Norfolk County Retirement System v. Health Management Associates, Inc. , 608 F. App'x 855 ( 2015 )

Case: 14-12838 Date Filed: 05/11/2015 Page: 1 of 31
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12838
________________________
D.C. Docket No. 2:12-cv-00046-JES-DNF
MIKLEN SAPSSOV,
Individually and on behalf of all others
similarly situated, et al.,
Plaintiffs,
NORFOLK COUNTY RETIREMENT SYSTEM,
individually and on behalf of all others similarly situated,
Plaintiff - Appellant,
NEW ENGLAND TEAMSTERS & TRUCKING INDUSTRY PENSION FUND,
OPERATING ENGINEERS TRUST FUNDS,
Movants – Appellants,
versus
HEALTH MANAGEMENT ASSOCIATES, INC.,
GARY D. NEWSOME,
KELLY E. CURRY,
ROBERT E. FARNHAM,
Defendants - Appellees.
Case: 14-12838 Date Filed: 05/11/2015 Page: 2 of 31
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 11, 2015)
Before MARTIN and FAY, Circuit Judges, and GOLDBERG,* Judge.
PER CURIAM:
Plaintiffs-appellants, Norfolk County Retirement System, New England
Teamsters & Trucking Industry Pension Fund, Operating Engineers Trust Funds
(collectively, “plaintiffs-appellants”), appeal dismissal of their second-amended
complaint in this securities-fraud class action, alleging a scheme to defraud
Medicare by defendants-appellees, Health Management Associates, Inc. (“HMA”)
and its executives, Gary D. Newsome, Kelly E. Curry, and Robert E. Farnham.
We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
HMA, a for-profit corporation incorporated in Delaware and headquartered in
Naples, Florida, operates acute-care hospitals and other healthcare facilities in non-
urban areas throughout the United States. The individual defendants-appellees are
___________________
*Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by
designation.
2
Case: 14-12838 Date Filed: 05/11/2015 Page: 3 of 31
current or former directors or officers of HMA. 1 Medicare reimburses healthcare
providers for medical services provided to individuals covered by the program.
Most hospitals, including those owned by HMA, derive a substantial portion
of their revenue from Medicare, which necessitates compliance with its
requirements to receive reimbursement. When a patient seeks treatment at a
hospital, physicians have three choices regarding that patient’s disposition: (1)
admit as an inpatient, (2) admit for observation, or (3) discharge after immediate
treatment. Both inpatient status and observation status place patients in a hospital
bed, which may involve one or more overnight stays.
Inpatient care generally is reserved for patients requiring high-intensity
services, while observational care involves less-intensive services and consists of a
hospital stay of eight to forty-eight hours. Medicare reimbursement for inpatient
care is substantially greater than for observational care. Medicare will reimburse
hospitals for services and treatment that are “reasonable and necessary.” 42 U.S.C.
§ 1395y(a)(1)(A).
1
Gary Newsome has served as HMA President and Chief Executive Officer since September 15,
2008, and also is a member of the HMA Board of Directors. Kelly Curry has served as HMA
Vice President and Chief Financial Officer since January 10, 2010. Robert Farnham was HMA
Senior Vice President and Chief Financial Officer from March 2001 through January 10, 2010;
he also served as HMA Senior Vice President of Finance.
3
Case: 14-12838 Date Filed: 05/11/2015 Page: 4 of 31
Prior to the start of the class period, July 27, 2009, though January 9, 2012,
HMA was a highly leveraged company confronting declining hospital admissions.
After resignation of the former HMA Chief Operating Officer (“CEO”), the Board
of Directors selected Newsome as President and CEO in September 2008. To
improve revenue returns, Newsome told investors HMA would focus on three
operational initiatives to improve the company’s financial performance: (1) the
Emergency Department, (2) physician recruitment and development, and (3)
market-service development. Plaintiffs-appellants allege HMA devised a corporate
policy mandating unnecessary admission of Medicare patients to HMA hospitals to
boost its financial position and stock price. Consequently, HMA admitted patients
for observation, when they did not need to be admitted, and admitted inpatients,
who should have been admitted for observation. 2
Effective at the end of 2009, HMA upgraded the Pro-MED software used in
the Emergency Departments of its hospitals. Pro-MED is a system to control
physicians and increase patient admissions by ordering an extensive series of tests,
many of which are unnecessary, when a patient enters an emergency room, thereby
generating hospital revenue. By allegedly manipulating the Pro-MED system,
2
Plaintiffs-appellants obtained substantial information to support allegations in the second-
amended, class-action complaint by interviewing former HMA employees as confidential
witnesses at its various hospitals nationwide.
4
Case: 14-12838 Date Filed: 05/11/2015 Page: 5 of 31
HMA ensured physicians would enter data to enable the system to recommend the
emergency patient be admitted as an inpatient.
HMA allegedly also pressed doctors to admit more Medicare patients,
whose costs were guaranteed. 3 It hired outside consultants to review case files and
to apply pressure on its physicians to increase admissions, regardless of medical
necessity. In addition to admitting improperly patients, who arrived through the
Emergency Department, HMA allegedly unnecessarily admitted patients, who
arrived at the hospital for scheduled visits, and coded them as inpatients.
In May or June 2011, HMA hired Accretive Health, which provides services
to help healthcare providers generate sustainable improvements in their operating
margins and healthcare quality. HMA had Accretive Health review patient
information and pressure physicians to admit observation patients as inpatients.
