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IN RE KULICKE & SOFFA INDUS.

September 9, 1988

IN RE KULICKE AND SOFFA INDUSTRIES, INC. SECURITIES LITIGATION


The opinion of the court was delivered by: DITTER

 J. WILLIAM DITTER, JR., UNITED STATES DISTRICT JUDGE

 Plaintiffs purchased shares of the common stock of Kulicke & Soffa, Inc. ("K&S") in 1984 and 1985. *fn1" They each brought securities actions against K&S, C. Scott Kulicke, chairman and chief executive officer of K&S, and several members of the K&S board of directors, alleging violations of section 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j(b) and rule 10b-5. Their actions were consolidated and plaintiffs moved for class certification. Defendants responded to this motion and concurrently moved for summary judgment. After submitting numerous briefs, documents, affidavits, and deposition testimony, the parties agree the motion for summary judgment is ripe for disposition. *fn2"

 K&S develops and manufactures equipment, tools, and accessories used in the assembly of semiconductor devices. Because of its dependence on the semiconductor market, as that market goes, generally so goes K&S. For its fiscal year ending on September 30, 1984, K&S enjoyed record sales of $ 119,000,000 and record net income of $ 14,123,000. For fiscal year 1985, K&S along with the rest of the semiconductor industry experienced a downturn in profitable business, and although reporting that sales were approximately $ 125,000,000, it had a net loss of $ 500,000. It is the downturn in 1985 that is the genesis of this action. Plaintiffs allege that defendants made statements, projections, and forecasts in late 1984 and 1985 regarding sales and earnings for fiscal 1985 that were false and misleading as part of a scheme to raise or maintain the price of K&S stock at a time Scott Kulicke was selling it as executor and residual beneficiary of his mother's estate. The primary statement challenged by plaintiffs was an October 30, 1984, forecast by Scott Kulicke that sales for K&S would exceed $ 180 million in 1985 with an even greater increase in earnings.

 Despite plaintiffs' protestations to the contrary, *fn3" their claims principally involve defendants' liability for making forecasts and projections. Before looking at each alleged misrepresentation, it is useful to set forth the applicable standards of liability.

 To state a claim under section 10(b) and rule 10b-5, plaintiffs must prove that defendant made (1) a false or misleading representation of (2) a material (3) fact, (4) defendants' knowledge of its falsity or recklessness as to its truth and their intention that plaintiffs rely on it, (5) plaintiffs' reasonable reliance on the representation, and (6) their resultant loss. Basic Inc. v. Levinson, 485 U.S. 224, 108 S. Ct. 978, 99 L. Ed. 2d 194 (1988); Zlotnick v. TIE Communications, 836 F.2d 818 (3d Cir. 1988). The Third Circuit has held that a forecast or opinion is actionable as an untrue statement if it is made without a genuine belief or reasonable basis *fn4" and if made "'with reckless disregard for its truth or falsity' or with a lack of 'genuine belief that the information disclosed was accurate and complete in all material respects.'" Eisenberg v. Gagnon, 766 F.2d 770, 776 (3d Cir.) (quoting McLean v. Alexander, 599 F.2d 1190, 1198 (3d Cir. 1979)), cert. denied sub nom., Wasserstrom v. Eisenberg, 474 U.S. 946, 88 L. Ed. 2d 290, 106 S. Ct. 342 (1985). The court further stated

 
when a representation is made by professionals or 'those with greater access to information or having a special relationship to investors making use of the information', there is an obligation to disclose data indicating the opinion or forecast may be doubtful . . . When the opinion or forecast is based on underlying materials which on their face or under the circumstances suggest that they cannot be relied on without further inquiry, then the failure to investigate further may 'support [] an inference that when [the defendant] expressed the opinion it had no genuine belief that it had the information on which it could predicate that opinion.'

 766 F.2d at 776 (citations omitted).

 In addition to a duty to disclose information adversely affecting a forecast, a person who makes a material representation owes a duty to correct the statement in a timely manner if it "becomes materially misleading in light of subsequent events." *fn5" Greenfield v. Heublein, Inc., 742 F.2d 751, 758 (3d Cir. 1984), cert. denied, 469 U.S. 1215, 84 L. Ed. 2d 336, 105 S. Ct. 1189 (1985).

 One final point generally applicable to plaintiffs' claims concerns defendants' duty to disclose public information. Plaintiffs assert that during 1984 the book-to-bill ratio for the semiconductor industry as reported by the Semiconductor Industry Association ("SIA"), *fn6" dramatically declined signalling a contraction in the semiconductor industry. In the amended consolidated complaint, plaintiffs allege the following:

 
22. In spite of and in direct contradiction to the information on the semiconductor industry as a whole, the Company continued to project optimism about its anticipated performance without any cautionary disclosure regarding the impact the downturn in the semiconductor industry was expected to have on K&S's earnings in 1985
 
. . . .
 
35(a) . . . K&S failed to disclose that beginning in January of 1984, the semiconductor industry began a prolonged slump which became severe by October and November, 1984, and which has continued into 1985 . . . .

 It is clear that defendants owed no duty to disclose information already available to the public which is part of the total mix of information available to the reasonable investor. See e.g., Acme Propane, Inc. v. Tenexco, Inc., 844 F.2d 1317, 1323 (7th Cir. 1988); Frigitemp Corp. v. Financial Dynamics Fund, 524 F.2d 275 (2d Cir. 1975); In re Apple Computer Securities Litigation, 672 F. Supp. 1552 (N.D. Cal. 1987); Beissinger v. Rockwood Computer Corp., 529 F. Supp. 770, 781 (E.D. Pa. 1981). This principle is particularly applicable where, as here, plaintiffs employ the fraud-on-the-market theory to prove reliance since that theory is premised on the principle that all available public information is incorporated and reflected in the market price of stock traded in a well-developed, impersonal market. See Levinson v. Basic, 108 S. Ct. at 989-90; Peil v. Speiser, 806 F.2d 1154, 1161 (3d Cir. 1986). Thus, defendants had no duty to disclose a downturn in the semiconductor industry except as it directly affected their forecasts and projections for K&S.

 I shall now review the specific misrepresentations and omissions alleged by plaintiff to determine whether there exist any genuine issues of material fact. As recently reiterated by the Third Circuit, "an issue is genuine only if a reasonable jury, considering the evidence presented could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988) (citing ...


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