In re Opendoor Technologies Incorporated Securities Litigation

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Sam Alich, No. CV-22-01717-PHX-MTL

10 Plaintiff, ORDER

11 v.

12 Opendoor Technologies Incorporated, et al.,

13 Defendants. 14 15 On reconsideration of its order on Defendants’ motions to dismiss, the Court denied 16 Defendants’ motion to dismiss Plaintiffs’ claims under Sections 11 and 15 of the Securities 17 Act of 1933. (Doc. 97) Defendants argued that these claims failed at the pleading stage 18 because “Defendants have established negative causation . . . they have demonstrated that 19 Plaintiffs do not allege a corrective disclosure or any other indication of loss causation in 20 their Consolidated Amended Complaint.” (Doc. 86 at 31) Defendants now move to certify 21 an interlocutory appeal on the following issue based on the Court’s Order granting 22 reconsideration: “Whether and under what circumstances a defendant can establish 23 negative causation based on the plaintiff’s failure to adequately plead loss causation?” 24 (Doc. 104-1 at 2)* 25 26 27 * During oral argument on September, 4, 2024, the Court allowed Plaintiffs to file a written 28 response to Defendants’ Notice of Supplemental Authority (Doc 116.) The need for a response is mooted by this Order. 1 I. 2 An order denying a motion to dismiss is non-final and, ordinarily, non-appealable. 3 Congress has enacted an exception, codified in Title 28, Section 1292 of the United States 4 Code, providing for an interlocutory appeal of a non-final order. “A non-final order may 5 be certified for interlocutory appeal where it ‘[1] involves a controlling question of law 6 [2] as to which there is substantial ground for difference of opinion’ and [3] where ‘an 7 immediate appeal from the order may materially advance the ultimate termination of the 8 litigation.’” Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 687–88 (9th Cir. 2011) (quoting 9 28 U.S.C. § 1292(b)). The moving party “bears the burden of demonstrating” that the 10 statutory requirements for interlocutory certification are met. Couch v. Telescope Inc., 611 11 F.3d 629, 633 (9th Cir. 2010). The district court should resist certifying an order for 12 interlocutory review except in “exceptional circumstances.” Harrington v. Cracker Barrel 13 Old Country Store Inc., — F. Supp. 3d —, 2024 WL 342440, at *9 (D. Ariz. Jan. 30, 2024); 14 see also United States v. Woodbury, 263 F.2d 784, 799 n.11 (9th Cir. 1959). 15 II. 16 The Court agrees with Defendants that the issue of whether the negative causation 17 defense can be adjudicated from the face of the complaint involves a controlling question 18 of law and is one that presents substantial ground from difference of opinion. But 19 Defendants cannot satisfy their burden of showing that an interlocutory appeal might 20 “materially advance the ultimate termination of the litigation.” Reese, 643 F.3d at 688. In 21 its Order, the Court observed that “[h]ere, the Court is unable to find negative causation 22 from the face of the Consolidated Amended Complaint, and if it were, Plaintiffs would be 23 provided leave to amend.” (Doc. 97 at 2) Thus, even if the Court of Appeals accepted this 24 matter for interlocutory review and found in Defendants’ favor, this Court—and very likely 25 the Court of Appeals—would provide Plaintiffs with an opportunity to amend. See, e.g., 26 Hoang v. ContextLogic, Inc., No. 21-CV-03930-BLF, 2023 WL 8879263, at *16 (N.D. 27 Cal. Dec. 22, 2023) (dismissing complaint on the negative causation defense but providing 28 leave to amend). Such a result would expend precious time and resources with no benefit in the end. 2 IT IS THEREFORE ORDERED that Defendants’ Motion to Certify May 14 3 || Order for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(B) (Doc. 104) is DENIED. 4 Dated this 9th day of September, 2024 5 ‘ Wichace T diburde 7 Michael T. Liburdi United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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