Because the cost per review of a patient file by Accretive Health was
approximately $210, HMA determined only files of Medicare patients and possible
surgery patients not admitted as inpatients were sent to Accretive Health for
review.
3
Physicians were pressured to admit patients improperly to meet admission quotas set by the
HMA corporate office. A confidential witness reported that HMA administrators were
concerned, when the admission rate was below 20-22% each day. HMA sent to every HMA
hospital daily reports, which contained patient-observation information, including the number of
patient observations versus inpatient admissions, patient account numbers, and billing rates.
5
Case: 14-12838 Date Filed: 05/11/2015 Page: 6 of 31
HMA ignored reports of improper patient admissions, including reports
made by Paul Meyer, a former agent with the Federal Bureau of Investigation and
former HMA Director of Compliance, who was tasked with ascertaining whether
specific HMA hospitals complied with applicable federal and state laws as well as
internal policies. In January 2010, Meyer discovered serious compliance issues
involving Medicare billing practices at many HMA hospitals. In the first half of
2010, Meyer warned HMA that several of its hospitals had secured higher
government Medicare payments for elderly and disabled patients by fraudulently
billing Medicare for patients improperly admitted as inpatients. When Meyer’s
compliance concerns were unaddressed and uncorrected by HMA, he advised his
supervisor in August 2010 he was going to prepare a detailed memorandum
describing his observations for review by HMA top management and Board of
Directors. Meyer’s supervisor required him to submit his memorandum to in-
house counsel and to moderate it. Meyer was prohibited from listing CEO
Newsome as a recipient and instructed by HMA counsel to destroy his drafts of the
memorandum, which Meyer did not do.
Meyer submitted his memorandum on August 19, 2010, to his supervisor,
Mat Tormey, HMA Vice President of Compliance and Security, who reported
directly to the Board of Directors and Newsome. Meyer additionally reported the
fraudulent billing practices to Newsome. Rather than addressing the concerns in
6
Case: 14-12838 Date Filed: 05/11/2015 Page: 7 of 31
Meyer’s memorandum, HMA removed Meyer’s oversight at hospitals identified in
his memorandum and changed his job responsibilities. Shortly thereafter, HMA
terminated his employment. On October 19, 2011, Meyer filed a whistleblower
action against HMA. Other HMA employees faced termination for complaining or
reporting on fraudulent billing practices.
Plaintiffs-appellants allege the truth about the fraudulent practices for profit
of HMA was revealed in various disclosing or revealing events. The first
disclosure occurred on August 3, 2011, when HMA revealed it had received two
subpoenas from the United States Department of Health and Human Services,
Office of Inspector General (“OIG”). The subpoenas sought information related to
Emergency Department management and the use of Pro-MED software by HMA.
Following disclosure of the subpoenas, HMA stock declined in value and was
downgraded by Wall Street analysts; HMA common stock declined by 9.12%. On
October 25, 2011, HMA disclosed in its form 10-Q the subpoenas might be related
to violations of the Anti-Kickback Statute and False Claims Act and could have
resulted from a whistleblower complaint, the details of which HMA had withheld.
On November 16, 2011, Richard W. Clayton III, Research Director at CtW
Investment Group, sent a letter to Kent P. Dauten, Chairman of the HMA Audit
Committee, and informed him HMA admissions rates far exceeded those that
7
Case: 14-12838 Date Filed: 05/11/2015 Page: 8 of 31
could be explained by patient acuity or hospital geography. CtW estimated the
excess admissions generated $40 million in excess Medicare billing in 2009, 25%
of the net income for that year. Following the revelation of Meyer’s lawsuit, CtW
sent a second letter on January 17, 2012, and noted Meyer’s allegations comported
with its findings.
On January 9, 2012, equity analyst Sheryl Skolnick of CRT issued a report
(“2012 Skolnick Report”) informing the market of the wrongful termination
lawsuit filed by Meyer (the “Meyer action”). With this disclosure, the price of
HMA common stock declined more than 7% with an abnormal amount of shares
traded. The following day, HMA revealed Timothy R. Parry, Senior Vice
President, General Counsel, and Secretary had resigned effective immediately.
The same day, HMA stock fell an additional 13% with more than sixty-eight
million shares traded.
On July 30, 2012, plaintiffs-appellants filed an amended complaint, alleging
HMA had violated the Exchange Act during the Class Period.4 They alleged HMA
concealed from investors it had engaged in a scheme to defraud Medicare by
improperly admitting and billing patients for unnecessary emergency treatment.
HMA moved to dismiss and argued the amended complaint failed to allege
4
Plaintiff-appellant New England Teamsters & Trucking Industry Pension Fund was the court-
appointed lead plaintiff.
8
Case: 14-12838 Date Filed: 05/11/2015 Page: 9 of 31
sufficiently the requisite falsity, scienter, and loss causation elements of a § 10(b)
claim under the Exchange Act, as required by the Private Securities Litigation
Reform Act of 1995 (“PSLRA”).
On December 2, 2012, CBS aired a 60 Minutes segment focusing on HMA
patient admissions and billing practices. After interviewing over a hundred current
and former employees, the program detailed how HMA pressured its physicians to
admit patients, who should not have been admitted, to generate higher Medicare
revenue, set admissions quotas that could not have been met in the absence of
fraud, and customized its Pro-MED computer to justify improper admission of
more patients. The segment linked the admissions procedures directly to
Newsome’s arrival through the testimony of a former HMA Executive Vice
President.
