PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2970
IN RE: AETNA, INC. SECURITIES LITIGATION
VARMA MUTUAL PENSION INSURANCE COMPANY,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D. C. No. 2-07-cv-04451)
District Judge: Hon. Thomas N. O’Neill
Argued on February 11, 2010
Before: SLOVITER, ROTH, and TASHIMA*, Circuit Judges
(Opinion filed: August 11, 2010)
*Honorable A. Wallace Tashima, Senior United States
Circuit Judge for the Ninth Circuit, sitting by designation.
Michael K. Yarnoff, Esquire (Argued)
Benjamin J. Sweet, Esquire
Bharati O. Sharma, Esquire
Barroway, Topaz, Kessler, Meltzer & Check, LLP
280 King of Prussia Road
Radnor, PA 19087
Jay W. Eisenhofer, Esquire
Charles T. Caliendo, Esquire
Grant & Eisenhofer, P. A.
485 Lexington Avenue
New York, NY 10017
James R. Banko, Esquire
Geoffrey C. Jarvis, Esquire
Grant & Eisenhofer, P. A.
Chase Manhattan Centre
1201 North Market Street
Suite 2100
Wilmington, DE 19801
Counsel for Appellant
Michael P. Carroll, Esquire (Argued)
Michael S. Flynn, Esquire
Jonathan D. Martin, Esquire
Davis, Polk & Wardwell, LLP
450 Lexington Avenue
New York, NY 10017
2
John M. Elliott, Esquire
Frederick P. Santarelli, Esquire
Elliott, Greenleaf & Siedzikowski, P. C.
945 Harvest Drive, Suite 300
Blue Bell, PA 19422
Counsel for Appellees
OPINION
ROTH, Circuit Judge:
Plaintiff shareholders appeal the District Court’s order
dismissing this securities fraud class action under the Private
Securities Litigation Reform Act, 15 U.S.C. § 78u-5(c)(1),
which contains a safe harbor for forward-looking statements.
We find the alleged misrepresentations which form the basis of
plaintiffs’ claims are protected by the safe harbor because they
are forward-looking and immaterial as a matter of law. We will
therefore affirm the order of the District Court.
I. Factual and Procedural Background
Lead plaintiff Varma Mutual Pension Insurance
Company seeks to represent a class of investors who purchased
securities of Aetna, Inc., between October 27, 2005, and July 27,
2006. The Consolidated Class Action Complaint names as
defendants Aetna and four of its officers employed at the time
3
of the alleged fraud: John Rowe, Ronald Williams, Alan
Bennett, and Craig Callen.1 Aetna, a Pennsylvania corporation
with operations in multiple states, provides medical insurance
and health care benefits to more than 14 million customers.
The complaint alleges a fraudulent scheme wherein
defendants misled investors about Aetna’s pricing of insurance
policies and then sold shares of Aetna’s stock before the scheme
was revealed to the public. In particular, plaintiffs claim that
defendants falsely characterized Aetna’s pricing of medical
insurance premiums as “disciplined,” which, plaintiffs claim,
refers to a conservative underwriting practice of setting
premiums in a fixed proportion to expected future medical costs.
Within the health care industry, this proportion is known as the
1
Williams is Chairman and CEO of Aetna; he previously
served as President from May 2002 to July 2007. Rowe was
CEO from February 2000 to February 2006 and Chairman from
April 2001 to October 2006. Bennett was CFO from September
2001 to April 2007. Callen was Senior Vice President and Head
of Strategic Planning and Business Development from April
2004 to November 2007.
4
“medical cost ratio” (MCR).2 According to plaintiffs, investors
rely on MCR as an indicator of profitability.
Plaintiffs claim the fraud began in September 2005, when
Aetna allegedly relaxed its underwriting criteria in an effort to
underprice competitors and gain market share. Plaintiffs claim
that defendants knew this would adversely affect Aetna’s MCR
and stock price so that defendants concealed the relaxed
underwriting criteria by publicly touting a “disciplined” pricing
policy. In February 2006, Rowe, Bennett and Callen sold
substantial holdings of Aetna stock on the open market at prices
that plaintiffs claim were artificially inflated by the fraud.3 In
April and July 2006, Aetna reported two consecutive quarterly
increases in MCR, which plaintiffs attribute to Aetna’s
supposedly secret policy of underpricing premiums.
2
Plaintiffs describe the MCR as “a ratio of the dollars a
company spends on medical costs, physician reimbursement and
other claims-related services (collectively referred to as medical
costs) expressed as a percentage of premiums charged to the
insured for such services. In other words, the ratio is medical
costs divided by premiums.”
