Smilovits v. First Solar Incorporated et al

Filing 401

ORDER granting/denying in part 311 Motion for Summary Judgment. FURTHER ORDERED denying 309 Motion for Summary Judgment, but Defendants' affirmative defenses 1 5, 7, 10 14, and 16 are stricken. FURTHER ORDERED granting 341 Defendants& #039; request for judicial notice. FURTHER ORDERED granting 342 , 387 Motions to Seal. FURTHER ORDERED The Court certifies the loss causation issue discussed above for immediate interlocutory appeal under 28 U.S.C. § 1292(b). See Order for Complete Details. Signed by Judge David G Campbell on 8/10/15. (MAP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Mark Smilovits, et al., Plaintiffs, 10 11 ORDER v. 12 No. CV-12-00555-PHX-DGC First Solar Incorporated, et al., 13 Defendants. 14 15 16 In this complex securities fraud class action, Defendants have filed a motion for 17 summary judgment on all claims (Doc. 311) and Plaintiffs have filed a motion for partial 18 summary judgment on eighteen affirmative defenses (Doc. 309). Defendants have also 19 filed a request for judicial notice (Doc. 341) and two motions to seal (Docs. 342, 387). 20 Each motion has been briefed, and the Court heard oral argument on July 22, 2015. The 21 Court will deny in part and grant in part Defendants’ motion for summary judgment, 22 deny Plaintiffs’ motion for summary judgment, and grant Defendants’ request for judicial 23 notice and motions to seal. 24 The Court finds two competing lines of cases in the Ninth Circuit on loss 25 causation. Because one line would result in complete summary judgment for Defendants 26 and the other (which the Court chooses to follow) will result largely in denial of summary 27 judgment and a lengthy and expensive trial, the Court will certify this issue for immediate 28 appeal under 28 U.S.C. § 1292(b). 1 I. Background. 2 First Solar, Inc. is one of the world’s largest producers of photovoltaic solar panel 3 modules. Its stock is publicly traded on the NASDAQ Global Market. By 2008, First 4 Solar’s stock had risen to nearly $300 per share. As of the beginning of 2012, the stock 5 price had fallen to less than $50 per share. During this time, which coincided with the 6 recession in 2008, First Solar experienced a change in leadership, a manufacturing defect, 7 and a climate-related technical issue regarding their modules. 8 Plaintiffs are purchasers of First Solar stock who brought this class action alleging 9 that First Solar and several of its key officers and executives misrepresented the financial 10 state of the company to inflate the price of First Solar stock, committed accounting 11 violations, and concealed material facts relating to the extent of the manufacturing defect 12 and the hot climate issue in violation of §§ 10(b) and 20(a) of the Securities Exchange 13 Act of 1934 and Securities Exchange Commission Rule 10b-5. Plaintiffs filed their First 14 Amended Complaint on August 17, 2012, and the Court certified Plaintiffs’ class on 15 October 8, 2013. Fact discovery has been completed. Expert discovery remains. 16 A. 17 The class is defined as “[a]ll persons who purchased or otherwise acquired the 18 publicly traded securities of First Solar, Inc. between April 30, 2008 and February 28, 19 2012” (the “Class Period”). Doc. 171 at 22.1 20 The Parties. First Solar, Inc. is headquartered in Tempe, Arizona. During the Class Period, it 21 operated manufacturing facilities in Ohio, Germany, and Malaysia. 22 managed by a shareholder-elected Board of Directors. The Board delegates functions to 23 committees within the company, including the Audit Committee, which performs internal 24 accounting audits. First Solar’s accounting practices are also audited and reviewed by 25 PricewaterhouseCoopers (“PwC”), an outside accounting firm. 26 First Solar is The Individual Defendants consist of several officers and executives employed by 27 28 1 Page citations to electronically filed documents refer to the stamped CM/ECF page numbers at the top of each page, not the original document’s page numbers. -2- 1 First Solar. Michael Ahearn was the Executive Chairman of the Board throughout the 2 entire Class Period. Doc. 312; Doc. 363 at 13. He also served as the Chief Executive 3 Officer (“CEO”) from April 2008 to October 2009 and from October 2011 to the end of 4 the Class Period. Doc. 363 at 13. Robert Gillette served as CEO and Director of First 5 Solar from October 2009 to October 2011. Id. Bruce Sohn served as President from the 6 beginning of the Class Period until April 2011. Id. at 14. David Eaglesham served as 7 Vice President (“VP”) of Technology from the beginning of the Class Period until 8 November 2009, when he became Chief Technology Officer. Doc. 312. Jens Meyerhoff 9 served as Chief Financial Officer (“CFO”) from the beginning of the Class Period until 10 December 2010, and then assumed the role of President of the Utility Systems Business 11 Group. Id. James Zhu served as VP and Corporate Controller, then VP and Chief 12 Accounting Officer, and finally as the Interim CFO. Id. Mark Widmar took over Zhu’s 13 role as CFO in April 2011. Id. 14 Several other individuals employed during the Class Period, but not named as 15 defendants in this action, performed key roles. These include Michael Koralewski, who 16 served separately as Director of Global Quality, then as VP of Global Quality, and later 17 as VP of Site Operations and Plant Manager; TK Kallenbach, who served separately as 18 Executive VP of Marketing and Product Management and later as President of the 19 Components Business Group; Thomas Kuster, who served briefly as VP of Engineering 20 Procurement and Construction and then as VP of System Development; and Bryan 21 Schumaker, who served as Assistant Corporate Controller and later as VP and Corporate 22 Controller. Doc. 312. 23 B. 24 In March 2009, First Solar received a complaint from one of its German customers 25 that some of its sites were experiencing low power output. Doc. 332 at 19.2 A few The LPM Defect. 26 2 27 28 First Solar tested solar panel modules as they came off the assembly line. Doc. 363 at 15. This “destructive testing [was done] to simulate performance following installation in the field,” and the results were referred to as a Stability Index (“STBi”). Doc. 311 at 28 n.12. The STBi data was the key metric used to “estimate the number of modules that could experience premature power degradation.” Doc. 363 at 15. -3- 1 months later, a task force led by Eaglesham discovered that the power loss was the result 2 of a new manufacturing process implemented in June 2008. Doc. 314, ¶¶ 10-11. The 3 process “had the effect of producing a small subpopulation of modules that could 4 experience field power loss of 15% or more from nameplate within the first several 5 months of installation.” Id., ¶ 12. The modules became known as Low Power Modules 6 (“LPMs”), and the defective manufacturing process was discontinued in June 2009. Id., ¶ 7 14.3 8 Shortly after discovering the defect, First Solar agreed to remediate sites affected 9 by LPMs. It contacted customers to notify them of the defect and offered remediation by 10 removing and replacing LPMs at sites that were underperforming. Customers were 11 required to submit remediation claims by November 2010. Doc. 324, ¶ 20. 12 In order to account for the added expense of remediation in First Solar’s financial 13 statements, Koralewski developed models for estimating the number of LPMs that were 14 produced between June 2008 and June 2009. Id., ¶¶ 9-12. At the time, he believed First 15 Solar “could identify LPMs by serial numbers and replace only those modules.” Id., ¶ 16 21. 17 Koralewski was again charged with estimating the number of modules required to 18 remediate customer sites. Id. These estimates were based on various statistical models 19 and accounted for “hit rate calculations,” which “refer to the percentage of returned 20 modules that were LPMs.” Id., ¶ 22b. For example, “[f]or small rooftop sites, which 21 usually contained hundreds of modules, [First Solar] determined that it was more 22 efficient to replace all of the modules rather than search for LPMs individually.” Id. 23 This required First Solar to replace a greater number of modules than initially anticipated. 24 In the quarters immediately following discovery of the LPM defect, Koralewski After it became clear that First Solar could not merely replace single LPMs, 25 3 26 27 28 First Solar warranted that their modules would “produce at least (1) 90% of their labeled power during the first ten years after their sale and (2) 80% of their labeled power during years eleven to twenty-five.” Doc. 311 at 17; Doc. 334 at 12. The warranty required the customer to ship a defective module to First Solar, where it would be tested to confirm underperformance. First Solar would ship a new module to the customer. Doc. 334 at 12. Expected costs from warranty claims were estimated by First Solar and included as a Warranty Accrual line item in its financial reports. Doc. 311 at 19. -4- 1 reported his estimates internally to First Solar executives. In the third quarter of 2009 2 (“3Q09”), Koralewski estimated that there were 115,000 LPMs in the field. Id., ¶ 11. In 3 4Q09, the estimate grew to 154,000. Id. By 1Q10, Koralewski estimated that 450,000 4 modules were LPMs, which represented less than 4% of the total 11.8 million modules 5 produced during the defect period. Id., ¶ 12. 6 The estimates regarding the number of LPMs in the field and the number of 7 modules required to remediate the defect directly affected the additional costs First Solar 8 faced as a result of the manufacturing defect. The costs were reflected in the “LPM 9 Remediation Accrual,” which was calculated to account for the additional expenses in 10 accordance with Generally Accepted Accounting Principles (“GAAP”). Doc. 325, ¶ 24. 11 Over the course of several quarters, the LPM Remediation Accrual grew with the 12 estimated number of modules required to complete remediation. 13 Another factor that contributed to the estimate was the number of customer claims 14 First Solar received, as well as the percentage of those claims that First Solar believed 15 valid. After initially contacting customers, First Solar had completed remediation of 16 “more than two dozen of the approximately 150 sites that had been claimed[.]” Doc. 324, 17 ¶ 25. 18 “received over 5,000 new claims, most of which were not accompanied by supporting 19 data.” Id., ¶ 26. But in the weeks leading up to the November 2010 deadline, the company 20 The LPM manufacturing defect and the resulting remediation costs were not 21 disclosed to the public until July 2010, when the LPM Remediation Accrual appeared as 22 a separate line-item in First Solar’s 2Q10 Form 10-Q accompanied by the following 23 explanation: 24 25 26 27 28 During the period from June 2008 to June 2009, a manufacturing excursion occurred affecting less than 4% of the total product manufactured within the period. The excursion could result in possible premature power loss in the affected modules. The root cause was identified and subsequently mitigated in June 2009. On-going testing confirms the corrective actions are effective. We have been working directly with impacted customers to replace the affected modules and these efforts are well underway and, in -5- 1 2 3 4 5 some cases, complete. Some of these efforts go beyond our normal warranty coverage. Accordingly, we have accrued additional expenses of $17.8 million in the second quarter of 2010 and $29.5 million in total to date to cover the replacement of the anticipated affected module population in the field. Doc. 359-1 at 41.4 6 In 3Q10, the figures remained the same. Doc. 325, ¶ 37. In 4Q10, the LPM 7 Remediation Accrual grew by $8.5 million. Doc. 331 at 118. In 1Q11, the figures did 8 not increase, and in 2Q11, the figures increased by $3.6 million. Doc. 325, ¶¶ 39, 41. In 9 3Q11, $22.1 million was added to the LPM Remediation Accrual. By 4Q11, 90% of the 10 outstanding claims had been processed, and the figures were increased by $23.9 million 11 with a $70.1 million product warranty expense. Doc. 340 at 6-7. 12 Plaintiffs argue that First Solar wrongfully failed to disclose the LPM defect prior 13 to July 29, 2010. Plaintiffs further assert that First Solar misrepresented the true scope of 14 the defect by engaging in improper accounting practices and reporting false information 15 on their financial statements. 16 C. 17 In April 2010, a team of First Solar scientists discovered data suggesting that First 18 Solar modules installed in hot climates experienced faster power loss than previously 19 understood. Doc. 314, ¶ 32. This data, however, was inconsistent with recent data 20 indicating that “long-term test installations in the Arizona desert” were performing above 21 expectation ratios. Id., ¶¶ 33(b), (c). The team continued to monitor sites. Hot Climate Degradation. 22 On February 7, 2011, First Solar discovered that the company’s Blythe, California 23 plant was producing power at a lower level than its Ontario, Canada plant. Id., ¶¶ 35-36. 24 In March, the team of scientists concluded that the modules were experiencing a greater 25 “initial stabilization” in hot climates than previously understood. Id., ¶ 38. Mitigation 26 27 28 4 Each quarter, First Solar issued Forms 10-Q or 10-K depending on whether the report pertained to the first three quarters (10-Q) or the full year (10-K). First Solar also participated in earnings calls with securities analysts when the 10-Qs and 10-Ks were released, and the calls were open to the public. Doc. 311 at. 20. -6- 1 strategies were implemented, and Koralewski concluded that First Solar’s existing 2 warranty accrual was sufficient to cover projected warranty claims from customers. At 3 the end of 4Q11, the hot climate degradation had been resolved, and the Warranty 4 Accrual line item was increased by $37.8 million.5 5 Plaintiffs argue that First Solar wrongfully concealed the hot climate defect for 6 several quarters by manipulating accounting metrics and ignoring the true scope of the 7 defect. They also allege that First Solar buried the extra costs of the hot climate defect in 8 its Warranty Accrual instead of disclosing it in a separate line item.6 9 D. The Trades. 