Gompper v. Visx, Inc., No. 01-15450.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Brunetti
• Citation: 298 F.3d 893
• Parties: John W. GOMPPER, Jr., Plaintiff, and Esther Sefaradi; John Stewart Morton; Richard Demmitt; Herbert Johnson, Plaintiffs-appellants, v. VISX, INC.; Mark B. Logan; Elizabeth H. Davila; James W. McCollum; David M. Patino; Timothy R. Maier; Kina Lamblin, Defendants-Appellees.
• Docket Number: No. 01-15450.
• Decision Date: 05 August 2002

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298 F.3d 893 John W. GOMPPER, Jr., Plaintiff, and
Esther Sefaradi; John Stewart Morton; Richard Demmitt; Herbert Johnson, Plaintiffs-appellants,
v.
VISX, INC.; Mark B. Logan; Elizabeth H. Davila; James W. McCollum; David M. Patino; Timothy R. Maier; Kina Lamblin, Defendants-Appellees. No. 01-15450. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 13, 2002. Filed August 5, 2002.

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Sanford Svetcov, Esq., San Francisco, CA, for the appellants.

Boris Feldman, Esq., Palo Alto, CA, for the appellees.

Appeal from the United States District Court for the Northern District of California; Charles R. Breyer, District Judge, Presiding.

Before BRUNETTI, LEAVY and T.G. NELSON, Circuit Judges.

OPINION

BRUNETTI, Circuit Judge.

The issue before us is whether the complaint in this securities fraud class action states a claim under the heightened pleading requirements of the Private Securities Litigation Reform Act of 1995 ("PSLRA"), 15 U.S.C. § 78u-4(b)(1), (2). The district court held that it did not, and dismissed the complaint without leave to amend. The plaintiffs appeal, and we affirm.

I. BACKGROUND

This action is brought under §§ 10(b), 20(a) and 20A of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78t(a), 78t-1. Plaintiffs are individuals who purchased VISX, Inc. ("VISX") stock during the class period. The defendants are VISX, and various individuals who are either officers, directors, or both. We summarize the facts from the complaint, and assume these facts to be true for the purpose of our decision.

VISX develops and sells laser vision-correction devices. Prior to February 22, 2000, VISX charged a $250 fee for each use of its patented excimer laser system (the "per procedure fee"). In early 1999, Nidek, a Japanese competitor, obtained FDA approval to sell its products in the United States. Nidek did not charge a per procedure fee and therefore presented a tremendous competitive threat to VISX. In response, VISX immediately filed a patent infringement suit in the U.S. District Court for the Northern District of California.

Within days of filing that suit, VISX brought a similar action against Nidek before the International Trade Commission ("ITC"). After a two-week trial in August 1999, an ITC administrative law judge ruled in Nidek's favor. In an order entered in December 1999, the administrative law judge determined that Nidek's products did not infringe on VISX's patents, and further concluded that one of VISX's core patents was invalid because the patent applicant, Dr. Trokel, had failed to name a co-inventor, Dr. Srinivasan.

A little over two months later, on February 22, 2000, VISX publicly announced,

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that as part of a new business strategy, it was reducing its per procedure fee to $100. VISX's stock plummeted, and plaintiffs brought this action. Plaintiffs allege each defendant is liable for making false statements or for failing to disclose adverse facts while selling VISX stock and participating in a fraudulent scheme.

The class period begins on March 1, 1999, the date VISX announced anticipated First Quarter Fiscal Year 1999 results, and ends February 22, 2000, the date VISX announced it was reducing its per procedure fee. Plaintiffs argue that during this period defendants made positive statements about VISX's business and its patent portfolio in order to artificially inflate the stock price. The thrust of the complaint is that these statements were false or misleading because defendants knew there was no basis for their core patent claims and thus, the revenue projections. Without a valid patent portfolio, plaintiffs argue, VISX could not possibly maintain its lucrative per procedure fee, and, thus could not deliver on the stated revenue projections. The complaint alleges that defendants had this knowledge during the class period, but engaged in false public rhetoric in order to inflate stock prices and benefit from their own massive insider trading before the truth was revealed.

II. DISCUSSION

A. Standard of Review

We review de novo the district court's dismissal of a complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). See In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 983 (9th Cir.1999). On review, we accept the plaintiffs' allegations as true and construe them in the light most favorable to plaintiffs. Id.

B. Private Securities Litigation Reform Act of 1995

The PSLRA significantly altered pleading requirements in private securities fraud litigation by requiring that a complaint "plead with particularity both falsity and scienter." Ronconi v. Larkin, 253 F.3d 423, 429 (9th Cir.2001). A securities fraud complaint must now "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). Further, the complaint must "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); see also Silicon Graphics, 183 F.3d at 974 (facts must come closer to demonstrating intent, as opposed to mere motive and opportunity). Thus, the complaint must allege that the defendants made false or misleading statements either intentionally or with deliberate recklessness. See Silicon Graphics, 183 F.3d at 985.

C. Sufficiency of the Complaint under the PSLRA

As stated above, the...