ORDER GRANTING THE HEALTH-POINT DEFENDANTS’, THE UNDERWRITER DEFENDANTS’, AND THE ALPHATEC DEFENDANTS’ MOTIONS TO DISMISS
This is a putative securities class action brought by Stephanie Mallen, individually and on behalf of all others similarly situated, seeking to recover for Defendants’ alleged violations of the Securities Act of 1933 (“Securities Act”) and the Securities Exchange Act of 1934 (“Exchange Act”). In brief, Plaintiffs allege that Defendants engaged in a scheme to inflate the price of Alphatec Holdings, Inc., so that they could profit financially, by acquiring a rival company with the promise to the investors that the acquisition would lead to immediate synergies and increased revenues. Over several weeks following the acquisition, although integration delays and other setbacks were allegedly becoming apparent, Defendants trumpeted the consolidated company’s ability to meet the forecasted revenue guidance. When the company finally announced that it had experienced certain setbacks and, as a result, had to revise its revenue guidance by 15%, the stock price plummeted overnight.
Presently before the Court are motions to dismiss brought by three groups of Defendants: (1) HealthpointCapital Partners, L.P., HealthpointCapital Partners II, L.P., Mortimer Berkowitz, III, John H. Foster, R. Ian. Molson, and Stephen E. O’Neil (collectively, the “Healthpoint Defendants”); (2) Canaccord Adams, Inc., Jefferies & Company, Inc., Cowen and Company, LLC, and Lazard Capital Markets (collectively, the “Underwriter Defendants”); and (3) Alphatec Holdings, Inc., Dirk Kuyper, Peter C. Wulff, Stephen J. Hochschuler, James R. Glynn, and Siri S. Marshall (collectively, the “Alphatec Defendants”). Plaintiffs filed a consolidated opposition to the motions to dismiss, and Defendants filed three separate reply briefs. Having considered the parties’ arguments, and for the reasons set forth below, the Court GRANTS the motions to dismiss.
BACKGROUND
I. Factual background
Defendant Alphatec is a publicly traded spinal implant company that designs, man
Defendant Healthpoint is a research-based private equity firm that invests in orthopedic and dental device businesses. It is compromised of two limited partnerships, HealthpointCapital Partners, L.P. and HealthpointCapital Partners II, L.P. Since March 2005, Healthpoint has been a substantial investor in Alphatec. Defendants Berkowitz, Foster, Molson, and O’Neil are outside Alphatec directors affiliated with Healthpoint, serving on Health-point’s Board of Managers. Defendant Hochschuler, another Alphatec director, serves as a medical consultant to Health-point.
This action arises out of Alphatec’s acquisition of Scient’x, S.A., a French spinal products company. Prior to the acquisition, Scient’x was Healthpoint’s investment. In June 2004, Healthpoint acquired a 33% interest in Scient’x, which it increased to 95% in November 2007. Plaintiffs allege that Scient’x was an unprofitable investment for Healthpoint, and therefore Defendants Berkowitz and Foster, who were simultaneously on Alphatec’s Board of Directors and Healthpoint’s Board of Managers, orchestrated Health-point’s sale of Scient’x to Alphatec. On December 17, 2009, Alphatec announced that it had entered into a definitive agreement to acquire Scient’x for 24 million shares of Alphatec common stock, valued at approximately $118 million.
In announcing the acquisition, Alphatec projected 2010 pro forma full-year revenues for the combined company in a range of $220 million to $225 million, and pro forma full-year 2010 adjusted earning before deduction of interest, taxes, and amortization (“EBITDA”) in a range of $32 million to $35 million (hereinafter, “2010 revenue guidance”). (Smith Deck, Exh. 7, at 182.) Alphatec reaffirmed the 2010 revenue guidance on numerous occasions, including in its February 23, 2010 earnings press release; in its March 29, 2010 announcement of the completion of Scient’x acquisition; in its April 12, 2010 announcement of preliminary first quarter 2010 results; and in its May 10, 2010 announcement of final first quarter 2010 results. On April 12, 2010, Alphatec released its preliminary first quarter results, reporting quarterly revenues of approximately $38.4 million, an increase of 25.6% from first quarter 2009, and a sequential increase of 5.0% over fourth quarter 2009. (Deck of Lionel Z. Glancy ISO Lead Pk’s Opp. to Defs.’ MTDs (“Glancy Deck”), Exh. 1, at 1-7 [Doc. No. 54-1].)
On March 26, 2010, we completed the acquisition of Scient’x S.A., or Scient’x, a global medical device company based in France that designs, develops and manufactures surgical implants to treat disorders of the spine. Scient’x distributes products through its direct sales force in France, Italy and the U.K., and distributes products through independent distributors in more than 45 additional countries....
We have already begun to realize synergies from the Scient’x acquisition. Our OsseoFix Spinal Fracture Reduction System is now being sold in six countries and will be launched through Scient’x’s direct sales organizations in France, Italy and the UK in the second quarter of 2010. We also expect to offer products in additional countries during 2010 as a result of our expanded international sales channel. As a result of the Scient’x acquisition we have also added 19 distribution agents in the U.S., which we believe represents an addition of approximately 40 sales representatives. In addition, we expect to achieve up to $5 million in cost savings in 2010 by reducing overlapping operations of the two countries.
The combined entity has unaudited pro forma combined 2009 revenue of $182.4 million, reflecting approximately 25% year-over-year growth. Based on preliminary financial data, we expect to report record consolidated quarterly revenues for Alphatec Holdings, Inc. of approximately $38.4 million for the first quarter of 2010, an increase of 25.6% from the $30.6 million reported for the first quarter 2009, and a sequential increase of 5.0% over fourth quarter 2009 revenues of $36.6 million. These revenue results remain subject to review by our independent registered public accounting firm in accordance with Statement on Accounting Standards No. 100. We expect that our first quarter 2010 revenues will be the eleventh consecutive quarter of record revenues. In addition, we anticipate that our revenues throughout the balance of 2010 will continue to grow, driven by the inclusion of Scient’x revenues, cross-selling opportunities between Alphatec and Scient’x, the increased global scale of our distribution and marketing efforts, and the approval and launch of up to 15 innovative products into the U.S. and/or E.U. markets.
