Jesse Campbell v. Transgenomic, Inc.

United States Court of Appeals
For the Eighth Circuit
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No. 18-2198
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Jesse Campbell, Individually and on Behalf of All Others Similarly Situated
lllllllllllllllllllllPlaintiff - Appellant
v.
Transgenomic, Inc.; Paul Kinnon; Precipio, Inc.
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 15, 2018
Filed: March 1, 2019
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Before BENTON, BEAM, and ERICKSON, Circuit Judges.
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BENTON, Circuit Judge.
Following a merger, Transgenomic shareholder Jesse Campbell brought a class
action for former Transgenomic shareholders alleging materially misleading
statements and omissions in the proxy statement. The district court dismissed, ruling
that, as a matter of law, any omissions or misstatements in the proxy statement were
not materially misleading. Having jurisdiction under 28 U.S.C. § 1291, this court
reverses and remands.
I.
In October 2016, biotechnical company Transgenomic, Inc. and cancer-
diagnostics company Precipio, Inc. (“pre-merger Precipio”) agreed to form Precipio,
Inc. (“post-merger Precipio”). Transgenomic filed a proxy statement with the
Securities and Exchange Commission and sent it to Transgenomic shareholders.
They voted to approve the merger in June 2017.
Jesse Campbell brought a class action for former Transgenomic shareholders
against Transgenomic, post-merger Precipio, and Paul Kinnon, Transgenomic’s
former president, CEO, interim CFO, secretary, and director. The Amended
Complaint alleges that Transgenomic and Kinnon violated Sections 14(a) and 20(a)
of the Securities Exchange Act and SEC Rule 14a-9 by disseminating a false and
materially misleading proxy statement that failed to give Transgenomic shareholders
an accurate picture of Precipio’s value. The district court dismissed for failure to
state a claim. Campbell appeals.
II.
This court reviews de novo the dismissal of a securities fraud amended
complaint, affirming only if the plaintiffs can prove no set of facts entitling them to
relief. See Elam v. Neidorff, 544 F.3d 921, 926 (8th Cir. 2008). “The Private
Securities Litigation Reform Act (‘PSLRA’) imposes heightened pleading standards
in securities-fraud cases.” In re Stratasys Ltd. S’holder Sec. Litig., 864 F.3d 879,
882 (8th Cir. 2017). An adequate complaint must “specify each statement alleged to
have been misleading [and] the reason or reasons why the statement is misleading.”
15 U.S.C. § 78u-4(b)(1). The court views factual allegations most favorably to the
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plaintiff and assumes the truth of particularly pled allegations, but not of “catch-all”
or “blanket” assertions that do not meet the particularity requirements of the statute.
See Fla. State Bd. of Admin. v. Green Tree Fin. Corp., 270 F.3d 645, 660 (8th Cir.
2001).
“A securities fraud ‘plaintiff must show that the defendant made a statement
that was misleading as to a material fact.’” In re Stratasys Ltd., 864 F.3d at 882,
quoting Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 38 (2011). “Generally,
the issue of whether a public statement is misleading is a mixed question of law and
fact for the jury.” In re K-tel Int'l, Inc. Sec. Litig., 300 F.3d 881, 897 (8th Cir. 2002)
(evaluating materiality of misleading public statements under § 10(b) and 10b–5).
See also Basic Inc. v. Levinson, 485 U.S. 224, 231-32 (1988) (applying 14(a) and 14-
9 materiality standard to 10(b) and 10b-5 claims). “The issue is appropriately decided
as a matter of law, however, when reasonable minds could not differ.” K-tel, 300
F.3d at 897. Campbell alleges that the proxy statement was materially misleading in
two ways.
A.
Campbell alleges that the proxy statement was materially misleading because
it omitted Precipio’s projected net income/loss (which the Transgenomic board
reviewed before approving of the merger). The proxy statement also omitted
expenses that would allow investors to independently calculate Precipio’s net
income/loss from its revenue projections and gross profit. Transgenomic denies that
the omission of net income/loss is materially misleading because the proxy statement
fully disclosed other important metrics such as projected unlevered free cash flows,
revenue projections, and gross profit. The district court agreed. It thought that the
question was—because a proxy statement need not disclose all financial
information—“the crux of the analysis is this: where the proxy statement chooses to
disclose a financial valuation, does it do so honestly?” This is the wrong inquiry.
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“Section 14(a) ‘was intended to promote the free exercise of the voting rights
of stockholders by ensuring that proxies would be solicited with explanation to the
stockholder of the real nature of the questions for which authority to cast his vote is
sought.’” SEC v. Shanahan, 646 F.3d 536, 546 (8th Cir. 2011), citing TSC Indus.,
Inc. v. Northway, Inc., 426 U.S. 438, 444 (1976). “Unlike poker where a player must
conceal his unexposed cards, the object of a proxy statement is to put all one’s cards
on the table face-up.” Mendell v. Greenberg, 927 F.2d 667, 670 (2d Cir. 1990). “An
omitted fact is material if there is a substantial likelihood that a reasonable
shareholder would consider it important in deciding how to vote.” Northway, Inc.,
426 U.S. at 449. “Under this test it is not necessary to prove that disclosure of an
omitted fact would have caused a reasonable investor to change his decision.” Alton
Box Bd. Co. v. Goldman, Sachs & Co., 560 F.2d 916, 920 (8th Cir. 1977), citing
Northway, Inc., 426 U.S. at 449. “The role of the materiality requirement is . . . to
determine whether a reasonable investor would have considered the omitted
information significant at the time.” Parnes v. Gateway 2000, Inc., 122 F.3d 539,
547 (8th Cir. 1997). This standard “enable[s] the shareholders to make an informed
choice” without “bury[ing] the shareholders in an avalanche of trivial information.”
