FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: ORACLE CORPORATION
SECURITIES LITIGATION,
NURSING HOME PENSION FUND,
LOCAL 144; DRIFTON FINANCE No. 09-16502
CORPORATION; ROBERT D. SAWYER;
RYAN KUEHMICHEL; DZUNG CHU, D.C. No.
3:01-cv-00988-SI
Plaintiffs-Appellants,
OPINION
v.
ORACLE CORPORATION; LAWRENCE J.
ELLISON; JEFFREY O. HENLEY;
EDWARD J. SANDERSON,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted
July 13, 2010—San Francisco, California
Filed November 16, 2010
Before: Ferdinand F. Fernandez and Richard C. Tallman,
Circuit Judges, and Thomas F. Hogan,
Senior United States District Judge.*
Opinion by Judge Tallman
*The Honorable Thomas F. Hogan, Senior United States District Judge
for the District of the District of Columbia, sitting by designation.
18529
18534 IN RE ORACLE CORPORATION SECURITIES LITIGATION
COUNSEL
Sanford Svetcov, Esq., Robbins Geller Rudman & Dowd,
LLP (argued); Shawn A. Williams, Esq., Susan K. Alexander,
Esq., Robbins Geller Rudman & Dowd, LLP, for plaintiffs-
appellants Nursing Home Pension Fund, et al.
Kathleen M. Sullivan, Esq., Quinn Emanuel Urquhart & Sulli-
van, LLP (argued); Patrick E. Gibbs, Esq., Peter A. Wald,
Esq., Latham & Watkins, LLP; for defendants-appellees Ora-
cle Corp., Lawrence Ellison, Jeffrey Henley, and Edward
Sanderson.
OPINION
TALLMAN, Circuit Judge:
Oracle Corporation is the second-largest producer of soft-
ware in the world. In the third quarter of its 2001 fiscal year,
Oracle missed its forecasted earnings per share by two cents.
Its stock price dropped. A legion of analysts blamed the miss
on a late-quarter reaction by several key customers to the
unfolding U.S. economic downturn that would become com-
monly known as the burst of the dot-com bubble. Plaintiffs,
several intra-quarter purchasers of Oracle common-stock,
brought this securities litigation against Oracle and three of its
officers alleging the miss was actually caused by an elaborate
scheme to defraud the public about the quality of Oracle prod-
ucts and the revenue gained therefrom. Because Plaintiffs
have not developed evidence sufficient to permit a reasonable
jury to conclude that their losses were caused by the market’s
reaction to Defendants’ alleged fraud, as opposed to Oracle’s
IN RE ORACLE CORPORATION SECURITIES LITIGATION 18535
poor financial health generally, we affirm the district court’s
order granting summary judgment in favor of Oracle.
I
Plaintiffs allege that: (1) Defendants violated Section 10(b)
of the Securities Exchange Act of 1934 (“Exchange Act”), 15
U.S.C. § 78j(b), and Securities Exchange Commission Rule
10b-5; (2) Oracle’s Chief Executive Officer Larry Ellison,
Chief Financial Officer Jeffrey Henley, and Executive Vice
President Edward Sanderson are liable as control persons
under Section 20(a) of the Exchange Act, 15 U.S.C. § 78t(a);
and (3) Henley and Ellison are liable for contemporaneous
trading under Section 20A of the Exchange Act, 15 U.S.C.
§ 78t-1(a). To support these allegations, Plaintiffs claim
Defendants made false and misleading statements about a new
software product, issued a false and misleading forecast for
the third quarter of Oracle’s 2001 fiscal year, made false and
misleading intra-quarter statements, and fraudulently over-
stated earnings for the second quarter of the 2001 fiscal year.
The following undisputed facts are relevant to those claims.
In May 2000, Oracle released integrated business software
called Suite 11i, a suite of programs designed to work
together to manage various company activities such as manu-
facturing, customer relations, sales, and accounting. Tradi-
tionally, enterprise resource planning (“ERP”) applications
performed functions such as accounting, human resources,
and manufacturing. Customer relationship management appli-
cations (“CRM”) performed functions such as managing call
centers. Through the late 1990s, businesses that used enter-
prise applications software could not obtain ERP and CRM
applications from the same vendor. Suite 11i was marketed as
an innovative product that would combine the two types of
applications.
The four quarters of Oracle’s 2001 fiscal year were: from
June 1 to August 31, 2000 (“1Q01”); from September 1 to
18536 IN RE ORACLE CORPORATION SECURITIES LITIGATION
November 30, 2000 (“2Q01”); from December 1, 2000, to
February 28, 2001 (“3Q01”); and from March 1 to May 31,
2001 (“4Q01”). In 1Q01 and 2Q01, Oracle earned a combined
$435 million in revenue from applications licenses. On
December 14, 2000, Oracle announced 2Q01 earnings per
share (“EPS”) of 11 cents and 66% growth in sales of Suite
11i applications. The same day, Oracle issued public guidance
for 3Q01 projecting EPS of 12 cents. This guidance was
based upon an accounting process that had generated projec-
tions that Oracle had met or exceeded for seven consecutive
quarters.
Historically, the majority of Oracle’s sales were made in
the final days of a quarter as customers waited for Oracle to
significantly lower prices in an attempt to meet its quarterly
projections. This trend was commonly referred to as “the
hockey-stick effect” because plotting the quarterly sales on a
graph resembled the shape of a hockey-stick—the sharp
upswing at the end representing the bulk of quarterly sales.
