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Durham v. Whitney Information Network Inc. et al

MEMORANDUM in support re Motion to dismiss Consolidated Amended Class Action Complaint 96

29 Cited authorities

  1. Tellabs v. Makor Issues Rights

    551 U.S. 308 (2007)   Cited 9,561 times   105 Legal Analyses
    Holding that a strong inference is one that is "cogent and at least as compelling as any opposing inference"

  2. Merrill v. Dabit

    547 U.S. 71 (2006)   Cited 683 times   44 Legal Analyses
    Holding that state law class action securities fraud claims brought by “holders” of securities are, just like those of “purchasers” and “sellers,” preempted by the Securities Litigation Uniform Standards Act

  3. In re Glenfed, Inc. Securities Litigation

    42 F.3d 1541 (9th Cir. 1994)   Cited 1,728 times   3 Legal Analyses
    Holding that plaintiffs may not "merely proclaim in the most conclusory of fashion that the defendants made false statements."

  4. Bryant v. Avado Brands, Inc.

    187 F.3d 1271 (11th Cir. 1999)   Cited 1,322 times   2 Legal Analyses
    Holding that “a court, when considering a motion to dismiss in a securities fraud case, may take judicial notice . . . of relevant public documents required to be filed with the SEC”

  5. Garfield v. NDC Health Corp.

    466 F.3d 1255 (11th Cir. 2006)   Cited 706 times   1 Legal Analyses
    Holding that a dismissal can be final even before leave to amend expires

  6. Thor Power Tool Co. v. Commissioner

    439 U.S. 522 (1979)   Cited 355 times   5 Legal Analyses
    Holding that where a taxpayer using the "cost or market, whichever is lower" method did not comply with section 1.471-4, its inventory failed to clearly reflect income

  7. Mizzaro v. Home Depot

    544 F.3d 1230 (11th Cir. 2008)   Cited 396 times   3 Legal Analyses
    Holding that the plaintiffs failed to allege scienter because, in part, the "amended complaint affords no basis for inferring that the individual defendants would have heard about these whistleblower complaints during the class period"

  8. Higginbotham v. Baxter Intern

    495 F.3d 753 (7th Cir. 2007)   Cited 249 times   12 Legal Analyses
    Holding that allegations of confidential witnesses must be discounted and "[u]sually that discount will be steep"

  9. In re Ikon Office Solutions, Inc.

    277 F.3d 658 (3d Cir. 2002)   Cited 192 times
    Finding that a company's auditor did not act with scienter in issuing a favorable audit opinion, even though the auditor had identified potential risks relating to the company's practices

  10. In re Marsh McLennan Companies, Inc. Sec. Lit.

    501 F. Supp. 2d 452 (S.D.N.Y. 2006)   Cited 169 times   1 Legal Analyses
    Holding that, after the announcement of New York Attorney General investigation of misconduct at subsidiary, an executive's personal comments supporting company's business practices, combined with the rapid discovery of misconduct at subsidiary thereafter, constituted strong circumstantial evidence of the executive's scienter

  11. Rule 12 - Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

    Fed. R. Civ. P. 12   Cited 361,853 times   961 Legal Analyses
    Granting the court discretion to exclude matters outside the pleadings presented to the court in defense of a motion to dismiss

  12. Rule 8 - General Rules of Pleading

    Fed. R. Civ. P. 8   Cited 164,069 times   197 Legal Analyses
    Holding that "[e]very defense to a claim for relief in any pleading must be asserted in the responsive pleading. . . ."

  13. Rule 9 - Pleading Special Matters

    Fed. R. Civ. P. 9   Cited 40,154 times   335 Legal Analyses
    Requiring that fraud be pleaded with particularity

  14. Section 78j - Manipulative and deceptive devices

    15 U.S.C. § 78j   Cited 12,801 times   167 Legal Analyses
    Granting SEC power to establish rules to further statute forbidding manipulative or deceptive devices in connection with purchase or sale of securities

  15. Section 78u-4 - Private securities litigation

    15 U.S.C. § 78u-4   Cited 7,741 times   53 Legal Analyses
    Granting courts authority to permit discovery if necessary "to preserve evidence or to prevent undue prejudice to" a party

  16. Section 78t - Liability of controlling persons and persons who aid and abet violations

    15 U.S.C. § 78t   Cited 4,077 times   20 Legal Analyses
    Holding liable any person "who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder"

  17. Section 240.10b-5 - Employment of manipulative and deceptive devices

    17 C.F.R. § 240.10b-5   Cited 9,413 times   136 Legal Analyses
    Holding liable any person who "make any untrue statement of material fact"

  18. Section 229.401 - (Item 401) Directors, executive officers, promoters and control persons

    17 C.F.R. § 229.401   Cited 44 times   2 Legal Analyses
    Instructing registrant to disclose federal bankruptcy petitions of director or executive officer in previous five years where "material to an evaluation of the ability or integrity" of such director or officer