3
According to the complaint, “Rowe, Bennett and Callen
all had set up 10b5-1 trading plans from early October to mid-
November 2005.” Rowe sold 887,000 shares (proceeds of
$42.89 million), Bennett sold 280,000 shares (proceeds of
$14.18 million), and Callen sold 60,000 shares (proceeds of
$3.04 million). Williams did not sell any shares.
5
During the class period, the price of Aetna’s stock fell
from $52.48 to $33.25. The loss of shareholder equity occurred
when the alleged underpricing was revealed by Aetna’s
reporting of quarterly MCR data. Plaintiffs claim that
defendants’ statements about “disciplined” pricing artificially
inflated Aetna’s stock by leading investors to believe that MCR
would be lower and that profitability would be higher.
To corroborate their allegations, Plaintiffs cite
contemporaneous reports by financial analysts and journalists
who speculated that Aetna was boosting its market share by
underpricing premiums. Plaintiffs also proffer confidential
witness statements by Aetna employees who claim to have
implemented the relaxed underwriting criteria. Other
confidential witnesses stated that they personally observed the
individual defendants’ hands-on managerial style, from which
plaintiffs impute actual knowledge that Aetna was underpricing
premiums.
A. Defendants’ Statements
The complaint identifies numerous statements which
allegedly misled investors; all statements pertain to Aetna’s
“disciplined” pricing of medical insurance premiums. We
summarize the relevant statements below.
On October 27, 2005, Rowe stated on an analyst
conference call, “Regarding pricing, we continue to adhere to a
disciplined pricing policy of achieving premium yields that are
in line with medical cost trends.” During the same call,
Williams stated, “[W]e are pricing very clearly in line with our
6
medical cost trend . . . . [W]e have a very strong amount of
pricing discipline . . . . What we are doing is making certain that
we are pricing appropriately as best we can, to be certain that
we’re meeting our shareholder expectations.”
On February 9, 2006, Rowe and Williams participated in
another analyst conference call; plaintiffs claim that “Rowe
continued to stress Aetna’s ‘disciplined approach to pricing’
while Williams emphasized Aetna’s commitment to ‘profitably
grow market share and earnings’ through ‘disciplined pricing’
and noted that ‘[o]ur pricing discipline is unchanged.’”
Plaintiffs claim that Rowe and Williams misled investors by
publicly touting a “disciplined” pricing policy while secretly
underpricing premiums to boost market share.
Plaintiffs claim that in April 2006, when Aetna reported
financial results for the first quarter, it concealed the alleged
underpricing by falsely attributing an increase in MCR to higher
medical expenses:
This increase in the medical cost ratio for the first
quarter of 2006 reflects a percentage increase in
per member medical costs that outpaced the
percentage increase in per member premiums, due
to higher medical cost trends for inpatient and
outpatient facility and physician services offset by
a moderation in medical cost trend for ancillary
and pharmacy services.
Aetna Form 10-Q (Apr. 27, 2006). Plaintiffs claim that this
disclosure was misleading because the increase in MCR was
7
caused by the underpricing of premiums, not by higher medical
expenses.
On April 27, 2006, Williams discussed Aetna’s first
quarter results on an analyst conference call and stated, “[W]e
continue to adhere to our pricing discipline.” On the same call,
Bennett stated, “[W]e expect a quarterly pattern to reflect a
slightly higher MCR in the second quarter compared to the first-
quarter level.” Plaintiffs claim that Williams’ statement was
false because Aetna’s pricing was not disciplined and that
Bennett’s statement was misleading because he knew
underpricing would cause the second quarter MCR to increase
substantially, not slightly. On April 28, 2006, Aetna’s stock
price fell by more than 20%, causing a market capitalization loss
of $5.4 billion.
On May 1, 2006, Williams discussed Aetna’s first quarter
MCR performance on an analyst conference call and stated:
In addition, some have questioned our
membership growth and said that we must be
pricing aggressively . . . .
Of the 82,000 total fully insured additions, 15,000
are Medicaid Advantage, 4,000 were in student
health, 14,000 in SRC and 23,000 in individual.
That leaves growth of 26,000 members from our
main customer markets of national, middle and
small group. This is solid and balanced growth
that is representative of our dedication to
pricing, as well as the broad diversification of
markets we are actively pursuing.
8
I will end my comments by reaffirming to you
my personal commitment to continue to
maintain discipline and rigor in everything we
do at Aetna.
(Compl. ¶ 89, A101 (emphasis and alteration in complaint).)
On May 16, 2006, Williams spoke at a health care
conference and stated:
We also continue as a priority to exhibit
commitment to discipline pricing. I think it is
important to understand that the management
incentives and discipline that we have are aligned
to profit increases. We operate a set of fully
allocated profit and loss P&Ls throughout the
Company where general managers are incented to
achieve a discipline level designed to help
maximize those margins and not simply to support
membership growth. Given a decision, we will
always take profitability over growth.