(Smith Deck, Exh. 13, at 703.)
On May 10, 2010, Alphatec announced its formal results for the first quarter, confirming revenue of $38.4 million and a 25.6% year-over-year revenue growth. (Smith Decl., Exh. 14, at 765.) Alphatec also reaffirmed its 2010 revenue guidance. (Id, Exh. 14, at 767.) In the announcement, Mr. Kuyper stated: “Lastly, I am pleased with the progress we have made with the U.S. integration of Seient’x into Alphatec Spine. As of April 30th, Scient’x’s U.S. operations have been consolidated into Alphatec Spine, and we remain on track to realize at least $5 million of savings by eliminating redundancies in Scient’x’s operating expenses.” (Id, Exh. 14, at 766.) During the conference call with the analysts the same day, Mr. Kuyper admitted that Alphatec was “seeing increased price pressure in the U.S. market as hospitals try to decrease their costs and control the number of vendors they deal,” but was optimistic that this represented a “significant opportunity” for Alphatec to “effectively compete for hospital contracts.” (Id, Exh. 16, at 825.) Specifically, Mr. Kuyper stated:
The novel products that we have launched or plan to launch realize premium prices, offsetting broader market related price declines. We’re also in a unique position to leverage our production capacitg to reduce costs and maintain margins over the long-term, offsetting any potential negative pricing trends. Many of the products we were introducing such as Illico SE, Solis, GLIF, ProFUSE, and the ELA stem cell offer cost advantages to the hospital by way of operating room efficiencies, reductions in actual cost, or improved outcomes.
(Id) During the conference call, among other things, Alphatec management was questioned about its rumored divestiture of a Japanese distributor, to which Mr. Wulff replied:
RAJ DENHOY: Okay. Just one last one. I guess there was some talk about a Japanese distributor you were potentially going to be divesting. Is that still something that’s in the works?
PETER WULFF: Yes. That’s actually been accomplished. That should substantially help our margins going forward.
RAJ DENHOY: What’s the revenue offset in Asia-Pacific?
PETER WULFF: The revenue offset is about $3 million. But realize that was at virtually no margin. So, we kept the spine revenue. It’s all the non-spine that we got rid of and so actually net-net it’s going to have a positive impact.
RAJ DENHOY: On the margin side. But from a revenue basis, that’s $3 million a quarter we should assume is coming out of Asia-Pacific?
PETER WULFF: The total reported last year is about $10 million in top line revenue. The bottom line was negligible and net profit or even very low gross margin. We baked this into our financial guidance for revenues this year, Raj, and we expect the offset to be in the improvements both in the United States and in Europe.
(Id, Exh. 16, at 827.)
On August 5, 2010, Alphatec announced its second quarter results, including consolidated revenues of $45.4 million, representing combined-company year-over-year revenue growth of 10%. (Id, Exh. 17, at 837.) At the same time, Alphatec revised its 2010 revenue guidance downward to $188 to $193 million and adjusted EBITDA to $21 to $24 million. (Id, Exh. 17, at 840.) Alphatec cited the slowing of the U.S. and European spine market growth as one of the reasons for the revised guidance. (Id.) During the conference call the
We have made tremendous progress in integrating Scient’x into Alphatec Spine in the second quarter. As I previously stated, we completed the U.S. consolidation, realizing significant cost savings, and have commenced initial integration of the international operations. It did take longer than anticipated to get Alphatec products loaded into Scient’x’s international distribution system, and for us to get Scient’x’s products loaded into Alphatec’s U.S. inventory.
There was a great deal of complexity involved in loading thousands of new SKU’s into each respective format. And this process took longer than we previously anticipated. It has since been resolved and we are invoicing and shipping products across the entire organization.
Separately, we saw an unanticipated slowdown in orders from our international distribution partners of Scient’x products from historical levels during the second quarter. We believe this to be temporary as some distribution agents held back purchases until we clearly explained our consolidated product strategy going forward. Over 120 distribution partners from around the world attended our international sales meeting in Vienna, and we were pleased with the discussions and subsequent order commitments for products for the rest of 2010.
(Id., Exh. 18, at 857.) When asked whether the Alphatec management was simply “blindsided” by what happened in the market, Mr. Wulff replied:
I think we underestimated the complexity in getting the Scient’x product loaded into Alphatec and vice versa. Alphatec product loaded into Scient’x. It took us about six weeks longer than we had originally estimated, and it really — we are talking about thousands of SKUs, completely different platforms and numbers that have nothing in common.
So we had to work through that. So we think we lost about six weeks of productivity that way. So that certainly had an impact.
(Id., Exh. 18, at 858.) The company’s August 5, 2010 announcement led to a sharp sell off of Alphatec shares, which plunged 46% to close at $2.39 on August 6, 2010, on a volume of 13.2 million shares. This represented a loss of over $177 million in one trading day. (CAC ¶ 81.) Two months later, on October 11, 2010, Mr. Wulff resigned as Alphatec’s CFO and Treasurer, transitioning instead to the newly-created position of Senior Vice President, Strategic Initiatives. (CAC ¶ 82.)
Plaintiffs allege that following the August 5, 2010 announcement, one analyst who follows the company noted that Alphatec’s revenue reduction was “all the more troubling as Alphatec gave guidance on May 10, halfway through the second quarter.” (CAC ¶ 80.) According to the analyst, the revenue reduction was due in part to “the discontinuation of a Japanese distributor that wasn’t previously communicated,” which amounted to approximately $3 million, and also due to “channel stuffing” by Scient’x prior to its acquisition by Alphatec.
