Justia Securities Law Opinion SummariesArticles Posted in US Court of Appeals for the Ninth Circuit
Puerto Rico Government Employees and Judiciary Retirement Systems Admin. v. Volkswagen AG
The Ninth Circuit reversed the district court's denial of summary judgment to defendant in a putative securities fraud class action brought by a public pension fund that purchased bonds issued by defendant. This case arose on interlocutory appeal to address the scope of the presumption of reliance in Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128 (1972), in "mixed" securities-fraud cases that allege both omissions and affirmative misrepresentations.Because the panel concluded that the allegations in this case cannot be characterized primarily as claims of omission, the panel held that the Affiliated Ute presumption of reliance does not apply. In this case, plaintiff alleges over nine pages of affirmative misrepresentations that it and its investment advisor relied upon when purchasing the bonds from Volkswagen. The panel explained that, while this is a mixed case that alleges both omissions and affirmative misrepresentations, plaintiff's allegations cannot be characterized primarily as claims of omission, so the Affiliated Ute presumption of reliance does not apply. The panel remanded for the district court to further consider whether a triable issue of fact exists. View "Puerto Rico Government Employees and Judiciary Retirement Systems Admin. v. Volkswagen AG" on Justia Law
Rhode Island v. Alphabet, Inc.
After Cambridge Analytica improperly harvested user data from Facebook's social network, Google discovered that a security glitch in its Google+ social network had left the private data of some hundreds of thousands of users exposed to third-party developers. Google and its holding company, Alphabet, chose to conceal this discovery, made generic statements about how cybersecurity risks could affect their business, and stated that there had been no material changes to Alphabet's risk factors since 2017.Rhode Island, in a consolidated amended complaint, filed suit against Alphabet, Google, and others, alleging violations of Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 for securities fraud, as well as violations of Section 20(a) of the Exchange Act. The district court granted Alphabet's motion to dismiss on the grounds that Rhode Island failed to adequately allege a materially misleading misrepresentation or omission and that Rhode Island failed to adequately allege scienter.The Ninth Circuit concluded that the complaint adequately alleged that Google, Alphabet, and individual defendants made materially misleading statements by omitting to disclose these security problems and that defendants did so with sufficient scienter, meaning with an intent to deceive, manipulate, or defraud. Applying an objective materiality standard, the panel concluded that Rhode Island's complaint plausibly alleges the materiality of the costs and consequences associated with the Privacy Bug, and its public disclosure, and how Alphabet's decision to omit information about the Privacy Bug in its 10-Qs significantly altered the total mix of information available for decisionmaking by a reasonable investor. Furthermore, the complaint adequately alleges scienter for the materially misleading omissions from the 10-Q statements. The panel also concluded that Rhode Island adequately alleged falsity, materiality, and scienter for the April 2018 and July 2018 10-Q statements. Accordingly, the panel reversed the district court's holdings to the contrary and reversed the dismissal of the section 20(a) control-person claims based on the 10-Q statements.Because the complaint does not plausibly allege that the remaining statements at issue are misleading material misrepresentations or omissions, the panel affirmed the district court's dismissal of the Section 10(b) and Rule 10b-5(b) statement liability claims based on these statements. The panel also affirmed the district court's dismissal of the Section 20(a) controlling-person claims for these statements. Finally, because the district court erred in sua sponte dismissing Rhode Island's claims under Rule 10b-5(a) and (c) when Alphabet had not targeted those claims in its motion to dismiss, the panel reversed the dismissal of the claims under Section 10(b) and Rule 10b-5(a) and (c) against all defendants and remanded to the district court. The panel also reversed the dismissal of Rhode Island's claims under Section 20(a) to the extent those claims depend on claims alleging violations of Rule 10b-5(a) and (c). View "Rhode Island v. Alphabet, Inc." on Justia Law
Irving Firemen’s Relief & Retirement Fund v. Uber Technologies, Inc.
