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  • Southern District Of New York Dismisses Proposed Securities Class Action Against Biopharmaceutical Company Alleging Failure To Disclose Progress Of Competitor
    02/21/2024

    On February 4, 2024, Judge Arun Subramanian of the United States District Court for the Southern District of New York dismissed a proposed securities class action against a biopharmaceutical company (the “Company”) alleging violations under Sections 11 and 15 of the Securities Exchange Act of 1934 (the “Exchange Act”).  Merritt v. Molecular Partners AG, 22-CV-5925 (AS) (S.D.N.Y. Feb. 4, 2024).
  • California District Court Grants Motion To Dismiss Investor Class Action Against Lithium-Ion Battery Company
     
    02/13/2024

    On January 30, 2024, Judge Susan Illston of the United States District Court for the Northern District of California granted with leave to amend a motion to dismiss a putative securities class action against a battery company and its directors and officers.  In Re Enovix Corp. Securities Litigation, No. 23-cv-00071-SI (N.D. Cal. Jan. 30, 2024).  Plaintiffs alleged that defendants violated Sections 10(b) and 20(a) of the Securities and Exchange Act of 1934 and Rule 10b-5(b) promulgated thereunder by failing to disclose that the Company overlooked critical testing of its manufacturing equipment, which led to equipment failure that caused the Company to miss its performance targets.
    CATEGORIES : Exchange ActFalsityScienter
  • Eastern District Of Pennsylvania Dismisses Purported Securities Fraud Class Action Against IT Services Company For Failure To Adequately Allege Falsity, Scienter And Loss Causation
     
    02/13/2024

    On February 1, 2024, Judge Gerald J. Pappert of the United States District Court for the Eastern District of Pennsylvania granted a motion to dismiss a putative securities class action against an IT solutions company that provides digital communication, cybersecurity and IT consulting services, its CEO and current and former CFOs.  Connor v. Unisys Corp., et al., No. 22-4529 (E.D. Pa. Feb. 1, 2024).  Plaintiff alleged that defendants made false representations about the Company’s disclosure controls and procedures and internal control over financial reporting in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder.  The Court dismissed the amended complaint, holding that plaintiff failed to adequately allege falsity, scienter and loss causation.
  • Southern District Of New York Declines To Dismiss Claims In Putative Class Action Against Medical Test Manufacturer
     
    02/13/2024

    On February 5, 2024, Judge Arun Subramanian of the United States District Court for the Southern District of New York largely declined to dismiss a putative class action asserting claims under the Securities Exchange Act of 1934 against a manufacturer of medical tests and certain of its executives.  Stadium Capital LLC v. Co-Diagnostics, Inc., 2024 WL 456745 (S.D.N.Y. Feb. 5, 2024).  Plaintiff alleged that the company made misrepresentations regarding the prospect of future sales of the company’s medical tests as the COVID-19 pandemic subsided.  The Court held that plaintiff plausibly alleged actionable misrepresentations regarding comments made announcing earnings results for the first quarter of 2022, and plausibly alleged that defendants acted with scienter.
  • Southern District Of New York Dismisses Putative Class Action Regarding SPAC Acquisition Of Online Lottery Company
     
    02/13/2024

    On February 6, 2024, Judge Jennifer L. Rochon of the United States District Court for the Southern District of New York dismissed with leave to amend a putative class action asserting claims under the Sections 10(b) and 14(a) of the Securities Exchange Act against a Special Purpose Acquisition Company (“SPAC”) and certain of its officers and directors, along with an individual action consolidated with the putative class action and asserting similar claims.  In re Lottery.com, Inc. Securities Litigation, No. 1:22-cv-07111 (S.D.N.Y. Feb. 6, 2024), slip op.  Plaintiffs alleged that defendants misrepresented certain financial information regarding the SPAC’s target company both before and after the merger.  The Court held that, while certain challenged statements were adequately alleged to be false, plaintiffs failed to sufficiently allege scienter with respect to any alleged misrepresentation.
  • Southern District Of New York Dismisses Putative Class Action Against Media Company For Failure To Adequately Allege Misrepresentations
     
    02/13/2024

    On February 5, 2024, Judge Valerie Caproni of the United States District Court for the Southern District of New York dismissed with prejudice a putative class action asserting claims under the Securities Act of 1933 against a media company and certain of its officers and directors.  Ohio Public Emps. Ret. Sys. v. Discovery, Inc., 2024 WL 446466 (S.D.N.Y. Feb. 5, 2024).  Plaintiffs alleged that the offering documents in connection with the merger that created the company contained misrepresentations that painted a misleadingly positive image of the strength of the combined company.  The Court held that none of the six categories of misrepresentations alleged by plaintiffs was actionable.
  • Eastern District Of New York Dismisses Proposed Securities Class Action Against Lithium Mining Company For Failure To Sufficiently Plead Scienter
     
    01/31/2024


    On January 19, 2024, Judge Orelia Merchant of the United States District Court for the Eastern District of New York dismissed a proposed securities class action against a lithium mining company (the “Company”) and certain of its officers and directors (the “Individual Defendants”) alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”). In re Piedmont Lithium Inc., Sec. Litig., 21-CV-4161 (OEM) (PK) (E.D.N.Y. Jan 18, 2024). Plaintiff alleged that the Company made misleading positive statements in connection with a North Carolina lithium mining project (the “Project”) and that the Individual Defendants subsequently sold Company stock prior to the release of a negative news article. The Court dismissed plaintiff’s claims, finding that plaintiff had failed to raise a strong inference of scienter.

