common stock\n\noutstanding. Upon information and belief, these shares are held by thousands, if not millions, of\n\nindividuals located throughout the country and possibly the world. Joinder would be highly\n\nimpracticable.\n\n 199. Plaintiff\u2019s claims are typical of the claims of the members of the Class as all members\n\nof the Class are similarly affected by Defendants\u2019 wrongful conduct in violation of federal law that\n\nis complained of herein.\n\n 200. Plaintiff will fairly and adequately protect the interests of the members of the Class\n\nand has retained counsel competent and experienced in class and securities litigation. Plaintiff has no\n\ninterests antagonistic to or in conflict with those of the Class.\n\n 201. Common questions of law and fact exist as to all members of the Class and\n\npredominate over any questions solely affecting individual members of the Class. Among the\n\nquestions of law and fact common to the Class are:\n\n a. whether the federal securities laws were violated by Defendants\u2019 acts as\n\n alleged herein;\n\n b. whether statements made by Defendants to the investing public during the\n\n Class Period misrepresented material facts about the business, operations and\n\n management of Newmont;\n\n c. whether the Individual Defendants caused Newmont to issue false and\n\n misleading financial statements during the Class Period;\n 74\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 78 of 84\n\n\n\n d. whether Defendants acted knowingly or recklessly in issuing false and\n\n misleading financial statements;\n\n e. whether the prices of Newmont\u2019s common stock during the Class Period were\n\n artificially inflated because of the Defendants\u2019 conduct complained of herein;\n\n and\n\n f. whether the members of the Class have sustained damages and, if so, what is\n\n the proper measure of damages.\n\n 202. A class action is superior to all other available methods for the fair and efficient\n\nadjudication of this controversy since joinder of all members is impracticable. Furthermore, as the\n\ndamages suffered by individual Class members may be relatively small, the expense and burden of\n\nindividual litigation make it impossible for members of the Class to individually redress the wrongs\n\ndone to them. There will be no difficulty in the management of this action as a class action.\n\nXII. COUNTS\n\n COUNT I\n For Violation of Section 10(b) of the Exchange Act and SEC Rule 10b-5\n Against Defendants Newmont, Palmer, Viljoen, and Ovelmen\n\n 203. Plaintiffs repeat and reallege each and every allegation contained above as if fully set\n\nforth herein.\n\n 204. This Count is asserted against defendants and is based upon Section 10(b) of the\n\nExchange Act, 15 U.S.C. \u00a7 78j(b), and SEC Rule 10b-5 promulgated thereunder.\n\n 205. During the Class Period, Defendants Newmont, Palmer, Viljoen, and Ovelmen\n\nengaged in a plan, scheme, conspiracy and course of conduct, pursuant to which they knowingly or\n\nrecklessly engaged in acts, transactions, practices and courses of business which operated as a fraud\n\nand deceit upon Plaintiffs and members of the Class; made various untrue statements of material facts\n\nand omitted to state material facts necessary to make the statements made, in light of the\n 75\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 79 of 84\n\n\n\ncircumstances under which they were made, not misleading; and employed devices, schemes and\n\nartifices to defraud in connection with the purchase and sale of securities. Such scheme was intended\n\nto, and, throughout the Class Period, did: (i) deceive the investing public, including Plaintiff and other\n\nClass members, as alleged herein; (ii) artificially inflate and maintain the market price of Newmont\n\ncommon stock; and (iii) cause Plaintiff and other members of the Class to purchase or otherwise\n\nacquire Newmont\u2019s securities at artificially inflated prices. In furtherance of this unlawful scheme,\n\nplan and course of conduct, Defendants, and each of them, took the actions set forth herein.\n\n 206. Pursuant to the above plan, scheme, conspiracy and course of conduct, each of\n\nDefendants Newmont, Palmer, Viljoen, and Ovelmen participated directly or indirectly in the\n\npreparation and/or issuance of the quarterly and annual reports, SEC filings, press releases and other\n\nstatements and documents described above, including statements made to securities analysts and the\n\nmedia that were designed to influence the market for Newmont\u2019s securities. Such reports, filings,\n\nreleases and statements were materially false and misleading in that they failed to disclose material\n\nadverse information and misrepresented the truth about the Company.