In In re BofI Holding, Inc. Sec. Litig., No. 18-55415 (9th Cir. Oct. 8, 2020), the majority of a Ninth Circuit panel (Watford, Bennett, JJ.) reversed the district court’s judgment dismissing a securities fraud class action for failure to sufficiently allege loss causation, and remanded for further proceedings. In doing so, the panel joined the Sixth Circuit in rejecting a categorical rule that allegations in a lawsuit, standing alone, can never qualify as a corrective disclosure. The panel also affirmed the district court’s conclusions that the shareholders failed to plausibly allege the falsity of statements concerning government and regulatory investigations and that a series of blog posts offering negative reports about the company’s operations did not qualify as a corrective disclosure. In addition, while Judge Lee concurred with most of the majority’s opinion, he dissented from the majority’s holding that plausible insider allegations, standing alone, can qualify as a corrective disclosure.
As to the whistleblower allegations, the majority recognized that “[a] corrective disclosure can . . . come from any source, including knowledgeable third parties such as whistleblowers, analysts, or investigative reporters.” Opinion at 13. In taking judicial notice of the contents (but not the truth) of the whistleblower complaint at issue in BofI, the panel found that the “allegations of egregious wrongdoing in the Erhart lawsuit, if accepted as true, unquestionably revealed to the market that at least some of BofI’s alleged misstatements were false.” Id. at 15. Furthermore, the shareholders “allege[d] that BofI’s stock price fell by more than 30% on extremely high trading volume immediately after the market learned of Erhart’s allegations,” which sufficed to plausibly allege that the “drop constituted a dissipation of the inflation attributable to BofI’s misstatements instead of a reaction to some other negative news unrelated to the alleged fraud.” Id. at 16. The majority continued, explaining that “the shareholders did not have to establish that the allegations in Erhart’s lawsuit are in fact true” because “[f]alsity and loss causation are separate elements of a Rule 10b-5 claim” and “[i]n analyzing loss causation, we . . . begin with the premise that BofI’s misstatements were false and ask whether the market at some point learned of their falsity – through whatever means.” Id. (emphasis in original). “Viewed through that prism, the relevant question for loss causation purposes is whether the market reasonably perceived Erhart’s allegations as true and acted upon them accordingly.” Id. (emphasis in original). In this case, the panel credited the 30 percent stock price decline as indicia that the market credited Erhart’s allegations as credible.