On June 25, 2024, Judge Michael E. Farbiarz of the United States District Court for the District of New Jersey denied in large part a motion to dismiss a putative securities class action against an internet-based educational platform that sells online classes and certain of its senior officers. Zequi Wu, et al. v. GSX Techedu Inc., et al., No. 20-4457 (MEF) (JRA) (D.N.J. June 25, 2024). Plaintiff alleged that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by making false statements that misled investors about defendants’ inclusion of fake “bot” students in enrollment numbers to inflate the company’s revenue. The Court in large part denied defendants’ motion to dismiss, finding that plaintiff sufficiently alleged numerous false statements and scienter.

On June 28, 2024, the Supreme Court of the United States issued a landmark decision overturning its prior decision Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., et al., 467 U.S. 837 (1984) (“Chevron”). Loper Bright Enterprises, et al. v. Raimondo Secretary of Commerce, et al., and Relentless Inc., et al. v. Department of Commerce, et al., 603 U.S. ___ (2024). For the past 40 years, Chevron mandated that, when a statute does not expressly delegate authority to an administrative agency on a particular issue or question, courts defer to a federal agency’s interpretation of ambiguous statutes which the agency is charged with administering, if such interpretation was “permissible,” which has generally been interpreted to mean reasonable. There has been some subsequent narrowing of the scope of Chevron deference by the Supreme Court, for example to agency interpretations reached through formal proceedings with the force of law (see United States v. Mead Corp., 533 U. S. 218, 230 (2001)). In a 6-3 ruling delivered by Chief Justice Roberts, the Supreme Court expressly overruled Chevron, holding that the Administrative Procedure Act (“APA”) requires courts to exercise independent judgment in determining whether a federal agency has acted within its statutory authority, and that courts may not defer to an agency’s interpretation of the law merely because a statute is ambiguous. Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett joined the Chief Justice’s opinion.

On July 2, 2024, Judge Haywood S. Gilliam of the United States District Court for the Northern District of California granted a motion to dismiss a putative class action asserting claims under the Securities Exchange Act of 1934 against a cybersecurity company and certain of its officers.  In re SentinelOne, Inc. Sec. Litig., No. 23-cv-2786-HSG (N.D. Cal. July 2, 2024).  Plaintiff alleged that defendants artificially inflated key business metrics in its SEC filings, necessitating a downward revision of revenue and projection figures.  The Court dismissed plaintiff’s claims without prejudice, primarily for lack of scienter.

On July 1, 2024, Judge Denise J. Casper of the United States District Court for the District of Massachusetts granted a motion to dismiss a putative class action asserting claims under the Securities Exchange Act of 1934 against a drug-development company and certain of its officers.  State Teachers Ret. Sys. v. Charles River Lab. Int’l, Inc., No. 23-cv-11132-DJC (D. Mass. July 1, 2024).  Plaintiff alleged that defendants misled investors to believe that the company complied with all applicable laws in its importation of endangered non-human primates (“NHPs”) for animal testing of biologic pharmaceuticals.  The Court dismissed the action, holding that plaintiff failed to identify any actionable statement or omission in the company’s filings or to adequately allege that defendants acted with the requisite scienter.

On June 24, 2024, the United States District Court for the Southern District of New York granted with prejudice a motion to dismiss a putative securities class action against a coffee chain and two of its executive officers.Rein v. Dutch Bros, Inc., et al., No. 23-cv-1794 (PAE) (S.D.N.Y. June 24, 2024).Plaintiff alleged that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, by making a series of false and misleading statements touting the company’s performance in a manner that understated the threat to sales and profitability presented by rising inflation affecting the cost of commodities key to the company’s success.The Court granted defendants’ motion to dismiss the amended complaint with prejudice, holding that plaintiff failed to allege materially false or misleading statements and scienter.

