May 14, 2010

Faulty Pleading

Two items about inaccurate complaints in securities class actions.

(1) The Harvard Law School Forum on Corporate Governance and Financial Regulation has a post on a recent Second Circuit decision concerning confidential witnesses. In Campo v. Sears Holdings Corp., 2010 WL 1292329 (2d Cir. Apr. 6, 2010) (summary order), the district court permitted the defendants, as part of the motion to dismiss, to depose the plaintiffs' confidential witnesses to determine if they had made the statements attributed to them in the complaint. On appeal, the Second Circuit approved of the district court's use of the deposition testimony, in which the witnesses disowned or contradicted many of their alleged statements.

Quote of note (opinion): "The anonymity of the sources of plaintiffs’ factual allegations concerning scienter frustrates the requirement, announced in Tellabs, [Inc. v. Makor Issues and Rights, Ltd., 551 U.S. 308, 314 (2007),] that a court weigh competing inferences to determine whether a complaint gives rise to an inference of scienter that is 'cogent and at least as compelling as any opposing inference of nonfraudulent intent.' . . . Because Fed. R. Civ. P. 11 requires that there be a good faith basis for the factual and legal contentions contained in a pleading, the district court’s use of the confidential witnesses’ testimony to test the good faith basis of plaintiffs’ compliance with Tellabs was permissible."

(2) The New York Law Journal has an article on a recent sanctions decision. In the Australia and New Zealand Banking Group case, a key scienter allegation concerned a set of internal e-mails that supposedly were sent in March 2007. The consolidated complaint dropped the allegation and, upon later examination by the court, plaintiffs' counsel admitted that the March 2007 date had been based on a misreading of a news article about the company. Judge Cote (S.D.N.Y.) found that the allegation "was not an isolated misstatement concerning a collateral or trivial fact, but rather, a material allegation central to the viability of the entire pleading" and ordered plaintiffs' counsel to pay sanctions.

Quote of note (opinion): "Such indifference to the truth of the pleading's single most important factual allegation -- coming, ironically, in the context of initiating a lawsuit that accuses another party of making reckless misstatements of material fact -- is the sort of conduct that Rule 11 and the PSLRA seek to deter."

Posted by Lyle Roberts at May 14, 2010 11:49 PM | TrackBack
Email this entry to:


Your email address:


Message (optional):