\n\n 207. By virtue of their positions at Newmont, Defendants Palmer, Viljoen, and Ovelmen\n\nhad actual knowledge of the materially false and misleading statements and material omissions\n\nalleged herein and intended thereby to deceive Plaintiffs and members of the Class, or, in the\n\nalternative, Defendants Palmer, Viljoen, and Ovelmen acted with reckless disregard for the truth in\n\nthat they failed or refused to ascertain and disclose such facts as would reveal the materially false and\n\nmisleading nature of the statements made, although such facts were readily available to them. Said\n\nacts and omissions of Defendants Newmont, Palmer, Viljoen, and Ovelmen were committed willfully\n\nor with reckless disregard for the truth. In addition, Defendants Palmer, Viljoen, and Ovelmen each\n\ndefendant knew or recklessly disregarded that material facts were being misrepresented or omitted as\n\ndescribed above.\n 76\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 80 of 84\n\n\n\n 208. Information showing that Defendants Newmont, Palmer, Viljoen, and Ovelmen acted\n\nknowingly or with reckless disregard for the truth is peculiarly within defendants\u2019 knowledge and\n\ncontrol. As the senior managers and/or directors of the Company, Defendants Palmer, Viljoen, and\n\nOvelmen knew the details of Newmont\u2019s internal affairs.\n\n 209. Defendants Palmer, Viljoen, and Ovelmen are liable both directly and indirectly for\n\nthe wrongs complained of herein. Because of their positions of control and authority, Defendants\n\nPalmer, Viljoen, and Ovelmen were able to and did, directly or indirectly, control the content of the\n\nstatements of the Company. As officers and/or directors of a publicly-held company, the Defendants\n\nPalmer, Viljoen, and Ovelmen had a duty to disseminate timely, accurate, and truthful information\n\nwith respect to Newmont\u2019s businesses, operations, future financial condition and future prospects. As\n\na result of their disseminating the aforementioned false and misleading reports, releases and public\n\nstatements, the market price of Newmont\u2019s common stock was artificially inflated throughout the\n\nClass Period. In ignorance of the adverse facts concerning the Company that Defendants Newmont,\n\nPalmer, Viljoen, and Ovelmen concealed, Plaintiffs and the members of the Class purchased or\n\notherwise acquired Newmont\u2019s common stock at artificially inflated prices and relied upon the price\n\nof the common stock, the integrity of the market for the common stock and/or upon statements\n\ndisseminated by Defendants, and were damaged thereby.\n\n 210. During the Class Period, Newmont\u2019s common stock was traded on an active and\n\nefficient market. Plaintiffs and the members of the Class, relying on Newmont\u2019s, Palmer\u2019s, Viljoen\u2019s,\n\nand Ovelmen\u2019s materially false and misleading statements described herein or relying upon the\n\nintegrity of the market, purchased or otherwise acquired shares of Newmont\u2019s common stock at prices\n\nartificially inflated by defendants\u2019 wrongful conduct. Had Plaintiffs and the members of the Class\n\nknown the truth, they would not have purchased or otherwise acquired said common stock, or would\n\nnot have purchased or otherwise acquired them at the inflated prices that were paid. At the time\n 77\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 81 of 84\n\n\n\nPlaintiffs and members of the Class purchases and/or acquired Newmont common stock, the true\n\nvalue of Newmont\u2019s common stock was substantially lower than the prices Plaintiffs and members\n\nof the Class paid. The market price of Newmont\u2019s common stock declined materially and in direct or\n\nproximate response to public disclosure of the facts alleged herein, injuring Plaintiffs and members\n\nof the Class.\n\n 211. By reason of the conduct alleged herein, Defendants Newmont, Palmer, Viljoen, and\n\nOvelmen knowingly or recklessly, directly or indirectly, have violated Section 10(b) of the Exchange\n\nAct and Rule 10b-5 promulgated thereunder.\n\n 212. As a direct and proximate result of the wrongful conduct of Defendants Newmont,\n\nPalmer, Viljoen, and Ovelmen, Plaintiffs and the members of the Class suffered damages in\n\nconnection with their respective purchases, acquisitions and sales of the Company\u2019s common stock\n\nduring the Class Period, upon the disclosure that the Company had been disseminating misrepresented\n\nfinancial statements to the investing public.\n\n COUNT II\n For Violations of Section 20(a) of the Exchange Act\n Against the Individual Defendants\n\n 213. Plaintiffs repeat and reallege each and every allegation contained in the foregoing\n\nparagraphs as if fully set forth herein.\n\n 214. During the Class Period, the Individual Defendants participated in the operation and\n\nmanagement of the Company, and conducted and participated, directly and indirectly, in the conduct\n\nof the Company\u2019s business affairs. Because of their senior positions, they knew the adverse non-\n\npublic information about Newmont\u2019s misstatements.