Jorge Alcarez, et al. v. Akorn, Inc., et al.

This petition implicates the important and long-standing rule that prohibits a court of appeals from sua sponte considering new issues and making new factual findings that were not before the district court or ever raised by the parties on appeal. Singleton v. Wulff, 428 U.S. 106, 120 (1976); Hormel v. Helvering, 312 U.S. 552, 556 (1941). The Seventh Circuit Panel breached this wellestablished rule twice below when it sua sponte made a new evidentiary finding to support a new legal theory to salvage a serial objector’s failed intervention in a PSLRA merger case, to wit: the Panel found that a publicly traded defendant corporation’s payment of a nominal “mootness fee” to plaintiffs’ counsel caused the market price of the company’s stock to decline (without any evidence in support), which price decline supported a new, courtconcocted theory of damages for a shareholder’s standing to intervene in these securities cases after they had been voluntarily dismissed. Similarly, though not raised by the parties, the Panel held that a Federal Rule of Civil Procedure (“Rule”) 41(a) self-executing voluntary dismissal without prejudice constitutes a “final adjudication” under the Private Securities Litigation Reform Act of 1995 (“PSLRA”) (15 U.S.C. § 78u-4(c)(1)) so that the district court on remand must make Rule 11 findings. This conclusion eviscerates safe harbors afforded other litigants under Rule 11 in order to cabin voluntarily dismissed PSLRA cases within the