Northway, Inc., 426 U.S. at 448.
Pre-merger Precipio’s projected net income/loss is not trivial information. Net
income “may be of more significance to investors” than revenue. Gebhardt v.
ConAgra Foods, Inc., 335 F.3d 824, 830 (8th Cir. 2003) (finding revenue
overstatement in earning statements materially misleading). This court has
considered net income to be among the three most valuable figures in determining the
fairness of an acquisition under the Clayton Act. See Mississippi River Corp. v. FTC,
454 F.2d 1083, 1086 (8th Cir. 1972) (considering assets, revenue, and net income).
“A fact is material ‘when there is a substantial likelihood that the disclosure of the
omitted fact would have been viewed by the reasonable investor as having
significantly altered the total mix of information made available.’” In re Stratasys
Ltd., 864 F.3d at 882, quoting Matrixx Initiatives, Inc., 563 U.S. at 38. The
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disclosure of Precipio’s net income/loss figures could have significantly altered the
total mix by informing shareholders about pre-merger Precipio’s net income/loss. It
cannot be determined as a matter of law “whether a reasonable investor would have
considered [pre-merger Precipio’s projected net income/loss] significant at the time.”
Parnes, 122 F.3d at 547.
Additionally, the proxy statement did disclose gross profit projections for pre-
merger Precipio. By omitting the (allegedly) significantly lower projections for
Precipio’s net income/loss, the proxy statement may have presented Precipio in a
false light that was materially misleading. See In re Vivendi, S.A. Sec. Litig., 838
F.3d 223, 239-40 (2d Cir. 2016) (distinguishing “pure omissions” from misleading
“half-truths” and finding both may be actionable securities fraud). Cf. Universal
Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 2000, 2000 n.3
(2016) (referencing the definition of misrepresentations in securities law, explaining
that “half-truths”—representations that state the truth only so far as it goes, while
omitting critical qualifying information —can be actionable misrepresentations under
the False Claims Act). Omissions from a proxy statement are material if their
disclosure is “necessary in order to make the statements therein not false or
misleading.” 17 C.F.R. § 240.14a-9.
Because a reasonable investor may have viewed disclosure of Precipio’s net
income/loss as having “significantly altered the ‘total mix’ of information made
available,” Northway, Inc., 426 U.S. at 449, the materiality of the omission was
improperly resolved as a matter of law.
Doubts as to the critical nature of information misstated or omitted will
be commonplace. And particularly in view of the prophylactic purpose
of the Rule and the fact that the content of the proxy statement is within
management’s control, it is appropriate that these doubts be resolved in
favor of those the statute is designed to protect.
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Id. at 448. The trier of fact should determine the materiality of the omission. See
Kronfeld v. Trans World Airlines, Inc., 832 F.2d 726, 735-37 (2d Cir. 1987) (trier
of fact should determine materiality of proxy statement’s failure to disclose that
holding company that owned all the stock and that had been financing the losses of
the corporation was considering terminating its relationship with the corporation);
Lockspeiser v. W. Maryland Co., 768 F.2d 558, 562 (4th Cir. 1985) (trier of fact
should determine materiality of proxy statement’s omission of quantity of assets
where shareholders may choose to accept offered price or to seek appraisal under
state law).
B.
Campbell alleges that the proxy statement is also materially misleading because
it mislabels a “Revenue distribution” table. Page 60 of the proxy statement says:
The parties agree that the top table shows projections only for Transgenomic. The
dispute is about the “Revenue distribution” table.
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At the beginning of the proxy statement, a Summary Term Sheet defines pre-
merger Precipio as “Precipio” and post-merger Precipio as “New Precipio.” But in
the “Revenue distribution” table—as Transgenomic has since clarified—“Precipio’s”
refers to post-merger Precipio’s, with revenue projections for both pre-merger
Precipio and Transgenomic. Campbell alleges that the “Revenue distribution” table
caused shareholders to believe that Precipio was significantly more valuable than it
was.
Transgenomic counters that the label is not materially misleading because other
clues in the proxy statement tell shareholders that the figures in this table refer to
post-merger Precipio. First, according to Transgenomic, a reasonable investor would
understand the “Technology” line to refer to Transgenomic because it is a technology
company. The district court agreed, noting that the proxy statement “generally
describes Transgenomic as a ‘Technology’ driven entity, while Precipio is a ‘Service’
focused business.” The district court did not acknowledge that pre-merger Precipio
was in part a technology company, which Transgenomic acknowledges.
