Harris v. Ivax Corporation

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 20 2000
No. 98-4818
THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 97-559-CV-FAM

ALAN M. HARRIS, YITZCHOK
WOLPIN, FAUSTO POMBAR,

Plaintiffs-Appellants,

versus

IVAX CORPORATION, PHILLIP FROST,
MICHAEL W. FIPPS,

Defendants-Appellees.
________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 20, 2000)

ON PETITION FOR REHEARING
AND SUGGESTION OF REHEARING EN BANC

Before COX and HULL, Circuit Judges, and COHILL*, Senior District Judge.

PER CURIAM:

*
Honorable Maurice B. Cohill, Jr., Senior U.S. District Judge for the Western District of
Pennsylvania, sitting by designation.
 The Securities and Exchange Commission, permitted to file a brief in partial

support of a petition for rehearing and suggestion for rehearing en banc filed by the

plaintiffs, has argued that our opinion in this case erroneously implies that a

“cautionary statement[]” could still be “meaningful,” and thus shield a company from

liability for a false forward-looking statement, even if the cautionary statement

knowingly omits a fact that is such a market-driver that it dwarfs the listed “factors

that could cause actual results to differ.” 15 U.S.C. § 78u-5(c)(1)(A)(i). We write

only to confirm that this argument was not made to the panel, and that we have

therefore not considered it.

The petition for rehearing is otherwise DENIED, and no member of this panel

nor other judge in regular active service on the court having requested that the court

be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Suggestion of Rehearing En Banc is DENIED.

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