10 During the Class Period, the Individual Defendants made several trades of First 11 Solar stock. Ahearn sold over three million shares in multiple trades, amounting to more 12 than 96% of his shares. Doc. 363 at 55. Eaglesham sold 94% of his stock over several 13 trades, and Meyerhoff sold over 80% of his shares. Id. at 57-58. Sohn sold nearly 75% 14 of his shares, and Zhu sold nearly 50%. Id. at 58. In contrast, both Gillette and Widmar 15 purchased several thousand shares of First Solar stock. Id. at 57-58. Plaintiffs assert that 16 the timing of the sales shows that Defendants knew the LPM defect was going to cost 17 much more than First Solar had reported in its financial statements. 18 E. 19 First Solar stock experienced several days of steep declines during the Class 20 Period, which appeared to be market reactions to quarterly financial disclosures and the 21 departure of Gillette as CEO. On July 29, 2010, First Solar announced its 2Q10 earnings, 22 which disclosed the manufacturing defect and additional costs of $23.4 million. Id. at 65- Value of First Solar’s Stock. 23 5 24 25 26 27 28 First Solar ultimately determined that the hot climate degradation affected almost 10 million modules produced between July 2009 and June 2011. Doc. 364-2 at 7. 6 Plaintiffs also argue that First Solar manipulated one of its “key metrics” – costper-watt (“CpW”). CpW is defined as “the total manufacturing cost incurred during a period divided by the total watts produced during that period.” Doc. 363 at 53. They assert that VP Kurt Woods pressured employees to “bring the cost per watt down” one cent, which was reported to the Internal Audit Committee (“IA”), and an investigation was undertaken. Plaintiffs assert that the investigation was cut short and Meyerhoff ordered that no employee should report improper conduct to IA again. Plaintiffs also assert that First Solar engaged in improper accounting methods to manipulate CpW. -7- 1 66. The stock price dropped 7.4% the next day. Id. at 66. On February 24, 2011, First 2 Solar announced its 4Q10 earnings, missing its target revenue. Id. at 67. The stock price 3 declined by 5.4% the next day. Id. at 68. On May 3, 2011, the company announced its 4 1Q11 earnings, which included additional expenses for LPM remediation. Id. at 69. The 5 next day, First Solar stock dropped 6.2%. 6 announced Gillette’s departure as CEO. Id. at 70. The stock price dropped 25% that day, 7 but later rebounded. Id. On December 14, 2011, the company issued a press release and 8 held a conference call relating to its financial state. Id. at 73. First Solar stock dropped 9 an additional 21.4%. Id. On February 28, 2012, First Solar announced disappointing 10 4Q11 results. Id. at 74-75. The stock price dropped 11.26% that day and 5.8% the next. 11 Id. at 75. 12 II. Id. On October 25, 2011, First Solar Legal Standard. 13 A party seeking summary judgment “bears the initial responsibility of informing 14 the district court of the basis for its motion, and identifying those portions of [the record] 15 which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 16 Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the 17 evidence, viewed in the light most favorable to the nonmoving party, shows “that there is 18 no genuine dispute as to any material fact and the movant is entitled to judgment as a 19 matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is also appropriate against a 20 party who “fails to make a showing sufficient to establish the existence of an element 21 essential to that party’s case, and on which that party will bear the burden of proof at 22 trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome 23 of the suit will preclude the entry of summary judgment, and the disputed evidence must 24 be “such that a reasonable jury could return a verdict for the nonmoving party.” 25 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 26 Plaintiffs allege that Defendants violated § 10(b) of the Securities Exchange Act of 27 1934 and Securities Exchange Commission Rule 10b-5. 28 unlawful to ‘use or employ, in connection with the purchase or sale of any security . . . -8- Section 10(b) “makes it 1 any manipulative or deceptive device or contrivance in contravention of such rules and 2 regulations as the Commission may prescribe.’” In re Oracle Corp. Sec. Litig., 627 F.3d 3 376, 387 (9th Cir. 2010) (quoting 15 U.S.C. § 78j(b)). “Commission Rule 10b-5 forbids, 4 among other things, the making of any ‘untrue statement of a material fact’ or the 5 omission of any material fact ‘necessary in order to make the statements made . . . not 6 misleading.’” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 341 (2005) (quoting 17 C.F.R. 7 § 240.10b-5 (2004)). “The scope of Rule 10b-5 is coextensive with that of Section 8 10(b).” Oracle, 627 F.3d at 387. To demonstrate a violation of § 10(b) and Rule 10b-5, 9 “a plaintiff must prove (1) a material misrepresentation or omission by the defendant; 10 (2) scienter; (3) a connection between the misrepresentation or omission and the purchase 11 or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic 12 loss; and (6) loss causation.” Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 13 552 U.S. 148, 157 (2008). Defendants’ motion for summary judgment asserts that 14 Plaintiffs cannot prove elements (1), (2), and (6), but focuses first and most extensively 15 on loss causation. 16 III. Loss Causation, Ninth Circuit Law, and § 1292(b) Certification. 17 Plaintiffs assert that loss causation is satisfied if the facts misrepresented or 18 omitted by Defendants ultimately cause Plaintiffs’ loss. Under their view, “‘a plaintiff 19 can satisfy loss causation by showing that the defendant misrepresented or omitted the 20 very facts that were a substantial factor in causing the plaintiff’s economic loss.’” 21 Doc. 363 at 62 (quoting Nuveen Mun. High Income Opportunity Fund v. City of Alameda, 22 730 F.3d 1111, 1120 (9th Cir. 2008) (emphasis in Nuveen; citation in Nuveen omitted)). 23 Defendants favor a narrower definition. They argue that loss causation can be established 24 only if “‘the market learns of a defendant’s fraudulent act or practice, the market reacts to 25 the fraudulent act or practice, and plaintiff suffers a loss as a result of the market’s 26 reaction.’” Doc. 379 at 13 (quoting Oracle, 627 F.3d at 392). Each side cites Ninth 27 Circuit cases in support of its position. The Court has read the Ninth Circuit cases cited 28 by the parties – several times – and concludes that they reflect two irreconcilable lines of -9- 1 cases. The Court will provide a brief history of loss causation, describe each line of 2 Ninth Circuit cases, and then decide which line to follow. 3 A. 4 As far back as the early 1980s, some federal courts recognized that a securities 5 fraud plaintiff should be permitted to recover under § 10(b) and Rule 10b-5 only if the 6 misrepresentation of omission of the defendant proximately caused the plaintiff’s loss. A 7 leading case was Huddleston v. Herman & MacLean, 640 F.2d 534 (5th Cir. 1981), aff’d 8 in part, rev’d in part, 459 U.S. 375 (1983), which held that “[t]he plaintiff must prove not 9 only that, had he known the truth, he would not have [purchased the security], but in 10 addition that the untruth was in some reasonably direct, or proximate, way responsible for 11 his loss,” id. at 549. 12 omissions that are material and that were relied on by the claimant, but are not the 13 proximate reason for his pecuniary loss, recovery under [Rule 10b-5] is not permitted.” 14 Id. Without this requirement of proximate cause, Huddleston explained, “Rule 10b-5 15 would become an insurance plan for the cost of every security purchased in reliance upon 16 a material misstatement or omission.” Id. A Brief History of Loss Causation. “If the investment decision is induced by misstatements or 17 The Huddleston view was not universally accepted. Some courts held that a 18 plaintiff could prevail merely by showing that the misrepresentation or omission caused 19 the plaintiff to purchase the security. See, e.g., Kafton v. Baptist Park Nursing Ctr., Inc., 20 617 F. Supp. 349, 350 (D. Ariz. 1985). This broader form of causation is sometimes 21 called “transaction causation.” It exists when a misrepresentation or omission of the 22 defendant induces the plaintiff to purchase the defendant’s securities. As the Ninth 23 Circuit has explained, “to prove transaction causation, the plaintiff must show that, but 24 for the fraud, the plaintiff would not have engaged in the transaction at issue.” In re 25 Daou Systems, Inc., 411 F.3d 1006, 1025 (9th Cir. 2005). “[T]o prove loss causation, the 26 plaintiff must demonstrate a causal connection between the deceptive acts that form the 27 basis for the claim of securities fraud and the injury suffered by the plaintiff.” Id. 28 A helpful illustration of the difference was provided in Huddleston: - 10 - 1 2 3 4 [A]n investor might purchase stock in a shipping venture involving a single vessel in reliance on a misrepresentation that the vessel had a certain capacity when in fact it had less capacity than was represented in the prospectus. However, the prospectus does disclose truthfully that the vessel will not be insured. One week after the investment the vessel sinks as a result of a casualty and the stock becomes worthless. 5 6 640 F.2d at 549 n.25. In this example, the investor might be able to prove transaction 7 causation (that the misrepresentation about the vessel’s capacity induced him or her to 8 purchase the stock), but could not prove loss causation (that the misrepresentation caused 9 the investor’s loss). The loss was caused by the lack of insurance. 10 Although federal courts disagreed for several years on whether loss causation was 11 required in 10b-5 cases, Congress resolved the disagreement in 1995 when it passed the 12 Private Securities Litigation Reform Act (“PSLRA”). The PSLRA required proof of 13 transaction causation by requiring proof of reliance – that the plaintiffs relied on the 14 defendant’s misstatement or omission when they purchased the security. See Dura, 544 15 U.S. at 341 (a 10b-5 plaintiff must prove “reliance, often referred to in cases involving 16 public securities markets (fraud-on-the-market cases) as ‘transaction causation’”). The 17 PSLRA also included a section titled “Loss causation” which provided that “[i]n any 18 private action arising under this chapter, the plaintiff shall have the burden of proving 19 that the act or omission of the defendant alleged to violate this chapter caused the loss for 20 which the plaintiff seeks to recover damages.” 15 U.S.C. § 78u-4(b)(4). As the Supreme 21 Court has noted, this provision requires proof of “‘loss causation,’ i.e., a causal 22 connection between the material misrepresentation and the loss[.]” Dura, 544 U.S. at 23 341. Loss causation has thus become a universal requirement of securities fraud cases. 24 The Supreme Court addressed the requirement of loss causation in Dura. Some 25 courts had held that loss causation could be established merely by showing that the price 26 of the stock on the date of purchase was inflated by the defendant’s misrepresentations. 27 The Supreme Court held that loss causation requires more, finding that Congress 28 intended “to permit private securities fraud actions for recovery where, but only where, - 11 - 1 plaintiffs adequately allege and prove the traditional elements of causation and loss.” Id. 2 at 346. Thus, plaintiffs must “prove that the defendant’s misrepresentation (or other 3 fraudulent conduct) proximately caused the plaintiff’s economic loss.” 4 differently, the plaintiff must show a “causal connection” between the “loss and the 5 misrepresentation.” Id. at 347. Id. Stated 6 The parties and the Ninth Circuit agree on this much: that Plaintiffs must prove a 7 causal connection between Defendants’ fraudulent actions and their loss. The question is 8 how that connection must be proved. On this question, the parties and the Ninth Circuit 9 cases diverge. 10 B. 11 Shortly after the Supreme Court decided Dura, the Ninth Circuit issued an 12 amended opinion in Daou, 411 F.3d at 1006. The district court in Daou had dismissed 13 the plaintiff’s third amended complaint because it did not “allege that there were any 14 negative public statements, announcements or disclosures at the time the stock price 15 dropped that Defendants were engaging in improper accounting practices.” Id. at 1026. 16 In other words, because the defendants’ fraud – the improper accounting practices – had 17 not been publicly disclosed, the district court concluded that loss causation had not been 18 pled. The Ninth Circuit reversed. It observed that “the price of Daou’s stock fell 19 precipitously after defendants began to reveal figures showing the company’s true 20 financial condition.” Id. (emphasis added). The Ninth Circuit found loss causation to be 21 adequately pled because “Plaintiffs allege that these disclosures of Daou’s true financial 22 health, the result of prematurely recognizing revenue before it was earned, led to a 23 ‘dramatic, negative effect on the market, causing Daou’s stock to decline[.]’” 24 (emphasis added). In other words, it was the disclosure of the company’s financial 25 problems – problems caused by the fraudulent accounting practices – that led to the stock 26 decline and the plaintiff’s loss. Daou and its Progeny. Id. 27 That it was the disclosure of the company’s financial condition, rather than 28 disclosure of defendants’ fraud, that satisfied loss causation, is made abundantly clear in - 12 - 1 Daou. The opinion on page 1026 refers to disclosure of “the company’s true financial 2 condition” and “Daou’s true financial health.” Id. The next page refers to the disclosure 3 of “Daou’s true financial health,” “the true nature of Daou’s financial condition,” and 4 “Daou’s true financial situation.” Id. at 1027. Although it is correct that the facts in 5 Daou also included the revelation of additional information from which one market 6 analyst became suspicious that the company was “manufacturing earnings,” and although 7 it is also correct that the company disclosed a growing amount of unbilled receivables in 8 one of its accounts, it was not the disclosure of these facts that the Ninth Circuit found 9 sufficient for loss causation. Rather, it was the disclosure of the company’s true financial 10 condition, which had been previously misrepresented by the defendants, which led to a 11 drop in the stock price and provided the causal connection between the defendants’ 12 wrongful conduct and the plaintiffs’ loss. As the Ninth Circuit observed, “the price of 13 Daou’s stock fell precipitously after defendants began to reveal figures showing the 14 company’s true financial condition.” Id. at 1026. 