A Business Problem, Not A Securities Problem

A securities opinion written by Judge Easterbrook of the U.S. Court of Appeals for the Seventh Circuit is bound to be noteworthy.  And his latest effort – City of Taylor Police and Fire Retirement System v. Zebra Technologies Corp., 8 F. 4th 592 (7th Cir. 2021) – does not disappoint.

In City of Taylor, the plaintiffs alleged that Zebra made misstatements in connection with its acquisition of a division of Motorola Solutions.  In particular, Zebra predicted that the acquisition would yield substantial recurring savings and was “progressing as planned,” but the costs of the acquisition turned out to be higher than expected.  While the consolidation was occurring, Zebra also missed its projected gross profit margin for the second quarter of 2015 by about 1%.

The district court dismissed the complaint.  On appeal, the Seventh Circuit had little difficulty affirming the dismissal.

Falsity – The Seventh Circuit found that the plaintiffs had failed to adequately plead the existence of any material misstatements.

(1) Cost-savings estimates – The plaintiffs contended that the estimates were “misleading when not coupled with more information about the ongoing costs of consolidation.”  The Seventh Circuit was unimpressed with the attempt to link these items, noting that “[j]ust as stocks and flows differ, the one-time expenses of integration are categorically distinct from recurring savings gained by melding similar businesses.”  The court concluded that a “corporation need not couple each piece of good news with disclosure of some tangential difficulty.”

(2) “Progressing as planned” – The district court found that this statement was immaterial corporate puffery.  The Seventh Circuit agreed, but also noted that “it could not be called false” because “the consolidation continued throughout the class period,” even if the costs proved higher than expected.

(3) Gross profit margin – The Seventh Circuit found that the “Securities Exchange Act does not demand perfection from forecasts, which are inevitably inaccurate.”  A miss on gross profit margin of just over 1% “is a long way from fraud.”

Scienter – The Seventh Circuit found that two competing inferences could be drawn from the alleged facts.  In the plaintiffs’ version, Zebra’s management “chose to hoodwink investors into thinking that integration was seamless” when it was actually “costlier and more difficult than anticipated.”  Another inference, however, was that Zebra’s management “only had limited information about the inner workings of Motorola” when consolidation began and the difficulties came to light over time and were disclosed.  The court found that the second inference was a “better fit” with the facts alleged in the complaint, which included statements during the class period where Zebra warned about increasing costs related to the acquisition.

Moreover, the Seventh Circuit went on to note that the “plausibility of potential inferences depends on context.”  While an executive may be “privy to good historical information about the inner workings of her own corporation,” she possesses “only limited information about the internal operations of other corporations.”  If companies were required to provide a “complete accounting of difficulties as they emerged during a merger or acquisition,” they might either “guess too high” and drive down their stock price or “guess too low” and be accused of securities fraud.  The court concluded that “[s]ecurities law does not force corporations into this sort of no-win circumstance.”

Holding: Dismissal affirmed.

Quote of note: “Retrospective disclosures can and should be precise because corporations generally possess good information about completed operations.  The law tolerates greater imprecision from forecasts because predicting the future is an uncertain enterprise. . . . The fatal flaw of the Retirement System’s suit is that it seeks to apply rules covering retrospective statements to ongoing developments.  Unexpected difficulties that crop up in any corporate consolidation are a business problem, not a securities problem.”

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Learning The Alphabet

A recent decision by the U.S. Court of Appeals for the Ninth Circuit offers potential lessons for both companies and their securities defense counsel. 

In In re Alphabet, Inc. Sec. Lit., 1 F.4th 687 (9th Cir. 2021), the plaintiffs alleged that Alphabet – Google’s parent company – failed to disclose that a securities glitch in the Google+ social network had left the private data of hundreds of thousands of users exposed to third-party developers and that Google+ was plagued by other security vulnerabilities.  Google discovered these issues in early 2018 and remediated them.  In October 2018, however, the Wall Street Journal published a lengthy story about the Google+ issues and how the company had decided not to tell the public about them during a time when technology companies were under regulatory scrutiny for their handling of customer data.  Google responded with a blog post acknowledging what had happened and announcing that it was shutting down the Google+ social network.  Alphabet’s stock price fell following these disclosures and a securities class action was filed shortly thereafter.