On February 24, 2011, Alphatec announced its final financial results for 2010. The company reported consolidated revenues of $171.6 million and pro forma revenues of $182.9 million, representing an increase of 42.3% and 7.1%, respectively, as compared to 2009. (Decl. of Jessica L. Snorgrass ISO Healthpoint Defs.’ MTD (“Snorgrass Decl.”), Exh. A, at 11 [Doc. No. 41-3].) The company reported an adjusted EBITDA of $18.9 million. (Id.)
II. Procedural background
Plaintiffs commenced this action on August 10, 2010, and filed a Corrected Amended Class Action Complaint (“CAC”) on February 22, 2011. The CAC alleges the following causes of action: (1) violation of § 11 of the Securities Act against Alphatec, the individual Defendants, and the Underwriter Defendants; (2) violation of § 12(a)(2) of the Securities Act against Alphatec, Healthpoint, and the Underwriter Defendants; (3) violation of § 15 of the Securities Act against Healthpoint and the individual Defendants (“control person” liability); (4) violation of § 10(b) of the Exchange Act and Rule 10b-5 against Alphatec, Kuyper, and Wulff; and (5) violation of § 20(a) of the Exchange Act against Healthpoint and the individual Defendants (“control person” liability).
Plaintiffs bring this action on behalf of a class consisting of: (1) “all those who purchased or otherwise acquired Alphatec common stock issued pursuant or traceable to the February 12, 2010 Registration Statement and April 16, 2010 Prospectus incorporated therein and were damaged thereby,” and (2) “all those who purchased or otherwise acquired the common stock of Alphatec between April 16, 2010 and August 5, 2010, inclusive” (the “Class Period”). (CACHI.)
On January 19, 2011,
LEGAL STANDARD
Defendants move to dismiss the CAC pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6). A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the pleadings. Navarro v. Block,
In ruling on a motion to dismiss, the Court must “accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Knievel v. ESPN,
A complaint alleging fraud must also comply with Rule 9(b), which requires that the complaint “state with particularity the circumstances constituting fraud.” Fed. R.Civ.P. 9(b). In order to allege fraud with the requisite particularity, “ ‘a plaintiff must set forth more than the neutral facts necessary to identify the transaction. The plaintiff must set forth what is false or misleading about a statement, and why it is false. In other words, the plaintiff must set forth an explanation as to why the statement or omission complained of was false or misleading.’ ” Yourish v. Cal. Amplifier,
Finally, claims brought under the Exchange Act are also subject to the requirements of the Private Securities Litigation Reform Act of 1995 (“PSLRA”), Pub.L. 104-67, 109 Stat. 737 (1995) (codified in part at 15 U.S.C. §§ 77z-l, 78u), regarding scienter. The PSLRA “requires that a complaint alleging misleading statements or omissions ‘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, ... all facts on which that belief is formed.’ ” Reese v. BP Exploration (Alaska) Inc.,
DISCUSSION
I. Violations of Sections 11 and 12(a)(2) of the Securities Act
Claims one and two allege that the April 16, 2010 Prospectus and the Registration
Defendants first move to dismiss these claims because they “sound in fraud,” but are not pled with the particularity required by Rule 9(b). Second, Defendants assert the challenged statements are not actionable under the PSLRA’s “safe harbor” provision for forward-looking statements. Third, Defendants contend the CAC should be dismissed under Rules 8 and 12(b)(6) because there are no facts alleged to show that the statements were false or misleading. Fourth, Defendants assert dismissal is proper because the CAC establishes lack of causation. Finally, Defendants Alphatec and Healthpoint contend that each of them is not a “seller” of the securities for purposes of § 12(a)(2).
A. Rule 9(b) applicability
To recover under § 11, the plaintiff must demonstrate: (1) that the registration statement contained an omission or misrepresentation; and (2) that the omission or misrepresentation was material. In re Stac,
Notwithstanding the foregoing, plaintiffs may be required to allege their claims with increased particularity under Rule 9(b) if their complaint “sounds in fraud.” Rubke,
In the present case, with respect to the Alphatec Defendants and the Healthpoint Defendants, the CAC “sounds in fraud.” The core allegation of the CAC is that these Defendants “engaged in a scheme to inflate the price of Alphatec shares” in order to enable the company’s principal shareholders, the Healthpoint Defendants, to dispose of their 95% interest in Scient’x; to enable the Alphatec Defendants and the Healthpoint Defendants “to sell millions of Alphatec stock in the Offering at artificially inflated prices;” and “for the personal benefit of Defendants Berkowitz, Foster, Molson, O’Neil, and Hochschuler.” (See CAC ¶ 2.) These allegations are repeated in one form or another through the CAC.
Plaintiffs’ attempts to disclaim any allegations of fraud, scienter, or intent to defraud with respect to the Securities Act claims are unpersuasive.
The fact that Rule 9(b) applies does not mean that Plaintiffs’ Securities Act claims necessarily fail. It only means that Plaintiffs must allege the specific elements of those claims with Rule 9(b) particularity. See In re Daou,
Finally, the only allegations against the Underwriter Defendants are that they drafted and disseminated the April 16, 2010 Prospectus pursuant to which Alphatec’s shares were sold. (See CAC ¶¶ 31-35.) Because the CAC makes no allegations of fraud or intent to deceive on behalf of the Underwriter Defendants, the allegations against these Defendants are sufficiently bifurcated for Rule 9(b) purposes. See In re McKesson HBOC, Inc. Sec. Litig.,
B. “Safe harbor” applicability
Defendants contend that certain statements challenged by Plaintiffs are not actionable because they are protected by the PSLRA’s safe harbor for “forward-looking” statements. The safe harbor provision of the Securities Act removes liability with respect to any “forward-looking” statement, whether written or oral, as long as one of the following is satisfied; (1) the statement is “identified as a forward-looking statement” and “is accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward-looking statement;” (2) the statement is immaterial; or (3) the plaintiff fails to prove that the statement was made with actual knowledge that the statement was false or misleading. 15 U.S.C. § 77z-2(c)(l).
