Last month, the U.S. Court of Appeals for the Ninth Circuit held, in a securities class action brought against BofI (In re BofI Securities Lit.), that the filing of a judicial complaint can form the basis for loss causation if the market reasonably perceived the allegations in the complaint as true and acted upon them accordingly.
It turns out, however, that there are two different securities class actions pending against BofI. And this month, the Ninth Circuit is back with a new decision (by a different panel of judges) on loss causation in the second case.
In Grigsby v. BofI Holding, Inc., 2020 WL 6438912 (9th Cir. Nov. 3, 2020), the plaintiffs alleged that BofI engaged in securities fraud by falsely denying that the company was the subject of a DOJ/SEC money laundering investigation. According to the plaintiffs, this denial was revealed to be false when information received from the SEC pursuant to a Freedom of Information Act (FOIA) request uncovered the existence of an ongoing SEC investigation into BofI.
The district court held that information obtained through a FOIA request could not act as a corrective disclosure for purposes of establishing loss causation because the information was “publicly available to an information-hungry market.” While the plaintiffs alleged that the SEC had granted (in full or in part) only five other BofI-related FOIA requests during the relevant time period, and there was no reason to believe that any of these requests had revealed the existence of the investigation, the district court concluded that this did not plausibly establish that market participants had not already learned about the investigation
On appeal, the Ninth Circuit disagreed. First, the panel held “there must be some indication that the relevant information was requested and produced before the information contained in a FOIA response can be considered publicly available for purposes of loss causation.” Second, the panel held that plaintiffs were not required to disprove that this had taken place. To the extent that it was not clear from the earlier FOIA requests whether the public had learned of the existence of the investigation, the “record does not allow the conclusion that any of the other BofI-related FOIA requests resulted in the disclosure of information about an SEC investigation of BofI.”
The panel also found that (a) BofI’s denial of the existence of a DOJ/SEC money laundering investigation was sufficiently revealed to have been false by the disclosure of a SEC investigation into related topics, and (b) the district court correctly held that a Seeking Alpha article about BofI did not act as a separate corrective disclosure because the article stated that it was based on public information and the “article’s analysis did not require any expertise or specialized skills beyond what a typical market participant would possess.”
Holding: Reversing dismissal in part and remanding for further proceedings.
Additional note: The two BofI decisions from the Ninth Circuit arguably conflict on the issue of the plaintiffs’ pleading burden as to whether the information in the alleged corrective disclosure was already known to the market. In In re BofI Securities Lit., the panel held that “[t]o rely on a corrective disclosure that is based on publicly available information, a plaintiff must plead with particularity facts plausibly explaining why the information was not yet reflected in the company’s stock price.” In Grigsby, however, the panel suggested (without citation to the earlier decision) that this is an inappropriately “elevated” pleading standard and it is enough for a plaintiff to plausibly allege that the corrective disclosure revealed the fraud. Stay tuned.
The 10b-5 Daily 