Tellabs, Inc. v. Makor Issues & Rights, Ltd.

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

TELLABS, INC., ET AL. v. MAKOR ISSUES & RIGHTS,

LTD., ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

No. 06–484. Argued March 28, 2007—Decided June 21, 2007

As a check against abusive litigation in private securities fraud actions,

the Private Securities Litigation Reform Act of 1995 (PSLRA) in

cludes exacting pleading requirements. The Act requires plaintiffs to

state with particularity both the facts constituting the alleged viola

tion, and the facts evidencing scienter, i.e., the defendant’s intention

“to deceive, manipulate, or defraud.” Ernst & Ernst v. Hochfelder,

425 U. S. 185, 194, and n. 12. As set out in §21D(b)(2), plaintiffs

must “state with particularity facts giving rise to a strong inference

that the defendant acted with the required state of mind.” 15

U. S. C. §78u–4(b)(2). Congress left the key term “strong inference”

undefined.

Petitioner Tellabs, Inc., manufactures specialized equipment for

fiber optic networks. Respondents (Shareholders) purchased Tellabs

stock between December 11, 2000, and June 19, 2001. They filed a

class action, alleging that Tellabs and petitioner Notebaert, then

Tellabs’ chief executive officer and president, had engaged in securi

ties fraud in violation of §10(b) of the Securities Exchange Act of 1934

and Securities and Exchange Commission Rule 10b–5, and that

Notebaert was a “controlling person” under the 1934 Act, and there

fore derivatively liable for the company’s fraudulent acts. Tellabs

moved to dismiss the complaint on the ground that the Shareholders

had failed to plead their case with the particularity the PSLRA re

quires. The District Court agreed, dismissing the complaint without

prejudice. The Shareholders then amended their complaint, adding

references to 27 confidential sources and making further, more spe

cific, allegations concerning Notebaert’s mental state. The District

Court again dismissed, this time with prejudice. The Shareholders

2 TELLABS, INC. v. MAKOR ISSUES & RIGHTS, LTD.

Syllabus

had sufficiently pleaded that Notebaert’s statements were mislead

ing, the court determined, but they had insufficiently alleged that he

acted with scienter. The Seventh Circuit reversed in relevant part.

Like the District Court, it found that the Shareholders had pleaded

the misleading character of Notebaert’s statements with sufficient

particularity. Unlike the District Court, however, it concluded that

the Shareholders had sufficiently alleged that Notebaert acted with

the requisite state of mind. In evaluating whether the PSLRA’s

pleading standard is met, the Circuit said, courts should examine all

of the complaint’s allegations to decide whether collectively they es

tablish an inference of scienter; the complaint would survive, the

court stated, if a reasonable person could infer from the complaint’s

allegations that the defendant acted with the requisite state of mind.

Held: To qualify as “strong” within the intendment of §21D(b)(2), an

inference of scienter must be more than merely plausible or reason

able—it must be cogent and at least as compelling as any opposing

inference of nonfraudulent intent. Pp. 6–18.

(a) Setting a uniform pleading standard for §10(b) actions was

among Congress’ objectives in enacting the PSLRA. Designed to curb

perceived abuses of the §10(b) private action, the PSLRA installed

both substantive and procedural controls. As relevant here, §21D(b)

of the PSLRA “impose[d] heightened pleading requirements in

[§10(b) and Rule 10b–5] actions.” Dabit, 547 U. S., at 81. In the in

stant case, the District Court and the Seventh Circuit agreed that the

complaint sufficiently specified Notebaert’s alleged misleading

statements and the reasons why the statements were misleading.

But those courts disagreed on whether the Shareholders, as required

by §21D(b)(2), “state[d] with particularity facts giving rise to a strong

inference that [Notebaert] acted with [scienter],” §78u–4(b)(2). Con

gress did not shed much light on what facts would create a strong in

ference or how courts could determine the existence of the requisite

inference. With no clear guide from Congress other than its “in

ten[tion] to strengthen existing pleading requirements,” H. R. Conf.

Rep., at 41, Courts of Appeals have diverged in construing the term

“strong inference.” Among the uncertainties, should courts consider

competing inferences in determining whether an inference of scienter

is “strong”? This Court’s task is to prescribe a workable construction

of the “strong inference” standard, a reading geared to the PSLRA’s

twin goals: to curb frivolous, lawyer-driven litigation, while preserv

ing investors’ ability to recover on meritorious claims. Pp. 6–10.

(b) The Court establishes the following prescriptions: First, faced

with a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss a

§10(b) action, courts must, as with any motion to dismiss for failure

to plead a claim on which relief can be granted, accept all factual al

Cite as: 551 U. S. ____ (2007) 3

Syllabus

legations in the complaint as true. See Leatherman v. Tarrant

County Narcotics Intelligence and Coordination Unit, 507 U. S. 163,

164. Second, courts must consider the complaint in its entirety, as

well as other sources courts ordinarily examine when ruling on Rule

12(b)(6) motions. The inquiry is whether all of the facts alleged,

taken collectively, give rise to a strong inference of scienter, not

whether any individual allegation, scrutinized in isolation, meets

that standard. Third, in determining whether the pleaded facts give

rise to a “strong” inference of scienter, the court must take into ac

count plausible opposing inferences. The Seventh Circuit expressly

declined to engage in such a comparative inquiry. But in §21D(b)(2),

Congress did not merely require plaintiffs to allege facts from which

an inference of scienter rationally could be drawn. Instead, Congress

required plaintiffs to plead with particularity facts that give rise to a

“strong”—i.e., a powerful or cogent—inference. To determine

whether the plaintiff has alleged facts giving rise to the requisite

“strong inference,” a court must consider plausible nonculpable ex

planations for the defendant’s conduct, as well as inferences favoring

the plaintiff. The inference that the defendant acted with scienter

need not be irrefutable, but it must be more than merely “reasonable”

or “permissible”—it must be cogent and compelling, thus strong in

light of other explanations. A complaint will survive only if a reason

able person would deem the inference of scienter cogent and at least

as compelling as any plausible opposing inference one could draw

from the facts alleged. Pp. 11–13.

(c) Tellabs contends that when competing inferences are consid

ered, Notebaert’s evident lack of pecuniary motive will be dispositive.

The Court agrees that motive can be a relevant consideration, and

personal financial gain may weigh heavily in favor of a scienter infer

ence. The absence of a motive allegation, however, is not fatal for al

legations must be considered collectively; the significance that can be

ascribed to an allegation of motive, or lack thereof, depends on the

complaint’s entirety. Tellabs also maintains that several of the

Shareholders’ allegations are too vague or ambiguous to contribute to

a strong inference of scienter. While omissions and ambiguities

count against inferring scienter, the court’s job is not to scrutinize

each allegation in isolation but to access all the allegations holisti

cally. Pp. 13–15.

(d) The Seventh Circuit was unduly concerned that a court’s com

parative assessment of plausible inferences would impinge upon the

Seventh Amendment right to jury trial. Congress, as creator of fed

eral statutory claims, has power to prescribe what must be pleaded to

state the claim, just as it has power to determine what must be

proved to prevail on the merits. It is the federal lawmaker’s preroga

4 TELLABS, INC. v. MAKOR ISSUES & RIGHTS, LTD.

Syllabus

tive, therefore, to allow, disallow, or shape the contours of—including

the pleading and proof requirements for—§10(b) private actions.

