Commercial Litigation and Arbitration

Rule 54(b) Standards for Entering Partial Judgment — Ordinarily No 54(b) for Denial of Summary Judgment — Ninth Circuit 10b-5 Scienter Standard

From Securities and Exchange Commission v. Platforms Wireless Int’l Corp., 2010 U.S. App. LEXIS 15328 (9th Cir. July 27, 2010):

[Rule 54(b)]

Platforms questions the propriety of the district court's Rule 54(b) judgment resting on the underlying partial summary judgment. Rule 54(b) permits a district court to enter judgment on "fewer than all" claims or parties where there is "no just reason for delay." Fed. R. Civ. P. 54(b).... A properly entered Rule 54(b) judgment is a "final" appealable judgment for purposes of 28 U.S.C. § 1291.***

Reviewing the propriety of a district court's Rule 54(b) certification is a two-step process. *** In the first step, we review de novo "such factors as the interrelationship of the claims so as to prevent piecemeal appeals." *** "The second step . . . requires an assessment of the equities [under] the 'substantial deference' standard, reversing the district court['s Rule 54(b) certification] only if we find the district court's conclusions clearly unreasonable." *** Analyzing a Rule 54(b) judgment requires a "pragmatic approach" with focus "on severability and efficient judicial administration." ***

We conclude that the district court properly entered a Rule 54(b) final judgment on the Section 5 and Section 10(b) claims on which it granted summary judgment. The SEC expressly indicated to the district court that it was satisfied with the partial summary judgment and the relief it received, and that it did not wish to pursue its remaining Section 10(b) claims. Moreover, as noted above, all other defendants in the matter have settled with the SEC. The Rule 54(b) judgment therefore ended all litigation in the case, and it will not "inevitably come back to this court on the same set of facts." *** In light of the above, the district court's decision was neither "clearly unreasonable" nor inequitable. ***

[Footnote 7] 7 We express no opinion whether 28 U.S.C. § 1291 confers jurisdiction to review the denial of summary judgment on the SEC's Section 10(b) claims relating to five press releases. See Safe Flight Instrument Corp. v. McDonnell-Douglas Corp., 482 F.2d 1086, 1093 (9th Cir. 1973) ("Ordinarily the denial of a motion for summary judgment is not appealable, even where there has been an express direction and determination of the kind called for by Rule 54(b) . . . ."). ***

[Scienter in the 9th Circuit]

The parties dispute what degree of subjective recklessness is necessary to establish scienter under Section 10(b) and Rule 10b-5. Both agree that some degree of subjective understanding of the risk of misleading others is required. The SEC argues that the defendants need only have been aware that the misleading statement was made and have knowledge of the facts that made it "objectively obvious" that the statement was misleading. The defendants argue that liability further requires that the defendant have been subjectively aware of the risk that the statement could be misleading, i.e. that the defendant must have acted "deliberately." ***

These precedents lead us inescapably to two conclusions. First, Gebhart, interpreting Silicon Graphics and Hollinger, makes it clear that scienter requires either "deliberate recklessness" or "conscious recklessness," and that it includes "a subjective inquiry" turning on "the defendant's actual state of mind." 595 F.3d at 1041-42. Evidence showing that the defendants did not appreciate the gravity of the risk of misleading others is relevant to such a determination. See id. at 1042 n.11 (holding that "the factfinder must consider the direct and circumstantial evidence as a whole" to determine whether the defendant "consciously disregarded the risk" that the statements were false).

Second, despite our first conclusion, a defendant ordinarily will not be able to defeat summary judgment by the mere denial of subjective knowledge of the risk that a statement could be misleading. Summary judgment requires a statement that is materially misleading such that no reasonable jury could conclude otherwise. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). Moreover, the statement must present a danger of misleading buyers or sellers "that is either known to the defendant or is so obvious that the actor must have been aware of it." Hollinger, 914 F.2d at 1569. When the defendant is aware of the facts that made the statement misleading, "he cannot ignore the facts and plead ignorance of the risk." Makor Issues & Rights, Ltd. v. Tellabs Inc., 513 F.3d 702, 704 (7th Cir. 2008); see also Vucinich v. Paine, Webber, Jackson & Curtis, Inc., 739 F.2d 1434, 1436 (9th Cir. 1984) ("Summary judgment is generally inappropriate when mental state is an issue, unless no reasonable inference supports the adverse party's claim." (emphasis added)). Stated another way, if no reasonable person could deny that the statement was materially misleading, a defendant with knowledge of the relevant facts cannot manufacture a genuine issue of material fact merely by denying (or intentionally disregarding) what any reasonable person would have known.

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