WILSON, Circuit Judge:
The City of Southfield Fire & Police Retirement System ("Southfield" or the "Investors") appeals the dismissal of its consolidated class-action securities fraud complaint against the St. Joe Company ("St. Joe" or the "Company") and St. Joe's current and former officers for alleged violations of §§ 10(b) and 20(a) of the Securities Exchange Act of 1934 (Exchange Act), 15 U.S.C. §§ 78j(b), 78t(a), and Securities and Exchange Commission (SEC) Rule 10b-5, 17 C.F.R. § 240.10b-5. The Investors argue that the district court erred in holding that they failed to adequately plead loss causation, actionable misrepresentation, or scienter, and also by denying their post-judgment motion to alter or amend. Because we agree that the facts as alleged in Southfield's complaint fail to show loss causation, we affirm.
St. Joe is a publicly traded company that began as a timber and paper company in the 1930s and is now one of the largest real-estate development corporations in the State of Florida.
The complaint alleges that the Company's failure to take impairment charges resulted in material overstatements of the value of its holdings and of its performance during the Class Period.
The Investors argue that the truth about St. Joe's overstated real estate holdings began to come to light on October 13, 2010, when David Einhorn, a prominent short-sale hedge fund investor, gave a presentation at the Value Investing Conference entitled "Field of Schemes: If You Build It, They Won't Come" (the Einhorn Presentation).
The Investors initially filed a complaint on November 3, 2010, based solely upon the drop in share price following the Einhorn Presentation. The district court dismissed that complaint without prejudice pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure and the Private Securities Litigation Reform Act of 1995 (PSLRA), 15 U.S.C. § 78u-4. It found that the initial complaint failed to adequately plead loss causation, an actionable misrepresentation, or scienter, and granted the Investors leave to file an amended complaint.
Meanwhile, on January 10, 2011, St. Joe disclosed that the SEC had initiated an informal inquiry "into St. Joe's policies and practices concerning impairment of investment in real estate assets." Six months thereafter, on July 1, 2011, the Company announced that the SEC had issued an order of private investigation regarding St. Joe's compliance with federal antifraud securities provisions and ownership reporting requirements, in addition to its books, records and internal controls. The Investors subsequently filed an amended complaint incorporating these disclosures as allegations and adding the allegations of various confidential witnesses.
The district court again dismissed the complaint, this time `with prejudice. It found that Southfield had failed to allege loss causation because the Einhorn Presentation was based solely on publicly available information, and the SEC investigations indicated nothing more than a risk of
On January 27, 2012, a few weeks following the district court's dismissal, St. Joe announced a new business strategy that would result in the impairment of $325 million to $375 million in assets in the fourth quarter of 2011. Plaintiffs moved under Rule 59 to alter or amend the judgment in light of this "newly discovered evidence." The motion was denied, and this appeal followed.
We review a district court's order dismissing a complaint de novo, taking all well-pleaded facts as true and construing them in the light most favorable to the nonmoving party. World Holdings, LLC v. Federal Republic of Germany, 701 F.3d 641, 649 (11th Cir.2012). To state a claim for securities fraud under § 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder, a plaintiff must adequately allege: (1) a material misrepresentation or omission; (2) scienter — a wrongful state of mind; (3) a connection between the misrepresentation and the purchase or sale of a security; (4) reliance, "often referred to in cases involving public securities markets (fraud-on-the-market cases) as transaction causation"; (5) economic loss; and (6) "loss causation, i.e., a causal connection between the material misrepresentation and the loss." Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 341-42, 125 S.Ct. 1627, 1631, 161 L.Ed.2d 577 (2005) (emphasis omitted) (internal quotation marks omitted).