This Court has never questioned that authority in general, or sug

gested, in particular, that the Seventh Amendment inhibits Congress

from establishing whatever pleading requirements it finds appropri

ate for federal statutory claims. Provided that the Shareholders have

satisfied the congressionally “prescribe[d] . . . means of making an is

sue,” Fidelity & Deposit Co. of Md. v. United States, 187 U. S. 315,

320, the case will fall within the jury’s authority to assess the credi

bility of witnesses, resolve genuine issues of fact, and make the ulti

mate determination whether Notebaert and, by imputation, Tellabs

acted with scienter. Under this Court’s construction of the “strong in

ference” standard, a plaintiff is not forced to plead more than she

would be required to prove at trial. A plaintiff alleging fraud under

§10(b) must plead facts rendering an inference of scienter at least as

likely as any plausible opposing inference. At trial, she must then

prove her case by a “preponderance of the evidence.” Pp. 15–17.

(e) Neither the District Court nor the Court of Appeals had the op

portunity to consider whether the Shareholders’ allegations warrant

“a strong inference that [Notebaert and Tellabs] acted with the re

quired state of mind,” 15 U. S. C. §78u–4(b)(2), in light of the pre

scriptions announced today. Thus, the case is remanded for a deter

mination under this Court’s construction of §21D(b)(2). P. 18.

437 F. 3d 588, vacated and remanded.

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, SOUTER, THOMAS, and BREYER, JJ., joined. SCALIA,

J., and ALITO, J., filed opinions concurring in the judgment. STEVENS,

J., filed a dissenting opinion.

Cite as: 551 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–484

_________________

TELLABS, INC., ET AL., PETITIONERS v. MAKOR

ISSUES & RIGHTS, LTD., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 21, 2007]

JUSTICE GINSBURG delivered the opinion of the Court.

This Court has long recognized that meritorious private

actions to enforce federal antifraud securities laws are an

essential supplement to criminal prosecutions and civil

enforcement actions brought, respectively, by the Depart

ment of Justice and the Securities and Exchange Commis

sion (SEC). See, e.g., Dura Pharmaceuticals, Inc. v.

Broudo, 544 U. S. 336, 345 (2005); J. I. Case Co. v. Borak,

377 U. S. 426, 432 (1964). Private securities fraud actions,

however, if not adequately contained, can be employed

abusively to impose substantial costs on companies and

individuals whose conduct conforms to the law. See

Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547

U. S. 71, 81 (2006). As a check against abusive litigation

by private parties, Congress enacted the Private Securities

Litigation Reform Act of 1995 (PSLRA), 109 Stat. 737.

Exacting pleading requirements are among the control

measures Congress included in the PSLRA. The Act

requires plaintiffs to state with particularity both the facts

constituting the alleged violation, and the facts evidencing

scienter, i.e., the defendant’s intention “to deceive, ma

2 TELLABS, INC. v. MAKOR ISSUES & RIGHTS, LTD.

Opinion of the Court

nipulate, or defraud.” Ernst & Ernst v. Hochfelder, 425

U. S. 185, 194, and n. 12 (1976); see 15 U. S. C. §78u–

4(b)(1),(2). This case concerns the latter requirement. As

set out in §21D(b)(2) of the PSLRA, plaintiffs must “state

with particularity facts giving rise to a strong inference

that the defendant acted with the required state of mind.”

15 U. S. C. §78u–4(b)(2).

Congress left the key term “strong inference” undefined,

and Courts of Appeals have divided on its meaning. In the

case before us, the Court of Appeals for the Seventh Cir

cuit held that the “strong inference” standard would be

met if the complaint “allege[d] facts from which, if true, a

reasonable person could infer that the defendant acted

with the required intent.” 437 F. 3d 588, 602 (2006). That

formulation, we conclude, does not capture the stricter

demand Congress sought to convey in §21D(b)(2). It does

not suffice that a reasonable factfinder plausibly could

infer from the complaint’s allegations the requisite state of

mind. Rather, to determine whether a complaint’s sci

enter allegations can survive threshold inspection for

sufficiency, a court governed by §21D(b)(2) must engage in

a comparative evaluation; it must consider, not only infer

ences urged by the plaintiff, as the Seventh Circuit did,

but also competing inferences rationally drawn from the

facts alleged. An inference of fraudulent intent may be

plausible, yet less cogent than other, nonculpable explana

tions for the defendant’s conduct. To qualify as “strong”

within the intendment of §21D(b)(2), we hold, an inference

of scienter must be more than merely plausible or reason

able—it must be cogent and at least as compelling as any

opposing inference of nonfraudulent intent.

I

Petitioner Tellabs, Inc., manufactures specialized

equipment used in fiber optic networks. During the time

period relevant to this case, petitioner Richard Notebaert

Cite as: 551 U. S. ____ (2007) 3

Opinion of the Court

was Tellabs’ chief executive officer and president. Re

spondents (Shareholders) are persons who purchased

Tellabs stock between December 11, 2000, and June 19,

2001. They accuse Tellabs and Notebaert (as well as

several other Tellabs executives) of engaging in a scheme

to deceive the investing public about the true value of

Tellabs’ stock. See 437 F. 3d, at 591; App. 94–98.1

Beginning on December 11, 2000, the Shareholders

allege, Notebaert (and by imputation Tellabs) “falsely

reassured public investors, in a series of statements . . .

that Tellabs was continuing to enjoy strong demand for its

products and earning record revenues,” when, in fact,

Notebaert knew the opposite was true. Id., at 94–95, 98.

From December 2000 until the spring of 2001, the Share

holders claim, Notebaert knowingly misled the public in

four ways. 437 F. 3d, at 596. First, he made statements

indicating that demand for Tellabs’ flagship networking

device, the TITAN 5500, was continuing to grow, when in

fact demand for that product was waning. Id., at 596, 597.

Second, Notebaert made statements indicating that the

TITAN 6500, Tellabs’ next-generation networking device,

was available for delivery, and that demand for that prod

uct was strong and growing, when in truth the product

was not ready for delivery and demand was weak. Id., at

596, 597–598. Third, he falsely represented Tellabs’ fi

nancial results for the fourth quarter of 2000 (and, in

connection with those results, condoned the practice of

“channel stuffing,” under which Tellabs flooded its cus

tomers with unwanted products). Id., at 596, 598. Fourth,

Notebaert made a series of overstated revenue projections,

——————

1 The Shareholders brought suit against Tellabs executives other than

Notebaert, including Richard Birck, Tellabs’ chairman and former chief

executive officer. Because the claims against the other executives,

many of which have been dismissed, are not before us, we focus on the

allegations as they relate to Notebaert. We refer to the defendant-

petitioners collectively as “Tellabs.”

4 TELLABS, INC. v. MAKOR ISSUES & RIGHTS, LTD.

Opinion of the Court

when demand for the TITAN 5500 was drying up and

production of the TITAN 6500 was behind schedule. Id.,

at 596, 598–599. Based on Notebaert’s sunny assess

ments, the Shareholders contend, market analysts rec

ommended that investors buy Tellabs’ stock. See id., at

592.

The first public glimmer that business was not so

healthy came in March 2001 when Tellabs modestly re

duced its first quarter sales projections. Ibid. In the next

months, Tellabs made progressively more cautious state

ments about its projected sales. On June 19, 2001, the

last day of the class period, Tellabs disclosed that demand

for the TITAN 5500 had significantly dropped. Id., at 593.

Simultaneously, the company substantially lowered its

revenue projections for the second quarter of 2001. The

next day, the price of Tellabs stock, which had reached a

high of $67 during the period, plunged to a low of $15.87.

Ibid.