Oracle generates numerous internal financial reports
throughout any given quarter. Relevant to this litigation are
intra-quarter reports projecting quarterly EPS—called internal
forecasts—and intra-quarter reports aggregating the compa-
ny’s sales revenue at a given point in time—called flash
reports. Internal forecasts are an aggregation of the revenue
and growth data contained in flash reports. Whereas flash
reports take a snapshot of revenue and growth at the time they
are produced, internal forecasts are forward-looking and
involve a degree of extrapolation based on the judgment and
experience of corporate management.
From the beginning of 3Q01 on December 1, 2000, until
February 5, 2001, every internal forecast that Oracle produced
indicated that the company could fulfill its 3Q01 guidance.
However, from February 5, 2001, until the end of the quarter,
Oracle’s internally projected EPS began to fluctuate. A Febru-
ary 5 internal forecast projected a potential EPS of 11 cents.
IN RE ORACLE CORPORATION SECURITIES LITIGATION 18537
A February 12 internal forecast returned the quarter’s poten-
tial EPS to 12 cents. A February 19 internal forecast again
lowered the potential EPS to 11 cents. Then, a February 26
internal forecast—prepared two days prior to the end of the
quarter—again predicted a potential EPS of 11 cents. While
Oracle had exceeded late-quarter internal forecasts in quarters
past, the recurring surge in late-quarter sales historically
resulting from the hockey-stick effect did not materialize this
time.
On March 1, 2001, Oracle preliminarily announced a 3Q01
EPS of 10 cents—a two penny miss. The announcement
quoted Ellison as saying,
License growth was strong in the first two months of
Q3, and our internal sales forecast looked good up
until the last few days of the quarter. However, a
substantial number of our customers decided to
delay their IT spending based on the economic slow-
down in the United States. Sales growth for Oracle
products in Europe and Asia Pacific remained
strong. The problem is the U.S. economy.
On March 2, 2001, Oracle’s stock price dropped from $21.38
to $16.88.
Earlier in the quarter, Ellison and Henley had exercised
millions of Oracle stock options. Henley sold one million
Oracle shares for a total of $32 million on January 4, 2001.
Ellison sold 2.09% of his Oracle holdings between January 22
and January 31, 2001. A substantial amount of the shares sold
were acquired through options set to expire in August 2001.
In total, Ellison sold a little over 29 million Oracle shares for
approximately $895 million. Importantly, these sales predated
the first internal forecast indicating a potential EPS lower than
the quarterly guidance of 12 cents.
18538 IN RE ORACLE CORPORATION SECURITIES LITIGATION
II
The district court originally dismissed Plaintiffs’ revised
second amended complaint for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), finding that the alle-
gations did not create a strong inference that intra-quarter
statements made by Defendants were known to be false when
made. See In re Oracle Corp. Sec. Litig., No. 01-CV-988,
2003 WL 23208956 (N.D. Cal. March 24, 2003). In Novem-
ber 2004 we reversed, holding that the operative complaint
met the heightened pleading requirements of the Private
Securities Litigation Reform Act (“PSLRA”). See Nursing
Home Pension Fund, Local 144 v. Oracle Corp., 380 F.3d
1226 (9th Cir. 2004). Copious discovery ensued.
On September 2, 2008, as a result of Defendants’ failure to
preserve all its potential evidence, the district court issued an
order concluding that Plaintiffs were entitled to adverse infer-
ences with regard to two categories of evidence: Ellison’s
email files and materials created in the process of writing the
book Softwar. As a sanction, the court ruled that Plaintiffs
would be entitled to an inference that the spoliated evidence
would demonstrate Ellison’s knowledge of any material facts
that Plaintiffs could otherwise establish.
Despite the absence of the missing Ellison emails and
tapes, discovery proceedings in this case produced over 134
deposition days, countless discovery requests and answers,
and over 2.1 million pages of documents. As the experienced
district judge quipped, the word “voluminous” does not do
justice to the record in this case. On October 20, 2008, Defen-
dants moved for summary judgment. Prior to the hearing on
summary judgment, Defendants made over eighty evidentiary
objections. Plaintiffs never responded to those objections—
notwithstanding the passage of four months between the sum-
mary judgment hearing and the district court’s final order.
On June 19, 2009, the district court made several key evi-
dentiary rulings and granted Defendants’ motion for summary
IN RE ORACLE CORPORATION SECURITIES LITIGATION 18539
judgment. In re Oracle Corp. Sec. Litig., No. 01-CV-988,
2009 WL 1709050 (N.D. Cal. June 19, 2009). The court con-
cluded that Plaintiffs had failed to create a genuine issue of
material fact as to (1) whether Oracle’s 3Q01 forecast lacked
a reasonable basis, (2) whether several intra-quarter state-
ments were false or misleading, (3) whether Plaintiffs’ loss
was caused by Defendants’ misrepresentations regarding
Suite 11i, and (4) whether Plaintiffs’ loss was caused by
Defendants’ misrepresentation of 2Q01 earnings. Plaintiffs
timely appealed.
III
Not surprisingly, Plaintiffs pursue numerous evidentiary
arguments on appeal.
A
We review the district court’s exclusion of evidence for an
abuse of discretion. United States v. Mitchell, 502 F.3d 931,
964 (9th Cir. 2007). A district court abuses its discretion if it
reaches a result that is illogical, implausible, or without sup-
port in inferences that may be drawn from facts in the record.
