Category Archives: Appellate Monitor

The U.S. Court of Appeals for the First Circuit has previously held that the Tellabs decision lowered the pleading standard for scienter in its court. While that determination did not lead to a reversal of the dismissal in the ACA Financial case, the same cannot be said of a new First Circuit decision issued this week.

In Mississippi Public Employees’ Retirement System v. Boston Scientific Corp., 2008 WL 1735390 (1st Cir. April 16, 2008), the court specifically noted that its application of Tellabs lead it to conclude that the district court, which “did not have the benefit” of the Supreme Court’s opinion, had erroneously dismissed the complaint based on a failure to adequately plead scienter. The court based its holding on allegations suggesting that Boston Scientific may have known of the relevant manufacturing problem during the class period, the closeness in time between alleged misstatements by the company and an announced product recall, and stock sales by the individual defendants.

On the issue of insider trading, the court addressed the defendants’ argument that many of the alleged insider stock sales were effectuated pursuant to Rule 10b5-1 trading plans and therefore could not have supplied a motive to engage in fraud. The court concluded, however, that there was insufficient evidence about the nature of the plans to credit this argument. (The author of The 10b-5 Daily has co-written an article on the potential use of Rule 10b5-1 trading plans in defending against securities class actions, including the importance of public disclosure of the nature of the plans. In addition, a discussion of other relevant cases can be found here.)

Quote of note: “It was the defendants’ choice to move to dismiss the case on the pleadings without presenting evidence. As a result, there is no evidence of when the [Rule 10b5-1] trading plans went into effect, that such trading plans removed entirely from defendants’ discretion the question of when sales would occur, or that they were unable to amend these trading plans.”

The Seventh Circuit is determined to be the market leader in interpreting U.S. Supreme Court securities litigation opinions. Following up on its application of Tellabs, last week it issued the first appellate decision utilizing the Stoneridge decision.

In Pugh v. Tribune Co., 2008 WL 867739 (7th Cir. April 2, 2008), the court considered the issue of “scheme liability” in the context of a corporate insider’s activities (as opposed to the actions of a third party). One of the individual defendants was a Tribune vice-president, as well as the director of circulation for a subsidiary. In his capacity as an officer of the subsidiary, the individual defendant allegedly signed false circulation audits that inflated the paid circulation figures for two publications. The plaintiffs argued that it was “‘forseeable’ that this scheme [to defraud the advertisers] would result in improper revenue which, in turn, would be reflected in Tribune’s published financial statements.”

The Seventh Circuit found that these allegations were insufficient. As in Stoneridge, the individual defendant “participated in a fraudulent scheme but had no role in preparing or disseminating Tribune’s financial statements or press releases.” Moreover, there was no allegation that Tribune investors had been informed of the false circulation audits. Accordingly, the plaintiffs failed to establish “the requisite proximate relation” between the advertiser fraud and the harm to Tribune’s investors.

Interestingly, the Seventh Circuit also addressed the issue of whether the scienter of this individual defendant could be imputed to Tribune on a respondeat superior theory. The court concluded that it could not because: (a) the individual defendant had no primary liability; (b) the misconduct of an employee of a subsidiary is not normally attributable to the corporate parent; and (c) the advertiser fraud was not undertaken to benefit Tribune. (For a discussion of the lower court’s decision on corporate scienter, see this post.)

Holding: Dismissal affirmed.

Was the U.S. Supreme Court’s Tellabs decision interpreting the “strong inference” pleading standard for scienter a victory for defendants? Not if the defendant is being sued in Boston (or any other locale within the U.S. Court of Appeals for the First Circuit).

In ACA Financial Guaranty Corp. v. Advest, Inc., 512 F.3d 46 (1st Cir. 2008), the First Circuit addressed the effect of Tellabs on its existing law. The court concluded that Tellabs was consistent with the scienter pleading standard previously applied by the court, except in one respect. Whereas the First Circuit had held “that where there were equally strong inferences for and against scienter, this resulted in a win for the defendant,” it was now clear under the Supreme Court’s “at least as compelling” standard for weighing inferences of scienter that “the draw goes to the plaintiff.”

Holding: Dismissal affirmed.

The U.S. Court of Appeals for the Seventh Circuit is making up for lost time. Although it was one of the last circuits to issue an opinion interpreting the PSLRA’s heightened pleading standards, the U.S. Supreme Court’s decision to review (and reverse) the case has put the Seventh Circuit in the limelight.

In Tellabs, the Supreme Court held that courts must take into account “plausible opposing inferences” when examining whether a plaintiff has adequately plead a strong inference of scienter (i.e., fraudulent intent). A complaint can survive a motion to dismiss “only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.” The Court then remanded the case back to the Seventh Circuit for further proceedings.