The day after this 60 Minutes segment aired, December 3, 2012, the CRT
Capital Group LLC published a 161-page report, showing how HMA admission
rates changed dramatically after Newsome became CEO. The report compared
HMA hospitals during the 2006-to-2010 period to local competitors in the same
state and concluded HMA had a high number of short stays and a low observation
rate. The CRT report further determined the HMA troubling admission patterns
occurred after its management had changed.
9
Case: 14-12838 Date Filed: 05/11/2015 Page: 10 of 31
While the HMA motion to dismiss the first-amended complaint was
pending, plaintiffs-appellants sought and received leave to file the subject second-
amended complaint. Filed on February 25, 2013, the second-amended complaint
included facts revealed during the 60 Minutes investigation of HMA patient
admissions and billing practices to increase its revenues. HMA again moved to
dismiss, based on failure to allege adequately falsity, scienter, and loss causation,
required by the PSLRA. In his May 21, 2014, opinion and order, the district judge
granted the HMA motion to dismiss plaintiffs-appellants’ second-amended, class-
action complaint, because plaintiffs-appellants had failed to plead loss causation
adequately. Plaintiffs-appellants timely appealed.
10
Case: 14-12838 Date Filed: 05/11/2015 Page: 11 of 31
II. DISCUSSION
A. Statutory and Pleading Requirements
In this class action, plaintiffs-appellants allege HMA and three of its
executives violated § 10(b) of the Exchange Act 5 and Rule 10b-56 by failing to
disclose the fraudulent scheme of HMA to increase its Medicare revenue. To state
a claim for securities fraud under § 10(b) and Rule 10b-5, a plaintiff must allege
adequately:
5
Section 10(b) of the Exchange Act provides:
It shall be unlawful for any person, directly or indirectly, . . . [t]o use or employ,
in connection with the purchase or sale of any security . . . any manipulative or
deceptive device or contrivance in contravention of such rules and regulations as
the Commission may prescribe as necessary or appropriate in the public interest
or for the protection of investors.
15 U.S.C. § 78j(b).
6
Rule 10b–5, promulgated by the SEC pursuant to § 10(b), provides in relevant part:
It shall be unlawful for any person, directly or indirectly, . . . [t]o make any untrue
statement of a material fact or to omit to state a material fact necessary in order to
make the statements made, in the light of the circumstances under which they
were made, not misleading . . . .
17 C.F.R. § 240.10b–5(b).
Plaintiffs-appellants also bring a control-person claim under § 20(a) of the Exchange Act.
Section 20(a) liability derives from liability under § 10(b); an examination of their § 20(a) claim
necessarily requires a finding of § 10(b) liability. See Thompson v. RelationServe Media, Inc.,
610 F.3d 628, 635–36 (11th Cir. 2010). Since there was no § 10(b) liability, there is no
derivative liability on which to base a § 20(a) claim, and we need not address it. See Laperriere
v. Vesta Ins. Grp., Inc., 526 F.3d 715, 721 (11th Cir. 2008) (per curiam) (noting § 20(a)
“unambiguously imposes derivative liability on persons that control primary violators of the
Act”).
11
Case: 14-12838 Date Filed: 05/11/2015 Page: 12 of 31
(1) a material misrepresentation or omission; (2) scienter—a wrongful
state of mind; (3) a connection between the misrepresentation and the
purchase or sale of a security; (4) reliance, “often referred to in cases
involving public securities markets (fraud-on-the-market cases) as
transaction causation”; (5) economic loss; and (6) “loss causation, i.e.,
a causal connection between the material misrepresentation and the
loss.”
Meyer v. Greene, 710 F.3d 1189, 1194 (11th Cir. 2013) (quoting Dura Pharms.,
Inc. v. Broudo, 544 U.S. 336, 341-42, 125 S. Ct. 1627, 1631 (2005)).
We review a district judge’s dismissal of a complaint de novo and accept all
well-pleaded facts as true, construing them most favorably to the nonmoving party.
World Holdings, LLC v. Fed. Republic of Germany, 701 F.3d 641, 649 (11th Cir.
2012). Nonetheless, “[f]actual allegations that are merely consistent with a
defendant’s liability fall short of being facially plausible.” Chaparro v. Carnival
Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (citations and internal quotation
marks omitted). An action alleging securities fraud is subject to the heightened
pleading requirements of Federal Rule of Civil Procedure 9(b), which requires a
complaint “to state with particularity the circumstances constituting fraud.” Fed.
R. Civ. P. 9(b); Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1237 (11th Cir.
2008). “The particularity requirement of Rule 9(b) is satisfied if the complaint
alleges facts as to time, place, and substance of the defendant’s alleged fraud,
specifically the details of the defendants’ allegedly fraudulent acts, when they
12
Case: 14-12838 Date Filed: 05/11/2015 Page: 13 of 31
occurred, and who engaged in them.” United States ex rel. Matheny v. Medco
Health Solutions, Inc., 671 F.3d 1217, 1222 (11th Cir. 2012) (citations and internal
quotation marks omitted).