United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009)
(en banc). A district court’s ruling on a motion for summary
judgment may only be based on admissible evidence. Beyene
v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir.
1988) (citing Fed. R. Civ. P. 56(e)).
In this case, prior to the district court’s ruling on Defen-
dants’ motion for summary judgment, Plaintiffs failed to
respond to over eighty evidentiary objections made by Defen-
dants. There is much disagreement between the parties as to
whether or not each of these objections had been preemp-
tively addressed by Plaintiffs. Irrespective of that dispute, we
conclude the district court did not abuse its discretion on this
record.
18540 IN RE ORACLE CORPORATION SECURITIES LITIGATION
[1] Plaintiffs, as the parties seeking admission of most of
the evidence at issue, bore the burden of proof to show its
admissibility. Pfingston v. Ronan Eng’g Co., 284 F.3d 999,
1004 (9th Cir. 2002). Given the overwhelming volume of
documents before the district court, once Defendants objected
to the evidence Plaintiffs sought to be admitted, the onus was
on Plaintiffs to direct the district court’s attention to authenti-
cating documents, deposition testimony bearing on attribu-
tion, hearsay exceptions and exemptions, or other evidentiary
principles under which the evidence in question could be
deemed admissible by the district court. Plaintiffs failed to do
so.1 We cannot declare that the district court reached an illogi-
cal or implausible result by excluding apparent hearsay or
documents without sufficient foundational support as the rules
of evidence prescribe, or that the district court otherwise
exceeded the permissible bounds of its discretion by failing to
comb through the voluminous record searching for evidenti-
ary bases to introduce the evidence at issue. That was Plain-
tiffs’ obligation.
It behooves litigants, particularly in a case with a record of
this magnitude, to resist the temptation to treat judges as if
they were pigs sniffing for truffles. See Downs v. Los Angeles
Unified Sch. Dist., 228 F.3d 1003, 1007 n.1 (9th Cir. 2000)
(citing United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991)). Moreover, for Plaintiffs to fail to respond to Defen-
dants’ objections, and to then challenge the district court’s
evidentiary rulings on appeal, is to invite the district court to
err and then complain of that very error. We cannot counte-
nance such a tactic on appeal. Cf. United States v. Reyes-
Alvarado, 963 F.2d 1184, 1187 (9th Cir. 1992) (“The doctrine
1
Plaintiffs now urge us to take judicial notice of certain deposition testi-
mony that they claim bears on the propriety of the district court’s hearsay
rulings. We decline Plaintiffs’ invitation. The proper place to call attention
to any such testimony was in front of the district court, and furthermore,
the content of a deposition is not a clearly established “fact” of which this
panel can take notice. See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th
Cir. 2007).
IN RE ORACLE CORPORATION SECURITIES LITIGATION 18541
of invited error prevents a [party] from complaining of an
error that was his own fault.”).
B
The district court found that Defendants wilfully failed to
preserve Ellison’s email files and taped discussions with the
author of the book Softwar. As a result, the district court gave
Plaintiffs the benefit of an adverse inference that the emails
and tapes would have proved Ellison’s knowledge of any
material facts that Plaintiffs were able to establish. Unsuc-
cessful in their efforts to persuade the district court that mate-
rial issues of fact actually existed, Plaintiffs now argue the
adverse inferences should not have been limited to Ellison’s
knowledge. Instead, they urge the inferences should be suffi-
cient to defeat a challenge to the insufficiency of their prima
facie case.
[2] We review a district court’s imposition of spoliation
sanctions for an abuse of discretion. Anheuser-Busch, Inc. v.
Natural Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995).
On this record, we see no abuse of discretion in the district
court’s construction and application of the adverse inferences.
Over 2.1 million documents were produced during discovery.
Although Ellison’s email account files were not produced, the
documents that were produced contained numerous email
chains in which Ellison’s correspondence was contained. If
there were material issues of fact supporting securities fraud,
Plaintiffs should have been able to glean them from the docu-
ments actually produced, the extensive deposition testimony,
and the written discovery between the parties. An adverse
inference would then properly apply to establish that Ellison
must have known of those damaging material facts. Plaintiffs’
problem here lies in the dearth of admissible evidence to show
fraud.
[3] A district court’s adverse inference sanction should be
carefully fashioned to deny the wrongdoer the fruits of its
18542 IN RE ORACLE CORPORATION SECURITIES LITIGATION
misconduct yet not interfere with that party’s right to produce
other relevant evidence. Campbell Indus. v. M/V Gemini, 619
F.2d 24, 27 (9th Cir. 1980). In light of the enormous record
developed in this case, the only conceivable benefit of Defen-
dants’ spoliation was the possibility of disclaiming Ellison’s
knowledge of any damaging facts underlying the purported
fraud. The district court’s sanction was carefully fashioned to
deny Defendants that benefit. As a result, there was no abuse
of discretion. See id.
IV
Turning to the merits of this dispute, we review the district
court’s order granting Defendants’ motion for summary judg-
ment de novo. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.
2004). We are mindful of the shifting burden of proof govern-
ing motions for summary judgment under Federal Rule of
Civil Procedure 56. The moving party initially bears the bur-
den of proving the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the
non-moving party bears the burden of proof at trial, the mov-
ing party need only prove that there is an absence of evidence
to support the non-moving party’s case. Id. at 325. Where the
moving party meets that burden, the burden then shifts to the
non-moving party to designate specific facts demonstrating
the existence of genuine issues for trial. Id. at 324. This bur-
den is not a light one. The non-moving party must show more
than the mere existence of a scintilla of evidence. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The non-
moving party must do more than show there is some “meta-
physical doubt” as to the material facts at issue. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). In fact, the non-moving party must come forth
with evidence from which a jury could reasonably render a
verdict in the non-moving party’s favor. Anderson, 477 U.S.
at 252. In determining whether a jury could reasonably render
a verdict in the non-moving party’s favor, all justifiable infer-
ences are to be drawn in its favor. Id. at 255.
