18‐1165‐cv
     Ark. Pub. Emps. Ret. Sys. v. Xerox Corp.


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

 1         At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 6th day of June, two thousand nineteen.
 4
 5           PRESENT: GUIDO CALABRESI,
 6                    RAYMOND J. LOHIER, JR.,
 7                        Circuit Judges,
 8                    ANN M. DONNELLY,
 9                        District Judge.
10
11           ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
12           ARKANSAS PUBLIC EMPLOYEES
13           RETIREMENT SYSTEM,
14
15                           Plaintiff‐Appellant,                                 No. 18‐1165‐cv
16
17           OKLAHOMA FIREFIGHTERS
18           PENSION AND RETIREMENT



     
      Judge Ann M. Donnelly, of the United States District Court for the Eastern District of
     New York, sitting by designation.
 1   SYSTEM, individually and on behalf
 2   of all others similarly situated,
 3
 4                 Plaintiff,
 5
 6                        v.
 7
 8   XEROX CORPORATION, URSULA
 9   M. BURNS, LUCA MAESTRI,
10   KATHRYN A. MIKELLS, LYNN R.
11   BLODGETT, ROBERT K. ZAPFEL,
12   DAVID H. BYWATER, MARY
13   SCANLON,
14
15                    Defendants‐Appellees.
16   ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
17   FOR APPELLANT:                                            ANDREW L. ZIVITZ (Johnston
18                                                             de F. Whitman, Jr., Kessler
19                                                             Topaz Meltzer & Check, LLP,
20                                                             Radnor, PA; Jonathan
21                                                             Gardner, David J. Goldsmith,
22                                                             Alfred L. Fatale III, Labaton
23                                                             Sucharow LLP, New York, NY
24                                                             on the brief).
25
26   FOR APPELLEES:                                     SANDRA C. GOLDSTEIN (Stefan
27                                                      Atkinson, Robert Allen, on
28                                                      the brief), Kirkland & Ellis LLP,
29                                                      New York, NY, for Xerox
30                                                      Corporation, Ursula M. Burns,
31                                                      Luca Maestri, Kathryn A.
32                                                      Mikells, Lynn R. Blodgett,
33                                                      David H. Bywater, and Mary
34                                                      Scanlon.

                                            2
 1                                                      JAMES M. ADRIAN (Anna Karin
 2                                                      F. Manalaysay, on the brief),
 3                                                      Adrian & Associates, LLC,
 4                                                      New York, NY, for Robert K.
 5                                                      Zapfel.
 6
 7         Appeal from a judgment of the United States District Court for the

 8   Southern District of New York (Paul A. Engelmayer, Judge).

 9         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

10   AND DECREED that the judgment of the District Court is AFFIRMED.

11         Arkansas Public Employees Retirement System (“APERS”) appeals from

12   the judgment of the District Court (Engelmayer, J.), dismissing its claims against

13   Xerox and the individual Defendants under § 10(b) of the Securities Exchange

14   Act of 1934 (Exchange Act), 15 U.S.C. § 78j(b), and Securities and Exchange

15   Commission Rule 10b‐5, 17 C.F.R. § 240.10b‐5, and against the individual

16   Defendants for control person liability under § 20(a) of the Exchange Act, 15

17   U.S.C. § 78t(a). APERS alleged that Xerox and the individual Defendants made

18   misleading statements about the capabilities of a “platform” Xerox had

19   developed to implement Medicaid Management Information Systems for various

20   State governments, the success Xerox was having in implementing that platform


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 1   in different States, and the profitability of those contracts. We refer to these

 2   categories of statements as the “Platform Statements,” “Success Statements,” and

 3   “Profitability Statements,” respectively. The District Court dismissed APERS’s

 4   claims on the ground that none of the alleged statements as described in the

 5   complaint were materially false or misleading.

 6         On appeal, APERS argues principally that: (1) the Platform Statements are

 7   misleading, not puffery, or not protected by the safe harbor for forward‐looking

 8   statements under the Private Securities Litigation Reform Act of 1995 (PSLRA),

 9   15 U.S.C. § 78u‐5(c); (2) the Success Statements are not puffery, are statements of

10   opinion that are false or misleading under the standard set forth in Omnicare,

11   Inc. v. Laborers District Council Construction Industry Pension Fund, 

  1318 (2015), are not forward‐looking statements, or are false or misleading

13   statements of fact; and (3) the Profitability Statements are either false or

14   misleading or are not protected by the PSLRA’s safe harbor.

15         Upon review of the record on appeal, we affirm the judgment substantially

16   for the reasons stated by the District Court in its Opinion & Order dated March

17   20, 2018.


                                               4
1         We have considered all the arguments raised by APERS on appeal and

2   conclude that they are without merit. For the foregoing reasons, the judgment

3   of the District Court is AFFIRMED.

4                                        FOR THE COURT:
5                                        Catherine O=Hagan Wolfe, Clerk of Court




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