On December 3, 2002, the Shareholders filed a class

action in the District Court for the Northern District of

Illinois. Ibid. Their complaint stated, inter alia, that

Tellabs and Notebaert had engaged in securities fraud in

violation of §10(b) of the Securities Exchange Act of 1934,

48 Stat. 891, 15 U. S. C. §78j(b), and SEC Rule 10b–5, 17

CFR §240.10b–5 (2006), also that Notebaert was a “con

trolling person” under §20(a) of the 1934 Act, 15 U. S. C.

§78t(a), and therefore derivatively liable for the company’s

fraudulent acts. See App. 98–101, 167–171. Tellabs

moved to dismiss the complaint on the ground that the

Shareholders had failed to plead their case with the par

ticularity the PSLRA requires. The District Court agreed,

and therefore dismissed the complaint without prejudice.

App. to Pet. for Cert. 80a–117a; see Johnson v. Tellabs,

Inc., 303 F. Supp. 2d 941, 945 (ND Ill. 2004).

The Shareholders then amended their complaint, adding

references to 27 confidential sources and making further,

Cite as: 551 U. S. ____ (2007) 5

Opinion of the Court

more specific, allegations concerning Notebaert’s mental

state. See 437 F. 3d, at 594; App. 91–93, 152–160. The

District Court again dismissed, this time with prejudice.

303 F. Supp. 2d, at 971. The Shareholders had sufficiently

pleaded that Notebaert’s statements were misleading, the

court determined, id., at 955–961, but they had insuffi

ciently alleged that he acted with scienter, id., at 954–955,

961–969.

The Court of Appeals for the Seventh Circuit reversed in

relevant part. 437 F. 3d, at 591. Like the District Court,

the Court of Appeals found that the Shareholders had

pleaded the misleading character of Notebaert’s state

ments with sufficient particularity. Id., at 595–600.

Unlike the District Court, however, the Seventh Circuit

concluded that the Shareholders had sufficiently alleged

that Notebaert acted with the requisite state of mind. Id.,

at 603–605.

The Court of Appeals recognized that the PSLRA “un

equivocally raise[d] the bar for pleading scienter” by re

quiring plaintiffs to “plea[d] sufficient facts to create a

strong inference of scienter.” Id., at 601 (internal quota

tion marks omitted). In evaluating whether that pleading

standard is met, the Seventh Circuit said, “courts [should]

examine all of the allegations in the complaint and then

. . . decide whether collectively they establish such an

inference.” Ibid. “[W]e will allow the complaint to sur

vive,” the court next and critically stated, “if it alleges

facts from which, if true, a reasonable person could infer

that the defendant acted with the required intent . . . . If a

reasonable person could not draw such an inference from

the alleged facts, the defendants are entitled to dismissal.”

Id., at 602.

In adopting its standard for the survival of a complaint,

the Seventh Circuit explicitly rejected a stiffer standard

adopted by the Sixth Circuit, i.e., that “plaintiffs are enti

tled only to the most plausible of competing inferences.”

6 TELLABS, INC. v. MAKOR ISSUES & RIGHTS, LTD.

Opinion of the Court

Id., at 601, 602 (quoting Fidel v. Farley, 392 F. 3d 220, 227

(CA6 2004)). The Sixth Circuit’s standard, the court

observed, because it involved an assessment of competing

inferences, “could potentially infringe upon plaintiffs’

Seventh Amendment rights.” 437 F. 3d, at 602. We

granted certiorari to resolve the disagreement among the

Circuits on whether, and to what extent, a court must

consider competing inferences in determining whether a

securities fraud complaint gives rise to a “strong infer

ence” of scienter.2 549 U. S. ___ (2007).

II

Section 10(b) of the Securities Exchange Act of 1934

forbids the “use or employ, in connection with the pur

chase or sale of any security . . . , [of] any manipulative or

deceptive device or contrivance in contravention of such

rules and regulations as the [SEC] may prescribe as nec

essary or appropriate in the public interest or for the

protection of investors.” 15 U. S. C. §78j(b). SEC Rule

10b–5 implements §10(b) by declaring it unlawful:

“(a) To employ any device, scheme, or artifice to de

fraud,

“(b) To make any untrue statement of a material fact

or to omit to state a material fact necessary in order to

make the statements made . . . not misleading, or

“(c) To engage in any act, practice, or course of busi

ness which operates or would operate as a fraud or

deceit upon any person, in connection with the pur

chase or sale of any security.” 17 CFR §240.10b–5.

——————

2 See, e.g., 437 F. 3d 588, 602 (CA7 2006) (decision below); In re Credit

Suisse First Boston Corp., 431 F. 3d 36, 49, 51 (CA1 2005); Ottmann v.

Hanger Orthopedic Group, Inc., 353 F. 3d 338, 347–349 (CA4 2003);

Pirraglia v. Novell, Inc., 339 F. 3d 1182, 1187–1188 (CA10 2003);

Gompper v. VISX, Inc., 298 F. 3d 893, 896–897 (CA9 2002); Helwig v.

Vencor, Inc., 251 F. 3d 540, 553 (CA6 2001) (en banc).

Cite as: 551 U. S. ____ (2007) 7

Opinion of the Court

Section 10(b), this Court has implied from the statute’s

text and purpose, affords a right of action to purchasers or

sellers of securities injured by its violation. See, e.g., Dura

Pharmaceuticals, 544 U. S., at 341. See also id., at 345

(“The securities statutes seek to maintain public confi

dence in the marketplace . . . . by deterring fraud, in part,

through the availability of private securities fraud ac

tions.”); Borak, 377 U. S., at 432 (private securities fraud

actions provide “a most effective weapon in the enforce

ment” of securities laws and are “a necessary supplement

to Commission action”). To establish liability under §10(b)

and Rule 10b–5, a private plaintiff must prove that the

defendant acted with scienter, “a mental state embracing

intent to deceive, manipulate, or defraud.” Ernst & Ernst,

425 U. S., at 193–194, and n. 12.3

In an ordinary civil action, the Federal Rules of Civil

Procedure require only “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed.

Rule Civ. Proc. 8(a)(2). Although the rule encourages

brevity, the complaint must say enough to give the defen

dant “fair notice of what the plaintiff’s claim is and the

grounds upon which it rests.” Dura Pharmaceuticals, 544

U. S., at 346 (internal quotation marks omitted). Prior to

the enactment of the PSLRA, the sufficiency of a com

plaint for securities fraud was governed not by Rule 8, but

by the heightened pleading standard set forth in Rule 9(b).

See Greenstone v. Cambex Corp., 975 F. 2d 22, 25 (CA1

——————

3 We have previously reserved the question whether reckless behavior

is sufficient for civil liability under §10(b) and Rule 10b–5. See Ernst &

Ernst v. Hochfelder, 425 U. S. 185, 194, n. 12 (1976). Every Court of

Appeals that has considered the issue has held that a plaintiff may

meet the scienter requirement by showing that the defendant acted

intentionally or recklessly, though the Circuits differ on the degree of

recklessness required. See Ottmann, 353 F. 3d, at 343 (collecting

cases). The question whether and when recklessness satisfies the

scienter requirement is not presented in this case.

8 TELLABS, INC. v. MAKOR ISSUES & RIGHTS, LTD.

Opinion of the Court

1992) (Breyer, J.) (collecting cases). Rule 9(b) applies to

“all averments of fraud or mistake”; it requires that “the

circumstances constituting fraud . . . be stated with par

ticularity” but provides that “[m]alice, intent, knowledge,

and other condition of mind of a person, may be averred

generally.”