The Seventh Circuit’s decision on remand – Makor Issues & Rights, Ltd. v. Tellabs, Inc., 2008 WL 151180 (7th Cir. Jan. 17, 2008) (Tellabs II) – may be just as controversial as its first decision. In an opinion by Judge Posner, the court touched on a number of hot button scienter pleading issues that were not addressed by the Supreme Court.

(1) Corporate scienter – In the Seventh Circuit’s earlier decision, the court found that the plaintiffs had adequately plead scienter as to Tellabs’ CEO and then imputed that scienter to the corporation. Judge Posner, however, decided that Tellabs’ scienter should be examined separately. Although the court found that it was inappropriate to consider the collective knowledge of the corporation’s employees in assessing Tellabs’ scienter, it also declined to look to the state of mind of the CEO who made the allegedly false or misleading statements. Instead, the court appeared to embrace what The 10b-5 Daily has described as the “weak” or “narrow” version of the collective scienter theory, holding that it was “possible to draw a strong inference of corporate scienter without being able to name the individuals who concocted and disseminated the fraud.” In this case, the court held that because the the alleged false or misleading statements concerned Tellabs’ “most important products” and a significant amount of alleged channel-stuffing, it was much more likely that the statements were the result of an intent to deceive or recklessness on the part of management rather than “merely careless mistakes at the management level based on false information fed it from below.” Given that the inference of corporate scienter was much more likely, it was also cogent.

(2) Motive – The court expressed little concern over the fact that the plaintiffs were unable to allege that any of the defendants profited from the fraud, finding that the “argument confused expected with realized profits.” Judge Posner speculated that the CEO “may have thought there was a chance the situation regarding the two key products would right itself” and, therefore, wanted to conceal the truth and avoid causing volatility in the company’s stock price.

(3) Confidential witnesses – Shortly after the Supreme Court decided Tellabs, the Seventh Circuit applied the holding in a different case. In Baxter, the court found that the failure to name sources cited in the complaint “conceals information that is essential to the sort of comparative evaluation required by Tellabs” because the court is unable to fully evaluate the reliability of the witnesses. Accordingly, allegations from confidential witnesses must be “discounted” in determining whether a plaintiff has plead a strong inference of scienter and that discount will usually be “steep.” Although there is nothing in Baxter suggesting that the holding concerning confidential witnesses was limited to the facts of that case, Judge Posner concluded that the steep discount should not be applied to the more numerous and reliable confidential witnesses in the Tellabs complaint.

Holding: Reverse the judgment of the district court dismissing the suit.

Quote of note: “Suppose General Motors announced that it had sold one million SUVs in 2006, and the actual number was zero. There would be a strong inference of corporate scienter, since so dramatic an announcement would have been approved by corporate officials sufficiently knowledgeable about the company to know that the announcement was false.”

Here is a roundup of Stoneridge commentary available on the web.
(1) Stoneridge: Pro-Business, Pro-SEC Enforcement, Not The “Decision of the Century”; The Supreme Court�s Ruling in the Enron Litigation and Simpson Help Define Stoneridge – SEC Actions
(3) The Stoneridge opinion; More Stoneridge: Taming the monster, not turning it around; The future of scheme liability; Stoneridge and the Enron zombie; What does the Enron cert denial mean? – Ideoblog
(3) Stoneridge and the Judicial Role – Business Associations Blog
(4) Stoneridge and the Legislative Role of the Supreme Court – HLS Corporate Governance Blog
(5) Stoneridge Securities Fraud Opinion from the Supreme Court – Truth On The Market
(6) Supreme Court Rules in Stoneridge Defendants� Favor – The D&O Diary
(7) Scheme Liability Survives Stoneridge – Barely – SixthCircuitBlog
(8) Enron: Extortion, Interrupted – The N.Y. Sun (Ted Frank)
(9) Stoneridge and the Rule of Law – Wall Street Journal (Paul Atkins)

The first impact of the Stoneridge decision has been felt. The U.S. Supreme Court issued an order today denying review of California Regents v. Merrill Lynch, the Enron-related case from the Fifth Circuit that raised similar scheme liability issues.

The Court also vacated and remanded a Ninth Circuit case on scheme liability, Avis Budget Group, Inc. v. Ca. State Teachers’ Retirement, for further consideration in light of Stoneridge (see here for a summary of the Ninth Circuit opinion). Bloomberg and SCOTUSBlog have reports on the decisions.

Quote of note (Bloomberg): “The court’s rejection of the Enron investor appeal came without any published dissent. The rebuff ‘further confirms that there is no financial services exception’ to the Stoneridge ruling, said [counsel for] the suppliers in last week’s case.”

