The 10b-5 Daily

The scope of the Securities Litigation Uniform Standards Act (“SLUSA”), which precludes certain class actions based upon state law that allege a misrepresentation in connection with the purchase or sale of nationally traded securities, continues to be the subject of litigation. A key issue is to what extent a plaintiff can plead around the preclusive effect of the statute.

In Romano v. Kazacos, 2010 WL 2574143 (2d Cir. June 29, 2010), the Second Circuit considered a pair of state law class actions alleging that Morgan Stanley gave inappropriate retirement advice, which led the plaintiffs to retire early, place their lump sum retirement benefits with Morgan Stanley for investment, and subsequently suffer investment losses. The district court found that SLUSA preempted both actions and dismissed them.

On appeal, the Second Circuit made two key findings.

First, the court held that although a plaintiff is normally the master of his complaint, he “cannot avoid removal by declining to plead ‘necessary federal questions.'” Based on this “artful pleading” rule, in a SLUSA case courts can look beyond the face of the complaint to determine whether the plaintiff has “allege[d] securities fraud in connection with the purchase or sale of securities.”

Second, SLUSA’s “in connection” requirement must be given a broad construction. In the cases at issue, the plaintiffs “in essence, assert that defendants fraudulently induced them to invest in securities with the expectation of achieving future returns that were not realized.” Even though the plaintiffs “did not invest in any covered securities for up to eighteen months” after receiving the relevant retirement advice, the court concluded this time lapse was “not determinative here because . . . ‘this was a string of events that were all intertwined.'” In sum, the court held that “[b]ecause both the misconduct complained of, and the harm incurred, rests on and arises from securities transactions, SLUSA applies.”

Holding: Dismissal based on SLUSA preclusion affirmed.

The U.S. Court of Appeals for the Ninth Circuit has been busy over the past few weeks.

(1) In the Apollo Group case, the court reinstated the $277.5 million verdict obtained by the company’s investors. The trial court, in a post-verdict decision, had found that the investors failed to prove loss causation. In particular, the court concluded that the two analyst reports relied upon by the plaintiffs as “corrective disclosures” that led to a stock price decline “did not provide any new, fraud-revealing analysis.” Although The 10b-5 Daily suggested that the trial court’s decision could lead to an interesting appeal, the actual opinion is quite anticlimactic. In an unpublished memorandum, the court simply held that “the jury could have reasonably found that the [analyst] reports following various newspaper articles were ‘corrective disclosures’ providing additional or more authoritative fraud-related information that deflated the stock price.” The D&O Diary has extensive coverage, including a guest commentary.

(2) In In re Cutera Sec. Litig., 2010 WL 2595281 (9th Cir. June 30, 2010), the court joined all of the other circuits that have considered the issue (Fifth, Sixth, and Eleventh) in finding that the PSLRA’s safe harbor for forward-looking statements “is written in the disjunctive as to each subpart.” As a result, the “defendant’s state of mind is not relevant” in determining whether a forward-looking statement is protected from liability because it is accompanied by “sufficient cautionary language.” Over the years, The 10b-5 Daily has posted frequently on this issue (most recently here).

(3) Many commentators believed that the U.S. Supreme Court would grant cert in the Trainer Wortham case to address the running of the statute of limitations for securities fraud. As it turned out, the Court took the Merck case instead and issued a decision earlier this year. The Court then remanded the Trainer Wortham case for reconsideration. Back in the Ninth Circuit, in Betz v. Trainer Wortham & Co., Inc., 2010 WL 2674442 (9th Cir. July 7, 2010), the court has decided that it would be better for the district court to consider the statute of limitations issue in the first (or, more accurately, second) instance.

In what is shaping up to be a blockbuster term for securities litigation cases, the U.S. Supreme Court will address the issue of primary liability.

