In Spitzberg v. Houston American Energy Corp., 2014 WL 3442515 (5th Cir. July 15, 2014), the Fifth Circuit reversed the dismissal of a securities class action based on alleged false statements concerning oil and gas reserves. The decision contains a few interesting holdings.
(1) Scienter – The district court found, among other things, that the company’s decision to spend $5 million on more testing of one of its wells “would not make sense” if the defendants had believed that no oil or gas would be found. The Fifth Circuit noted, however, that this testing took place after the company had been “heavily criticized” for making optimistic statements regarding its reserves. Accordingly, it was just as plausible that the defendants “may have felt the need to substantiate the allegedly irresponsible statements they had made previously.”
(2) Loss Causation – The district court held that the complaint “warranted dismissal because it did not allege specifically whether the alleged misstatements or omissions were the actual cause of [the plaintiffs’] economic loss as opposed to other explanations, e.g., changed economic circumstances or investor expectations or industry-specific facts.” The Fifth Circuit disagreed with this pleading standard. Instead, the court concluded that “the PSLRA does not obligate a plaintiff to deny affirmatively that other facts affected the stock price in order to defeat a motion to dismiss.”
(3) Forward-looking Statements – The Fifth Circuit joined “the First Circuit, Third Circuit, and Seventh Circuit in concluding that a mixed present/future statement is not entitled to the [PSLRA safe harbor for forward-looking statements] with respect to the part of the statement that refers to the present.” In particular, while the company’s statements concerning the commercial productability of its wells were forward-looking, to the extent that its statements about “reserves” communicated information on past testing of the wells, those statements were actionable.
Holding: Reversed and remanded for further proceedings.