Clay v. Riverwood International

[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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