Courts of Appeals diverged on the character of the Rule

9(b) inquiry in §10(b) cases: Could securities fraud plain

tiffs allege the requisite mental state “simply by stating

that scienter existed,” In re GlenFed, Inc. Securities Liti

gation, 42 F. 3d 1541, 1546–1547 (CA9 1994) (en banc), or

were they required to allege with particularity facts giving

rise to an inference of scienter? Compare id., at 1546 (“We

are not permitted to add new requirements to Rule 9(b)

simply because we like the effects of doing so.”), with, e.g.,

Greenstone, 975 F. 2d, at 25 (were the law to permit a

securities fraud complaint simply to allege scienter with

out supporting facts, “a complaint could evade too easily

the ‘particularity’ requirement in Rule 9(b)’s first sen

tence”). Circuits requiring plaintiffs to allege specific facts

indicating scienter expressed that requirement variously.

See 5A C. Wright & A. Miller, Federal Practice and Proce

dure §1301.1, pp. 300–302 (3d ed. 2004) (hereinafter

Wright & Miller). The Second Circuit’s formulation was

the most stringent. Securities fraud plaintiffs in that

Circuit were required to “specifically plead those [facts]

which they assert give rise to a strong inference that the

defendants had” the requisite state of mind. Ross v. A. H.

Robins Co., 607 F. 2d 545, 558 (1979) (emphasis added).

The “strong inference” formulation was appropriate, the

Second Circuit said, to ward off allegations of “fraud by

hindsight.” See, e.g., Shields v. Citytrust Bancorp, Inc., 25

F. 3d 1124, 1129 (1994) (quoting Denny v. Barber, 576

F. 2d 465, 470 (CA2 1978) (Friendly, J.)).

Setting a uniform pleading standard for §10(b) actions

was among Congress’ objectives when it enacted the

Cite as: 551 U. S. ____ (2007) 9

Opinion of the Court

PSLRA. Designed to curb perceived abuses of the §10(b)

private action—“nuisance filings, targeting of deep-pocket

defendants, vexatious discovery requests and manipula

tion by class action lawyers,” Dabit, 547 U. S., at 81 (quot

ing H. R. Conf. Rep. No. 104–369, p. 31 (1995) (hereinafter

H. R. Conf. Rep.))—the PSLRA installed both substantive

and procedural controls.4 Notably, Congress prescribed

new procedures for the appointment of lead plaintiffs and

lead counsel. This innovation aimed to increase the likeli

hood that institutional investors—parties more likely to

balance the interests of the class with the long-term inter

ests of the company—would serve as lead plaintiffs. See

id., at 33–34; S. Rep. No. 104–98, p. 11 (1995). Congress

also “limit[ed] recoverable damages and attorney’s fees,

provide[d] a ‘safe harbor’ for forward-looking statements,

. . . mandate[d] imposition of sanctions for frivolous litiga

tion, and authorize[d] a stay of discovery pending resolu

tion of any motion to dismiss.” Dabit, 547 U. S., at 81.

And in §21D(b) of the PSLRA, Congress “impose[d]

heightened pleading requirements in actions brought

pursuant to §10(b) and Rule 10b–5.” Ibid.

Under the PSLRA’s heightened pleading instructions,

any private securities complaint alleging that the defen

dant made a false or misleading statement must: (1) “spec

ify each statement alleged to have been misleading [and]

the reason or reasons why the statement is misleading,”

15 U. S. C. §78u–4(b)(1); and (2) “state with particularity

facts giving rise to a strong inference that the defendant

acted with the required state of mind,” §78u–4(b)(2). In

the instant case, as earlier stated, see supra, at 5, the

——————

4 Nothing in the Act, we have previously noted, casts doubt on the

conclusion “that private securities litigation [i]s an indispensable tool

with which defrauded investors can recover their losses”—a matter

crucial to the integrity of domestic capital markets. See Merrill Lynch,

Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71, 81 (2006) (internal

quotation marks omitted).

10 TELLABS, INC. v. MAKOR ISSUES & RIGHTS, LTD.

Opinion of the Court

District Court and the Seventh Circuit agreed that the

Shareholders met the first of the two requirements: The

complaint sufficiently specified Notebaert’s alleged mis

leading statements and the reasons why the statements

were misleading. 303 F. Supp. 2d, at 955–961; 437 F. 3d,

at 596–600. But those courts disagreed on whether the

Shareholders, as required by §21D(b)(2), “state[d] with

particularity facts giving rise to a strong inference that

[Notebaert] acted with [scienter],” §78u–4(b)(2). See

supra, at 5.

The “strong inference” standard “unequivocally raise[d]

the bar for pleading scienter,” 437 F. 3d, at 601, and sig

naled Congress’ purpose to promote greater uniformity

among the Circuits, see H. R. Conf. Rep., p. 41. But

“Congress did not . . . throw much light on what facts . . .

suffice to create [a strong] inference,” or on what “degree

of imagination courts can use in divining whether” the

requisite inference exists. 437 F. 3d, at 601. While adopt

ing the Second Circuit’s “strong inference” standard, Con

gress did not codify that Circuit’s case law interpreting the

standard. See §78u–4(b)(2). See also Brief for United

States as Amicus Curiae 18. With no clear guide from

Congress other than its “inten[tion] to strengthen existing

pleading requirements,” H. R. Conf. Rep., p. 41, Courts of

Appeals have diverged again, this time in construing the

term “strong inference.” Among the uncertainties, should

courts consider competing inferences in determining

whether an inference of scienter is “strong”? See 437

F. 3d, at 601–602 (collecting cases). Our task is to pre

scribe a workable construction of the “strong inference”

standard, a reading geared to the PSLRA’s twin goals: to

curb frivolous, lawyer-driven litigation, while preserving

investors’ ability to recover on meritorious claims.

Cite as: 551 U. S. ____ (2007) 11

Opinion of the Court

III

A

We establish the following prescriptions: First, faced

with a Rule 12(b)(6) motion to dismiss a §10(b) action,

courts must, as with any motion to dismiss for failure to

plead a claim on which relief can be granted, accept all

factual allegations in the complaint as true. See Leather-

man v. Tarrant County Narcotics Intelligence and Coordi

nation Unit, 507 U. S. 163, 164 (1993). On this point, the

parties agree. See Reply Brief 8; Brief for Respondents 26;

Brief for United States as Amicus Curiae 8, 20, 21.

Second, courts must consider the complaint in its en

tirety, as well as other sources courts ordinarily examine

when ruling on Rule 12(b)(6) motions to dismiss, in par

ticular, documents incorporated into the complaint by

reference, and matters of which a court may take judicial

notice. See 5B Wright & Miller §1357 (3d ed. 2004 and

Supp. 2007). The inquiry, as several Courts of Appeals

have recognized, is whether all of the facts alleged, taken

collectively, give rise to a strong inference of scienter, not

whether any individual allegation, scrutinized in isolation,

meets that standard. See, e.g., Abrams v. Baker Hughes

Inc., 292 F. 3d 424, 431 (CA5 2002); Gompper v. VISX,

Inc., 298 F. 3d 893, 897 (CA9 2002). See also Brief for

United States as Amicus Curiae 25.

Third, in determining whether the pleaded facts give

rise to a “strong” inference of scienter, the court must take

into account plausible opposing inferences. The Seventh

Circuit expressly declined to engage in such a comparative

inquiry. A complaint could survive, that court said, as

long as it “alleges facts from which, if true, a reasonable

person could infer that the defendant acted with the re

quired intent”; in other words, only “[i]f a reasonable

person could not draw such an inference from the alleged

facts” would the defendant prevail on a motion to dismiss.