    CATEGORIES : Exchange ActScienter
  • Northern District of California Dismisses Securities Class Action Against Software Company
     
    01/31/2024


    On January 22, 2024, Judge William H. Orrick of the United States District Court for the Northern District of California dismissed a putative class action complaint alleging that a software company (the “Company”) and certain of its executives violated Section 10(b) and 20(a) of the Securities Exchange Act of 1934. City of Hollywood Firefighters Pension Fund v. Atlassian Corp., 3:23-cv-00519-WHO (N.D. Cal. Jan. 22, 2024). Plaintiffs alleged that the Company made false and misleading statements about the strength of its financial outlook. The Court dismissed the complaint with leave to amend, holding that plaintiffs failed to allege falsity with respect to most of the alleged misrepresentations or sufficient facts giving rise to a strong inference of scienter with respect to one omission that was alleged plausibly.

  • Supreme Court Considers Whether An Item 303 Violation, Standing Alone, Can Support An Exchange Act Claim
     
    01/23/2024

    On January 16, 2024, the Supreme Court of the United States heard oral argument in Macquarie Infrastructure Corp. v. Moab Partners, No. 22-1165, a case considering whether a private plaintiff may plead a claim under Section 10(b) of the Securities Exchange Act based on an issuer’s failure to disclose a known trend or uncertainty required to be disclosed under Item 303 of Regulation S-K even without identifying a particular statement rendered misleading by the alleged omission.
  • Northern District Of California Dismisses Purported Securities Fraud Class Action Against Entertainment Streaming Company For Failure To Plead Falsity
     
    01/23/2024

    On January 5, 2024, Judge Jon S. Tigar of the United States District Court for the Northern District of California granted a motion to dismiss a proposed securities class action against an entertainment company that primarily operates a subscription-based streaming service, alleging that defendants made misrepresentations in public statements about the Company’s growth, customer retention, and challenges related to shared accounts in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder.  
    CATEGORIES : Exchange ActFalsity
  • Central District Of California Dismisses Putative Class Action Against Medical Apparel Company For Failure To Adequately Allege Scienter And Falsity
     
    01/23/2024


    On January 17, 2024, Judge Otis D. Wright, II of the United States District Court for the Central District of California dismissed a putative class action asserting claims under Section 10(b) of the Exchange Act and Sections 11 and 12(a)(2) of the Securities Act against a medical apparel company, certain of its officers, and the underwriters of its stock offerings.  Ryan v. FIGS, Inc., 2024 WL 187001 (C.D. Cal. Jan. 17, 2024). 

    CATEGORIES : Misstatement/OmissionScienter
  • District Of New Jersey Certifies Class Of Investors In Suit Against Healthcare Product Company
     
    01/09/2024


    On December 28, 2023, Judge Zahid N. Quraishi of the United States District Court for the District of New Jersey granted class certification in a securities fraud class action, alleging violations of Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) against a healthcare product company (the “Company”). Hall v. Johnson & Johnson, No. 18-1833 (ZNQ) (TJB) (D.N.J. Dec. 28, 2023). Specifically, plaintiff alleged that the Company inflated the value of its stock through false and misleading statements regarding the alleged contamination of the Company’s talc products. The Court certified the class after holding that plaintiff met the requirements of Rule 23(a) as well as the predominance and superiority requirements of Rule 23(b)(3).

    CATEGORY : Class Certification
  • Second Circuit Affirms Dismissal Of Putative Class Action Against Tobacco Company Alleging False Statements About Scientific Studies and Sales Outlook
     
    01/09/2024

    On December 26, 2023, the United States Court of Appeals for the Second Circuit affirmed a district court’s dismissal of a putative class action asserting claims against a tobacco company (the “Company”) under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”). In re Philip Morris Int’l Inc. Sec. Litig., No. 21-2546 (2d Cir. Dec. 26, 2023). Plaintiffs alleged that the Company made false or misleading statements regarding both the scientific studies it conducted in support of an application to the Food and Drug Administration (“FDA”) and the outlook for the Company’s sales growth in Japanese markets. The district court held that plaintiffs failed to adequately plead falsity or scienter, in a decision previously covered here. The Second Circuit affirmed the dismissal, holding that plaintiffs failed to adequately plead falsity. In its decision, the Court decided two questions of first impression in the Second Circuit. First, it held a securities fraud defendant’s statement that its scientific studies comply with a methodological standard that is published and internationally recognized, but stated in general and inherently subjective terms, is properly analyzed as a statement of opinion, rather than a statement of fact. Second, the Court held that, where a securities fraud defendant’s statement expresses an interpretation of scientific data that is ultimately endorsed by the FDA, such a statement is per se “[]reasonable” (i.e., supported by “meaningful inquiry”) as a matter of law.