\n\n 215. As officers and/or directors of a publicly owned company, the Individual Defendants\n\nhad a duty to disseminate accurate and truthful information, and to correct promptly any public\n\nstatements issued by Newmont which had become materially false or misleading.\n 78\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 82 of 84\n\n\n\n 216. Because of their positions of control and authority as senior officers, the Individual\n\nDefendants were able to, and did, control the contents of the various reports, press releases, public\n\nstatements, and public filings that Newmont disseminated in the marketplace during the Class Period\n\nconcerning the misrepresentations. Throughout the Class Period, the Individual Defendants exercised\n\ntheir power and authority to cause Newmont to engage in the wrongful acts complained of herein.\n\nThe Individual Defendants therefore, were \u201ccontrolling persons\u201d of the Company within the meaning\n\nof Section 20(a) of the Exchange Act. In this capacity, they participated in the unlawful conduct\n\nalleged which artificially inflated the market price of Newmont\u2019s common stock.\n\n 217. Each of the Individual Defendants, therefore, acted as a controlling person of the\n\nCompany. By reason of their senior management positions and/or being directors of the Company,\n\neach of the Individual Defendants had the power to direct the actions of, and exercised the same to\n\ncause Newmont to engage in the unlawful acts and conduct complained of herein. Each of the\n\nIndividual Defendants exercised control over the general operations of the Company and possessed\n\nthe power to control the specific activities which comprise the primary violations about which\n\nPlaintiff and the other members of the Class complain.\n\n 218. By reason of the above conduct, Newmont is liable pursuant to Section 20(a) of the\n\nExchange Act for the violations committed by the Company.\n\nXIII. PRAYER FOR RELIEF\n\n 219. WHEREFORE, Plaintiffs demand judgment against defendants as follows:\n\n a. Determining that the instant action may be maintained as a class action under\n\n Rule 23 of the Federal Rules of Civil Procedure, and certifying Plaintiffs as\n\n the Class representatives and appointing their counsel as lead counsel for the\n\n Class;\n\n\n\n 79\n\f Case No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 83 of 84\n\n\n\n b. Requiring Defendants to pay damages sustained by Plaintiffs and the\n\n members of the Class by reason of the acts and transactions alleged herein;\n\n c. Awarding Plaintiff and the other members of the Class pre-judgment and\n\n post-judgment interest, as well as their reasonable attorneys\u2019 fees, expert fees\n\n and other costs; and\n\n d. Awarding such other and further relief as this Court may deem just and\n\n proper.\n\nXIV. JURY DEMAND\n\n 220. Plaintiffs hereby demand a trial by jury.\n\nDated: July 14, 2025 Respectfully submitted,\n\n THE ROSEN LAW FIRM, P.A.\n\n /s/ Jacob A. Goldberg\n Jacob A. Goldberg\n Leah Heifetz-Li (pro hac vice application\n forthcoming)\n 101 Greenwood Avenue\n Suite 440\n Jenkintown, PA 19046\n Tel: (215) 600-2817\n Fax: (212) 202-3827\n Email: jgoldberg@rosenlegal.com\n lheifetz@rosenlegal.com\n\n POMERANTZ LLP\n\n Jeremy A. Lieberman\n Jonathan D. Park (pro hac vice application\n forthcoming)\n 600 3rd Avenue\n New York, NY 10016\n Tel: (212) 661-1100\n Fax: (917) 463-1044\n Email: jalieberman@pomlaw.com\n jpark@pomlaw.com\n\n\n\n 80\n\fCase No. 1:25-cv-00341-DDD-KAS Document 39 filed 07/14/25 USDC Colorado\n pg 84 of 84\n\n\n\n LEVI & KORSINSKY, LLP\n\n Shannon L. Hopkins (pro hac vice application\n forthcoming)\n 1111 Summer Street, Suite 403\n Stamford, CT 06905\n Tel: (203) 992-4523\n Fax: (212) 363-7171\n Email: shopkins@zlk.com\n\n Co-Lead Counsel for Lead Plaintiffs and the Class\n\n\n\n\n 81\n\f","ocr_status":1,"date_upload":"2025-12-25T19:42:41.847856-08:00","document_number":"39","attachment_number":null,"pacer_doc_id":"039012070145","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-12-25T19:41:41.215568-08:00","date_modified":"2025-12-25T19:41:41.227661-08:00","date_filed":"2025-07-14","time_filed":null,"entry_number":39,"recap_sequence_number":"2025-07-14.001","pacer_sequence_number":135,"description":"AMENDED COMPLAINT against Newmont Corporation, Karyn F. Ovelmen, Thomas R. Palmer, Natascha Viljoen, Peter Toth, filed by James Karas, Catherine Almrud Holdings Inc., Shahid Latif Mian.