437 F. 3d, at 602. But in §21D(b)(2), Congress did not

12 TELLABS, INC. v. MAKOR ISSUES & RIGHTS, LTD.

Opinion of the Court

merely require plaintiffs to “provide a factual basis for

[their] scienter allegations,” ibid. (quoting In re Cerner

Corp. Securities Litigation, 425 F. 3d 1079, 1084, 1085

(CA8 2005)), i.e., to allege facts from which an inference of

scienter rationally could be drawn. Instead, Congress

required plaintiffs to plead with particularity facts that

give rise to a “strong”—i.e., a powerful or cogent—

inference. See American Heritage Dictionary 1717 (4th

ed. 2000) (defining “strong” as “[p]ersuasive, effective, and

cogent”); 16 Oxford English Dictionary 949 (2d ed. 1989)

(defining “strong” as “[p]owerful to demonstrate or con

vince” (definition 16b)); cf. 7 id., at 924 (defining “infer

ence” as “a conclusion [drawn] from known or assumed

facts or statements”; “reasoning from something known or

assumed to something else which follows from it”).

The strength of an inference cannot be decided in a

vacuum. The inquiry is inherently comparative: How

likely is it that one conclusion, as compared to others,

follows from the underlying facts? To determine whether

the plaintiff has alleged facts that give rise to the requisite

“strong inference” of scienter, a court must consider plau

sible nonculpable explanations for the defendant’s con

duct, as well as inferences favoring the plaintiff. The

inference that the defendant acted with scienter need not

be irrefutable, i.e., of the “smoking-gun” genre, or even the

“most plausible of competing inferences,” Fidel, 392 F. 3d,

at 227 (quoting Helwig v. Vencor, Inc., 251 F. 3d 540, 553

(CA6 2001) (en banc)). Recall in this regard that §21D(b)’s

pleading requirements are but one constraint among many

the PSLRA installed to screen out frivolous suits, while

allowing meritorious actions to move forward. See supra,

at 9, and n. 4. Yet the inference of scienter must be more

than merely “reasonable” or “permissible”—it must be

cogent and compelling, thus strong in light of other expla

nations. A complaint will survive, we hold, only if a rea

sonable person would deem the inference of scienter co

Cite as: 551 U. S. ____ (2007) 13

Opinion of the Court

gent and at least as compelling as any opposing inference

one could draw from the facts alleged.5

B

Tellabs contends that when competing inferences are

considered, Notebaert’s evident lack of pecuniary motive

will be dispositive. The Shareholders, Tellabs stresses, did

not allege that Notebaert sold any shares during the class

period. See Brief for Petitioners 50 (“The absence of any

allegations of motive color all the other allegations puta

tively giving rise to an inference of scienter.”). While it is

——————

5 JUSTICE SCALIA objects to this standard on the ground that “[i]f a

jade falcon were stolen from a room to which only A and B had access,”

it could not “possibly be said there was a ‘strong inference’ that B was

the thief.” Post, at 1 (opinion concurring in judgment) (emphasis in

original). I suspect, however, that law enforcement officials as well as

the owner of the precious falcon would find the inference of guilt as to B

quite strong—certainly strong enough to warrant further investigation.

Indeed, an inference at least as likely as competing inferences can, in

some cases, warrant recovery. See Summers v. Tice, 33 Cal. 2d 80, 84–

87, 199 P. 2d 1, 3–5 (1948) (in bank) (plaintiff wounded by gunshot

could recover from two defendants, even though the most he could

prove was that each defendant was at least as likely to have injured

him as the other); Restatement (Third) of Torts §28(b), Comment e, p.

504 (Proposed Final Draft No. 1, Apr. 6, 2005) (“Since the publication of

the Second Restatement in 1965, courts have generally accepted the

alternative-liability principle of [Summers v. Tice, adopted in] §433B(3),

while fleshing out its limits.”). In any event, we disagree with JUSTICE

SCALIA that the hardly stock term “strong inference” has only one

invariably right (“natural” or “normal”) reading—his. See post, at 3.

JUSTICE ALITO agrees with JUSTICE SCALIA, and would transpose to

the pleading stage “the test that is used at the summary-judgment and

judgment-as-a-matter-of-law stages.” Post, at 3 (opinion concurring in

judgment). But the test at each stage is measured against a different

backdrop. It is improbable that Congress, without so stating, intended

courts to test pleadings, unaided by discovery, to determine whether

there is “no genuine issue as to any material fact.” See Fed. Rule Civ.

Proc. 56(c). And judgment as a matter of law is a post-trial device,

turning on the question whether a party has produced evidence “legally

sufficient” to warrant a jury determination in that party’s favor. See

Rule 50(a)(1).

14 TELLABS, INC. v. MAKOR ISSUES & RIGHTS, LTD.

Opinion of the Court

true that motive can be a relevant consideration, and

personal financial gain may weigh heavily in favor of a

scienter inference, we agree with the Seventh Circuit that

the absence of a motive allegation is not fatal. See 437

F. 3d, at 601. As earlier stated, supra, at 11, allegations

must be considered collectively; the significance that can

be ascribed to an allegation of motive, or lack thereof,

depends on the entirety of the complaint.

Tellabs also maintains that several of the Shareholders’

allegations are too vague or ambiguous to contribute to a

strong inference of scienter. For example, the Sharehold

ers alleged that Tellabs flooded its customers with un

wanted products, a practice known as “channel stuffing.”

See supra, at 3. But they failed, Tellabs argues, to specify

whether the channel stuffing allegedly known to Note

baert was the illegitimate kind (e.g., writing orders for

products customers had not requested) or the legitimate

kind (e.g., offering customers discounts as an incentive to

buy). Brief for Petitioners 44–46; Reply Brief 8. See also

id., at 8–9 (complaint lacks precise dates of reports critical

to distinguish legitimate conduct from culpable conduct).

But see 437 F. 3d, at 598, 603–604 (pointing to multiple

particulars alleged by the Shareholders, including specifi

cations as to timing). We agree that omissions and ambi

guities count against inferring scienter, for plaintiffs must

“state with particularity facts giving rise to a strong infer

ence that the defendant acted with the required state of

mind.” §78u–4(b)(2). We reiterate, however, that the

court’s job is not to scrutinize each allegation in isolation

but to assess all the allegations holistically. See supra, at

11; 437 F. 3d, at 601. In sum, the reviewing court must

ask: When the allegations are accepted as true and taken

collectively, would a reasonable person deem the inference

of scienter at least as strong as any opposing inference? 6

——————

6 The Seventh Circuit held that allegations of scienter made against

Cite as: 551 U. S. ____ (2007)

15

Opinion of the Court

IV

Accounting for its construction of §21D(b)(2), the Sev

enth Circuit explained that the court “th[ought] it wis[e] to

adopt an approach that [could not] be misunderstood as a

usurpation of the jury’s role.” 437 F. 3d, at 602. In our

view, the Seventh Circuit’s concern was undue.7 A court’s

comparative assessment of plausible inferences, while

constantly assuming the plaintiff’s allegations to be true,

we think it plain, does not impinge upon the Seventh

Amendment right to jury trial.8

Congress, as creator of federal statutory claims, has

power to prescribe what must be pleaded to state the

claim, just as it has power to determine what must be

proved to prevail on the merits. It is the federal law

——————

one defendant cannot be imputed to all other individual defendants.