On Monday, the Court granted cert (over the objection of the government) in the Janus Capital Group v. First Derivative Traders case. In Janus, the Fourth Circuit found that to establish primary liability it is sufficient for a plaintiff to adequately allege (a) the defendant “participated” in the making of a false statement, and (b) “interested investors would have known that the defendant was responsible for the statement at the time it was made, even if the statement on its face is not directly attributable to the defendant.” The defendants argued in their cert peition, apparently with some success, that both prongs of this holding created or exacerbated circuit splits.

SCOTUSBlog has links to the cert petition papers.

In the Morrison v. National Australia Bank (“NAB”) case, the U.S. Supreme Court has held that Section 10(b) of the Exchange Act applies only to transactions in securities listed on U.S. exchanges and to U.S. transactions in other securities. The 8-0 decision (Justice Sotomayor did not participate) authored by Justice Scalia thus rejects the use of the conduct/effects test to determine the extraterritorial application of the U.S. anti-fraud securities laws.

In NAB, the court considered a so-called “foreign-cubed” securities case – i.e., a securities class action brought against a foreign issuer by foreign investors who purchased their securities on a foreign exchange. The Second Circuit applied its existing “conduct test” for determining the extraterritorial application of Section 10(b) and held that the plaintiffs needed to adequately allege that “activities in this country were more than merely preparatory to a fraud and culpable acts or omissions occurring here directly caused losses to investors abroad.” The court found that this test was not met in NAB because the locus of the fraudulent activity, including the issuance of the false statements, was in Australia.

On appeal, the Supreme Court reached the same result, but took a notably different approach.

First, the Court found (contrary to the Second Circuit and other lower federal courts) that the extraterritorial application of Section 10(b) does not “raise a question of subject-matter jurisdiction.” Instead, it is an issue of “what conduct Section 10(b) prohibits, which is a merits question.”

Second, it is a longstanding principle that Congressional legislation, “unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” The fact that the “Exchange Act is silent as to the extraterritorial application of Section 10(b)” does not give courts license to speculate as to what Congress would have wanted. In the absence of any “affirmative indication” that Section 10(b) applies extraterritorially, the Court concluded “that it does not.”

Finally, the Court addressed the plaintiffs’ contention that even if Section 10(b) does not apply extraterritorially, there was sufficient deceptive conduct in the U.S. to make it a “domestic” case. Although the Court agreed that applying the presumption against extraterritorial application may require analysis, the presumption “would be a craven watchdog indeed if it retreated to its kennel whenever some domestic activity is involved in the case.” The Court found that the focus should be on the location of the securities transaction, not “the place where the deception originated.” Accordingly, it is “only transactions in securities listed on our domestic exchanges, and domestic transactions in other securities, to which Section 10(b) applies.”

Holding: Affirmed.

Notes on the Decision

(1) Although technically a unanimous decision, the concurrence written by Justice Stevens (and joined by Justice Ginsburg) effectively acted as a dissent. The justices urged affirmance on the grounds set forth in the Second Circuit’s opinion.

(2) The Court’s bright-line rule would appear easy to apply. One can envision fact patterns, however, that might make it difficult to assess whether a securities transaction is “domestic” (i.e., has taken place within the United States).

(3) While the decision does not discuss whether it applies to the SEC, there is no principled reason why the Court’s construction of Section 10(b) would not extend beyond private plaintiffs. Congress has been considering a codification of the extraterritorial application of Section 10(b). By indirectly limiting the scope of the SEC’s authority, the Court may have improved the prospects for such legislation.

(4) The Court showed some sympathy for the argument that the extraterritorial application of Section 10(b) will encourage suits of questionable merit and compromise the ability of foreign countries to regulate their own securities markets. To wit: “While there is no reason to believe that the United States has become the Barbary Coast for those perpetrating frauds on foreign securities markets, some fear that it has become the Shangri-La of class action litigation for lawyers representing those allegedly cheated in foreign securities markets.”

The U.S. Supreme Court is going to address the issue of materiality in securities fraud cases, albeit in the limited context of actions based on a drug company’s nondisclosure of “adverse event” reports.