(Goldberg, Jacob) (Entered: 07/14/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/448317482/","id":448317482,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/69603503/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/463090132/","id":463090132,"tags":[],"absolute_url":"/docket/69603503/38/karas-v-newmont-corporation/","date_created":"2025-12-25T19:41:41.161481-08:00","date_modified":"2025-12-25T19:41:41.183604-08:00","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":"38","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2025-12-25T19:41:41.080891-08:00","date_modified":"2025-12-25T19:41:41.093117-08:00","date_filed":"2025-07-07","time_filed":null,"entry_number":38,"recap_sequence_number":"2025-07-07.001","pacer_sequence_number":null,"description":"ORDER GRANTING 37 Consent Motion to Extend Time to Designate Operative Complaint. The lead plaintiffs must designate or file and serve an operative complaint on or before 7/14/2025.The defendants must answer or otherwise respond to the operative complaint on or before 9/12/2025.If the defendants respond to the operative complaint by filing a motion to dismiss or other motion, the lead plaintiffs must respond on or before 11/4/2025, and the defendants may reply on or before 12/4/2025.SO ORDERED by Judge Daniel D. Domenico on 7/7/2025. Text Only Entry (dddlc1, ) (Entered: 07/07/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/443142145/","id":443142145,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/69603503/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/457771504/","id":457771504,"tags":[],"absolute_url":"/docket/69603503/47/karas-v-newmont-corporation/","date_created":"2025-11-04T18:01:45.796783-08:00","date_modified":"2026-05-14T07:05:15.026968-07:00","sha1":"f491b5a2943d5da7d2d5d4e4f60a3b80b69e0ead","page_count":13,"file_size":241478,"filepath_local":"recap/gov.uscourts.cod.240976/gov.uscourts.cod.240976.47.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cod.240976/gov.uscourts.cod.240976.47.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case No. 1:25-cv-00341-DDD-KAS Document 47 filed 11/04/25 USDC Colorado\n pg 1 of 13\n\n\n\n\n IN THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLORADO\n\nCivil Action No. 1:25-cv-00341-DDD-KAS\n\nJAMES KARAS, Individually and on Behalf of All Others Similarly Situated,\n\nPlaintiffs,\n\nv.\n\nNEWMONT CORPORATION, THOMAS R. PALMER, NATASCHA VILJOEN, KARYN F.\nOVELMEN, and PETER TOTH,\n\nDefendants.\n\n\n MOTION TO STRIKE OR TO CONVERT DEFENDANTS\u2019\n MOTION TO DISMISS TO A MOTION FOR SUMMARY\n JUDGMENT AND FOR FULL DISCOVERY\n\fCase No. 1:25-cv-00341-DDD-KAS Document 47 filed 11/04/25 USDC Colorado\n pg 2 of 13\n\n\n\n\n TABLE OF CONTENTS\n\nI. INTRODUCTION .............................................................................................................. 1\n\nII. ARGUMENT ...................................................................................................................... 1\n\n A. The Court Should Strike the Appendix for Improperly Dissociating the\n Complaint\u2019s Allegations from the Court\u2019s Evaluation of its Sufficiency ............... 2\n\n B. The Court Should Strike All Exhibits Unnecessary for\n Evaluating the Complaint\u2019s Sufficiency ................................................................. 3\n\nIII. CONCLUSION ................................................................................................................... 7\n\n\n\n\n i\n\fCase No. 1:25-cv-00341-DDD-KAS Document 47 filed 11/04/25 USDC Colorado\n pg 3 of 13\n\n\n\n\n TABLE OF AUTHORITIES\n\n\n Page(s)\n\nCases\n\nHartleib v. Weiser L. Firm, P.C.,\n 861 F. App'x 714 (10th Cir. 2021)............................................................................................... 4\n\nIn re Level 3 Communications, Inc. Sec. Litig.,\n 667 F.3d 1331 (10th Cir. 2012) ................................................................................................... 2\n\nIn re Overstock Sec. Litig.,\n 119 F.4th 787 (10th Cir. 2024) ................................................................................................ 1, 4\n\nIndiana Pub. Ret. Sys. v. Pluralsight, Inc.,\n 45 F.4th 1236 (10th Cir. 2022) ................................................................................................ 1, 2\n\nKhoja v. Orexigen Therapeutics, Inc.,\n 899 F.3d 988 (9th Cir. 2018) ................................................................................................... 4, 5\n\nTal v. Hogan,\n 453 F.3d 1244 (10th Cir. 2006) ................................................................................................... 4\n\nTellabs, Inc. v. Makor Issues & Rts., Ltd.,\n 551 U.S. 308 (2007) .................................................................................................................... 1\n\nUnited States ex rel. Polukoff v. St. Mark's Hosp.,\n 895 F.3d 730 (10th Cir. 2018) ..................................................................................................... 