Phillips v. Scientific-Atlanta, Inc.

• Decision Date: 22 June 2004
• Docket Number: No. 03-13008.,03-13008.
• Citation: 374 F.3d 1015
• Parties: Rochelle PHILLIPS, Kalford C. Fadem, Pond Equities, Peter Kaltman, Harris Holdings, LLC, et al., Plaintiffs-Appellees, v. SCIENTIFIC-ATLANTA, INC., Wallace G. Haislip, James F. McDonald, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1015

374 F.3d 1015

Rochelle PHILLIPS, Kalford C. Fadem, Pond Equities, Peter Kaltman, Harris Holdings, LLC, et al., Plaintiffs-Appellees, v. SCIENTIFIC-ATLANTA, INC., Wallace G. Haislip, James F. McDonald, Defendants-Appellants.

No. 03-13008.

United States Court of Appeals, Eleventh Circuit.

June 22, 2004.

Oscar N. Persons, Susan Elaine Hurd, Kathleen D. Zylan, Alston & Bird, Atlanta, GA, for Defendants-Appellants.

Elizabeth Ann Leland, Lynn L. Sarko, Juli Farris Desper, Seattle, WA, David A. Bain, Craig Gordon Harley, Meryl W. Edelstein, Chitwood & Harley, Atlanta, GA, Sherrie Raiken Savett, Berger & Montague, P.A., Philadelphia, PA, for Plaintiffs-Appellees.

Kathryn S. Zecca, Robbins, Russell, Englert, Orseck & Untereiner, LLP, Washington, DC, for Amicus Curiae Chamber of Commerce of U.S.

Appeal from the United States District Court for the Northern District of Georgia.

Before ANDERSON and BLACK, Circuit Judges, and NANGLE^*, District Judge.

ANDERSON, Circuit Judge:

This appeal concerns one aspect of the pleading standard of the Private Securities Litigation Reform Act ("PSLRA" or "Reform Act"). Plaintiffs contend that factual allegations may be aggregated to give rise to a strong inference of scienter under the PSLRA. Defendants argue that factual allegations may not be aggregated to infer scienter, and that scienter must be inferred for each defendant and with respect to each alleged violation of the statute. We conclude that factual allegations may be aggregated to infer scienter and must be inferred for each defendant with respect to each violation.

I. INTRODUCTION

This appeal arises from a securities fraud class action against Scientific-Atlanta, Inc. ("S-A") and James F. McDonald and Wallace G. Haislip, the company's CEO and CFO (the "individual defendants"). Plaintiffs allege that Defendants falsely portrayed S-A's financial performance and exaggerated demand for its products to the detriment of investors and in violation of § 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. § 78j(b), and SEC Rule 10b-5, 17 C.F.R. § 240.10b-5. They also allege that the individual defendants are liable for S-A's violations as "controlling persons" of S-A under § 20(a) of the Exchange Act. 15 U.S.C. § 78t(a). Defendants moved to dismiss the action for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and failure to plead fraud with particularity under Rule 9(b) and the PSLRA. 15 U.S.C. § 78u-4(b). The district court denied the motion, finding that the complaint stated a claim and pled fraud with particularity. In re Sci.-Atlanta, 239 F.Supp.2d 1351, 1362-63, 1364-65 (N.D.Ga.2002). The district court noted that although individual allegations in the complaint, considered in isolation, may not have given rise to a strong inference of scienter, the allegations created such an inference when viewed collectively. Id. at 1366. Defendants petitioned for interlocutory appeal under 28 U.S.C. § 1292(b), and the district court certified the narrow question of whether "allegations that standing alone do not give rise to a `strong inference' of scienter under the [PSLRA] may nevertheless be aggregated to create such a finding." We granted the petition, and we now affirm.

II. DISCUSSION

We note at the outset that Defendants have largely conceded the narrow, certified question and have attempted to parlay the appeal into a much broader review of the district court. Defendants seem to concede that facts which individually do not give rise to a strong inference of scienter may be aggregated to rise to the necessary showing, but they go on to argue that such aggregated facts must be applied to each defendant with respect to each alleged violation of the statute. We address each issue in turn.