On July 2, 2024, the United States Court of Appeals for the First Circuit affirmed the dismissal with prejudice of a putative class action asserting claims under the Securities Exchange Act of 1934 against a biotechnology company, its CEO, and its Chief Development Officer (“CDO”).  Quinones v. Frequency Therapeutics, Inc., —F.4th—, 2024 WL 3275030 (1st Cir. 2024).  Plaintiffs alleged the company made misrepresentations regarding clinical trials for the company’s treatment for severe sensorineural hearing loss.  The district court determined that plaintiffs’ amended complaint adequately alleged certain misstatements but failed to demonstrate that those statements were made with the required degree of scienter, and on that basis dismissed the amended complaint.  The First Circuit affirmed both rulings.

On June 10, 2024, the United States Court of Appeals for the Second Circuit affirmed the dismissal of a putative shareholders’ class action against a real estate company (the “Company”) and several of its directors (the “Individual Defendants”), asserting claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (“Exchange Act”) and Rule 10b-5 promulgated thereunder. Maso Cap. Invs. Ltd. v. E-House (China) Holdings Ltd., No. 22-355 (2d Cir. June 10, 2024). Plaintiffs alleged the Company made false and misleading statements and omissions to entice approval of a go-private merger with a buyer group comprised of the Individual Defendants. The district court granted the Company’s motion to dismiss. Reviewing the district court’s decision de novo, the Court affirmed finding that plaintiffs failed to identify a single actionable statement or omission.

On June 17, 2024, the Supreme Court granted certiorari to review a decision of the United States Court of Appeals for the Ninth Circuit reversing the dismissal of a putative class action asserting claims under the Securities Exchange Act of 1934 and to address the following questions: “1. Whether plaintiffs seeking to allege scienter under the Private Securities Litigation Reform Act (“PSLRA”) based on allegations about internal company documents must plead with particularity the contents of those documents”; and “2. Whether plaintiffs can satisfy the PSLRA’s falsity requirement by relying on an expert opinion to substitute for particularized allegations of fact.” 

On June 10, 2024, the United States Supreme Court granted certiorari to review a decision of the United States Court of Appeals for the Ninth Circuit that partially reinstated a putative class action asserting claims under the Securities Exchange Act against a social media company. Facebook v. Amalgamated Bank, —S. Ct.—, 2024 WL 2883752 (2024). Plaintiffs alleged that the company made misrepresentations relating to the misuse of user data by a third party. The Supreme Court granted certiorari to address the following question: “Are risk disclosures false or misleading when they do not disclose that a risk has materialized in the past, even if that past event presents no known risk of ongoing or future business harm?”

On May 31, 2024, Judge Julie S. Sneed of the United States District Court for the Middle District of Florida granted a motion to dismiss a putative securities class action against an autonomous vehicle technology company (the “Company”), certain of its officers, and an officer of one of the Company’s subsidiaries. Alms v. Luminar Technologies, Inc., et al, No. 6:23-cv-982-JSS-LHP (M.D. Fla. May 31, 2024). Plaintiff alleged that defendants violated Section 10(b) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, by allegedly making false statements in an investor presentation regarding plans to economize its newly developed technology. The Court dismissed plaintiff’s amended complaint, holding that plaintiff failed to adequately plead a false statement of a material fact and scienter.

On May 22, 2024, Judge Cecilia M. Altonoga of the United States District Court for the Southern District of Florida granted a motion to dismiss a putative shareholder action asserting claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 against a French company that provides outsourced content-moderation services for social media platforms (the “Company”) and certain of its former executives (the “Individual Defendants”). City of Warren Gen. Emps.’ Ret. Sys. v. Teleperformance SE, No. 23-cv-24580 (S.D. Fla. May 22, 2024). The complaint alleged that defendants made false and misleading statements about the treatment and training of the Company’s content moderators and the Company’s plan to exit the “highly egregious portion” of the content-moderation business. Judge Altonoga dismissed the complaint without prejudice, holding that plaintiffs did not adequately plead as a threshold matter that they purchased the Company’s shares within the United States and that plaintiffs had engaged in improper “puzzle pleading” in violation of Federal Rule of Civil Procedure 8(a)(1). Nevertheless, construing the complaint generously and relying on the parties’ briefing to organize the alleged misstatements, the Court identified several alleged misstatements that would be actionable, as pled, in an amended complaint with the noted deficiencies cured. 

