The 10b-5 Daily

While the U.S. Court of Appeals for the Eleventh Circuit continues to consider whether the new statute of limitations in the Sarbanes-Oxley Act of 2002 revives time-barred claims, the district court split on the issue remains unresolved. Two recent decisions from the S.D.N.Y., in prominent cases, come to different conclusions.

In In re Worldcom, Inc. Sec. Litig., 2004 WL 1435356 (S.D.N.Y. June 28, 2004), Judge Cote found that “there is no explicit language in the statute” that would operate to revive time-barred claims and lengthening the statute of limitations in this manner “would affect the substantive rights of the defendants by depriving them of a defense on which they were entitled to rely.” Accordingly, the court held that “Sarbanes-Oxley does not revive previously time-barred private securities fraud claims” and dismissed certain claims in the case that had expired in June 2002 (a month before Sarbanes-Oxley was passed).

In In re AOL Time Warner, Inc. Sec. and “ERISA” Litig., 2004 WL 992991 (S.D.N.Y. May 5, 2004), Judge Kram went in another direction. In that case, the first class action was filed on July 18, 2002 (two weeks before Sarbanes-Oxley was passed). The court held that the plaintiffs’ otherwise time-barred claims would have been revived if the plaintiffs had filed after the passage of Sarbanes-Oxley. Although “in most cases, class actions or otherwise, the date of the first filing is the operative one for statute of limitations purposes,” the court decided that the filing date of the consolidated complaint, September 16, 2002, should be the operative date in the instant case. As a result, the longer statute of limitations in Sarbanes-Oxley applied and the otherwise time-barred claims could proceed. The court justified this rather extraordinary decision by arguing that any other result would punish the plaintiffs for filing too early and lead to a mass opt-out from the class.

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.

In the case of oral forward-looking statements, the PSLRA specifically provides that the meaningful cautionary statements can be incorporated by reference in a readily available written document. The statute is silent, however, about whether this is also true for written forward-looking statements. Surprisingly, only a few courts have addressed this issue.

In In re Blockbuster Inc., Sec. Litig., 2004 WL 884308 (N.D. Tex. April 24, 2004), the court noted that the PSLRA’s safe harbor is based on the judicially-created bespeaks caution doctrine, which provides that statements must be analyzed in context. The court therefore concluded that “as long as the reference is clear and explicit so that the referenced cautionary language can fairly be viewed as part of the ‘context’ surrounding the written forward-looking statement, the PSLRA safe harbor for written forward-looking statements can be satisfied by meaningful cautionary language that is incorporated by reference.” The court found that its holding was supported by the “illogic” of allowing incorporation by reference for oral statements, where the location of the cautionary statements is likely to be misheard or forgotten, but not allowing it for easily followed written statements.

Holding: Motion to dismiss granted.

Whether and how to apply the fraud-on-the-market theory (i.e., reliance by investors on an alleged misrepresentation is presumed if the company’s shares were traded on an efficient market) to research analyst statements is a controversial issue. It was the subject of a recent appeal by Citigroup in the WorldCom litigation, but the appeal was mooted by the settlement of the case just before the scheduled oral argument.

The 10b-5 Daily has argued that the Second Circuit, in its opinion granting Citigroup’s request for interlocutory appeal, appeared favorably disposed to finding that the fraud-on-the-market theory was not generally applicable to research analyst statements. Judge Rakoff of the S.D.N.Y. apparently agrees with this reading of the opinion.

In DeMarco v. Lehman Brothers, 2004 WL 1506242 (S.D.N.Y. July 6, 2004), a case alleging that a Lehman analyst made buy recommendations for RealNetworks, Inc. stock while secretly holding negative views of the stock, the court has denied the motion for class certification. The court noted that there is a “qualitative difference” between a statement of fact from an issuer and a statement of opinion by a research analyst. In particular, a “well-developed efficient market can reasonably be presumed to translate the former into an effect on price, whereas no such presumption attaches to the latter.” As a result, the court held that the fraud-on-the-market doctrine can apply to a case based on research analyst statements “only where the plaintiff can make a prima facie showing that the analyst’s statements materially impacted the market price in a reasonably quantifiable respect.”

The plaintiffs relied on Lehman Brothers’ promotional materials touting its analyst’s abilities and influence and an expert report (largely based on general studies of the effect of analyst recommendations on stock prices) in arguing that the analyst’s statements inflated the market price for RealNetworks’ stock. The court found that this evidence was insufficient to “warrant invocation of the fraud-on-the-market presumption.”

Holding: Motion for class certification denied.

Quote of note: “[A] statement of opinion emanating from a research analyst is far more subjective and far less certain, and often appears in tandem with conflicting opinions from other analysts as well as new statements from the issuer. As a result, no automatic impact on the price of a security can be presumed and instead must be proven and measured before the statement can be said to have ‘defrauded the market’ in any material way that is not simply speculative.”

The New York Law Journal has an article (via law.com – free regist. req’d) on the decision. Thanks to Adam Savett for sending in a copy of Judge Rakoff’s opinion.