IN RE ORACLE CORPORATION SECURITIES LITIGATION 18543
Plaintiffs allege Defendants violated Section 10(b) of the
Exchange Act and Securities Exchange Commission Rule
10b-5 promulgated thereunder. Section 10(b) makes it unlaw-
ful to “use or employ, in connection with the purchase or sale
of any security . . . any manipulative or deceptive device or
contrivance in contravention of such rules and regulations as
the Commission may prescribe.” 15 U.S.C. § 78j(b). The
scope of Rule 10b-5 is coextensive with that of Section 10(b).
SEC v. Zandford, 535 U.S. 813, 815 n.1 (2002). “In a typical
§ 10(b) private action a plaintiff must prove (1) a material
misrepresentation or omission by the defendant; (2) scienter;
(3) a connection between the misrepresentation or omission
and the purchase or sale of a security; (4) reliance upon the
misrepresentation or omission; (5) economic loss; and (6) loss
causation.” Stoneridge Inv. Partners, LLC v. Scientific-
Atlanta, Inc., 552 U.S. 148, 156 (2008) (citation omitted).
Plaintiffs argue that Defendants violated Section 10(b) by
(1) issuing a 3Q01 forecast that lacked a reasonable basis, (2)
making intra-quarter statements repeating the 3Q01 forecast
and denying the effects of a slowing economy with knowl-
edge of facts tending seriously to undermine those statements,
(3) misrepresenting the functionality and success of Suite 11i,
and (4) overstating 2Q01 earnings. Plaintiffs have not devel-
oped evidence that would allow a jury to reasonably conclude
that Defendants’ 3Q01 forecast or intra-quarter statements
constituted material misrepresentations or omissions. As to
their Suite 11i and 2Q01 claims, Plaintiffs cannot prove loss
causation because they have not developed evidence suffi-
cient to allow a jury to reasonably conclude that Defendants’
purported misrepresentations were a substantial cause of the
decline of Oracle’s stock price on March 2, 2001.
A
[4] For a forward-looking statement such as Oracle’s 3Q01
public guidance to constitute a material misrepresentation giv-
ing rise to Section 10(b) or Rule 10b-5 liability, a plaintiff
18544 IN RE ORACLE CORPORATION SECURITIES LITIGATION
must prove either “(1) the statement is not actually believed
[by the speaker], (2) there is no reasonable basis for the belief,
or (3) the speaker is aware of undisclosed facts tending seri-
ously to undermine the statement’s accuracy.” Provenz v. Mil-
ler, 102 F.3d 1478, 1487 (9th Cir. 1996) (citation omitted).
Plaintiffs allege that Defendants lacked a reasonable basis
for their belief in Oracle’s December 14, 2000, public guid-
ance for 3Q01 because the guidance failed to account for the
serious impact that purported Suite 11i defects had on sales or
the effects of a declining economy.2 Oracle’s 3Q01 forecast
was based on a “bottom up” assessment of revenue that began
with sales representatives and that had produced accurate but
conservative forecasts for seven consecutive quarters. We
describe it below. The structure of this process in and of itself
refutes Plaintiffs’ argument that the forecast did not account
for negative sales trends resulting from alleged Suite 11i
problems or the declining economy. As a result, Plaintiffs
have not established sufficient evidence from which a jury
could reasonably render a verdict in their favor.
The bottom-up process began with sales representatives
entering potential sales into a computer database. These
potential sales were known as the “pipeline.” Based on the
pipeline, sales representatives would submit a forecast indi-
cating what deals were likely to close and for how much.
These forecasts were then adjusted up or down by regional
managers based on that manager’s assessment of the likeli-
hood that those potential sales would close.
Regional forecasts were aggregated by Oracle’s Senior
2
On appeal, Defendants have disclaimed invocation of the PSLRA safe
harbor exempting from liability forward-looking statements “containing a
projection of revenues, income (including income loss), earnings (includ-
ing earnings loss) per share, capital expenditures, dividends, capital struc-
ture, or other financial items” that are also accompanied by meaningful
cautionary statements. 15 U.S.C. § 78u-5(i)(1)(A).
IN RE ORACLE CORPORATION SECURITIES LITIGATION 18545
Vice President of Global Finance and Operations, Jennifer
Minton. Minton would aggregate a forecast that adjusted the
underlying forecasts up or down depending on several factors.
Those factors included: a license pipeline conversion analysis;
a review of the status of certain large transactions and at times
a request for executive involvement to ensure that a deal prog-
ressed and closed; conversations with “key financial person-
nel” in the field to seek their “independent thinking” as to
whether or not the forecast was realistic; corrections to errors
made in the underlying forecast when it was originally sub-
mitted; and an adjustment for “sandbagging,” a label manage-
ment applied to understated forecasts by certain salespersons
and managers who consistently exceeded their forecasts in the
hope of generating larger bonuses.