In addition, the PSLRA provides for Rule 10b-5 claims predicated on
allegedly false or misleading statements or omissions: “the complaint shall specify
each statement alleged to have been misleading, the reason or reasons why the
statement is misleading, and, if an allegation regarding the statement or omission is
made on information and belief, the complaint shall state with particularity all facts
on which that belief is formed.” 15 U.S.C. § 78u-4(b)(1). “[F]or all private Rule
10b-5 actions requiring proof of scienter, ‘the complaint shall, with respect to each
act or omission alleged to violate this chapter, state with particularity facts giving
rise to a strong inference that the defendant acted with the required state of mind
[i.e., scienter].’” FindWhat Investor Grp. v. FindWhat.com, 658 F.3d 1282, 1296
(11th Cir. 2011) (quoting 15 U.S.C. § 78u-4(b)(2)) (first alteration added). The
complaint also must allege facts supporting a strong inference of scienter “for each
defendant with respect to each violation.” Phillips v. Scientific-Atlanta, Inc., 374
F.3d 1015, 1016 (11th Cir. 2004).
The district judge found plaintiffs-appellants had satisfied the PSLRA
heightened pleading requirements, because “the factual allegations, when accepted
13
Case: 14-12838 Date Filed: 05/11/2015 Page: 14 of 31
as true, plausibly state with the requisite particularity the securities fraud claims.”
Order Dismissing Second Amended Complaint at 32. He also determined
plaintiffs-appellants had “sufficiently plead the false and misleading statements” to
show material misrepresentations, id., based on particularized allegations “HMA
led the peer group in admissions because of the fraudulent admission of Medicare
patients, not the success of the Emergency Department initiatives,” id. at 33. The
judge further concluded, “[b]ecause Newsome put the source of HMA’s success at
issue, the alleged failure to disclose the true source of this revenue could give rise
to liability under § 10(b),” evidencing plaintiffs-appellants “h[ad] sufficiently
alleged that defendants made false and misleading statements.” Id. at 34. Noting
“allegations of the aggressive admission policies initiated by Newsom, the
individual defendants’ heavy involvement in daily operations, the upgrade of the
Pro-MED software, and the use of Accretive Health, the amount and widespread
nature of the fraud, the allegations in the Meyer [whistleblower] action, and the
investigation by the OIG,” the judge concluded these “allegations, when viewed
holistically, create a strong inference of scienter.” Id. at 36. We agree with the
district judge’s analysis regarding the second-amended complaint as to
particularity, material misrepresentation, and scienter reflected in the purchase and
sale of HMA stock.
14
Case: 14-12838 Date Filed: 05/11/2015 Page: 15 of 31
But the judge reasoned the OIG investigation, without disclosure of actual
wrongdoing, did not qualify as a corrective disclosure, in accordance with our
Meyer decision. The judge also determined the Meyer whistleblower case and the
2012 Skolnick Report, summarizing the facts of that lawsuit, could not qualify as
a corrective disclosure, because the Meyer case did not establish the falsity of any
prior statements, and the Skolnick Report was nothing more than a restatement of
information that already was public. Therefore, the determinative factor for the
district judge and before this court is whether plaintiffs-appellants’ adequately
alleged loss causation. 7
7
Plaintiffs-appellants reference the materialization-of-concealed-risk theory of loss
causation. This court “has never decided whether the materialization-of-concealed-risk theory
may be used to prove loss causation in a fraud-on-the-market case,” and we do not do so now,
because loss causation is sufficient to resolve this case. Hubbard v. BankAtlantic Bancorp, Inc.,
688 F.3d 713, 726 n.25 (11th Cir. 2012). In their complaint, plaintiffs-appellants allege HMA
created a risk that, absent its fraudulent conduct, revenues and admissions would decline. But
plaintiffs-appellants fail to allege adequately how this risk materialized and caused harm to
HMA shareholders.
15
Case: 14-12838 Date Filed: 05/11/2015 Page: 16 of 31
B. Fraud on the Market and Loss Causation
“A ‘fraud on the market’ occurs when a material misrepresentation is
knowingly disseminated to an informationally efficient market.” FindWhat, 658
F.3d at 1310 (citing Basic Inc. v. Levinson, 485 U.S. 224, 247, 108 S. Ct. 978, 991-
92 (1988)). In a § 10(b) lawsuit, a plaintiff must show proof of reliance on the
alleged misrepresentation. Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct.
2179, 2184 (2011). Fraud-on-the-market theory relies on the “efficient market
hypothesis, which provides . . . that ‘in an open and developed securities market,
the price of a company’s stock is determined by the available material information
regarding the company and its business.’” FindWhat, 658 F.3d at 1309-10(quoting Basic, 485 U.S. at 241, 108 S. Ct. at 989). An efficient market transmits
information efficiently to prove reliance as well as to prove loss causation. Meyer,
710 F.3d at 1198-99. Fraud-on-the-market theory in class-action, securities-fraud
cases creates a rebuttable presumption of reliance, provided the misstatement was
material, and the market was informationally efficient. FindWhat, 658 F.3d at1310 (citing Basic, 485 U.S. at 247, 108 S. Ct. 978, 991-92). Plaintiffs-appellants
argue the efficient-market hypothesis to establish a presumption of reliance.
Disclosure of information known by the market, confirmatory information,
will not cause a change in stock price, because that information already has been
assimilated by the market and incorporated in the stock price. Id.16
Case: 14-12838 Date Filed: 05/11/2015 Page: 17 of 31
If and when the misinformation is finally corrected by the release of
truthful information (often called a “corrective disclosure”), the
market will recalibrate the stock price to account for this change in
information, eliminating whatever artificial value it had attributed to
the price. That is, the inflation within the stock price will “dissipate.”