437 F. 3d, at 602–603. See also id., at 603 (to proceed beyond the

pleading stage, the plaintiff must allege as to each defendant facts

sufficient to demonstrate a culpable state of mind regarding his or her

violations) (citing Phillips v. Scientific-Atlanta, Inc., 374 F. 3d 1015,

1018 (CA11 2004)). Though there is disagreement among the Circuits

as to whether the group pleading doctrine survived the PSLRA, see,

e.g., Southland Securities Corp. v. Inspire Ins. Solutions Inc., 365 F. 3d

353, 364 (CA5 2004), the Shareholders do not contest the Seventh

Circuit’s determination, and we do not disturb it.

7 The Seventh Circuit raised the possibility of a Seventh Amendment

problem on its own initiative. The Shareholders did not contend below

that dismissal of their complaint under §21D(b)(2) would violate their

right to trial by jury. Cf. Monroe Employees Retirement System v.

Bridgestone Corp., 399 F. 3d 651, 683, n. 25 (CA6 2005) (noting possible

Seventh Amendment argument but declining to address it when not

raised by plaintiffs).

8 In numerous contexts, gatekeeping judicial determinations prevent

submission of claims to a jury’s judgment without violating the Seventh

Amendment. See, e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U. S. 579, 589 (1993) (expert testimony can be excluded based on

judicial determination of reliability); Neely v. Martin K. Eby Constr.

Co., 386 U. S. 317, 321 (1967) (judgment as a matter of law); Pease v.

Rathbun-Jones Engineering Co., 243 U. S. 273, 278 (1917) (summary

judgment).

16 TELLABS, INC. v. MAKOR ISSUES & RIGHTS, LTD.

Opinion of the Court

maker’s prerogative, therefore, to allow, disallow, or shape

the contours of—including the pleading and proof re

quirements for—§10(b) private actions. No decision of this

Court questions that authority in general, or suggests, in

particular, that the Seventh Amendment inhibits Con

gress from establishing whatever pleading requirements it

finds appropriate for federal statutory claims. Cf.

Swierkiewicz v. Sorema N. A., 534 U. S. 506, 512–513

(2002); Leatherman, 507 U. S., at 168 (both recognizing

that heightened pleading requirements can be established

by Federal Rule, citing Fed. Rule Civ. Proc. 9(b),

which requires that fraud or mistake be pleaded with

particularity).9

Our decision in Fidelity & Deposit Co. of Md. v. United

States, 187 U. S. 315 (1902), is instructive. That case

concerned a rule adopted by the Supreme Court of the

District of Columbia in 1879 pursuant to rulemaking

power delegated by Congress. The rule required defen

dants, in certain contract actions, to file an affidavit “spe

cifically stating . . . , in precise and distinct terms, the

grounds of his defen[s]e.” Id., at 318 (internal quotation

marks omitted). The defendant’s affidavit was found

insufficient, and judgment was entered for the plaintiff,

whose declaration and supporting affidavit had been found

satisfactory. Ibid. This Court upheld the District’s rule

against the contention that it violated the Seventh

Amendment. Id., at 320. Just as the purpose of §21D(b) is

to screen out frivolous complaints, the purpose of the

prescription at issue in Fidelity & Deposit Co. was to

“preserve the courts from frivolous defen[s]es,” ibid. Ex

——————

9 Any heightened pleading rule, including Fed. Rule Civ. Proc. 9(b),

could have the effect of preventing a plaintiff from getting discovery on

a claim that might have gone to a jury, had discovery occurred and

yielded substantial evidence. In recognizing Congress’ or the Federal

Rule makers’ authority to adopt special pleading rules, we have de

tected no Seventh Amendment impediment.

Cite as: 551 U. S. ____ (2007) 17

Opinion of the Court

plaining why the Seventh Amendment was not implicated,

this Court said that the heightened pleading rule simply

“prescribes the means of making an issue,” and that, when

“[t]he issue [was] made as prescribed, the right of trial by

jury accrues.” Ibid.; accord Ex parte Peterson, 253 U. S.

300, 310 (1920) (Brandeis, J.) (citing Fidelity & Deposit

Co., and reiterating: “It does not infringe the constitu

tional right to a trial by jury [in a civil case], to require,

with a view to formulating the issues, an oath by each

party to the facts relied upon.”). See also Walker v. New

Mexico & Southern Pacific R. Co., 165 U. S. 593, 596

(1897) (Seventh Amendment “does not attempt to regulate

matters of pleading”).

In the instant case, provided that the Shareholders have

satisfied the congressionally “prescribe[d] . . . means of

making an issue,” Fidelity & Deposit Co., 187 U. S., at 320,

the case will fall within the jury’s authority to assess the

credibility of witnesses, resolve any genuine issues of fact,

and make the ultimate determination whether Notebaert

and, by imputation, Tellabs acted with scienter. We em

phasize, as well, that under our construction of the “strong

inference” standard, a plaintiff is not forced to plead more

than she would be required to prove at trial. A plaintiff

alleging fraud in a §10(b) action, we hold today, must

plead facts rendering an inference of scienter at least as

likely as any plausible opposing inference. At trial, she

must then prove her case by a “preponderance of the

evidence.” Stated otherwise, she must demonstrate that it

is more likely than not that the defendant acted with

scienter. See Herman & MacLean v. Huddleston, 459

U. S. 375, 390 (1983).

* * *

While we reject the Seventh Circuit’s approach to

§21D(b)(2), we do not decide whether, under the standard

we have described, see supra, at 11–14, the Shareholders’

18 TELLABS, INC. v. MAKOR ISSUES & RIGHTS, LTD.

Opinion of the Court

allegations warrant “a strong inference that [Notebaert

and Tellabs] acted with the required state of mind,” 15

U. S. C. §78u–4(b)(2). Neither the District Court nor the

Court of Appeals had the opportunity to consider the

matter in light of the prescriptions we announce today.

We therefore vacate the Seventh Circuit’s judgment so

that the case may be reexamined in accord with our con

struction of §21D(b)(2).

The judgment of the Court of Appeals is vacated, and

the case is remanded for further proceedings consistent

with this opinion.

It is so ordered.

Cite as: 551 U. S. ____ (2007) 1

SCALIA, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–484

_________________

TELLABS, INC., ET AL., PETITIONERS v. MAKOR

ISSUES & RIGHTS, LTD., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 21, 2007]

JUSTICE SCALIA, concurring in the judgment.

I fail to see how an inference that is merely “at least as

compelling as any opposing inference,” ante, at 2, can

conceivably be called what the statute here at issue re

quires: a “strong inference,” 15 U. S. C. §78u–4(b)(2). If a

jade falcon were stolen from a room to which only A and B

had access, could it possibly be said there was a “strong

inference” that B was the thief? I think not, and I there

fore think that the Court’s test must fail. In my view, the

test should be whether the inference of scienter (if any) is

more plausible than the inference of innocence.*

The Court’s explicit rejection of this reading, ante, at 12,

rests on two assertions. The first (doubtless true) is that

the statute does not require that “[t]he inference that the

defendant acted with scienter . . . be irrefutable, i.e., of the

——————

* The Court suggests that “the owner of the precious falcon would

find the inference of guilt as to B quite strong.” Ante, at 13, n. 5. If he

should draw such an inference, it would only prove the wisdom of the

ancient maxim “aliquis non debet esse Judex in propria causa”—no man

ought to be a judge of his own cause. Dr. Bonham’s Case, 8 Co. 107a,

114a, 118a, 77 Eng. Rep. 638, 646, 652 (C. P. 1610). For it is quite clear

(from the dispassionate perspective of one who does not own a jade

falcon) that a possibility, even a strong possibility, that B is responsible

is not a strong inference that B is responsible. “Inference” connotes

“belief” in what is inferred, and it would be impossible to form a strong

belief that it was B and not A, or A and not B.