In light of this process, Plaintiffs’ argument that Minton’s
forecast and Oracle’s guidance failed to take into account the
serious impact that purported Suite 11i defects had on sales
finds no support in the record. Baseline sales information sub-
mitted by sales representatives necessarily included any
alleged impact that Suite 11i problems had on sales. In addi-
tion, “the effects of the declining economy” were also neces-
sarily included in the size of deals and the probability of
closing that sales representatives estimated for the quarter.
[5] Plaintiffs’ strongest argument is that Minton took the
aggregate volume of potential sales revenue in the pipeline for
3Q01 and simply applied the 3Q00 “conversion ratio” to
come up with her 3Q01 forecast. Oracle’s “conversion ratio”
is calculated by dividing the potential sales revenue in the
pipeline at a given point in a quarter by the actual amount of
revenue closed at the end of a quarter. Plaintiffs thus maintain
that if Oracle’s 3Q01 guidance announced December 14,
2000, was solely established by applying the 3Q00 conversion
ratio to 3Q01 pipeline information, then the guidance would
have failed to have accounted for alleged Suite 11i problems
and the effects of the declining economy that had developed
18546 IN RE ORACLE CORPORATION SECURITIES LITIGATION
between 3Q00 and 3Q01. While appealing in the abstract, this
argument is unsupported by the record.
[6] Oracle did not solely apply the 3Q00 conversion ratio
to the pipeline at the outset of 3Q01 to come up with the fore-
cast. While Minton indicated in deposition testimony that she
heavily relied on the 3Q00 conversion ratio, Defendants intro-
duced an expert report containing a chart comparing the
actual conversion ratio at several points in 3Q00 to Minton’s
3Q01 forecast’s estimated conversion ratio for the same
points in 3Q01. The two ratios are different at each interval.
This comparison indicates that Minton took other factors into
account—such as information gathered from conversations
with key financial analysts within Oracle’s various divisions
as well as the likelihood of closing certain targeted large deals
—when determining the 3Q01 forecast. This conclusion is
corroborated by the deposition testimony of several Oracle
employees. While we must draw justifiable inferences in
Plaintiffs’ favor, Anderson, 477 U.S. at 255, the undisputed
chart renders unjustifiable any inference that Oracle’s guid-
ance was solely based on the 3Q00 conversion ratio.
[7] As a result of Oracle’s thorough forecasting process,
Plaintiffs are unable to prove that Defendants lacked at least
a reasonable basis for their belief in the 3Q01 forecast.3 More-
over, the fact that Oracle’s forecast turned out to be incorrect
does not retroactively make it a misrepresentation. See In re
VeriFone Sec. Litig., 11 F.3d 865, 871 (9th Cir. 1993) (“The
fact that the prediction proves to be wrong in hindsight does
not render the statement untrue when made.”) (citing Marx v.
3
Plaintiffs also argue that the 3Q01 forecast lacked a reasonable basis
as a result of two purported accounting frauds that resulted in a fraudu-
lently overstated EPS of 11 cents for 2Q01. First, we reject Plaintiffs’ rep-
resentation that the district court “found” a triable issue as to whether
2Q01 earnings were overstated. That representation is not supported by
the district court’s order. Second, in light of the forecasting process dis-
cussed supra, we reject Plaintiffs’ argument that the 3Q01 forecast was
rendered unreliable based upon fraudulently overstated 2Q01 earnings.
IN RE ORACLE CORPORATION SECURITIES LITIGATION 18547
Computer Scis. Corp., 507 F.2d 485, 489-90 (9th Cir. 1974));
Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 96 F.3d 1151,
1158-59 (9th Cir. 1996) (“[T]he Investors have not introduced
evidence that GE Capital lacked at least a reasonable basis for
their various representations, even though in hindsight they
may now appear a little too rosy.”). Therefore, a jury could
not reasonably conclude that Oracle’s 3Q01 forecast was a
material misrepresentation giving rise to Section 10(b) or
Rule 10b-5 liability.
B
[8] A statement can constitute a material misrepresentation
giving rise to Section 10(b) or Rule 10b-5 liability if there is
no reasonable basis for the speaker’s belief in the statement’s
accuracy or if the speaker is aware of undisclosed facts tend-
ing seriously to undermine the statement’s accuracy. Provenz,
102 F.3d at 1487. Plaintiffs argue that several intra-quarter
statements in which Defendants expressed confidence in the
3Q01 forecast or denied the effects of a weakening economy
were material misrepresentations. In light of the district
court’s evidentiary rulings, however, Plaintiffs are only able
to challenge the accuracy of two statements by Oracle manage-
ment.4 We conclude as a matter of law that neither of these
statements constituted a material misrepresentation.
Plaintiffs must “demonstrate that a particular statement,
when read in light of all the information then available to the
market, or a failure to disclose particular information, con-
veyed a false or misleading impression.” In re Convergent
Techs. Sec. Litig., 948 F.2d 507, 512 (9th Cir. 1991). They
must also show that Defendants engaged in “knowing” or “in-
4
Given our conclusion that Oracle’s December 14, 2000, guidance had
a reasonable basis, we do not address Plaintiffs’ challenges to December
14, 2000, and December 15, 2000, statements reaffirming that guidance,
which, unlike the district court, we view as part and parcel of the guidance
itself.
18548 IN RE ORACLE CORPORATION SECURITIES LITIGATION
tentional” conduct or acted with “deliberate recklessness.”
