The recent unpublished order granting Intel Corp.’s motion to dismiss the securities class action against the company has been posted by The Securities Law Beacon. (The 10b-5 Daily has previously noted the decision.)
Judge Pollack Declines To Rehear Merrill Lynch Cases
Reuters reports that Judge Pollack of the S.D.N.Y. has declined to reconsider his ruling, or allow the plaintiffs to file an amended complaint, in the Merrill Lynch research class actions he recently dismissed. (The 10b-5 Daily has posted extensively about the original decision.)
Quote of note: “Pollack said on Tuesday that the plaintiffs had done ‘nothing to change the unalterable, judicially-noticeable facts relating to the widespread public dissemination, years prior to the filing of the cases at bar, of information regarding analyst conflicts of interest and the service of investment banking business.'”
Filed under Motion To Dismiss Monitor
Ohio Sues Freddie Mac
The state of Ohio, on behalf of its pension funds, continues to supplement pending securities class actions with its own individual suits. Over the weekend, the Washington Post reported that Ohio has both individually sued Freddie Mac and certain former officers for securities fraud and filed a motion asking that it be named lead plaintiff in the securities class action. The state currently has individual suits pending against AOL Time Warner (discussed in The 10b-5 Daily here), Enron, and WorldCom and is the lead plaintiff in a securities class action against Global Crossing.
Quote of note: “‘I don’t mean be excessively litigious, but I think in terms of what we’ve seen, we need to see more corporate accountability,’ [Ohio Attorney General Jim Petro] said.”
Filed under All The News That's Fit To Blog
SuperGen Obtains Voluntary Dismissal
SuperGen, Inc. (NASDAQ: SUPG) has announced the voluntary dismissal of the securities class action against the pharmaceutical company. The suit, originally filed in April in the U.S. District Court for the Northern District of California, alleged that the company sold shares while failing to disclose material information about one of its drugs.
Filed under Motion To Dismiss Monitor
What Is Necessary To Allege Loss Causation?
It has been a big summer for loss causation cases. A clear split in authority has developed between courts that believe plaintiffs must demonstrate a causal connection between the misrepresentations and a subsequent decline in the stock price (Semerenko v. Cendant Corp., 223 F.3d 165 (3d Cir. 2000); Robbins v. Koger Props, Inc., 116 F.3d 1441 (11th Cir. 1997)) and courts that believe plaintiffs merely need to allege that the misrepresentations artificially inflated the stock price (Gebhardt v. ConAgra Foods, Inc., 335 F.3d 824 (8th Cir. 2003)).
In Broudo v. Dura Pharmaceuticals, 2003 WL 21789028 (9th Cir. Aug. 5, 2003), the Ninth Circuit clarified that it will not require plaintiffs to establish a causal connection between the misrepresentations and a decline in the stock price: loss causation “merely requires pleading that the price at the time of purchase was overstated and sufficient identification of the cause.” The facts of the case, however, underline the problems with this reasoning. Broudo is a securities class action on behalf of investors who purchased Dura stock between April 15, 1997 and February 24, 1998. The defendants allegedly made misleading statements during that time period about, among other things, the clinical trials necessary to obtain new drug approval from the FDA for Dura’s Albuterol Spiros delivery device for asthma medication. On February 24, 1998, Dura revealed that it expected lower-than-forecast 1998 revenues and 1998 earnings per share, but did not make any disclosures about its Albuterol Spiros delivery system. The February 24 announcement caused Dura’s stock price to decline by 47%. It was not until November 1998, nearly nine months after the end of the class period, that Dura announced the FDA had “found the Albuterol Spiros device not approvable due to electro-mechanical reliability issues and chemistry, manufacturing, and control concerns.” The district court found that the plaintiffs had failed to properly plead loss causation for his claims based on misleading statements concerning the Albuterol Spiros device because the complaint did “not contain any allegations that the FDA’s non-approval [of the Albuterol Spiros device] had any relationship to the February price drop.”