Yesterday, the Court granted cert in the Matrixx Initiatives, Inc. v. Siracusano (9th Circuit) case. In Matrixx, the Ninth Circuit found that a drug company can be liable for failing to disclose adverse event reports (i.e., reports by users of a drug that they experienced an adverse event after using the drug) even if those reports were not statistically significant. The First, Second, and Third Circuits, however, have held that statistical significance is required to make the nondisclosure of the reports material. The Court will resolve the circuit split.

SCOTUSBlog has links to the cert petition papers. Although the question presented is narrow, the case may have wider ramifications if the Court offers guidance on its general materiality standard. Matrixx will be heard in the October term.

Surprisingly, the U.S. Court of Appeals for the Second Circuit has never issued an opinion analyzing the PSLRA’s safe harbor for forward-looking statements. It filled in that gap this week.

In Slayton v. American Express Co., 2010 WL 1960019 (2d Cir. May 18, 2010), the court considered whether the safe harbor shielded American Express from liability for a statement it made in its May 15, 2001 Form 10-Q. As paraphrased by the court, American Express had disclosed “that while it had lost $182 million from its high-yield debt investments in the first quarter of 2001, it expected futher losses from those investments to be substantially lower for the remainder of 2001.” It turned out, however, that in July 2001 the company took a large write-down on those investments.

The court’s decision contains a number of interesting holdings.

(1) Plain Language – Contrary to some other courts, the Second Circuit found that the safe harbor is “written in the disjunctive.” Therefore, “a defendant is not liable if the forward-looking statement is identified and accompanied by meaningful cautionary language or is immaterial or the plaintiff fails to prove that it was made with actual knowledge that it was false or misleading.”

(2) Scope of Financial Statement Exclusion – The safe harbor excludes forward-looking statements “included in a financial statement prepared in accordance with generally accepted accounting principles.” The Second Circuit held that the Management’s Discussion and Analysis (“MD&A”) section of the Form 10-Q, which contained the alleged misstatement, was not part of the financial statement portion of the filing. As a result, the safe harbor could be applied.

(3) Meaningful Cautionary Language – The Second Circuit noted that it was difficult to follow Congress’s instructions concerning the application of the safe harbor. To determine whether a defendant has identified the risks that realistically could cause results to differ, “the most sensible reference is the major factors that the defendants faced at the time the statement was made.” But it is clear from the relevant Conference Report that Congress did not want courts to inquire into the defendant’s knowledge of those risks.

The Second Circuit concluded that it did not have to “decide that thorny issue,” however, because American Express’s cautionary statement was too vague to satisfy the “meaningful” standard. While the company warned of the possibility of “potential deterioration in the high-yield sector,” it did not warn of the risk that rising defaults on the bonds underlying its investments would cause that deterioration. Moreover, American Express’s cautionary statement remained the same even as the problems related to its investments changed.

(4) Actual Knowledge – The Second Circuit held that the relevant pleading standard for actual knowledge is whether a reasonable person, based on the facts alleged, would “deem an inference that the defendants (1) did not genuinely believe the May 15 statement, (2) actually knew they had no reasonable basis for making the statement, or (3) were aware of undisclosed facts tending to seriously undermine the accuracy of the statement, ‘cogent and at least as compelling as any opposing inference.'” In this case, the plaintiffs failed to allege sufficient facts to meet this standard.

Holding: Dismissal based on PSLRA’s safe harbor affirmed.

Quote of note: “Congress may wish to give further direction on how to resolve this tension, and in particular, the reference point by which we should judge whether an issuer has identified the factors that realistically could cause results to differ from projections. May an issuer be protected by the meaningful cautionary language prong of the safe harbor even where his cautionary statement omitted a major risk that he knew about at the time he made the statement? In this case, however, we need not decide that thorny issue because we conclude that at any rate the cautionary statement the defendants point to here was vague.”