South Ferry LP, No. 2 v. Killinger, 542 F.3d 776, 782 (9th
Cir. 2008). In the securities context, “an actor is reckless if he
had reasonable grounds to believe material facts existed that
were misstated or omitted, but nonetheless failed to obtain
and disclose such facts although he could have done so with-
out extraordinary effort.” Howard v. Everex Sys., Inc., 228
F.3d 1057, 1064 (9th Cir. 2000) (citation omitted).
First, Plaintiffs allege that a February 13, 2001, statement
made by Executive Vice President George Roberts was a
material misrepresentation. Roberts purportedly said, “our
guidance remains the same that we indicated at the beginning
of Q3.” As previously discussed, Oracle’s internal forecasts
began to fluctuate on February 5, 2001. Plaintiffs thus argue
that Roberts’ February 13 statement was a material misrepre-
sentation.
[9] While the February 5, 2001, internal forecast indicated
a potential EPS of 11 cents, the February 12 internal forecast
returned the potential EPS to the original forecast of 12 cents.
Roberts’ statement was therefore supported by the February
12 internal forecast. The fact that the February 13 prediction
proved incorrect in hindsight does not make it untrue when
made. In re VeriFone Sec. Litig., 11 F.3d at 871. Rather, the
question is whether Roberts lacked at least a reasonable basis
for his representation when it was made, or whether he made
the representation with knowledge of facts tending to seri-
ously undermine its accuracy. Paracor Fin., Inc., 96 F.3d at
1158-59.
Plaintiffs base a considerable amount of their argument on
a single flash report produced on January 17, 2001. This
report indicates that, but for a single $60 million license deal
with Covisint, the December FY01 growth rate would have
been only six percent. With the Covisint deal, however,
December growth was thirty-five percent—ten points better
than the publicly forecasted twenty-five percent growth and
IN RE ORACLE CORPORATION SECURITIES LITIGATION 18549
twenty-five points better than the ten percent growth in
December FY00. We see no reason why a successful transac-
tion should be excluded from Oracle’s forecasting model.
Moreover, we note that information contained in such flash
reports and internal emails was necessarily included in Ora-
cle’s internal forecasts throughout the quarter—including the
February 12, 2001, internal forecast preceding Roberts’ state-
ment.
[10] We have previously said that issuers need not reveal
all internal projections. In re Stac Elecs. Sec. Litig., 89 F.3d
1399, 1411 (9th Cir. 1996) (citation omitted). Companies gen-
erate numerous estimates internally, and they may reveal the
projection they think best while withholding others, as long as
the projection revealed had a reasonable basis. Id. The most
recent internal forecast to precede Roberts’ statement sup-
ported Oracle’s 3Q01 guidance, and his statement therefore
had a reasonable basis. In addition, viewing the totality of the
information available to Roberts at the time he made the state-
ment, a jury could not reasonably conclude that he had knowl-
edge of facts tending seriously to undermine its accuracy.
[11] Second, Plaintiffs allege that a February 21, 2001,
public statement made by Henley, as repeated in a February
26, 2001, internal email, was a material misrepresentation. As
reflected in the email, Henley purportedly said, “we do not
expect the slowing economy, barring a serious slide to a
recession, to significantly impact near term guidance.”5 This
statement is not unambiguous. The contingency, “barring a
serious slide to a recession” and the modifier “significantly”
attached to “impact near term guidance” leave a reader with
a less-than-certain impression that Henley stood by Oracle’s
5
Unlike the district court, after de novo review, we view this statement
as a forward-looking projection bearing upon Oracle’s 3Q01 guidance. It
is thus arguably subject to the PSLRA safe harbor. See 15 U.S.C. § 78u-
5(i)(1)(A). However, Defendants have not invoked that provision on
appeal.
18550 IN RE ORACLE CORPORATION SECURITIES LITIGATION
3Q01 guidance. Furthermore, there is no dispute over the fact
that the United States economy slid to a recession beginning
in March 2001, when the dot-com bubble burst. See The
Business-Cycle Peak of March 2001, National Bureau of Eco-
nomic Research (Nov. 26, 2001), available at http://
www.nber.org/cycles/november2001/recessions.pdf. Henley’s
contingency therefore arose. His confidence in Oracle’s guid-
ance barring such a slide into a recession was not a material
misrepresentation.6
C
At the heart of Plaintiffs’ Suite 11i argument is their funda-
mental disagreement with the district court’s theory of loss
causation. In the end, if Plaintiffs cannot establish loss
causation—the sixth element of a Section 10(b) violation—
then a jury could not reasonably return a verdict in their favor
on this claim. We see no error in the district court’s applica-
tion of precedent on this point.
[12] Loss causation is the causal connection between a
defendant’s material misrepresentation and a plaintiff’s loss.
Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 344-45 (2005).
“A plaintiff bears the burden of proving that a defendant’s
alleged unlawful act ‘caused the loss for which the plaintiff
seeks to recover damages.’ ” In re Gilead Scis. Sec. Litig., 536
F.3d 1049, 1055 (9th Cir. 2008) (quoting 15 U.S.C. § 78u-
4(b)(4)). In Dura, the Supreme Court held that a person who
misrepresents the financial condition of a corporation in order
to sell stock is only liable to a relying purchaser for the loss
the purchaser sustains when the facts “become generally
6
We note that this conclusion would also apply to Henley’s December
14, 2000, statement in which he hedged, “So, you know, if we were to
have a—I guess, a hard landing, a recession, depression, I mean certainly,
that could have some impact,” as well as his December 15, 2000, state-
ment in which he hedged, “If the economy got really really bad then obvi-
ously that would probably have some effect on all of us.”
