Pension Trust Fund for Operating Eng'rs v. Kohl's Corp.

895 F.3d 933
Court of Appeals for the Seventh Circuit·Decided July 12, 2018·No. 17-2697·Published·Cited by 71 cases

Opinions

Wood, Chief Judge.

In September 2011, Kohl's Corporation announced that it was correcting several years of its financial filings because of multiple lease accounting errors. Hard on the heels of that announcement came a putative class action complaint. The plaintiffs, led by the Pension Trust Fund for Operating Engineers, allege that Kohl's and two of its executives defrauded investors by publishing false and misleading information in the lead-up to the corrections. (For ease of exposition, we refer to the putative class as the Pension Fund.) The Pension Fund took the position that one can infer that the defendants knew that these statements were false or recklessly disregarded that possibility at the time they were made, because Kohl's recently had made similar lease accounting errors. Despite those earlier errors, it was pursuing aggressive investments in its leased properties, and at the same time, company insiders sold considerable amounts of stock.

The district court dismissed the complaint for failure to meet the enhanced pleading requirements for scienter imposed by the Private Securities Litigation Reform Act (PSLRA). The court entered that dismissal with prejudice, declining to give the Pension Fund even one opportunity to amend to cure the defects. The Pension Fund now appeals both the dismissal of the complaint and the district court's decision to enter it with prejudice. Because *936the first complaint fell short and the Pension Fund has not been able to suggest how an amendment might help, we affirm.

I

Kohl's runs over one thousand department stores across the United States. About 65 percent of those stores are leased-a fact that makes lease obligations a significant component of Kohl's financial picture. The treatment of those leases has caused Kohl's accountants and external auditors some trouble in recent years. The company was forced to adjust its accounting practices three times-in 2005, 2010, and 2011-to bring its books in line with generally accepted accounting principles ("GAAP"). The first and third of these corrections were material and required the restatement of several years' worth of financial statements. The second was comparatively minor and required an adjustment to income in one quarter. The Pension Fund asserts that these recurring lease accounting errors show that Kohl's, its CEO Kevin Mansell, and its CFO Wesley McDonald were at least reckless in overseeing the company's lease accounting practices by the time of the second and third corrections. Specifically, the Pension Fund contends that purchasers of Kohl's stock from February 26, 2009, to September 13, 2011 (the "class period"), were defrauded by knowing or reckless false statements in Kohl's financial reports.

The Pension Fund advanced two theories of liability in the district court: securities fraud in violation of section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and SEC Rule 10b-5, 17 C.F.R. § 240.10b-5, against all defendants, and "controlling person" liability under section 20(a) of the Securities Exchange Act, 15 U.S.C. § 78t(a), against Mansell and McDonald. We can limit our discussion to section 10(b) and Rule 10b-5, because a violation of those provisions is necessary to support a violation of section 20(a). Pugh v. Tribune Co. , 521 F.3d 686, 693 (7th Cir. 2008).

To state a claim under section 10(b), a plaintiff must plead "(1) a material misrepresentation or omission by the defendant; (2) scienter ; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation." Id. We can narrow our focus even further, for the scienter element is the only point of dispute between the parties. We review the sufficiency of scienter pleadings de novo . Id. at 692.

Scienter pleadings in securities fraud class actions must satisfy a heightened standard of plausibility. Through the PSLRA, Congress requires that plaintiffs "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." 15 U.S.C. § 78u-4(b)(2)(A) (emphasis added). For a case under section 10(b), that state of mind is "an intent to deceive, demonstrated by knowledge of the statement's falsity or reckless disregard of a substantial risk that the statement is false." Higginbotham v. Baxter Int'l, Inc. , 495 F.3d 753, 756 (7th Cir. 2007).

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Pension Trust Fund for Operating Eng'rs v. Kohl's Corp., 895 F.3d 933 (7th Cir. 2018).

895 F.3d 933 (Pension Trust Fund for Operating Eng'rs v. Kohl's Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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