The original moorings of the § 10(b) implied right of action are found in the common-law tort actions of misrepresentation and deceit. Dura, 544 U.S. at 341, 125 S.Ct. at 1631. Therefore, and because reliance was an essential element of a claim for misrepresentation at common law, a plaintiff in a § 10(b) suit must demonstrate reliance — that is, that he or she actually relied upon the alleged misrepresentation. Erica P. John Fund, Inc. v. Halliburton Co., ___ U.S. ___, 131 S.Ct. 2179, 2184, 180 L.Ed.2d 24 (2011). "The traditional (and most direct) way a plaintiff can demonstrate reliance is by showing that he was aware of a company's statement and engaged in a relevant transaction — e.g., purchasing common stock — based on that specific misrepresentation." Id. at 2185 (emphasis omitted). "In that situation, the plaintiff plainly would have relied on the company's deceptive conduct." Id.; see also Robbins v. Roger Props., Inc., 116 F.3d 1441, 1447 (11th Cir.1997) (explaining that reliance "is established when the misrepresentations or
Not surprisingly, and because the fraud-on-the-market theory permits them to forego the onerous task of demonstrating individual reliance on a purported misstatement, plaintiffs in class-action securities fraud cases often invoke it to establish their prima facie case. The present case is no exception. The Investors allege in their complaint that they are "entitled to a presumption of reliance under the fraud[-]on[-]the[-]market doctrine" because "the market for St. Joe's common stock promptly digested current information regarding St. Joe from all publicly available sources." We therefore assume, for purposes of this motion, that the market for St. Joe's common stock is efficient and that all publicly available information is incorporated into the market price of St. Joe's stock. As will be shown, however, though the fraud-on-the-market theory relieves the Investors of the requirement that they show reliance, it also has a dire — and indeed fatal — effect on their ability to demonstrate loss causation.
To show loss causation in a § 10(b) claim, a plaintiff must offer "proof of a causal connection between the misrepresentation and the investment's subsequent decline in value." Robbins, 116 F.3d at 1448; see 15 U.S.C. § 78u-4(b)(4) (requiring that the plaintiff prove that the misrepresentation "caused the loss for which the plaintiff seeks to recover"). "In other words, in a fraud-on-the-market case, the plaintiff must prove not only that a fraudulent misrepresentation artificially inflated the security's value but also that `the fraud-induced inflation that was baked into the plaintiffs purchase price was subsequently removed from the stock's price, thereby causing losses to the plaintiff.'" Hubbard v. BankAtlantic Bancorp, Inc., 688 F.3d 713, 725 (11th Cir.2012) (quoting FindWhat, 658 F.3d at 1311).
An example is instructive here: consider a company that manufactures two entirely discrete product lines, such as laptop computers and flat-screen televisions. Assume that the company fraudulently misrepresents that it sold two million laptops in a quarter, when in fact it had sold only one million. Based on this information, the price of the stock is artificially inflated from $20 per share to $30 per share. If an investor purchases the stock at the inflated $30 price but sells it at the same price before the truth becomes known, he has quite literally suffered no loss. See Dura, 544 U.S. at 342, 125 S.Ct. at 1631 ("[A]t the moment the transaction takes
By ensuring that only losses actually attributable to a given misrepresentation are cognizable, the loss causation requirement ensures that the federal securities laws do not "becom[e] a system of investor insurance that reimburses investors for any decline in the value of their investments." Robbins, 116 F.3d at 1447. In this way, loss causation polices the realm of § 10(b) claims, guarding against their use as an in terrorem device to force companies to settle claims simply to avoid the cost and burden of litigation. See Dura, 544 U.S. at 347-48, 125 S.Ct. at 1634 (explaining that allowing a plaintiff to forego the loss causation requirement "would bring about harm of the very sort the [federal securities] statutes seek to avoid" and "transform a private securities action into a partial downside insurance policy"); see also Thompson, 610 F.3d at 667 (Tjoflat, J., concurring in part and dissenting in part) (discussing the legislative history of the PSLRA and Congress's concern that so-called strike suits might become a "litigation tax" on American business). Put another way, though § 10(b) is designed to protect against fraud, it is not a prophylaxis against the normal risks attendant to speculation and investment in the financial markets, and loss causation therefore ensures that private securities actions remain a scalpel for defending against the former, while not becoming a meat axe exploited to achieve the latter. To realize those objectives, loss causation does not require proof that the fraudulent misrepresentation was the sole cause of a security's loss in value, but the plaintiff must still demonstrate that the fraudulent statement was a "substantial" or "significant" cause of the decline in price. See Hubbard, 688 F.3d at 726 (citing Robbins, 116 F.3d at 1447).