On May 16, 2024, Judge James L. Robart of the United States District Court for the Western District of Washington granted a motion to dismiss a putative securities class action against a manufacturer of pop culture collectibles (the “Company”) and certain of its former executives (the “Individual Defendants”). Studen v. Funko, Inc., No. C23-0824JLR (W.D. Wash. May 16, 2024). The complaint alleged that the Company failed to disclose accurate information regarding the risks associated with its infrastructure projects and inventory in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”). Judge Robart dismissed the complaint, holding that plaintiffs did not adequately plead falsity or offer any particularized allegations showing that defendants knew that the risks could or did occur. 

On May 23, 2024, the United States Supreme Court held that if parties’ agreements conflict as to whether a dispute is subject to arbitration, then a court (not an arbitrator) must decide which contract controls. Coinbase, Inc. v. Suski, --- S.Ct. ----, 2024 WL 2333424 (2024).

On May 10, 2024, Judge Araceli Martínez-Olguín of the United States District Court for the Northern District of California granted a motion to dismiss a putative class action against a global footwear and apparel company (“the Company”), certain of its officers and directors, and the underwriters involved in the Company’s initial public offering (“IPO”). Shnayder v. Allbirds, Inc., No. 23-cv-01811-AMO, 2024 BL 161312 (N.D. Cal. May 10, 2024). Plaintiffs brought claims under Sections 11 and 15 of the Securities Act of 1933 (the “Securities Act”) and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”), alleging false and misleading statements in connection with the Company’s IPO. The Court granted defendants’ motion to dismiss, holding that plaintiffs failed to adequately allege which statements were allegedly false or misleading.

On May 14, 2024, Judge Rita F. Lin of the United States District Court for the Northern District of California granted a motion to dismiss a putative securities class action against a ridesharing company (the “Company”) and its CEO and former CFO (collectively, “defendants”). Cao et al. v. Uber Techs., Inc., et al., No. 22-cv-04688-RFL (N.D. Cal. May 14, 2024). 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 promulgated thereunder by allegedly making false statements in the Company’s post-IPO Sarbanes-Oxley Act (“SOX”) certifications attached to the Company’s quarterly and annual reports for 2019 and 2020, and during its annual general meeting on May 11, 2020.

On May 7, 2024, Judge Beth Labson Freeman of the United States District Court for the Northern District of California dismissed with prejudice a putative shareholders’ class action against a pharmaceutical company (“Company”) and certain of its executives (“Individual Defendants”), alleging claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (“Exchange Act”), as well as Rule 10b-5 promulgated thereunder. Sneed v. AcelRx Pharms., Inc., No. 21-cv-4353-BLF (N.D. Cal. May 7, 2024). Plaintiffs alleged the Company made false or misleading statements in marketing materials of one of its products in order to expand the target market, putting the Company at risk to adverse action by the Food and Drug Administration (“FDA”). The Court granted the motion to dismiss with prejudice, finding that plaintiffs failed to adequately plead scienter and that further amendment would be futile.

On April 29, 2024, the United States Court of Appeals for the Sixth Circuit affirmed the dismissal with prejudice of a putative class action asserting claims under the Sections 11, 12(a)(2), and 15 of the Securities Act of 1933 (the “Securities Act”) and Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 10b-5 promulgated thereunder, alleging that a car insurance technology company (the “Company”), certain of its officers, and the underwriters of the Company’s initial public offering (“IPO”) misled investors in the Company’s initial public offering materials. Kolominsky v. Root, Inc., No. 23-3392 (6th Cir. Apr. 29, 2024). Reviewing the district court decision de novo, the Court held that the complaint sounded in fraud and that the heightened pleading standard required by Rule 9(b) of the Federal Rules of Civil Procedure applied to the Securities Act claims and that the challenged statements were not actionable because they were based either on past performance and historical data or protected by the “Bespeaks Caution” doctrine. 

