Securities Fraud Action, and Environmental and False Claims Act Matters - U.S. Ninth Circuit
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Securities Fraud Action, and Environmental and False Claims Act Matters

Miller v. Thane Int'l., Inc., No. 09-55474, involved a securities fraud class action alleging that a corporation's pre-merger prospectus contained materially misleading representations because it implied that the company's shares would list on the NMS.  The court affirmed judgment for defendant on the grounds that 1) in a prior order, the court did not comment on the reliability of the company's stock prices, other than to state what is undisputed, namely, that the stock traded in an inefficient market; and 2) stock price evidence may be used in a loss causation assessment when the market for a stock is not Cammer-level efficient.

Ebeid v. Lungwitz, No. 09-16122, involved an action under the False Claims Act (FCA), claiming that defendant submitted false certifications to the federal government in connection with Medicare payments for three health care businesses.  The court affirmed the dismissal of the complaint on the grounds that 1) plaintiff failed to supply reasonable indicia that false claims were actually submitted; and 2) plaintiff failed to plead an implied certification theory with the particularity required by Fed. R. Civ. P. 9(b) for the same reasons germane to the alleged Stark Act violation.

Home Builders' Assn. of N. Cal. v. US Fish & Wildlife Serv., No. 07-16732, concerned a challenge to the designation by the U.S. Fish and Wildlife Service (FWS) of about 850,000 acres of land as critical habitat for fifteen endangered or threatened vernal pool species.  The court affirmed summary judgment for defendants, on the grounds that 1) Gifford Pinchot said nothing about how many Primary Constituent Elements must be included in an area for it to be classified as critical habitat; 2) there was no reason why FWS could not determine what elements were necessary for conservation without determining exactly when conservation would be complete; and 3) plaintiff failed to suggest a method that might have produced a more precise delineation of the protected area.

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