After Uber’s founding in 2009, its valuation soared, with some investors assigning a valuation as high as $68 billion by mid-2016. Between June 2014 and May 2016, Kalanick, Uber’s founder, and Uber completed four preferred stock offerings, raising more than $10 billion in additional capital through limited partnerships and other entities. Irving Firemen’s Relief & Retirement Fund acquired Uber securities on February 16, 2016. In 2017, several alleged corporate scandals surfaced. By early 2018, investors estimated a nearly 30% decline in Uber’s valuation. Irving filed a putative class action against Uber and Kalanick alleging securities fraud under California Corporations Code sections 25400(d) and 25500. The Ninth Circuit affirmed the dismissal of the complaint, upholding the use of the federal standard for loss causation rather than the “less-rigid state law standard.” Irving did not state a claim because it did not adequately allege that Uber and Kalanick’s alleged fraudulent misstatements and omissions caused its alleged losses. Even assuming actionable misstatements by Uber and Kalanick and that news articles, a lawsuit, and government investigations revealed the truth to the market, Irving did not adequately and with particularity allege that these revelations caused the resulting drop in Uber’s valuation. View "Irving Firemen’s Relief & Retirement Fund v. Uber Technologies, Inc." on Justia Law
Golub v. Gigamon Inc.
The Ninth Circuit affirmed the district court's dismissal based on failure to state a claim of a putative securities class-action alleging violations of section 14(a) and 20(a) of the Securities Exchange Act of 1934 and Securities Exchange Commission Rule 14a-9.The panel clarified that the standards for actionability explained in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 575 U.S. 175 (2015), with respect to falsity under section 11 of the Securities Act of 1933, also govern whether a plaintiff has sufficiently alleged the falsity of a statement of opinion under SEC Rule 14a-9 through either a misrepresentation-of-material-fact theory or an omission-of-material-fact theory. Omnicare identified three ways in which a statement of opinion may nonetheless involve a representation of material fact that, if that representation is false or misleading, could be actionable. First, every statement of opinion explicitly affirms that the speaker actually holds the stated belief. Second, some sentences that begin with opinion words like "I believe" contain embedded statements of fact. Third, a reasonable investor may, depending on the circumstances, understand an opinion statement to convey facts about how the speaker has formed the opinion. In this case, the panel applied the Omnicare standards in an accompanying memorandum disposition. View "Golub v. Gigamon Inc." on Justia Law
Panthera Investment Fund, L.P. v. H.C. Wainwright & Co., LLC
The Ninth Circuit affirmed the district court's dismissal of a securities fraud action against an investment bank, holding that the complaint failed sufficiently to allege scienter. Plaintiff's complaint stemmed from the bank's handling of MannKind's stock price. After an investment bank analyst published a report setting a target price of $7 per share for the company's stock, the stock surged 26 percent that day. Later that evening, the bank announced that it would act as the placing agent for a dilutive offering that priced that same stock at $6 per share. The stock price declined the next day.The panel explained that the complaint did not offer a plausible motive for the bank’s actions or provide compelling and particularized allegations about scienter, and thus it did not support the required strong inference that the defendant intentionally made false or misleading statements or acted with deliberate recklessness. In this case, the panel reasoned that the most plausible inferences are that someone failed to put MannKind on the watch list, failed to properly check the watch list, or failed to realize that a conflict existed when approving the report. View "Panthera Investment Fund, L.P. v. H.C. Wainwright & Co., LLC" on Justia Law
Anderson v. Edward D. Jones & Co., LP
The Ninth Circuit reversed the district court's dismissal of a class action brought by investors with a financial services firm. Plaintiffs alleged that Edward Jones breached its fiduciary duties under Missouri and California law, but the district court concluded that it did not have subject matter jurisdiction because the Securities Litigation Uniform Standards Act (SLUSA) prevents plaintiffs from bringing their claims as a class action consisting of fifty or more persons.The panel concluded that SLUSA does not bar plaintiffs' state law fiduciary duty claims because Edward Jones's alleged misrepresentation or omission that forms the basis for plaintiffs' fiduciary duty claims is not "in connection with the purchase or sale of a covered security." In this case, plaintiffs claim that Edward Jones breached its fiduciary duties under Missouri and California law by failing to conduct a suitability analysis, and they allege that this lack of suitability analysis caused them to move their assets from commission-based accounts to fee-based accounts, which was not in their best financial interest as low-volume traders. The panel explained that the alleged failure to conduct a suitability analysis was not material to the decision to buy or sell any covered securities. Accordingly, the panel remanded for further proceedings. View "Anderson v. Edward D. Jones & Co., LP" on Justia Law
Friedman v. Tesla, Inc.