IN RE ORACLE CORPORATION SECURITIES LITIGATION 18551
known” and “as a result” share value depreciates. 544 U.S. at
344-45. To adequately plead loss causation, the Court held, a
plaintiff must allege that the “share price fell significantly
after the truth became known.” Id. at 347.
The district court concluded that this case is analogous to
Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049,
1063 (9th Cir. 2008). We agree. In Metzler, the purported
fraud was the manipulation of student enrollment figures at a
college. Id. We applied Dura and indicated that loss causation
is not adequately pled unless a plaintiff alleges that the market
learned of and reacted to the practices the plaintiff contends
are fraudulent, as opposed to merely reports of the defen-
dant’s poor financial health generally. Id. The market need
not know at the time that the practices in question constitute
a “fraud,” nor label them “fraudulent”, but in order to estab-
lish loss causation, the market must learn of and react to those
particular practices themselves. Id. This reaction, in turn, must
be the cause of a plaintiff’s loss. Id. As the stock drop in
Metzler was not adequately alleged to be a result of the mar-
ket learning of and reacting to enrollment fraud, as opposed
to the college’s poor financial health generally, the plaintiffs
had not adequately pled loss causation. Id. at 1064.
[13] While Metzler addressed loss causation on a motion
to dismiss, our discussion of loss causation applies with even
greater force to our consideration of Defendants’ motion for
summary judgment in the present case. Plaintiffs take issue
with our opinion in Metzler. Specifically, they assert that they
should be able to prove loss causation by showing that the
market reacted to the purported “impact” of the alleged fraud
—the earnings miss—rather than to the fraudulent acts them-
selves. We reject that assertion. Loss causation requires more
than an earnings miss. See Dura, 544 U.S. at 343 (“To ‘touch
upon’ a loss is not to cause a loss, and it is the latter that the
law requires.”); Metzler, 540 F.3d at 1063 (“Loss causation
requires more.”). Loss causation is established if the market
learns of a defendant’s fraudulent act or practice, the market
18552 IN RE ORACLE CORPORATION SECURITIES LITIGATION
reacts to the fraudulent act or practice, and a plaintiff suffers
a loss as a result of the market’s reaction. See Metzler, 540
F.3d at 1063.
[14] Evaluating the totality of evidence in this case, we
hold that Plaintiffs are unable to create a triable dispute that
Oracle’s share price dropped as a result of the market learning
of and reacting to Defendants’ purported fraud, as opposed to
Oracle’s poor financial health generally. Plaintiffs allege a
fraud that consisted of statements misrepresenting the quality
and success of Oracle’s Suite 11i product. Even though Plain-
tiffs acknowledge that the market was already aware of initial
rollout issues with Suite 11i, Plaintiffs allege that Defendants’
misrepresentations downplayed defects in the product. The
alleged fraud in this case, therefore, concealed a purported
“truth” about Suite 11i. According to the Plaintiffs, the March
1, 2001 earnings miss revealed this “truth”: Suite 11i was
defective and customers had not bought it as a result of the
defects. Thus, Plaintiffs argue, the truth regarding Suite 11i
“[became] generally known” on March 1 and the stock price
dropped as a result.7 Dura, 544 U.S. at 345.
[15] Plaintiffs’ theory is unsupported by the record. The
overwhelming evidence produced during discovery indicates
the market understood Oracle’s earnings miss to be a result of
several deals lost in the final weeks of the quarter due to cus-
tomer concern over the declining economy. Numerous analyst
7
Plaintiffs argue that Oracle’s March 1 earnings announcement served
as the final piece of the puzzle regarding Suite 11i from investors’ point
of view, such that previous disclosures about 11i’s functionality do not
eliminate a triable issue as to loss causation. In certain circumstances, it
may be possible to prove loss causation even where the market reaction
and loss occur some time after an initial public disclosure of the fraud. See
Gilead, 536 F.3d at 1058. We merely conclude, as did the district court,
that nobody could reasonably find, based on the evidence admitted into the
record in this case, that Plaintiffs’ losses were caused substantially by mis-
statements separate and apart from other independent factors. See id. at
1055.
IN RE ORACLE CORPORATION SECURITIES LITIGATION 18553
reports support this conclusion. To be sure, the miss was
caused by customers not buying Oracle’s products. But the
market did not learn on March 1, 2001, that customers did not
buy Suite 11i as a result of defects. Instead, the market
learned that customers did not buy Oracle’s products in the
final weeks of the quarter as a result of uncertainty in an econ-
omy that would slide into a recession within the next month.
In other words, the market reacted to reports of Oracle’s
“poor financial health generally.” Metzler, 540 F.3d at 1063;
cf. In re Daou Sys., Inc., Sec. Litig., 411 F.3d 1006, 1026 (9th
Cir. 2005) (holding loss causation sufficiently pled where
analyst reports specifically noted, “[y]ou have got to question
whether they are manufacturing earnings”); see also In re
Williams Secs. Litig. — WCG Subclass, 558 F.3d 1130, 1139-
40 (10th Cir. 2009) (holding that loss causation was not estab-
lished when a plaintiff failed to show that losses following
public disclosures could be “reliably attributed to the revela-
tion of fraud rather than to other factors”).
While Plaintiffs did find two analyst reports purportedly
questioning this explanation, these reports would not allow a
jury reasonably to render a verdict in their favor in light of the
agglomeration of evidence supporting a contrary conclusion.