(Compl. ¶ 91, A102 (emphasis in complaint).) Plaintiffs claim
these statements were false and misleading because Williams
knew Aetna was underpricing premiums and sacrificing
profitability for growth.
On July 27, 2006, Aetna announced financial results for
the second fiscal quarter, including a 2% quarterly increase in
MCR. Plaintiffs claim that, contrary to Bennett’s April 27, 2006
prediction of “a slightly higher MCR in the second quarter,” the
9
actual increase of 2% was substantial. That same day, Aetna’s
stock price fell by 17%, causing a market capitalization loss of
$3.58 billion.
Based on these occurrences, the plaintiffs filed a
complaint asserting three causes of action under the Securities
Exchange Act of 1934: Count I alleges violations of Exchange
Act Section 10(b), Count II alleges violations of Exchange Act
Section 20(a), and Count III alleges violations of Exchange Act
Section 18.
B. District Court’s Dismissal
Defendants filed a motion to dismiss the complaint,
which the District Court granted with prejudice. In its thorough
and well-crafted opinion, the District Court held that all
statements which form the basis of Count I were forward-
looking and therefore protected by the statutory safe harbor, 15
U.S.C. § 78u-5(c)(1). The court dismissed Count II as
derivative of Count I, and held that Count III was barred by the
statute of limitations. Plaintiffs only appeal the dismissal of
Counts I and II.
II. Discussion
A. Standard of Review and Jurisdiction
We review the District Court’s decision de novo,
accepting as true all allegations in the complaint and all
reasonable inferences that can be drawn therefrom as viewed
most favorably to the non-moving party. DeBenedictis v.
10
Merrill Lynch & Co., 492 F.3d 209, 215 (3d Cir. 2007). The
District Court had jurisdiction under 28 U.S.C. § 1331. We
have jurisdiction under 28 U.S.C. § 1291.
B. Securities Exchange Act of 1934 Section 10(b)
The Securities Exchange Act of 1934 Section 10(b), and
regulations promulgated thereunder, prohibit fraud in connection
with the sale or purchase of securities. 15 U.S.C. § 78j(b); 17
C.F.R. § 240.10b-5(b).4 Parties injured by securities fraud may
bring a private cause of action under Section 10(b), which
requires proof of six elements: “(1) a material misrepresentation
(or omission); (2) scienter, i.e., a wrongful state of mind; (3) a
connection with the purchase or sale of a security; (4) reliance,
often referred to in cases involving public securities markets
(fraud-on-the-market cases) as ‘transaction causation’; (5)
economic loss; and (6) ‘loss causation,’ i.e., a causal connection
4
“Section 10(b) of the Securities Exchange Act forbids
(1) the ‘use or employ[ment of] . . . any manipulative or
deceptive device or contrivance,’ (2) ‘in connection with the
purchase or sale of any security,’ and (3) ‘in contravention of
[SEC] rules and regulations.’ 15 U.S.C. § 78j(b) (2006). SEC
regulations, in turn, make it unlawful ‘[t]o make any untrue
statement of a material fact or to omit to state a material fact
necessary in order to make the statements made, in the light of
the circumstances under which they were made, not misleading’
in connection with the purchase or sale of any security. 17
C.F.R. § 240.10b-5(b).” McCabe v. Ernst & Young, LLP, 494
F.3d 418, 424 (3d Cir. 2007).
11
between the material misrepresentation and the loss.” McCabe
v. Ernst & Young, LLP, 494 F.3d 418, 424 (3d Cir. 2007) (citing
Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 341-42 (2005)).
This appeal involves only the first element, whether defendants
made a material misrepresentation or omission.
Federal securities fraud litigation is governed by the
Private Securities Litigation Reform Act of 1995 (PSLRA), 109
Stat. 737, which Congress enacted “[a]s a check against abusive
litigation by private parties . . ..” Tellabs, Inc. v. Makor Issues
& Rights, Ltd., 551 U.S. 308, 313 (2007). The PSLRA imposes
two exacting and distinct pleading requirements for securities
fraud actions. First, “the complaint shall specify each statement
alleged to have been misleading, the reason or reasons why the
statement is misleading, and, if an allegation regarding the
statement or omission is made on information and belief, the
complaint shall state with particularity all facts on which that
belief is formed.” 15 U.S.C. § 78u-4(b)(1). Second, “the
complaint shall, with respect to each act or omission alleged to
violate this title, state with particularity facts giving rise to a
strong inference that the defendant acted with the required state
of mind.” 15 U.S.C. § 78u-4(b)(2).
Under the PSLRA, alleged misrepresentations are not
actionable if they fall within the safe harbor for forward-looking
statements. 15 U.S.C. § 78u-5(c). The issue on appeal is
whether defendants’ statements were immunized by the safe
harbor.
