Broker-Dealer Litigation - Greenberg Traurig LLP

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Curry v. Hansen Med., Inc., 2011 WL 3741238 (N.D. Cal. Aug. 25, 2011).
In a putative securities fraud class action, the district court granted defendants’ motion to
dismiss claims premised on alleged misstatements related to the defendant company’s revenue
recognition policy and sales performance. The court noted that while certain alleged
misstatements were of present or historical fact, others were forward-looking and qualified for
safe harbor protection. Ultimately, the court found that plaintiffs had failed to adequately plead
scienter with regards to any of the statements since there was no sufficient basis to find that
defendants had any knowledge of any alleged inaccuracies. Accordingly, plaintiffs’ claims were
dismissed.
Szymborski v. Ormat Techs., Inc., 776 F. Supp. 2d 1191 (D. Nev. 2011).
In a putative securities fraud class action, the district court granted in part defendants’
motion to dismiss claims related to, among other things, allegedly false and misleading
statements about the completion date of a new factory. Defendants argued that statements
regarding the anticipated completion date were shielded from liability by the Private Securities
Litigation Reform Act of 1995’s safe harbor provision for forward-looking statements. The
court found that the statements at issue were sufficiently identified as forward-looking through
the use of phrases such as “we expect” and “subject to change at any time.” The court further
found that cautionary language cited by defendants warned investors of the very risks plaintiffs
alleged caused the target completion date to be missed. The court rejected plaintiffs’ argument
that reference to the project being “on track” was actually a statement of present fact. The court
acknowledged a circuit split on whether such a statement was forward-looking, but noted that its
holding adhered to Third Circuit precedent that such a statement was not meaningfully distinct
from a prediction. Accordingly, the court granted defendants’ motion to dismiss to the extent it
relied on the safe harbor.
Int’l Brotherhood of Elec. Workers Local 697 Pension Fund v. Int’l Game Tech., 2011 WL
915115 (D. Nev. Mar. 15, 2011).
In a consolidated securities fraud class action, the district court granted defendants’
motion to dismiss claims related to allegedly false and misleading EPS forecasts and statements
about the defendant company’s future prospects, in part, because the alleged misstatements were
shielded from liability by the Private Securities Litigation Reform Act of 1995’s safe harbor.
Plaintiffs alleged that defendants knowingly announced unrealistic EPS forecasts, misrepresented
operating expenses, and misrepresented that certain technology in development would generate
significant revenue through deals with third parties. The court found that defendants’ EPS
forecasts were forward-looking and accompanied by language that cautioned investors that the
company’s business was vulnerable to changing economic conditions which could result in
reduced revenues. Likewise, with regard to prospective deals with third-parties, defendant had
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