Moreover, “the market” must react to the fraudulent acts or
practices. Metzler, 540 F.3d at 1063. Plaintiffs’ two reports
are not indicative of what “the market” learned of and reacted
to. Over 130 pages of the record before this court consist of
analyst reports—many based on independent interviews with
Oracle’s customers—confirming that late-quarter sales were
lost as a result of customer concerns over a faltering econ-
omy. This overwhelming evidence renders unjustifiable an
inference that Plaintiffs’ two reports reflect the market’s consen-
sus.8 Plaintiffs’ reliance on a single March 13, 2001, email
8
We agree with the district court that Plaintiffs do not accurately
describe the evidence they cite in support of their argument on this point.
While Plaintiffs purport to have four analyst reports supporting “an 11i
link,” only two could fairly be construed to imply that product problems
caused the March 1, 2001,earnings miss.
18554 IN RE ORACLE CORPORATION SECURITIES LITIGATION
written by an employee in Oracle’s European division is
equally unavailing. The email is not evidence of what the
market learned of and reacted to on March 1, 2001.9 Finally,
Oracle made $338 million in revenue from Suite 11i in 4Q01
alone. If “the market” learned of and reacted to fraudulently
concealed Suite 11i defects at the end of 3Q01, surely Ora-
cle’s customers would have reacted as well.
[16] Plaintiffs cannot establish loss causation. Their Sec-
tion 10(b) claim alleging misrepresentations of Suite 11i’s
quality and success fails as a result.
D
[17] Plaintiffs also argue that their losses were caused by
fraudulently overstated 2Q01 earnings. This claim fails for the
same reasons as Plaintiffs’ Suite 11i claim. There is simply no
evidence to support the conclusion that Oracle’s stock price
dropped as a result of the market’s reaction to learning of
fraudulently overstated 2Q01 earnings on March 1, 2001, as
opposed to Oracle’s poor financial health generally.10 Metzler,
9
We also note that the email, written by Sergio Giacoletto, is insuffi-
cient to allow a jury reasonably to conclude that North American custom-
ers did not buy Suite 11i as a result of defects. Giacoletto opines that
salespeople in Oracle’s European division pushed “technology” sales over
“apps” sales in 3Q01 as a result of Suite 11i rollout “problems” in 1Q01
and 2Q01. This email has no bearing on whether these “problems” were
present in Oracle’s North American division or whether they persisted
throughout 3Q01. Despite serving over one hundred subpoenas on Ora-
cle’s customers, Plaintiffs have not developed evidence to support a con-
clusion that North American customers declined to buy Suite 11i in 3Q01
as a result of defects. Giacoletto’s email is inadequate to support such a
conclusion.
10
Plaintiffs argue that a fraudulent transaction with Hewlett Packard was
part of the 2Q01 accounting fraud, and that the district court erred by
denying Plaintiffs an opportunity to amend their complaint to include this
transaction. We do not need to address this argument, however, because
even including this transaction with the purported 2Q01 “debit memo
accounting fraud” that the district court considered, Plaintiffs have failed
to establish that the market learned of and reacted to a 2Q01 fraud when
Oracle announced its 3Q01 earnings miss.
IN RE ORACLE CORPORATION SECURITIES LITIGATION 18555
540 F.3d at 1063. Oracle’s 2Q01 earnings have never been
revised downward. To the extent Plaintiffs argue that the pur-
portedly fraudulent 2Q01 earnings statement caused the 3Q01
earnings miss, we reiterate that an earnings miss alone is
insufficient to establish loss causation. See id.; Dura, 544 U.S.
at 343. As control-person liability under Section 20(a)
requires a prerequisite Section 10(b) violation, Plaintiffs’ Sec-
tion 20(a) claim fails as well. See 15 U.S.C. § 78t(a).
V
Plaintiffs separately allege that Ellison and Henley are lia-
ble for contemporaneous trading under Section 20A of the
Exchange Act. See 15 U.S.C. § 78t-1(a). Under that section,
“Any person who violates any provision of this chapter or the
rules or regulations thereunder by purchasing or selling a
security while in possession of material, nonpublic informa-
tion shall be liable . . . to any person who . . . has [contempo-
raneously] purchased . . . securities of the same class.” Id.
“Claims under Section 20A are derivative and therefore
require an independent violation of the Exchange Act.” John-
son v. Aljian, 490 F.3d 778, 781 (9th Cir. 2007). Plaintiffs
“must demonstrate that the alleged fraud occurred ‘in connec-
tion with the purchase or sale of a security.’ ” Id. at 782 (quot-
ing Ambassador Hotel Co., Ltd. v. Wei-Chuan Inv., 189 F.3d
1017, 1025 (9th Cir. 1999)). As with their Section 10(b)
claim, Plaintiffs “must prove both actual cause (‘transaction
causation’) and proximate cause (‘loss causation’).” Id.
[18] Plaintiffs’ inability to establish a triable issue on loss
causation for their Suite 11i and 2Q01 claims ends their Sec-
tion 20A claim. See Johnson, 490 F.3d at 782. Moreover, as
all of Ellison’s trades were completed prior to the first internal
forecast indicating that Oracle might miss its 3Q01 guidance,
the district court’s adverse inference merely imputes to Elli-
son the knowledge that Oracle was on track to fulfill its fore-
cast. Plaintiffs’ contemporaneous-trading claims fail as a
result.
18556 IN RE ORACLE CORPORATION SECURITIES LITIGATION
V
The district court properly granted Defendants’ motion for
summary judgment.
AFFIRMED.