12
1. PSLRA Safe Harbor for Forward-Looking
Statements
The PSLRA’s safe harbor for forward-looking statements
provides in relevant part:
(1) [I]n any private action . . . based on an untrue statement
of a material fact or omission of a material fact necessary
to make the statement not misleading, a person . . . shall
not be liable with respect to any forward-looking
statement, whether written or oral, if and to the extent
that–
(A) the forward-looking statement is–
(i) identified as a forward-looking statement, and is
accompanied by meaningful cautionary statements
identifying important factors that could cause actua
results to differ materially from those in the
forward-looking statement; or
(ii) immaterial; or
(B) the plaintiff fails to prove that the forward-looking
statement–
(i) if made by a natural person, was made with actual
knowledge by that person that the statement was false or
misleading; or
(ii) if made by a business entity;[,] was--
13
(I) made by or with the approval of an executive
officer of that entity; and
(II) made or approved by such officer with actual
knowledge by that officer that the statement was false or
misleading.
(2) Oral forward-looking statements. In the case of an oral
forward-looking statement . . ., the requirement set
forth in paragraph (1)(A) shall be deemed to be
satisfied–
(A) if the oral forward-looking statement is accompanied
by a cautionary statement–
(i) that the particular oral statement is a forward-
looking statement; and
(ii) that the actual results might differ materially from
those projected in the forward-looking
statement; and
(B) if–
(i) the oral forward-looking statement is accompanied
by an oral statement that additional information concerning
factors that could cause actual results to materially differ from
those in the forward-looking statement is contained in a readily
available written document, or portion thereof;
14
(ii) the accompanying oral statement referred to in
clause (i) identifies the document, or portion thereof, that
contains the additional information about those factors relating
to the forward-looking statement; and
(iii) the information contained in that written document
is a cautionary statement that satisfies the standard established
in paragraph (1)(A).
15 U.S.C. § 78u-5(c)(1)-(2).
Thus, the safe harbor applies to statements that are
forward-looking as defined by the statute provided that they are
(1) identified as such, and accompanied by meaningful
cautionary statements; or (2) immaterial; or (3) made without
actual knowledge that the statement was false or misleading.
a. Statutory Definition of “Forward-
Looking Statement”
Our threshold inquiry is whether defendants’ statements
fall within the broad statutory definition of ‘forward-looking
statement,’ which includes, inter alia, projections of future
performance, plans and objectives for future operations, and
assumptions underlying statements about future financial,
economic or operational performance. 15 U.S.C. § 78u-5(i)(1).5
5
The PSLRA defines “forward-looking statement” as:
(A) a statement containing a projection of revenues, income
15
We recently construed the statutory definition in Institutional
Investors Group v. Avaya, Inc., 564 F.3d 242 (3d Cir. 2009).
There, shareholders alleged a fraudulent scheme wherein
executives of Avaya, a telecommunications company, denied the
company “was offering unusual price discounts and that its
(including income loss), earnings (including earnings loss)
per share, capital expenditures, dividends, capital
structure, or other financial items;
(B) a statement of the plans and objectives of
management for future operations, including plans or
objectives relating to the products or services of the
issuer;
(C) a statement of future economic performance,
including any such statement contained in a discussion
and analysis of financial condition by the management
or in the results of operations included pursuant to the
rules and regulations of the Commission;
(D) any statement of the assumptions underlying or
relating to any statement described in subparagraph
(A), (B), or (C);
(E) any report issued by an outside reviewer retained
by an issuer, to the extent that the report assesses a
forward-looking statement made by the issuer; or
(F) a statement containing a projection or estimate of
such other items as may be specified by rule or
regulation of the Commission.
15 U.S.C. § 78u-5(i)(1).
16
profit margins were being impaired,” and then publicized
falsely-optimistic financial projections that could not be
achieved because of the price discounting’s negative effect on
profitability. Id. at 249. The shareholders filed suit under
Section 10(b) and alleged two types of misleading statements:
First, there are “pricing pressure statements,” in
which [defendants] are alleged to have falsely
denied Avaya was offering unusual discounts and
facing significant pricing pressure from market
rivals. Second, there are “forecast-related
statements,” in which defendants projected
financial results (such as operating margin and
revenue growth) and made positive portrayals,
notably the statement that Avaya was “on track”
to achieve its goals or projections.
Avaya, Inc., 564 F.3d at 246.
The “pricing pressure” statements were made by Avaya’s
chief financial officer, who denied that deteriorating demand
adversely affected the market price for the company’s products.6
The “forecast-related” statements contained forward-looking
projections, but described those projections in present-tense
language. For example, defendants stated, “Our first quarter
results position us to meet our goals for the year . . . . [W]e are
6
Although not an issue considered on this appeal, the safe
harbor did not apply to those statements because they clearly
referred to historical rather than future performance.