Id. But merely showing a security was purchased at a price that was artificially
inflated by a fraudulent misrepresentation is insufficient. Hubbard v. BankAtlantic
Bancorp, Inc., 688 F.3d 713, 725 (11th Cir. 2012).
“[I]n a fraud-on-the-market case, the plaintiff must prove not only that a
fraudulent misrepresentation artificially inflated the security’s value but also that
‘the fraud-induced inflation that was baked into the plaintiff’s purchase price was
subsequently removed from the stock’s price, thereby causing losses to the
plaintiff.’” Id. (quoting FindWhat, 658 F.3d at 1311). Consequently, § 10(b) “is
not a prophylaxis against the normal risks attendant to speculation and investment
in the financial markets” and only protects against loses attributable to a given
misrepresentation. Meyer, 710 F.3d at 1196.
Plaintiffs frequently demonstrate loss causation in fraud-on-the-
market cases circumstantially, by: (1) identifying a “corrective
disclosure” (a release of information that reveals to the market the
pertinent truth that was previously concealed or obscured by the
company’s fraud); (2) showing that the stock price dropped soon after
the corrective disclosure; and (3) eliminating other possible
explanations for this price drop, so that the factfinder can infer that it
is more probable than not that it was the corrective disclosure—as
opposed to other possible depressive factors—that caused at least a
“substantial” amount of the price drop.
FindWhat, 658 F.3d at 1311-12 (footnote omitted).
17
Case: 14-12838 Date Filed: 05/11/2015 Page: 18 of 31
A corrective disclosure reveals the falsity of a previous representation to the
market. Meyer, 710 F.3d at 1197 (citing Lentell v. Merrill Lynch & Co., 396 F.3d
161, 175 n.4 (2d Cir. 2005)); see FindWhat, 658 F.3d at 1311 n.28. “To be
corrective, a disclosure need not precisely mirror the earlier misrepresentation, but
it must at least relate back to the misrepresentation and not to some negative
information about the company.” Id. (citation, internal quotation marks, and
alteration omitted). A corrective disclosure can be established by a series of
cumulative, partial disclosures. Id.; see Lormand v. U.S. Unwired, Inc., 565 F.3d
228, 261 (5th Cir. 2009). Plaintiffs-appellants allege the combination of two
partial disclosures—the OIG investigation and the 2012 Skolnick Report—
constitutes a corrective disclosure for the purpose of establishing loss causation.
C. Failure to Plead Loss Causation Adequately
“‘[L]oss causation analysis in a fraud-on-the-market case focuses on the
following question: even if the plaintiffs paid an inflated price for the stock as a
result of the fraud, (i.e., even if the plaintiffs relied), did the relevant truth
eventually come out and thereby cause the plaintiffs to suffer losses?’” Meyer, 710
F.3d at 1197 (quoting FindWhat, 658 F.3d at 1312). The market may react
negatively to the disclosure of an investigation, because it “can be seen to portend
an added risk of future corrective action.” Id. at 1201. An adverse market
reaction, however, does not establish the disclosure of an investigation constitutes
18
Case: 14-12838 Date Filed: 05/11/2015 Page: 19 of 31
a corrective disclosure; further allegations are required to establish that previous
statements were “false or fraudulent.” Id. New information is necessary to show
loss causation, because “the market price of shares traded on well-developed
markets reflects all publicly available information.” Basic Inc., 485 U.S. at 246,
108 S. Ct. at 991.
“[B]ecause a corrective disclosure must reveal a previously concealed truth,
it obviously must disclose new information, and cannot be merely confirmatory.”
FindWhat, 658 F.3d at 1311 n.28. We held in Meyer that an SEC investigation,
like the OIG investigation in this case, “without more, is insufficient to constitute a
corrective disclosure for purposes of § 10(b).” Meyer, 710 F.3d at 1201.
Revelation of the OIG investigation, including issuance of subpoenas, does not
show any actual wrongdoing and cannot qualify as a corrective disclosure.
Plaintiffs-appellants contend the subsequent 2012 Skolnick Report,
combined with the OIG investigation, together provided sufficient evidence of a
corrective disclosure to cause an adverse market response and satisfied the
requirements of Meyer. The Meyer whistleblower case, the basis of the 2012
Skolnick Report, was not proof of fraud, because a civil suit is not proof of
liability. Like the Einhorn Presentation in Meyer, the 2012 Skolnick Report
summarized facts from the Meyer case that had existed in publicly accessible court
dockets for three months before the Skolnick Report issued. While we may
19
Case: 14-12838 Date Filed: 05/11/2015 Page: 20 of 31
“countenance some lag” in the capacity of the market to digest publically available
information, the Meyer action was publicly available and the impetus for the 2012
Skolnick Report. Id. at 1198 n.9. Consequently, the information first revealed by
the Meyer action and summarized in the 2012 Skolnick Report was easily
obtainable, and the market was able to assimilate the information without the
assistance of the 2012 Skolnick Report. See Pub. Emps. Ret. Sys. of Miss. v.