    CATEGORIES : Exchange ActFalsity
  • Southern District Of New York Dismisses With Prejudice Claims Against Pharmaceutical Company Alleging Material Misstatements And Omissions In A Proxy Statement
     
    01/09/2024


    On December 28, 2023, Judge Jed S. Rakoff of the United States District Court for the Southern District of New York dismissed a putative class action alleging that a biopharmaceutical company (the “Company”) and certain of its officers and directors violated Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 and Rule 14a-9 based on alleged misstatements in a proxy statement (the “Proxy”) filed in connection with the acquisition of the Company by its controlling shareholder. Zappia v. Movant Scis. Ltd., No. 23-cv-8097 (JSR) (S.D.N.Y. Dec. 28, 2023). Plaintiff alleged that the law firm engaged by the Company’s special committee (the “Special Committee”) to consider the acquisition had a conflict of interest and that this rendered the Proxy misleading. The Court held that the complaint failed to allege the existence of a conflict or a misrepresentation.

  • Northern District Of California Pares Claims In Putative Class Action Regarding Purchase Of Social Media Platform
     
    12/19/2023


    On December 11, 2023, Judge Charles Breyer of the United States District Court for the Northern District of California narrowed a putative class action asserting claims under the Securities Exchange Act of 1934 against the purchaser of a social media company. Pampena v. Musk, — F. Supp. 3d — 2023 WL 8588853 (N.D. Cal. 2023). Plaintiffs alleged that they sold shares in the target company at depressed prices after the purchaser allegedly made material misstatements suggesting that he would not go forward with the acquisition. The Court held that certain of the challenged statements were actionable and granted leave to replead with respect to the others.

  • Southern District Of Florida Grants In Part And Denies In Part Motion To Dismiss Proposed Securities Class Action Against Electric Vehicle Charging Company
     
    12/13/2023

    On November 27, 2023, Judge Kathleen M. Williams of the United States District Court for the Southern District of Florida granted in part and denied in part a motion to dismiss a proposed securities class action alleging that an electric vehicle charging company and certain of its officers violated Section 10(b) and Section 20(a) of the Securities Exchange Act of 1934.  Bush v. Blink Charging Co., No. 1:20-cv-23527-KMW (S.D. Fla. Nov. 27, 2023).  Plaintiffs allege that the Company made false and misleading statements and omissions concerning the size and functionality of the Company’s electric vehicle (“EV”) charging station network.  The Court dismissed plaintiffs’ claim as to the size of the EV charging station network, but permitted plaintiffs’ claim regarding its functionality.
  • Southern District Of New York Grants Motion To Dismiss Putative Securities Class Action Against Chinese Private-Sector Education Company
     
    12/13/2023

    On December 6, 2023, Judge John G. Koeltl of the U.S. District Court for the Southern District of New York granted a motion to dismiss a putative securities class action brought against an operator of private schools in Western China.  Dagan Invs., LLC v. First High-Sch. Educ. Grp. Co., 2023 BL 442686, No. 22-cv-3831 (S.D.N.Y. Dec. 6, 2023).  Plaintiff, on behalf of a purported class of U.S. investors, alleged that the Company violated Sections 11, 12(a)(2), and 15 of the Securities Act of 1933 by making material misstatements and omissions about the likelihood and severity of impending Chinese government regulations impacting the private education sector.
  • Ninth Circuit Affirms In Part And Reverses In Part Decision Dismissing Section 16(b) Complaint
     
    11/21/2023

    On November 16, 2023, the United States Court of Appeals for the Ninth Circuit affirmed in part and reversed in part a motion to dismiss a derivative action brought by a shareholder of a publicly traded biotechnology company (the “Company”) under Section 16(b) of the Securities Exchange Act of 1934 against the Company, its beneficial owner (the “Beneficial Owner”), one of the Company’s directors (the “Director Defendant”) and his wife, and their trust (the “Trust”).  Andrew E. Roth v. Foris Ventures LLC, et al., 22-16632 (9th Cir. Nov. 13, 2023).
  • Eastern District Of New York Grants Motion To Dismiss Proposed Securities Class Action Against Russian Electronic Payments Company
     
    11/14/2023

    On November 3, 2023, Judge Rachel P. Kovner of the United States District Court for the Eastern District of New York granted a motion to dismiss a proposed putative securities class action alleging that a Russian electronic payments company (the “Company”) and certain of its officers violated Section 10(b) and Section 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”).  In re Qiwi PLC Sec. Litig., No. 1:20-cv-06054-RPK-CLP (E.D.N.Y. Nov. 3, 2023).
  • Southern District Of New York Grants In Part And Denies In Part Motion To Dismiss Securities Class Action Against Chinese Grocery Delivery Company
     
    11/14/2023

    On November 6, 2023, Judge Jed S. Rakoff of the United States District Court for the Southern District of New York granted in part and denied in part a motion to dismiss a putative securities class action alleging that a Chinese grocery delivery company (the “Company”) violated Sections 11, 12(a), and 15 of the Securities Act of 1933 (the “Securities Act”).  Chen v. Missfresh Ltd., 1:22-cv-09836 (JSR) (S.D.N.Y. Nov. 6, 2023).
  • New York Appellate Court Holds That PSLRA Discovery Stay Applies To Securities Act Actions Initiated In New York State Court
     