17
on track to meet our goals for the year, even though there were
some aspects to our performance that are below our expectations
and that we are working on to improve.” Id. at 254. We
concluded that such a “mixed present/future statement is not
entitled to the safe harbor with respect to the part of the
statement that refers to the present.” Id. at 255. However, when
read in context, the present-tense statements (i.e., “we are on
track” and “first quarter results position us”) could not
“meaningfully be distinguished from the future projection of
which they are a part” (i.e., Avaya’s future goals). Id. To the
extent that those statements contained assertions about the
present, we found “the assertions of current fact are too vague
to be actionable.” Id.
As we noted in Avaya, it was distinguishable from cases
in which the allegedly misleading statements contained
separately discernable references to the present. Id. For
example, in Makor Issues & Rights, Ltd. v. Tellabs Inc., the
statement that sales were “still going strong” was not forward-
looking because it “would be misleading if [defendant] knew
that its sales were about to collapse.” 513 F.3d 702, 705 (7th
Cir. 2008). In In re Stone & Webster, Inc., Securities Litigation,
the statement that the defendant “has on hand and has access to
sufficient sources of funds to meet its anticipated . . . needs” was
not forward-looking because “[t]he part of the statement that
speaks of the quantity of cash on hand speaks of a present fact.”
414 F.3d 187, 207, 212 (1st Cir. 2005).
In the case before us, the allegedly misleading
representations consist of vague and generalized statements
18
about “disciplined” pricing.7 The District Court properly began
its analysis by ascertaining what factual assertions were
conveyed by those statements. According to the court, the
parties had agreed that “disciplined” pricing referred to Aetna’s
expectation of “achieving premium yields that are in line with
[Aetna’s] medical cost trend.” Based on this understanding of
the term “disciplined” pricing, the court concluded that the
statements were forward-looking because they expressed
expectations about Aetna’s medical cost trend, “a specific
measure of future performance.” So construed the
representations were within the safe harbor’s definition of
“forward-looking statement.” See 15 U.S.C. § 78u-5(i)(1)(B)
(“statement of the plans and objectives of management for
future operations”) and (C) (“statement of future economic
performance”). Applying Avaya, the court found that, while
certain elements of defendants’ statements were partly historical
7
Specifically, plaintiffs allege the following statements
are misleading: (1) “We have, we believe, very strong pricing
discipline;” (2) “we continue to adhere to a disciplined pricing
policy of achieving premium yields that are in line with medical
cost trends;” (3) “this pricing discipline has contributed to the
stability we have realized in our . . . MCR;” (4) “[o]ur pricing
policy remains consistent;” (5) “we continue to exercise pricing
discipline;” (6) “our pricing discipline is unchanged;” (7)
membership growth “is solid and balanced growth that is
representative of our dedication to disciplined pricing;” (8) “we
also continue as a priority to exhibit commitment to
discipline[d] pricing;” and (9) Aetna remains “committed to
pricing discipline [as it has over] the past five years.”
19
and partly present-tense (i.e., statements such as “remains
consistent,” “is unchanged,” and “we continue to adhere to”),
those elements could not be distinguished from the statements’
assertions about the future.
On appeal, plaintiffs argue that the District Court
misunderstood what defendants meant by the term “disciplined”
pricing. Plaintiffs contend that, by “engaging in ‘disciplined’
pricing, Aetna is telling investors that, based upon what the
Company currently estimates costs to be for the policies it is
writing, these policies will be profitable.” Plaintiffs argue that,
although the statements contain projections about future
profitability, they also convey information about current pricing
which is necessarily based on historic data. Plaintiffs also assert
that the District Court overlooked the allegedly misleading
statement in Aetna’s first quarter 2006 Form 10-Q, which
contained an allegedly false, past-tense explanation for the
increase in MCR.
Defendants contend that plaintiffs’ characterization is
wrong because Aetna explicitly defined “disciplined” pricing as
a policy of “achieving premium yields that are in line with [its]
medical cost trend.” They argue that the “disciplined” pricing
statements are “classic forward-looking statements” because
“whether Aetna succeeds in ‘achieving premium yields in line
with our medical cost trend’ cannot be confirmed until future
results – in particular, actual medical costs incurred on policies
– are known.” Defendants assert that the statements are not
actionable because they are vague projections of future
profitability. Regarding the allegedly misleading Form 10-Q
disclosure, defendants argue that the 10-Q explicitly stated the
20
fact that plaintiffs claim was fraudulently concealed , i.e., that
for some insurance policies, medical costs “outpaced the
percentage increase in per member premiums” – in other words
that Aetna underpriced some of its policies.8
Our examination begins with a determination of which
aspect of the statements are false. See In re Stone & Webster,
Inc., 414 F.3d at 213. Plaintiffs claim that defendants
misrepresented Aetna’s underwriting practices during the class
period by referring to its pricing as “disciplined.” However,
whether Aetna’s pricing was, in fact, disciplined could not have
been determined at the time defendants made the statements.
