Articles Posted in Securities Law

In 7 U.S.C. 13(a)(4), a provision within the Commodity Exchange Act, "willfully" must have the traditional meaning ascribed to the term in the context of criminal prohibitions against fraud: intentionally undertaking an act that one knows to be wrongful. This appeal arose from a civil enforcement action brought by the Commission against defendant, the co-founder of the Paron investment firm. The Ninth Circuit affirmed the district court's grant of summary judgment to the Commission and, after applying the correct meaning of "willfully," held that there were no genuine issues of material fact as to whether defendant acted willfully when he made three separate false statements to the National Futures Association (NFA) during its investigation of Paron. The panel also held that the district court properly awarded restitution. However, the court vacated in part the district court's order issuing a permanent injunction against defendant and remanded for further explanation as to certain parts of the permanent injunction. View "U.S. Commodity Futures Trading Commission v. Crombie" on Justia Law

The Ninth Circuit affirmed the district court's grant of summary judgment for the SEC on its claims that defendant violated federal securities laws. Having considered the records in the criminal and civil proceedings in light of the relevant Restatement factors, the panel held that defendant's conviction determined the identical issues the SEC was required to prove to establish defendant's liability for securities fraud. Therefore, the district court did not err in entering summary judgment based on the preclusive effect of defendant's conviction. The panel rejected defendant's arguments to the contrary, and all pending motions were denied as moot. View "Securities and Exchange Commission v. Stein" on Justia Law

The Ninth Circuit affirmed the district court's holding that the general partnership interests at issue qualified as securities under federal law and that defendant violated federal securities law by selling unregistered securities and defrauding his investors. In this case, the general partnership interests at issue were stripped of the hallmarks of a general partnership and marketed as passive investments. The panel held that, in light of defendant's death during the pendency of the appeal and the executor replaced as the name party, as well as intervening Supreme Court precedent, several aspects of the district court's judgment require vacatur and remand. Therefore, the panel vacated the civil penalty order and the disgorgement order, remanding for further proceedings. View "USSEC v. Schooler" on Justia Law

The Securities Litigation Uniform Standards Act (SLUSA) barred a plaintiff class from bringing a covered class action based on state law claims alleging that the defendants made a misrepresentation or omission or employed any manipulative or deceptive device in connection with the purchase or sale of a covered security. The panel held, in this case, that SLUSA precluded all of Northstar's claims against Schwab and that the district court correctly dismissed them. However, the panel held that the district court erred in dismissing the claims with prejudice. View "Northstar Financial Advisors v. Schwab Investments" on Justia Law

Under Federal Rule of Evidence 201, a court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment, but a court cannot take judicial notice of disputed facts contained in such public records. The incorporation-by-reference doctrine prevents plaintiffs from selecting only portions of documents that support their claims, while omitting portions of those very documents that weaken or doom their claims. The Ninth Circuit addressed and clarified when and how the district court should consider materials extraneous to the pleadings at the motion to dismiss stage via judicial notice and the incorporation-by-reference doctrine. In this case, plaintiffs appealed the district court's dismissal of an action under the Securities Exchange Act of 1934. The panel held that the district court erred in part by judicially noticing some facts, but properly took notice of the date of Orexigen's international patent application for Contrave. Therefore, the panel reversed and remanded for clarification on Exhibit D, reversed the district court's judicial notice of Exhibit E, and affirmed the judicial notice of Exhibit V. The panel also that the district court abused its discretion by incorporating certain documents into the complaint and properly incorporated others. The panel reversed the district court's incorporation-by-reference of Exhibits B, C, F, H, R, S, and U, and affirmed the incorporation of Exhibits A, I K, L, N, O, P, and T. The panel affirmed in part, reversed in part, and remanded as to the remaining claims. View "Khoja v. Orexigen Therapeutics, Inc." on Justia Law

The Ninth Circuit reversed the dismissal of an action brought by purchasers of American Depository Shares (ADRs) or Receipts, alleging violations of sections 10(b) and 20(a) of the Securities Exchange Act based on Toshiba Corp.'s fraudulent accounting practices. The district court held, under the test in Morrison v. Nat'l Australia Bank Ltd., 561 U.S. 247 (2010), that the Exchange Act, which does not apply extraterritorially, did not apply to the purchase of Toshiba ADRs. The panel held that the Exchange Act could apply to the Toshiba ADR transactions, as domestic transactions in securities not registered on an exchange, and that Toshiba ADRs were "securities" under the Exchange Act. The panel applied the "irrevocable liability" test and held that plaintiffs must be allowed to amend their complaint to allege that the purchase of Toshiba ADRs on the over-the-counter market was a domestic purchase, and that the alleged fraud was "in connection with" the purchase. Accordingly, the panel remanded to allow plaintiffs to amend their complaint. View "Auto Industries Pension Trust Fund v. Toshiba Corp." on Justia Law

The Ninth Circuit affirmed the dismissal of an action alleging that when Yahoo! invested in Alibaba.com, a Chinese retail website, Yahoo! violated the conditions of its exemption, granted by the SEC, from the registration requirements of the Investment Company Act (ICA). Plaintiff brought derivative claims against Yahoo!'s board of directors and certain corporate officers, as well as one direct claim against Yahoo!, under the ICA. The panel held that plaintiff failed to state a claim because the ICA does not establish a private right of action for challenging the continued validity of an ICA exemption. View "UFCW Local 1500 Pension Fund v. Mayer" on Justia Law

Plaintiff, on behalf of former Emulex shareholders, appealed the district court's dismissal of his putative securities class action. The Ninth Circuit held that claims under Section 14(e) of the Securities Exchange Act of 1934, 15 U.S.C. 78n(e), require a showing of negligence, not scienter. Therefore, the panel reversed the dismissal of the complaint and remanded to the district court for it to reconsider defendants' motion to dismiss under a negligence standard. Because plaintiff's Section 14(e) claim survived, his claim under Section 20(a) of the Exchange Act also remained. Furthermore, the panel affirmed the district court's conclusion that Section 14(d)(4) of the Exchange Act did not create a private right of action and dismissal of the complaint as to Emerald Merger Sub because it was not a proper defendant. View "Varjabedian v. Emulex Corp." on Justia Law

The Ninth Circuit affirmed the dismissal of a securities fraud action brought on behalf of a class of plaintiffs who bought SolarCity shares. Plaintiffs alleged that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 when they changed the company's accounting formula prior to the initial public offering in order to misrepresent SolarCity's profitability. The panel held that plaintiff's third amended complaint failed to adequately plead facts giving rise to a strong inference of scienter, as required by the Private Securities Litigation Reform Act. In this case, the facts did not give rise to an inference of scienter that was at least as compelling as the inference of an honest mistake. View "Webb v. SolarCity Corp." on Justia Law

The Ninth Circuit affirmed the dismissal of a securities fraud action brought on behalf of a class of plaintiffs who bought SolarCity shares. Plaintiffs alleged that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 when they changed the company's accounting formula prior to the initial public offering in order to misrepresent SolarCity's profitability. The panel held that plaintiff's third amended complaint failed to adequately plead facts giving rise to a strong inference of scienter, as required by the Private Securities Litigation Reform Act. In this case, the facts did not give rise to an inference of scienter that was at least as compelling as the inference of an honest mistake. View "Webb v. SolarCity Corp." on Justia Law