Amedisys, Inc., 769 F.3d 313, 323 (5th Cir. 2014) (noting “complex economic data
understandable only through expert analysis may not be readily digestible by the
marketplace” and analysis of that data may not be merely confirmatory); In re
Gilead Scis. Sec. Litig., 536 F.3d 1049, 1058 (9th Cir. 2008) (determining a three-
month delay between a disclosure and a price drop did not break the causal chain
for loss causation where physicians, but not the general public, would be
responsive to the content of a Federal Drug Administration warning letter, and the
market did not respond until financial disclosures were made).
“[T]he mere repackaging of already-public information by an analyst or
short-seller is simply insufficient to constitute a corrective disclosure.” Meyer, 710
F.3d at 1199 (citing cases holding opinions and analyses of publicly available
information are not corrective disclosures). The lack of new information in the
2012 Skolnick Report is “fatal to the [plaintiffs-appellants’] claim of loss
causation.” Id. at 1198 (citing FindWhat, 658 F.3d at 1311 n.28). If an analyst’s
20
Case: 14-12838 Date Filed: 05/11/2015 Page: 21 of 31
report, such as the 2012 Skolnick Report, “based on already-public information
could form the basis for a corrective disclosure, then every investor who suffers a
loss in the financial markets could sue under § 10(b) using an analyst’s negative
analysis of public filings as a corrective disclosure.” Id. at 1199.
Plaintiffs-appellants’ allegations show only there was an OIG investigation,
a whistleblower lawsuit the market disregarded, and a negative summary of
already public information. Taken independently or combined, they are inadequate
to establish the falsity of HMA disclosures. Neither the OIG investigation nor the
2012 Skolnick Report are corrective disclosures, establishing a causal link for
plaintiffs-appellants’ stock-value loss. After three attempts at drafting complaints,
the district judge correctly decided plaintiffs-appellants had failed to allege
adequately loss causation to establish their securities-fraud class action and
dismissed their case with prejudice.
AFFIRMED.
21
Case: 14-12838 Date Filed: 05/11/2015 Page: 22 of 31
Martin, Circuit Judge, concurring in judgment only:
I agree that we must affirm the District Court’s dismissal of the plaintiffs’
complaint for failure to plead loss causation. Under our binding precedent in
Meyer v. Greene, 710 F.3d 1189 (11th Cir. 2013), plaintiffs must be armed with
proof of a misrepresentation in order to plead securities fraud. Applying that rule,
these plaintiffs cannot satisfy the loss causation pleading requirements by showing
that Health Management Associates’ stock price fell immediately after the
disclosure of a whistle-blower complaint alleging Medicare fraud and the
announcement of a government investigation into HMA’s Medicare billing
practices because neither the complaint nor the investigation revealed actual
wrongdoing. Id. at 1201 & n.13.
I believe Meyer was wrongly decided. To require a conclusive finding of
fraud at the pleadings stage imposes a prohibitive burden on plaintiffs and
immunizes defendants who have successfully concealed their misconduct from the
government. In my view, fully embracing Meyer’s logic would extinguish the
ability of private actions to serve as an independent check on market integrity. Cf.
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 313, 127 S. Ct. 2499,
2504 (2007) (“This Court has long recognized that meritorious private actions to
enforce federal antifraud securities laws are an essential supplement to criminal
prosecutions and civil enforcement actions brought, respectively, by the
22
Case: 14-12838 Date Filed: 05/11/2015 Page: 23 of 31
Department of Justice and the Securities and Exchange Commission (SEC).”). I
write separately to explain why I believe that Meyer is contrary to Supreme Court
precedent.
I.
As the majority opinion sets out, in order to state a claim for securities fraud
under Section 10(b) of the Securities Exchange Act of 1934 and Securities and
Exchange Commission Rule 10(b)–5, plaintiffs must allege the following six
elements: (1) a material misrepresentation or omission; (2) scienter; (3) a
connection between the misrepresentation and the purchase or sale of a security;
(4) reliance; (5) economic loss; and (6) loss causation. 1 Dura Pharms., Inc. v.
Broudo, 544 U.S. 336, 341–42, 125 S. Ct. 1627, 1631 (2005).
Loss causation is similar to the concept of proximate cause in tort. It
requires that plaintiffs establish a causal link between a defendant’s misconduct
and the economic loss that they have suffered. The Supreme Court most recently
addressed the standards for both pleading and proving loss causation in Dura
Pharmaceuticals, Inc. v. Broudo. Specifically, the Supreme Court reversed the
Ninth Circuit’s holding that plaintiffs could satisfy the loss causation requirement
1
And as the majority opinion also makes clear, the pleading requirements for securities
fraud lawsuits are stringent. In order to survive a motion to dismiss, a claim brought under Rule
10b–5 must satisfy (1) the federal notice pleading requirements, (2) the special fraud pleading
requirements provided by Federal Rule of Civil Procedure 9(b), and (3) the additional pleading
requirements imposed by the Private Securities Litigation Reform Act (PSLRA).
23
Case: 14-12838 Date Filed: 05/11/2015 Page: 24 of 31
simply by alleging, and subsequently proving, that they had purchased a security at
an artificially inflated price. Dura, 544 U.S. at 342, 125 S. Ct. at 1631.