1\n\nStatutes\n\n15 U.S.C. \u00a778u-4 ............................................................................................................................ 1\n\n15 U.S.C. \u00a778u-4(b)(3)(b) .............................................................................................................. 7\n\nRules\n\nFed. R. Civ. P. 8(a) .......................................................................................................................... 2\n\nFed. R. Civ. P. 9(b) .......................................................................................................................... 1\n\nFed. R. Civ. P. 12(d) ................................................................................................................ 3, 4, 7\n\nRegulations\n\n17 C.F.R. \u00a7229.105 ......................................................................................................................... 5\n\n\n ii\n\fCase No. 1:25-cv-00341-DDD-KAS Document 47 filed 11/04/25 USDC Colorado\n pg 4 of 13\n\n\n\n\nOther Authorities\n\nD.C.COLO.LCivR 56.1 .................................................................................................................. 3\n\n\n\n\n iii\n\fCase No. 1:25-cv-00341-DDD-KAS Document 47 filed 11/04/25 USDC Colorado\n pg 5 of 13\n\n\n\n\n Co- Lead Plaintiffs Shahid Latif Mian (\u201cMian\u201d) and Catherine Almrud Holdings, Inc.\n\n(\u201cAlmrud Holdings\u201d) and named Plaintiff James Karas (\u201cKaras\u201d and together with Almrud\n\nHoldings and Mian, \u201cPlaintiffs\u201d), respectfully move this Court to strike both Defendants\u2019 Motion\n\nto Dismiss (\u201cMotion\u201d) and the Appendix and the Exhibits Defendants filed therewith. Dkt. 45, et\n\nseq.\n\nI. INTRODUCTION\n\n Defendants\u2019 Motion improperly includes an Appendix, expanding their word limitation\n\nwithout Court approval and surreptitiously dissociating the Court\u2019s evaluation of the Amended\n\nComplaint\u2019s (\u201cComplaint\u201d), Dkt. 39, adequacy from the Complaint itself. Next, Defendants lard\n\nup the record, submitting voluminous documents unnecessary for the Court\u2019s resolution of their\n\nMotion. For the following reasons, therefore, the Court should strike the Motion, requiring\n\nDefendants to refile, referring to the Complaint\u2019s paragraphs and excluding the Appendix and\n\ndocuments unnecessary for the Court\u2019s resolution of the Motion.\n\nII. ARGUMENT\n\n It is axiomatic that in evaluating motions to dismiss under Rule 12(b), courts consider\n\ncomplaints\u2019 allegations to determine whether it is plausible that a complaint pleads a cause of\n\naction. Generally, courts accept as true all well-pleaded allegations, drawing all reasonable\n\ninferences in a plaintiff\u2019s favor and viewing the complaints holistically. In re Overstock Sec.\n\nLitig., 119 F.4th 787, 794 n. 3 (10th Cir. 2024) (citing Tellabs, Inc. v. Makor Issues & Rts., Ltd.,\n\n551 U.S. 308, 322 (2007)). Under Fed. R. Civ. P. 9(b), complaints must plead allegations of fraud\n\nwith particularity. United States ex rel. Polukoff v. St. Mark's Hosp., 895 F.3d 730, 745 (10th Cir.\n\n2018) (quoting Fed. R. Civ. P. 9(b)). The Private Securities Litigation Reform Act of 1995\n\n(\u201cPSLRA\u201d), 15 U.S.C. \u00a778u-4, et seq., imposes additional pleading requirements. Indiana Pub.\n\nRet. Sys. v. Pluralsight, Inc., 45 F.4th 1236, 1247\u201348 (10th Cir. 2022) (citation omitted). Even at\n\n\n 1\n\fCase No. 1:25-cv-00341-DDD-KAS Document 47 filed 11/04/25 USDC Colorado\n pg 6 of 13\n\n\n\n\nits strictest, however, the PSLRA requires courts to take as true well-pleaded allegations and to\n\nview the complaint holistically. Courts evaluate the sufficiency of complaints by reference to their\n\nwell-pleaded allegations as a whole and the various inferences they can draw therefrom. Id.\n\n A. The Court Should Strike the Appendix for Improperly Dissociating the\n Complaint\u2019s Allegations from the Court\u2019s Evaluation of its Sufficiency\n\n Defying the strict parameters for evaluating Rule 12 motions, purportedly \u201cfor the Court\u2019s\n\nconvenience,\u201d Dkt. 45 at 3, Defendants submit an \u201cAppendix\u201d to the Motion, listing alleged\n\nmisstatements. Dkt. 45-1. The Appendix purports to include various material, misleading\n\nstatements, designating each with a number, e.g. 1(a), 1(b), etc. Id. While in a third column, the\n\nAppendix refences \u201cSource,\u201d including Complaint paragraph references, it also directs the Court\n\nto Defendants\u2019 superfluous Exhibits, exhibits this Court will reject for the reasons stated below.\n\nNothing in the Court\u2019s Individual Practices permits the inclusion of the Appendix, and Defendants\n\ncite no rule or precedent permitting its inclusion.1\n\n Nowhere in their Motion do Defendants assert that the Complaint fails as a \u201cpuzzle\n\npleading.