Mineworkers' Pension Scheme v. First Solar Inc.

881 F.3d 750
Court of Appeals for the Ninth Circuit·Decided January 31, 2018·No. 15-17282·Published·Cited by 54 cases

Opinion

OPINION

PER CURIAM:

We consider’ the question certified by the district court for interlocutory appeal under 28 U.S.C. § 1292(b) 1 as to the correct test for loss causation under the Securities Exchange Act of 1934. We conclude that a general proximate cause test—the test ultimately applied by the district court—is the proper test.

I

First Solar, Inc., is one of the world’s largest producers of photovoltaic solar panel modules. The Plaintiffs represent purchasers of First Solar, Inc.’s publicly traded securities between April 30, 2008 and February 28, 2012 (“the Class Period”). Plaintiffs allege that, during the Class Period, First Solar discovered a manufacturing defect causing field power loss and a design defect causing faster power loss in hot climates. Plaintiffs allege that First Solar wrongfully concealed these defects, misrepresented the cost and scope of the defects, and reported false information on their financial statements.

During the Class Period, First Solar’s stock fell from nearly $300 per share to nearly $50 per share. The individually named Defendants, who are First Solar officers and executives, purchased or sold First Solar stock during the Class Period. Steep declines in First Solar’s stock, beginning on July 29, 2010, followed the release of quarterly financial disclosures reporting the defects and associated costs, the departure of First Solar’s CEO, and disappointing financial results.

Plaintiffs sued First Solar and its officers, alleging violations of §§ 10(b) and 20(a) of the Securities Exchange Act of 1934 and Securities Exchange Commission Rule 10b-5. They allege that Defendants engaged in several acts of fraud, including wrongfully concealing product defects, misrepresenting the cost and scope of the defects, and reporting false information on financial statements. Plaintiffs allege that when First Solar later disclosed product defects and attendant financial liabilities to the market, First Solar’s stock price fell, resulting in Plaintiffs’ economic loss.

Defendants filed a motion for summary judgment on all claims. The district court granted Defendants’ motion in part and denied in larger part, holding that Plaintiffs advanced triable issues of material fact on several claims. However, the district court stayed the action because it perceived two competing lines of case law in the Ninth Circuit regarding loss causation.

According to the district court, one line of cases represents the rule that' “drawing a causal connection between the facts misrepresented and the plaintiffs loss will satisfy loss causation.” These cases are Nuveen Municipal High Income Opportunity Fund v. City of Alameda, 730 F.3d 1111 (9th Cir. 2013); Berson v. Applied Signal Technology, Inc., 527 F.3d 982 (9th Cir. 2008); and In re Daou Systems Inc., 411 F.3d 1006 (9th Cir. 2005). The court interpreted a second group of cases to adopt a “more restrictive view,” in which “[sjecurities fraud plaintiffs can recover only if the market learns of the defendants’ fraudulent practices. It is not enough that plaintiffs are injured by the consequences of those practices.” These cases are Oregon Public Employees Retirement Fund v. Apollo Group Inc., 774 F.3d 598 (9th Cir. 2014); Loos v. Immersion Corp., 762 F.3d 880 (9th Cir. 2014); In re Oracle Corp. Securities Litigation, 627 F.3d 376 (9th Cir. 2010); and Metzler Investment GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049 (9th Cir. 2008).

After considering circuit law, the district court applied the following loss causation test: “A plaintiff can satisfy loss causation by showing that the defendant misrepresented or omitted the very facts that were a substantial factor in causing the plaintiffs economic loss.” Nuveen, 730 F.3d at 1120 (internal quotation marks omitted). The court certified the following question for interlocutory appeal under 28 U.S.C. § 1292(b):

[W]hat is the correct test for loss causation in the Ninth Circuit? Can a plaintiff prove loss causation by showing that the very facts misrepresented or omitted by the defendant were a substantial factor in causing the plaintiffs economic loss, even if the fraud itself was not revealed to the market (Nuveen, 730 F.3d at 1120), or must the market actually learn that the defendant engaged in fraud and react to the fraud itself (Oracle, 627 F.3d at 392)?

II

The Securities Exchange Act of 1934, codified at 15 U.S.C. § 78a et seq., imposes statutory requirements on a judicially-implied private damages action rooted in common law tort actions for deceit and misrepresentation. Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 341, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005). The Act defines “loss causation” as the plaintiffs “burden of proving that the act or omission of the defendant alleged to violate this chapter caused the loss for which the plaintiff seeks to recover damages.” 15 U.S.C. § 78u-4(b)(4). This inquiry requires no more than the familiar test for proximate cause. Dura, 544 U.S. at 346, 125 S.Ct. 1627; accord Lloyd v. CVB Fin. Corp., 811 F.3d 1200, 1210 (9th Cir. 2016); Loos, 762 F.3d at 887; Oracle, 627 F.3d at 394; Daou, 411 F.3d at 1025, To prove loss causation, plaintiffs need only show a “causal connection” between the fraud and the loss, Nuveen, 730 F.3d at 1119; Daou, 411 F.3d at 1025, by tracing the loss back to “the very facts about which the defendant lied,” Nuveen, 730 F.3d at 1120. “Disclosure of the fraud is not a sine qua non of loss causation, which may be shown even where the alleged fraud is not necessarily revealed prior to the economic loss.” Id.

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Mineworkers' Pension Scheme v. First Solar Inc., 881 F.3d 750 (9th Cir. 2018).

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