April 28, 2010

Merck Decided

In the Merck case, a unanimous U.S. Supreme Court (with two concurrences) has found that the investors' securities fraud claims are not barred by the statute of limitations. In making that determination, however, the Court has significantly changed the relevant legal landscape.

The statute of limitations for private federal securities fraud claims provides that a case "may be brought not later than the earlier of (1) 2 years after the discovery of the facts constituting the violation; or (2) 5 years after such violation." Under the "discovery" clause, courts frequently have found that the statute of limitations begins to run once a plaintiff is on "inquiry notice" of the possibility (or probability) that a fraud has occurred. At issue in the Merck case was whether, as held by the Third Circuit, a plaintiff needs evidence of scienter (i.e., fraudulent intent) before inquiry notice is triggered.

As a threshold matter, the Court found that the statutory words could be read "as referring to the time a plaintiff actually discovered the relevant facts." Nevertheless, based on longstanding judicial precedent, "'discovery' as used in this statute encompasses not only those facts the plaintiff actually knew, but also those facts a reasonably diligent plaintiff would have known." The facts that must be known to the plaintiff, however, are the "facts constituting the violation." Scienter, as "an important and necessary element" of a securities fraud claim, clearly meets this definition. A plaintiff therefore must have discovered (or have been able to discover) scienter-related facts before the statute of limitations begins to run.

The Court rejected the "inquiry notice" standard, however, as inconsistent with the "discovery" rule. To the extent that the term "'inquiry notice' refers to the point where the facts would lead a reasonably diligent plaintiff to investigate further, that point is not necessarily the point at which the plaintiff would already have discovered facts showing scienter or 'other facts constituting the violation.'" In sum, the "discovery" limitations period "begins to run once the plaintiff did discover or a reasonably diligent plaintiff would have 'discover[ed] the facts constituting the violation' -- whichever comes first." The Court concluded that whether the plaintiff was on "inquiry notice" or failed to undertake "a reasonably diligent investigation" is not relevant to the analysis.

Turning to the case at hand, the Court agreed with the Third Circuit that the publicly-available information related to Merck's alleged fraud did not reveal facts indicating scienter. Therefore, the statute of limitations was not triggered more than two years before the filing of the complaint and the plaintiffs' suit was timely.

Holding: Judgment affirmed.

Notes on the Decision

(1) The Court is vague - perhaps deliberately so - on the question of exactly what quantum of evidence concerning scienter is sufficient to constitute discovery of the necessary facts. In various spots, the decision refers to "facts showing scienter" and "facts indicating scienter," but then also notes that the PSLRA requires a plaintiff to plead facts demonstrating a "strong inference" of scienter.

(2) The Court declined to decide whether there are other facts necessary to support a private securities fraud claim, beyond "facts showing scienter," that a plaintiff must have discovered (or have been able to discover) to trigger the running of the statute of limitations. Are facts concerning a plaintiffs' reliance or loss causation among the facts that constitute "the violation"?

(3) For defense counsel who are concerned about the Court's rejection of the inquiry notice standard, there may be some cold comfort in the fact that the decision could have been even more aggressive. Justice Scalia's concurrence (joined by Justice Thomas) argues that under a proper reading of the statute the limitations period should only start upon the plaintiffs' "actual discovery" of the facts constituting the violation.

Posted by Lyle Roberts at April 28, 2010 12:18 AM | TrackBack
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