Opinion
No. 06-35894.
Argued and Submitted February 8, 2008.
Filed April 22, 2008.
Gary M. Berne, Esq., David C. Rees, Stoll Stoll Berne Lokting Schlachter, PC, Portland, OR, Gregory M. Castaldo, Esq., Andrew L. Zivitz, Esq., Michelle M. Newcomer, Esq., Schiffrin Barroway Topaz Kessler, LLP, Radnor, PA, for Plaintiff-Appellant.
Ronald L. Berenstain, Joseph E. Brangham, Esq., Perkins Coie, LLP, Richard L. Baum, Esq., Seattle, WA, Jay A. Zollinger, Esq., Perkins Coie, LLP, Thomas C. Sand, Esq., Bruce L. Campbell, Esq., Ky B. Fullerton, Esq., Miller Nash, LLP, Darryl S. Lew, Esq., Portland, OR, White Case, LLP, Washington, DC, Michael S. Shuster, Esq., James T. Cain, Esq., White Case LLP, New York, NY, for Defendants-Appellees.
Appeal from the United States District Court for the District of Oregon, Michael W. Mosman, District Judge, Presiding. D.C. Nos. CV-04-00826-MO, CV-04-00859-MO, CV-04-00860-MO, CV-04-00931-MO.
Before: RYMER, T.G. NELSON, and PAEZ, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Central Laborers Pension Fund (the "Fund") appeals the district court's dismissal with prejudice of the Fund's Second Consolidated and Amended Class Action Complaint ("SAC") alleging violations of Sections 12 and 15 of the Securities Act by Merix Corporation and various other individuals and companies (collectively, "Defendants"). We have jurisdiction over this appeal under 28 U.S.C. § 1291. We reverse.
The Fund is not foreclosed from making allegations or claims in the SAC that are inconsistent with or contradicted by allegations or claims made in the Fund's previous complaint. See PAE Gov't Servs. v. MPRI, Inc., 514 F.3d 856, 858-60 (9th Cir. 2007).
Fraud is not an essential element of the claims raised in the SAC, and the SAC neither specifically alleges fraud, nor does it allege facts that necessarily constitute fraud. See Vess v. CIBA-GEIGY Corp. USA, 317 F.3d 1097, 1104-05 (9th Cir. 2003). Accordingly, the allegations in the SAC do not "sound in fraud" and the SAC is not required to comply with the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). See id.
We have considered and reject the additional arguments raised by Defendants.
REVERSED AND REMANDED.
I concur because the majority's is a fair read of Vest v. CIBA-GEIGY Corp. USA, 317 F.3d 1097, 1104-05 (9th Cir. 2003), and PAE Gov't Servs., Inc. v. MPRI, Inc., 514 F.3d 856, 858-60 (9th Cir. 2007). That said, it is unclear to me how Vess — which is not a securities case — melds with In re Star, Elec. Sec. Litig., 89 F.3d 1399 (9th Cir. 1996), and In re Daou Sys., Inc., 411 F.3d 1006 (9th Cir. 2005) — which are. It is also difficult to square the strict liability nature of a Section 12 and 15 Securities Act violation with a Vess or Stac analysis. And it is tough to read the amended pleading in this case as claiming anything other than a classic securities fraud. For sure the magic words are missing, and the plaintiff is the master of the complaint; still the scheme alleged in the amended pleading walks and talks like fraud, as did the scheme averred in the original pleading. It's hard to say that Merix's reputational harm (which Rule 9(b) is there to protect) is any less obvious in the amended pleading than it was in the original pleading. Perhaps it is time we tried to straighten our law out.