The Supreme Court explained that the Ninth Circuit’s standard was both
illogical and inconsistent with the common-law roots of private securities fraud
actions: at the moment that an investor purchases a security at an artificially
inflated price, she has not yet suffered any loss. See id. Further, if the price of the
security later falls for a reason wholly unrelated to the defendant’s misconduct (for
example, a market-wide crash), the investor also cannot recover. Id. at 342–43,
125 S. Ct. at 1631–32. Instead, plaintiffs must “prove that the defendant’s
misrepresentation (or other fraudulent conduct) proximately caused [their]
economic loss.” Id. at 346, 125 S. Ct. at 1633.
After explaining what was required as a matter of proof, the Supreme Court
next turned to the pleading requirements for loss causation. It first observed that,
consistent with Federal Rule of Civil Procedure 8(a)(2), a complaint need only
provide the defendant with “fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.” Id. at 346, 125 S. Ct. at 1634 (quotation marks
omitted). Although the complaint in Dura was found to be insufficient because it
stated only that the plaintiffs had suffered a loss by purchasing securities at
artificially inflated prices, the Supreme Court suggested that the complaint would
have been adequate had it stated that Dura’s stock price fell after the alleged
24
Case: 14-12838 Date Filed: 05/11/2015 Page: 25 of 31
misrepresentations had been exposed. Id. at 347, 125 S. Ct. at 1634. The Supreme
Court ended its discussion by noting that the standard for pleading loss causation
was a “simple test” and that “it should not prove burdensome for a plaintiff who
has suffered an economic loss to provide a defendant with some indication of the
loss and the causal connection that the plaintiff has in mind.” Id. at 346–47, 125 S.
Ct. at 1634.
Following Dura, we have held that plaintiffs can prove loss causation
circumstantially, by:
(1) identifying a “corrective disclosure” (a release of information that
reveals to the market the pertinent truth that was previously concealed
or obscured by the company’s fraud); (2) showing that the stock price
dropped soon after the corrective disclosure; and (3) eliminating other
possible explanations for this price drop, so that the factfinder can
infer that it is more probable than not that it was the corrective
disclosure—as opposed to other possible depressive factors—that
caused at least a “substantial” amount of the price drop.
FindWhat Investor Grp. v. FindWhat.com, 658 F.3d 1282, 1311–12 (11th Cir.
2011).
Thus, the corrective disclosure mirrors the misrepresentation—just as the
misrepresentation artificially pushes the price of a stock up, the corrective
disclosure removes “the fraud-induced inflation that was baked into the plaintiff’s
purchase price, thereby causing losses to the plaintiff.” Id. at 1311. Although
Dura did not set forth any requirements about the quality, form, or precision of a
corrective disclosure, we have held that “a corrective disclosure can come from
25
Case: 14-12838 Date Filed: 05/11/2015 Page: 26 of 31
any source, and can take any form from which the market can absorb the
information and react.” Id. at 1312 n.28 (alterations adopted and quotation
omitted). Plaintiffs also do not need to prove that a single piece of information
precisely and conclusively refuted the defendant’s misrepresentations. Instead,
they may establish loss causation by showing that fraud was gradually revealed
through a series of “partial disclosures.” Meyer, 710 F.3d at 1197 (quotation
omitted); see also Dura, 544 U.S. at 342, 125 S. Ct. at 1631 (observing that the
truth about a security’s value may “leak out” into the marketplace).
II.
With that background in mind, I turn to Meyer v. Greene, our Court’s most
recent attempt at defining loss causation’s pleading requirements. In Meyer, the
plaintiffs alleged that a developer misrepresented the value of its real estate
holdings. 710 F.3d at 1193. Under their loss causation theory, the true value of
the developer’s stock was revealed through three partial disclosures, each of which
caused the security’s price to decline: (1) a hedge fund analyst’s presentation
which used previously available information to conclude that the developer’s
holdings were overvalued; (2) the developer’s disclosure of an informal SEC
investigation into whether the developer had complied with federal securities laws;
and (3) the developer’s disclosure of a formal SEC investigation into that same
subject matter. Id. at 1197, 1201.
26
Case: 14-12838 Date Filed: 05/11/2015 Page: 27 of 31
Relying primarily on past Eleventh Circuit precedent that discussed what
was needed to prove loss causation,2 the panel concluded that the plaintiffs had
failed to adequately plead loss causation. The panel rejected the argument that the
hedge fund analyst’s presentation qualified as a corrective disclosure because the
presentation simply “repackaged” already available data and therefore, did not
reveal anything that had been previously concealed. Id. at 1199.
It also reasoned that the announcements of the government investigation
could not serve as corrective disclosures—even though the investigation concerned
precisely the same subject matter as the alleged fraud and caused the developer’s
stock price to fall—because the SEC had not yet issued a finding of wrongdoing.
Id. at 1201. Thus, the investigation did not “reveal to the market that a company’s
previous statements were false or fraudulent.” Id. The panel left open the
possibility that the announcement of government investigations could potentially
form the basis for a corrective disclosure, but only if there were a later finding of
actual fraud. See id. n.13 (“It may be possible, in a different case, for the
disclosure of an SEC investigation to qualify as a partial corrective disclosure for
purposes of opening the class period when the investigation is coupled with a later
finding of fraud or wrongdoing.”).
2
For example, in Hubbard v. BankAtlantic Bancorp, Inc., 688 F.3d 713 (11th Cir. 2012),
we considered an appeal following a motion for judgment as a matter of law following a jury
trial, and in FindWhat Investor Group v. FindWhat.com, 658 F.3d 1282 (11th Cir. 2011), we
considered an appeal from the grant of a motion for summary judgment.
