Category Archives: Appellate Monitor

It took ten years, but the U.S. Court of Appeals for the Seventh Circuit has finally issued an opinion that comprehensively interprets the PSLRA’s heightened pleading standards. In Makor Issues & Rights, Ltd. v. Tellabs, Inc., 2006 WL 172142 (7th Cir. Jan. 25, 2006) (Wood, J.), the court addressed the following issues:

(1) Pleading of all facts – Although the PLSRA requires a complaint based on information and belief to state “all facts on which that belief is formed,” courts generally have held that this requirement should not be applied literally. The Seventh Circuit agreed with the Second Circuit that the relevant question is “whether the facts alleged are sufficient to support a reasonable belief as to the misleading nature of the statement or omission.”

(2) Confidential witnesses – In accord with a number of other circuit courts, the Seventh Circuit found that plaintiffs are not required to provide the identify of their confidential sources. It is enough for plaintiffs to describe the sources with sufficient particularity to support the probability that the person would “have access to, or knowledge of, the facts underlying the allegations.”

(3) Substantive scienter standard – The Seventh Circuit found that the PSLRA did not raise the substantive scienter standard for securities fraud, which continues to be knowledge or recklessness. (Only the Ninth Circuit has reached a different conclusion.)

(4) Pleading scienter – Under the PSLRA, a plaintiff must plead sufficient facts to create a “strong inference” of scienter or the complaint shall be dismissed. The key issue has been whether motive and opportunity allegations (e.g., insider stock trading), by themselves, can meet this pleading burden. The Second and Third Circuits say yes. The Ninth and Eleventh Circuits disagree. A number of other circuit courts, however, have taken a more holistic approach and require that all of the allegations in the complaint be collectively examined to determine whether the requisite strong inference of scienter is demonstrated. The Seventh Circuit adopted this middle ground, finding that motive and opportunity allegations may be “useful indicators.”

(5) Competing inferences – Although the Sixth Circuit has found that the “strong inference” requirement creates a situation in which plaintiffs are only entitled to the most plausible of competing inferences when a court evaluates their scienter allegations, the Seventh Circuit disagreed. Instead, the Seventh Circuit stated that it “will allow the complaint to survive if it alleges facts from which, if true, a reasonable person could infer that the defendant acted with the required intent.”

(6) Group pleading for scienter – The Seventh Circuit found that the PSLRA requires a strong inference of scienter to be pled for each defendant. Accordingly, scienter allegations made against one defendant cannot be imputed to other defendants on the theory that the officers of the company acted collectively.

For all of the legal windup, the application of the law to the facts in Makor is surprisingly brief. The district court had found that the plaintiffs failed to adequately allege scienter for any of the defendants. On appeal, the Seventh Circuit held that the allegations concerning marketing, sales, and production information available to the CEO were sufficient to establish a strong inference that he acted with fraudulent intent. The CEO’s scienter could then be imputed to the company. As for the other individual defendant, the company’s Chairman, the scienter allegations appeared to be of the “must have known” variety, and he only sold 1% of his stock holdings during the class period. Accordingly, the Rule 10b-5 claim against the Chairman was dismissed.

Holding: Affirmed in part, reversed in part. (The court also evaluated whether falsity and materiality was adequately pled for all of the statements and whether the forward-looking statements were protected by the PSLRA’s safe harbor, but its holdings on these issues were not dispositive of the overall claims against any of the defendants.)

Early reports from today’s Supreme Court oral argument in Merrill Lynch v. Dabit (see post below) suggest that the Second Circuit may be reversed. The justices evidently were skeptical that Congress, in passing SLUSA, meant to allow holders to bring a securities class action in state court, while forcing purchasers and sellers to bring the same case in federal court. Dow Jones Newswires (via wsj.com – subscrip. req’d) and the Financial Times (via MSNBC.com) have articles, while the Wall Street Journal’s Law Blog gets a first-hand report from a law professor who attended the hearing.

Quote of note (Financial Times): “Justice Stephen Breyer said he was worried that permitting such suits in state court would allow investors to circumvent the limits imposed by federal securities laws on purchaser and seller suits. Mr. Breyer said nothing would stop them from proceeding in state court, simply by filing their suits as holders rather than sellers. Justice Ruth Bader Ginsburg asked: ‘Why would Congress with respect to this category want there to be a more plaintiff-friendly rule than it put in place for the purchaser-seller?'”