On April 30, 2024, Judge Marilyn L. Huff of the United States District Court for the Southern District of California dismissed with leave to amend a putative class action asserting claims under the Securities Exchange Act of 1934 against a medical device company and certain of its former officers. Lowe v. Tandem Diabetes Care Inc., 2024 WL 1898473 (S.D. Cal. Apr. 30, 2024). Plaintiffs alleged that the company made misrepresentations regarding the demand for its products. The Court held plaintiffs failed to adequately allege that any challenged statement was false at the time it was made and also failed to adequately allege scienter.

On May 1, 2024, Judge Arun Subramanian of the United States District Court for the Southern District of New York largely denied a motion to dismiss a putative class action asserting claims under the Securities Exchange Act of 1934 against a manufacturer of dental products and certain of its former executives. San Antonio Fire and Police Pension Fund v. Dentsply Sirona Inc., –—F. Supp. 3d—, 2024 WL 1898512 (S.D.N.Y. May 1, 2024). Plaintiffs alleged the company made misrepresentations regarding its inventory, supply chain, product quality, and overall financial health. The Court held that plaintiffs’ allegations were largely sufficient as to the required elements of falsity, scienter, and loss causation, but the Court dismissed allegations regarding certain alleged misrepresentations and claims against one former executive.

On April 19, 2024, the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of a consolidated putative securities class action alleging violations of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder against an information services company and certain of its executives. Espy v. J2 Global, Inc., et al., No. 22-55829 (9th Cir. Apr. 19, 2024). The United States District Court for the Central District of California dismissed plaintiff’s second amended complaint (“SAC”), holding that plaintiff failed to adequately plead scienter. The Ninth Circuit affirmed, holding that plaintiff failed to adequately plead scienter and loss causation.

On April 18, 2024, the United States Court of Appeals for the Fifth Circuit reversed the dismissal of and reinstated a putative shareholders’ class action against an amusement park company (the Company”) and certain of its executives, asserting claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (“Exchange Act”) and Rule 10b-5 promulgated thereunder. Okla. Firefighters & Pension Ret. Sys. v. Six Flags Entm’t Corp., No. 23-10696 (5th Cir. Apr. 18, 2024). The district court granted the Company’s motion for judgment on the pleadings, holding that plaintiff lacked standing because it purchased Company shares too late to have relied on any actionable misstatements, and therefore dismissed the action with prejudice. Reviewing the district court’s decision de novo, the Court reversed, finding that plaintiffs’ economic loss was fairly traceable to the alleged misconduct because the Company’s alleged fraud had not been fully disclosed when plaintiff purchased the stock. We previously covered the district court’s decision here.

On April 15, 2024, the United States Court of Appeals for the Second Circuit affirmed in a non-precedential summary order the summary judgment dismissal of securities fraud claims against a pharmaceutical company (the “Company”) under Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 10b-5 promulgated thereunder. In re Mylan N.V. Sec. Litig., No. 23-720-cv (2d Cir. Apr. 15, 2024). Reviewing the district court decision de novo, the Court held that appellants waived their argument related to scienter and that their failure to disaggregate the losses caused by the Company’s alleged omissions warranted summary judgment for defendants. 

On April 12, 2024, the United States Supreme Court unanimously reversed a decision of the United States Court of Appeals for the Second Circuit which held that Section 10(b) of the Securities Exchange Act of 1934 permitted a private right of action based solely on an issuer’s alleged failure to disclose a known trend or uncertainty required to be disclosed under Item 303 of Regulation S‑K. Macquarie Infrastructure Corp. v. Moab Partners, L.P., —U.S.—, 2024 WL 1588706 (2024). As explained in our prior post addressing the oral argument before the Supreme Court, the case concerned whether a company that operates a portfolio of infrastructure-related businesses needed to disclose that a proposed regulation by a United Nations agency would negatively impact one of its subsidiary’s businesses. Writing for a unanimous Court, Justice Sotomayor explained that the “pure omission” of information required to be disclosed by Item 303—i.e., a situation where there is no allegation that the omission rendered any affirmative statement misleading—is insufficient to support a claim under Section 10(b) of the Exchange Act.