15 The Ninth Circuit took the same approach three years later in Berson v. Applied 16 Signal Technology, Inc., 527 F.3d 982 (9th Cir. 2008). The plaintiffs in Berson bought 17 stock in Applied Signal during the six months before the company revealed that its 18 revenue had fallen 25%. Immediately following this disclosure, the stock price dropped 19 16% and plaintiffs sued the company and two of its officers for securities fraud. Id. at 20 984. 21 reflecting the dollar value of government contracts in a “backlog” account, suggesting 22 that the company would perform the contracted-for work in the future and would earn the 23 contracted-for revenues. Defendants did not disclose that some of those contracts were 24 the subjects of “stop-work orders” from the government that meant they might never be 25 performed. Thus, plaintiffs were given the incorrect impression that the company had a 26 substantial backlog of future work, when in fact tens of millions of dollars in the backlog 27 were under stop-work orders and might never be performed. 28 The plaintiffs alleged that the company engaged in a misleading process of The Ninth Circuit provided this description in finding that the plaintiffs adequately - 13 - 1 pled loss causation: “The complaint describes the stop-work orders in detail, explains 2 that the orders halted a significant amount of work, alleges that the reduced workload 3 caused revenue to fall by 25%, and claims that this revenue reduction caused the stock 4 price to drop by 16%.” Id. at 989 (emphasis added). In other words, it was the eventual 5 effect of the misrepresented facts – the contracts subject to stop-work orders – that caused 6 revenue to drop, stock prices to fall, and plaintiffs’ injuries. The very facts that were 7 wrongly withheld ultimately led to the plaintiffs’ loss. As in Daou, it was the revelation 8 of the company’s true financial condition, in contrast to the misleading financial 9 condition portrayed by the defendants, that led to the stock price drop and satisfied loss 10 causation. 11 This approach became even clearer when the Ninth Circuit articulated this test for 12 loss causation in Nuveen: “A plaintiff can satisfy loss causation by showing that ‘the 13 defendant misrepresented or omitted the very facts that were a substantial factor in 14 causing the plaintiff’s economic loss.’” 730 F.3d at 1120 (emphasis in original) (citing 15 McCabe v. Ernst & Young, LLP, 494 F.3d 418, 425 (3d Cir. 2007)). Thus, drawing a 16 causal connection between the facts misrepresented and the plaintiff’s loss will satisfy 17 loss causation. A plaintiff need not show that the fraudulent practices themselves were 18 revealed: “Disclosure of the fraud is not a sine qua non of loss causation, which may be 19 shown even where the alleged fraud is not necessarily revealed prior to the economic 20 loss.” Id. at 1120. 21 The Nuveen test accurately describes the holdings in Daou and Berson. The “very 22 facts” misrepresented in Daou – the company’s earning capacity – ultimately led to lower 23 revenues, the drop in stock price, and the plaintiff’s loss. The “very facts” concealed in 24 Berson – that several of the company’s large contracts were subject to stop-work orders – 25 ultimately led to the drop in revenue that produced the drop in stock price.7 26 7 27 28 As Defendants note, Nuveen is not a fraud-on-the-market case. The securities at issue in Nuveen were purchased in private transactions. Although Defendants argue that this fact distinguishes Nuveen from the present case, Nuveen itself explained that the loss causation test is the same for efficient and inefficient markets: “Although Nuveen repeatedly promotes a different standard for Rule 10b-5 claims arising from ‘inefficiently - 14 - 1 In summary, as the Court reads Daou, Berson, and Nuveen, proof of loss causation 2 is not confined to a particular kind of market disclosure. The question is whether the 3 facts misrepresented or concealed by the defendant led to the plaintiff’s loss. If they did, 4 then the defendant’s misrepresentation or omission has a causal connection to the 5 plaintiff’s loss as required by Dura. 6 This rule is not, as Defendants contend, a form of investor insurance. The test 7 does not establish a system under which a plaintiff, once having purchased stock, is 8 protected against any and all possible losses. The only losses for which a plaintiff can 9 recover are those caused by “the very facts” that were misrepresented or omitted. To use 10 the Huddleston example quoted above, the investor in the ship could recover nothing if 11 the loss was caused by the lack of insurance. But if the loss was due to the very facts that 12 were misrepresented – the ship’s carrying capacity – then the misrepresentation would be 13 causally connected to the loss and proximate causation would be satisfied. 14 C. 15 Another line of Ninth Circuit cases takes a more restrictive view of loss causation. 16 This line of cases appears to begin with Metzler. Purporting to apply Daou, Metzler 17 concluded that to allege loss causation “the complaint must allege that the practices that 18 the plaintiff contends are fraudulent were revealed to the market and caused the resulting 19 losses.” 540 F.3d at 1063 (emphasis added). A plaintiff must show “that the market 20 learned of and reacted to [the] fraud, as opposed to merely reacting to reports of the 21 defendant’s poor financial health generally.” Id. Metzler and its Progeny. 22 Respectfully, the Court regards this as a misreading of Daou. As noted earlier, 23 Daou emphasized that the disclosure which triggered the plaintiff’s loss and satisfied the 24 requirement of loss causation was “the company’s true financial condition.” 411 F.3d at 25 26 27 28 traded’ securities, the need to reliably distinguish among the tangle of factors affecting a security’s price is no less urgent in efficient markets. ‘[F]undamentally, the same loss causation analysis occurs in both typical and non-typical § 10(b) cases.’” Id. at 1123 (quoting McCabe, 494 F.3d at 425 n.2). The footnote from McCabe cited in Nuveen holds that the loss causation test is the same for stock purchased in publicly-traded (efficient) markets and stock purchased in private transactions. See 494 F.3d at 425 n.2. - 15 - 1 1026. Because that poor financial condition resulted from the very facts the defendants 2 had misrepresented by prematurely recording revenues, loss causation was satisfied. 3 Despite this apparent misreading of Daou, the holding in Metzler has spawned 4 additional cases. In Oracle, the Ninth Circuit made the holding in Metzler even clearer: 5 “[L]oss causation is not adequately pled unless a plaintiff alleges that the market learned 6 of and reacted to the practices the plaintiff contends are fraudulent, as opposed to merely 7 reports of the defendant’s poor financial health generally.” 627 F.3d at 392. In other 8 words, the market must learn of the specific fraudulent practices. It is not enough that a 9 plaintiff suffers loss because the very facts that were the subject of those fraudulent 10 practices caused his loss. Even though Daou specifically stated – five times – that stock 11 losses caused by revelation of the company’s true financial condition can satisfy loss 12 causation if that financial condition is caused by the misrepresented facts (411 F.3d at 13 1026-27), and even though Berson and Nuveen adopt the same approach, Oracle 14 specifically states that plaintiffs cannot prove loss causation “by showing that the market 15 reacted to the purported ‘impact’ of the alleged fraud – the earnings miss – rather than to 16 the fraudulent acts themselves.” 627 F.3d at 392. 17 Oracle was followed by Loos v. Immersion Corp, 762 F.3d 880 (9th Cir. 2014), 18 and Oregon Public Employees Retirement Fund v. Apollo Group, Inc., 774 F.3d 598 (9th 19 Cir. 2014), both of which also held that loss causation requires proof that the company’s 20 fraudulent practices, as opposed to the adverse financial impact of those practices, was 21 revealed to the market. In the Court’s view, Metzler, Oracle, Loos, and Apollo adopt a 22 more restrictive view of loss causation than Daou, Berson, and Nuveen. Securities fraud 23 plaintiffs can recover only if the market learns of the defendants’ fraudulent practices. It 24 is not enough that plaintiffs are injured by the consequences of those practices.8 25 8 26 27 28 Another securities fraud case decided by the Ninth Circuit during this same general time period, In re Gilead Sciences Securities Litigation, 536 F.3d 1049 (9th Cir. 2008), does not clearly embrace any single approach to proving loss causation. Gilead was a case where the defendant’s improper off-label marketing was revealed to the market and, later, when combined with a revenue drop, resulted in loss to the plaintiffs. It illustrates that loss causation can in fact be proved in the way Metzler and its progeny require, but does not suggest that is the only way loss causation can be established. The - 16 - 1 The Court pauses to address a concern that may underlie Metzler and these later 2 cases – that recognizing loss causation merely from a company’s poor financial health 3 may lead to the recovery of losses that were caused by factors other than the defendant’s 4 fraud. 5 insurance, but that is not what Daou, Berson, and Nuveen permit. They require the 6 plaintiff to prove more than the company’s poor financial health and a resulting stock 7 drop. The plaintiff must also prove that the company’s poor financial health was caused 8 by the “very facts” that the defendant misrepresented or concealed. The plaintiff clearly 9 must prove a causal connection between the fraud and the loss. The Court agrees that such a rule would be an improper form of investor 10 D. 11 The Court concludes that it should apply the loss causation test adopted in Daou, 12 Which Line of Cases Should the Court Follow? Berson, and Nuveen. It reaches this conclusion for three reasons. 13 First, Daou was decided before any of the other cases. Because all of the cases 14 discussed above were decided by three-judge panels of the Ninth Circuit, none of those 15 panels had authority to overrule Daou. See Galbraith v. Cnty. of Santa Clara, 307 F.3d 16 1119, 1123 (9th Cir. 2002) (“[A] three judge panel normally cannot overrule a decision of 17 a prior panel on a controlling question of law[.]”). 18 generally hold that when two panel decisions conflict, the earlier panel decision controls. 19 See McMellon v. United States, 387 F.3d 329, 333 (4th Cir. 2004); Wilson v. Coman, 284 20 F. Supp. 2d 1319, 1339 (M.D. Ala. 2003). Because Daou is the earlier panel decision, 21 the Court will follow it. Applying this principle, courts 22 Second, the Court views the Daou line of cases as stating the better rule. As 23 explained in Dura and explored more thoroughly in McCabe, loss causation is a form of 24 proximate cause. It was adopted by Congress to ensure that securities fraud plaintiffs 25 may recover from defendants only when the actions of those defendants proximately 26 cause the plaintiffs’ losses. Dura, 544 U.S. at 342-46. Such causation is assuredly 27 28 Court notes that Gilead cites favorably to the Third Circuit’s decision in McCabe from which the Nuveen loss causation test is drawn. See id. at 1057. - 17 - 1 established when the “very facts” misrepresented or concealed by the defendant cause the 2 plaintiff’s loss. 3 capacity, a plaintiff purchases stock at an inflated value because of the company’s 4 misrepresentation, and the plaintiff’s stock later loses value because a competitor’s 5 newly-developed product eclipses the company’s product and causes a drop in the 6 company’s revenues, loss causation has not been satisfied. The development of a better 7 competing product, not the fact misrepresented by the company (manufacturing 8 capacity), led to the plaintiff’s loss. If, however, the company’s revenues fail to meet 9 projections because of the lack of manufacturing capacity – the very fact misrepresented 10 – and the stock loses value as a result, the misrepresented fact has led to the plaintiff’s 11 loss. This is true even if the market does not learn that the company lied. If the plaintiff 12 can prove that the drop in revenue was caused by the misrepresented fact and that the 13 drop in his or her stock value was due to the disappointing revenues, the plaintiff should 14 be able to recover. A causal connection between the “very fact” misrepresented and the 15 plaintiff’s loss has been established. For example, if a company publicly overstates its manufacturing 16 Third, traditional notions of proximate cause are not so narrowly circumscribed as 17 the rule in Metzler and its progeny. Section 548A of the Restatement (Second) of Torts, 18 which the Supreme Court in Dura described as “setting forth the judicial consensus,” 544 19 U.S. at 344, provides this relevant explanation of loss causation (referred to in the 20 Restatement as “legal causation”): 21 27 Thus one who misrepresents the financial condition of a corporation in order to sell its stock will become liable to a purchaser who relies upon the misinformation for the loss that he sustains when the facts as to the finances of the corporation become generally known and as a result the value of the shares is depreciated on the market, because that is the obviously foreseeable result of the facts misrepresented. On the other hand, there is no liability when the value of the stock goes down after the sale, not in any way because of the misrepresented financial condition, but as a result of some subsequent event that has no connection with or relation to its financial condition. 