The 9th Circuit reversed. The court did not address the logical inconsistency of the plaintiffs’ argument that statements revealed to be misleading in November caused them to suffer losses the previous February. Instead, the court found that it was unnecessary for the plaintiffs to plead “that a disclosure and subsequent drop in the market price of the stock have actually occurred, because the injury occurs at the time of the transaction.”
The decision improperly conflates transaction causation and loss causation. Plaintiffs may have purchased on the basis of the alleged misrepresentations, but any loss requires the stock they purchased to decline in value. The practical problems created by the Broudo opinion are significant. As noted by Judge Pollack in the Merrill Lynch cases, “allowing plaintiffs in a fraud on the market case to satisfy loss causation simply by alleging that a misrepresentation caused the price to be artificially inflated without having to allege any link between the conduct and the decline in price would undoubtedly lead to speculative claims and procedural intractibility.” Moreover, the PSLRA expressly states that plaintiffs have the burden of establishing that their losses were caused by the defendants’ acts or omissions. How can plaintiffs’ claims be plead with particularity if they do not connect the alleged fraudulent conduct to any loss?
Holding: Reversed and remanded with leave to amend.
Filed under Appellate Monitor
Halliburton Settlement On Hold
The Financial Times has a story on the dispute between the lead plaintiffs in the Halliburton securities class action. As previously noted in The 10b-5 Daily, Halliburton Company announced at the end of May that it had agreed to a $6 million settlement.
In a remarkable development, however, Scott + Scott (which represents one of the four lead plaintiffs) has refused to sign onto the settlement and is attempting to have Schiffrin & Barroway removed as lead counsel in the case. Scott + Scott claims that Schiffrin “did not convene a single meeting of the lead plaintiffs, refused to give other firms evidence it had investigated the charges, and then settled the case for $6m, even though some have estimated the damages as high as $6.8bn.” There is also some controversy over why Vice President Dick Cheney, the CEO of Halliburton during some of the class period, was not named as a defendant.
The court has scheduled a hearing for August 25.
Filed under Settlement
The Rent-Way Story
The Eire Times News is running an interesting series of articles on the financial fraud at Rent-Way, Inc. (NYSE: RWY), one of the nation’s largest rent-to-own retailers. The articles detail both the fraud, which was first revealed in Oct. 2000, and the legal consequences for the company and its officers. The first article in the series can be found here (links to subsequent installments are at the bottom of the page).
Filed under All The News That's Fit To Blog
Journal Roundup
Looking for some fun beach reading this summer? Stay away from these articles! But if you want some interesting examinations of securities class action law, here are a few of the latest offerings.
1) The Santa Clara Law Review has an empirical study entitled “Securities Class Action Settlements” by Mukesh Bajaj, Sumon Mazumdar, and Atulya Sarin (43 Santa Clara L. Rev. 1001 (2003)). The authors studied 1203 federal case filings and 92 state court filings, spanning from 1988 to 1999, to draw conclusions about dismissal and settlement trends.
Quote of note: Among other conclusions, the authors found: (a) “The settlement process, as well as the rate of dismissals, has declined since the passage of the PSLRA;” (b) “Quick settlements generally involve relatively small settlement amounts;” (c) “Mean and median settlements have increased in the post-PSLRA period;” and (d) “Cases naming accounting firms as co-defendants, while relatively rare, involve average and median settlements that are greater than the sample as a whole.” Many of these results are similar to those in the recent NERA study.