On April 5, 2024, 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 of 1934 against a company that licenses children’s entertainment content and certain of its officers. In re Genius Brands Int’l, Inc. Sec. Litig., —F.4th—, 2024 WL 1473942 (9th Cir. 2024). Plaintiffs alleged that the company made actionable misstatements after it was told that its shares would be delisted from the NASDAQ exchange. The Court held that plaintiffs adequately alleged that the company’s conduct rendered certain challenged statements misleading, that plaintiffs adequately alleged loss causation for certain claims, and that one claim was appropriately dismissed for failure to plead loss causation.

On April 9, 2024, Judge Beth Labson Freeman of the United States District Court for the Northern District of California dismissed with prejudice a putative class action asserting claims under the Securities Exchange Act of 1934 against a technology company, certain of its current and former officers and directors, and related corporate entities. Mehedi v. View, Inc., 2024 WL 1560009 (N.D. Cal. Apr. 9, 2024). Lead plaintiff alleged that the company materially misstated its financial results. The Court held that lead plaintiff could not establish loss causation and therefore lacked standing to pursue claims on behalf of the putative class, requiring the case to be dismissed in its entirety.

On March 30, 2024, Judge Araceli Martínez-Olguín of the Northern District of California granted a motion to dismiss a putative class action against a biotechnology company that develops and sells skin treatment drugs and certain of its officers. Aramic LLC, et al. v. Revance Therapeutics, Inc., No. 21-cv-0985-AMO (N.D. Cal. Mar. 30, 2024). Plaintiff, on behalf of a putative class of investors in the Company, alleged that defendants made false or misleading statements about the timing and likelihood of FDA approval of the Company’s drug in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The Court dismissed the amended complaint, finding that plaintiff failed to allege that most of the challenged statements were false or misleading and that plaintiff in any event failed to allege adequately scienter.

On March 30, 2024, Judge Victoria Marie Calvert of the United States District Court for the Northern District of Georgia granted a motion to dismiss a putative securities class action against an optical retail company and certain of its executive officers (the “Individual Defendants”). City of Southfield General Employees Retirement Sys. v. National Vision Holdings, et al., No. 23-cv-00425-VMC (N.D. Ga. Mar. 30, 2024). Plaintiff alleged that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by making false and misleading statements and omissions regarding staffing and wage pressures faced by the Company leading up to and through the Covid-19 pandemic. The Court granted defendants’ motion to dismiss with prejudice, holding that plaintiff failed to adequately plead falsity and scienter. 

On April 4, 2024, the State of New York, Appellate Division, First Judicial Department (the “First Department”) affirmed dismissal of a securities class action against a mass media and entertainment company (the “Company”) and two of its executives (the “Individual Defendants”), and affirmed-in-part and reversed-in-part the denial of the motions to dismiss filed by the underwriters of the offerings at issue (the “Underwriters”). Camelot Event Driven Fund, et al. v. Morgan Stanley & Co. LLC, et al., No. 2023-00983 (1st Dep’t Apr. 4, 2024). Plaintiffs alleged defendants violated Sections 11, 12 and 15 of the Securities Act of 1933 (the “Securities Act”) by concealing certain information from the offering materials issued in connection with the Company’s March 2021 secondary and initial offerings (the “Offerings”).

On February 20, 2024, Judge Haywood S. Gilliam, Jr. 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 manufacturer of laboratory instruments and other advanced automation systems (the “Company”), certain of its current and former officers and directors, several venture capital firms that invested in the Company, and the underwriters of the Company’s July 2020 IPO. Victor J. Ng, et al. v. Berkeley Lights, Inc., et al., No. 21-cv-09497-HSG (N.D. Cal. Feb. 20, 2024). Plaintiff alleged that defendants 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 and Rule 10b-5 thereunder, by making false and misleading statements and omissions regarding the functionality of the Company’s flagship product (the “Product”).