28 Restatement (Second) of Torts § 548A, Comment b (1977) (emphasis added). This 22 23 24 25 26 - 18 - 1 traditional rule does not require that the fraud become known, only that the “facts as to 2 the finances of the corporation” become known. This precisely describes the holdings in 3 Daou and Berson. 4 For these reasons, the Court will follow Daou, Berson, and Nuveen. The loss 5 causation test the Court will apply is this: “A plaintiff can satisfy loss causation by 6 showing that the defendant misrepresented or omitted the very facts that were a 7 substantial factor in causing the plaintiff’s economic loss.” Nuveen, 730 F.3d at 1120 8 (emphasis in original; citation omitted). The fraud or misrepresentation “need not be the 9 sole reason for the decline in value of the securities, but it must be a substantial cause.” 10 Gilead, 536 F.3d at 1055 (internal quotation marks omitted). 11 E. 12 For the reasons set forth below, the Court finds that application of the Daou loss 13 causation test largely results in denial of Defendants’ motion for summary judgment. 14 Had the Court applied Metzler and its progeny, Defendants’ motion would be granted in 15 full because Plaintiffs have not presented evidence from which a reasonable jury could 16 find that Defendants’ alleged fraudulent practices became known to the market during the 17 class period. Section 1292(b) Certification. 18 Denial of Defendants’ motion will result in the parties embarking on expensive 19 expert discovery and a costly and complex trial, none of which will be necessary if the 20 Ninth Circuit concludes that Metzler and its progeny represent the correct loss causation 21 test. To avoid this potentially unnecessary expense for the parties and the Court, the 22 Court will take the unusual step of certifying the loss causation issue for immediate 23 interlocutory appeal. The Court concludes that the loss causation test is a “controlling 24 question of law as to which there is substantial ground for difference of opinion and that 25 an immediate appeal from [this] order may materially advance the ultimate termination of 26 the litigation.” 28 U.S.C. § 1292(b). The issue certified is this: what is the correct test 27 for loss causation in the Ninth Circuit? Can a plaintiff prove loss causation by showing 28 that the very facts misrepresented or omitted by the defendant were a substantial factor in - 19 - 1 causing the plaintiff’s economic loss, even if the fraud itself was not revealed to the 2 market (Nuveen, 730 F.3d at 1120), or must the market actually learn that the defendant 3 engaged in fraud and react to the fraud itself (Oracle, 627 F.3d at 392)? Within 10 days 4 of the entry of this order, either side may petition the Ninth Circuit to decide this issue on 5 immediate appeal. Id. If neither side files such a petition, the Court will schedule a case 6 management conference to set a schedule for completion of expert discovery and 7 clarification of issues (as discussed below), and will set a final pretrial conference, at 8 which a firm trial date will be set. If a petition for immediate appeal is filed within 10 9 days, the Court will stay this action until the Ninth Circuit decides whether to take the 10 appeal and, if it does, the stay will remain in effect until the appeal is decided. 11 IV. Loss Causation Analysis. 12 In this section, the Court will address whether Plaintiffs have presented evidence 13 from which a reasonable jury could find the Daou loss causation test satisfied. The Court 14 will address other § 10(b) issues in the next section. 15 One of the difficulties presented by this case arises from the parties’ failure to 16 agree on precisely which alleged misrepresentations and omissions form the basis for 17 Plaintiffs’ case. Defendants identify 167 false statements from Plaintiffs’ complaint. 18 Doc. 327-1 at 1-254. Plaintiffs identify 96 false statements. Doc. 363 at 80-121. In 19 addition to being different in number, the identified statements differ in content. 20 Defendants ask the Court to enter summary judgment on a misrepresentation-by- 21 misrepresentation basis, but Plaintiffs do not address Defendants’ list, much less attempt 22 to identify the evidence that underlies each misrepresentation on the list. 23 Plaintiffs attempt to present specific evidence for the false statements on their list. 24 Plaintiffs instead take a more general approach, arguing that six events “removed the 25 price inflation caused by defendants’ earlier misstatements and omissions” about the 26 LPM and hot climate defects. Doc. 363 at 65. Plaintiffs claim that each event caused the 27 price of First Solar stock to decline due to the revelation of increased costs that had 28 previously been concealed by Defendants. Plaintiffs rely heavily on the declaration of - 20 - Nor do 1 their expert, Bjorn I. Steinholt, who analyzes whether costs related to the LPM and hot 2 climate defects substantially contributed to First Solar’s poor financial health and 3 resulting stock declines. Doc. 374. 4 Defendants argue that the Court should grant summary judgment on each of their 5 167 misrepresentations because Plaintiffs have not addressed them individually and 6 identified the evidence from which a reasonable jury could find that they were made and 7 caused Plaintiffs’ losses. But the Court cannot conclude that Plaintiffs must prove their 8 case as Defendants configure it, or even that Defendants’ list of misrepresentations 9 accurately reflect Plaintiffs’ case. Neither can the Court determine that Plaintiffs’ list of 10 96 misrepresentations is correct – as noted, Plaintiffs make no attempt to identify the 11 evidence that supports them or show that they caused Plaintiffs’ loss. The parties clearly 12 failed to communicate about the issues to be addressed in the motion and response, but 13 the Court cannot conclude that this lack of clarity provides a basis for summary 14 judgment. As discussed below, Plaintiffs have identified evidence supporting their claim 15 that the facts allegedly misrepresented and omitted by Defendants affected the company’s 16 financial health and caused Plaintiffs’ losses. The Court finds that this evidence, if 17 accepted by a jury, could satisfy the Daou loss causation test. 18 The Court remains concerned, however, about the lack of clarity in this case 19 approaching trial. The Court could hold that Plaintiffs are limited to proving the six 20 events addressed in their brief, but the evidence they cite and rely on goes well beyond 21 those events. The Court could require the parties to agree on a list of misrepresentations 22 and omissions and redo the summary judgment briefing, but this would require 23 substantial additional time and expense for the parties and the Court. The Court could 24 rely on the final pretrial report to identify the precise issues to be addressed at trial, but 25 this too will almost certainly spawn disagreements. 26 frustration over this state of affairs and concludes that the case must be clarified before 27 trial, but also concludes that this is a matter to be addressed after the § 1292(b) appeal is 28 resolved. As noted, that appeal could result in the Court granting summary judgment for - 21 - The Court feels considerable 1 Defendants even in light of the evidence presented by Plaintiffs. If that is not the result, 2 the Court and the parties will have to figure out how to prepare this currently-confused 3 case for trial.9 4 A. 5 On July 29, 2010, First Solar announced its 2Q10 earnings and disclosed the LPM 6 defect for the first time. Doc. 374, ¶ 35. First Solar beat Bloomberg consensus estimates 7 on its earnings per share and revenues. Id., ¶ 34. It also reduced its revenue guidance by 8 $100 million and increased its earnings per share guidance for fiscal year 2010 from 9 $6.80-$7.30 per share to $7.00-$7.40 per share. Id. First Solar estimated that the LPM 10 11 12 13 14 15 16 17 18 19 20 21 22 July 29, 2010 – Earnings Release. would negatively impact its revenues by $99 million. Id. That day, First Solar also held a conference call to discuss the LPM defect, during which Gillette made the following statement: Finally in Q2, reflected costs associated with the modular replacement program. During the period from June of 2008 to June of 2009, a manufacturing excursion occurred affecting less than 4% of the total product manufactured within the period. The excursion could result in possible power loss in affected modules. The root cause was identified and subsequently mitigated in June of 2009. Ongoing testing confirms the corrective actions are effective. We have been working directly with impacted customers to replace the affected modules and these efforts are well under way, and in some cases complete. We accrued the estimated full cost of these additional efforts in our Q2 results and Jens will discuss the financial impact in more detail. Id., ¶ 35. Jens Meyerhoff also commented on the LPM defect: During the second quarter, we accrued $17.8 million in cost of sales for 23 24 25 26 27 28 9 Another problem arises from Plaintiffs’ heavy reliance on their experts in the summary judgment briefing. The parties agreed that expert discovery would occur after summary judgment briefing and would not provide a basis for further summary judgment motions. See Doc. 177, ¶ 5 (“Expert discovery shall occur after the Court’s final ruling on motions for summary judgment, and shall not provide a basis for additional summary judgment motions.”). Because expert discovery has not occurred, Defendants argue that Plaintiffs should be precluded from relying on their experts in opposing summary judgment. But the Court clearly cannot grant summary judgment in disregard of expert opinions that would be available at trial. The Court therefore will consider Plaintiffs’ expert submissions. - 22 - 1 2 3 4 expected module replacement costs and our cost of goods sold. In addition, we accrued $5.6 million of operating expenses associated with this process excursion, bringing our total accrued expenses to 27.4 million at the end of the second quarter. Id., ¶ 36. 5 Market analysts had positive comments about beating consensus estimates, but 6 also noted the lower revenue guidance. Cantor Fitzgerald stated: “The company is 7 capacity constrained . . . . This results in a drop in total revenue guidance, but a slight 8 increase in earnings guidance. 9 disappointing.” Id., ¶ 39. Needham noted: “The company raised its full year earnings 10 guidance, but lowered its 2010 revenue outlook, which probably disappointed the Street 11 given the high expectations going into the report, in our view.” Id. We expect that most investors will find this 12 Analysts also commented on the LPM problem. Credit Suisse reported the new 13 accruals and stated, “bears will point out why the charge is being taken more than a year 14 after the company knew about and resolved the issue, and question why a similar issue 15 will not arise again.” Id., ¶ 40. UBS noted: “Potentially concerning takeaways from its 16 2Q10 results. . . . We believe this could be an overhang on the stock as the modules are 17 replaced over the next six months.” Id. 18 Following the July 29 disclosure, First Solar stock decreased by $10.05 per share, 19 or 7.4%. Id., ¶ 42. In an internal email, First Solar noted investor concerns and 20 recognized that the LPM defect caused the stock drop: “Excluding [the LPM defect] we 21 would have achieved [the expected financial numbers]. [The LPM problem] tarnished 22 our flawless execution image. Rumors that we will incur more costs than the Q2 charge. 23 Some fear why not more than 4% and customers saying bigger problem.” Id., ¶ 41. 24 Steinholt also concludes that the LPM problems caused the stock drop: “Absent 25 the LPM problems, First Solar would have reported an estimated 13% higher earnings for 26 2Q10, and not have had to reduce its 2010 revenue guidance by $100 million.” Id. The 27 “LPM expenses and approximately $100 million lost revenues related to the LPM 28 problem explain all, or at least a substantial portion, of the Company-specific stock price - 23 - 1 decline on July 30, 2010.” Id. In other words, Steinholt opines that the “very facts” 2 allegedly omitted by Defendants – the existence of the LPM defect – ultimately led to a 3 drop in stock price that caused Plaintiffs’ loss. A reasonable jury could find from this 4 evidence that Plaintiffs’ have proved loss causation under Daou. 5 B. 6 On February 24, 2011, First Solar announced 4Q10 earnings results, beating the 7 Bloomberg consensus estimate for earnings per share but missing on estimated revenues. 8 Id., ¶ 43. First Solar decreased the high end of its revenue guidance from $3.7-$3.9 9 billion to $3.7-$3.8 billion and increased its earnings per share guidance from $8.75- 10 $9.50 per share to $9.25-$9.75 per share. Id. It noted additional accrued expenses of 11 $8.5 million for the LPM defect. In the related conference call, Gillette explained that 12 “Q4 was impacted by our decision to divert some volumes to expedite the module 13 replacement program,” which was also confirmed by Zhu. Id., ¶ 44. February 24, 2011 – Earnings Release. 14 The next day, analysts commented on the figures, most notably the revenue miss. 15 Mizuho Securities noted: “[R]evs missed guidance somewhat . . . due largely to a 16 decision to accelerate replacement of ~30MW of potentially faulty modules.” Id., ¶ 45. 17 Auriga stated: “We expect bears to raise the issue of revenue falling short of the 18 consensus in both 4Q10 and 1Q11.” Id. Ardour stated: “4Q10 revenues somewhat light, 19 but EPS continues to outperform.” Id. 20 After the disclosure, First Solar stock dropped $8.96 per share, or 5.4%. Id., ¶ 47. 