    11/07/2023

    On November 2, 2023, the New York Appellate Division, First Department, held that the automatic discovery stay in the Private Securities Litigation Reform Act (“PSLRA”) applies to actions brought in New York state court during the pendency of a motion to dismiss, although not during any interlocutory appeal from the denial of such a motion.  Camelot Event Driven Fund v. Morgan Stanley & Co., —N.Y.S.3d—, 2023 WL 7198938 (1st Dep’t Nov. 2, 2023).  Prior to this ruling, New York state trial courts had divided on the question of whether the PSLRA stay applies only to actions filed in federal court or also to actions filed in state court.  This decision resolves that split within the First Department, which includes New York County.
    CATEGORY : Discovery
  • Ninth Circuit Dismisses For Lack Of Jurisdiction Non-Lead Plaintiff’s Appeal From The Dismissal Of A Putative Class Action Against Medical Device Company
     
    11/01/2023

    On October 11, 2023, a divided panel of the United States Court of Appeals for the Ninth Circuit dismissed for lack of standing an appeal from the dismissal of a putative class action asserting claims under the Securities Exchange Act of 1934 against a medical device company and its former CEO.  Habelt v. iRhythm Technologies, Inc., —F.4th—, 2023 WL 6614359 (9th Cir. 2023).  Lead plaintiff alleged that the Company made misrepresentations regarding the regulatory process prior to the company receiving a historically low Medicare reimbursement rate for one of its products.  After the district court granted defendants’ motion to dismiss, lead plaintiff declined to appeal.
    CATEGORY : Standing
  • First Circuit Partially Revives Putative Class Action Against Pharmaceutical Company Alleging Misstatements About Clinical Trial Data
     
    11/01/2023

    On October 11, 2023, the United States Court of Appeals for the First Circuit affirmed in part and reversed in part the dismissal of a putative class action asserting claims under the Securities Exchange Act of 1934 against a pharmaceutical company and certain of its former executives.  Shash v. Biogen, Inc., —F.4th—, 2023 WL 6617278 (1st Cir. 2023).  Plaintiffs alleged that the company made misstatements and omissions regarding the clinical trial results of the company’s drug to treat Alzheimer’s.  The district court granted defendants’ motion to dismiss, but the First Circuit reversed the dismissal in part, holding that plaintiffs’ allegations were sufficient with respect to one challenged statement, while affirming that plaintiffs failed to adequately allege scienter with respect to other challenged statements.
  • Eastern District Of New York Grants Motion To Dismiss Proposed Securities Class Action Complaint Against Battery Recycling Company That Went Public Through A Merger With A SPAC
     
    11/01/2023

    On October 6, 2023, Judge Hector Gonzalez of the United States District Court for the Eastern District of New York granted a motion to dismiss a putative securities class action against a battery recycling company and the former officers and directors of the SPAC that merged with the Company in 2021, alleging violations of Sections 11 and 15 of the Securities Act of 1933 and Section 14(a) the Securities Exchange Act of 1934.  Lanigan Grp., Inc. v. Li-Cycle Holdings Corp., 22-cv-02222 (HG) (RML) (E.D.N.Y. Oct. 6, 2023).
  • Southern District Of New York Denies In Part And Grants In Part Motion To Dismiss Securities Class Action Against Social Media Company Owner
     
    10/11/2023

    On September 29, 2023, Judge Andrew L. Carter, Jr. of the United States District Court for the Southern District of New York denied in part and granted in part a motion to dismiss a putative securities class action against the owner of a social media company and his beneficial trust.  Oklahoma Firefighters Pension and Retirement System v. Musk, No. 22-cv-03026 (ALC) (S.D.N.Y. Sept. 29, 2023).  Plaintiff alleged that defendants violated Sections 10(b), 20A, and 20(a) of the Securities and Exchange Act of 1934 by allegedly concealing the owner’s ownership interests in the Company to investors who sold shares of the Company between March 25, 2022, and April 4, 2022, the putative class period.
  • Northern District Of California Grants Motion To Dismiss Amended Securities Class Action Complaint Against Hearing Aid Company
     
    10/11/2023

    On August 31, 2023, Judge Charles R. Breyer of the United States District Court for the Northern District of California granted a motion to dismiss a putative securities class action alleging that a hearing aid company, its officers, directors and underwriters, violated Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934.  In re Eargo, Inc. Sec. Litig., No. 21-cv-08597 (N.D. Cal. Aug. 31, 2023).  Plaintiffs alleged that the Company misrepresented the Company’s revenue and growth opportunities in its offering materials and allegedly downplayed an audit that allegedly led to a Department of Justice investigation in later SEC filings and public statements.
  • Northern District Of Illinois Narrows Putative Class Action Against Airplane Manufacturer
     
    10/11/2023

    On September 18, 2023, Judge Manish S. Shah of the United States District Court for the Northern District of Illinois narrowed a putative class action asserting claims under the Securities Exchange Act of 1934 against an airplane manufacturer and its former CEO and CFO.  College Ret. Equities Fund v. Boeing Co., 2023 WL 6065260 (N.D. Ill. Sept. 18, 2023).  Plaintiffs alleged the company made misrepresentations regarding two crashes of a new model of plane and the company’s responsive measures in an effort to return the fleet to service.  The Court held that various challenged statements were not actionable because plaintiffs failed to adequately allege falsity or scienter.  With respect to the remaining challenged statements, the Court further pared the claims by holding that loss causation was not sufficiently alleged in connection with certain purported corrective disclosures.
  • Eastern District Of New York Sustains Securities Act Claims And Dismisses Exchange Act Claims In A Putative Class Action Against An International Portfolio Management Company
     