The term “disciplined” pricing describes a policy of setting
prices in relation to future medical costs. At the time the
statements were made, the medical costs had not yet been
incurred and could not be ascertained until later.
8
The relevant language in the Form 10-Q is as follows:
This increase in the medical cost ratio for the
first quarter of 2006 reflects a percentage
increase in per member medical costs that
outpaced the percentage increase in per member
premiums, due to higher medical cost trends for
inpatient and outpatient facility and physician
services offset by a moderation in medical cost
trend for ancillary and pharmacy services.
Aetna Form 10-Q (Apr. 27, 2006).
21
Thus, to the extent that “disciplined” pricing said
anything about the current price of premiums, it did so in the
form of a projection. This is evident from plaintiffs’ own
understanding of the term. As noted above, plaintiffs contend
that by “engaging in ‘disciplined’ pricing, Aetna is telling
investors that, based upon what the Company currently estimates
costs to be for the policies it is writing, these policies will be
profitable.” Statements about future profitability and
assumptions underlying management’s expectations about the
future fall squarely within the definition of forward-looking
statement. 15 U.S.C. § 78u-5(i)(1)(A) and (D).
Plaintiffs further claim that Aetna’s April 27 Form 10-Q
disclosure was misleading because it falsely attributed the first
quarter increase in MCR to higher medical costs without
revealing the underpricing of premiums. While we agree that
the safe harbor does not apply to this statement because it is
historical rather than forward-looking, we find the statement
itself contains no falsity. Even accepting plaintiffs’ allegations
about underpricing as true, the statement asserts the very fact
allegedly concealed, that the increase in medical costs exceeded
the increase in premium revenue. Aetna need not adopt
plaintiffs’ characterization of “underpricing” in its financial
statements to avoid liability for securities fraud.9
9
Aetna also reported financial data about its premium
revenues, which plaintiffs do not allege to be inaccurate.
Aetna’s Form 10-Q reported total quarterly revenue from
premiums as compared to prior periods and a “News Release”
dated April 27, 2006, reported the number of insureds under
22
For these reasons, we hold that the allegedly misleading
assertions regarding Aetna’s “disciplined” pricing policy fall
within the safe harbor’s definition of forward-looking
statement.10
contract as compared to prior periods. These disclosures further
undermine plaintiffs’ theory of falsity. See In re Advanta Corp.
Securities Litigation, 180 F.3d 525, 538 (3d Cir. 1999) (“Factual
recitations of past earnings, so long as they are accurate, do not
create liability under Section 10(b).”).
10
The written forward-looking statements were identified
as such in Aetna’s written press releases and Form 10-Ks. The
oral forward-looking statements were identified as such in
contemporaneous oral statements that referred listeners to
written cautionary language in Aetna’s Form 10-Ks.
Plaintiffs, however, argue that two statements were not
identified as forward-looking and are thus ineligible for
protection under the safe harbor. Plaintiffs concede that the
statements were accompanied by cautionary language but argue
that “nothing in the record” shows exactly how the statements
were identified as forward-looking. Because plaintiffs did not
present this argument to the District Court, the record on this
issue was not properly developed for appellate review. The
alleged insufficiency of statements not contained in the record
provides no basis for remand.
23
b. Meaningful Cautionary Statements
The safe harbor provides that forward-looking statements
must be “accompanied by meaningful cautionary statements
identifying important factors that could cause actual results to
differ materially from those in the forward-looking statement.”
15 U.S.C. § 78u-5(c)(1)(A)(i). This aspect of the safe harbor is
analogous to the “bespeaks caution” doctrine, which holds that
“cautionary language, if sufficient, renders the alleged omissions
or misrepresentations immaterial as a matter of law.” EP
Medsystems, Inc. v. Echocath, Inc., 235 F.3d 865, 873 (3d Cir.
2000). Cautionary language must be extensive, specific, and
directly related to the alleged misrepresentation. GSC Partners
CDO Fund v. Washington, 368 F.3d 228, 243 n.3 (3d Cir. 2004).
Cautionary statements disclosed in SEC filings may be
incorporated by reference; they “do not have to be in the same
document as the forward-looking statements.” In re Merck &
Co. Sec. Litig., 432 F.3d 261, 273 n.11 (3d Cir. 2005).