21 But for the LPM problems, Steinholt opines, “First Solar would have beat Bloomberg 22 4Q2010 EPS consensus by 16 cents (as opposed to 7 cents) and avoided reporting a $37 23 million 4Q2010 revenue miss.” Id. Steinholt concludes that “LPM expenses and the 24 lower than expected revenues explains all, or a substantial portion, of the [stock 25 decline].” Id. Given this evidence, a reasonable jury could find that the very facts 26 Defendants allegedly fraudulently concealed – the scope of the LPM defect and its 27 resulting financial impact – were substantial factors in causing Plaintiffs’ loss. 28 - 24 - 1 C. 2 On May 3, 2011, First Solar issued its numbers for 1Q11, beating Bloomberg 3 consensus estimates for earnings per share and revenues. Id., ¶ 48. First Solar also 4 announced additional expenses of $4.5 million for the LPM defect and maintained its 5 revenue and earnings per share guidance for fiscal year 2011. Id., ¶¶ 48-49. Operating 6 income was reduced by $10 million and guidance for operating cash flow was reduced. 7 Id., ¶ 49. May 3, 2011 – Earnings Release. 8 First Solar’s guidance had accounted for some impact due to the heat degradation 9 issue, but this fact was not disclosed in the financial statements. Id. “Unbeknownst to 10 investors, First Solar’s 2011 guidance now incorporated some impact from the heat 11 degradation problem.” Id. Steinholt further notes that “[b]ecause the heat degradation 12 issue was not specifically discussed, or otherwise disclosed or broken out, none of the 13 analysts had an opportunity to comment on the issue in subsequent analyst reports.” Id., 14 ¶ 50. Analysts did express “disappointment that First Solar did not raise guidance.” Id. 15 First Solar stock dropped by $8.35 per share, or 6.2%. Id., ¶ 51. Steinholt opines 16 that “1Q2011 LPM expenses and the impact of the heat degradation issue on the 17 Company’s 2011 guidance had a negative impact on First Solar’s stock price, and, 18 therefore, contributed to its May 4, 2011 stock price decline.” Id. He also notes that the 19 “heat degradation problem negatively impacted reported 2011 revenue guidance by $24 20 million,” resulting in a “$0.20 per share hit to guidance.” Id., ¶ 49. Steinholt concludes 21 that this “would imply a $2.66 per share negative impact” to First Solar’s stock price. Id. 22 Unlike the two prior releases, Steinholt does not suggest that the LPM defect and 23 hot climate degradation “explain[ed] all, or a substantial portion” of the stock decline. 24 Nevertheless, Plaintiffs need not show “‘that a misrepresentation was the sole reason for 25 the investment’s decline in value’ in order to establish loss causation. ‘[A]s long as the 26 misrepresentation is one substantial cause[,] other contributing forces will not bar 27 recovery’ but will play a role ‘in determining recoverable damages.’” Daou, 411 F.3d at 28 1025 (quoting Robbins v. Koger Props., Inc., 116 F.3d 1441, 1447 n.5 (11th Cir. 1997)). - 25 - 1 A reasonable jury could determine that the very facts omitted and misrepresented by 2 Defendants – the effect of the LPM defect and existence of the hot climate degradation 3 issue – were substantial factors in causing the stock to decline and Plaintiffs’ loss. 4 D. 5 On October 25, 2011, Gillette was replaced as CEO. Doc. 374, ¶ 52. First Solar 6 7 October 25, 2011 – Gillette Leaves First Solar. issued a press release that stated the following: 11 The Board of Directors of First Solar, Inc. (NASDAQ: FSLR) today asked its Chairman and company founder, Michael Ahearn, to serve as interim Chief Executive Officer. Ahearn has accepted. Effective immediately, Rob Gillette is no longer serving as Chief Executive Officer, and the Board of Directors thanks him for his service to the company. The Board of Directors has formed a search committee and is initiating a search for a permanent Chief Executive Officer. 12 Id. Several analysts commented on the departure of Gillette. Credit Suisse stated: 8 9 10 13 16 The news is clearly negative . . . the abruptness of the announcement and the terse wording of the release, the fact that earnings will likely be next week and the CEO is stepping down just a week in advance, and the fact that FSLR had planned to host a reception with the CEO on Nov 15 all sound unfortunately quite concerning. 17 Id., ¶ 53. Goldman Sachs stated: “[T]he terse nature of today’s announcement, its timing 18 and the lack of a permanent replacement argue that this was an unanticipated event.” Id. 19 Deutsche Bank stated: “The press release is short on details and we believe the news 20 (along with the timing of the announcement) is likely to raise a lot of investor questions 21 about the health of overall industry as well as near/longer term profitability outlook of the 22 company.” Id. Raymond James stated: “So, what could have prompted this sudden 23 change? . . . On the bearish side would be an accounting scandal. . . . A less damaging 24 but still negative scenario would be the board sacking Gillette ahead of a major earnings 25 miss or guidance cut.” Id. Canton Fitzgerald, Morgan Stanley, PacificCrest, Wunderlich, 26 and Jeffries echoed similar sentiments. Id. 14 15 27 Immediately following this news, First Solar’s stock price declined $14.48 per 28 share, or approximately 25%. Id., ¶ 54. Steinholt opines that “First Solar’s press release - 26 - 1 disclosing [Gillette’s] departure clearly was the reason” for the stock decline. Id. The 2 next day, First Solar issued its 3Q11 results, but did not hold a conference call. Id., ¶ 55. 3 The stock price rebounded by $2.84 per share on October 25 and $6.79 per share on 4 October 26, 2011. Id., ¶ 57. 5 The October 25 press release that caused the stock price to drop did not include 6 any information about the company’s financial performance, the LPM defect, or the hot 7 climate degradation issue. No financial statements were released that revealed additional 8 financial impacts from the LPM or hot climate defects. Thus, Plaintiffs have failed to 9 present evidence that the stock price decline was caused by Defendants’ misrepresenting 10 or omitting information about those two defects. The press release concerned Gillette’s 11 departure, and Plaintiffs have presented no evidence that he left First Solar because of 12 Defendants’ alleged fraud. Although some market analysts speculated that Gillette’s 13 termination could be due to internal company problems, such speculation was itself not 14 related to the facts allegedly misrepresented and omitted by Defendants. 15 therefore have failed to present evidence from which a reasonable jury could find that 16 their loss was caused by the facts allegedly misrepresented or omitted by Defendants. Plaintiffs 17 The Court rejects Plaintiffs’ argument that a jury could simply infer a connection 18 between Gillette’s departure and the alleged fraud. Plaintiffs have provided no evidence 19 that Gillette left First Solar because of the alleged fraudulent activity, and any such 20 inference would be based on pure speculation. The Court will enter summary judgment 21 with respect to the stock decline on October 25, 2011. See Celotex, 477 U.S. at 322.10 22 E. 23 On December 14, 2011, First Solar reduced its earnings guidance from $6.50- 24 $7.50 per share to $5.75-$6.00 per share and reduced revenue guidance from $3.0-$3.3 25 billion to $2.8-$2.9 billion, missing Bloomberg consensus estimates. Doc. 374, ¶ 59. December 14, 2011 – Guidance Updates. 26 10 27 28 This conclusion provides an illustration of how the test in Daou, Berson, and Nuveen does not conflate transaction and loss causation. Plaintiffs may be able to show that Defendants’ alleged misrepresentations caused them to purchase First Solar stock at a particular price, but they cannot show that those misrepresentations caused the losses resulting from Gillette’s departure. As a result, they cannot recover for those losses. - 27 - 1 First Solar also announced restructuring charges of $0.85 per share during 4Q11, which 2 included eliminating 100 positions. 3 earnings per share and revenues, both of which fell below Bloomberg’s consensus 4 estimates. Id., ¶ 60. In addition, Ahearn stated in the press release that First Solar was 5 “recalibrating our business to focus on building and serving sustainable markets rather 6 than pursuing subsidized markets.” Id. Id. First Solar updated its 2012 guidance for 7 First Solar stock fell $9.12 per share, or 21.4%. Id., ¶ 61. Steinholt opines that 8 First Solar’s “reduced 2011 guidance, and initial 2012 guidance significantly below 9 expectations, explains the Company-specific portion of First Solar’s December 14, 2011, 10 price decline.” Id. Steinholt attributes the low guidance to the “heat degradation problem 11 as the Company was changing its focus to larger scale projects in hotter climates.” Id., 12 ¶ 60. From this evidence, a reasonable jury could conclude that the facts omitted by 13 Defendants relating to the hot climate defect revealed the true financial condition of First 14 Solar and were a substantial factor in the stock price decline. 15 F. 16 On February 28, 2012, First Solar announced its 4Q11 numbers. Id., ¶ 62. These 17 reflected substantial losses, which included “(a) a non-cash goodwill impairment charge 18 of $3.90 per share; (b) restructuring charges of $0.43 per share (below $0.85 per share 19 announced on December 14, 2011); and (c) $1.67 related to warranty and cost in excess 20 of normal warranty expense, for a total of $6.00 per share.” Id. First Solar met the low 21 end of its revenue guidance for fiscal year 2011. Id. Revenue and cash flow guidance for 22 2012 were also lowered. Id., ¶ 63. February 28, 2012 – Earnings Release. 23 In the conference call, Ahearn commented about the additional warranty expenses: 24 This quarter we incurred $125.8 million in additional warranty reserves to reflect an updated estimate of costs related to the manufacturing excursion that occurred between June 2008 and June 2009. As previously disclosed, a small percentage of product manufactured during that time period may experience premature power loss once in the field. First Solar identified and addressed the manufacturing excursion in June 2009 and later initiated a voluntary remediation program that goes above and beyond our standard 25 26 27 28 - 28 - 1 2 warranty obligations. The remediation program includes module removal, testing, replacement and logistical services and additional compensation payments to customers under certain circumstances. 3 4 5 6 7 8 A large volume of claims made under the remediation program were processed in the fourth quarter, and we identified the significant increase in remediation costs under the terms of our voluntary program. Our estimates now benefit from having processed over 95% of the total claims submitted under the life of the program. The total cost of remediating the manufacturing excursion that occurred from June 2008 to June 2009 now stands at $215.7 million including $145.6 million above and beyond our standard warranty. 9 10 11 12 There are approximately 4% of the claims submitted for which we have not yet been able to determine if remediation is required. If it is determined that these claims should be remediated, there’s at least the potential for additional costs of as much as $44 million. Id., ¶ 64. Widmar broke down the additional costs during the call: 13 14 15 16 17 18 The first item is the cost to remove, replace and provide logistical services related to the manufacturing excursion. In the fourth quarter we expensed $23.9 million for these efforts and have expensed $99.7 million to date. The second item is expected payment to customers under certain conditions for power loss prior to the remediation of the customer’s system. In the fourth quarter we expensed $31.8 million for this compensation and have expensed $45.9 million to date. 19 20 21 22 23 24 25 26 27 28 The third item, $70.1 million, is due to an increase in the expected number of replacement modules above our standard warranty rate required for our remediation efforts. Id., ¶ 65. He then discussed the hot climate degradation: Finally, we recognized a $37.8 million charge to increase our warranty accrual. We believe our PV modules are potentially subject to increased failure rates in hot climates. As our geographic mix of sales has shifted to hot climates we have increased our warranty accrual. Our experience has shown that our warranty rate for hot climates are slightly higher than the return rates for temperate climates. With this change, our standard warranty accrual rate has been increased by one percentage point to account for potential returns going forward. We will continue to review our warranty accrual rate in the future and will adjust the rate as appropriate to - 29 - 1 2 reflect our actual experience. Id. 3 During the question and answer portion of the call, an analyst noted that Ahearn 4 had previously said that all the warranty expenses had been taken into account in prior 5 financials. He then asked what had changed from November 3 to the end of the quarter. 6 Id., ¶ 66. Ahearn responded: 7 10 [W]e processed a large volume of the claims that were made over the life of the program in Q4. For the last quarter we reserved and reported based on the best available information then and we discovered in processing the claims a lot of additional exposure, which is reflected in the charges that we’ve taken in Q4. 11 Id. Another analyst asked about the hot climate degradation issue and requested Ahearn 12 to give some quantitative data about the problem. Id., ¶ 67. Ahearn responded that First 13 Solar lacked data but that it was taking a conservative approach to the warranty rate and 14 would continue to reevaluate as it gathered more results. Id. 8 9 15 Analyst reaction to the earnings misses was tempered. Ardour noted: “We believe 16 the 4Q11 miss was somewhat expected.” Id., ¶ 69. Deutsche Bank, Goldman Sachs, and 17 Morningstar noted that 2012 guidance was “intact.” Id. But analysts expressed more 18 concern over the LPM defect and hot climate degradation issues, noting that investors 19 should be wary of additional future warranty accruals, especially considering First Solar 20 had previously stated that it believed that bulk of warranty risk was behind it. Id., ¶ 70. 21 On February 29, 2012, First Solar filed its 2011 Form 10-K disclosing that “the 22 Company had taken a $13.8 million module inventory write-down primarily as a result of 23 the voluntary remediation efforts.” Id., ¶ 71. Credit Suisse released an analyst report 24 addressing “credibility and brand concerns that now likely exist with investors and 25 customer partners” as a result of the ever-increasing costs attributed to the LPM defect. 