A. Aggregating Pleadings to Infer Scienter

Under the PSLRA, a securities fraud complaint must plead fraud with particularity and allege facts giving rise to a strong inference of scienter.¹ The statute states that the complaint "shall specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed," 15 U.S.C. § 78u-4(b)(1), and "shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind," 15 U.S.C. § 78u-4(b)(2). Nothing in this language suggests that scienter may only be inferred from individual facts, each of which alone gives rise to a strong inference of scienter, rather than from an aggregation of particularized facts. We readily join the courts that have interpreted the PSLRA to permit the aggregation of facts to infer scienter. See Broudo v. Dura Pharms., Inc., 339 F.3d 933, 940 (9th Cir.2003) ("This court has made clear that allegations of scienter must be collectively considered."); In Re Cabletron Sys., 311 F.3d 11, 39 (1st Cir.2002) ("`The plaintiff may combine various facts and circumstances indicating fraudulent intent' ... to satisfy the scienter requirement.") (quoting Aldridge v. A.T. Cross Corp., 284 F.3d 72, 82 (1st Cir.2002)); Abrams v. Baker Hughes, Inc., 292 F.3d 424, 431 (5th Cir.2002) ("The appropriate analysis... is to consider whether all facts and circumstances `taken together' are sufficient to support the necessary strong inference of scienter on the part of the plaintiffs."); Fla. State Bd. of Admin. v. Green Tree Fin. Corp., 270 F.3d 645, 660 (8th Cir.2001) ("[U]nder the Reform Act, a securities fraud case cannot survive unless its allegations collectively add up to a strong inference of the required state of mind."); Rothman v. Gregor, 220 F.3d 81, 92 (2nd Cir.2000) ("Taken together with the allegations of poor sales and the pleadings in various lawsuits filed by GT, the Appellants have alleged sufficient facts to support a strong inference of recklessness."); see also Bourjaily v. United States, 483 U.S. 171, 179-80, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) ("[I]ndividual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent parts.").² As noted above, Defendants appear to have conceded this point but then seek to raise other arguments as well. Below we address only one of their additional arguments.

B. Showing Scienter for Each Defendant with Respect to Each Alleged Violation

Notwithstanding that the above issue was the only one certified for appeal, Defendants also argue that a strong inference of scienter must be found with respect to each defendant and with respect to each act or omission alleged to violate the statute. We exercise our discretion³ to address that issue because it is closely related to the certified question. We hold that scienter must be found with respect to each defendant and with respect to each alleged violation of the statute. The text of the PSLRA requires that plaintiffs, "with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." 15 U.S.C. § 78u-4(b)(2) (emphasis added). We believe that the plain meaning of the statutory language compels the conclusion that scienter must be alleged with respect to each alleged violation of the statute.⁴ Although the plain language is less compelling with respect to alleging the scienter of each defendant, the statute does use the singular term "the defendant," and we believe that the most plausible reading in light of congressional intent⁵ is that a plaintiff, to proceed beyond the pleading stage, must allege facts sufficiently demonstrating each defendant's state of mind regarding his or her alleged violations. Nor do we perceive that requirement as posing unrealistic burdens on plaintiffs.⁶ Cf. Southland Secs. Corp. v. Inspire Ins. Solutions, 365 F.3d 353, 364-65 (5th Cir.2004) ("These PSLRA references to `the defendant' may only reasonably be understood to mean `each defendant' in multiple defendant cases[.]").

Despite our agreement with Defendants on this point, our holding does not aid them because Plaintiffs' complaint sufficiently alleges facts giving rise to a strong inference of scienter on the part of each defendant alleged to have committed each violation of the statute.⁷ Finding no error, we affirm the district court.

Defendants frame this issue as the viability of the "group pleading doctrine" in the wake of the PSLRA, a question the courts are now debating. See, e.g., Cabletron, 311 F.3d at 40 (identifying the issue without deciding it); Southland, 365 F.3d at 363-65 (holding that group pleading did not survive the PSLRA). The group pleading doctrine in securities litigation varies somewhat among the circuits, but it can be broadly characterized as a presumption of group responsibility for statements and omissions in order to satisfy the particularity requirements for pleading fraud under Federal Rule of Civil Procedure 9(b). See, e.g., Cabletron, 311 F.3d at 40 (1st Cir.2002) (identifying one form of "the group pleading presumption" as an approach in which "the court need not consider the liability of each individual defendant, but may attribute all the statements to all the defendants as `collective actions'").⁸ In the case that spawned the group pleading doctrine, Wool v. Tandem Computers, Inc., 818 F.2d 1433 (9th Cir.1987), plaintiffs needed a group pleading theory to save their complaint from dismissal because they had "fail[ed] to attribute particular fraudulent statements or acts to each individual defendant." Id. at 1440. Rather, plaintiffs had attributed fraudulent conduct to "all defendants." Id. The Ninth Circuit determined that such pleading satisfied...