Plaintiffs argue that the cautionary language, which
Aetna provided in financial reports filed with the SEC, was
insufficient because it failed to disclose the alleged practice of
underpricing premiums, and only addressed risks related to
medical cost projections. The cautionary statements included
the following language:
Our ability to forecast and manage health care
costs and implement increases in premium rates
affects our profitability. Our profitability depends
in large part on accurately forecasting health care
costs and on our ability to appropriately manage
24
future health care costs through underwriting
criteria . . ..
***
Our ability to forecast health care and other
benefit costs, detect changes in these costs, and
achieve appropriate pricing affects our
profitability. We continue to be vigilant in our
pricing and have increased our premiums for new
and renewal business in 2006. Premiums in the
health business are generally fixed for one-year
periods. Accordingly, future cost increases in
excess of medical cost projections reflected in
pricing cannot be recovered in the contract year
through higher premiums. As a result, the
Company’s results are particularly sensitive to the
price increases it projects in advance of renewal
of the business. There can be no assurance
regarding the accuracy of medical cost projections
assumed for pricing purposes, and if the rate of
increase in medical costs in 2006 were to exceed
the levels projected for pricing purposes, our
results would be materially adversely affected.
This language provides clear warning to investors that the
accuracy of medical costs cannot be assured, actual medical
costs may exceed projections assumed for purposes of setting
premiums, medical costs in excess of projections cannot be
recovered through higher premiums, and inaccurate medical cost
projections can have a materially negative effect on profitability.
We find this language adequate under 15 U.S.C. §
25
78u-5(c)(1)(A)(i) because it provided meaningful, extensive,
and specific caution directly related to the statements concerning
“disciplined” pricing.
c. Materiality
The safe harbor applies to forward-looking statements
that are not material. 15 U.S.C. § 78u-5(c)(1)(A)(ii). A
statement or omission “is material if there is a substantial
likelihood that a reasonable shareholder would consider it
important in deciding how to [act].” TSC Industries, Inc. v.
Northway, Inc., 426 U.S. 438, 449 (1976). See Basic Inc. v.
Levinson, 485 U.S. 224, 232 (1988) (“expressly adopt[ing] the
TSC Industries standard of materiality for the § 10(b) and Rule
10b-5 context”). A material misrepresentation or omission is
actionable if it “significantly altered the ‘total mix’ of
information made available.’” Basic, at 231-32 (quoting TSC
Industries, 426 U.S. at 449).
“Material representations must be contrasted with
statements of subjective analysis or extrapolations, such as
opinions, motives and intentions, or general statements of
optimism . . ..” EP Medsystems, Inc., 235 F.3d at 872. Such
statements “‘constitute no more than ‘puffery’ and are
understood by reasonable investors as such.’” In re Advanta
Corp. Sec. Litig., 180 F.3d at 538 (quoting In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1428 n.14 (3d Cir. 1997)).
A representation is immaterial if the “statement at issue is too
vague to be actionable.” In re Burlington Coat Factory Sec.
Litig., 114 F.3d at 1428 (statement “that the company ‘believed
[it could] continue to grow net earnings at a faster rate than
26
sales’” was too vague). “[A]lthough questions of materiality
have traditionally been viewed as particularly appropriate for the
trier of fact, complaints alleging securities fraud often contain
claims of omissions or misstatements that are obviously so
unimportant that courts can rule them immaterial as a matter of
law at the pleading stage.” Id. at 1426.
In In re Advanta Corp. Securities Litigation, shareholders
alleged a theory of fraud similar to the one alleged here
regarding Aetna’s “disciplined” pricing policy. There,
shareholders claimed that Advanta, a credit card company,
publicly touted its strong financial health and “risk-adjusted
pricing strategy,” which targeted customers with good credit.
180 F.3d 525, 537. In its annual report, Advanta stated, “While
we added substantially to our account base, our credit quality
remained excellent. Our emphasis on gold cards – and targeting
of better quality customers – helps us maintain an enviable
credit quality profile.” Id. Shareholders alleged that, contrary
to those representations, Advanta had secretly relaxed its
“underwriting and monitoring procedures” by offering
introductory “teaser” rates to new customers with poor credit.
Id. Advanta’s positive portrayals ultimately proved wrong when
the new customers defaulted, causing a $20 million quarterly
loss. Id. at 528. We held that Advanta’s positive portrayals
were vague, and “even if arguably misleading, do not give rise
to a federal securities claim because they are not material . . ..”
Id. at 538. We expressed doubt that “reasonable investors
would make investment decisions based on the positive
portrayals.” Id. at 539.
27
Here, the District Court applied Advanta and found
defendants’ statements about “disciplined” pricing “to be
immaterial and not actionable because they are puffery, vague
and non-specific expressions of corporate optimism on which
reasonable investors would not have relied.” On appeal,
plaintiffs contend that the “disciplined” pricing statements are
not vague because they related specific information about
Aetna’s current pricing policy and falsely implied that MCR
would remain stable. Plaintiffs argue that defendants’
statements about “disciplined” pricing “are far more concrete
than the vague and general adjectives in Advanta.”
