He argues that Turner v. Cincinnati Insurance Company and United States v. Gluk prove that the district court could have relied on third-party pleadings to establish that Nobilis acted with scienter, as required by the PSLRA. 9 F.4th 300, 315 (5th Cir. 2021); 831 F.3d 608 (5th Cir. 2016). We disagree.

Although this can be a legitimate sales strategy, it was fraudulent here because DiscoCare purchased medical devices that it knew it could not sell reasonably soon for the sole purpose of propping up ArthroCare's quarterly earnings. United States v. Gluk , 831 F.3d 608, 611 (5th Cir. 2016). In the present case, the plaintiff contends that AOS carried out a supposedly similar fraud using a Chinese company as a coconspirator.

Applying this framework, the district court did not abuse its discretion when it refused to admit the consent forms into evidence.United States v. Gluk , 831 F.3d 608, 613 (5th Cir. 2016) (citing United States v. El-Mezain , 664 F.3d 467, 494 (5th Cir. 2011) ).Williams v. Manitowoc Cranes, L.L.C. , 898 F.3d 607, 615 (5th Cir. 2018) (quoting Heinsohn v. Carabin & Shaw, P.C. , 832 F.3d 224, 233 (5th Cir. 2016) ).

Finally, unless the government agency disavows it, "a report prepared by a staff member in the ordinary course of duty and circulated outside the agency is exactly the sort of 'factual findings from a legally authorized investigation' that 803(8)[A](iii) is designed to exclude from the prohibition on hearsay." See United States v. Gluk, 831 F.3d 608, 613 (5th Cir. 2016); cf. Smith v. Isuzu Motors Ltd., 137 F.3d 859, 862 (5th Cir. 1998) (concluding that "positions and opinions of individual staff members, which the agency ultimately declined to accept" did not reflect "factual findings" for purposes Rule 803(8)(A)(iii)). In 2011, subsection 8(C) was deleted and is now found under subsections (8)(A)(iii) and (B).

Schulman first cites to U.S. v. Gluk, 831 F.3d 608 (5th Cir. 2016). As an initial matter, the Court finds Gluk largely unpersuasive for the reasons laid out in the Court's Order dated February 10, 2017.

In one, the court vacated a criminal conviction because the district court excluded evidence offered by the defendant that was highly probative and not very prejudicial. United States v. Gluk , 831 F.3d 608, 616 (5th Cir. 2016).

Neither opinion refutes our conclusion. In United States v. Gluk , 831 F.3d 608, 614 (5th Cir. 2016), the Fifth Circuit held that when an "agency professional transmits a document to others outside the agency, that document is presumptively a factual finding of the agency." But the central issue there was whether the SEC had "declined to adopt the report," not whether the findings were based on the preparer's own observations or knowledge.

United States v. Gluk , 831 F.3d 608, 611–12 (5th Cir. 2016) (amended opinion on petition for panel rehearing). After the Securities and Exchange Commission ("SEC") and the Department of Justice ("DOJ") investigated, a grand jury indicted Baker and Gluk on charges for wire fraud, securities fraud, making false statements to the SEC, and conspiracy to commit wire fraud and securities fraud.

United States v. Gluk , 831 F.3d 608, 611–12 (5th Cir. 2016) (amended opinion on petition for panel rehearing). After the Securities and Exchange Commission ("SEC") and the Department of Justice ("DOJ") investigated, a grand jury indicted Baker and Gluk on charges for wire fraud, securities fraud, making false statements to the SEC, and conspiracy to commit wire fraud and securities fraud.

The declassified documents meet the first criterion because they consist of publicly available factual findings written pursuant to investigations authorized by the CIA. See United States v. Gluk, 831 F.3d 608, 614 (5th Cir. 2016) (noting that where an agency “transmits a document to others outside the agency, that document is presumptively a factual finding”).