26 Id. The report also stated that additional charges could come in the future, and noted the 27 hot climate degradation issue. Id. 28 Gordon Johnson of Axiom commented about First Solar’s situation on CNBC: - 30 - 1 2 3 4 5 6 7 8 9 10 11 Their stuff is not working in the field. That’s effectively what’s happening. Forget about the fact that they massively missed earnings. This is a huge red flag. It brings into question whether they will be able to do projects here in the U.S. This is a game changer. We heard from our checks in Germany that this is not a one-time issue. And the fact that banks are becoming cautious on lending to First Solar projects suggests that there is a fundamental problem with their modules. . . . This is new. This is huge, and it is potentially going to be a game ender. This has been a problem that First Solar has had in the past, and as was asked on the call by one of our competitors, they told us that this problem was, you know, was fixed. And it is not fixed. So, we need to look into this further. The company will not talk to us. So, we definitely need to do some more checks to see that we are accurate. But at first glance, this is quite negative. 12 13 Id., ¶ 73. 14 First Solar’s stock fell by $4.10 per share, or 11.26%, on February 29. Id., ¶ 74. 15 The next day, it fell an additional 5.8%. Id. Steinholt states “that the disclosures relating 16 to the LPM and heat degradation issues explains all, or at least a substantial portion, of 17 the Company-specific stock price declines on February 29, 2012 and March 1, 2012.” Id. 18 He notes that many costs related to the two defects were quantified and disclosed in the 19 earnings release, including “(a) $1.67 per share for warranty and cost in excess of normal 20 warranty expense, (b) additional $44 million in costs related to outstanding claims, or 21 approximately $0.45 per share, and (c) $13.8 million in module inventory writedown, or 22 $0.16 per share.” Id., ¶ 72. Steinholt notes that the impact of the two defects on future 23 sales was “difficult to quantify precisely.” Id., ¶ 73. From this evidence, a reasonable 24 jury could find that Defendants’ alleged concealment of the true scope of the defects 25 along with alleged accounting violations caused a negative financial impact to First 26 Solar’s sales, a drop in revenue and guidance, and Plaintiffs’ losses. 27 G. Conclusion. 28 Plaintiffs have presented sufficient evidence to avoid summary judgment on loss - 31 - 1 causation with respect to five of the six alleged stock price declines. Plaintiffs have 2 failed to do so for the stock decline that followed Gillette’s departure on 3 October 25, 2011. Defendants’ motion will be granted with respect to the losses that 4 occurred on that date, and denied with respect to the remaining drops. 5 V. 6 Remaining § 10(b) Elements. Defendants also challenge Plaintiffs’ ability to prove that Defendants made 7 material misrepresentations or omissions with scienter. 8 intertwined and dependent upon similar facts. These elements are closely 9 In order to “fulfill the materiality requirement ‘there must be a substantial 10 likelihood that the disclosure of the omitted fact would have been viewed by the 11 reasonable investor as having significantly altered the ‘total mix’ of information made 12 available.’” Basic Inc. v. Levinson, 485 U.S. 224, 231-32 (1988) (quoting TSC Indus., 13 Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976)). “[Section] 10(b) and Rule 10b-5(b) do 14 not create an affirmative duty to disclose any and all material information.” Matrixx 15 Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1321 (2011). “Silence, absent a duty to 16 disclose, is not misleading under Rule 10-b-5.” 17 “Determining materiality in securities fraud cases ‘should ordinarily be left to the trier of 18 fact.’” SEC v. Phan, 500 F.3d 895, 908 (9th Cir. 2007) (quoting In re Apple Computer 19 Secs. Litig., 886 F.2d 1109, 1113 (9th Cir. 1989)). Basic, 485 U.S. at 239 n.17. 20 Plaintiffs must also “prove that the defendant acted with scienter, ‘a mental state 21 embracing intent to deceive, manipulate, or defraud.’” Tellabs, Inc. v. Makor Issues & 22 Rights, Ltd., 551 U.S. 308, 319 (2007) (quoting Ernst & Ernst v. Hochfelder, 425 U.S. 23 185, 193-94 (1976)). A securities plaintiff may also establish scienter under § 10(b) by 24 showing defendants acted with “deliberate recklessness.” In re Silicon Graphics Sec. 25 Litig., 183 F.3d 970, 977 (9th Cir. 1999). 26 recklessness’” is required. Id. “[T]he danger of misleading buyers must be actually 27 known or so obvious that any reasonable man would be legally bound as knowing.” 28 Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1568-69 (9th Cir. 1990). - 32 - A “strong inference of . . . ‘deliberate 1 Plaintiffs’ allege several acts of fraud spanning nearly four years. They focus on 2 the two general product defects mentioned above: the LPM problem and the hot climate 3 degradation. Plaintiffs assert Defendants committed three acts of fraud with respect to 4 each defect: (a) failing to disclose the defect to the public, (b) concealing the true scope 5 of the problem from the public, and (c) intentionally underestimating the financial impact 6 of the defect on financial statements. Plaintiffs also assert that Defendants manipulated 7 an internal accounting metric, CpW, which was included in their SEC filings. 8 9 A. The LPM Defect. 1. Failure to Disclose. 10 In April 2008, Koralewski sent an email to Eaglesham regarding STBi data at First 11 Solar’s Perrysburg, Ohio plant: “FYI, not a real good trend and yes there are more than 12 10 data points in the monthly groupings.” Doc. 364-6 at 48. In 2Q09, Koralewski 13 determined that approximately 2.9 million modules could potentially experience -20% 14 STBi, which, according to Plaintiffs, demonstrated the severity of the LPM defect. 15 Doc. 364-7 at 73. In June 2009, Eaglesham emailed Koralewski and stated that “[u]ntil 16 we have a tighter window we should consider the possibility that 10% of the product 17 produced in the last 10 months is affected.” Doc. 364-1 at 2. On May 31, 2009, 18 Koralewski sent an email to another First Solar employee noting that “we have a rather 19 serious quality problem that reared up late last week that has escalated over the weekend. 20 . . . We have a significant number of customers who are complaining about lower power 21 modules and it looks real.” Doc. 364-7 at 116. Zhu and Sohn were also made aware of 22 the defect. Docs. 364-8 at 2; 365-1 at 38. Ahearn began attending meetings addressing 23 the status of the LPM defect. Doc. 364-7 at 100. 24 In July 2009, Ahearn was informed that “[t]he numbers are low, less than 5 25 percent of the total array, consisting of modules that are from the 159K population 26 (potential LPM) . . . . If this holds, the team will recommend no customer engagement as 27 this will not be detectable.” Doc. 364-8. Ahearn responded that “[w]e’ll have to keep 28 our fingers crossed.” Id. Low power team meeting notes sent between Ahearn, Sohn, - 33 - 1 Meyerhoff, and Eaglesham stated that they “[m]ust be cautious not to leak unnecessary 2 information either internally or externally.” Id. at 57. In preparation for the 2Q09 3 conference call, Sohn noted that “[t]here should not even be a question in the list about 4 [LPM]. As far as the public is concerned, it does not exist . . . .” Doc. 364-9 at 19. In 5 October 2009, Meyerhoff wrote to Gillette that LPM is one of “the biggest smoking 6 gun[s] we have at the company.” Doc. 364-1 at 7. In May 2010, Sohn told two First 7 Solar employees that “[w]e should NOT be mentioning an ‘excursion’ publicly. E-staff 8 has consciously made this decision . . . .” Id. at 133 (emphasis in original). 9 Defendants argue that they had no duty to disclose the LPM defect because: 10 (1) First Solar’s alleged failure to disclose did not render other disclosed information 11 misleading and (2) the defect did not become material until July 2010. 12 The first argument overlooks statements made prior to disclosure of the defect. 13 For example, in a February 2009 conference call, an analyst asked Sohn to comment on 14 “problems with the line this quarter . . . to make sure there was no manufacturing 15 problems around, or that accounts for that line calc being down.” Doc. 372-1 at 402-03. 16 Sohn appears to have dodged the question, responding instead that the holidays may have 17 attributed to “line calc” being down and that First Solar was “very cautious and careful 18 and [has] a high degree of expectation in terms of the way we operate the factories.” Id. 19 at 403. 20 performance and our knowledge of field performance allows us to have faith, high 21 confidence that our product is delivering in the field.” 22 statements were made when First Solar knew of the LPM problem and at least some 23 internal estimates had suggested it was severe. See Dura, 544 U.S. at 341. In June 2009, Eaglesham told investors that “our track [record] of field Doc. 372-3 at 50. These 24 Defendants’ second argument – that the LPM defect did not become material until 25 July 2010 – is not one the Court can accept as a matter of law. In Matrixx, the Supreme 26 Court considered whether “a company’s failure to disclose reports of adverse events 27 associated with a product” was material for purposes of securities fraud “if the reports do 28 not disclose a statistically significant number of adverse events.” 131 S. Ct. at 1313. The - 34 - 1 plaintiffs brought suit after it was discovered that the company had received reports that 2 one of its products, Zicam, may cause anosmia. Id. The Court found that even a non- 3 statistically-significant number of adverse events could satisfy the materiality 4 requirement because “medical professionals and regulators act on the basis of evidence of 5 causation that is not statistically significant, [and] it stands to reason that in certain cases 6 reasonable investors would as well.” Id. at 1321. Although companies do not have a 7 duty to disclose all material information to investors, the adverse events reports in 8 Matrixx were not merely anecdotal, but instead “plausibly indicated a reliable causal link 9 between Zicam and anosmia.” Id. at 1322. The problem was material because it was 10 likely that a reasonable investor would consider this information to have significantly 11 altered the total mix of information made available. Id. at 1323. 12 Like the defendants in Matrixx, Defendants here argue that Koralewski’s initial 13 estimate of 75,000 modules in 2Q09, which resulted in a $1.8 million LPM Remediation 14 Accrual, was less than 1% of First Solar’s net income and thus the Disclosure Committee 15 correctly deemed it non-material. They also argue Koralewski’s 3Q09, 4Q09, and 1Q10 16 estimates, which represented 1.4%, 2.2%, and 2.6% of quarterly net income, respectively, 17 were immaterial as well. In essence, they ask the Court to identify, as a matter of law, the 18 percentage of quarterly net income at which the financial impact of a product defect 19 becomes material. But the test for materiality is factual – whether a misrepresented or 20 omitted fact would have been viewed by a reasonable investor as having significantly 21 altered the total mix of information made available – and Defendants fail to provide 22 undisputed evidence that a reasonable investor would consider a product defect irrelevant 23 if it constitutes, say, only 1.5% of net income. 24 Moreover, Plaintiffs have presented evidence that First Solar knew the LPM defect 25 was a serious problem that would concern investors well before it was disclosed. First 26 Solar executives were careful not to release information about the LPM defect to the 27 public, even deciding to delay informing customers until the customers discovered the 28 problem themselves. Their evident concern about the potential market reaction to the - 35 - 1 LPM defect could be viewed by a jury as confirming that such information would be 2 material to reasonable investors. 3 Defendants argue that the Individual Defendants relied on the advice of lower- 4 level employees, and that there is no evidence to suggest they intended to deceive 5 investors by failing to disclose the LPM problem sooner. But the emails cited above 6 create a genuine issue of fact as to whether Ahearn, Sohn, Eaglesham, Meyerhoff, Zhu, 7 and Gillette were personally involved in managing the LPM problem. Several emails 8 indicate that Defendants wanted to keep the information from becoming public, and took 9 steps to avoid disclosing it in press releases and conference calls. The fact that lower- 10 level employees may have recommended these practices does not necessarily absolve 11 Defendants of responsibility.11 12 In light of the evidence set forth above, the Court concludes that Plaintiffs have 13 established genuine issues of material fact regarding whether Defendants had a duty to 14 disclose the manufacturing defect prior to July 2010, and whether such information 15 would have been material to a reasonable investor. This is not simply a case of a 16 company refraining from “bury[ing] the shareholders in an avalanche of trivial 17 information.” In re Convergent Tech. Sec. Litig., 948 F.2d 507, 516 (9th Cir. 1991). A 18 jury could conclude that a reasonable investor would consider the existence of the LPM 19 defect as significantly altering the “total mix of information made available.” Basic, 485 20 U.S. at 231-32 (internal quotation marks omitted). 21 communications between the Individual Defendants prior to the disclosure of the LPM 22 defect, a reasonable jury could find that Defendants intended to deceive investors by 23 concealing its existence. 24 25 2. In addition, based on the Concealment. Plaintiffs claim that First Solar’s initial disclosure of the LPM defect in 2Q10 was 26 27 28 11 The Court notes Plaintiffs’ failure to connect Widmar to the alleged scheme to conceal the existence of the LPM defect from the public. In fact, Widmar did not become CFO of First Solar until early 2011. As such, he cannot be responsible for this alleged fraud. - 36 - 1 misleading because it bounded the problem to “less than 4% of the total product 2 manufactured within the period,” which is equivalent to approximately 400,000 modules 3 or 30MW. Doc. 359-1 at 41. The initial disclosure also stated that “[w]e have been 4 working directly with impacted customers to replace the affected modules and these 5 efforts are well underway and, in some cases, complete.” Id. This disclosure was 6 repeated in a substantially similar form in First Solar’s quarterly filings until 4Q11. 