2 TELLABS, INC. v. MAKOR ISSUES & RIGHTS, LTD.

SCALIA, J., concurring in judgment

‘smoking-gun’ genre,” ibid. It is up to Congress, however,

and not to us, to determine what pleading standard would

avoid those extremities while yet effectively deterring

baseless actions. Congress has expressed its determina

tion in the phrase “strong inference”; it is our job to give

that phrase its normal meaning. And if we are to abandon

text in favor of unexpressed purpose, as the Court does, it

is inconceivable that Congress’s enactment of stringent

pleading requirements in the Private Securities Litigation

Reform Act of 1995 somehow manifests the purpose of

giving plaintiffs the edge in close cases.

The Court’s second assertion (also true) is that “an

inference at least as likely as competing inferences can, in

some cases, warrant recovery.” Ante, at 13, n. 5 (citing

Summers v. Tice, 33 Cal. 2d 80, 84–87, 199 P. 2d 1, 3–5

(1948) (in bank)). Summers is a famous case, however,

because it sticks out of the ordinary body of tort law like a

sore thumb. It represented “a relaxation” of “such proof as

is ordinarily required” to succeed in a negligence action.

Id., at 86, 199 P. 2d, at 4 (internal quotation marks omit

ted). There is no indication that the statute at issue here

was meant to relax the ordinary rule under which a tie

goes to the defendant. To the contrary, it explicitly

strengthens that rule by extending it to the pleading stage

of a case.

One of petitioners’ amici suggests that my reading of the

statute would transform the text from requiring a “strong”

inference to requiring the “strongest” inference. See Brief

for American Association for Justice as Amicus Curiae 27.

The point might have some force if Congress could have

more clearly adopted my standard by using the word

“strongest” instead of the word “strong.” But the use of

the superlative would not have made any sense given the

provision’s structure: What does it mean to require a

plaintiff to plead “facts giving rise to the strongest infer

ence that the defendant acted with the required state of

Cite as: 551 U. S. ____ (2007) 3

SCALIA, J., concurring in judgment

mind”? It is certainly true that, if Congress had wanted to

adopt my standard with even greater clarity, it could have

restructured the entire provision—to require, for example,

that the plaintiff plead “facts giving rise to an inference of

scienter that is more compelling than the inference that the

defendant acted with a nonculpable state of mind.” But if

one is to consider the possibility of total restructuring, it is

equally true that, to express the Court’s standard, Con

gress could have demanded “an inference of scienter that is

at least as compelling as the inference that the defendant

acted with a nonculpable state of mind.” Argument from

the possibility of saying it differently is clearly a draw.

We must be content to give “strong inference” its normal

meaning. I hasten to add that, while precision of interpre

tation should always be pursued for its own sake, I doubt

that in this instance what I deem to be the correct test will

produce results much different from the Court’s. How

often is it that inferences are precisely in equipoise? All

the more reason, I think, to read the language for what it

says.

The Court and the dissent criticize me for suggesting

that there is only one reading of the text. Ante, at 13, n. 5;

post, at 2, n. 1 (STEVENS, J., dissenting). They are both

mistaken. I assert only that mine is the natural reading of

the statute (i.e., the normal reading), not that it is the only

conceivable one. The Court has no standing to object to

this approach, since it concludes that, in another respect,

the statute admits of only one natural reading, namely,

that competing inferences must be weighed because the

strong-inference requirement “is inherently comparative”

ante, at 12. As for the dissent, it asserts that the statute

cannot possibly have a natural and discernible meaning,

since “courts of appeals” and “Members of this Court”

“have divided” over the question. It was just weeks ago,

however, that the author of the dissent, joined by the

author of today’s opinion for the Court, concluded that a

4 TELLABS, INC. v. MAKOR ISSUES & RIGHTS, LTD.

SCALIA, J., concurring in judgment

statute’s meaning was “plain,” Rockwell Int’l Corp. v.

United States, 549 U. S. ___, ___ (2007) (slip op., at 1)

(STEVENS, J., dissenting), even though the Courts of Ap

peals and Members of this Court divided over the ques

tion, id., at __, n. 5 (slip op., at 12, n. 5). Was plain mean

ing then, as the dissent claims it is today, post, at 2, n. 1,

“in the eye of the beholder”?

It is unremarkable that various Justices in this case

reach different conclusions about the correct interpreta

tion of the statutory text. It is remarkable, however, that

the dissent believes that Congress “implicitly delegated

significant lawmaking authority to the Judiciary in de

termining how th[e] [strong-inference] standard should

operate in practice.” Post, at 1. This is language usually

employed to describe the discretion conferred upon admin

istrative agencies, which need not adopt what courts

would consider the interpretation most faithful to the text

of the statute, but may choose some other interpretation,

so long as it is within the bounds of the reasonable, and

may later change to some other interpretation that is

within the bounds of the reasonable. See Chevron U. S. A.

Inc. v. Natural Resources Defense Council, Inc., 467 U. S.

837 (1984). Courts, by contrast, must give the statute its

single, most plausible, reading. To describe this as an

exercise of “delegated lawmaking authority” seems to me

peculiar—unless one believes in lawmakers who have no

discretion. Courts must apply judgment, to be sure. But

judgment is not discretion.

Even if I agreed with the Court’s interpretation of

“strong inference,” I would not join the Court’s opinion

because of its frequent indulgence in the last remaining

legal fiction of the West: that the report of a single com

mittee of a single House expresses the will of Congress.

The Court says, for example, that “Congress’[s] purpose”

was “to promote greater uniformity among the Circuits,”

ante, at 10, relying for that certitude upon the statement

Cite as: 551 U. S. ____ (2007) 5

SCALIA, J., concurring in judgment

of managers accompanying a House Conference Commit

tee Report whose text was never adopted by the House,

much less by the Senate, and as far as we know was read

by almost no one. The Court is sure that Congress “ ‘in

ten[ded] to strengthen existing pleading requirements,’ ”

ibid., because—again—the statement of managers said so.

I come to the same conclusion for the much safer reason

that the law which Congress adopted (and which the

Members of both Houses actually voted on) so indicates.

And had the legislation not done so, the statement

of managers assuredly could not have remedied the

deficiency.

With the above exceptions, I am generally in agreement

with the Court’s analysis, and so concur in its judgment.

Cite as: 551 U. S. ____ (2007) 1

ALITO, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–484

_________________

TELLABS, INC., ET AL., PETITIONERS v. MAKOR

ISSUES & RIGHTS, LTD., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 21, 2007]

JUSTICE ALITO, concurring in the judgment.

I agree with the Court that the Seventh Circuit used an

erroneously low standard for determining whether the

plaintiffs in this case satisfied their burden of pleading

“with particularity facts giving rise to a strong inference

that the defendant acted with the required state of mind.”

15 U. S. C. §78u–4(b)(2). I further agree that the case

should be remanded to allow the lower courts to decide in

the first instance whether the allegations survive under

the correct standard. In two respects, however, I disagree

with the opinion of the Court. First, the best interpreta

tion of the statute is that only those facts that are alleged

“with particularity” may properly be considered in deter

mining whether the allegations of scienter are sufficient.

Second, I agree with JUSTICE SCALIA that a “strong infer

ence” of scienter, in the present context, means an infer

ence that is more likely than not correct.

I

On the first point, the statutory language is quite clear.

Section 78u–4(b)(2) states that “the complaint shall, with

respect to each act or omission alleged to violate this

chapter, state with particularity facts giving rise to a

strong inference that the defendant acted with the re

quired state of mind.” Thus, “a strong inference” of sci

2 TELLABS, INC. v. MAKOR ISSUES & RIGHTS, LTD.

ALITO, J., concurring in judgment

enter must arise from those facts that are stated “with

particularity.” It follows that facts not stated with the

requisite particularity cannot be considered in determin

ing whether the strong-inference test is met.