How, then, might a plaintiff go about proving loss causation? In a fraud-on-the-market case such as that presented here, plaintiffs often demonstrate loss causation circumstantially, by:
FindWhat, 658 F.3d at 1311-12 (footnote omitted).
The Investors in the present case base their theory of loss causation on three purported corrective disclosures: (1) the Einhorn Presentation; (2) the Company's disclosure of an informal SEC investigation in January 2011; and (3) the Company's announcement in July 2011 that the SEC's informal investigation had ripened into a "private order of investigation." We address each in turn, and explain why none qualify as a corrective disclosure for purposes of our federal securities laws.
The Investors first argue that the Einhorn Presentation qualifies as a corrective disclosure because it contained in-depth analysis of information not readily available to the investing public and revealed to the market that St. Joe's real-estate assets "needed to be impaired." The problem with this argument is that it ignores the very efficient market hypothesis upon which the Investors' entire claim is based.
"The efficient market theory ... posits that all publicly available information about a security is reflected in the market price of the security." Thompson, 610 F.3d at 691 (Tjoflat, J., concurring in part and dissenting in part). Therefore, any information released to the public is immediately digested and incorporated into the price of a security. "A corollary of the efficient market hypothesis is that disclosure of confirmatory information — or information already known by the market — will not cause a change in the stock price." FindWhat, 658 F.3d at 1310. It follows that "[c]orrective disclosures must present
The Einhorn Presentation contained a disclaimer on the second slide of the presentation stating that all of the information in the presentation was "obtained from publicly available sources." Indeed, the material portions of the Einhorn Presentation were gleaned entirely from public filings and other publicly available information.
That result makes good sense. Having based their claim of reliance on the efficient market theory, the Investors must now abide by its consequences. The Investors specifically invoked the efficient market theory in their complaint, stating that "at all relevant times, the market for St. Joe's common stock was an efficient market" and that all relevant information was therefore reflected by the price of St. Joe's stock. They did so to avail themselves of Basic's presumption of reliance, so that each member of the putative class would not have to show that he or she individually relied upon the Company's alleged misstatements in making a given purchase of stock. See Basic, 485 U.S. at 247, 108 S.Ct. at 991. The efficient market theory, however, is a Delphic sword: it cuts both ways. The Investors cannot contend that the market is efficient for
The Investors next venture an alternative argument: they contend that the Einhorn Presentation qualifies as a corrective disclosure despite its reliance on public information because it provided "expert analysis of the source material" that was previously unavailable to the market. The problem with this argument, of course, is that the mere repackaging of already-public information by an analyst or short-seller is simply insufficient to constitute a corrective disclosure. See In re Omnicom, 597 F.3d at 512 ("A negative ... characterization of previously disclosed facts does not constitute a corrective disclosure...."); see also Teachers' Ret. Sys. of La. v. Hunter, 477 F.3d 162, 187 (4th Cir.2007) (explaining that the attribution of an improper purpose to previously disclosed facts is not a corrective disclosure); In re Merck & Co., Inc. Sec. Litig., 432 F.3d 261, 270-71 (3d Cir.2005) (holding that the Wall Street Journal's analysis of previously available information is not a corrective disclosure). After all, if the information relied upon in forming an opinion was previously known to the market, the only thing actually disclosed to the market when the opinion is released is the opinion itself, and such an opinion, standing alone, cannot "reveal[] to the market the falsity" of a company's prior factual representations.
