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Thursday, June 21, 2007

Tellabs v. Makor Issues & Rights

The Court's task, as framed by Justice Ginsburg in her majority opinion, was to resolve the disagreement among the Circuits on whether, and to what extent, a court must consider competing inferences in determining whether a securities fraud complaint gives rise to a "strong inference" of scienter, the PSLRA requirement.  The "strong inference" requirement "unequivocally raise[d] the bar for pleading scienter" and signalled Congress' purpose to promote greater uniformity among the Circuits, according to Justice Ginsburg.  Thus, the Court must set forth a "workable construction of the strong inference standard ... geared to the PSLRA's twin goals: to curb frivolous, lawyer-driven litigation, while preserving investors' ability to recover on meritorious claims."

Justice Ginsburg thus proceeds to set forth the roadmap.  First, as with any motion to dismiss, the court must accept all factual allegations in the complaint as true.  Second, the court must consider the complaint in its entirety, as well as other sources courts ordinarily consider when ruling on motions to dismiss -- documents incorporated by reference and other matters of which the court may take judicial notice.  The inquiry is whether all of the alleged facts, taken collectively, give rise to a strong inference of scienter.  Third, in determining whether the pleaded facts give rise to a "strong" inference of scienter, the court must take into account plausible opposing inferences.  The inference of scienter must be cogent and compelling, thus strong in light of other explanations.  In sum, the court must ask: when the allegations are accepted as true and taken collectively, would a reasonable person deem the inference of scienter at least as strong as any opposing inference?

Justice Scalia and Justice Alito each wrote concurring opinions, expressing the view that "strong inference" required that the test should be whether the inference of scienter is more plausible than the inference of innocence because this is the natural reading of the statute. Justice Stevens was the lone dissenter, arguing that the standard should be analogous to the probable-cause standard from criminal law.

In my view, the majority opinion was quite predictable and, indeed, inflicted probably the least amount of damage on plaintiffs, given the statute and the pro-business tendencies of this Court.  Under the majority's test, the plaintiff "only" has to demonstrate that the inference of scienter was at least as likely as any plausible opposing inference.  In contrast, if Justices Scalia and Alito had their way, the "strong inference" test would have constructed an even higher obstacle to private securities fraud cases, requiring that the inference of scienter be more plausible than the contrary inference.  These days, the majority's rejection of that view can count as a victory.

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The Tellabs decision has been the subject of considerable media and blog commentary. Legal Times: High Court Raises the Bar for Investors Alleging Securities Fraud WSJ Law Blog: Tellabs- Securities Lawyers React WSJ Law Blog: Supremes Deliver Another B... [Read More]

Tracked on Jun 27, 2007 7:31:54 PM

Comments

While not helpful to Plaintiffs in this case the Court's statement at slip op 14 that "personal financial gain may weigh heavily in favor of a scienter inference," even though it is not conclusive, will be helpful in almost every case where the Defendant is an individual with stock options, a seller of stock in a privately held corporation, or someone who profits in an issuance of stock. Likewise, it is a blow, albeit not a fatal one, in cases like this one where personal gain is not directly at issue.

Posted by: ohwilleke | Jun 21, 2007 11:37:35 AM

"These days, the majority's rejection of that view can count as a victory." The courts role was not help business or invesstors but to interpret a statute. The fact that you dont like the policy choice in a statute (Scalia and Alito's plain reading of the text) is not a grevience the Court should even consider. The remedy would be to go back to Congress to change the statute.

Posted by: Eye | Jun 22, 2007 6:55:09 AM

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