On February 26, 2024, Judge Gregory H. Woods of the United States District Court for the Southern District of New York narrowed claims in a putative class action asserting claims under the Securities Exchange Act of 1934 and Securities Act of 1933 against a China-based real estate brokerage company, certain of its executives, and the underwriters in connection with a secondary offering by the company. Saskatchewan Healthcare Emps.’ Pension Plan v. KE Holdings Inc., 2024 WL 775195 (S.D.N.Y. Feb. 26, 2024). Plaintiff alleged, based largely on a short-seller report, that the company made misrepresentations that significantly overstated the gross transaction value (“GTV”) of real estate transactions facilitated by the company, the number of agents and stores using its online platform, and the commissions the company received. Id. at *3–7. The Court held that plaintiff adequately alleged misrepresentations with respect to certain statements but failed to adequately allege scienter, and therefore largely declined to dismiss the Securities Act claim but dismissed the Exchange Act claim with leave to replead.

On February 23, 2024, Judge Katherine Polk Failla of the United States District Court for the Southern District of New York largely denied a motion to dismiss a putative class action asserting claims under the Securities Exchange Act of 1934 against a financial institution and certain of its executives. In re Barclays PLC Sec. Litig., 2024 WL 757385 (S.D.N.Y. Feb. 23, 2024). Plaintiff alleged that the company had issued securities in excess of what it had registered for with the U.S. Securities and Exchange Commission, which allegedly rendered misleading certain of its statements regarding compliance with securities laws and internal controls. Id. While the Court held that certain alleged misrepresentations were adequately pleaded to survive a motion to dismiss, the Court dismissed claims as to statements made after the alleged over-issuances were disclosed and rejected plaintiff’s control person liability theory as to certain defendants.

On March 5, 2024, Judge John P. Cronan 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 shareholders’ class action, alleging that a software company (the “Company”), several of its executives and directors (“Individual Defendants”), and three banks who underwrote the Company’s initial public offering (“IPO”) violated Sections 11 and 15 of the Securities Act of 1933. Lian v. Tuya Inc., 22 Civ. 6792 (JPC) (S.D.N.Y. Mar. 5, 2024). Plaintiff alleged that the Company failed to disclose at the time of its IPO, as required by Items 105 and 303 of Regulation S-K, that its sales and growth could be impacted by the involvement of a significant percentage of its customers in a pervasive and far-reaching fake customer reviews scheme. Furthermore, plaintiff alleged that the Company’s failure to disclose the scheme rendered several statements in the IPO registration statement (“Registration Statement”) false and misleading. The Court dismissed the claims predicated upon Items 105 and 303 but found the Section 11 claims based upon alleged misstatements in the Registration Statement to be sufficiently pled.

On March 1, 2024, Judge Marsha J. Pechman of the United States District Court for the Western District of Washington dismissed with prejudice a putative shareholders’ class action against a software company (the “Company”) and its Board of Directors (“Board”), alleging violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”). Sohovich v. Avalara, Inc., No. C22-1580 MJP (W.D. Wash. Mar. 1, 2024). Plaintiff alleged that the Company and its Board misled investors to vote to approve its $8.4 billion sale—priced at $93.50 per share—allegedly by deflating its financial projections and misrepresenting the Company’s performance and outlook in the proxy statement (“Proxy”). The Court found that plaintiff failed to adequately plead the falsity of any one of the four misstatements and dismissed it with prejudice. 

On March 11, 2024, Judge Haywood S. Gilliam, Jr. of the United States District Court for the Northern District of California granted in part and denied in part a motion to dismiss a putative securities class action brought against a biopharmaceutical company (the “Company”) and its CEO. Pardi et al., v. Tricida, Inc., et al., No. 21-cv-00076-HSG (N.D. Cal. Mar. 11, 2024). Plaintiff alleged that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 10b-5 promulgated thereunder by making false and misleading statements and omissions regarding the likelihood that the Company’s new drug would receive accelerated FDA approval. The Company filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code and was voluntarily dismissed, and the CEO moved to dismiss.

