Monthly Archives: March 2005

Although the U.S. Court of Appeals for the Fourth Circuit established its pleading standards for scienter (i.e., fraudulent intent) in securities fraud cases over a year ago, it has not had a subsequent opportunity to apply these standards. Moreover, the Hanger Orthopedic decision did not address the common scienter allegations of insider stock sales and violations of generally accepted accounting principles (“GAAP”).

The Fourth Circuit’s decision in In re PEC Solutions, Inc. Sec. Litig., 2005 WL 646070 (March 18, 2005), although unpublished, offers some guidance on how the court will evaluate the existence of a “strong inference” of scienter as required under the PSLRA. In PEC Solutions, plaintiffs alleged that scienter was demonstrated by, among other things, the stock trading of the individual defendants and a failure of the company to take a reserve against non-payment of a contract in violation of GAAP.

As to the stock sales, the court found that they were “nearly de minimus” given that the individual defendants only sold between 1.17% and 13% of their holdings during the class period. Moreover, the individual defendants exercised stock options during the class period, but did not sell the underlying stock, and actually lost hundreds of millions of dollars in stock value due to the price drop. The court concluded that “[i]f this all give rise to a ‘strong inference’ of anything, it is that no scienter exists.”

Turning to the alleged GAAP violation, the court noted that “it is certainly possible that some egregious GAAP violations may help support an inference of scienter for pleading purposes.” The supposed lack of a reserve, however, added “nothing new” to the scienter allegations because the complaint had failed to plead facts establishing that PEC believed it would not be paid for its work.

Holding: Dismissal affirmed.

Quote of note: “”But this alleged GAAP violation adds nothing new; rather it simply rides around in circles on the inadequate coattails of the scienter pleading. For if PEC was to take a reserve only when it believed non-payment was ‘probable’ . . . and that ‘the amount of the loss can be reasonably estimated,’ we are brought back to Appellants’ previous problem that they have not pled facts that give rise to a strong inference that PEC ever believed it would not get paid by Pearson while making the public statements that the [Complaint] challenges.”

Disclosure: The author of The 10b-5 Daily argued the case before the appellate court on behalf of the defendants. Note that the case has also received some attention for the results of the court’s spell-checking.

It may have been too much to expect that the U.S. Supreme Court would grant cert in two securities litigation cases within the span of a year. Having just addressed the issue of loss causation, the court has passed on the opportunity to interpret the PSLRA’s safe harbor for forward-looking statements.

The PSLRA created the safe harbor to encourage companies to provide investors with information about future plans and prospects. Under the first prong of the safe harbor, a defendant is not liable with respect to any forward-looking statement if it is identified as forward-looking and is accompanied by “meaningful cautionary statements” that alert investors to the factors that could cause actual results to differ.

As discussed in a post in The 10b-5 Daily from last August, entitled “The Safe Harbor May Just Be A Safe Puddle,” the U.S. Court of Appeals for the Seventh Circuit has weakened the protection afforded by the safe harbor. In Asher v. Baxter Int’l, the court found that it may be impossible, on a motion to dismiss, to determine whether a company’s cautionary statements are “meaningful.” Prior to this decision, however, numerous courts had dismissed cases pursuant to the first prong of the safe harbor. The defendants petitioned for a writ of certiorari to the Supreme Court to address the circuit split.

On Monday, however, the Supreme Court denied the cert petition. The Chicago Tribune has an article on the decision.

Quote of note: “Numerous business groups filed legal briefs in support of Baxter with the Supreme Court urging review of the case. The Business Roundtable, in its brief, argued that the 7th Circuit decision could affect how public companies across the country handle disclosures. ‘The ramifications of the decision below could be enormous,’ it wrote, adding that companies ‘may choose to avoid making forward-looking disclosures rather than risk lawsuits like this one.'”