The district court dismissed the case, finding that the plaintiffs failed to adequately plead the existence of material misstatements and scienter.  On appeal, however, the Ninth Circuit reversed the decision as to some of the claims.

Most importantly, the panel considered whether Alphabet’s Form 10-Qs issued in April 2018 and July 2018 were materially misleading.  The risk disclosures incorporated into those filings “warned, among other things, that even unfounded concerns about Alphabet’s ‘practices with regard to the collection, use, disclosure, or security of personal information or other privacy related matters’ could damage the company’s ‘reputation and adversely affect [its] operating results.'”  While some courts have questioned whether risk disclosures can ever form the basis for a securities fraud claim because they are inherently prospective in nature, the Ninth Circuit previously has held that if risk disclosures do not alert the reader that the described risks already have come to fruition they may be actionable. 

Alphabet argued that there was a key factual difference between its case and the Ninth Circuit precedent: by the time the Form 10-Qs were issued, Google already had remediated the problem.  Therefore, the company had no affirmative duty to disclose a problem that no longer existed.  The panel disagreed, finding that because “Google’s business model was based on trust, the material implications of a bug that improperly exposed user data for three years were not eliminated merely by plugging the hole in Google+’s security.”  Moreover, Google also had discovered other security vulnerabilities that led to the decision to shut down the whole platform.  Under these circumstances, the panel held that Google needed to update its risk factors if they wanted to avoid making materially misleading statements.  (The panel also found that the plaintiffs had adequately alleged the defendants’ scienter as to these risk factors.)

In addition, the plaintiffs brought claims under all three subsections of Rule 10b-5.  That is to say, the plaintiffs alleged the defendants (a) made material misstatements under Rule 10b-5(b), and (b) disseminated and approved material misstatements and engaged in a course of conduct to conceal the truth from investors under under Rule 10b-5(a) and Rule 10b-5(c) (often referred to as “scheme liability”).  On appeal, the plaintiffs argued that the district court failed to address their scheme liability claims and therefore erred in dismissing them.  Alphabet countered that the plaintiffs had waived those claims by not raising them in their opposition to Alphabet’s motion to dismiss and, in any event, the scheme liability claims were duplicative of the material misstatement claims.

The panel disagreed.  It noted that Alphabet’s motion to dismiss had not specifically targeted the scheme liability claims, so the plaintiffs could not have waived those claims in its opposition.  Moreover, the scheme liability claims were not merely duplicative.  Under Lorenzoa 2019 decision by the U.S. Supreme Court – it was possible for the plaintiffs to bring separate “scheme liability” claims even if the underlying conduct involved material misstatements.  Accordingly, the panel reversed the dismissal of all of the plaintiffs’ claims brought under Rule 10b-5(a) and (c).

Holding: Reversed in part, affirmed in part, judgment vacated, remanding for further proceedings.

Notes:  (1) Companies headquartered in the Ninth Circuit will need to think carefully about the scope of their disclosures.  Merely by disclosing the risk of data security issues, Alphabet apparently also was required to disclose any material data security issues that had arisen in the past and were already resolved.  The panel’s view of a company’s duty of disclosure arguably goes well beyond what other courts have found Section 10(b) and Rule 10b-5 to require.

(2) Securities defense counsel are now on notice that they must separately and specifically address scheme liability claims in the motion to dismiss or risk the court finding that they were unopposed.

(3) The defendants moved for rehearing or rehearing en banc, which was denied on July 23, 2021.  Then, last week, the defendants filed a motion to stay mandate pending the filing of a petition for writ of certiorari to the U.S. Supreme Court.  Stay tuned.

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Goldman Decided

The U.S. Supreme Court has issued a decision in the Goldman Sachs v. Arkansas case.  As predicted, it is a narrow opinion (a) clarifying that courts can and should take the generic nature of the alleged misstatements into account when assessing price impact for purposes of class certification, and (b) holding that defendants have the burden of persuasion in rebutting the Basic presumption of reliance.  The majority opinion was authored by Justice Barrett.  It is a 8-1 decision on the issue of taking the generic nature of the alleged misstatements into account (with Justice Sotomayor dissenting only as to whether a remand of the case was necessary) and a 6-3 decision on the issue of the burden of persuasion (with Justices Gorsuch, Thomas, and Alito concluding in dissent that defendants should have only a burden of production).

