December 07, 2018 Top Story

New Guidance on Attaching Documents to Motion to Dismiss

Court limits use of documents outside of pleadings for dismissal of securities claim

By Kelso L. Anderson

Narrowly construing the judicial notice rule in Federal Rule of Evidence 201 and the judicial doctrine of incorporation-by-reference, a federal appellate court in Khoja v. Orexigen Therapeutics, Inc. reversed a district court’s dismissal of a securities fraud action.

The defendant leaked confidential information about the testing results of an obesity drug

The defendant leaked confidential information about the testing results of an obesity drug

iStockphoto by Getty Images

The circuit court determined that the district court improperly considered documents outside the plaintiff’s complaint in granting dismissal. Given the heightened pleading requirement in securities fraud actions, some ABA Section of Litigation leaders believe Khoja may be a step too far.

Premium Content For:
  • Litigation Section
Join - Now