The PSLRA defines a “forward-looking statement” broadly to include, among other things, a projection of revenues, income, earnings, or other financial items; a statement of the plans and objectives of management for future operations; a statement of future economic performance; and any statement of the assumptions underlying or relating to any of the
In the present case, the first challenged statement is: “We have already begun to realize synergies from the Scient’x acquisition” (emphasis added). This sentence is based on representation of historical or current facts, and therefore is not “forward-looking.” See, e.g., In re Copper Mountain,
The second statement is: “In addition, we anticipate" that our revenues throughout the balance of 2010 will continue to grow, driven by the inclusion of Scient’x revenues, cross-selling opportunities between Alphatec and Scient’x, the increased global scale of our distribution and marketing efforts, and the approval and launch of up to 15 innovative products into the U.S. and/or E.U. markets” (emphasis added). While ostensibly couched in terms of the future, this statement also concerns historical and current facts. Notably, for the revenues to “continue to grow,” it is necessary that they have already been growing. See In re TETRA Techs., Inc. Sec. Litig., No. 4:08-cv-0965,
Finally, to the extent Plaintiffs also challenge Defendants’ alleged omission of present facts with respect to the challenged statements, the PSLRA’s safe harbor does not apply. See, e.g., In re Portal Software, Inc. Sec. Litig., No. C-03-5138 VRW,
C. Misrepresentation or omission
Defendants next contend that claims one and two should be dismissed because they fail to allege facts to show that there was any misrepresentation or omission. The Court agrees.
Plaintiffs first allege that Defendants omitted facts from the April 16, 2010 Prospectus, and accordingly the Registration Statement, that were required to be disclosed pursuant to Item 303 of Regulation S-K of the Securities Act. “Allegations which state a claim under Item 303(a) of Regulation S-K also sufficiently state a claim under Sections 11 and 12(a)(2).” Steckman,
— Pricing pressures arising from consolidation in the spine industry;
— Delays in integration of Scient’x that had affected productivity and sales; and
— Reduced sales of Alphatec products to Scient’x distributors and vice versa.
With respect to pricing pressures, Plaintiffs have failed to demonstrate that Defendants have omitted anything. Plaintiffs contend Defendants should have disclosed the “trend” of pricing pressures in the U.S. and Europe, which was steadily increasing and allegedly limiting Alphatec’s ability to achieve significant revenue growth in 2010. (CAC ¶ 65(c)(i).) Defendants, however, did disclose these pricing pressures. Specifically, Alphatec’s Form 10-K for the fiscal year ending December 31, 2009, which was incorporated by reference into and made part of the April 16, 2010 Prospectus, warned investors that consolidation in the healthcare industry “has resulted and will likely continue to result in greater pricing pressures,” and that Alphatec expected various factors “will continue to change the worldwide healthcare industry, resulting in further business consolidations and alliances among our customers, which may reduce competition, exert further downward pressure on the prices of our products and may adversely impact our business, financial condition or results of operations.” (See Smith Deck, Exh. 11, at 591 (Form 10-K for the fiscal year ending December 31, 2009); id., Exh. 13, at 758 (incorporating the Form 10-K into the April 16, 2010 Prospectus).)
With regard to the other two omissions, Plaintiffs have failed to allege sufficient facts to show that they were either known to Defendants as of April 16, 2010, or could reasonably be expected to have a material impact on Alphatec’s net sales, revenues, or income. With respect to delays, Plaintiffs allege that Defendants “failed to disclose that the integration of the two companies was experiencing delays and not proceeding as planned,” and that “by April 16, it was readily apparent that there were delays in integrating Alphatec’s and Scient’x’s computer systems.” (CAC ¶ 65(a), (c)(v).) However, apart from conclusory statements that these delays existed, Plaintiffs fail to allege any facts to show that such delays were known at that time or that they could reasonably be expected to have a material impact.
The same is true with regard to the reduced sales. Plaintiffs allege that Defendants failed to disclose that “in the second quarter of 2010, international distributors were indicating an unwillingness to accept some of the Company’s products,” and that “Alphatec had previously attempted to sell Scient’x’s products through licensing agreements, including beginning in January 2007, but ultimately terminated the agreements in April 2008 and returned products to Scient’x.” (CAC ¶ 65(c)(iv), (c)(v).) Plaintiffs, however, fail to allege any facts to show that the distributors’ unwillingness to accept the company’s products in the second quarter, which began on April 1, 2010, was known to Defendants on April 16, 2010, or could reasonably be expected to have a material impact at that time. See Kapps v. Torch Offshore, Inc.,
Accordingly, Plaintiffs have failed to allege sufficient facts to show that Defendants omitted facts from the April 16, 2010 Prospectus that they were required to disclose pursuant to Item 303.
2. Plaintiffs failed to allege specific facts to show that Defendants omitted facts that were necessary to make the challenged statements not misleading.
