Cavalier Fundamental Growth Fund v. Skechers U.S.A., Inc.

Full title: CAVALIER FUNDAMENTAL GROWTH FUND, Movant-Appellant, STEAMFITTERS LOCAL 449…

Court: UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Date published: Oct 20, 2020

19-3468-cv (2d Cir. Oct. 20, 2020)

Opinion

19-3468-cv

10-20-2020

CAVALIER FUNDAMENTAL GROWTH FUND, Movant-Appellant, STEAMFITTERS LOCAL 449 PENSION PLAN, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. SKECHERS U.S.A, INC., ROBERT GREENBERG, DAVID WEINBERG, Defendants-Appellees.

For Movant-Appellant: DAVID J. GOLDSMITH (Carol C. Villegas, Alec T. Coquin, on the brief), Labaton Sucharow LLP, New York, NY. For Defendants-Appellees: ABBY F. RUDZIN (Seth Aronson, Los Angeles, CA, on the brief), O'Melveny & Myers LLP, New York, NY.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk of Court

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court's Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 20^th day of October, two thousand twenty. PRESENT: JON O. NEWMAN, RICHARD C. WESLEY, JOSEPH F. BIANCO, Circuit Judges. For Movant-Appellant: DAVID J. GOLDSMITH (Carol C. Villegas, Alec T. Coquin, on the brief), Labaton Sucharow LLP, New York, NY. For Defendants-Appellees: ABBY F. RUDZIN (Seth Aronson, Los Angeles, CA, on the brief), O'Melveny & Myers LLP, New York, NY.

On appeal from the United States District Court for the Southern District of New York (Torres, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Movant-Appellant Cavalier Fundamental Growth Fund appeals from the district court's September 23, 2019 order dismissing the Second Amended Complaint for failure to state a claim. This Court reviews the grant of a motion to dismiss de novo, accepting all factual allegations in the complaint as true and drawing all reasonable inferences in favor of the plaintiff. City of Providence v. BATS Glob. Mkts., Inc., 878 F.3d 36, 48 (2d Cir. 2017). For substantially the reasons provided by the district court, we AFFIRM the decision below.¹

1 Three alleged misstatements were not specifically identified as inactionable in the opinion below. See Joint App'x at 74, 96, 99. The district court's analysis of the other alleged misstatements extends to those three as well. Each is inactionable as opinion, puffery, or a forward-looking statement accompanied by meaningful cautionary language—or some combination of the three. Further, we agree with the district court that we need not reach the scienter issue since Appellant's Section 10(b) claim fails in the absence of actionable misstatements. --------

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk of Court