Barrie v. Intervoice-Brite, Inc.

397 F.3d 249, 60 Fed. R. Serv. 3d 811, 2005 U.S. App. LEXIS 500, 2005 WL 57928
CourtCourt of Appeals for the Fifth Circuit
DecidedJanuary 12, 2005
DocketNo. 03-11064
StatusPublished
Cited by59 cases

This text of 397 F.3d 249 (Barrie v. Intervoice-Brite, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barrie v. Intervoice-Brite, Inc., 397 F.3d 249, 60 Fed. R. Serv. 3d 811, 2005 U.S. App. LEXIS 500, 2005 WL 57928 (5th Cir. 2005).

Opinion

EDITH BROWN CLEMENT, Circuit Judge:

Plaintiffs appeal from the district court’s dismissal, pursuant to Fed.R.Civ.P. 9(b) and the Private Securities Litigation Reform Act; of their securities fraud class action alleging violations of §§ 10(b) and 20(a) of the Securities Exchange Act of 1934 and Securities and Exchange Com[254]*254mission Rule 10b-5. For the reasons that follow, we reverse in part and remand.

I. FACTS AND PROCEEDINGS

Intervoiee-Brite, Inc. (“Intervoice” or “the Company”), the corporate defendant in this securities fraud class action, develops and sells interactive voice software. Intervoice is headquartered in Dallas and its stock is traded on the NASDAQ exchange. Intervoice was formed in 1999 as the result of a merger between Intervoice, Inc. and Brite Voice Systems, Inc. Following the merger, Intervoice represented that the merger was a success, citing impressive revenues and projecting strong earnings. In June 2002, however, the Company announced that it would report a loss and lower-than-projected revenues and earnings per share. This class action lawsuit followed.

On June 5, 2001, the plaintiffs, on behalf of themselves and everyone who purchased shares of Intervoice between October 12, 1999 and June 6, 2000 (the “Class Period”), filed their original complaint. They sued Intervoice and its chief officers (collectively “defendants”).1 The plaintiffs alleged that the defendants committed securities fraud by making false and misleading statements concerning the Company’s August 1999 merger, its fourth quarter of 2000 and fiscal year 2001 earnings and revenue projections, and its fiscal year 2000 year-end earnings and revenue results. The plaintiffs argued that the misleading statements, based on improper accounting techniques, were made in forward-looking statements, press releases, and other corporate documents, and relied upon by analysts in their reports. The plaintiffs further alleged that the defendants made stock sales based on insider information, and relied on these sales as evidence of scienter. The plaintiffs sought to recover damages on behalf of all persons who acquired Intervoice stock during the Class Period.

This case was consolidated with substantially identical suits subsequently filed by other plaintiffs on September 5, 2001. On November 16, 2001, the plaintiffs filed their Consolidated Class Action Amended Complaint. On January 14, 2002, the defendants filed a motion to dismiss that complaint. On August 8, 2002, the district court granted the motion to dismiss without prejudice, allowing the plaintiffs to file an amended complaint in compliance with the pleading requirements of the Private Securities Litigation Reform Act (“PSLRA”) and Federal Rule of Civil Procedure 9(b). The plaintiffs filed a First Amended Class Action Complaint (“Complaint”) on September 23, 2002. On November 1, 2002, the defendants filed another motion to dismiss. On September 15, 2003, the district court granted the defendants’ motion, dismissing the Complaint with prejudice. The plaintiffs timely appealed on October 9, 2003.

II. STANDARD OF REVIEW

This Court exercises de novo review of a district court’s dismissal of a civil complaint. Goldstein v. MCI WorldCom, 340 F.3d 238, 244 (5th Cir.2003) (citing Abrams v. Baker Hughes, Inc., 292 F.3d 424, 430 (5th Cir.2002)). We accept the facts alleged in the plaintiffs’ complaint as true [255]*255and construe their allegations in the light most favorable to them. Id. We will not, however, “ ‘strain to find inferences favorable to the plaintiffs.’ ” Id. (quoting Westfall v. Miller, 77 F.3d 868, 870 (5th Cir.1996)). “Nor do we accept conclusory allegations, unwarranted deductions or legal conclusions.” Southland Sec. Corp. v. INSpire Ins. Solutions Inc., 365 F.3d 353, 361 (5th Cir.2004) (citing Nathenson v. Zonagen Inc., 267 F.3d 400, 406 (5th Cir.2001)).

III. DISCUSSION

A. Allegations of fraudulent revenue recognition and fraudulent earnings projections

In their Complaint, the plaintiffs allege that Intervoice and its controlling directors violated Section 10(b) of the Security Exchange Act of 19342 by making false statements regarding Intervoice’s revenues and earnings.3 In dismissing the Complaint, the district court held that the plaintiffs failed to plead in conformity with the pleading requirements of the PSLRA and Rule 9(b).

In 1995, Congress amended the 1934 Act by passing the PSLRA. The PSLRA sets out heightened pleading standards for securities law class action complaints, stating that a plaintiff must allege with specificity each fraudulent statement, who made the statement, why it was false, and that the statement was made with the requisite state of mind.4 “To state a seeurities-fraud claim under section 10(b), and Rule [256]*25610b-5, plaintiffs must plead (1) a misstatement or omission; (2) of a material fact; (3) made with scienter; (4) on which the plaintiffs relied; and (5) that proximately caused the plaintiffs’ injuries.” South-land Sec. Corp. v. INSpire Ins. Solutions Inc., 365 F.3d 353, 362 (5th Cir.2004) (citing Williams v. WMX Technologies, Inc., 112 F.3d 175, 177 (5th Cir.1997)).

Federal Rule of Civil Procedure 9(b) also applies in securities fraud cases. See Goldstein v. MCI WorldCom, 340 F.3d 238, 245 (5th Cir.2003). Its requirements work in conjunction with those of the PSLRA.5 “To satisfy Rule 9(b)’s pleading requirements, the plaintiffs must ‘specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statements were fraudulent.’ ” Southland, 365 F.3d at 362 (quoting Williams, 112 F.3d at 177-78).

The plaintiffs now argue that the district court improperly applied these pleading requirements to the claims of fraud in revenue recognition and earnings projections, which we discuss in turn.

(1) Claims of fraud in revenue recognition

The plaintiffs allege that Intervoice’s strong FY00 revenue and earnings were the result of recognizing revenue on sales of its software products in violation of Generally Accepted Accounting Principles (“GAAP”) and American Institute of Certified Public Accountants (“AICPA”) Statement of Position 97-2 (“SOP 97-2”). The plaintiffs claim that the Company based its reported revenues for the fiscal year 2000 on this improper recognition of revenue.

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397 F.3d 249, 60 Fed. R. Serv. 3d 811, 2005 U.S. App. LEXIS 500, 2005 WL 57928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barrie-v-intervoice-brite-inc-ca5-2005.