However, to the extent that they are inconsistent with positions Oliver has taken in this suit, these pleadings may be submitted as admissions against interest and they can be used for impeachment purposes. See In re Zonagen, Inc. Secs. Litig., 322 F. Supp.2d 764, 783 (S.D. Tex. 2003)("Statements a party makes in pleadings in one case that are inconsistent with the positions a party takes in another case may be admissible as admissions against interest and for impeachment."). Therefore, Oliver's objection is SUSTAINED IN PART AND OVERRULED IN PART.
It simply represents possible evidence of an absence of any fraudulent intent. United States v. Peterson, 101 F.3d 375, 381 (5th Cir. 1996); In re Zonagen, Inc. Securities Litigation, 322 F.Supp.2d 764, 775 (S.D. Tex. 2003). However, no good faith defense can be established unless the defendants show by a preponderance of the evidence: (1) that Rivera informed the lawyers of all relevant facts; (2) that he did not misrepresent any relevant facts to the lawyers; (3) that he asked the lawyers for a specific opinion about the particular point that on which he claims to rely; and (4) that he actually received the specific opinion he requested from the lawyers on which he claims to rely.
)) As a consequence, the Court finds that Plaintiffs' expert offers only " well-informed speculation." SeeOscar, 487 F.3d at 271; see, e.g.,In re Zonagen Inc. Securities Litigation, 322 F.Supp.2d 764, 781-82 (S.D.Tex.2003) (finding fatal flaw in plaintiffs' expert because he assumed very fact being proffered to prove). The more serious shortcoming, however, is the use of Plaintiffs' expert of the " true financial condition" theory.
Recovery based on a "`fraud on the market' theory . . . requires that `the complained of misrepresentation or omission have actually affected the market price of the stock.'" Nathenson v. Zonagen, Inc. (In re Zonagen Sec. Litig.), 322 F. Supp. 2d 764, 775 (D. Tex. 2003) (quoting Nathenson v. Zonagen, Inc., 267 F.3d 400, 415 (5th Cir. 2001)); see also Sparling v. Daou (In re Daou Sys.), 397 F.3d 704, 722 (9th Cir. 2005) ("[I]f the [allegedly] improper accounting did not lead to the decrease in [defendant]'s stock price, plaintiffs' reliance on the improper accounting in acquiring the stock would not be sufficiently linked to their damages."). Ravisent's March 14, 2000, announcement that it would restate its second and third quarter 1999 results did not cause a significant decrease in its stock price, however.