51Twitter, 2022 WL 853252, at *6.52Id. (citing Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 45 (2011)).53Id.54 Id. at *7-8.55Id. at *8.56Id. (quoting 15 U.S.C. § 78u-5(c)(1)).57 The panel consisted of Circuit Judges Debra Ann Livingston, Dennis Jacobs, and Steven J. Menashi.58Bristol-Myers, 28 F.4th at 352-53 (quoting Matrixx, 563 U.S. at 44).59Id. (quoting Kleinman v. Elan Corp., plc, 706 F.3d 145, 153 (2d Cir. 2013)).60Id. at 354-55 (citing 15 U.S.C§ 78u-5(c)).

[1] In re Philip Morris Int’l Inc. Sec. Litig., No. 18-CV-08049 (RA), 2020 WL 550769, at *15 (S.D.N.Y. Feb. 4, 2020) (quoting In re Vale S.A. Sec. Litig., No. 15-cv-9539-GHW, 2017 WL 1102666, at *24 (S.D.N.Y. Mar. 23, 2017)). [2] 15 U.S.C. § 78u-5(i)(1), § 77z-2(i)(1). The PSLRA’s safe harbor can be found in Section 21E of the Securities Exchange Act of 1934 (“Exchange Act”), codified at 15 U.S.C. § 78u-5, and in Section 27A of the Securities Act of 1933 (“Securities Act”), codified at 15 U.S.C. § 77z-2. [3] In re Aetna, Inc. Sec. Litig., 617 F.3d 272, 278-79 (3d Cir. 2010); see 15 U.S.C. § 78u-5(c)(1), § 77z-2(c)(1); see also Philip Morris Int’l Inc. Sec. Litig., 2020 WL 550769, at *16.

First, it protects a “forward-looking statement” from liability if the statement is “accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward-looking statement.” 15 U.S.C. § 78u-5(c)(1)(A)(i) Second, it protects a forward-looking statement that was not made with actual knowledge that the statement was false or misleading. Id. § 78u-5(c)(1)(B).The court admitted that NCL’s challenged statements related to historical and contemporaneous acts.

See, e.g., 17 CFR § 240.14a-9. Rule 14a-9 contains one of the most popular bases for plaintiffs’ allegations in a securities fraud case: Nosolicitationsubject to this regulation shall be made by means of anyproxy statement, form ofproxy, notice of meeting or other communication, written or oral, containing any statement which, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to anymaterialfact, or which omits to state anymaterialfact necessary in order to make the statements therein not false or misleading or necessary to correct any statement in any earlier communication with respect to thesolicitationof aproxyfor the same meeting or subject matter which has become false or misleading.https://www.sec.gov/news/public-statement/spacs-ipos-liability-risk-under-securities-laws.Id. 15 U.S. C § 78u–5(c)(1).https://www.bloombergquint.com/gadfly/why-chamath-palihapitiya-loves-spacs-so-much.https://www.sec.gov/news/public-statement/spacs-ipos-liability-risk-under-securities-laws.Id.Id.See, 15 U.S. C § 78u–5(b)(1)(B). Analysis of whether the commission’s assertion is beyond the scope of this short article.

Securities Litigation, 865 F.3d 1130 (9th Cir. 2017), cut back on the protections afforded by the safe-harbor provision of the Private Securities Litigation Reform Act of 1995 (the PSLRA) for public companies whose forward-looking statements are alleged to be false or misleading. The PSLRA’s safe harbor, 15 U.S.C. §78u-5(c), is a codification of the common-law “bespeaks caution” doctrine. Subject to certain statutory exceptions—including for statements made in connection with an initial public offering or a tender offer—the safe harbor precludes civil liability based on forward-looking statements that turn out to be “wrong” in two instances.

In In re Cutera Securities Litigation, 2010 WL 2595281 (9th Cir. June 30, 2010), the United States Court of Appeals for the Ninth Circuit concluded that the Private Securities Litigation Reform Act’s (“Reform Act”) safe harbor provision, 15 U.S.C. § 78u-5, protects forward-looking statements accompanied by meaningful cautionary language” andforward-looking statements in the absence of meaningful cautionary language not made with “actualknowledge” that the statement was false or materially misleading when made. This decision greatly clarifies the law in the Ninth Circuit.

