Amf Pensionsforsakring Ab v. Precision Castparts Corp. ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMF PENSIONSFORSAKRING AB; No. 21-35516
OKLAHOMA FIREFIGHTERS PENSION
AND RETIREMENT SYSTEM, Lead D.C. No. 3:16-cv-00521-SB
Plaintiffs,
Plaintiffs-Appellants, MEMORANDUM*
and
KEVIN MURPHY; KBC ASSET
MANAGEMENT NV,
Plaintiffs,
v.
PRECISION CASTPARTS CORP.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Stacie F. Beckerman, Magistrate Judge, Presiding
Argued and Submitted June 9, 2022
Portland, Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: SCHROEDER and SUNG, Circuit Judges, and ANTOON,** District
Judge.
Appellants AMF Pensionsforsakring AB and Oklahoma Firefighters Pension
and Retirement System (“Investors”) appeal the district court’s grant of summary
judgment to Appellees Precision Castparts Corporation (PCC), Mark Donegan, and
Shawn Hagel in this action brought under §§ 10(b) and 20(a) of the Securities
Exchange Act of 1934 and SEC Rule 10b-5. We have jurisdiction under 28 U.S.C.
§ 1291 and review the district court’s ruling de novo, Burrell v. McIlroy, 464 F.3d
853, 855 (9th Cir. 2006). We affirm.
1. We agree with the district court that Donegan’s statements are “too vague to
be actionable” and not “specific enough for [Investors] to establish falsity.”
Assuming that Donegan’s statements were intended to communicate something
about PCC’s past or current progress along a particular “line,” the precise shape of
that line and PCC’s purported position on it were not clear enough to be “capable
of objective verification,” Or. Pub. Emps. Ret. Fund v. Apollo Grp. Inc., 774 F.3d
598, 606 (9th Cir. 2014), as required to qualify as “untrue statement[s] of a
material fact,” 17 C.F.R. § 240.10b-5(b). We thus agree with the district court that
Investors cannot establish falsity with respect to Donegan’s “line,” “slope,”
**
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
2
“drumbeat,” or “framework” statements.1
2. Given that we agree with the district court regarding falsity, we do not reach
the issue of whether Donegan’s statements are protected under the Private
Securities Litigation Reform Act’s safe harbor provision for forward-looking
statements. 15 U.S.C. § 78u-5(c)(1).
3. We also agree with the district court that Investors cannot establish loss
causation with respect to Donegan’s “pull-in sales” and “destocking” statements
considered alone.
AFFIRMED.
1
Investors also appeal the district court’s earlier grant of summary
judgment to Hagel, PCC’s Chief Financial Officer. Because Investors’ claims
against Hagel depend on the falsity of Donegan’s statements, however, those
claims cannot succeed.
3