Ninth Circuit

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In Max Royal LLC v. Atieva, Inc., No. 23-16049, 2024 U.S. App. LEXIS 19910 (9th Cir. Aug. 8, 2024), the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of a securities class action brought by investors who purchased shares of the special purpose acquisition company Churchill Capital Corporation IV (“CCIV”) in early 2021 before it merged with Atieva, Inc. d/b/a Lucid Motors (“Lucid”) in July 2021. The three-judge panel held that purchasers of a security of an acquiring company do not have standing under Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), to sue the target company for alleged misstatements by the target company made prior to the merger between the two companies. The Court’s decision provides protection to target company executives speaking to the press about their company’s forecasts and capabilities prior to acquisition by tightening the standing requirements for pre-acquisition SPAC investor plaintiffs.Continue Reading Ninth Circuit Applies Birnbaum Rule to Affirm Dismissal of Claims by SPAC Investors Asserted Against Target Company Executives for Pre-Merger Statements

In Securities & Exchange Commission v. Jensen, No. 14-55221, 2016 WL 4537377 (9th Cir. Aug. 31, 2016), the United States Court of Appeals for the Ninth Circuit broke new ground by providing the Securities & Exchange Commission (“SEC”) with a new independent cause of action under SEC Rule 13a-14, 17 C.F.R. § 240.13a-14, against a CEO or CFO who certifies false or misleading statements.  The Court also held that the disgorgement remedy authorized under Section 304 of the Sarbanes-Oxley Act, 15 U.S.C. § 7243 (“SOX 304”), applied regardless of whether a restatement was caused by the personal misconduct of an issuer’s CEO and CFO or by other issuer misconduct.  The majority opinion left some important questions unanswered, but Judge Bea, who concurred with the majority’s analysis and holding, wrote separately to clarify the intended scope of the new legal rules announced by the Court’s opinion.
Continue Reading Ninth Circuit Permits SEC to Assert Standalone Claim for False Sarbanes-Oxley Certification and Confirms Disgorgement Remedy Against CEO and CFO Despite Lack of Personal Involvement In Underlying Misconduct