    10/11/2023

    On September 25, 2023, Judge Pamela K. Chen of the United States District Court for the Eastern District of New York granted in part and denied in part a motion to dismiss a putative securities class action alleging that an IT portfolio management services company, its CEO, and its CFO violated Sections 11 and 15 of the Securities Act of 1933 and Sections 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934.  Handal v. Tenet Fintech Grp. Inc., No. 1:21-cv-06461 (PKC) (RER) (E.D.N.Y. Sept. 25, 2023).  Plaintiffs alleged that defendants made material misstatements regarding several business transactions in the Company’s registration statement and the CEO’s subsequent public statements.  The Court denied the motion with respect to the Securities Act claims but granted it with respect to the Exchange Act claim because plaintiffs failed to adequately allege reliance.
  • Southern District Of New York Dismisses Proposed Securities Class Action Complaint Against Drug Manufacturer For Failure To Plead Loss Causation
     
    10/11/2023

    On September 25, 2023, Judge Lorna Schofield of the United States District Court for the Southern District of New York granted a motion to dismiss a proposed class action against a biopharmaceutical company alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934.  Gru v. Axsome Therapeutics, Inc., No. 22 CIV. 3925 (LGS), 2023 WL 6214581 (S.D.N.Y. Sept. 25, 2023).  Plaintiff alleged that the Company omitted details concerning its migraine drug development in its Form 10-Q, 10-K and 8-K filings with the SEC and in statements made during conference calls with investors and analysts.  Plaintiff further alleged that the Company’s statements discussing the timing and prospect of FDA approval of its new migraine drug were false or misleading as a result of these alleged omissions.  The Court dismissed the complaint, finding that plaintiffs failed to plead loss causation.
    CATEGORIES : Exchange ActLoss Causation
  • Southern District Of New York Grants Motion For Reconsideration And Motion To Dismiss Class Action Against Pharmaceutical And Cannabis Company
     
    09/06/2023

    On August 21, 2023, Judge Paul A. Crotty of the United States District Court for the Southern District of New York granted a motion for reconsideration of his denial of an earlier motion to dismiss a putative securities class action against a pharmaceutical and cannabis company that sells cannabis, hemp, and related products (the “Company”) and certain of its officers (the “Individual Defendants”).  Kasilingam et al. v. Tilray Inc., et al., No. 1:20-cv-03459 (S.D.N.Y. Aug. 21, 2023).  Based on the Court’s reconsidered analysis, the Court granted defendants’ second motion to dismiss.  Plaintiffs alleged that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 10b-5 thereunder by making false and misleading statements to inflate the Company’s stock price.
    CATEGORIES : Exchange ActFalsityScienter
  • District Of New Jersey Dismisses Securities Fraud Claims Against Blockchain Support Company With Prejudice After Twice Granting Leave To Amend
     
    09/06/2023

    On August 25, 2023, Judge Georgette Castner of the United States District Court for the District of New Jersey dismissed with prejudice a putative class action asserting claims under the Securities Exchange Act against a company that supports and operates blockchain technologies and certain of its executives and investors.  Takata v. Riot Blockchain, Inc., No. 18-cv-2293, slip op. (D.N.J. Aug. 25, 2023), ECF No. 251.  The Court’s prior decision dismissing the action with leave to amend was the subject of our prior post.  As this was plaintiff’s third amended complaint and the Court determined that plaintiff still failed to adequately allege misrepresentations or scienter, the Court dismissed the action with prejudice.
    CATEGORIES : Misstatement/OmissionScheme
  • Southern District Of New York Dismisses Claims Against Cryptocurrency Platform Seeking To Hold It Liable Under The Securities Laws For Alleged Fraudulent Transactions On Its Platform
     
    09/06/2023

    On August 29, 2023, Judge Katherine Polk Failla of the United States District Court for the Southern District of New York dismissed with prejudice a putative class action against a decentralized cryptocurrency trading platform and certain of its investors under Section 12(a)(1) of the Securities Act and Section 29(b) of the Securities Exchange Act.  Risley v. Universal Navigation Inc., 2023 WL 5609200 (S.D.N.Y. Aug. 29, 2023).  Plaintiffs alleged that they purchased fraudulent cryptocurrency tokens on the exchange.  The Court held, assuming but not deciding that the tokens were securities, that plaintiffs failed to state a claim for rescission.
  • Split Tenth Circuit Affirms Dismissal Of Exchange Act Claims Against Aerostructures Manufacturing Company And Its Executives, Finding Plaintiffs Did Not Adequately Plead Scienter
     
    09/06/2023

    On August 21, 2023, the United States Court of Appeals for the Tenth Circuit affirmed dismissal of a consolidated putative class action alleging violations of Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”), and Rule 10b-5 promulgated thereunder, against a large aerostructures manufacturing company (the “Company”) and certain of its executives.  Meitav Dash Provident Funds and Pension Ltd., et al. v. Spirit AeroSystems Holdings, et al., No. 22-5013 (10th Cir. Aug. 21, 2023).  The Northern District of Oklahoma dismissed plaintiffs’ complaint, holding that plaintiffs failed to adequately plead scienter.  In a split decision, the Tenth Circuit affirmed.
    CATEGORIES : Exchange ActScienter
  • Second Circuit Affirms In Part And Vacates In Part Decision Dismissing Securities Class Action Against Insurance Company, Its Officers, Directors, Underwriters, And Outside Auditor
     