Second, Transgenomic argues that a reasonable investor would have known the
numbers in the “Revenue distribution” table correspond to post-merger Precipio
because they approximate those appearing seven pages earlier in the proxy statement.
There, in a table titled “Discounted Cash Flow Analysis of Combined Company,” a
row labeled “Services Revenue” has numbers that—rounded—equal the numbers in
the “Revenue distribution” table. According to Transgenomic, a reasonable investor
would understand that the numbers seven pages earlier refer to post-merger Precipio,
and therefore, the rounded numbers in the “Revenue distribution” table refer to
post-merger Precipio. Third, Transgenomic argues that a reasonable investor would
know that the numbers in the “Services” row refer to pre-merger Precipio because
they match the unrounded numbers ten pages earlier in a table referring to revenue
from “Only Precipio.” But the district court did not acknowledge that fourteen pages
earlier, the proxy statement uses the title “Precipio’s internal financial projections”
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to refer to “stand-alone analyses performed on [pre-merger] Precipio.” And one page
before that, the proxy statement states that its preparation involved the review of
“certain internal financial projections for Transgenomic and Precipio on a stand-alone
basis.”
Finally, Transgenomic argues that the “Revenue distribution” table is not
misleading because the “Technology” row is blank for 2016, the year before the
merger, signaling that the table has post-merger numbers. But if the whole table has
post-merger numbers, then the services row should also be blank for 2016. It is not.
Further, “reasonable minds could . . . differ” about the significance of the blank line.
K-tel, 300 F.3d at 897. The proxy statement later explains that Precipio is developing
a virtual software platform “[e]xpected to launch in 2017.” This technology
development could explain why the row is blank until 2017.
The district court found that “the projection could have more clearly
demonstrated that ‘Precipio’s internal financial projection’ was a ‘post-merger
Precipio internal financial projection.’” But, the district court concluded that “any
mislabeling” was not materially misleading. True, the clues listed by Transgenomic
may support a finding that the labeling was not misleading. See, e.g., Virginia
Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1097 (1991) (“While a misleading
statement will not always lose its deceptive edge simply by joinder with others that
are true, the true statements may discredit the other one so obviously that the risk of
real deception drops to nil.”). However, as a matter of law, the clues cited by
Transgenomic do not mean that the “Revenue distribution” table is not materially
misleading. “The point of a proxy statement, after all, should be to inform, not to
challenge the reader’s critical wits.” Id.
Whether a reasonable investor would decipher from other clues in the proxy
statement that “Precipio” in the “Revenue distribution” table refers to “pre-merger
Precipio” is a question for the trier of fact. See In re Control Data Corp. Sec. Litig.,
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933 F.2d 616, 621 (8th Cir. 1991) (“The trier of fact is uniquely competent to
determine materiality, as that inquiry requires ‘delicate assessments of inferences a
[reasonable investor] would draw from a given set of facts.’”), quoting Northway,
Inc., 426 U.S. at 450.1
III.
Campbell’s 20(a) allegation against Kinnon is also sufficient. Section 20(a)
of the Securities Exchange Act establishes control-person liability of those who,
subject to certain defenses, “directly or indirectly” control a primary violator of the
federal securities laws. 15 U.S.C. § 78t(a). “Section 20(a) . . . is designed to ensure
that securities brokers act properly and supervise their employees, and, therefore, it
imposes liability in those cases in which the supervisor did not directly participate in
the bad acts.” In re Miller, 276 F.3d 424, 429 (8th Cir. 2002). “Section 20(a)
extends liability well beyond traditional doctrines, providing expansive remedies in
a highly regulated industry.” Id. “[T]he control-person statute is remedial and is to
be to be construed liberally . . . requiring only some indirect means of discipline or
influence short of actual direction to hold a controlling person liable.” Farley v.
Henson, 11 F.3d 827, 836 (8th Cir. 1993).
Campbell sufficiently pled: (1) “a ‘primary violator’ violated the federal
securities laws”; (2) Kinnon “actually exercised control over the general operations
of the primary violator”; and (3) Kinnon “possessed—but did not necessarily
exercise—the power to determine the specific acts or omissions upon which the
underlying violation is predicated.” Lustgraaf v. Behrens, 619 F.3d 867, 873 (8th
Cir. 2010). If the first prong survives a motion to dismiss under the PSLRA
heightened pleading standard, “the second and third prongs involve questions of
1
Transgenomic argues that Campbell did not adequately plead loss causation.
Because the district court did not address this issue, this court declines to address it.
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control and are therefore analyzed under . . . ordinary notice-pleading standard.” Id.
at 875. Under that standard, this court assumes as true all factual allegations in the
pleadings, interpreting them most favorably to Campbell, the nonmoving party. See
Nelson v. Midland Credit Mgmt., Inc., 828 F.3d 749, 751 (8th Cir. 2016). Because
Campbell’s complaint “contain[s] sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face,” the dismissal of the § 20(a) claim is
reversed. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
*******
The judgment is reversed, and the case remanded for further proceedings
consistent with this opinion.
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