The 10b-5 Daily

The U.S. Court of Appeals for the Seventh Circuit is the latest court to hold that the Sarbanes-Oxley Act of 2002, which extended the statute of limitations for federal securities fraud actions, did not revive previously time-barred claims. In Foss v. Bear, Stearns & Co., Inc., 2005 WL 43724 (7th Cir. Jan 11, 2005), the court found the Second Circuit’s recent decision in the Enterprise Mortgage case “persuasive” on this issue and noted that it had “nothing to add.”

Oral argument in the Dura Pharmaceuticals v. Broudo case took place in the U.S. Supreme Court this morning (links to all of the main briefs can be found here). The question presented was: “Whether a securities fraud plaintiff invoking the fraud-on-the-market theory must demonstrate loss causation by pleading and proving a causal connection between the alleged fraud and the investment’s subsequent decline in price.”

Chief Justice Rehnquist did not attend the hearing, but reserved his right to participate in the decision. Argument was heard from counsel for Dura Pharmaceuticals, the U.S. government (in support of Dura’s position), and Broudo. Here are a few notes on the main issues that were discussed:

Overall Impressions – Predicting how the Supreme Court will rule based on oral argument is a tricky business. That said, the Court appeared likely to reject the 9th Circuit’s price inflation theory of loss causation. Whether the Court will attempt to lay out what a plaintiff in a fraud-on-the-market case must plead as to loss causation to survive a motion to dismiss, however, was unclear.

Dura’s Position – Consistent with their briefs, Dura’s counsel argued that a loss only occurs when a corrective disclosure is made. Justice Breyer posed the following hypothetical – a company says it has found gold and its stock price is $60; the company later discloses that no gold has been discovered and the stock price declines to $10; the loss is clearly $50. But what if the gold never existed but the company finds platinum and the stock price rises to $200? Are plaintiffs permitted to show that the stock price would have been $250 if the company had also found gold? Dura’s counsel did not disagree that it might be possible to demonstrate loss causation under these circumstances, but argued that there would need to be a disclosure about the absence of gold.

Difference Between Dura And Government? – Justice Ginsburg, in particular, noted that there appeared to be a difference between Dura’s position and the one put forward by the government, because the government allowed for the possibility that something other than a corrective disclosure might be sufficient to establish loss causation. Justice Scalia emphasized that plaintiffs simply need to show that the market knows the truth, however that truth comes to be revealed.

Government’s Position – The government’s counsel then argued that to establish loss causation, plaintiffs must demonstrate that the price inflation caused by any misrepresentation was removed or reduced by the dissemination of corrective information (but there is no need for a formal disclosure from the company).

Rule 8 vs. Rule 9(b) – Having established its basic position, the government’s counsel found himself in the awkward position of spending most of his time defending a proposition of law that was not really briefed in the case. At least two justices, Ginsburg and Stevens, appeared to feel strongly that the pleading of loss causation is only subject to the notice pleading requirements of Fed. R. Civ. P. 8. The government’s counsel countered that, as an element of fraud, loss causation must be plead with particularity pursuant to Fed. R. Civ. P. 9(b) and it was important to make an assessment about loss causation at the pleading stage of a case before defendants are forced to pay millions in discovery costs or settlement of the claims.

Need A Viable Theory of Loss? – Even if Broudo was only required to engage in notice pleading on the issue of loss causation, Justice Breyer questioned whether the complaint still needed to articulate a viable theory of loss. Broudo’s counsel conceded that the complaint could have contained more on this point, but later noted that the pleading was in conformity with 9th Circuit law at the time it was filed.

When Does Loss Occur? – As expected, a large portion of the argument concerned whether the 9th Circuit’s price inflation theory of loss causation (i.e., that the loss occurs, and a viable claim exists, at the time the purchaser buys the stock at an artificially inflated price) is correct. Broudo’s counsel argued in favor of the 9th Circuit’s position, but conceded that to show recoverable damages the plaintiffs would eventually have to establish that the inflation in the stock price was reduced or eliminated. A number of justices expressed skepticism that there could be any cause of action for fraud prior to actual damages having been suffered. Justices Souter and Scalia suggested that the inflation in the stock price simply established the limit of the potential loss, not that any loss had occurred. Justice Scalia also wondered whether the entire case was simply a “great misunderstanding,” since the parties both agreed that plaintiffs would eventually have to establish that the inflation in the stock price was reduced or eliminated. Broudo’s counsel noted, however, that there was also an issue over what plaintiffs needed to plead in their complaint on this issue and it may be possible for “lowered expectations” to result in stock price drops that are related to the fraud, even though the fraud is not revealed.

The PSLRA created a safe harbor for forward-looking statements to encourage companies to provide investors with information about future plans and prospects. Under the first prong of the safe harbor, a defendant is not liable with respect to any forward-looking statement if it is identified as forward-looking and is accompanied by “meaningful cautionary statements” that alert investors to the factors that could cause actual results to differ.

As discussed in a post in The 10b-5 Daily from last August entitled “The Safe Harbor May Just Be A Safe Puddle,” the U.S. Court of Appeals for the Seventh Circuit has weakened the protection afforded by the safe harbor. In Asher v. Baxter International, the court found that may be impossible, on a motion to dismiss, to determine whether a company’s cautionary statements are “meaningful.”

The New York Law Journal has an article (via law.com – free regist. req’d) discussing the Seventh Circuit’s decision and comparing it to a contrary decision issued by the Second Circuit last year. Baxter International apparently has indicated that it will appeal to the U.S. Supreme Court and the article suggests that this could be the next securities litigation issue, after loss causation in the Dura case, that the Court hears.

The National Law Journal has a solid preview (via law.com – free regist. req’d) of the Supreme Court argument in Dura Pharmaceuticals v. Broudo. Counsel for both parties in the case, which addresses the issue of loss causation, are quoted extensively. The argument will take place next Wednesday.

Securities litigators eagerly awaiting oral argument in Dura Pharmaceuticals v. Broudo, the loss causation case currently before the U.S. Supreme Court, will want to take a look at Dura’s reply brief (this post has links to the earlier briefs). The argument will take place on January 12, 2005. Thanks to SecuritiesLawblog for the link.