    09/06/2023

    On August 23, 2023, the United States Court of Appeals for the Second Circuit affirmed in part and vacated in part an order dismissing a putative securities class action against a property and casualty insurer (the “Company”), various corporate officers and board members of the Company, the Company’s outside auditor, and multiple underwriters of the Company’s sale of securities.  New England Carpenters Guaranteed Annuity and Pension Funds, et al. v. AmTrust Financial Services Inc., et al., 20-1643 (Aug. 23, 2023).  In vacating the district court’s dismissal in part, the Second Circuit held that in light of its more recent precedent, certain alleged misstatements of opinion were actionable as alleged in the complaint, and therefore reversed the district court’s dismissal of claims related to those alleged misstatements, but otherwise affirmed the district court’s decision dismissing the remaining claims.
  • Second Circuit Affirms District Court’s Decision Determining That Term Loan Notes Were Not “Securities” Subject To Securities Laws And Regulations
     
    09/06/2023

    On August 24, 2023, the United States Court of Appeals for the Second Circuit affirmed a decision by the United States District Court for the Southern District of New York dismissing claims brought under state securities laws against a group of banks which acted as arrangers (“Defendants” or the “Arrangers”) for a term loan on behalf of a California-based medical testing company (the “Company”), holding that term loan “notes” issued as part of a syndicated loan were not “securities” subject to securities laws and regulations.  Kirschner v. JP Morgan Chase Bank, N.A., et al., 21-2726-cv (2d Cir. Aug. 24, 2023).  The Second Circuit also affirmed that the district court had jurisdiction pursuant to the Edge Act.
  • Ninth Circuit Revives Putative Class Action Against Computer Graphics Hardware Producer, Holding That Misleading Statements And Scienter Were Adequately Alleged
     
    09/06/2023

    On August 25, 2023, a sharply divided panel of the United States Court of Appeals for the Ninth Circuit affirmed in part and reversed in part the dismissal of a putative class action asserting claims under the Securities Exchange Act against a producer of graphics processing units and certain of its executives.  E. Ohman J:or Fonder AB v. NVIDIA Corp., —F.4th—, 2023 WL 5496507 (9th Cir. 2023).  As discussed in our prior post, plaintiffs alleged that the company made misrepresentations regarding the extent to which its revenues and growth depended on sales of graphics processing units to the volatile cryptocurrency mining industry.  The Ninth Circuit held that plaintiffs adequately alleged that statements by two executives were misleading, and adequately alleged scienter as to the company’s CEO.
  • Southern District Of New York Grants In Part And Denies In Part Motion To Dismiss Class Action Against Cryptocurrency Mining Company
     
    08/22/2023

    On August 10, 2023, Judge Ronnie Abrams of the United States District Court for the Southern District of New York granted in part and denied in part a motion to dismiss a putative securities class action alleging that a cryptocurrency mining company (the “Company”) and certain of its officers and directors violated Sections 11, 12(a)(2), and 15 of the Securities Act of 1933 (the “Securities Act”).  Winter v. Stronghold Digital Mining, Inc., No. 22-CV-3088 (RA), 2023 WL 5152177 (S.D.N.Y. Aug. 10, 2023).  Plaintiffs allege that the Company made false and misleading statements in its registration statement and prospectus filed in connection with the Company’s October 2021 initial public offering (“IPO”) regarding the Company’s supply chain risks.  The Court granted the motion to dismiss the Section 12(a)(2) claim of one plaintiff for lack of standing, but otherwise denied the motion to dismiss.
  • Eleventh Circuit Affirms Dismissal Of Putative Class Action Against Direct-To-Consumer Marketing Company For Failure To Adequately Allege Scienter Or Scheme Liability
     
    08/16/2023

    On August 8, 2023, the United States Court of Appeals for the Eleventh Circuit affirmed the dismissal of a putative class action asserting claims under the Securities Exchange Act of 1934 against a direct-to-consumer marketing company and certain of its officers.  In re Tupperware Brands Corp. Sec. Litig., 2023 WL 5091802 (11th Cir. Aug. 8, 2023).  Plaintiff alleged that the company misrepresented its financial performance as a result of a fraudulent sales scheme orchestrated at the company’s subsidiary.  The Eleventh Circuit affirmed the lower court’s dismissal of plaintiff’s third amended complaint with prejudice, holding that plaintiff failed to allege scienter on the part of the makers of the challenged statements and failed to allege scheme liability.
    CATEGORIES : SchemeScienter
  • Second Circuit Decertifies Class In Long-Running Putative Class Action, Holding That Defendants Rebutted Presumption Of Reliance
     