\u201d 2 Indeed, their constructing the Appendix confirms the Complaint\u2019s adequate\n\norganization and understandability. Rather, Defendants include the Appendix in a tacit attempt to\n\ndistract the Court from evaluating the Complaint as a whole. Rather than referring the Court to\n\nthe Complaint\u2019s well-pleaded paragraphs, the Appendix creates a key to which the Motion refers\n\ninstead of the Complaint\u2019s paragraphs. Dkt. 45 at 3. When the Motion refers to a statement,\n\n\n1\n The Court should include Defendants\u2019 Appendix in their word count. Excluding the Appendix\nfrom the word count countenances parties\u2019 using appendices to insert argument or other\ninformation that they should otherwise include their motion. The Court should not countenance\nflouting of its Individual Practices in this manner.\n2\n \u201cPuzzle-pleading\u201d exists in violation of Fed. R. Civ. P. 8(a) when a complaint \u201cexcerpts long\npassages including numerous statements and, to a large degree, leaves the Court to the task of\nteasing out which specific statements are at issue.\u201d In re Level 3 Communications, Inc. Sec. Litig.,\n667 F.3d 1331, 1339 n. 8 (10th Cir. 2012). The Tenth Circuit disapproves of puzzle pleading.\n\n 2\n\fCase No. 1:25-cv-00341-DDD-KAS Document 47 filed 11/04/25 USDC Colorado\n pg 7 of 13\n\n\n\n\nDefendants ignore the Complaint\u2019s paragraph numbers, citing instead, \u201c1(a)\u201d. See e.g. Dkt. 45 at\n\n5. This forces the Court to refer back to their Appendix, divorcing the allegedly misleading\n\nstatements from both the well-pleaded reasons for their falsity and surrounding scienter\n\nallegations.\n\n That is, surreptitiously, Defendants\u2019 Appendix invites the Court to isolate false statements\n\nfrom the rest of the Complaint rather than to read the Complaint holistically, as it must. This is\n\nimproper. Defendants offer no explanation for how their forcing the Court\u2019s attention to the\n\nAppendix only to have it refer back to the Complaint, as it must, is a \u201cconvenience.\u201d Adding\n\nunnecessary steps to a process is better termed an inconvenience. In any event, Defendants offer\n\nnot law or logic, supporting their inclusion of the Appendix. To remain true to its mandate for\n\nevaluating the Complaint holistically, therefore, the Court should strike the Appendix, in its\n\nentirety. In addition, it should strike Defendants\u2019 Motion, requiring them to refile the same brief,\n\nreferring to the Complaint\u2019s paragraphs instead of the Appendix. Critically too, whether it accepts\n\nor rejects Defendants\u2019 Appendix, the Court should avoid the trap of evaluating the Appendix\n\ninstead of the Complaint, holistically.\n\n B. The Court Should Strike All Exhibits Unnecessary for Evaluating the\n Complaint\u2019s Sufficiency\n\n Next, to distract this Court, Defendants submit fourteen Exhibits, Dkt. 45-2-45-15, larding\n\nup the record in direct violation of mandates of both Fed. R. Civ. P. 12(d) and the Tenth Circuit. 3\n\nIn essence, Defendants\u2019 tactic improperly suggests that the quantity of information they submit\n\n\n\n3\n Even for motions for summary judgment, Defendants inclusions defy this Court\u2019s proscriptions.\nFor summary judgment motions, the Local Rules counsel that \u201c[v]oluminous exhibits are\ndiscouraged,\u201d continuing, \u201c[p]arties shall limit exhibits to essential portions of documents.\nD.C.COLO.LCivR 56.1. No reason exists to permit on a motion to dismiss Defendants\u2019 wholesale\ninclusion.\n\n 3\n\fCase No. 1:25-cv-00341-DDD-KAS Document 47 filed 11/04/25 USDC Colorado\n pg 8 of 13\n\n\n\n\nsomehow overwhelms the quality of the Complaint\u2019s allegations and this Court\u2019s evaluation of\n\nits sufficiency. But the quantity of information must not substitute for a thorough analysis of the\n\nComplaint\u2019s allegations\u2019 quality.\n\n In Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018), warned of this\n\nabusive tactic. Acknowledging that documents a complaint incorporates by reference or of which\n\na court may take judicial notice \u201chave roles to play at the pleading stage,\u201d the Ninth Circuit\n\ncriticized the overuse as leading to \u201charmful results.\u201d Id. at 998. Describing attempts to undermine\n\ncomplaints, \u201cimproperly to defeat what would otherwise constitute adequately stated claims at the\n\npleading stage,\u201d the Ninth Circuit cautioned against \u201cthe unscrupulous use of extrinsic documents\n\nto resolve competing theories against the complaint risk[ing] premature dismissals of plausible\n\nclaims that may turn out to be valid after discovery.\u201d Id. Further, \u201c[t]his risk is especially\n\nsignificant in SEC fraud matters, where there is already a heightened pleading standard, and the\n\ndefendants possess materials to which the plaintiffs do not yet have access.