Finally, we note that the opinions in the Einhorn Presentation, though certainly pessimistic about the future, were not necessarily revelatory of any past fraud. The Einhorn Presentation systematically analyzed several of St. Joe's real-estate developments and explained why, in Einhorn's view, the Company would not be able to recoup the carrying value of these holdings. Because management's determination that it would not reap future cash flows in excess of the asset's carrying value would require an impairment under GAAP's accounting treatment for assets "held and used," Einhorn explained his belief that St. Joe's assets "should be" or "need[ed] to" be impaired. Moreover, in summarizing his presentation, Einhorn equivocated, explaining that "if no impairment is needed, there has been a negative return on development," but that "if [St. Joe] needs to take an impairment, the return on development is highly negative." When all is weighed in the balance, we think these are statements about potential future action, not "reve[lations] to the market" of some previously concealed fraud or misrepresentation. See FindWhat, 658 F.3d at 1311. That is yet another reason why they do not qualify as corrective disclosures for purposes of loss causation.
The Investors next argue that the Company's disclosure of the two SEC investigations should qualify as corrective disclosures because the investigations caused St. Joe's stock price to drop and covered the same subject matter — the value of St. Joe's real-estate holdings — as the fraud alleged in the complaint. But a corrective disclosure must "reveal[] to the market the falsity of [a] prior misstatement[]." FindWhat, 658 F.3d at 1311 n. 28 (internal quotation marks omitted). According to the complaint, although the January disclosure did indicate that the SEC was "conducting an informal inquiry
In our view, the commencement of an SEC investigation, without more, is insufficient to constitute a corrective disclosure for purposes of § 10(b). The announcement of an investigation reveals just that — an investigation — and nothing more. See In re Almost Family, Inc. Sec. Litig., No. 3:10-CV-00520-H, 2012 WL 443461, at *13 (W.D.Ky. Feb. 10, 2012) ("Numerous federal district courts have held that a disclosure of an investigation, absent an actual revelation of fraud, is not a corrective disclosure."); see also Durham v. Whitney Info. Network, Inc., No. 06-CV-00687, 2009 WL 3783375, at *21 (M.D.Fla. Nov. 10, 2009); In re Dell Inc., Sec. Litig., 591 F.Supp.2d 877, 910 (W.D.Tex.2008); Rudolph v. UTStarcom, 560 F.Supp.2d 880, 888 (N.D.Cal.2008). To be sure, stock prices may fall upon the announcement of an SEC investigation, but that is because the investigation can be seen to portend an added risk of future corrective action. That does not mean that the investigations, in and of themselves, reveal to the market that a company's previous statements were false or fraudulent. See In re Maxim Integrated Prods., Inc. Sec. Litig., 639 F.Supp.2d 1038, 1047 (N.D.Cal.2009) (explaining that disclosures of SEC investigations may be "indicators of risk because they reveal the potential existence of future corrective information," but they are not corrective disclosures for purposes of loss causation). Therefore, the Company's disclosures of the two SEC investigations do not qualify as corrective disclosures.
In sum, the complaint as framed by the Investors fails to adequately allege loss
Moreover, and even were that not so, the only part of the Einhorn Presentation that relied on the information above was the part in which Einhorn sought to refute the "bull case" for St. Joe, which involved the theory that the Company's holdings in and around Panama City were worth so much money that, by buying St. Joe stock, one would "be getting the [Company's] other 500.000 acres `for free.'" In other words, not only is that portion of the Einhorn Presentation wholly immaterial to the Investors' claims, it is also not revelatory of any fraud. Finally, and to the extent that the Investors' rest their claim on the argument that county property appraiser's sales lists are nonpublic, we simply disagree. In a case about the value of land, in which the public disclosures at issue were released over time, the efficient market would easily digest the information contained in these sales lists without the need for Einhorn to regurgitate it first. While we might be willing to countenance some lag in the market's processing of the information contained in these public sources, we reject the idea that they were not yet public on the day of the Einhorn Presentation, which is the relevant time for our purposes here.