The Washington Post has a comprehensive article on the decisions by Judges Pollack and Baer of the S.D.N.Y. dismissing securities class actions against Merrill Lynch and other brokerages that were based on the dissemination of allegedly biased research reports about 24/7 Real Media Inc., Interliant Inc., and Covad Communications Group. The cases are part of 27 similar consolidated actions involving different stocks.
Judge Pollack’s decision in the Merrill Lynch case is sweeping in its scope, with the court finding that “plaintiffs were among the high-risk speculators who, knowing full well or being properly chargeable with appreciation of the unjustifiable risks they were undertaking in the extremely volatile and highly untested stocks at issue, now hope to twist the federal securities laws into a scheme of cost-free speculators’ insurance.” (CorpLawBlog has a post discussing the rhetoric in the decision.) The court held that the plaintiffs had failed to adequately plead their Section 10(b) claims and that the claims were, in any event, barred by the statute of limitations.
Note that when it rains loss causation cases, it pours loss causation cases. In direct contrast to the Eighth Circuit’s holding in ConAgra (discussed below), Judge Pollack found that merely alleging that the stock price was artificially inflated is not sufficient to satisfy loss causation. (Indeed, he states that to allow this “would undoubtedly lead to speculative claims and procedural intractability.”) The plaintiffs needed “to allege facts which, if accepted as true, would establish that the decline in the prices of 24/7 and Interliant stock (their claimed losses) was caused by any or all of the alleged omissions from the analyst reports.” Finding that there was no alleged connection between the analyst reports and the companies’ financial troubles or the collapse of the overall market, the court held that the plaintiffs failed to meet their pleading burden.
Quote of note (Washington Post): “‘This was something of a test case for [lawsuits] involving similar facts,’ Pollack said. ‘The question is, are the facts similar?” Pollack said he did not believe the case was a close one. “Anybody who goes out to Las Vegas and loses can’t sue the croupier,’ he said.”
Quote of note II (Washington Post): “Columbia University law professor John C. Coffee Jr. called Pollack’s decision ‘a huge victory for Merrill Lynch’ because the judge ruled that the losses were caused by the bursting of a bubble rather than the allegedly false research. ‘That’s the part of his decision that has the greatest application to other cases. It’s [also] the most debatable. He doesn’t have much factual evidence.'”