In the Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc. (a.k.a. Charter Communications) case, the U.S. Supreme Court has held that the implied private right of action under Sec. 10(b) for securities fraud does not extend to third parties who neither make alleged misstatements nor engage in deceptive conduct on which investors relied. The 5-3 decision (Justice Breyer did not participate) authored by Justice Kennedy resolves a circuit split over the scope of “scheme liability.”

In Stoneridge, the plaintiffs alleged that Charter and two of its suppliers and customers, Scientific-Atlanta and Motorola, knowingly engaged in a business scheme that allowed Charter to artificially inflate its reported revenues and operating cash flow. The plaintiffs sought to hold Scientific-Atlanta and Motorola primarily liable for the misstatements contained in Charter’s financial statements. The district court, with an affirmance from the U.S. Court of Appeals for the Eighth Circuit, dismissed these claims. On the issue of scheme liability, the Eighth Circuit found that Scientific-Atlanta and Motorola had not participated in the making of the misstatements and “any defendant who does not make or affirmatively cause to be made a fraudulent misstatement or omission, or who does not directly engage in manipulative securities trading practices, is at most guilty of aiding and abetting and cannot be held liable under Sec. 10(b) or any subpart of Rule 10b-5.”

On appeal, the Supreme Court took a notably different approach. The Court rejected the Eighth Circuit’s decision to the extent that it could be “read to suggest there must be a specific oral or written statement before there could be liability under Sec. 10(b) or Rule 10b-5.” The Court found that “[c]onduct itself can be deceptive” and provide the basis for liability. Instead, the Court focused on whether the Charter investors could be said to have relied upon the deceptive acts of Scientific-Atlanta and Motorola in purchasing their securities.

The Court concluded that there was no basis for finding that the investors could be presumed to have relied upon the relevant deceptive acts. First, Scientific-Atlanta and Motorola had no duty to disclose their conduct to Charter’s investors. Second, the fraud-on-the-market doctrine was inapplicable because the conduct was “not communicated to the public.” Accordingly, the Court held that the investors could not “show reliance upon any of respondents’ actions except in an indirect chain that we find too remote for liability.”

The rest of the opinion is devoted to various legal and policy defenses of this limitation on the scope of scheme liability. The Court noted that Charter’s investors were seeking to apply Section 10(b) “beyond the securities markets – the realm of financing business – to purchase and supply contracts – the realm of ordinary business operations.” To do so would “invite litigation beyond the immediate sphere of securities litigation and in areas already governed by functioning and effective state-law guarantees.” Moreover, adopting the position advocated by Charter’s investors would “revive in substance the implied cause of action against all aiders and abettors except those who committed no deceptive act in the process of facilitating the fraud” and would undermine Congress’ determination in the PSLRA that this “class of defendants should be pursued by the SEC and not by private litigants.” Finally, the Court expressed concern that “scheme liability” would “raise the cost of being a publicly traded company” and “shift securities offerings away from domestic capital markets.”

Holding: Affirmed.

Notes on the Decision

(1) The Court adhered closely to the argument made by the Department of Justice in its amicus brief. Although some commentators predicted that outcome, the Court’s focus on reliance is interesting given that Chief Justice Roberts (who joined the majority opinion) expressed skepticism at oral argument over whether the issue was properly before the Court. The dissent (Stevens, J.) agreed that the issue was not ripe and suggested that “the fairest course to petitioner would be for the majority to remand to the Court of Appeals to determine whether petitioner properly alleged reliance, under a correct view of what Section 10(b) covers.”

(2) While the media is likely to trumpet the decision as a victory for corporate defendants, it is important to note that the victory was not as sweeping as it could have been. Contrary to the holdings of both the Eighth Circuit and the Fifth Circuit (see here), the Court held that deceptive conduct, even without the existence of an oral or written misstatement, can provide the basis for securities fraud liability if the plaintiffs can establish that they relied on that conduct. Indeed, many courts have defined the distinction between “aider and abettor” and “primary violator” by reference to the level of participation of the individual defendant in making the misstatement at issue and whether the public became aware of the defendant’s alleged involvement. Does Stoneridge open the door to a broader view of “participation”?

(3) The Court’s references to the possible deterrence of overseas firms from doing business in this country and the shifting of “securities offerings away from domestic capital markets” are going to draw criticism as being excessively policy oriented (see here for an early example).

(4) In support of its holding that the investors could not establish reliance, the Court repeatedly cited the investors’ lack of knowledge about the “deceptive acts” in which Scientific-Atlanta and Motorola were alleged to have engaged. Presumably the Court was referring to the failure of the investors to allege that they were aware of the transactions between the companies and Charter, not to a lack of knowledge that the transactions were deceptive. Nevertheless, it struck a discordant note when the Court stated, for example, that the defendants’ “deceptive acts were not communicated to the public.” If the deceptive acts had been communicated to the public, of course, the defendants would have had a completely different lack of reliance defense.