We disagree. The statements identified by plaintiffs
contain oblique references to Aetna’s pricing policy; such
references are too vague to ascertain anything on which a
reasonable investor might rely. For example, plaintiffs claim
Williams “misled investors regarding Aetna’s underpricing and
its effect on higher first quarter MCR” by stating the following
on a May 1, 2006 conference call with analysts:
This is solid and balanced growth that is
representative of our dedication to disciplined
pricing . . . I will end my comments by
reaffirming to you my personal commitment to
continue to maintain discipline and rigor in
everything we do at Aetna.
However, immediately before those remarks, Williams made
other relevant statements about MCR and pricing which
plaintiffs omit from the complaint:
28
The customer markets, both geographical and by
customer type, are very dynamic and vary greatly
in terms of cost, premium levels, competitors and
complexity. We talk in terms of aggregated
consolidated results, but there are always markets
or specific customers that are functioning better or
worse than others or versus expectation.
***
[O]ur . . . book of business is constantly evolving
and changing. As new business is written, cases
get renewed and other cases lapse.
(A303.) These remarks, while broad and vague, at a minimum
convey the complexity of Aetna’s business, diversity of its
customers, and variable nature of its portfolio of insurance
contracts. They describe the difficulty of accurately predicting
MCR and the heterogeneous nature of Aetna’s products,
services, customers, and pricing. When read in context, no
reasonable investor could infer that “dedication to disciplined
pricing,” a vague and subjective statement, meant Aetna had
applied (or failed to apply) a static, across-the-board formula to
determine the price of premiums charged for all products and
services. General statements about the company’s dedication to
“disciplined” pricing and commitment to “discipline and rigor”
could not have meaningfully altered the total mix of information
available to the investing public. We therefore find the
statements immaterial as a matter of law.
29
We note that the state of the record renders our task of
evaluating materiality a difficult one. Plaintiffs direct our
attention to nine allegedly misleading statements made on
analyst conference calls.11 Quotations from those conference
calls appear on the face of the complaint and form the basis of
plaintiffs’ claims. However, plaintiffs did not submit transcripts
of those conference calls to the District Court, and the excerpted
transcripts submitted by defendants omit seven of the nine
statements we are called upon to review. The record only
contains transcripts of Rowe’s statement on October 27, 2005,
and Williams’ statement on May 1, 2006. This omission
precludes our full consideration of the context in which the
statements were made, an obvious impediment to our evaluation
of materiality.12
11
See footnote 7 supra.
12
We have previously explained that:
As a general matter, a district court ruling on a motion to
dismiss may not consider matters extraneous to the
pleadings. However, an exception to the general rule is
that a document integral to or explicitly relied upon in the
complaint may be considered without converting the
motion to dismiss into one for summary judgment.
The rationale underlying this exception is that the
primary problem raised by looking to documents outside
the complaint -- lack of notice to the plaintiff -- is
dissipated where plaintiff has actual notice and has relied
30
d. Actual Knowledge
The safe harbor applies to statements made without
actual knowledge that the statement was false or misleading. 15
U.S.C. § 78u-5(c)(1)(B). The District Court considered the
allegations concerning defendants’ state of mind and found the
complaint failed to plead actual knowledge of the purported
underpricing. Because we find defendants’ statements too
vague to contain an actionable falsity, we need not consider
defendants’ state of mind.
C. Securities Exchange Act of 1934 Section 20(a)
The Securities Exchange Act of 1934 Section 20(a)
imposes liability on controlling persons who aid and abet
violations of the Act. 15 U.S.C. § 78t. Because we find there
was no violation under Section 10(b), and no other violations are
alleged, there is no controlling person liability under Section 20.
In re Merck & Co. Sec. Litig., 432 F.3d at 276. The District
upon these documents in framing the complaint. What
the rule seeks to prevent is the situation in which a
plaintiff is able to maintain a claim of fraud by extracting
an isolated statement from a document and placing it in
the complaint, even though if the statement were
examined in the full context of the document, it would be
clear that the statement was not fraudulent.
In re Burlington Coat Factory Sec. Litig., 114 F.3d at 1426
(citations, quotation marks and alterations omitted).
31
Court, upon finding no liability under Section 10(b), properly
dismissed the derivative claims under Section 20(a).
III. Conclusion
We hold that the PSLRA safe harbor for forward-looking
statements immunizes defendants from liability for securities
fraud. The allegedly misleading statements were forward-
looking, identified as such, accompanied by adequate cautionary
statements, and immaterial as a matter of law. We will therefore
affirm the judgment of the District Court.
32