2) The ALI-ABA has published an article entitled “Central Bank is Alive and Well: Defense Strategies for Defeating ‘Scheme To Defraud’ Allegations in Private Securities Litigation” by Brian Pastuszenski, Christopher Robertson, and Jason Frank (SHO83 ALI-ABA 439 (May 8-9, 2003)). The authors focus on plaintiffs’ recent attempts to use the holding in SEC v. Zandford, 535 U.S. 813 (2002), where the Supreme Court found a broker liable for engaging in a “scheme to defraud” under Rule 10b-5 when he misappropriated funds from a customer’s account, to avoid the prohibition on “aiding and abetting” liability found in the Court’s earlier holding in Central Bank. Recent district court decisions (notably in the Enron case) “have allowed claims to proceed against secondary actors who were not alleged to have made any actual misstatements relied on by plaintiffs, but instead were alleged only to have participated in certain transactions underlying the alleged misstatements.”
Quote of note: “Successfully arguing a motion to dismiss based on Central Bank, however, requires articulating clearly the difference between (a) a ‘misstatement’ case in which plaintiffs complain about the purchase of stock at inflated prices as a result of allegedly false and misleading statements and (b) a case that alleges other forms of ‘deception’ that caused plaintiffs harm . . . In the typical class action case, only the defendant who actually made the offending statements themselves has any potential liability after Central Bank.” (A discussion of another recent article on this general topic, with a different viewpoint.
3) The same ALI-ABA “course of study” has an article on “Anonymous Informants: How Identifiable Must They Be Under The PSLRA” by Peter Saparoff and Justin Kudler (SH083 ALI-ABA 479 (May 8-9 2003)). The authors survey the recent case law on this contentious issue.
Quote of note: “The trend in the case law now has solidified around providing a description of the informant, but not necessarily his or her name, in a complaint alleging violations of the federal securities laws that was pleaded under the PSLRA.”
Filed under All The News That's Fit To Blog
FTD Settles
FTD, Inc. (Nasdaq: FTDI) has sent itself a bunch of flowers with the announcement that it is settling the securities class action against the company for $10.7 million in stock. The case was related to the company’s 2002 FTD.com merger.
Filed under Settlement
The Scope Of The Stay Of Discovery
The PSLRA provides that “all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss, unless the court finds upon the motion of any party that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party.” With the passage of SLUSA, Congress attempted to strengthen the discovery stay by granting the power to federal court judges to quash discovery in state court actions if discovery in the state case conflicted with an order of the federal court.
In Newby v. Enron Corp., 2003 WL 21658666 (5th Cir. July 30, 2003), the underlying lawsuit was a state court action in Texas (Bullock), filed on behalf of thirteen individuals, against many of the same defendants as in the Enron federal securities class action litigation (Newby). The plaintiffs received permission from the state court to commence discovery, even though there was no dispute “that the discovery sought in Bullock would have fallen squarely within the discovery that may eventually take place in Newby if the plaintiffs survive a motion to dismiss.” The defendants requested emergency injunctive relief from the U.S. District Judge presiding over the Newby case to stay discovery in the Bullock case. Pursuant to SLUSA, the discovery was enjoined until a ruling on the motion to dismiss in the Newby case. The Bullock plaintiffs appealed.
In Newby, the Fifth Circuit addressed whether the power granted to federal court judges to quash state court actions is only limited to state court actions brought on behalf of a class of investors. The plain language in SLUSA would appear to suggest otherwise, “a court may stay discovery in any private action in a State court . . . .” Appellants argued, however, that (1) the PSLRA and SLUSA were enacted to combat abuses in class action securities cases; and (2) other provisions of SLUSA refer specifically to state court class actions and control over the more general terminology in the operative provision.
Not surprisingly, the Fifth Circuit decided to stick with the plain language of the statute. “The title of [the SLUSA provision] reflects its purpose: to prevent the ‘circumvention of stay of discovery’ provided for in [the PSLRA]. The provision in [SLUSA] allows the federal court presiding over an action subject to the automatic stay of discovery to order a similar stay in a state court action. On its face [the SLUSA provision] applies to ‘any private action in a State court.’ The action stayed by the district court is plainly within the scope of this clause.”
Holding: Stay of discovery affirmed (the panel also upheld additional injunctive relief granted by the district court).
Filed under Appellate Monitor, Discovery Stay
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