Supreme Court of the United States · Official docket →
Facebook, Inc., et al. v. Amalgamated Bank, et al.
Paid petition · United States Court of Appeals for the Ninth Circuit, No. 22-15077 · judgment December 4, 2023
Before the decision, about 7.5× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a Ninth Circuit decision below, and a circuit split argued in the petition, and down for a business respondent.
Questions presented
This petition presents two important questions that have divided the federal courts of appeals. First, the circuits have split three ways concerning what public companies must disclose in the "risk factors" section of their 10-K filings. The Sixth Circuit holds that companies need not disclose past instances when a risk has materialized. The First, Second, Third, Fifth, Tenth, and D.C. Circuits hold that companies must disclose that a risk materialized in the past if the company knows that event will harm the business. The Ninth Circuit here adopted a third, outlier position requiring companies to disclose that a risk materialized in the past even if there is no known threat of business harm. Second, the circuits disagree on the proper pleading standard for the loss causation element of a private securities-fraud claim. The Fourth Circuit holds that loss causation allegations must satisfy Federal Rule 9(b)'s heightened pleading standard for fraud, while the Fifth and Sixth Circuits apply the ordinary Rule 8 standard. The Ninth Circuit here initially applied Rule 8, then substituted citations of Rule 9(b) without changing its analysis. The questions presented are:
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Are risk disclosures false or misleading when they do not disclose that a risk has materialized in the past, even if that past event presents no known risk of ongoing or future business harm?
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Does Federal Rule 8 or Rule 9(b) supply the proper pleading standard for loss causation in a private securities-fraud action? DISMISSED AS IMPROVIDENTLY GRANTED.
Counsel of record
For petitioner
Kannon K. Shanmugam
Paul, Weiss, Rifkind, Wharton & Garrison LLP
For respondent
Kevin K. Russell
Goldstein, Russell & Woofter LLC
Case
Conference history
Distributed for 2 conferences
Amicus briefs
3 cert-stage · 9 merits
(4 supporting pet./neither, 5 respondent)
Argument & decision
Argued November 6, 2024 — Kannon K. Shanmugam · Kevin K. Russell. Audio and transcript
Decided November 22, 2024. Opinion by Per Curiam.
Proceedings
- Dec 26 2024Judgment Issued.
- Nov 22 2024Writ of certiorari DISMISSED as improvidently granted. Opinion per curiam.
- Nov 06 2024Argued. For petitioners: Kannon K. Shanmugam, Washington, D. C. For respondents: Kevin K. Russell, Washington, D. C.; and Kevin J. Barber, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.)
- Oct 24 2024Reply of petitioners Facebook, Inc., et al. filed. (Distributed)
- Oct 15 2024Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
- Oct 01 2024CIRCULATED
- Oct 01 2024Brief amicus curiae of United States filed. (Distributed)
- Oct 01 2024Brief amicus curiae of Securities Law Scholars filed. (Distributed)
- Oct 01 2024Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
- Oct 01 2024Brief amici curiae of Technology Industry Policy Advocates and Investors filed. (Distributed)
- Oct 01 2024Brief amici curiae of Institutional Investors filed. (Distributed)
- Oct 01 2024Brief amici curiae of Financial Economists filed. (Distributed)
- Sep 24 2024Brief of respondents Amalgamated Bank, et al. filed.
- Aug 16 2024Brief amicus curiae of Washington Legal Foundation filed.
- Aug 16 2024Brief amicus curiae of The Society for Corporate Governance filed.
- Aug 16 2024Brief amici curiae of Law Professors and Former Officials of the Securities and Exchange Commission filed.
- Aug 16 2024Brief amici curiae of Chamber of Commerce of the United States of America, et al. filed.
- Aug 09 2024Record requested from the United States Court of Appeals for the Ninth Circuit.
- Aug 09 2024Record received from the United States Court of Appeals for the Ninth Circuit. The record is electronic and is available on PACER.
- Aug 09 2024Brief of petitioners Facebook, Inc., et al. filed.
- Aug 09 2024Joint appendix(Volumes I & II) filed. (Statement of costs filed)
- Jul 26 2024SET FOR ARGUMENT on Wednesday, November 6, 2024.
- Jul 09 2024Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioners' brief on the merits is extended to and including August 9, 2024. The time to file respondents' brief on the merits is extended to and including September 24, 2024.
- Jun 13 2024Motion for an extension of time to file the briefs on the merits filed.
- Jun 10 2024Petition GRANTED limited to Question 1 presented by the petition.
- Jun 03 2024DISTRIBUTED for Conference of 6/6/2024.
- May 17 2024Letter of petitioners Facebook, Inc., et al. filed. (Distributed)
- May 17 2024Supplemental Brief of Amalgamated Bank, et al. submitted.
- May 14 2024DISTRIBUTED for Conference of 5/30/2024.
- May 13 2024Reply of petitioners Facebook, Inc., et al. filed. (Distributed)
- Apr 29 2024Brief of respondents Amalgamated Bank, et al. in opposition filed.
- Apr 05 2024Brief amici curiae of Law Professors and Former Officials of the Securities and Exchange Commission filed.
- Apr 05 2024Brief amici curiae of Chamber of Commerce of the United States of America, et al. filed.
- Apr 05 2024Brief amicus curiae of Washington Legal Foundation filed.
- Mar 12 2024Motion to extend the time to file a response is granted and the time is extended to and including May 6, 2024.
- Mar 11 2024Motion to extend the time to file a response from April 5, 2024 to May 6, 2024, submitted to The Clerk.
- Mar 04 2024Petition for a writ of certiorari filed. (Response due April 5, 2024)