nifest” in twelve months (“short-term”) or beyond twelve months (“long-term”). Id. at 103.] Id. at 92-93.] Id. at 168. Note that unlike the Proposed Rules, the Climate Rules will not require companies to identify specific board members responsible for this oversight or the expertise of board members in climate-related risks. Id. at 169.] Id. at 179-180.] Id. at 210, 213.] For the Climate Rules’ discussion of whether a company qualifies as a “large accelerated filer” or “accelerated filer,” see id. at 29, ns. 65-66.] That is, that are not Emerging Growth Companies (“EGCs”) or Smaller Reporting Companies (“SRCs”). Id. at 245. For the Climate Rules’ discussion of whether a company qualifies as an SRC or EGC, see id. at 17, ns. 21-22.] Id. at 29, n. 67.] Id. at 246-247.] Id. at 35, 588-592. See Fact Sheet, The Enhancement and Standardization of Climate-Related Disclosures: Final Rules at 3 (“Phase-In Periods and Accommodations”).] Climate Rules, supra n.1 at 589.] Id. at 35, 394-402.] See 15 U.S. Code § 78u–5 (providing safe harbor for forward-looking statements, with certain exceptions).] See Ferrari, Giovanna et al, New California Laws Mandate Climate Disclosures For Both Private and Public Companies (Seyfarth Shaw LLP, Oct. 19, 2023).] Id.

enough here to conclude that FE[] had personal and relevant, even if not comprehensive, knowledge about Riverside’s financial health.”).[18]Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 996–98 (9th Cir. 2009).[19]KBC Asset Mgmt. NV v. DXC Tech. Co., 19 F.4th 601 (4th Cir. 2021) (internal citations omitted).[20]Metzler Asset Mgmt. GmbH v. Kingsley, 928 F.3d 151, 162 (1st Cir. 2019).[21]Police Ret. Sys. of St. Louis v. Intuitive Surgical, Inc., 759 F.3d 1051, 1063 (9th Cir. 2014); see alsoZucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 998 (9th Cir. 2009). (holding that a witness must have “reliable personal knowledge of the defendants’ mental state”).[22]Six Flags, __ F.4th ___, 2023 WL 228268, at *9.[23]Id.[24]Id.[25]City of Royal Oka Retirement Sys. v. Juniper Networks, Inc., 880 F. Supp.2d 1045, 1064 (N.D. Cal. 2012).[26]Carvelli v. Ocwen Fin. Corp., 934 F.3d 1307, 1329 n.13 (11th Cir. 2019).[27]In re Cerner Corp. Sec. Litig., 425 F.3d 1079, 1085 (8th Cir. 2005).[28]See 15 U.S.C. §78u-5(i)(1) (defining “forward-looking” statement as “(A) a statement containing a projection of revenues, income … or other financial items; (B) a statement of the plans and objectives of management for future operations …; (C) a statement of future economic performance …; (D) any statement of the assumptions underlying or relating to [any of the above]”).[29]Six Flags, __ F.4th ___, 2023 WL 228268, at *6.[30]Id. at *6.[31]Id. at *14.[32]Wochos v. Tesla, Inc., 985 F.3d 1180, 1192 (9th Cir. 2021).[33]Id. (emphases in original).[34]City of Taylor Police & Fire Ret. Sys. v. Zebra Techs. Corp., 8 F.4th 592, 595 (7th Cir. 2021).[35]Id.[36]Six Flags, __ F.4th ___, 2023 WL 228268, at *11.[37]Six Flags, 524 F. Supp. 3d at 511.[38]Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1036 (9th Cir. 2002).[39]Nguyen v. Endologix, Inc., 962 F.3d 405, 416–17 (9th Cir. 2020).[40]Anderson v. Spirit Aerosystems Holdings, Inc., 827 F.3d 1229, 1240–41 (10th Cir. 2016).[41]Six Flags, __ F.4th ___,2023 WL 228268, at *10.[4

The plaintiff fails to prove that the forward-looking statements were made without actual knowledge that the statement was false or misleading.“Forward-looking statements” for purposes of the safe harbor include, among other things, statements containing a projection of revenues (including income loss), earnings (including earnings loss), plans and objectives of management for future operations, as well as any assumptions underlying or relating to any of those statements. For the complete definition of the term “forward-looking statement” for purposes of the PSLRA safe harbor, see 15 U.S.C. § 78u-5(i)(1) or 15 U.S.C. § 77z-2(i)(1).While the PSLRA itself didn’t necessarily curb the number of federal securities class action suits filed each year, it did provide companies with a viable defense in the face of meritless securities claims challenging forward-looking statements.Nevertheless, plaintiffs commonly challenge a company’s forward-looking statements by: (i) contending that the forward-looking statements are either not forward-looking or false; and (ii) arguing that the company failed to pair the forward-looking statements with cautionary language that was meaningful.

Karth, 2021 WL 2882461, at *12. 15 U.S.C. § 78u-5(c)(1)(A). The safe harbor “is designed to protect companies and their officials from suit when optimistic projections of growth in revenues and earnings are not borne out by events.”