27
Case: 14-12838 Date Filed: 05/11/2015 Page: 28 of 31
Meyer’s reasoning would have made good sense in evaluating whether the
plaintiffs had met their burden of proof. It is clear that plaintiffs must prove the
existence of a misrepresentation before their losses become compensable. But
holding plaintiffs to this standard at the pleadings stage is contrary to both
precedent and logic.
Dura tells us that because pleading rules are “not meant to impose a great
burden,” a plaintiff need only provide defendants with “some indication of the loss
and the causal connection that the plaintiff has in mind.” 544 U.S. at 347, 125 S.
Ct. at 1634. Meyer requires far more. By holding that plaintiffs must possess a
conclusive finding of wrongdoing before even being able to plead securities fraud,
we now force inquiry into plaintiffs’ proof at the pleadings stage. Cf. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 1965 (2007) (observing
that a well-pleaded complaint may proceed even if “recovery is very remote and
unlikely” (quotation marks omitted)).
Beyond these problems, Meyer’s suggestion that the initial announcement of
an investigation could potentially serve as a corrective disclosure if coupled with a
later government finding of wrongdoing, see 710 F.3d at 1201 & n.13, evinces a
fundamental misunderstanding of loss causation. The requirement for a corrective
disclosure serves the purpose of ensuring that plaintiffs meet the traditional
common-law requirement of proximate cause. Dura, 544 U.S. at 347, 125 S. Ct. at
28
Case: 14-12838 Date Filed: 05/11/2015 Page: 29 of 31
1634. Consistent with this purpose, we have reasoned that if the price of a security
falls soon after the release of new information, then courts can infer that this new
information proximately caused economic loss. See FindWhat, 658 F.3d at 1311–
12. What is important, then, is the market’s reaction to a purported corrective
disclosure at the time that the disclosure was made. See Bricklayers & Trowel
Trades Int’l Pension Fund v. Credit Suisse Sec. (USA) LLC, 752 F.3d 82, 86 (1st
Cir. 2014) (observing that an event study, which is a statistical analysis of the
change in a security’s value in response to new information, is the “preferred”
method for proving loss causation).
However, Meyer implies that this causal chain is somehow affected by the
government’s later finding of actual fraud. This defies logic. A later finding
cannot change how the market reacted to an announcement at an earlier time. The
government’s finding of fraud goes instead to the plaintiff’s ability to prove
misrepresentation—an entirely different element of her claim.
Finally, by evaluating each of the three disclosures individually, Meyer
failed to recognize that the plaintiffs in that case had pleaded a series of partial
corrective disclosures through which the truth “beg[an] to leak out.” Dura, 544
U.S. at 342, 125 S. Ct. at 1631. Surely even if each disclosure standing alone was
insufficient, the cumulative effect of the presentation and the announcements of the
government investigations—all of which provided information about the
29
Case: 14-12838 Date Filed: 05/11/2015 Page: 30 of 31
defendant’s allegedly fraudulent accounting practices and resulted in a decline in
the stock price—created a “plausible causal relationship” between the alleged
fraud and the plaintiffs’ economic loss. Lormand v. US Unwired, Inc., 565 F.3d
228, 258 (5th Cir. 2009) (quotation marks omitted).
“To preclude [a] suit on the basis that there has been no previous actual
disclosure of fraud . . . misses the mark.” In re Gentiva Sec. Litig., 932 F. Supp. 2d
352, 388 (E.D.N.Y. 2013). Recognizing the prohibitive burden that the Meyer rule
imposes, a number of other courts have rejected the argument that the
announcement of a government investigation into the same subject matter as the
alleged fraud cannot be pled as a corrective disclosure. See, e.g., Pub. Emps. Ret.
Sys. of Miss., 769 F.3d 313, 324–25 (5th Cir. 2014) (“To require, in all
circumstances, a conclusive government finding of fraud merely to plead loss
causation would effectively reward defendants who are able to successfully
conceal their fraudulent activities by shielding them from civil suit.” (quotation
omitted)); Gentiva, 932 F. Supp. 2d at 387 (“After this review of the authorities,
ultimately, the Court rejects the idea that the disclosure of an investigation, absent
an actual revelation of fraud, is not a corrective disclosure.”); In re IMAX Sec.
Litig., 587 F. Supp. 2d 471, 485 (S.D.N.Y. 2008) (holding that the announcement
of an SEC investigation into the same subject matter as the alleged
30
Case: 14-12838 Date Filed: 05/11/2015 Page: 31 of 31
misrepresentations qualified as a corrective disclosure); Brumbaugh v. Wave Sys.
Corp., 416 F. Supp. 2d 239, 256 (D. Mass. 2006) (same).
III.
The plaintiffs in this case allege that HMA artificially inflated its stock price
by fraudulently overbilling Medicare. They have also alleged that they suffered
economic loss because HMA’s stock price fell precipitously after the disclosure of
a whistle-blower lawsuit describing Medicare fraud at HMA hospitals and a
government investigation into the company’s Medicare billing practices. Taken
together, these are precisely the allegations that Dura requires: the complaint
provides both “notice of what the relevant economic loss might be” and “what the
causal connection might be between that loss” and the alleged misrepresentations.
544 U.S. at 347, 125 S. Ct. at 1634. Although I recognize that my conclusion is
foreclosed by Meyer, I believe that plaintiffs have met their burden at this very
early stage.
31