As way of background, to certify a class on behalf of all investors who purchased shares during a class period, plaintiffs usually invoke a presumption of reliance created by the Court in the Basic case.  Under the Basic presumption, plaintiffs can establish class-wide reliance by showing (1) that the alleged misrepresentations were publicly known, (2) that they were material, (3) that the stock traded in an efficient market, and (4) that the plaintiff traded the stock between the time that the misrepresentations were made and when the truth was revealed.  These requirements are based on the efficient market hypothesis, which, as relevant here, posits that in an efficient market any material statements will impact a stock’s price.  If all four elements are met, any investor trading in such a market can be presumed to have relied upon the stock’s price and all material statements (or misstatements) about the stock.  Accordingly, the Court has held that the Basic requirements are merely an “indirect proxy for price impact,” which is the true underpinning of the presumption of reliance. 

Without the Basic presumption, individualized issues of reliance would normally prevent any attempt to certify a class in a securities fraud class action.  Defendants have the ability to rebut the Basic presumption, and defeat class certification, by demonstrating that the alleged misrepresentations did not have a price impact. 

In Goldman, the Court considered whether defendants can, at least in part, demonstrate a lack of price impact by pointing to the generic nature of the alleged misrepresentations.  The Court held that “a court cannot conclude that Rule 23’s requirements are satisfied without considering all evidence relevant to price impact.”  That is the true even if the evidence – like the generic nature of the alleged misrepresentations – “is also relevant to a merits question like materiality.”  The inquiry into the nature of the alleged misrepresentations is especially relevant in cases like Goldman where the plaintiffs, invoking the “inflation maintenance theory,” argued that the misrepresentations did not increase Goldman’s stock price, but instead merely prevented it from falling.  The Court found that it had some “doubt” as to whether the Second Circuit had “properly considered the generic nature of Goldman’s alleged misrepresentations” and remanded with instructions for the lower court to “take into account all record evidence relevant to price impact.”

While Goldman won a clear victory on that issue, it was not as fortunate on the question of the burden of persuasion.  The Court noted that under applicable law, it has “the authority to assign defendants the burden of persuasion to prove a lack of price impact.”  Accordingly, the only question was whether the Court had already done so in its previous decisions addressing the Basic presumption.  The Court found that the “best reading” of its precedents is “that the defendant bears the burden of persuasion to prove a lack of price impact.”  In any event, the Court noted, “the allocation of the burden is unlikely to make much difference on the ground” because the district court’s task is “to determine whether it is more likely than not that the alleged misrepresentations had a price impact.”  Unless the district court finds that the evidence is in “equipoise,” a situation the Court stated “should rarely arise,” there is no negative impact on defendants from having this burden.

Holding: Judgment vacated and case remanded for further proceedings consistent with the opinion.

Additional notes on the decision:

(1) There arguably is a circuit split on the issue of whether the inflation maintenance theory is legally cognizable under the federal securities laws and the Court’s prior decisions.  In Goldman, the Court stated that it was not expressing any “view on [the theory’s] validity or its contours.”  As a result, that issue remains one for a future case.

(2) Justice Gorsuch, in a vigorous dissent (joined by Justices Thomas and Alito) on the issue of the burden of persuasion, stated that the “hard truth is that in the 30-plus years since Basic this Court has never (before) suggested that plaintiffs are relieved from carrying the burden of persuasion on any aspect of their own causes of action.”  Addressing the majority’s insistence that shifting the burden of persuasion would have little practical effect, Justice Gorsuch noted that the “whole reason we allocate the burden of persuasion is to resolve close cases by providing a tie breaker where the burden does make a difference.”  The fact that close cases may be uncommon “is no justification for indifference about how the law resolves them.”

Disclaimer: The author of The 10b-5 Daily assisted with the submission of an amicus brief by the Washington Legal Foundation in support of the petitioner.

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The No Good, Very Bad Insider Trading Prohibition Act

The author of The 10b-5 Daily (Lyle Roberts) wrote an op-ed last year arguing that the Insider Trading Prohibition Act passed by the House of Representatives was severely flawed. The bill went to the Senate, but died from deserved inaction. Last month the bill was passed again and its sponsors hope it will receive a more favorable reception now. Unfortunately, the legislation has not gotten any better in the interim.