In the alternative, Plaintiffs allege Defendants were obligated to disclose certain facts that were “necessary to make the statements [in the Prospectus] not misleading.” See 15 U.S.C. § 77k(a). Specifically, Plaintiffs allege that Defendants’ statement that “We have already begun to realize synergies from the Scient’x acquisition” was misleading because Defendants failed to disclose that the integration of the two companies was experiencing delays. (CAC ¶¶ 64-65.) Plaintiffs allege that Defendants’ statement that “[W]e anticipate that our revenues throughout the balance
Plaintiffs fail to show how the omission of the fact that there were integration delays made Alphatec’s statement that it had “already begun to realize synergies” from the Scient’x acquisition misleading. As an initial matter, this statement was literally true. In the Prospectus, immediately following the statement, Alphatec listed the following synergies that have already been realized from its acquisition of Scient’x: (1) “Our OsseoFix Spinal Fracture Reduction System is now being sold in six countries,” and (2) “As a result of the Scient’x acquisition we have also added 19 distribution agents in the U.S.” (See Smith Deck, Exh. 13, at 703.) Plaintiffs do not contend that either of these synergies was not realized at the time the challenged statement was made. Moreover, as the Court already concluded, apart from conclusory statements, Plaintiffs fail to allege sufficient facts to show that Defendants were aware of any integration delays as of April 16, 2010. Finally, even assuming Alphatec was experiencing integration delays at the time, that fact is not inconsistent with Alphatec realizing synergies as a result of the Scient’x acquisition. See Ronconi v. Larkin,
The Court next examines Plaintiffs’ contention that Defendants’ alleged omission of certain facts made Alphatec’s statement that it anticipated that its revenues throughout the balance .of 2010 “will continue to grow” misleading. As an initial matter, the Court rejects Defendants’ argument that the motion to dismiss should be granted because this statement was ultimately proven true. It may be, as Defendants argue, that during each quarter of 2010 and at the end of the 2010 fiscal year, the company did report year-over-year revenue growth.
Plaintiffs, however, have failed to allege sufficient facts to show that any information that Defendants omitted made Alphatec’s statement that it anticipated that its revenues throughout the balance of 2010 “will continue to grow” misleading. First, as already noted, Defendants did disclose the increasing pricing pressures by discussing them in Alphatec’s Form 10-K for the fiscal year ending December 31, 2009, which was incorporated by reference into and made part of the April 16, 2010 Prospectus. (See Smith Deck, Exh. 11, at 591; id., Exh. 13, at 758.) Second, with regard to the integration delays and the international distributors unwillingness to purchase certain Scient’x products in the second quarter, even if those delays and that unwillingness were evident by April 16, 2010, Plaintiffs have failed to show how they were inconsistent with the company’s statement that it anticipated that its revenue will continue to grow. See Ronconi,
Fourth, with respect to allegations of channel stuffing, Plaintiffs base these allegations solely on the say-so of one analyst, who remarked, after Alphatec’s August 5, 2010 revised financial guidance, that: “Confounding the result in Europe is indication that there may have been some stocking in Europe prior to Alphatec acquiring Scient’x, which could have overstated the run rate there and also created an air pocket of demand in Europe in Q2.” (CAC ¶ 80 (emphases added).) Channel stuffing claims often amount to “speculation made in hindsight.” See Steckman,
Finally, Plaintiffs have failed to show how Defendants’ failure to disclose that two-thirds of Scient’x’s U.S. distributors overlapped with Alphatec’s distributors
In light of Plaintiffs’ failure to allege sufficient facts to show that there was any misrepresentation or omission for purposes of § 11 or § 12(a)(2) liability, the Court need not consider at this time whether any of the allegedly omitted or misrepresented facts were material.
D. Negative causation
Defendants argue that claims one and two should also be dismissed because the CAC establishes negative causation. Absence of loss causation, or “negative causation,” is an affirmative defense to a § 11 or § 12(a)(2) claim where a portion of the stock price decline is not attributable to the alleged misrepresentation or omission. See 15 U.S.C. §§ 77k(e), 77Z(b); see also In re Worlds of Wonder Sec. Litig.,
E. Not a “seller” of the securities
Healthpoint and Alphatee next move to dismiss claim two against them because each of them is not a “seller” of the securities for purposes of § 12(a)(2).
The Court declines to dismiss claim two on this basis as to Defendant Alphatee. The CAC adequately alleges that Alphatee “successfully solicit[ed]” the purchase of its securities by issuing and promoting the Prospectus, and that it did so “motivated at least in part by a desire to serve [its] own financial interests.” See Pinter,
On the other hand, the Court agrees that the CAC fails to allege sufficient facts to show that Defendant Healthpoint is a seller under § 12(a)(2). Healthpoint was not the immediate seller of Alphatec’s securities. Nor are there sufficient allegations that Healthpoint either prepared the April 16, 2010 Prospectus or how it used the Prospectus to actually solicit the purchase of the securities. See Pinter,
F. Conclusion
For the foregoing reasons, Plaintiffs have failed to allege sufficient facts to show that Defendants omitted facts from the April 16, 2010 Prospectus (or the Registration Statement) that they were required to disclose or that Defendants omitted facts that were necessary to make the challenged statements in the Prospectus not misleading.
II. Violation of Section 10(b) of the Exchange Act and Rule 10b-5
Plaintiffs’ claim four alleges a violation of § 10(b) of the Exchange Act and Rule 10b-5 against Defendants Alphatec, Kuyper, and Wulff. Plaintiffs assert that these Defendants omitted material information from the April 16, 2010 Prospectus and in the May 10, 2010 announcement and conference call, which would have made the other statements therein not misleading. The Alphatec Defendants move to dismiss, contending first that the challenged statements are protected by the PSLRA’s safe harbor provision, and, in the alternative, contending that Plaintiffs failed to allege specific facts with the required specificity to state a valid claim for relief.
A. “Safe harbor” applicability
Plaintiffs base their allegations in claim four on two statements from the April 16, 2010 Prospectus (discussed earlier) and on statements from the May 10, 2010 announcement and conference call. The statements from the May 10, 2010 announcement are: (1) Mr. Kuyper’s statement that he was “pleased with the progress” the company has made with the U.S. integration of Scient’x and that “[a]s of April 30th, Scient’x’s U.S. operations have been consolidated into Alphatec Spine, and we remain on track to realize at least $5 million of savings by eliminating redundancies in Scient’x’s operating expenses,” and (2) Defendants’ reaffirmation of their 2010 revenue guidance. (CAC ¶¶ 68-70.) The statements from the May 10, 2010 conference call are: (1) Mr. Kuyper’s statement: “The novel products that we have launched or plan to launch realize premium prices, offsetting broader market related price declines. We’re also in a unique position to leverage our production capacity to reduce costs and maintain margins over the long-term, offsetting any potential negative pricing trends,” and (2) Mr. Wulff s statement that the revenue lost from dropping a Japanese distributor would be offset by “the improvements both in the United States and in Europe.” (CAC ¶¶ 72, 74.)
