Broker-Dealer Litigation - Greenberg Traurig LLP

numerous known complications and delays in the approval process. Defendants argued that
these statements were forward-looking statements shielded from liability by the Private
Securities Litigation Reform Act of 1995’s safe harbor provision. The court rejected this
argument because the majority of the alleged misstatements were not forward-looking, but
instead related to past interactions with the FDA. Moreover, the court found that cautionary
language cited by defendants was too generic to be meaningful and did not relate to the specific
complications that had arisen with respect to FDA approval of the product at issue. Accordingly,
the court held that the safe harbor did not apply and denied defendants’ motion to dismiss.
Wozniak v. Align Tech., Inc., 2011 WL 2269418 (N.D. Cal. Jun. 8, 2011).
In a securities fraud action, the district court granted defendants’ motion to dismiss
claims related to defendants’ alleged failure to disclose a backlog created by an agreement to
treat a competitor’s patients. As a result of the failure to disclose this backlog, plaintiffs alleged
that defendants made various false and misleading statements about expected shipments and
growth in press releases and conference calls with analysts. Defendants argued that the alleged
misstatements were shielded from liability by the Private Securities Litigation Reform Act of
1995’s safe harbor for forward-looking statements. The court found that the statements at issue
were identified as forward-looking and accompanied by meaningful cautionary language that
identified the specific risks plaintiffs alleged had materialized. Accordingly, the court found that
the safe harbor applied to these forward-looking statements and granted defendants’ motion to
dismiss.
Police Ret. Sys. of St. Louis v. Intuitive Surgical, Inc., 2011 WL 3501733 (N.D. Cal. Aug. 10,
2011).
In a putative securities fraud class action, the district court granted defendants’ motion to
dismiss claims related to allegedly false and misleading statements about the defendant
company’s financial prospects during the 2008 economic crisis. Defendants argued that
statements about the defendant company’s projected revenue were forward-looking statements
accompanied by meaningful cautionary language and, thus, shielded from liability under the
Private Securities Litigation Reform Act of 1995’s safe harbor. The court found that the
statements at issue were identified as forward-looking and accompanied by a warning that results
could vary based on the risks identified in the company’s SEC filings. The court further found
that cautionary language in the company’s SEC filings was adequate and meaningful because it
detailed a number of risks, including unforeseen economic downturns and slow market adoption
of the company’s product. Accordingly, the court found that safe harbor protection was
warranted and granted defendants’ motion to dismiss.
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