This month has seen two noteworthy decisions from the U.S. Court of Appeals for the Seventh Circuit.

(1) In Sutton v. Bernard, 2007 WL 2963940 (7th Cir. Oct. 12, 2007), the court addressed an appeal by the lead counsel in a securities class action brought against Marchfirst, Inc. Following the settlement of the case, the district court rejected the lead counsel’s fees request, reducing it from 28% of the gross settlement amount to 15% or $2,605,000. On appeal, the court held that the district court had improperly failed to take into account “the market price for legal services” in making its determination, instead focusing only on the results achieved in the case.

Quote of note: “The trouble we have with the district court’s methodology is that the fee determination began and ended with the amount actually recovered for the class; the court did not consult the market for legal services for guidance in what constituted, as an abstract matter, a ‘reasonable percentage.'”

(2) In Asher v. Baxter Int’l Inc., 2007 WL 3010617 (7th Cir. Oct. 17, 2007), the court considered another appeal in a case that had previously generated a well-known decision on the PSLRA’s safe harbor for forward-looking statements. This time the court addressed whether, pursuant to Fed. R. Civ. P. 23(f), a plaintiff is entitled to appeal subsequent denials of class certification if it does not appeal the first denial within the 10-day statutory period. The court found that the “time limit would not be worth anything if it restarted with each new motion” and declined to allow the appeal. The opinion also contains interesting dicta on the representative plaintiff selection process in the case.

Quote of note: “The district court deemed both the Alaska and the Fayetteville funds inadequate because their investments are much smaller than those of other mutual or pension funds. One can’t help thinking that the unwillingness of any substantial shareholder to step forward as a representative suggests that the suit may not be in investors’ interest. To the district judge, the fact that two modestly sized pools with modest stakes in Baxter had been recruited by the lawyers already trying to represent a plaintiff class implied that they would be subservient to counsel.”

Despite all of the fanfare leading up to the oral argument in the Stoneridge (a.k.a. Charter Communications) case on scheme liability, the aftermath has been quite subdued. That may be because the post-argument consensus (at least in the blogosphere) is that the plaintiff investors have no chance of obtaining a reversal. On exactly what basis the court will decide against them, however, is still the subject of debate. Summaries and predictions can be found at Securities Law Prof Blog.

The Supreme Court has released the transcript of today’s oral argument in the Stoneridge case. A few highlights from the justices:

(1) Justice Scalia noted that private actions pursuant to Rule 10b-5 are a judicial creation. He then wondered why they could not also be judicially limited.

“If it’s our creation, couldn’t we sensibly limit it so that, for example, schemes can be attacked by the SEC, but schemes do not form the basis for private attorney generals’ actions? You need actual conveyance of a misrepresentation to the injured party.” (p. 5)

(2) Chief Justice Roberts, on the other hand, appeared inclined to defer to Congress given its active legislating in the area of securities litigation.

“My suggestion is that we should get out of the business of expanding [Rule 10b-5 liability], because Congress has taken over and is legislating in the area in the way they weren’t back when we implied the right of action under 10(b).” (p. 7)

(3) Justice Kennedy expressed concern over the potentially broad scope of liability under a scheme theory (while painting an unflattering portrait of the corporate world).

“[T]here are any number of kickbacks and mismanagements and petty frauds that go on in business, and business people know that any publicly held company’s shares are going to be affected by its profits, so I see no limitation to your – to your proposal [].” (p. 18)

(4) Justice Ginsburg wondered whether scheme liability occupied a middle ground between aiding and abetting, which is a claim that can only be brought by the SEC, and a primary violation by the company.

“That’s if they are aiders and abettors, which is what Congress covered. And I again go back to, is there another category or is everyone – either Charter, the person whose stock is at stake, the company whose stock is at stake and everyone else is an aider?” (p. 35)

(5) Justice Souter alluded to the public controversy over the Solicitor General’s amicus brief by asking the government “whether the SEC has publicly taken a position” on the question of whether there was a violation of Rule 10b-5. Counsel for the government outlined the course of events, but noted that there has not been “any official SEC Commission statement.” (pp. 49-50)

(6) Chief Justice Roberts and Justice Ginsburg expressed skepticism over whether the issue of reliance, which the government focused on, was addressed by the appellate court. Counsel for the government replied that “it’s not as complete a discussion of the reliance issue as we would have thought appropriate if we had been writing the opinion, but it certainly does touch on the question and we think it’s wholly presented.” (pp. 56-7)