Out of the above statements, Defendants’ reaffirmation of the 2010 revenue guidance is certainly forward-looking. See 15 U.S.C. § 78u-5(i)(l)(A) (defining a forward-looking statement to include “a statement containing a projection of revenues”); In re Cutera Sec. Litig.,
On the other hand, the remaining statements from the announcement and conference call either concern present or historical facts, or could reasonably be viewed as “misrepresentations about current business conditions,” and therefore are not forward-looking.
To qualify for protection under the PSLRA’s safe harbor provision, the forward-looking statement must be accompanied by “meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward-looking statement.” 15 U.S.C. § 78u-5(c)(l)(A)(i). “[B]oilerplate language warning that investments are risky or general language not pointing to specific risks is insufficient to constitute a meaningful cautionary warning.” In re Copper Mountain,
The two forward-looking statements in this case were identified as such and were accompanied by sufficient cautionary language. The May 10, 2010 announcement warned that it contained “forward-looking statements” that were “subject to a number of risks and uncertainties that could cause actual results to differ materially from those described.” (Smith Deck, Exh. 14, at 769.) Specifically, it warned that the projected results may differ materially based on the following factors, among others: “Alphatec’s ability to meet its 2010 revenue, adjusted EBITDA, and earnings projections,” its “ability to successfully integrate Scient’x and Alphatec Spine,” the “uncertainty of success in developing new products,” the “unexpected or prolonged delays in the process,” and “Alphatec Spine’s ability to develop and expand its business in the United States [and] Asia.” (Id.) This language is sufficiently specific to qualify the statements for protection under the PSLRA’s safe harbor provision. See, e.g., In re Cutera,
Accordingly, the PSLRA’s safe harbor provision protects Defendants’ reaffirmation of the 2010 revenue guidance and Mr. Wulffs statement that the revenue lost from dropping a Japanese distributor would be offset by sales improvements. See In re Cutera,
B. Plaintiffs fail to state a claim under Section 10(b) and Rule 10b-5
To state a claim under § 10(b) and Rule 10b-5, a plaintiff must allege sufficient facts showing: (1) material misrepresentation or omission, (2) scienter, (3) a connection with the purchase or sale of security, (4) reliance, (5) economic loss, and (6) loss causation. Dura Pharms., Inc. v. Broudo,
1. Misrepresentation or omission
As opposed to the Securities Act claims, claims under the Exchange Act are subject to the particularity requirements of Federal Rule of Civil Procedure 9(b). See Reese,
The Court previously determined that Plaintiffs failed to allege sufficient facts to show that the two statements in the April 16, 2010 Prospectus were misleading or that Defendants omitted any information from the Prospectus that they were required to disclose or that would have made the two statements not misleading. (See supra Part I.C, at 15-20.) Accordingly, for the same reasons as discussed above, Plaintiffs failed to allege a material misrepresentation or omission with respect to these two statements for purposes of their claim under § 10(b) and Rule 10b-5.
The Court next addresses Plaintiffs’ allegations that the following two statements were misleading or that Defendants omitted information that would have made them not misleading: (1) Mr. Kuyper’s statement that he was “pleased with the progress” the company has made with the U.S. integration of Scient’x,- and (2) his statement: “We’re also in a unique position to leverage our production capacity to reduce costs and maintain margins over the long-term, offsetting any potential negative pricing trends” (emphases added). The Alphatec Defendants contend that these statements amount to immaterial statements of corporate optimism that are not actionable. The Court agrees. “ ‘[Professional investors, and most amateur investors as well, know how to devalue the optimism of corporate executives.’ ” In re Cutera,
The Court next turns to Plaintiffs’ allegation that Mr. Kuyper’s statement that “[a]s of April 30th, Scient’x’s U.S. operations have been consolidated into Alphatec Spine, and we remain on track to realize at least $5 million of savings by eliminating redundancies in Scient’x’s operating expenses” was misleading because Scient’x’s U.S. operations had not been consolidated as of that time, the Scient’x integration was in fact behind schedule due to operating system delays, and those delays would cause a shortfall in the forecasted revenue. However, once again, Plaintiffs fail to allege more than conclusory facts to show that integration delays existed as of May 10, 2010, that those integration delays were inconsistent with Mr. Kuyper’s statement that Scient’x’s U.S. operations had
Finally, Plaintiffs challenge Mr. Kuyper’s statement that “[t]he novel products that we have launched or plan to launch realize premium prices, offsetting broader market related price declines.” Plaintiffs allege this statement was misleading because Alphatec’s profitability had already been and would continue to be negatively affected by pricing pressures, and the company’s “novel products” were insufficient to offset those pressures in 2010. But the Court fails to see how any of this makes Mr. Kuyper’s statement misleading. Notably, Mr. Kuyper did disclose that the company was facing pricing pressures, but noted that the company expected to turn those pressures into opportunities. (See Smith Deck, Exh. 16, at 825) (“We are seeing increased pricing pressure in the U.S. market as hospitals try to decrease their costs and control the number of vendors they deal with. On some cases, this presents a challenge. More often we believe this represents a significant opportunity for Alphatec”).
Accordingly, Plaintiffs failed to allege sufficient facts to show that any of Defendants’ challenged statements amounted to a material misrepresentation or omission.