    08/16/2023

    On August 10, 2023, the United States Court of Appeals for the Second Circuit reversed the district court’s class certification order in a putative class action asserting claims under Section 10(b) of the Securities Exchange Act of 1934 against a global financial institution and certain of its officers.  Ark. Tchr. Ret. Sys. v. Goldman Sachs Grp., Inc.,—F.4th—, 2023 WL 5112157 (2d Cir. Aug. 10, 2023) (“ATRS III”).  This long-running litigation has been the subject of prior posts in this newsletter in 2018, 2020, and three times in 2021 (wherein we assessed decisions by the U.S. Supreme Court, the Second Circuit, and the district court).
    CATEGORY : Class Certification
  • New York District Court Denies In Part And Grants In Part Motion To Dismiss Class Action Against Agriculture Company
     
    08/08/2023

    On July 21, 2023, Judge Lewis J. Liman of the United States District Court for the Southern District of New York granted in part and denied in part a motion to dismiss a putative securities class action alleging that an agriculture company (the “Company”) and certain of its officers (the “Individual Defendants”) violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 10b-5 thereunder.  In Re Appharvest Sec. Litig., No. 21-cv-7985 (LJL), 2023 BL 261952 (S.D.N.Y. July 31, 2023).  Plaintiffs alleged that defendants made misleading statements about the impact of the Covid-19 pandemic on quality control, training, yield, and employee attrition at the Company’s main plant.
    CATEGORIES : Exchange ActFalsityScienter
  • District Of Massachusetts Denies Motion To Dismiss Claims Based On Statements That A Lawsuit Against The Company Was “Without Merit”
     
    08/01/2023

    On July 24, 2023, Judge William G. Young of the United States District Court for the District of Massachusetts granted in part, and denied in part, a motion to dismiss a putative class action brought against a software company (the “Company”) and two of its executives for violations of Sections 10(b) and 20(A) of the Securities Exchange Act of 1934.  City of Fort Lauderdale Police & Firefighters’ Ret. Sys. V. Pegasystems Inc., No. CV 22-11220-WGY, 2023 WL 4706741 (D. Mass. July 24, 2023). The class action followed a decision in a separate civil trade secret case in which the Company was found to have maliciously misappropriated another software company’s trade secrets in violation of Virginia law.
  • District Of Minnesota Dismisses Exchange Act Claims Against Mattress Company With Prejudice, Finding Investors Failed To Adequately Plead Falsity And Scienter
     
    08/01/2023

    On July 10, 2023, Chief Judge Patrick J. Schiltz of the United States District Court for the District of Minnesota granted a motion to dismiss a putative securities fraud class action against a mattress and bedding company (the “Company”) and two of its executives.  Steamfitters Local 449 Pension & Retirement Securities Funds v. Sleep Number Corp., et al, No. 21-CV-2669 (PJS/DTS) (D. Minn. July 10, 2010).  Plaintiffs alleged that defendants violated Section 10(b) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 10b-5 promulgated thereunder by making material misstatements and omissions regarding an alleged disruption to the Company’s supply chain after a natural disaster that forced certain of the Company’s distributors to temporarily shut down.  The Court dismissed the amended complaint with prejudice, holding that plaintiffs failed to adequately plead falsity and scienter.
  • Eleventh Circuit Affirms Dismissal Of Exchange Act Claims Against Biomedical Company, Finding Plaintiffs Did Not Adequately Plead Loss Causation
     
    08/01/2023

    On July 10, 2023, the United States Court of Appeals for the Eleventh Circuit affirmed the dismissal of a consolidated putative class action alleging violations of Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 10b-5 promulgated thereunder, against a biomedical company (the “Company”), certain of its executives, and its former auditor.  Carpenters Pension Fund of Ill. v. MiMedx Group, Inc., No. 22-10633 (11th Cir. July 10, 2023).  The United States District Court for the Northern District of Georgia dismissed plaintiff’s second amended complaint (“SAC”), holding that plaintiff lacked standing to bring the claim and further holding that plaintiff failed to plead loss causation.  While the Eleventh Circuit determined that the district court erred in holding that plaintiff lacked standing, it affirmed the district court’s holding that plaintiff failed to sufficiently plead loss causation.
  • Tenth Circuit Reverses Dismissal Of Putative Class Action, Holding That Statute Of Repose Did Not Bar Filing Of Second Amended Complaint
     
    08/01/2023

    On July 13, 2023, the United States Court of Appeals for the Tenth Circuit reversed the dismissal of a putative class action asserting claims against a poultry producer and certain of its officers under Section 10(b) of the Securities Exchange Act of 1934.  Hogan v. Pilgrim’s Pride Corp., —F.4th—, 2023 WL 4508545 (10th Cir. 2023).  Plaintiff alleged that the company made misrepresentations regarding its financial results, business operations, and a purported price-fixing scheme.  The district court dismissed plaintiff’s second amended complaint as barred by the Exchange Act’s statute of repose, but the Tenth Circuit reversed, holding that the statute of repose did not apply.
  • Southern District Of New York Denies Food Delivery Company’s Motion To Dismiss Securities Class Action
     