\u201d Id.\n\n Even as this Court may consider documents incorporated by reference and of which it may\n\ntake judicial notice, Overstock, 119 F.4th at 794 n. 3 (citations omitted), Defendants fail to inform\n\nthe Court, Dkt. 45 at 2, n.2, that, without converting a 12(b)(6) motion to one for summary\n\njudgment, it may not consider any document they submit for the truth of any matter therein. See\n\nHartleib v. Weiser L. Firm, P.C., 861 F. App\u2019x 714, 719 (10th Cir. 2021) (citing Tal v. Hogan,\n\n453 F.3d 1244, 1264 n.24 (10th Cir. 2006)). Indeed, while the Court will consider documents the\n\nComplaint incorporates, it should not allow Defendants to create a factual universe that defies the\n\nComplaint\u2019s well-pleaded allegations or otherwise circumvents the mandate that generally, see\n\nKhoja, 899 F.3d at 1002\u20131003, courts should not consider materials extraneous to complaints in\n\nevaluating motions to dismiss. Fed. R. Civ. P. 12(d). Even if this Court accepts Defendants\u2019\n\n\n\n 4\n\fCase No. 1:25-cv-00341-DDD-KAS Document 47 filed 11/04/25 USDC Colorado\n pg 9 of 13\n\n\n\n\nExhibits\u2014simply because acceptance, in and of itself, is not improper\u2014as a matter of law, it must\n\nnot consider any extrinsic documents for the truth of any matter contained therein or to enable\n\nDefendants to create a universe of facts at odds with the Complaint\u2019s well-pleaded allegations.\n\n Rather, the Court should consider documents the Complaint incorporates or documents of\n\nwhich it can take judicial notice to offer related context that the Complaint arguably omits or to\n\ndemonstrate that they actually disclosed a fact the Complaint alleges Defendants omitted. Khoja,\n\n899 F.3d at 998. This Court should, therefore, refuse to consider any document Defendants\n\nsubmitted unless that document is necessary to understand the Complaint\u2019s allegations. Yet, in\n\nPSLRA cases, defendants and their lawyers impose voluminous records on courts and parties,\n\neven when they do not argue that a complaint omits context or that, in fact, they disclosed the\n\nvery information a complaint accuses them of omitting.\n\n For example, here, Defendants submit Newmont\u2019s entire 209-page 2023 10-K, referencing\n\nwhat it calls \u201crobust cautionary language.\u201d See e.g. Dkt. 45 at 3-4, 8. But it would be error for the\n\nCourt to accept as true that Defendants 2023 10-K risk disclosures were \u201crobust\u201d or \u201cmeaningful\u201d\n\nsimply because Defendants submitted 35 pages of risk disclosures. Of course, cautionary\n\nlanguage may be \u201crobust,\u201d but still untailored to the specific false statement\u2014in essence\n\nmeaningless. SEC Regulation S-K, Item 105, requires disclosure of \u201cmaterial factors that make\n\nan investment in the registrant or offering speculative or risky . . . that adequately describes the\n\nrisk,\u201d 17 C.F.R. \u00a7229.105, rendering the inclusion of long risk disclosures in the 2023 10-K\n\nunsurprising and irrelevant to evaluating the Motion.\n\n But rather than include from the 2023 10-K a risk disclosure(s) necessary to argue, for\n\nexample, that they accompanied any purported forward-looking statement with meaningful\n\ncautionary language, Defendants include the entirety of the 2023 10-K, citing generally to all 35\n\n\n\n 5\n\fCase No. 1:25-cv-00341-DDD-KAS Document 47 filed 11/04/25 USDC Colorado\n pg 10 of 13\n\n\n\n\npages of risk disclosures. Including this chaff and the entirety of the filing itself, Defendants tacitly\n\nand improperly assert that the cumulative nature of the mandatory risk disclosures immunizes\n\ncertain of their materially false statements\u2014as if somehow the quantity of risk disclosures renders\n\nany specific risk disclosure meaningful. See e.g. Dkt. 45 at 3-4. It does not. While Plaintiffs\n\nacknowledge that the Complaint incorporates the 2023 10-K and that the Court may consider it\n\nto determine context, including whether Defendants\u2019 cautionary language was meaningful, limits\n\nexist that should cause the Court to strike Defendants\u2019 Motion, requiring them to refile both the\n\nMotion and their Exhibits actually to support any point they have argued rather than wholesale\n\ndesignations untethered to any particular argument.\n\n Indeed, Defendants themselves take statements in exhibits out of context. For example,\n\nDefendants also submit a news release concerning Newmont\u2019s second quarter 2024 results (Dkt.\n\n45-10) to argue they disclosed that Brucejack was not Tier 1. But the cited disclosure says that\n\nBrucejack and Red Chris together were not yet a Tier 1 \u201cdistrict.