The opinion of the court was delivered by: David Stewart Cercone United States District Judge
AND NOW, this 12th day of February, 2010, upon due consideration of  defendant's motion in limine "to allow evidence of what occurred at ISA not only before but after February 25, 2006," and the parties' submissions in conjunction therewith, IT IS ORDERED that the motion be, and the same hereby is, granted as follows: defendant may introduce as evidence of his state of mind in February 2006 (1) that Hatachi reduced its orders of chromium by forty percent on a date after February 25, 2006, and (2) defendant's testimony as to post-February 25, 2006, events in ISA's business in providing his explanation as to why his statements on or before February 25, 2006, are not inconsistent with the October 2006 National City Offering Memorandum. The motion is denied in all other aspects addressed in this memorandum order.
Defendant filed a motion in limine seeking a ruling permitting the introduction of all post-February 25, 2006, evidence that he intends to introduce about the events which occurred in the chromium market or otherwise affected the operation of ISA's business after February 25, 2006, through the date ISA was sold by defendant. The court asked counsel in to chambers to make specific proffers and present argument on those specific proffers. That resulted in three specific areas of evidence being identified: a substantial customer of ISA in fact reduced its orders by a predicted amount after defendant indicated the customer would do so; ISA experienced a decline in the profits it experienced in the chromium market even though its sales remained consistent or increased; and ISA had a judgment rendered against it in an arbitration before a foreign tribunal. Each of these events has a connection to a prediction, forecast or opinion offered by defendant in or prior to the February 25, 2006 email: one of ISA's best customers, Hatachi, would be reducing its orders in the chromium market by 40 percent; ISA needed to reserve some capital due to the pendency of a Russian arbitration proceeding; and ISA's future prospects in the chromium market looked negative at best and very ugly at worst.
Plaintiff challenges defendant's use of post-statement "event" evidence on the grounds of relevance, contending that each future event, in itself, has no probative value as to the material issues in the case. Specifically, plaintiff contends that evidence of subsequent events cannot be introduced to show that a prior statement, prediction or opinion by defendant was true when made. Assertedly, the evidence sought to be advanced by defendant will improperly suggest to the jury that because a post-statement event shows that a certain prediction or forecast turned out to be true, defendant must have believed he was making a true statement when the prediction, opinion or forecast was made or he must have had a basis for making the prediction, opinion or forecast. And such evidence purportedly cannot be competent proof of the defendant's sincerity of belief in the statements when made.
Defendant initially maintained that evidence that a prediction, opinion or forecast turned out to be true vitiates any basis for finding the statements made to be false and thus eliminates any basis for a securities fraud claim. See e.g. In re Healthcare Compare Corp. Securities Litigation, 1993 WL 616683 (N.D. Ill. Nov. 19, 1993) (Failure to allege inaccuracy of analysts' predictions of the defendant's earnings rendered 10(b)(5) claim subject to dismissal -- "As we interpret the law, the inaccuracy of the prediction is insufficient to give rise to a cause of action; it is, however, necessary to the cause of action.") (citing Eisenberg v. Gagnon, 766 F.2d 770, 776 (3rd Cir.1985) (inaccuracy of forecast insufficient to give rise to cause of action; forecast must also have been recklessly made)); In re Syntex Corp. Securities Litigation, 855 F. Supp. 1086, 1096 (N.D. Cal. 1994) ("Although Plaintiffs support their allegations by citing specific facts Defendants had in their possession when Syntex issued its statements . . . , the predictions were not sufficiently inaccurate to be actionable. A forecast that is reckless when made does not give rise to liability if it ultimately proves to be accurate. After all, securities laws are designed to prevent the market from being misled.") (citation to In re Healthcare Compare omitted)). In his revised position submitted in the brief accompanying the motion, defendant argues that defendant's predictions, opinions and forecasts about what was happening with ISA's chromium business in or around and after February 25, 2006, must be viewed on a continuum, and the jury needs to understand the subsequent events that happened at ISA in order to evaluate properly whether defendant's statements were accurate, false or misleading when made.
Each party seeks a broad-brush ruling that will permit or eliminate all post-statement event evidence. Each cite cases that essentially are fungible for the proposition that a fraud-onthe-market claim cannot be sustained based on predictions or forecasts that prove to be true and/or cannot be viewed as having produced an injury in the market. The cases advanced typically hold or observe that when the only allegation advanced to support a claim of securities fraud based on a forward-looking projection of a company's success or prospects in the market is that the prediction turned out to be false, then the complaint has failed to state a claim for relief. In general, these authorities do not address the admissibility of post-statement event evidence where the claim is that fraud in the form of predictions, forecasts and opinions was used to gain control over the seller's stock for the purpose of future gain. Thus, the blanket approach advanced by each party must be rejected as unsupported and non-persuasive.
After considering the proffers and arguments, it is clear that each area of evidence must be considered separately. The proposition that a subsequent event can never be probative of an individual's state of mind when a prior projection, forecast or opinion about future events was made is an axiom without foundation. Instead, each piece of evidence must be analyzed for probative value and any such value must then be weighed against any potential prejudice that is inherent in the use of such evidence or other grounds for exclusion under Federal Rule of Evidence 403.
The post-statement event of Hatachi reducing its orders with ISA demonstrates the appropriateness of such an approach. Defendant is alleged to have made a misleading statement when he predicted in February 2006 that Hatachi would be canceling forty percent of its orders in the chromium market. Plaintiff maintains that the statement was misleading because it suggested ISA was going to experience a decline in chromium sales while defendant was aware of facts that indicated Hatachi would actually be tripling its orders with ISA. Defendant seeks to introduce evidence that Hatachi subsequently did in fact reduce its total purchase of chromium by 40 percent. Plaintiff maintains that such evidence has no probative value as to defendant's sincerity in the accuracy of the statement when made.
