Duties to Disclose

Item 303 of Regulation S-K requires issuers to disclose known trends or uncertainties “reasonably likely” to have a material effect on operations, capital, and liquidity.  Plaintiffs often contend that if the disclosure required under Item 303 involves material information, then a company’s failure to disclose that information constitutes a material omission for purposes of securities fraud liability.

In In re NVIDIA Corp. Sec. Litig., 2014 WL 4922264 (9th Cir. Oct. 2, 2014), the Ninth Circuit considered this issue, but declined to find that the disclosure duty created by Item 303 can form the basis for an actionable securities fraud claim.  First, companies do not have “an affirmative duty to disclose any and all material information.”  Second, the “duty to disclose under Item 303 is much broader that what is required under” the general materiality standard for securities fraud.  As a result, plaintiffs cannot rely on the duty of disclosure created by Item 303 to form the basis of a securities fraud claim, but must separately demonstrate that the company had a duty to disclose because the omission of the information rendered the company’s statements false or misleading.

Holding: Dismissal affirmed.

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