Lyle Roberts and Professor M. Todd Henderson (U. of Chicago Law School) have published a new op-ed in The Hill discussing how the Senate could fix what the House has wrought. Stay tuned.

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Please Take This Case!

It has been over fifteen years since the U.S. Supreme Court’s decision in Dura Pharmaceuticals v. Broudo, where the Court held that plaintiffs in securities fraud cases must plead and prove loss causation. In the interim, the lower courts have gone in a number of different directions on crucial loss causation questions

The author of The 10b-5 Daily (Lyle Roberts) has written an article for Law360 urging the Court to grant cert in the In re BofI Securities Litigation case. In that case, the U.S. Court of Appeals for the Ninth Circuit created a clear circuit split on the issue of whether a third-party judicial complaint, standing alone, can be a “corrective disclosure” for purposes of loss causation. Here is a link to the article (may require subscription).

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Revisiting Loss Causation

In 2005, the U.S. Supreme Court decided Dura Pharmaceuticals v. Broudo, where it held that plaintiffs in a securities fraud case must plead and prove that there was a causal connection between the alleged misrepresentations and the subsequent decline in the company’s stock price. The Supreme Court did not address, however, the exact contours of that causal connection.  Lower courts have come to significantly different conclusions on questions like what constitutes an adequate corrective disclosure that reveals falsity, when can information about a company be deemed “public,” and the effect of an immediate stock price recovery.  As readers of this blog know, over the last six months the U.S. Court of Appeals for the Ninth Circuit has issued a series of decisions on these issues that arguably have created more confusion than clarity.

The author of The 10b-5 Daily has written an article for the May 19, 2021 issue of The Review of Securities & Commodities Regulation on the Ninth Circuit’s recent loss causation decisions, ultimately concluding that it is time for the Supreme Court to bring uniformity to the lower courts as to loss causation.  And, indeed, the defendants in one of the discussed decisions – In re BofI Holding, Inc. Securities Litigation – have submitted a cert petition seeking Supreme Court review.  A pre-publication copy of the article can be found here.

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Goldman Argued

On Monday, the U.S. Supreme Court heard oral argument in the Goldman Sachs v. Arkansas case, which addresses issues related to class certification in securities cases.

To certify a class on behalf of all investors who purchased shares during the class period, plaintiffs usually invoke a presumption of reliance created by the Court in the Basic case.  Under the Basic presumption, plaintiffs can establish class-wide reliance by showing (1) that the alleged misrepresentations were publicly known, (2) that they were material, (3) that the stock traded in an efficient market, and (4) that the plaintiff traded the stock between the time that the misrepresentations were made and when the truth was revealed. These requirements are based on the efficient market hypothesis, which, as relevant here, posits that in an efficient market any material statements will impact a stock’s price.  If all four elements are met, any investor trading in such a market can be presumed to have relied upon the stock’s price and all material statements (or misstatements) about the stock.  Accordingly, the Court has held that the Basic requirements are merely an “indirect proxy for price impact,” which is the true underpinning of the presumption of reliance.

Defendants have the ability to rebut the Basic presumption, and defeat class certification, by demonstrating that the alleged misrepresentations did not have any price impact.  The questions presented in Goldman are whether defendants can do so by pointing to the generic nature of the alleged misrepresentations and whether a defendant seeking to rebut the Basic presumption has only a burden of production or also the ultimate burden of persuasion.

At oral argument, the Court appeared peeved that the first question might not be much of a question at all.  Chief Justice Roberts asked petitioners (Goldman) whether there was “any daylight on the substantive question between the [parties] concerning the generic statements?”  And, indeed, both sides (as well as the government as amicus) agreed that the generic nature of the misstatements could be evidence of a lack of price impact.  As a result, the argument focused on two sub-issues: (a) does the court have to rely solely on experts in assessing the existence of price impact, and (b) did the Second Circuit’s decision below really fail to take the generic nature of the alleged misstatements into account.