While the classic case of securities fraud often involves a misrepresentation of historical fact, projections, forecasts and opinions can give rise to a securities law violation were they are made with the requisite mental state. See e.g. In re Apple Computer Securities Litigation, 886 F.2d 1109, 1113 (9th Cir. 1989) ("projections and general expressions of optimism may be actionable under the federal securities laws.") (citing Marx v. Computer Sciences Corp., 507 F.2d 485, 489-92 (9th Cir.1974); and G & M Inc. v. Newbern, 488 F.2d 742, 745-46 (9th Cir.1973)); accord Eisenberg v. Gagnon, 766 F.2d 770, 776 (3d Cir. 1985) ("Since the district court's error in failing to instruct the jurors that projections and opinions come within the ambit of actionable misrepresentations may have affected the jurors' verdict as to all of the defendants, we must overturn the jury verdict in favor of defendants on the securities claim.") (citing with approval Marx, 507 F.2d at 490)). Any such projection or forward-looking statement of belief "contains at least three implicit factual assertions: (1) that the statement is genuinely believed, (2) that there is a reasonable basis for that belief, and (3) that the speaker is not aware of any undisclosed facts tending to seriously undermine the accuracy of the statement." In re Apple Computer, 886 F.2d at 1113 (citing Marx, 507 F.2d at 490). Such a statement "may be actionable to the extent that one of these implied factual assertions is inaccurate." Id.; accord Eisenberg, 766 F.2d at 776 ("In establishing scienter with respect to projections and opinions, it is insufficient to show mere negligent conduct . . . or that a forecast turned out to be inaccurate. However, as this court has previously stated, an opinion must not be made "with reckless disregard for its truth or falsity," or with a lack of a "genuine belief that the information disclosed was accurate and complete in all material respects." McLean v. Alexander, 599 F.2d 1190, 1198 (3d Cir.1979) (quoting Ultramares v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931) (Cardozo, J.)). Therefore, an opinion that has been issued without a genuine belief or reasonable basis is an "untrue" statement which, if made knowingly or recklessly, is culpable conduct actionable under § 10(b) and Rule 10b-5.") (collecting additional authority in support)). Thus, to have any probative value, a subsequent event must have some tendency to prove or disprove one or more of these three underlying factual premises that needed to exist at the time the prediction, forecast or opinion about future events was rendered.
The event of Hatachi's post-statement reduction of its total orders of chromium meets this requirement. The event itself creates an inference that defendant's prediction that Hatachi would do so in the future was based on specific information he had gained in managing ISA's ongoing business with Hatachi. The inference that his prediction was based on concrete and specific information gained from personal dealings with Hatachi personnel provides probative evidence to support a finding that defendant genuinely believed the statement and had a reasonable basis for that belief.
This probative value is not substantially outweighed by any potential prejudice from the admission of evidence confirming the event. Plaintiff does not contend that the statement was false when made. Instead, she seeks to establish that defendant was aware of other non-disclosed facts that indicated the reduction actually would result in an increase in ISA's sales of chromium to Hatachi and the prediction of a future reduction was done to mislead about its likely effect on ISA's chromium business. The introduction of the event evidence does not create any undue prejudice in plaintiff's ability to submit evidence and prove that such was the case. The links between the event evidence and the underlying factors to be assessed at the time defendant made the prediction does not invite the jury to make an unsupported or speculative inference about whether defendant genuinely believed the statement and had a reasonable basis for that belief. There is little room for the conclusion that forces outside defendant's ken at the time produced the subsequent event by happenstance. It also has little potential to bolster the credibility of defendant based on a speculative connection between the events and the previous prediction, opinion or forecast. Accordingly, any prejudicial effect of the event evidence in this areas is minimal and goes to weight of the evidence. It will be admitted.
Defendant's proffer of the judgment being rendered against ISA in the Russian tribunal provides a clear example of a subsequent event whose probative value is substantially outweighed when analyzed pursuant to the applicable framework. Defendant made statements to the effect that it was essential to the financial prospects of ISA to reserve an adequate amount of capital to deal with the ultimate potential of being hit by a large judgment from the arbitration. Plaintiff has evidence indicating that defendant never set a reserve in contravention to his stated need to do so, and statements suggesting that defendant genuinely believed that the Russian proceeding was based on or constituted a meritless claim, both of which plaintiff claims demonstrate that defendant did not have a sincere belief in his statements about (1) the stated potential for liability and (2) the likelihood that any potential liability would have an effect on ISA's future financial prospects.
Defendant seeks to introduce the event of the Russian tribunal rendering a substantial judgment against ISA in order to prove that his belief was both real and well-founded. But the rendering of the judgment adds nothing to the assessment of the degree of risk posed by the pending arbitration when the statements where made. Nor does it provide well-linked inferences to particular bases of information that would have informed defendant's belief in the degree of risk he conveyed to plaintiff. Conversely, the event of the rendering of a substantial judgment from an arbitration in a Russian tribunal invites the jury to speculate that the risk was indeed great without a foundational basis for doing so. It also invites the jury to ascribe enhanced credibility to defendant's statements to plaintiff merely because for any one of what could be countless reasons a substantial award was rendered in that foreign tribunal against ISA. The ...