In dicta, however, the Court states that “omissions and

ambiguities” merely “count against” inferring scienter,

and that a court should consider all allegations of scienter,

even nonparticularized ones, when considering whether a

complaint meets the “strong inference” requirement. Ante,

at 14. Not only does this interpretation contradict the

clear statutory language on this point, but it undermines

the particularity requirement’s purpose of preventing a

plaintiff from using vague or general allegations in order

to get by a motion to dismiss for failure to state a claim.

Allowing a plaintiff to derive benefit from such allegations

would permit him to circumvent this important provision.

Furthermore, the Court’s interpretation of the particu

larity requirement in no way distinguishes it from normal

pleading review, under which a court naturally gives less

weight to allegations containing “omissions and ambigui

ties” and more weight to allegations stating particularized

facts. The particularity requirement is thus stripped of all

meaning.

Questions certainly may arise as to whether certain

allegations meet the statutory particularity requirement,

but where that requirement is violated, the offending

allegations cannot be taken into account.

II

I would also hold that a “strong inference that the de

fendant acted with the required state of mind” is an infer

ence that is stronger than the inference that the defendant

lacked the required state of mind. Congress has provided

very little guidance regarding the meaning of “strong

inference,” and the difference between the Court’s inter

pretation (the inference of scienter must be at least as

Cite as: 551 U. S. ____ (2007) 3

ALITO, J., concurring in judgment

strong as the inference of no scienter) and JUSTICE

SCALIA’s (the inference of scienter must be at least mar

ginally stronger than the inference of no scienter) is

unlikely to make any practical difference. The two ap

proaches are similar in that they both regard the critical

question as posing a binary choice (either the facts give

rise to a “strong inference” of scienter or they do not). But

JUSTICE SCALIA’s interpretation would align the pleading

test under §78u–4(b)(2) with the test that is used at the

summary-judgment and judgment-as-a-matter-of-law

stages, whereas the Court’s test would introduce a test

previously unknown in civil litigation. It seems more

likely that Congress meant to adopt a known quantity and

thus to adopt JUSTICE SCALIA’s approach.

Cite as: 551 U. S. ____ (2007) 1

STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–484

_________________

TELLABS, INC., ET AL., PETITIONERS v. MAKOR

ISSUES & RIGHTS, LTD., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 21, 2007]

JUSTICE STEVENS, dissenting.

As the Court explains, when Congress enacted a height

ened pleading requirement for private actions to enforce

the federal securities laws, it “left the key term ‘strong

inference’ undefined.” Ante, at 2. It thus implicitly dele

gated significant lawmaking authority to the Judiciary in

determining how that standard should operate in practice.

Today the majority crafts a perfectly workable definition

of the term, but I am persuaded that a different interpre

tation would be both easier to apply and more consistent

with the statute.

The basic purpose of the heightened pleading require

ment in the context of securities fraud litigation is to

protect defendants from the costs of discovery and trial in

unmeritorious cases. Because of its intrusive nature,

discovery may also invade the privacy interests of the

defendants and their executives. Like citizens suspected

of having engaged in criminal activity, those defendants

should not be required to produce their private effects

unless there is probable cause to believe them guilty of

misconduct. Admittedly, the probable-cause standard is

not capable of precise measurement, but it is a concept

that is familiar to judges. As a matter of normal English

usage, its meaning is roughly the same as “strong infer

ence.” Moreover, it is most unlikely that Congress in

2 TELLABS, INC. v. MAKOR ISSUES & RIGHTS, LTD.

STEVENS, J., dissenting

tended us to adopt a standard that makes it more difficult

to commence a civil case than a criminal case.1

In addition to the benefit of its grounding in an already

familiar legal concept, using a probable-cause standard

would avoid the unnecessary conclusion that “in determin

ing whether the pleaded facts give rise to a ‘strong’ infer

ence of scienter, the court must take into account plausible

opposing inferences.” Ante, at 11 (emphasis added). There

are times when an inference can easily be deemed strong

without any need to weigh competing inferences. For

example, if a known drug dealer exits a building immedi

ately after a confirmed drug transaction, carrying a suspi

cious looking package, a judge could draw a strong infer

ence that the individual was involved in the

aforementioned drug transaction without debating

whether the suspect might have been leaving the building

at that exact time for another unrelated reason.

If, using that same methodology, we assume (as we

must, see ante, at 11, 14) the truth of the detailed factual

allegations attributed to 27 different confidential infor

——————

1 The

meaning of a statute can only be determined on a case by case

basis and will, in each case, turn differently on the clarity of the statu

tory language, its context, and the intent of its drafters. Here, in my

judgment, a probable-cause standard is more faithful to the intent of

Congress, as expressed in both the specific pleading requirement and

the statute as a whole, than the more defendant-friendly interpretation

that JUSTICE SCALIA prefers. He is clearly wrong in concluding that in

divining the meaning of this term, we can merely “read the language

for what it says,” and that it is susceptible to only one reading. Ante, at

3 (opinion concurring in judgment). He argues that we “must be

content to give ‘strong inference’ its normal meaning,” ibid., and yet the

“normal meaning” of a term such as “strong inference” is surely in the

eye of the beholder. As the Court’s opinion points out, Courts of Ap

peals have divided on the meaning of the standard, see ante, at 2, 10,

and today, the Members of this Court have done the same. Although

JUSTICE SCALIA may disagree with the Court’s reading of the term, he

should at least acknowledge that, in this case, the term itself is open to

interpretation.

Cite as: 551 U. S. ____ (2007) 3

STEVENS, J., dissenting

mants described in the complaint, App. 91–93, and view

those allegations collectively, I think it clear that they

establish probable cause to believe that Tellabs’ chief

executive officer “acted with the required intent,” as the

Seventh Circuit held.2 437 F. 3d 588, 602 (2006).

Accordingly, I would affirm the judgment of the Court of

Appeals.

——————

2 The “channel stuffing” allegations in ¶¶ 62–72 of the amended com

plaint, App. 110–113, are particularly persuasive. Contrary to peti

tioners’ arguments that respondents’ allegations of channel stuffing

“are too vague or ambiguous to contribute to a strong inference of

scienter,” ante, at 13, this portion of the complaint clearly alleges that

Notebaert himself had specific knowledge of illegitimate channel

stuffing during the relevant time period. See, e.g., App. 111, ¶67

(“Defendant Notebaert worked directly with Tellabs’ sales personnel to

channel stuff SBC”); id., at 110–112 (alleging, in describing such

channel stuffing, that Tellabs took “extraordinary” steps that amounted

to “an abnormal practice in the industry”; that “distributors were upset

and later returned the inventory” (and, in the case of Verizon’s Chair

man, called Tellabs to complain); that customers “did not want” prod

ucts that Tellabs sent and that Tellabs employees wrote purchase

orders for; that “returns were so heavy during January and February

2001 that Tellabs had to lease extra storage space to accommodate all

the returns”; and that Tellabs “backdat[ed] sales” that actually took

place in 2001 to appear as having occurred in 2000). If these allega

tions are actually taken as true and viewed in the collective, it is hard

to imagine what competing inference could effectively counteract the

inference that Notebaert and Tellabs “ ‘acted with the required state of

mind.’ ” Ante, at 18 (opinion of the Court) (quoting 15 U. S. C. §78u–

4(b)(2)).