As to whether courts need to rely solely on experts, the justices appeared sympathetic to petitioners’ argument that the court also could apply its own judgment.  Justice Breyer, in particular, noted that “Take the statement for what it’s worth. Listen to the experts, and don’t check your . . . common sense at the door. That’s what judges do. So why are we hearing that issue?”  Similarly, Justice Barrett wondered whether all that was now on the table was a “ruling on that very, very narrow issue, saying, sure, judges can also consider their common sense.”  And, indeed, both the government and the respondents argued that courts could rely on common sense in determining price impact, although respondents suggested that “the more there is expert testimony . . . the more the judge ought to be evaluating the experts” and not relying on his or her own view of “how economic markets work.”

There did appear to be a genuine disagreement, however, on whether the Second Circuit really had held that the generic nature of the alleged misstatements could not be considered.  Justice Sotomayor appeared to agree with the government and respondents that the Second Circuit’s opinion below contained some ambiguity on that point and suggested that the best approach might be to affirm the decision while clarifying the correct law.  Meanwhile, petitioners and respondents debated whether, if the Court were to decide that the correct legal standard had not been applied, the Second Circuit’s decision should be reversed (petitioners) or merely vacated and remanded with further instructions (respondents).  This issue, as the government pointed out, is meaningful to the parties, but does not impact the Court’s formulation of the law.

Finally, on the second question presented, only two justices indicated that they might support petitioners’ argument that plaintiffs should bear the burden of persuasion as to price impact given that they bear the overall burden of persuasion as to class certification.  Justice Gorsuch expressed concern that “the plaintiff might be able to do nothing and just rest on the presumption that there’s a price impact in the face of direct evidence that there wasn’t.”  Similarly, Justice Alito questioned how a judge is supposed to deal with a situation where the plaintiffs were not required to provide evidence of price impact.  On the other hand, respondents correctly pointed out that every court of appeals that has addressed the issue, including the Seventh Circuit in a decision joined by then-Circuit Judge Barrett, has found that defendants bear the burden of persuasion in rebutting the Basic presumption.  Moreover, after persistent questioning from Justice Gorsuch, respondents conceded that if plaintiffs choose to rely entirely on the presumption in the face of direct evidence of no price impact a court “absolutely can find that the defendants prevail.”

Overall, it would appear that the Court is headed for a narrow decision (a) clarifying that courts can and should take the generic nature of the alleged misstatements into account when assessing price impact, and (b) holding that defendants have the burden of persuasion in rebutting the Basic presumption of reliance.  But whether that decision, which is expected by June, will come in the form of an affirmance, reversal, or vacatur is far from clear.

Disclosure: The author of The 10b-5 Daily assisted the Washington Legal Foundation in the submission of an amicus brief in support of the petitioners.

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Third Place Winner Redux

The 10b-5 Daily should have known better than to call a securities decision “rare.”  For the second time in a month, an applicant with the third-highest claimed damages has been appointed lead plaintiff in a securities class action.  The reasoning behind this decision, however, is quite different and illustrates the many ways an applicant can be rejected.

As previously noted, under the PSLRA, the presumptive lead plaintiff in a securities class action is the applicant with the “largest financial interest in the relief sought by the class.”  The largest financial interest is measured by assessing the approximate losses suffered and, once the court makes that determination, the contest is usually over.  But not always.  The court also has to find that the applicant meets the typicality and adequacy requirements of Federal Rule of Civil Procedure 23.

In Gelt Trading Ltd. v. Co-Diagnostics, Inc., 2021 WL 913934 (D. Utah March 10, 2021), the court determined that the top three applicants for lead plaintiff had the following claimed losses: Co-Diagnostics Investor Group (two individual investors) – $233,131, Tejeswar Tadi – $158,800, and Gelt Trading – $117,740.  The court, however, had some questions surrounding the nature of the losses suffered by the Co-Diagnostics Investor Group and Tadi.

The original complaint filed by Gelt Trading proposed a class period of February 25, 2020 through May 15, 2020.   Gelt Trading subsequently filed an amended complaint, however, proposing a shorter class period of April 30, 2020 to May 14, 2020.  Courts often question whether changes like this have been made to game the lead plaintiff process and, as a result, apply the more inclusive class period in assessing approximate losses.  In this case, however, the court found that “neither the Co-Diagnostics Investor Group nor any other movant has identified any material misstatements made by Co-Diagnostics before April 30, 2020.”  As a result, the large majority of the Co-Diagnostics Investor Group’s claimed losses, which were based on share purchases made prior to April 30, 2020, could not be counted in assessing its application.