2. Scienter
The Alphatec Defendants next contend that Plaintiffs failed to allege with sufficient particularity that Defendants acted with the requisite state of mind. Under the PSLRA, a plaintiff must “state with particularity facts giving rise to a strong inference” that the defendant acted intentionally or with deliberate recklessness. See 15 U.S.C.A. § 78u-^(b)(2)(A); see also In re Daou,
Plaintiffs assert that the following allegations, collectively, plead scienter with the sufficient particularity: (1) Defendants’ motive and financial gain; (2) Defendants’ knowledge or reckless disregard of increasing pricing pressures; (3) Defendants’ awareness of lessened revenue due to diminished orders from distributors and the loss of a Japanese distributor; (4) knowledge of the integration delays; (5) channel stuffing; and (6) the removal of Alphatec’s CFO just two months after the truth was revealed on August 5, 2010. (CAC ¶¶ 83-108.) The Court does not agree.
With regard to the pricing pressures, as Plaintiffs acknowledge, Defendants discussed them as part of the “risk factors” in other filings with the SEC. (See, e.g., CAC ¶ 86 (quoting from Alphatec’s Form 10-K dated March 2, 2010); Smith Deck, Exh. 11, at 591 (Form 10-K).) These risk factors were incorporated by reference into the Prospectus. (See Smith Deck, Exh. 13, at 758.) Moreover, the pricing pressures
Turning to Defendants’ motive and financial gain, those allegations do not support a strong inference of scienter. Plaintiffs allege that Defendants “had strong financial incentives to inflate the price of Alphatec stock in anticipation of the Offering in April 2010. They accomplished this by means of materially false and misleading statements provided to and omissions kept from investors.” (CAC ¶ 100.) According to Plaintiffs, Defendants “stood on both sides” of the Alphatec-Scient’x transaction and “personally benefitted” from the Scient’x’s sale to Alphatec. (CAC ¶ 101.) When combined with “specific allegations of deliberate accounting misfeasance,” corporate acquisitions may create a strong inference of scienter. See In re Daou,
Plaintiffs next allege that Defendants’ knowledge of each involved company’s financial situation gives rise to a strong inference of scienter. For example, Plaintiffs assert that Alphatec’s U.S. sales volume was not increasing at anywhere near the rate required to meet the forecasted revenue. (CAC ¶¶ 89-90.) However, even if that was the ease, what Defendants forecasted was the increase in combined revenue for both U.S. and international sales after the acquisition of Scient’x. Plaintiffs’ allegations with respect to the two companies’ revenue growth are equally insufficient. For example, Plaintiffs allege that for 2009, Alphatec incurred a net loss of over $13 million and Scient’x incurred a net loss of over $17 million. (CAC ¶ 92.) They also allege that Alphatec’s 2009 revenues were $132 million and Scient’x’s revenues were $51.8 million, for a combined revenue of $183.8 million. (Id.) Plaintiffs contend that in light of this 2009 combined revenue, Defendants should have known that the 2010 combined revenue guidance
Similarly, apart from conclusory statements, Plaintiffs fail to allege how Alphatec’s prior sale of Scient’x’s products shows that Defendants should have known that the acquisition of Scient’x today would not increase its revenue as anticipated. As previously noted, Plaintiffs fail to allege what products were sold during the previous time, or the reason that Alphatec terminated those prior sales agreements. As for diminished orders from distributors and the loss of a Japanese distributor, Defendants did disclose that information during the May 10, 2010 conference call. (See Smith Decl., Exh. 16, at 827, 830.) Apart from conclusory statements, Plaintiffs have not alleged sufficient facts to show that the timing of these disclosures was misleading. Finally, Plaintiffs have not alleged sufficient facts to show that the integration delays were known or should have been known to Defendants as of April 16, 2010 or May 10, 2010. See In re Gildan Activewear, Inc. Sec. Litig.,
Plaintiffs further contend that the inference of scienter is supported by one analyst’s statement that Scient’x engaged in channel stuffing. As previously discussed, these allegations of “channel stuffing” are wholly conclusory and, in any event, are insufficient to give rise to a strong inference of scienter. See Wietschner,
Finally, the timing of Defendant Wulffs resignation as the company’s CFO, which was two months after the August 5, 2010 “corrective” announcement, without any other facts about the resignation, does not support a strong inference of scienter. See Zucco Partners,
For the foregoing reasons, whether taken individually or collectively, Plaintiffs’ allegations are insufficient to plead a strong inference of scienter with the particularity and the specificity required by Federal Rule of Civil Procedure 9(b), the PSLRA, and Iqbal.
C. Conclusion
For the foregoing reasons, Plaintiffs have failed to allege sufficient facts to show that the challenged statements contained any misrepresentation or omission, or that they were made with the required scienter. Accordingly, Plaintiffs have failed to state a violation of § 10(b) of the Exchange Act and Rule 10b-5 against Defendants Alphatec, Kuyper, and Wulff. In light of the foregoing, with regard to claim four, the Court GRANTS the Alphatec Defendants’ motion to dismiss.
III. Violations of Section 15 of the Securities Act and Section 20(a) of the Exchange Act
Plaintiffs’ claims three and five allege “control person” liability under § 15 of the Securities Act and § 20(a) of the Exchange Act, respectively, against Defendant Healthpoint and the individual Defendants. For “control person” liability to attach, however, there must be an underlying primary violation. See 15 U.S.C. §§ 77o (requiring a primary violation of § 11 or § 12(a)(2)), § 78t (requiring a primary violation of any provision of the Exchange Act or of any rule or regulation thereunder); see also In re Bare Escentuals,
CONCLUSION
For the foregoing reasons, the Court GRANTS the Healthpoint Defendants’, the Underwriter Defendants’, and the Alphatec Defendants’ motions to dismiss and DISMISSES WITH LEAVE TO AMEND all of Plaintiffs’ claims. Plaintiffs are granted 28 days from the filing of this Order to file an amended complaint that is sufficient in itself and does not rely on any prior pleading.
IT IS SO ORDERED.