7 Plaintiffs assert that Ahearn, Gillette, Eaglesham, Sohn, Meyerhoff, and Zhu reviewed 8 and approved this disclosure before it was released. Doc. 363 at 23. 9 In April 2010, Koralewski was informed via email that “[t]he 415K is the limit we 10 have at this time. It is based on the probability of returns, not necessarily the total 11 LPM[.]” Doc. 364-3 at 78. In June 2010, First Solar discovered that the LPM population 12 could be as large as 1.4 million modules. Doc. 365-9 at 43. In December 2010, 13 Koralewski noted: “We know that there are more LPM out there (warranty worse than 14 10%) of approximately 500,000 (addition to what is in model)[.]” Id. at 56. 15 Plaintiffs also claim First Solar misrepresented the status of its remediation 16 program to investors. An internal report, which was sent to Zhu, noted that as of July 22, 17 2011, over 2,000 claims had not yet been assessed for validity. Doc. 368-2 at 8. On 18 November 3, 2011, Widmar stated that “[w]e have substantially concluded the 19 remediation programs associated with this manufacturing excursion.” Doc. 311 at 59. In 20 an email circulated between Kallenbach, Koralewski, Zhu and Schumaker discussing the 21 upcoming 3Q11 earnings call and agreeing to state that the remediation programs had 22 substantially concluded, Kallenbach responded: “To be crystal clear the operative term is 23 ‘substantially concluded.’” Doc. 368-4 at 29. At his deposition, Thomas Kuster testified 24 that at the end of 3Q11 the remediation programs “had not been substantially concluded. 25 There was still work to be done.” Doc. 364-1 at 21. In 4Q11, First Solar added $125.8 26 million to the LPM Remediation Accrual in its earnings statement. 27 conference call, Ahearn explained that the additional accrual occurred because of a late 28 - 37 - In the related 1 influx of customer claims at the end of the quarter.12 2 Defendants claim that there is no evidence that the analysis underlying 3 Koralewski’s calculation limiting the number of LPMs to 4% of the total product 4 manufactured (or 400,000 modules) was incorrect. 5 declaration, which states that he used his best scientific and engineering judgment in 6 arriving at this conclusion. Doc. 324, ¶ 7. In addition, other technical personnel agreed 7 with his analysis. 8 demonstrate a higher number of LPMs actually “refer to a larger universe of modules 9 than the population of LPMs manufactured during the excursion.” Id., ¶ 18. This was 10 because “we started using a statistical Monte Carlo model to estimate the total number of 11 modules, including good modules, that First Solar would have to rip and replace to 12 complete the remediation effort.” Id. This did not “differentiate LPMs from modules 13 that experienced power loss for other reasons.” Id. Id., ¶ 14. They point to Koralewski’s Koralewski claims that any documents purporting to 14 The evidence presented by Plaintiffs and Defendants creates an issue of fact on 15 whether the total population of LPMs was larger than disclosed in July 2010. The emails 16 cited by Plaintiffs do not differentiate between LPMs generally and LPMs produced as a 17 result of the excursion, and they identified a potential population of LPMs much larger 18 than the 400,000 that was later disclosed. Viewing the facts in a light most favorable to 19 Plaintiffs, as the Court must do at the summary judgment stage, the Court concludes that 20 a reasonable jury could find that the 4% disclosure was materially misleading in light of 21 the information known to Defendants. 22 In addition, the Court finds a question of fact regarding whether Widmar’s 23 statement that the remediation claims process had substantially concluded was misleading 24 to investors. Defendants assert that 89% of the claims had been resolved when Widmar 25 made that statement. Doc. 311 at 59. Defendants also claim that the charge related to a 26 large influx of customer claims at the end of the quarter. But evidence provided by 27 28 12 Importantly, the Individual Defendants do not dispute that they authorized all the statements made in First Solar’s SEC filings and conference calls. Doc. 311 at 47. - 38 - 1 Plaintiffs calls this explanation into question. Over 2,000 claims remained outstanding at 2 the end of July 2011, and 4Q11 brought with it a major accrual charge for remediation 3 after Widmar’s statement. A reasonable jury could find that Widmar’s November 3 4 statement was materially misleading. 5 Defendants argue that they reasonably relied on the data and analysis provided by 6 highly trained scientists and engineers and thus lacked the intent to deceive investors 7 when they made statements in earnings releases and conference calls. 8 Plaintiffs must show scienter with respect to each Individual Defendant. See Apollo, 774 9 F.3d at 607. Scienter may be imputed to “individual defendants in some situations, for 10 example, where we find that ‘a company’s public statements [are] so important and so 11 dramatically false that they would create a strong inference that at least some corporate 12 officials knew of the falsity upon publication.” Id. at 607-08. Here, the 4% disclosure 13 and Widmar’s statement were made in connection with earnings releases, with which the 14 Individual Defendants were heavily involved. And the LPM defect was a major issue 15 facing First Solar at the time. In fact, it was considered “the biggest smoking gun” at the 16 company. A reasonable jury could find that Defendants authorized these statements with 17 the intent to mislead investors, or at least acted recklessly in approving such statements. 18 See Daou, 411 F.3d at 1015. 19 3. Generally, Underaccrual. 20 Plaintiffs submit the declaration of D. Paul Regan, a CPA of more than 40 years, 21 to support their argument that Defendants intentionally underestimated the financial 22 impact of the LPM defect in their financial statements. Doc. 373, ¶¶ 5-6. Regan opines 23 that First Solar violated GAAP in accruing potential warranty claims related to the LPM 24 problem. Id., ¶¶ 42-46. Specifically, based on the information available at the time, First 25 Solar “failed to make appropriate MD&A disclosures concerning the risk that LPM- 26 related warranty estimates were likely to change.” Id., ¶ 45. Regan identifies several 27 other improper accounting procedures and violations of GAAP. Id., ¶¶ 59-70; 75-81. In 28 addition, he notes that PwC did not audit several key disclosures, such as the 4% - 39 - 1 disclosure in July 2010. Id., ¶ 91. Moreover, “PwC’s audits were not designed to obtain 2 evidence such as e-mails among First Solar’s employees.” Id., ¶ 92. PwC also required 3 First Solar to provide verifications of facts as well as “numerous representations 4 regarding its financial statements” on which PwC could rely in completing its audits. Id., 5 ¶ 93. 6 Defendants assert that it is undisputed that Schumaker did not believe that it was 7 reasonably possible that there would be an increase to the LPM Remediation Accrual that 8 would be material to First Solar’s financial condition. But a jury could choose not to 9 credit Schumaker’s subjective belief given evidence that Defendants may have been 10 ignoring the true scope of the LPM defect. And Defendants’ argument that Regan’s 11 conclusions should not be substituted for the engineering and commercial judgments of 12 First Solar employees overlooks the fact that Defendants do not specifically challenge 13 any of Regan’s findings. These are factual and credibility issues for the jury to resolve. 14 The evidence cited by Plaintiffs creates a genuine dispute of fact regarding 15 whether First Solar engaged in accounting violations. 16 question the accounting methodologies used by First Solar after the LPM defect was 17 disclosed. As noted above, there is evidence that Defendants made misrepresentations 18 regarding the status of the remediation programs. Taken together, a reasonable jury 19 could find that First Solar engaged in accounting fraud. Regan’s analysis calls into 20 Defendants again assert that they were entitled to rely on the analysis provided by 21 lower-level employees. They assert that First Solar maintained a rigorous disclosure 22 process and that PwC audited and confirmed its financial statements. But Regan opines 23 that PwC relied on misrepresentations made by Defendants regarding the facts underlying 24 their financial statements. “If it is true that defendants withheld material information 25 from their accountants, defendants will not be able to rely on their accountant’s advice as 26 proof of good faith.” 27 Defendants do not dispute that PwC was not responsible for confirming the validity of 28 several key facts underlying First Solar’s justification for certain accounting practices. Provenz v. Miller, 102 F.3d 1478, 1491 (9th Cir. 1996). - 40 - 1 And there is a question of fact regarding whether First Solar misrepresented facts on 2 which PwC based its audits. From the same evidence cited above, a reasonable jury 3 could find First Solar engaged in accounting to conceal the true scope of the LPM defect 4 from investors. 5 B. 6 Hot Climate Degradation. 1. Failure to Disclose and Concealment. 7 Plaintiffs assert that Defendants discovered the hot climate degradation issue in 8 November 2009 when the Director of Product management disputed First Solar’s 9 representation that modules would degrade at a rate of 0.7%-0.8% in hot climates. 10 Doc. 365-5 at 30. He warned that “[f]ield data is noisy, leading to inability to draw 11 definitive conclusion on long term degradation.” Doc. 369-1 at 10. In January 2010, an 12 employee noted that the “new degradation rates are higher [than] expected for hot 13 climates.” 14 Performance and Production, along with a technical team, provided more data and 15 analysis regarding degradation rates and concluded that “total system energy yield in the 16 first 5 years would be less than our current guidance based on -0.7% annual degradation.” 17 Doc. 369-2 at 13. She noted that “there is a 95% chance that the true hot climate PV 18 system degradation is greater than 0.7%/year.” Id. at 20. The team noted that “First 19 Solar should contemplate a change to external guidance for degradation rates of systems 20 and modules installed in hot climates.” Id. at 13. In addition, the team concluded that the 21 data showed modules would “fall[] short of customer expectations by year 7.” Id. 22 Koralewski read the report and concluded that “it is a nice piece of work and data based 23 as we can get at this time.” Doc. 369-3 at 58. Id. at 96. In April 2010, Adrianne Kimber, First Solar’s Director of 24 On March 17, 2011, Eaglesham was notified that the issue was raised in a staff 25 meeting and “caused quite a bit of excitement about what should/shouldn’t be changed in 26 our financial assumptions.” Id. at 65. Afterwards, an email was sent to First Solar 27 employees, including Meyerhoff and Eaglesham, which addressed the hot climate issue 28 and noted that “[u]ntil we receive executive approval to modify our guidance, there is no - 41 - 1 change to our degradation guidance in any region.” 2 presentation was made to “[o]rient E-Staff to stabilization issue,” which noted that 3 “hotter sites drop faster, more severely.” Doc. 369-4 at 3, 10. Defendants do not dispute 4 that the seven Individual Defendants were members of E-Staff. Meyerhoff, Zhu, and 5 Sohn admitted that they were part of E-Staff in their depositions. Doc. 364-1 at 118, 170, 6 215. Id. at 70. In late March, a 7 In order to allegedly conceal the defect from customers, Plaintiffs claim 8 Defendants “de-rated” modules. De-rating is the “process by which First Solar labeled 9 modules with wattage lower than the wattage at which the module tests, to accommodate 10 [the] exponential part of the [hot climate] degradation.” Doc. 363 at 49 n.38. De-rating 11 was the “simplest, fastest solution,” but would result in a large impact to profit margin. 12 Doc. 369-4 at 14. 13 Doc. 369-9 at 2. In an email to Sohn and Meyerhoff, Kallenbach listed the options for 14 dealing with the defect: “(1) Change our label from +/-5% to +5/-10%, (2) Change the 15 derate so that no (almost no) modules fall below -10%, (3) Change the derate so that no 16 (almost no) modules fall below -5%, (4) Offer a system level performance warranty in 17 lieu of a module performance warranty, (5) Do nothing.” Id. at 14. Eaglesham noted that a large financial impact was imminent. 18 On April 27, 2011, Eaglesham informed E-Staff and the Board of Directors that 19 modules were degrading at a rate of 11% in hot climates. Doc. 364-1 at 240. Mitigation 20 options, including de-rating, were presented, and Eaglesham informed the Board that the 21 impact of de-rating would be $30-$60 million in 2011. Id. at 241. Ultimately, the defect 22 and its financial impact ($37.8 million) were not disclosed until the 4Q11 release and a 23 conference call in February 2012, nearly a year after Eaglesham’s presentation. 24 Defendants argue that this evidence is misleading because the data was based on 25 an assumption that the modules would degrade linearly. In that case, degradation would 26 be worse than 0.8% per year. But, they assert, modules actually did not degrade linearly, 27 they experienced higher degradation during their first few years in operation, and thus no 28 warranty concerns existed. This argument overlooks evidence that Eaglesham later - 42 - 1 concluded that modules in hot climates were degrading at a rate of 11%, and that this was 2 going to result in a large financial impact to First Solar. 