Maguire Financial, LP v. Powersecure International, Inc.

876 F.3d 541
CourtCourt of Appeals for the Fourth Circuit
DecidedNovember 15, 2017
Docket16-2163
StatusPublished
Cited by29 cases

This text of 876 F.3d 541 (Maguire Financial, LP v. Powersecure International, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maguire Financial, LP v. Powersecure International, Inc., 876 F.3d 541 (4th Cir. 2017).

Opinion

Affirmed by published opinion. Judge Duncan wrote the opinion, in which Judge Wilkinson and Judge Thacker joined.

DUNCAN, Circuit Judge:

Plaintiff-Appellant Maguire Financial,' LP (“Maguire Financial”) appeals the district court’s dismissal of its amended complaint in this securities fraud class action. Maguire Financial argues that the district court erred in holding that a statement by the CEO of PowerSecure International, Inc. (“PowerSecure”), to secmities analysts that the company had secured a “contract renewal” could not form the basis for liability under § 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”), see 15 U.S.C. § 78(b), and Rule lob-5, see 17 C.F.R. § 240.10b-5, because the amended complaint failed to adequately allege scienter. For the reasons that follow, we affirm.

I.

A.

PowerSecure provides utility and energy technologies to electric utilities and their customers. 1 Sidney Hinton, PowerSecure’s president and CEO, has three decades of experience in the energy industry. Hinton certified PowerSecure’s financial reports and signed its annual and quarterly SEC filings.

PowerSecure has three operating segments: Interactive Distributed Generation (“DG”), Energy Efficiency (“EE”), and Utihty Infrastructure (“UI”). Its UI products and services include transmission and distribution system construction and maintenance, installation of advanced metering and efficient lighting, and emergency storm restoration. The UI segment generated 41% of PowerSecure’s 2013 revenue. During the class period, Florida Power & Light (“FP & L”) was the largest electric utility in Florida and had a three-year contract with PowerSecure for the West Palm Beach area that was soon to expire. FP & L’s contract accounted for approximately 10% of PowerSecure’s UI revenue and about 4.1% of its total revenue.

PowerSecure issued a press release on June 6, 2013, announcing that it had “added approximately $75 million to its revenue backlog, including approximately $49 million from a renewed and expanded three year utility infrastructure (UI) award to serve one of the nation’s largest investor owned utilities (IOUs).” J.A. 412. On August 7, 2013, Hinton stated during a conference call and live webcast for securities analysts and investors that PowérSecure was “blessed to announce securing a $49 million three-year contract renewal, both the renewal and expansion with one of the largest investor [owned] utilities in the country.” J.A. 412. Investment analysts reacted positively to the announcement, and the next day PowerSecure’s common stock rose more than 10% to close at $17.71 per share.

On August 16, 2013, PowerSecure sold 2.3 million shares at $16 per share, and Hinton sold 200,000 shares from his personal holdings at the same price. Hinton also transferred to his wife approximately $2.5 million of his PowerSecure stock in December 2013 and February 2014 as part of a divorce settlement.

On May 7, 2014, PowerSecure surprised the market by reporting a first quarter loss of almost $4.3 million as its cost of sales increased 34% and operating expenses grew by 39%. Hinton stated on a conference call with analysts that same day that FP & L had “changed the geographies we were serving” from West Palm Beach to Ft. Myers and that “we probably underestimated the negativity [and] the complexity of basically starting from scratch in a new territory.” J.A. 417-18. Since it was not feasible for PowerSecure’s employees in West Palm Beach to commute 125 miles to Ft. Myers to fulfill the new contract, they left the company to work for other contractors. Consequently, PowerSecure had to hire and train new workers in Ft. Myers at significant expense. Although the new contract offered PowerSecure more work, its higher costs reduced short-term profitability. The next day, numerous analysts slashed their ratings and price targets for PowerSecure, and its stock price fell more than 62%.

B.

On May 22, 2014, Leonard C. Ash filed a securities class action suit against Pow-erSecure, Hinton, and Christopher T. Hut-ter (PowerSecure’s Chief Financial Officer). On October 10, 2014, the district court granted a motion to consolidate Ash’s case with two other cases and named Maguire Financial as lead plaintiff. On December 29, 2014, the plaintiffs filed a consolidated securities class action suit. It alleged that PowerSecure’s share price was artificially inflated after Hinton’s August 7, 2013, statement that PowerSecure had obtained a “contract renewal,” because Pow-erSecure knew then that its West Palm Beach contract had not been extended, and it had instead been awarded a less profitable contract in Ft. Myers.

Maguire Financial sought to impose liability based on twenty-six allegedly materially false or misleading statements made by defendants. On September 15, 2015, the district court granted PowerSecure’s motion to dismiss. The district court concluded that twenty-five of the statements were not materially false or misleading. The twenty-sixth statement was that of Hinton on August 7, 2013, noting that the company was “blessed to announce securing a $49 million three-year contract renewal, both the renewal and expansion with one of the largest investor [owned] utilities in the country.” The district court found that Maguire Financial had adequately alleged that the twenty-sixth statement was materially misleading, but that the complaint failed to adequately plead scienter. It therefore granted leave to amend.

The amended complaint sought to impose liability based only on Hinton’s August 7, 2013, statement. 2 On September 14, 2016, the district court granted PowerSe-cure’s motion to dismiss the amended complaint, finding that Maguire Financial again failed to adequately plead scienter. It concluded that neither the allegation that Hinton had made a material misrepresentation nor a holistic view of the facts were sufficient. This appeal followed,

II.

We review de novo the district court’s dismissal for failure to state a claim. Matrix Capital Mgmt. Fund, LP v. BearingPoint, Inc., 576 F.3d 172, 181 (4th Cir. 2009).

The Exchange Act ensures that companies disclose to investors the information needed to make informed investment decisions. See Taylor v. First Union Corp. of S.C., 857 F.2d 240, 246 (4th Cir. 1988). Maguire Financial’s claims arise under § 10(b) of the Exchange Act, which makes it unlawful “[t]o use or employ, in connection with .the purchase or sale of any security ..; any manipulative or deceptive device or contrivance in contravention of such , rules, and regulations as the Commission may prescribe.” 15 U.S.C.. § 78j(b).

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876 F.3d 541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maguire-financial-lp-v-powersecure-international-inc-ca4-2017.