Establishing Loss Causation in Securities Fraud Class Actions
In their Corporate and Securities Litigation column, Margaret A. Dale and Mark D. Harris discuss 'In re BofI Holding, Inc. Sec. Litig.', in which a divided Ninth Circuit panel grappled with two types of disclosures: those that originate in whistleblower complaints, and those based on publicly available information. The decision nicely embodies a number of the tensions at play in the jurisprudence of loss causation.
December 14, 2020 at 12:45 PM
8 minute read
The elements of securities fraud are well established. A plaintiff must show: (1) a material misrepresentation or omission (2) made with scienter (3) in connection with the purchase or sale of a security; (4) reliance on the misrepresentation or omission; (5) economic loss; and (6) loss causation. The last element—a causal connection between the defendant's fraudulent conduct and the plaintiff's economic loss—is often the most difficult to prove, especially in a "fraud on the market" case. Under Dura Pharmaceuticals v. Broudo, 544 U.S. 336 (2005), the standard approach is to show that the defendant's misrepresentations artificially inflated the purchase price for the plaintiff's shares and that the subsequent revelation of the truth later caused their value to drop, thereby producing the economic loss.
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