3 A reasonable jury could find from the evidence that First Solar’s representation 4 that its modules degraded at a rate of 0.7%-0.8% in hot climates was misleading. A 5 reasonable jury could also find that Defendants should have disclosed the hot climate 6 problem sooner and that Defendants concealed the problem from customers to avoid 7 disclosure. The evidence indicates that Eaglesham, Sohn, Meyerhoff, and other members 8 of E-Staff knew about the issue and spent several months trying to mitigate its effects. In 9 April 2011, Eaglesham reported his findings to E-Staff, which concluded that the hot 10 climate degradation issue could have a financial impact of up to $60 million. At that 11 point, all Individual Defendants knew the problem was significant. 12 In addition, Defendants’ concealment of the issue from customers evidences a 13 desire to keep the issue from reaching investors, especially after First Solar had already 14 disclosed the LPM problem less than a year prior. Like the LPM problem, a jury could 15 conclude that a reasonable investor would consider the existence of the hot climate 16 problem as significantly altering the total mix of information made available. 17 The evidence also creates a question of fact about whether Defendants acted with 18 intent to deceive investors. Defendants argue that only Eaglesham knew of the issue and 19 that he did not believe it to be a problem. But Eaglesham presented his findings to the E- 20 Staff, which included several, if not all, of the Individual Defendants. A jury might also 21 doubt that Eaglesham consider the defect to be a non-problem when he knew it could cost 22 First Solar up to $60 million. What is more, a jury could find that Defendants concealed 23 the defect for several months before disclosing it, and considered five alternative 24 mitigation strategies, which included doing nothing. Instead of notifying customers 25 about the problem, First Solar de-rated modules. A reasonable jury could find that 26 Defendants concealed the existence of the hot climate defect with the intent to mislead 27 investors, or at the very least, acted recklessly in failing to disclose the problem to 28 customers and investors. - 43 - 1 2. Underaccrual. 2 Plaintiffs assert that Defendants concealed the existence of the hot climate 3 degradation for several quarters by engaging in accounting violations so that investors 4 could not learn of the problem through SEC filings. Regan, Plaintiffs’ expert, concludes 5 that Defendants retroactively applied the $37.8 million accrual for the hot climate defect 6 that related to modules shipped between 3Q09 through 2Q11. Doc. 373, ¶ 89. He also 7 concludes that Defendants violated GAAP by failing to increase its warranty accrual once 8 it quantified the financial impact of the defect in 1Q11, at which point it was both 9 qualitatively and quantitatively material. Id. Instead, the accrual was delayed until 10 4Q11. Id. 11 Defendants argue that they sufficiently accounted for the financial impact of their 12 mitigation strategies in their financial statements. But Plaintiffs provide expert testimony 13 that First Solar committed several GAAP violations regarding the hot climate issue, 14 giving rise to a genuine dispute of fact that cannot be resolved by summary judgment. 15 C. 16 Plaintiffs argue that Defendants manipulated CpW by excluding and delaying 17 recognition of costs related to the LPM problem and hot climate defect in the CpW 18 calculation, as well as excluding the effects of de-rating. Lower CpW indicated greater 19 manufacturing efficiency, but is not a GAAP metric. Nonetheless, investors were aware 20 of this figure and it was disclosed in First Solar’s SEC filings. Plaintiffs assert that CpW 21 was improperly manipulated by one penny in 3Q10, from $0.86 to $0.85. They also 22 point to the internal investigation that occurred relating to CpW. CpW. 23 Defendants argue that CpW includes costs only for manufacturing modules in the 24 current reporting period. Remediation and warranty costs were associated with modules 25 produced in earlier quarters and had no effect on manufacturing. Thus, when First Solar 26 disclosed the LPM defect, it advised investors in 2Q10 that CpW did not include costs 27 related to the remediation program. Doc. 311 at 64. 28 In his declaration, Meyerhoff states that “CpW is a metric used throughout the - 44 - 1 photovoltaic industry [and] is not a GAAP metric and does not have a standard 2 definition.” 3 manufacturing cost – that is, the in-period costs of producing one watt for sale.” Id. In 4 addition, Meyerhoff notes that “this period metric is not intended to include costs related 5 to prior or future periods.” Id., ¶ 50. Doc. 316, ¶ 49. “First Solar publicly defined CpW as a period 6 Plaintiffs have failed to provide evidence from which a reasonable jury could 7 conclude that CpW should have contained costs related to the LPM or hot climate 8 defects. There is no evidence that First Solar ever included prior or future costs in CpW. 9 Although the two defects were occurring simultaneously with new manufacturing, there 10 is no evidence that new modules were being manufactured with less efficiency due to 11 defects in previously-manufactured modules. As Meyerhoff notes, CpW is simply a 12 metric used to measure the actual costs required to manufacture a single watt of power. 13 In addition, Plaintiffs’ allegations relating to the internal investigation do little to 14 suggest Defendants intended to manipulate CpW. It is undisputed that CpW was an 15 important metric, but Plaintiffs do not connect any wrongdoing to the Individual 16 Defendants. Even assuming Wood, who is not a Defendant, was improperly pressuring 17 employees to lower CpW, Plaintiffs do not dispute that First Solar immediately 18 investigated the allegations and, with advice of counsel, found no wrongdoing. The 19 record is devoid of evidence from which a reasonable jury could find that Defendants 20 improperly manipulated CpW with the intent to mislead investors. Notably, Regan does 21 not offer an opinion regarding CpW. See Doc. 373. 22 D. 23 Plaintiffs have presented sufficient evidence for a reasonable jury to find loss 24 causation as defined in Daou with respect to the five disclosure events other than the 25 announcement of Gillette’s departure. Plaintiffs have also presented sufficient evidence 26 for a reasonable jury to conclude that Defendants (1) had a duty to disclose the LPM 27 defect to investors and failed to do so in order to mislead investors, (2) concealed the 28 scope of the LPM defect with the intent to mislead investors, (3) had a duty to disclose Section 10(b) Conclusion. - 45 - 1 the hot climate degradation to investors and failed to do so in order to mislead investors, 2 and (4) engaged in accounting fraud with respect to both defects with intent to mislead 3 investors. 4 Plaintiffs have failed to create a question of fact regarding their CpW claim and 5 have failed to present evidence connecting Widmar to the alleged failure to disclose the 6 LPM problem prior to July 29, 2010. Defendants’ motion for summary judgment will be 7 granted on these issues in addition to the October 25, 2011 disclosure of Gillette’s 8 departure, and denied on the remaining § 10(b) issues.13 9 VI. Section 20(a) Claims. 10 Plaintiffs allege that the Individual Defendants are liable for the § 10(b) violations 11 as “controlling persons” under § 20(a). “As controlling persons, they would be jointly 12 and severally liable for violations of section 10(b) of the [Exchange Act] and Rule 10b- 13 5.” Apollo, 774 F.3d at 603. “To establish a cause of action under this provision, a 14 plaintiff must first prove a primary violation of . . . Section 10(b) or Rule 10b-5, and then 15 show that the defendant exercised actual power over the primary violator.” In re NVIDIA 16 Corp. Secs. Litig., 768 F.3d 1046, 1052 (9th Cir. 2014). Defendants argue that they 17 cannot be held liable for statements made by lower-level employees. But Plaintiffs have 18 established questions of fact with respect to their § 10(b) claims, and the statements and 19 misrepresentations have been connected to all of the Individual Defendants, unless 20 otherwise noted. Thus, a genuine dispute of fact remains as to whether Defendants are 21 liable under § 20(a). 22 VII. Plaintiffs’ Motion for Summary Judgment. 23 Plaintiffs seek summary judgment on eighteen of Defendants’ twenty affirmative 24 defenses. Doc. 309. At oral argument, Defendants agreed that the Court could strike 25 twelve of these defenses because they “are in fact not affirmative defenses.” Doc. 400 at 26 89. Defenses 1 – 5, 7, 10 – 14, and 16 will be stricken (Doc. 123 at 79-83), and the Court 27 13 28 Plaintiffs also claim that Defendants’ stock trades evidence scienter. Because the Court has already found that Plaintiffs can satisfy the scienter element, it need not analyze this argument. - 46 - 1 2 will not grant Plaintiffs’ motion on this ground. With respect to the six remaining defenses, Plaintiffs assert that Defendants can 3 produce no supporting evidence. 4 Assumption of Risk; Eighth – Failure to Mitigate Damages; Ninth – Proportional 5 Allocation of Fault; Fifteenth – Statute of Limitations; Nineteenth – Release; and 6 Twentieth – Res Judicata. Id. at 5. Defendants confirm that they are not aware of facts 7 supporting these defenses as to the named Plaintiffs, but argue that they should be 8 permitted to reserve these defenses as to absent class members and damages allocation. Doc. 310 at 2. These defenses include: Sixth – 9 The Court will not grant summary judgment on these six affirmative defenses. 10 This case will not end if a verdict is entered for Plaintiffs at trial. A procedure will be 11 required to establish the claims of class members. The Court cannot determine at this 12 stage whether any of the remaining affirmative defenses would be relevant in that 13 process, and therefore will not eliminate the defenses now.14 14 VIII. Other Matters. 15 A. 16 Defendants ask the Court to take judicial notice of the following facts: (1) the 17 daily closing price of First Solar stock as recorded by Yahoo! Finance; (2) First Solar’s 18 Forms 8-K, 10-Q, and 10-K filed with the Securities and Exchange Commission 19 (“SEC”); (3) First Solar press releases contained on its website; and (4) excerpts taken 20 from First Solar earnings conference calls recorded and transcribed by Bloomberg LP. 21 Defendants attached the information as exhibits to their request, and Plaintiffs do not 22 oppose the request. 23 Request for Judicial Notice. Rule 201 permits courts to take judicial notice of facts “capable of accurate and 24 25 26 27 28 14 With respect to the proportional allocation of fault defense, the Court notes that the PSLRA provides that a defendant “against whom a final judgment is entered in a private action shall be liable solely for the portion of the judgment that corresponds to the percentage of responsibility of that covered person[.]” 15 U.S.C. § 78u-4(f)(2)(B)(i). A defendant may be jointly and severally liable “only if the trier of fact specifically determines that such covered person knowingly committed a violation of the securities laws.” Id. § 78u-4(f)(2)(A). The applicability of these provisions must be determined in light of the jury’s verdict. - 47 - 1 ready determination by resort to sources whose accuracy cannot reasonably be 2 questioned.” Fed. R. Ev. 201(b)(2). Defendants seek judicial notice of facts from 3 reliable sources. The Court will take judicial notice and assume the accuracy of the facts 4 set forth in Defendants’ request. 5 B. 6 Defendants also filed a motion to seal six exhibits in support of their motion for 7 summary judgment (Doc. 342) and a motion to seal six exhibits accompanying their reply 8 brief (Doc. 387). Defendants claim these documents contain trade secrets and “technical 9 information and key metrics related to the performance of First Solar modules, their 10 failure rates over time, detailed projections on the expected degradation of First Solar 11 modules over their lifetime, and technical data on First Solar’s manufacturing process for 12 modules destined for use in hot climates.” Doc. 342 at 2-3. Motions to Seal. 13 Documents may be sealed if the court finds “compelling reasons supported by 14 specific factual findings . . . outweigh the general history of access and the public policies 15 favoring disclosure.” Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010). 16 The Court finds that the exhibits contain trade secrets and key technical information that 17 could result in unwarranted injury to First Solar if disclosed. The Court will grant 18 Defendants’ motions to seal. Plaintiffs do not oppose them. 19 IT IS ORDERED: 20 1. 21 22 Defendants’ motion for summary judgment (Doc. 311) is granted in part and denied in part. 2. 23 Plaintiffs’ motion for summary judgment (Doc. 309) is denied, but Defendants’ affirmative defenses 1 – 5, 7, 10 – 14, and 16 are stricken. 24 3. Defendants’ request for judicial notice (Doc. 341) is granted. 25 4. Defendants’ motions to seal (Docs. 342, 387) are granted. 26 5. The Court certifies the loss causation issue discussed above for immediate 27 interlocutory appeal under 28 U.S.C. § 1292(b). The issue certified is this: 28 what is the correct test for loss causation in the Ninth Circuit? Can a - 48 - 1 plaintiff prove loss causation by showing that the very facts misrepresented 2 or omitted by the defendant were a substantial factor in causing the 3 plaintiff’s economic loss, even if the fraud itself was not revealed to the 4 market (Nuveen, 730 F.3d at 1120), or must the market actually learn that 5 the defendant engaged in fraud and react to the fraud itself (Oracle, 627 6 F.3d at 392)? Within 10 days of the entry of this order, either side may 7 petition the Ninth Circuit to decide this issue on immediate appeal. Id. If 8 neither side files such a petition, the Court will schedule a case 9 management conference to set a schedule for completion of expert 10 discovery and clarification of trial issues, and will set a final pretrial 11 conference, at which a firm trial date will be set. If a petition for immediate 12 appeal is filed within 10 days of this order, the Court will stay this action 13 until the Ninth Circuit decides whether to take the appeal and, if it does, the 14 stay will remain in effect until the appeal is decided. 15 Dated this 10th day of August, 2015. 16 17 18 19 20 21 22 23 24 25 26 27 28 - 49 -

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