On March 8, 2024, the United States Court of Appeals for the Second Circuit reversed a trial court decision dismissing a putative securities class action brought by purchasers of crypto assets against an international crypto exchange company (the “Company”) and certain of its officers, alleging violations of Section 12(a)(1) of the Securities Act of 1933 (the “Securities Act”), as well as various state securities laws (“Blue Sky” laws), and also seeking recission of the contracts they entered into with the Company, under Section 29(b) of the Securities Exchange Act (the “Exchange Act”). Williams v. Binance, No. 22-972 (2d Cir. Mar. 8, 2024). Plaintiffs alleged that the Company unlawfully promoted, offered, and sold billions of dollars’ worth of crypto-assets without registering these as securities and without registering themselves as a securities exchange or broker-dealer. The United States District Court for the Southern District of New York granted the Company’s motion to dismiss, holding that (1) plaintiffs’ claims constitute an impermissible extraterritorial application of securities law and (2) plaintiffs’ federal claims were untimely under the applicable statute of the limitations. On appeal, the Second Circuit reversed on both counts and remanded for further proceedings.

On March 14, 2024, Judge Lewis Kaplan of the United States District Court for the Southern District of New York denied defendants’ motions to dismiss a putative class action against a China-based ride hailing company, certain of its officers and directors, and the underwriters of the company’s IPO, asserting claims under the Securities Act of 1933 and the Securities Exchange Act of 1934. In re Didi Global Inc. Sec. Litig., 2024 WL 1119483 (S.D.N.Y. Mar. 14, 2024). Plaintiffs alleged that the company omitted from its filings in connection with its New York Stock Exchange (“NYSE”) IPO that the Chinese government had directed it to postpone its IPO, with the Chinese government imposing penalties after the company allegedly disregarded this directive. The Court held that plaintiffs’ allegations were adequate to state a claim with respect to nearly all of their asserted claims.

On March 25, 2024, the United States Court of Appeals for the Ninth Circuit unanimously affirmed a trial court decision dismissing a putative securities class action brought by investors against a biopharmaceutical company (“Company”) and certain of its officers and executives, alleging violations Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 10b-5. In re Sorrento Therapeutics, Inc. Securities Litigation, No. 22-55641 (9th Cir. Mar. 25, 2024). Plaintiff alleged that defendants made false statements about developments regarding the Company’s new COVID-19 antibody treatment, which allegedly misled investors and the public to believe that the Company had discovered a “cure” for the virus in order to boost the Company’s stock prices to improve its allegedly “dire financial situation.” Judge Anthony J. Battaglia of the United States District Court for the Southern District of California dismissed plaintiff’s claims without prejudice, holding that plaintiff had not plausibly pleaded falsity or scienter. The trial court entered judgment after plaintiff failed to file an amended pleading. Plaintiff appealed and the Ninth Circuit affirmed, holding that (1) the allegedly misleading statements were inactionable puffery and (2) standing alone, the Company’s allegedly poor financial position was not sufficient to warrant an inference of scienter.

On March 21, 2024, the United States Court of Appeals for the Third Circuit affirmed the dismissal of a putative class action against a biopharmaceutical company (the “Company”) and certain of its officers under Sections 10(b) and 20(a) of the Securities Exchange Act. In re Ocugen, Inc. Sec. Litig., No. 23-1570 (3d Cir. Mar. 21, 2024). Plaintiffs alleged that the Company’s statements and omissions about its partnership with an Indian biotechnology company to develop a COVID-19 vaccine for Emergency Use Authorization (“EUA”) with the U.S. Food and Drug Administration (“FDA”) were false and misleading. The Court affirmed the district court’s dismissal of the complaint with prejudice based on plaintiffs’ failure to allege a material misrepresentation.

On March 18, 2024, Judge Rachel P. Kovner of the United States District Court for the Eastern District of New York dismissed with prejudice a putative shareholders’ class action against a mobile game development company (the “Company”), its officers and directors, and its underwriters, alleging violations of Sections 11 and 15 of the Securities Act of 1933 (the “Securities Act”). In re Playtika Seg. Litig., No. 21-CV-06571-RPK-SJB (E.D.N.Y. Mar. 18, 2024). Plaintiff alleged that the Company failed to disclose an infrastructure overhaul of two of its most popular mobile games in its initial public offering (“IPO”) registration statement even though the overhaul was in progress at the time of the Company’s IPO. The Court held that plaintiff failed to adequately allege that omissions rendered the registration statement misleading, and that Item 105 did not impose a duty to disclose specific infrastructure projects that allegedly were omitted. Accordingly, the Court dismissed the action with prejudice.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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). 

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.