[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 97-8592 05/27/99
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 1:95-CV-3147-CAM
FORREST KELLY CLAY,
individually and on behalf of
all those similarly situated,
Plaintiff-Appellant,
versus
RIVERWOOD INTERNATIONAL
CORPORATION, THOMAS H. JOHNSON,
et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 27, 1999)
ON PETITION FOR REHEARING
Before DUBINA and CARNES, Circuit Judges*.
This decision is rendered by a quorum, due to the retirement of then-Chief Judge
*
Hatchett on May 14, 1999. U.S.C. § 46(d).
Upon consideration of the petition for rehearing, the prior opinion issued on
October 14, 1998, and published at 157 F.3d 1259, is modified, as follows:
We vacate the introductory paragraph and also Part III A. of our prior opinion
in this case, found at 157 F.3d at 1259, 1261, 1263- 68, and adopt in their place the
concurring opinion of Judge Carnes, which is found in 157 F.3d at 1269-71.
We also vacate Part IV of our prior opinion and substitute in its place this
paragraph: As to the insider trading issue involving Clay’s stock appreciation rights,
we do not decide whether those rights are securities or otherwise trigger the “disclose
or abstain” rule of insider trading, but instead affirm the district court’s judgment
on the ground that Clay lacks standing to bring a claim under § 20A of the Securities
and Exchange Act. As to the securities fraud issue involving Riverwood’s July 1995
press release, we affirm the judgment of the district court because that release did not
require any subsequent disclosure under § 10(b) or Rule 10b-5.
AFFIRMED.
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