\u201d Id.; DM21-22. Defendants\n\nlisted Brucejack as Tier 1 in February 2024 and in the BNP Paribas slides. \u00b6\u00b6104, 136. Defendants\n\nalso claim investors could not have been misled because Palmer referred to the \u201cpotential \u2026 to\n\nget a really solid understanding of that ore body\u201d at Brucejack (DM11 n.8), but that was months\n\nbefore the Class Period. That courts may consider certain documents incorporated by reference\n\naffords Defendants no license to submit or to attempt to leverage large swaths of material, they\n\nintend only to confuse the issues at hand.\n\n Defendants do not even claim that the Complaint misquotes any document or otherwise\n\nfails to contextualize allegations. On the contrary, the Complaint\u2019s allegations are complete,\n\naccurate, and include requisite context. Thus, even though this Court may certainly review\n\ndocuments the Complaint incorporates and of which it can take judicial notice, that is beside the\n\n\n\n 6\n\fCase No. 1:25-cv-00341-DDD-KAS Document 47 filed 11/04/25 USDC Colorado\n pg 11 of 13\n\n\n\n\npoint. Defendants seek to exploit their ability to submit documents, presenting no rationale for\n\ntheir inclusion. Just because they can does not mean this Court should permit them to burden the\n\nprocess with chaff.\n\n With the exception of perhaps several pages from the 2023 10-K, Defendants assert no\n\nproper purpose for which the Court should consider the 14 Exhibits they submit, tacitly proposing\n\nthat the weight of their filing somehow supports dismissal of the Complaint. Without a proper\n\npurpose for summitting their voluminous exhibits this Court should reject the exhibits to avoid\n\nthe risk that any or all cumulatively impacts its evaluation of the Complaint\u2019s sufficiency. More,\n\nif the Court considers any of Defendants\u2019 Exhibits for the truth of their contents, rather than to\n\nprovide context or to correct an error in the Complaint, then Rule 12(d) requires the Court to\n\nconvert the motion to dismiss to a motion for summary judgment and to lift the PSLRA\u2019s\n\ndiscovery stay, see 15 U.S.C. \u00a778u-4(b)(3)(b), permitting full discovery into Plaintiffs\u2019 claims.\n\nFed. R. Civ. P. 12(d).\n\nIII. CONCLUSION\n\n For the foregoing reasons, Plaintiffs respectfully request that the Court Strike Defendants\u2019\n\nMotion, in its entirety, requiring them to refile their Motion, referring to the Complaint\u2019s paragraph\n\nnumbers and excluding both the Appendix and extraneous materials unnecessary for this Court\u2019s\n\nresolution of their Motion.\n\nDated: November 4, 2025 Respectfully submitted,\n\n POMERANTZ LLP\n\n /s/ Jonathan D. Park\n Jeremy A. Lieberman\n Jonathan D. Park\n 600 3rd Avenue\n New York, NY 10016\n Tel: (212) 661-1100\n Fax: (917) 463-1044\n\n 7\n\fCase No. 1:25-cv-00341-DDD-KAS Document 47 filed 11/04/25 USDC Colorado\n pg 12 of 13\n\n\n\n\n Email: jalieberman@pomlaw.com\n jpark@pomlaw.com\n\n THE ROSEN LAW FIRM, P.A.\n\n Jacob A. Goldberg\n Leah Heifetz-Li (appearance forthcoming)\n 101 Greenwood Avenue\n Suite 440\n Jenkintown, PA 19046\n Tel: (215) 600-2817\n Fax: (212) 202-3827\n Email: jgoldberg@rosenlegal.com\n lheifetz@rosenlegal.com\n\n Co-Lead Counsel for Lead Plaintiffs and the Class\n\n LEVI & KORSINSKY, LLP\n\n Shannon L. Hopkins (appearance forthcoming)\n 1111 Summer Street, Suite 403\n Stamford, CT 06905\n Tel: (203) 992-4523\n Fax: (212) 363-7171\n Email: shopkins@zlk.com\n\n BRONSTEIN, GEWIRTZ\n & GROSSMAN, LLC\n\n Peretz Bronstein (admission forthcoming)\n 60 East 42nd Street, Suite 4600\n New York, New York 10165\n Tel: (212) 697-6484\n Fax: (212) 697-7296\n Email: peretz@bgandg.com\n\n Additional Counsel for Plaintiffs\n\n\n\n\n 8\n\fCase No. 1:25-cv-00341-DDD-KAS Document 47 filed 11/04/25 USDC Colorado\n pg 13 of 13\n\n\n\n\n PRACTICE STANDARD III(A)(1) CERTIFICATE\n\n I hereby certify that the foregoing pleading complies with the type-volume limitation set\n\nforth in Judge Domenico\u2019s Practice Standard III(A)(1).\n\n\n /s/ Jonathan D. Park\n Jonathan D. Park\n\n\n\n\n 9\n\f","ocr_status":1,"date_upload":"2026-05-12T03:09:35.433629-07:00","document_number":"47","attachment_number":null,"pacer_doc_id":"039012288773","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Strike","acms_document_guid":""}],"date_created":"2025-11-04T18:01:45.768197-08:00","date_modified":"2025-12-25T19:41:42.168147-08:00","date_filed":"2025-11-04","time_filed":"18:56:33","entry_number":47,"recap_sequence_number":"2025-11-04.002","pacer_sequence_number":158,"description":"MOTION to Strike 45 MOTION to Dismiss the Amended Complaint or to Convert Defendants' Motion to Dismiss to a Motion for Summary Judgment and For Full Discovery by Movants Catherine Almrud Holdings Inc., Shahid Latif Mian, Plaintiff James Karas. (Park, Jonathan) (Entered: 11/04/2025)","tags":[]}],"entries_total":"https://www.courtlistener.com/api/rest/v4/docket-entries/?count=on&docket=69603503&page_size=40"}