Notes
. For purposes of resolving these motions to dismiss, the Court accepts as true all well-pleaded factual allegations in Plaintiffs' Corrected Amended Class Action Complaint ("CAC). See Gompper v. VISX, Inc.,
. According to Plaintiffs, the value of Scient'x at acquisition was $53 million less than what Alphatec was prepared to pay for Scient'x in September 2006. (CAC ¶ 45.)
. Hereinafter, unless otherwise noted, bold italic emphasis has been added to highlight the specific statements challenged by Plaintiffs in this action as false or misleading. Moreover, while the allegations are taken out of the CAC, the Court also relies on the documents filed with the SEC and the transcripts of the conference calls for full quotations of the challenged statements. See In re Stac Elecs. Sec. Litig.,
. "Channel stuffing” is “the oversupply of distributors in one quarter to artificially inflate sales, which will then drop in the next quarter as the distributors no longer make orders while they deplete their excess supply.” Steckman v. Hart Brewing, Inc.,
. Having considered the parties' requests for judicial notice, the Court will take judicial notice of the SEC filings, press releases, and transcripts of conference calls, copies of which are attached to each party's moving papers because those documents were either referenced in the CAC or are not subject to reasonable dispute. See Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
On the other hand, the Court declines to take judicial notice of two charts drafted by counsel for the Alphatec Defendants, containing full text of the challenged statements and of Alphatec’s risk disclosures excerpted from relevant SEC filings. (See Smith Deck, Exhs. 20, 21.) These charts are cumulative of the information that the Court may independently consider.
. See, e.g., CAC ¶ 45 ("Defendants Berkowitz and Foster used their controlling interests in Alphatec to compel the Company's board to consider purchasing Scient'x''); ¶ 46 ("Defendant Berkowitz began to engineer a sale of Scient'x to Alphatec in the hopes of allowing Healthpoint to escape any further losses on its investment in Scient’x.”); ¶ 65(c)(ii) ("Defendants had engaged in channel stuffing prior to the acquisition, which made Scient'x sales appear greater than they actually were prior to the acquisition, and limited its ability to generate revenue following the acquisition.”); ¶ 87 ("Defendants’ knowing disregard of pricing pressures throughout the Class Period proximately caused Lead Plaintiff's and Class members' losses.”); ¶ 90 ("Defendants knew, even before the Class Period began, that U.S. sales volume was not increasing at anywhere near the rate required to attain Defendants' wildly positive 2010 forecasts of revenue....”); ¶ 100 ("Defendants each had strong financial incentives to inflate the price of Alphatec stock in anticipation of the Offering in April 2010. They accomplished this by means of the materially false and misleading statements provided to and omissions kept from investors, as outlined above.”); ¶ 107 ("Healthpoint and Defendants Berkowitz, Foster, O'Neil, Molson, and Hochschueler, because of their interests in Healthpoint and Alphatec, were strongly motivated to inflate the value of Alphatec's stock, and thus the consideration they were to receive in the Offering in April 2010. Such a motive indicates Defendants' fraudulent intent.”).
. See, e.g., CAC ¶ 11 ("Pursuant to Fed. R.Civ.P. 8(d), Lead Plaintiff specifically disclaims any allegations of fraud in connection with these Securities Act claims, which sound in strict liability and negligence and are not based on any allegations of knowing or reckless misconduct on the part of any Defendant.”); ¶ 119 (incorporating, with respect to claim one, all of the CAC’s prior allegations only to the extent “that such allegations do not allege fraud, scienter or the intent of the
. Plaintiffs’ citation to Defendants' subsequent disclosure, on August 5, 2010, that there was a six-week delay in loading Scient’x’s products into Alphatec and vice versa, (see CAC ¶¶ 77-78), is insufficient by itself to show that those delays were either known or could reasonably be expected to have a material impact as of April 16, 2010. See Ronconi v. Larkin,
. See, e.g.. Deck of Nolan J. Mitchell ISO the Underwriter Defs.’ MTD ("Mitchell Deck"), Exh. 2, at 6 (25.6% year-over-year consolidated revenue growth for the first quarter 2010); id., Exh. 4, at 6 (55% for the second quarter); id., Exh. 6, at 6 (49% for the third quarter); id,, Exh. 1, at 7 (38.4% growth for the fourth quarter); id., Exh. 1, at 8 (full year 2010 consolidated revenue growth of 42.3% and pro forma revenue growth of 7.1%, as compared to 2009).
. The Court also does not consider, in the context of claims one and two, whether Defendants' 2010 revenue guidance was false or misleading. As Defendants correctly point out, the 2010 revenue guidance was not stated in the April 16, 2010 Prospectus or in the Registration statement incorporating the Prospectus. Although Plaintiffs contend that the revenue guidance was stated in Alphatec’s Form 8-K, and therefore incorporated by reference into the Prospectus, the Prospectus expressly excluded from incorporation any part of Form 8-K furnished under Item 2.02, which includes Alphatec’s revenue guidance in this case. (See Smith Deck, Exh. 13, at 758; Glancy Deck, Exh. 1.) Because the revenue guidance was neither stated in the Prospectus nor incorporated into it by reference, it is not actionable under either § 11 or § 12(a)(2) of the Securities Act. See 15 U.S.C. §§ 77k(a), 771(a)(2); see also In re Sterling Foster & Co., Inc., Sec. Litig.,
. While Plaintiffs' claim two is also alleged against the Underwriter Defendants, the Underwriter Defendants do not contest that they are a "seller” for purposes of § 12(a)(2).
. Plaintiffs have also failed to allege specific facts to show that Alphatec’s statements that it had "already begun to realize synergies” from the acquisition and that it anticipated that its revenues throughout the balance of 2010 "will continue to grow” were actually false. (See supra Part I.C.2, at 18-19 (discussing how both of these statements were literally true).)
. As the Court previously concluded, the two challenged statements in the April 16, 2010 Prospectus were not forward-looking. See supra Part I.B, at 14-15.