A divided panel of this court concluded that plaintiffs failed to state a claim. Helwig v. Vencor, Inc., 210 F.3d 612 (6th Cir. 2000). We granted plaintiffs' petition for a rehearing en banc.
Wright v. Associated Insurance Companies, 29 F.3d 1244, 1248 (7th Cir. 1994); see also, e.g., Venture Associates Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 431 (7th Cir. 1993). Accord, Helwig v. Vencor, Inc., 210 F.3d 612, 618 (6th Cir. 2000). The referenced section on "Forward-Looking Statements," which began on page 94 of the prospectus, contained a general description of what constitutes a "forward looking statement" and then said, "You should understand that forward-looking statements are not guarantees since there are inherent difficulties in predicting future results.
Wright v. Associated Insurance Companies, 29 F.3d 1244, 1248 (7th Cir. 1994); see also, e.g., Venture Associates Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 431 (7th Cir. 1993). Accord, Helwig v. Vencor, Inc., 210 F.3d 612, 618 (6th Cir. 2000). The referenced section on "Forward-Looking Statements," which began on page 94 of the prospectus, contained a general description of what constitutes a "forward looking statement" and then said, "You should understand that forward-looking statements are not guarantees since there are inherent difficulties in predicting future results.
The PSLRA heightened the pleading standard in securities litigation. Helwig v. Vencor, Inc., 210 F.3d 612, 619 (6th Cir. 2000). Section 78u-4(b) of the PSLRA states:
First, KBC asks us to take judicial notice of Omnicare's Audit Committee Charter, which was attached to the company's proxy statement filed with the SEC in 2004. KBC claims that “this [c]ourt may consider ‘not only those documents referenced in the plaintiffs' complaint, but also documents filed with the SEC.’ ” Appellant MJN at 5 (quoting Helwig v. Vencor, 210 F.3d 612, 618 n. 10 (6th Cir.2000), rev'd on other grounds, 251 F.3d 540 (6th Cir.2001) (en banc), cert. denied, 536 U.S. 935, 122 S.Ct. 2616, 153 L.Ed.2d 800 (2002)); see also id. at 5 n. 2 (citing, inter alia, Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir.1991)).
One recent decision which appeared to support such an approach in the context of a securities fraud action has been vacated, however, casting doubt on the viability of that approach. See Helwig v. Vencor, Inc., 210 F.3d 612, 618 (6th Cir.) (securities fraud class action finding that conversion to summary judgment not required when considering documents referred to in complaint and central to plaintiffs' claims), vacated by 222 F.3d 268 (6th Cir. 2000), rev'd en banc, 251 F.3d 540 (6th Cir. 2001), cert. dismissed ___ U.S. ___, 122 S.Ct. 2616 (2002). In Helwig, the district court converted a motion to dismiss into a motion for summary judgment in order to consider certain documents, then ruled in favor of defendants.
One recent decision which appeared to support such an approach in the context of a securities fraud action has been vacated, however, casting doubt on the viability of that approach. See Helwig v. Vencor, Inc., 210 F.3d 612, 618 (6th Cir.) (securities fraud class action finding that conversion to summary judgment not required when considering documents referred to in complaint and central to plaintiffs' claims), vacated by 222 F.3d 268 (6th Cir. 2000), rev'd en banc, 251 F.3d 540 (6th Cir. 2001), cert. dismissed, ___ U.S. ___, 122 S.Ct. 2616 (2002). In Helwig, the district court converted a motion to dismiss into a motion for summary judgment in order to consider certain documents, then ruled in favor of defendants.
When a defendant's motion to dismiss references documents of public record that are central to the plaintiff's claim but not included in the complaint, Rule 12(b)(6) remains the appropriate standard of review. Helwig v. Vencor, Inc., 210 F.3d 612, 618 n. 10 (6th Cir. 2000), rev'd on other grounds, 251 F.3d 540 (6th Cir. 2001) (en banc) (taking notice of SEC documents "does not require conversion of defendants' motion to dismiss to a motion for summary judgment"); 5C Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure, § 1366, at 185-86 (3d ed. 2004). ANALYSIS
When a defendant's motion to dismiss references documents of public record that are central to the plaintiff's claim but not included in the complaint, Rule 12(b)(6) remains the appropriate standard of review. Helwig v. Vencor, Inc., 210 F.3d 612, 618 n. 10 (6th Cir. 2000), rev'd on other grounds, 251 F.3d 540 (6th Cir. 2001) (en banc) (taking notice of SEC documents "does not require conversion of defendants' motion to dismiss to a motion for summary judgment"). ANALYSIS
See Yanacos v. Lake County, 953 F. Supp. 187, 191 (N.D. Ohio 1996). Further, undisputably authentic documents submitted by a defendant, which are both referenced in and central to the complaint, but are not attached to it, can be considered by the Court without transforming the Rule 12 motion into a Rule 56 motion.See Helwig v. Vencor, Inc., 210 F.3d 612, 615 n. 13 (6th Cir. 2000), reversed on other grounds on rehearing en banc, 251 F.3d 540 (6th Cir. 2001); see also MacArthur v. San Juan County, 309 F.3d 1216, 1221 (10th Cir. 2002). Such documents are not considered to be "matters outside the pleadings."