Media interest in Merrill Lynch v. Dabit, the SLUSA case being heard by the U.S. Supreme Court today, has been muted. Nevertheless, there are some good Internet sources on the case. Scotusblog provides an in-depth preview of the oral argument. The Wall Street Journal’s new Law Blog also has a post.

The respondent’s brief in Merrill Lynch v. Dabit, the first of two SLUSA cases that will be heard by the Supreme Court this term (see post below), can be found here. The following entities have filed amicus briefs in support of Dabit’s position: the National Association of Shareholders and Consumer Attorneys and AARP, IJG Investments Limited Partnership and Iriys Guy, Phillip Goldstein and Bulldog Investors, and New York. Oral argument is scheduled for next Wednesday.

When you’re hot, you’re hot. The Securities Litigation Uniform Standards Act of 1998 (SLUSA) will be the subject of a second U.S. Supreme Court argument this year following the granting of certiorari in the Kircher v. Putnam Funds Trust case. The question presented is whether a party may appeal a district court’s decision to remand a case to state court pursuant to SLUSA. There is currently a circuit split between the Second and Ninth Circuits (not appealable) and the Seventh Circuit (appealable) on this issue. Scotusblog reports that the case will be heard in April.

The U.S. Court of Appeals for the First Circuit has issued an interesting opinion in a research analyst case. The decision – Brown v. Credit Suisse First Boston LLC, 2005 WL 3359728 (1st Cir. Dec. 12, 2005) – affirms the dismissal of securities fraud claims based on alleged false “buy” recommendations made by CSFB’s analysts with respect to the stock of Agilent Technologies.

The court held that the plaintiffs needed to plead facts “sufficient to indicate that the speaker did not actually hold the opinion expressed.” In examining the existence of this “subjective falsity,” the analysis of the falsity of the statement and the defendants’ fraudulent intent (i.e., scienter) cannot be separated. Accordingly, the PSLRA’s heightened pleading standard for scienter should be applied and the plaintiffs must “plead provable facts strongly suggesting that the speaker did not believe [a] particular opinion to be true when uttered.”

Turning to the complaint, the court found that “while the plaintiffs’ allegations regarding the obvious conflicts of interest and general state of corruption within CSFB’s analyst ranks may be enough to turn the stomach of an ethically sensitive observer, they are insufficient, on their own, to support a fraud pleading with respect to the subjective falsity of the eight ‘buy’ recommendations issued on Agilent stock.” In particular, the court rejected a series of CSFB e-mails that suggested its analysts engaged in “sharp practice,” but fell short of creating a strong inference that any particular “buy” rating did not reflect the personal belief of the analyst in question.

Holding: Dismissal affirmed.

Quote of note: “The plaintiffs’ allegations, if true, show beyond hope of contradiction that the defendants operated without much concern for ethical standards. But the fact that an organization is ethically challenged does not impugn every action that it takes. In a securities fraud case, the plaintiffs still must carry the burden, imposed by the PSLRA, of pleading facts sufficient to show that the particular statements sued upon were false or misleading when made. This is as it should be: the securities laws – and section 10(b) in particular – were designed to provide a damages remedy for losses incurred as a result of false or misleading statements, not to punish defendants for bad behavior in a vacuum.”

There is no lack of amici curiae who have filed briefs on behalf of Merrill Lynch in Merrill Lynch v. Dabit, the SLUSA case before the Supreme Court. The list includes (with hyperlink to the brief where available) the Department of Justice/SEC, the U.S. Chamber of Commerce, the Investment Company Institute, Lord Abbett & Co./Vance Management, the Washington Legal Foundation, the Securities Industry Association/Bond Market Association, and Pacific Life Insurance.

Oral argument in Merrill Lynch v. Dabit, the SLUSA case before the Supreme Court, has been scheduled for Wednesday, January 18. The petitioner’s brief can be found here.

The official question presented in the Dabit case before the U.S. Supreme Court is:

“Whether, as the Seventh Circuit held earlier this month and in direct conflict with the decision below, SLUSA preempts state law class action claims based upon allegedly fraudulent statements or omissions brought solely on behalf of persons who were induced thereby to hold or retain (and not purchase or sell) securities?

The Associated Press reports that the U.S. Supreme Court has declined to grant cert in the Lentell v. Merrill Lynch case. In Lentell, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of two research analyst cases based on the plaintiffs’ failure to adequately plead loss causation. The 10b-5 Daily’s summary of the Second Circuit decision can be found here.