City of Pontiac General Employees' Retirement System v. Immucor, Inc. et al

Filing 115

ORDER denying 111 Motion for Reconsideration. Signed by Judge Thomas W. Thrash, Jr on 8/29/11. (dr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
IN RE IMMUCOR, INC.
SECURITIES LITIGATION

CIVIL ACTION FILE
NO. 1:09-CV-2351-TWT

ORDER

This is a securities fraud action. It is before the Court on the Plaintiff’s Motion
for Reconsideration [Doc. 111], which is DENIED.
I. Introduction
Immucor supplies hospital blood banks, clinical laboratories, and blood
donation centers with blood reagents. The Plaintiff alleges that Immucor made false
and misleading statements regarding its compliance with FDA regulations and its
participation in an illegal price-fixing scheme in violation Section 10(b) of the
Securities Exchange Act of 1934. The Court dismissed the FDA-related claims based
on the Plaintiff’s failure to adequately plead actual economic loss or loss causation.
The Plaintiff now moves for reconsideration.
II. Motion for Reconsideration Standard
Rule 59(e) of the Federal Rules of Civil Procedure authorizes district courts
upon motion to alter or amend a judgment. See Fed. R. Civ. P. 59(e). “The decision
T:\ORDERS\09\In re Immucor, Inc\mfrtwt.wpd

to alter or amend judgment is committed to the sound discretion of the district judge
and will not be overturned on appeal absent an abuse of discretion.” American Home
Assurance Co. v. Glenn Estess & Assocs., 763 F.2d 1237, 1238-39 (11th Cir. 1985)
(citing Commodity Futures Trading Comm'n v. American Commodity Group Corp.,
753 F.2d 862, 866 (11th Cir. 1984)). The Federal Rules of Civil Procedure do not
specifically authorize motions for reconsideration. Nevertheless, such motions are
common in practice.
Local Rule 7.2 provides that motions for reconsideration are not to be filed “as
a matter of routine practice,” but only when “absolutely necessary.” L.R. 7.2E. A
party may move for reconsideration only when one of the following has occurred: “an
intervening change in controlling law, the availability of new evidence, [or] the need
to correct clear error or prevent manifest injustice.” Godby v. Electrolux Corp., No.
1:93-CV-0353-ODE, 1994 WL 470220, at *1 (N.D. Ga. May 25, 1994). Further, a
party “may not employ a motion for reconsideration as a vehicle to present new
arguments or evidence that should have been raised earlier, introduce novel legal
theories, or repackage familiar arguments to test whether the Court will change its
mind.” Brogdon v. National Healthcare Corp., 103 F. Supp. 2d 1322, 1338 (N.D. Ga.
2000); see also Godby, 1994 WL 470220, at *1 (“A motion for reconsideration should
not be used to reiterate arguments that have previously been made ... ‘[It is an

T:\ORDERS\09\In re Immucor, Inc\mfrtwt.wpd

-2-

improper use of] the motion to reconsider to ask the Court to rethink what the Court
[has] already thought through-rightly or wrongly.’”) (quoting Above the Belt, Inc. v.
Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va.1983)) (alterations in
original); In re Hollowell, 242 B.R. 541, 542-43 (Bankr. N.D. Ga. 1999) (“Motions
for reconsideration should not be used to relitigate issues already decided or as a
substitute for appeal ... Such motions also should not be used to raise arguments which
were or could have been raised before judgment was issued.”)
III. Discussion
The Court held in its June 30 order that the Plaintiff failed to adequately plead
economic loss and loss causation because Immucor’s share price quickly rebounded
to pre-disclosure levels after each of the FDA-related disclosures. The Plaintiff argues
that this conclusion reflects a clear error of law. The Court disagrees. In Ross v.
Walton, 668 F. Supp. 2d 32 (D.D.C. 2009), the plaintiffs in a securities fraud case
alleged that they suffered an economic loss when the company’s stock price dropped
immediately following a corrective disclosure. In response, the defendants showed
that the company’s stock had returned to the pre-disclosure trading price shortly after
the class period ended. The court dismissed the case, explaining that it was “unaware
of any authority in which actual economic loss was found when the stock value
returned to pre-disclosure prices and could have been sold at a profit just after the

T:\ORDERS\09\In re Immucor, Inc\mfrtwt.wpd

-3-

class period.” Id. at 43. Likewise, in Malin v. XL Capital Ltd., No. 3:03-cv-2001,
2005 WL 2146089 (D. Conn. Sept. 1, 2005), the court held that the plaintiffs had not
adequately plead loss causation where the defendant’s stock price, which fell
immediately following a corrective disclosure, rebounded to pre-disclosure levels
shortly thereafter.

The court explained that “a price fluctuation without any

realization of an economic loss is functionally equivalent to the Supreme Court’s
rejection [in Dura] of an artificially inflated purchase price alone as economic loss.”
Id. at *4.
The Plaintiff attempts to distinguish Ross and Malin by noting that the stock
price in those cases rebounded to a level at or above the plaintiffs’ purchase price. But
given the many factors that can affect share price, contrasting the price immediately
before the corrective disclosure (even if it is below the purchase price) and the price
shortly thereafter provides the most relevant comparison for evaluating whether the
stock price dropped significantly following the corrective disclosure and whether the
disclosure caused the drop in price.
The Plaintiff also argues that the Court erred by requiring the Plaintiff to allege
a post-disclosure sale. But the Court imposed no such requirement. Although the
Court did note that the Plaintiff did not allege a post-disclosure sale, that was not the
basis of its decision. As noted above, the Court dismissed the FDA-related claims

T:\ORDERS\09\In re Immucor, Inc\mfrtwt.wpd

-4-

because Immucor’s share price quickly rebounded to pre-disclosure levels after each
of the FDA-related disclosures, not because the Plaintiff did not allege a postdisclosure sale. Finally, the Plaintiff argues that the Court made a factual error by
concluding that the Plaintiff did not sell any shares after the June 2009 disclosure, and
requests leave to amend its complaint to reflect its post-disclosure sales. However,
for the reasons addressed above, any such sales are immaterial and do not entitle the
Plaintiff to reconsideration. The amendment would be futile.
IV. Conclusion
For the reasons listed above, the Plaintiff’s Motion for Reconsideration [Doc.
111] is DENIED.
SO ORDERED, this 29 day of August, 2011.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

T:\ORDERS\09\In re Immucor, Inc\mfrtwt.wpd

-5-