Harris v. Ivax Corporation , 182 F.3d 799 ( 1999 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 20 2000
No. 98-4818
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 97-559-CV-FAM
ALAN M. HARRIS, YITZCHOK
WOLPIN, FAUSTO POMBAR,
Plaintiffs-Appellants,
versus
IVAX CORPORATION, PHILLIP FROST,
MICHAEL W. FIPPS,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 20, 2000)
ON PETITION FOR REHEARING
AND SUGGESTION OF REHEARING EN BANC
Before COX and HULL, Circuit Judges, and COHILL*, Senior District Judge.
PER CURIAM:
*
Honorable Maurice B. Cohill, Jr., Senior U.S. District Judge for the Western District of
Pennsylvania, sitting by designation.
The Securities and Exchange Commission, permitted to file a brief in partial
support of a petition for rehearing and suggestion for rehearing en banc filed by the
plaintiffs, has argued that our opinion in this case erroneously implies that a
“cautionary statement[]” could still be “meaningful,” and thus shield a company from
liability for a false forward-looking statement, even if the cautionary statement
knowingly omits a fact that is such a market-driver that it dwarfs the listed “factors
that could cause actual results to differ.” 15 U.S.C. § 78u-5(c)(1)(A)(i). We write
only to confirm that this argument was not made to the panel, and that we have
therefore not considered it.
The petition for rehearing is otherwise DENIED, and no member of this panel
nor other judge in regular active service on the court having requested that the court
be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure;
Eleventh Circuit Rule 35-5), the Suggestion of Rehearing En Banc is DENIED.
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