City of Roseville Employees' Retirement System v. Horizon Lines, Inc.

442 F. App'x 672
CourtCourt of Appeals for the Third Circuit
DecidedAugust 24, 2011
Docket10-2788, 10-3815
StatusUnpublished
Cited by14 cases

This text of 442 F. App'x 672 (City of Roseville Employees' Retirement System v. Horizon Lines, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Roseville Employees' Retirement System v. Horizon Lines, Inc., 442 F. App'x 672 (3d Cir. 2011).

Opinions

OPINION

BARRY, Circuit Judge.

In this securities fraud class action, the District Court dismissed all claims against the corporate defendants and five of the individual defendants. The lead plaintiff appeals. We will affirm.

I. BACKGROUND

Because we write only for the parties, we set forth only the facts and procedural history necessary for our analysis. Horizon Lines, Inc., and its wholly owned subsidiary, Horizon Lines, LLC (collectively “Horizon”), are shipping companies. This case is bottomed on securities fraud claims that arise out of price fixing in Horizon’s shipping business from the United States to Puerto Rico, which is a limited, oligopo-listic market that comprised about a third of Horizon’s business during the time period at issue. Horizon held its initial public offering (“IPO”) on September 26, 2005. The price fixing conspiracy became public on April 17, 2008, when the Department of Justice and the FBI executed search warrants on Horizon and Horizon issued a statement acknowledging the investigation. On April 25, 2008, Horizon announced that “its revenue and earnings were not sustainable.” (R. at A-448.) Its stock price plummeted after both announcements.

There are eight individual defendants in this matter, all of whom hold or held management or executive positions at Horizon. Three of them — Gabriel Serra, R. Kevin Gill, and Gregory Glova (collectively “Puerto Rico managers”) — pled guilty to price fixing in the Puerto Rico market from May of 2002 to April of 2008. No criminal charges have been filed against the other five individual defendants: Charles Raymond, Mark Urbanía, John Keenan, John Handy, and Brian Taylor (collectively “senior executives”). After the parties filed their briefs on appeal, Horizon Lines, LLC, itself pled guilty to price fixing charges, for which it had re-spondeat superior liability.

The Police and Fire Retirement System of the City of Detroit is the lead plaintiff in this putative securities class action case. In brief, it alleges that defendants made statements about Horizon’s financial health, in particular explaining why Horizon was increasing shipping rates and otherwise doing well in a tight Puerto Rico market, and that those statements were false because the company’s apparent well-being in Puerto Rico was due to price fixing, not the reasons Horizon and its executives identified.

The District Court granted the motion of Horizon and the senior executives to dismiss all claims in the Amended Consolidated Securities Class Action Complaint (“Amended Complaint”).1 It held that the senior executives made materially false statements, but nonetheless dismissed the [674]*674claims against them because there were insufficient allegations to raise a strong inference that they made those false statements with scienter. The Court conversely held that the Puerto Rico managers acted with scienter, but that they did not make material false statements on which plaintiff relied. As to Horizon, the Court concluded that it could not be liable because there were not sufficient allegations that an individual defendant both made material false statements, on which the plaintiff relied, and acted with scienter.

II. ANALYSIS2

Plaintiff brings its claims pursuant to Section 10(b) of the Securities Exchange Act of 1934 and the Securities and Exchange Commission’s Rule 10b-5.3

To state a claim for securities fraud under Rule 10b-5, plaintiffs must “allege defendants made a misstatement or an omission of material fact [“material false statement”] with scienter in connection with the purchase or the sale of a security upon which plaintiffs reasonably relied and plaintiffs [sic] reliance was the proximate cause of their injury.”

Inst. Investors Grp. v. Avaya, Inc., 564 F.3d 242, 251 (3d Cir.2009) (quoting Winer Family Trust v. Queen, 503 F.3d 319, 326 (3d Cir.2007)).

We are reviewing the grant of motions to dismiss the Amended Complaint. As with any motion to dismiss, we assume that the facts pled in the Amended Complaint are true, and we “consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). A plaintiff alleging securities fraud violations, however, “must satisfy the heightened pleading rules codified in the PSLRA [Private Securities Litigation Reform Act].” Avaya, 564 F.3d at 252; see also Merck & Co. v. Reynolds, — U.S. -, -, 130 S.Ct. 1784, 1796, 176 L.Ed.2d 582 (2010) (“Indeed, Congress has enacted special heightened pleading requirements for the scien-ter element of § 10(b) fraud cases.”). Those heightened pleading rules require that

the complaint must specify each allegedly misleading statement, why the statement was misleading, and, if an allegation is made on information and belief, all facts supporting that belief with particularity. Second, the complaint must, with respect to each act or omission alleged ... state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.

Avaya, 564 F.3d at 252-53 (internal quotation marks, citations, and footnote omitted).

“Scienter is a mental state embracing intent to deceive, manipulate, or defraud, and requires a knowing or reckless state of mind.” Id. at 252 (internal quotation marks and citations omitted). In this context, the standard for recklessness is high:

[a] reckless statement is one involving not merely simple, or even inexcusable negligence, but an extreme departure [675]*675from the standards of ordinary care, and which presents a danger of misleading buyers or sellers that is either known to the defendant or is so obvious that the actor must have been aware of it.

Id. at 267 n. 42 (internal quotation marks omitted). Allegations akin to corporate mismanagement are not sufficient. Id. In analyzing whether there is a strong inference of scienter, we

weigh the plausible nonculpable explanations for the defendant’s conduct against the inferences favoring the plaintiff. A strong inference of scienter is one that is cogent and at least as compelling as any opposing inference of nonfraudulent intent. The pertinent question is whether all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard.

Id. at 267-68 (internal quotation marks and citations omitted). “[T]he inference of scienter must be more than merely ‘reasonable’ or ‘permissible’ ” but “need not be irrefutable.” Tellabs, 551 U.S. at 324, 127 S.Ct. 2499. This is judged from the perspective of a “reasonable person.” Id. at 326, 127 S.Ct. 2499. “[Ojmissions and ambiguities count against inferring scienter.” Id.

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Bluebook (online)
442 F. App'x 672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-roseville-employees-retirement-system-v-horizon-lines-inc-ca3-2011.