As for Tadi, his claimed losses were based entirely on a purchase of call options for Co-Diagnostics’ stock made on May 14, 2020 (the day before the alleged corrective disclosure that ended the proposed class period).  The court found, consistent with the decisions of a number of other courts, that Tadi’s option trading would bring factual issues into the case that were irrelevant to the other class members and would subject him to unique loss causation defenses (i.e., he failed the typicality requirement).

That left Gelt Trading, the filer of the original complaint, but also the party that changed the proposed class period.  The court rejected arguments by the other applicants that Gelt Trading should be excluded because (a) it failed to file a stock trading certificate with its original complaint (the filing was made in conjunction with the amended complaint) and (b) its changing of the class period was designed to favor its lead plaintiff application.  On the second point, the court noted that the change was made before the lead plaintiff applications were submitted.  Voila – another third place winner!

Holding: Consolidating cases and appointing Gelt Trading as lead plaintiff.

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Third Place Winner

Under the PSLRA, the presumptive lead plaintiff in a securities class action is the applicant with the “largest financial interest in the relief sought by the class.”  The largest financial interest is measured by assessing the approximate losses suffered and, once the court makes that determination, the contest is usually over.  But not always.  The court also has to find that the applicant meets the typicality and adequacy requirements of Federal Rule of Civil Procedure 23, including whether the proposed lead plaintiff and its counsel will vigorously fulfill their duties to the class.

In Wasa Medical Holdings v. Sorrento Therapeutics, Inc., 2021 WL 533518 (S.D. Cal. Feb. 12, 2021), the court determined that the top three applicants for lead plaintiff had the following claimed losses: Jing Li (represented by Pomerantz) $454,341, the SRNE Investor Group (represented by Kirby McInerney) $380,908, and Andrew Zenoff (represented by Robbins Geller) $195,500.  While Jing Li was the presumptive lead plaintiff, with the SRNE Investor Group a close second, the court had some doubts as to the adequacy of both of these applicants.

According to her declaration, Jing Li is a 47-year old housewife from Singapore who had been investing in the securities markets for three years.  The court expressed concern “about whether Li possesses the requisite experience to supervise this high-stakes litigation.”  In addition, Li’s submissions to the court contained some ambiguities and errors, including stating that she could only attest to her transactions in Sorrento common stock to “the best of her current knowledge” and initially failing to note that she also was represented by the The Schall Law Firm. 

So what about the SRNE Investor Group?  Both Li and Zenoff argued that the group was “an improper amalgamation of unrelated investors without any pre-existing relationship.”  The court agreed, finding that the Group’s declaration made it clear that the individual investors in the group did not know each other before being brought together by Kirby McInerney.  The court therefore found that both Li and the SRNE Investor Group failed to meet the adequacy requirement.

In contrast, Zenoff had a larger financial interest than any individual member of the SRNE Investor Group and is “the founder of three companies, and the inventor of a maternity nursing product, which has sold millions of units for the span of 24 years.”  He also has 20 years of investing experience.  The court named Zenoff as the lead plaintiff, making him a rare “third place winner” in these contests.

Holding: Consolidating cases and appointing Andrew Zenoff and Robbins Geller as lead plaintiff and lead counsel.

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The Goldman Case

The U.S. Supreme Court is set to hear Goldman Sachs v. Arkansas next month (oral argument is scheduled for March 29).  The questions presented in the case are:

(1) Whether a defendant in a securities class action may rebut the presumption of classwide reliance recognized in Basic Inc. v. Levinson, 485 U.S. 224 (1988), by pointing to the generic nature of the alleged misstatements in showing that the statements had no impact on the price of the security, even though that evidence is also relevant to the substantive element of materiality.

(2) Whether a defendant seeking to rebut the Basic presumption has only a burden of production or also the ultimate burden of persuasion.

The author of The 10b-5 Daily – Lyle Roberts – assisted the Washington Legal Foundation (“WLF”) in the submission of an amicus brief in support of the petitioners.  He also participated yesterday in an online WLF program on the current U.S. Supreme Court Term, discussing the Goldman case and what securities litigation topics might be coming before the Court in the near future (hint: extraterritoriality and loss causation).  A direct link to the Goldman discussion can be found here.

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