The Ninth Circuit affirmed the district court's dismissal with prejudice of a putative securities fraud class action under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. The complaint alleged that Tesla, Inc., and two of its officers, misled the investing public during 2017 about Tesla's progress in building production capacity for the Model 3, its first mass-market electric vehicle.The panel concluded that, to the limited extent that the specific statements challenged in plaintiffs' operative Second Amended Complaint are not protected by the "safe harbor" for forward-looking statements in the Private Securities Litigation Reform Act (PSLRA), 15 U.S.C. 78u-5(c), plaintiffs have failed adequately to plead falsity. The panel also held that plaintiffs' proposal to amend the complaint further, to challenge an additional statement, fails for lack of the requisite loss causation. View "Friedman v. Tesla, Inc." on Justia Law
Grigsby v. BofI Holding, Inc.
Plaintiffs, who represent a putative shareholder class, filed suit alleging that BofI and its senior executives violated sections 10(b) and 20(a) of the Securities Exchange Act by denying that BofI was the subject of a money laundering investigation. The complaint also alleged that BofI falsely stated that a whistleblower's separate allegations that BofI made undisclosed loans to criminals were "disconnected from the reality of BofI's highly compliant and top-performing business."The panel held that plaintiffs may rely on a corrective disclosure derived from a Freedom of Information Act (FOIA) response by plausibly alleging that the FOIA information had not been previously disclosed. If a plaintiff relies on information obtained via a FOIA request, the pleading burden to allege loss causation is no different from the pleading burden for other types of corrective disclosures. Therefore, the panel reversed the district court's loss causation ruling to the extent it deemed information obtained via a FOIA request to be publicly available prior to its disclosure. The panel also held that the district court correctly ruled that the Seeking Alpha article at issue did not constitute a corrective disclosure, in part because it was written by an anonymous short-seller with no expertise beyond that of a typical market participant who based the article solely on information found in public sources. Accordingly, the panel affirmed in part, reversed in part, and remanded. View "Grigsby v. BofI Holding, Inc." on Justia Law
Houston Municipal Employees Pension System v. BofI Holding, Inc.
The Ninth Circuit reversed the district court's judgment dismissing a securities fraud class action, holding that the shareholders have adequately pleaded a viable claim under Section 10(b) of the Securities Exchange Act and Rule 10b-5 for the two categories of misstatements the district court found actionable, with the whistleblower lawsuit serving as a potential corrective disclosure.The panel held that one way to prove loss causation is to show that the defendant's fraud was revealed to the market through one or more "corrective disclosures" and that the company's stock price declined as a result. In this case, plaintiff alleged loss causation by relying on two corrective disclosures: a whistleblower lawsuit filed by a former company insider and a series of blog posts offering negative reports about the company's operations. The panel agreed with the district court that the Seeking Alpha blog posts could not qualify as corrective disclosures and, even if the posts disclosed information that the market was not previously aware of, it is not plausible that the market reasonably perceived these posts as revealing the falsity of BofI's prior misstatements, thereby causing the drops in BofI's stock price on the days the posts appeared. However, the panel held that the whistleblower lawsuit filed by a former company insider was a potential corrective disclosure. The panel joined the Sixth Circuit in rejecting any categorical rule that allegations in a lawsuit, standing alone, can never qualify as a corrective disclosure. Finally, the panel rejected the shareholders' allegations regarding a new category of misstatements concerning government and regulatory investigations. View "Houston Municipal Employees Pension System v. BofI Holding, Inc." on Justia Law
Nguyen v. Endologix, Inc.
The Ninth Circuit affirmed the district court's dismissal of a putative securities class action under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5. Plaintiff alleged that a medical device company misled the investing public about whether the FDA would approve the company's new aneurysm sealing product.The panel held that allegations that are implausible do not create a strong inference of scienter under the Private Securities Litigation Reform Act. In this case, plaintiff failed sufficiently to plead facts giving rise to a strong inference that defendants made false or misleading statements either intentionally or with deliberate recklessness. The panel explained that, under the facts alleged, plaintiff's core theory—that the company invested in a U.S. clinical trial and made promising statements about FDA approval, yet knew from its experience in Europe that the FDA would eventually reject the product—has no basis in logic or common experience. Rather, the more plausible inference is that the company made optimistic statements about its prospects for FDA approval. View "Nguyen v. Endologix, Inc." on Justia Law