    08/01/2023

    On July 25, 2023, Judge Jed S. Rakoff of the United States District Court for the Southern District of New York denied a motion to dismiss a putative securities class action against an online food ordering and delivery platform (the “Company”), alleging violations of Section 10(b) and 20(a) of the Securities Exchange Act of 1934.  Steamship Trade Ass’n of Baltimore-Int’l Longshoreman’s Ass’n Pension Fund v. Olo Inc., No. 22-CV-8228 (JSR), 2023 WL 4744197 (S.D.N.Y. July 25, 2023).  Plaintiff alleged that the Company and two of its officers misled investors by (1) failing to disclose that one of its restaurant partners intended to terminate its partnership with the Company; and (2) misrepresenting the number of “active” restaurant locations that utilized the Company’s product.
  • Fourth Circuit Affirms Dismissal Of Putative Class Action Against Biopharmaceutical Company For Failure To Allege Scienter And Materiality
     
    08/01/2023

    On July 24, 2023, the United States Court of Appeals for the Fourth Circuit affirmed the dismissal of claims under Sections 10(b), 14(a), and 20(a) of the Securities Exchange Act of 1934 against a biopharmaceutical company (the “Company”) and certain of its officers and directors.  San Antonio Fire & Police Pension Fund v. Syneos Health Inc., 2023 WL 4688178 (4th Cir. 2023).  Plaintiffs alleged that the Company misled investors about its projected growth following its merger with another company.  The Fourth Circuit held that plaintiffs failed to adequately allege scienter, and that they also failed to allege that the alleged misstatements were material, stating that “not every financial disappointment is actionable under federal law.”
    CATEGORIES : Exchange ActMaterialityScienter
  • Central District Of California Allows Securities Fraud Claims To Proceed Against Electric Automobile Company
     
    07/11/2023

    On July 3, 2023, Judge Josephine L. Staton of the United States District Court for the Central District of California denied a motion to dismiss a putative class action against an electric automobile company (the “Company”), alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (“Exchange Act”), Sections 11, 12(a)(2), and 15 of the Securities Exchange Act of 1933 (“Securities Act”), and Regulation S-K.  Crews v. Rivian Auto., Inc., No. 2:22-CV-01524-JLS-E, 2023 WL 4361098 (C.D. Cal. July 3, 2023).  We previously covered the Court’s decision dismissing plaintiffs’ initial complaint without prejudice.  In their amended complaint, plaintiffs alleged that the company made various misleading statements relating to the pricing and profitability of its vehicles despite knowing for several years prior to the Company’s 2021 IPO that it would need to increase pricing to address higher-than-anticipated costs for materials needed for production.  The Court held that plaintiffs’ amended complaint sufficiently alleged actionable misrepresentations and raised a plausible inference of scienter.
    CATEGORIES : FalsityScienter
  • District Of New Jersey Allows Securities Fraud Claim To Proceed Against Outside Accounting Firm, Finding Plaintiff Sufficiently Alleged Scienter
     
    07/06/2023

    On June 15, 2023, Judge Michael A. Shipp of the United States District Court for the District of New Jersey, in an unpublished opinion, adopted a Special Master’s Report and Recommendation denying a motion to dismiss claims under Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”), and Rule 10b-5 promulgated thereunder, against an accounting firm (the “Firm”) in connection with an audit report it issued for a pharmaceutical company’s (the “Company”) financial statements in connection with the Company’s public offering.  In re Valeant Pharmaceuticals Intl., Inc. Securities Litigation, No. 15-7658 (MAS) (LHG) (D.N.J. June 15, 2023).  We previously covered the district court’s decision denying a motion for judgment on the pleadings in this action, as well as the district court’s decision denying a motion to dismiss by other defendants in the action.
    CATEGORIES : Exchange ActScienter
  • Supreme Court Holds That State Statute Requiring Out-Of-State Companies To Consent To General Personal Jurisdiction As A Condition Of Doing Business Does Not Violate Due Process
     
    07/06/2023

    On June 27, 2023, the Supreme Court of the United States held 5-4 that a Pennsylvania statute requiring an out-of-state company to submit to general personal jurisdiction within the Commonwealth when registering to do business there did not violate the Due Process Clause of the Fourteenth Amendment.  Mallory v. Norfolk S. Ry. Co.,—U.S.—, 2023 WL 4187749 (2023).  The Court left open, however, whether Pennsylvania’s statute might violate the dormant Commerce Clause doctrine, a question which will likely be considered by the Pennsylvania Supreme Court on remand.
  • Third Circuit Reverses In Part Dismissal Of Putative Class Action Against Insurance Company And Holds That The Complaint Adequately Alleged Falsity With Respect To One Of The Challenged Statements Based On Confidential Witness Allegations
     
    06/21/2023

    On June 13, 2023, the United States Court of Appeals for the Third Circuit affirmed in part and reversed in part the dismissal of a putative class action against an insurance company (the “Company”) and certain of its executives under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934.  City of Warren Police & Fire Ret. Sys. v. Prudential Fin., Inc., No. 21-1147, 2023 WL 3961128 (3d Cir. June 13, 2023).  Plaintiffs alleged that the Company misled investors by misrepresenting the adequacy of their reserves, which are funds to pay for anticipated benefit claims by their policy holders.  The district court had held that plaintiffs failed to plead falsity with respect to all the alleged misstatements.  The Third Circuit affirmed the dismissal on all but one of the alleged misstatements, holding that plaintiffs adequately alleged falsity with respect to that statement including through allegations attributed to a confidential informant, and remanded to the district court to consider the elements of loss causation and scienter.
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