A Second Bite At The Apple

The U.S. Court of Appeals for the Ninth Circuit issued two decisions this week affirming dismissals based on a failure to adequately plead scienter (i.e., fraudulent intent). The decisions – Zucco Partners, LLC v. Digimarc Corp., 2009 WL 57081 (9th Cir. Jan. 12, 2009) and Rubke v. Capitol Bancorp LTD, 2009 WL 69278 (9th Cir. Jan. 13, 2009) – are notable because they appear to tweak the court’s approach to evaluating scienter allegations.

The panels found that the U.S. Supreme Court’s decision in Tellabs meant that they could no longer dismiss a complaint because the individual scienter allegations were insufficient. Instead, as the Zucco panel held, the court needed to “conduct a dual inquiry: first, we will determine whether any of the plaintiff’s allegations, standing alone, are sufficient to create a strong inference of scienter; second, if no individual allegations are sufficient, we will conduct a ‘holistic’ review of the same allegations to determine whether the insufficient allegations combine to create a strong inference of intentional conduct or deliberate recklessness.” The Rubke panel agreed with this two-step approach, finding that it was required to perform a “second holistic analysis to determine whether the complaint contains an inference of scienter that is greater than the sum of its parts.”

Whether this dual inquiry, which appears to afford plaintiffs a second bite at the apple, will have any practical effect is difficult to say. Both panels held that scienter was inadequately plead in the respective complaints (even when evaluated holistically), with the Zucco panel noting that “a comprehensive perspective of Zucco’s complaint cannot transform a series of inadequate allegations into a viable inference of scienter.” To put it another way, can zero plus zero plus zero ever add up to something? Stay tuned.

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