NECA-IBEW Pension Trust Fund et al v. Precision Castparts Corp., et al

Filing 77

ORDER. The Court ADOPTS Magistrate Judge You's Findings and Recommendation (#72 ) and, therefore, DENIES Defendants' Motion (#57 ) to Dismiss Plaintiffs' Amended Complaint. The Court returns this matter to the Magistrate Judge for further handling. IT IS SO ORDERED #72 . Signed on 1/24/2018 by Judge Anna J. Brown. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

NECA-IBEW PENSION TRUST FUND
(THE DECATUR PLAN), and ANGELA
LOHMANN, as Trustee for the
Angela Lohmann Revocable Trust,
individually and on behalf of
all others similarly situated,

3:16-CV-01756-YY
ORDER

Plaintiffs,
v.
PRECISION CASTPARTS CORP.,
MARK DONEGAN, DON R. GRABER,
LESTER L. LYLES, DANIEL J.
MURPHY, VERNON E. OECHSLE,
ULRICH SCHMIDT, RICHARD L.
WAMBOLD, and TIMOTHY A. WICKS,
Defendants.

BROWN, Judge.
Magistrate Judge Youlee Yim You issued Findings and
Recommendation (#72) on October 3, 2017, in which she recommends
the Court deny the Motion (#57) to Dismiss filed by Defendants
Precision Castparts Corp., Mark Donegan, Don R. Graber, Lester L.

1 - ORDER

Lyles, Daniel J. Murphy, Vernon E. Oechsle, Ulrich Schmidt,
Richard L. Wambold, and Timothy A. Wicks.

Defendants filed

timely Objections to the Findings and Recommendation.

The matter

is now before this Court pursuant to 28 U.S.C. § 636(b)(1) and
Federal Rule of Civil Procedure 72(b).
When any party objects to any portion of the Magistrate
Judge's Findings and Recommendation, the district court must make
a de novo determination of that portion of the Magistrate Judge's
report.

28 U.S.C. § 636(b)(1).

See also Dawson v. Marshall, 561

F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003)(en banc).

BACKGROUND
Plaintiffs are former shareholders of Precision Castparts
Corp. (PCC).

On September 2, 2016, Plaintiffs filed a Class

Action Allegation Complaint (#1) against PCC and current and
former officers and directors for making allegedly false and
misleading statements in proxy materials issued in October 2015
in violation of Sections 14(a) and 20(a) of the Securities
Exchange Act of 1934 (Act), 15 U.S.C. §§ 78n(a) and 78t(a), and
Rule 14a-9 of the Securities and Exchange Commission, 17 C.F.R.
§ 240.14a-9, related to the acquisition of PCC by Berkshire
Hathaway, Inc.

On January 5, 2017, Plaintiffs filed an Amended

Class Action Allegation Complaint (#56).
2 - ORDER

On March 6, 2017, Defendants filed a Motion (#57) to Dismiss
the Amended Class Action Allegation Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) on the grounds that Plaintiffs
have not sufficiently alleged a material misstatement or
omission; the “bespeaks caution” doctrine and the safe-harbor
provision of the Private Securities Litigation Reform Act of 1995
(PLSRA), 15 U.S.C. § 78u-5(c)(1)(A)(I), bar Plaintiffs’ claims;
and Plaintiffs have failed to plead scienter with particularity.
The Magistrate Judge found Plaintiffs adequately alleged the
acts or omissions of the Defendant that violated the Act, the
statements made were not forward-looking statements, and
Plaintiffs adequately alleged scienter.

The Magistrate Judge,

therefore, recommends this Court deny Defendants’ Motion to
Dismiss in its entirety.
In their Objections Defendants assert the same or similar
arguments similar they raised in their Motion to Dismiss.
This Court has carefully considered Defendants’ Objections
and concludes they do not provide a basis to modify the Findings
and Recommendation.

The Court also has reviewed the pertinent

portions of the record de novo and does not find any error in the
Magistrate Judge's Findings and Recommendation.

CONCLUSION
The Court ADOPTS Magistrate Judge You’s Findings and

3 - ORDER

Recommendation (#72) and, therefore, DENIES Defendants’ Motion
(#57) to Dismiss Plaintiffs’ Amended Complaint.
The Court returns this matter to the Magistrate Judge for
further handling.
IT IS SO ORDERED.
DATED this 24th day of January, 2018.

/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

4 - ORDER