In Re Oracle Corp. Securities Litigation

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: ORACLE CORPORATION 

SECURITIES LITIGATION,

NURSING HOME PENSION FUND,

LOCAL 144; DRIFTON FINANCE No. 09-16502

CORPORATION; ROBERT D. SAWYER;

RYAN KUEHMICHEL; DZUNG CHU,  D.C. No.

3:01-cv-00988-SI

Plaintiffs-Appellants,

OPINION

v.

ORACLE CORPORATION; LAWRENCE J.

ELLISON; JEFFREY O. HENLEY;

EDWARD J. SANDERSON,

Defendants-Appellees.



Appeal from the United States District Court

for the Northern District of California

Susan Illston, District Judge, Presiding

Argued and Submitted

July 13, 2010—San Francisco, California

Filed November 16, 2010

Before: Ferdinand F. Fernandez and Richard C. Tallman,

Circuit Judges, and Thomas F. Hogan,

Senior United States District Judge.*

Opinion by Judge Tallman

*The Honorable Thomas F. Hogan, Senior United States District Judge

for the District of the District of Columbia, sitting by designation.

18529

18534 IN RE ORACLE CORPORATION SECURITIES LITIGATION

COUNSEL

Sanford Svetcov, Esq., Robbins Geller Rudman & Dowd,

LLP (argued); Shawn A. Williams, Esq., Susan K. Alexander,

Esq., Robbins Geller Rudman & Dowd, LLP, for plaintiffs-

appellants Nursing Home Pension Fund, et al.

Kathleen M. Sullivan, Esq., Quinn Emanuel Urquhart & Sulli-

van, LLP (argued); Patrick E. Gibbs, Esq., Peter A. Wald,

Esq., Latham & Watkins, LLP; for defendants-appellees Ora-

cle Corp., Lawrence Ellison, Jeffrey Henley, and Edward

Sanderson.

OPINION

TALLMAN, Circuit Judge:

Oracle Corporation is the second-largest producer of soft-

ware in the world. In the third quarter of its 2001 fiscal year,

Oracle missed its forecasted earnings per share by two cents.

Its stock price dropped. A legion of analysts blamed the miss

on a late-quarter reaction by several key customers to the

unfolding U.S. economic downturn that would become com-

monly known as the burst of the dot-com bubble. Plaintiffs,

several intra-quarter purchasers of Oracle common-stock,

brought this securities litigation against Oracle and three of its

officers alleging the miss was actually caused by an elaborate

scheme to defraud the public about the quality of Oracle prod-

ucts and the revenue gained therefrom. Because Plaintiffs

have not developed evidence sufficient to permit a reasonable

jury to conclude that their losses were caused by the market’s

reaction to Defendants’ alleged fraud, as opposed to Oracle’s

IN RE ORACLE CORPORATION SECURITIES LITIGATION 18535

poor financial health generally, we affirm the district court’s

order granting summary judgment in favor of Oracle.

I

Plaintiffs allege that: (1) Defendants violated Section 10(b)

of the Securities Exchange Act of 1934 (“Exchange Act”), 15

U.S.C. § 78j(b), and Securities Exchange Commission Rule

10b-5; (2) Oracle’s Chief Executive Officer Larry Ellison,

Chief Financial Officer Jeffrey Henley, and Executive Vice

President Edward Sanderson are liable as control persons

under Section 20(a) of the Exchange Act, 15 U.S.C. § 78t(a);

and (3) Henley and Ellison are liable for contemporaneous

trading under Section 20A of the Exchange Act, 15 U.S.C.

§ 78t-1(a). To support these allegations, Plaintiffs claim

Defendants made false and misleading statements about a new

software product, issued a false and misleading forecast for

the third quarter of Oracle’s 2001 fiscal year, made false and

misleading intra-quarter statements, and fraudulently over-

stated earnings for the second quarter of the 2001 fiscal year.

The following undisputed facts are relevant to those claims.

In May 2000, Oracle released integrated business software

called Suite 11i, a suite of programs designed to work

together to manage various company activities such as manu-

facturing, customer relations, sales, and accounting. Tradi-

tionally, enterprise resource planning (“ERP”) applications

performed functions such as accounting, human resources,

and manufacturing. Customer relationship management appli-

cations (“CRM”) performed functions such as managing call

centers. Through the late 1990s, businesses that used enter-

prise applications software could not obtain ERP and CRM

applications from the same vendor. Suite 11i was marketed as

an innovative product that would combine the two types of

applications.

The four quarters of Oracle’s 2001 fiscal year were: from

June 1 to August 31, 2000 (“1Q01”); from September 1 to

18536 IN RE ORACLE CORPORATION SECURITIES LITIGATION

November 30, 2000 (“2Q01”); from December 1, 2000, to

February 28, 2001 (“3Q01”); and from March 1 to May 31,

2001 (“4Q01”). In 1Q01 and 2Q01, Oracle earned a combined

$435 million in revenue from applications licenses. On

December 14, 2000, Oracle announced 2Q01 earnings per

share (“EPS”) of 11 cents and 66% growth in sales of Suite

11i applications. The same day, Oracle issued public guidance

for 3Q01 projecting EPS of 12 cents. This guidance was

based upon an accounting process that had generated projec-

tions that Oracle had met or exceeded for seven consecutive

quarters.

Historically, the majority of Oracle’s sales were made in

the final days of a quarter as customers waited for Oracle to

significantly lower prices in an attempt to meet its quarterly

projections. This trend was commonly referred to as “the

hockey-stick effect” because plotting the quarterly sales on a

graph resembled the shape of a hockey-stick—the sharp

upswing at the end representing the bulk of quarterly sales.

Oracle generates numerous internal financial reports

throughout any given quarter. Relevant to this litigation are

intra-quarter reports projecting quarterly EPS—called internal

forecasts—and intra-quarter reports aggregating the compa-

ny’s sales revenue at a given point in time—called flash

reports. Internal forecasts are an aggregation of the revenue

and growth data contained in flash reports. Whereas flash

reports take a snapshot of revenue and growth at the time they

are produced, internal forecasts are forward-looking and

involve a degree of extrapolation based on the judgment and

experience of corporate management.

From the beginning of 3Q01 on December 1, 2000, until

February 5, 2001, every internal forecast that Oracle produced

indicated that the company could fulfill its 3Q01 guidance.

However, from February 5, 2001, until the end of the quarter,

Oracle’s internally projected EPS began to fluctuate. A Febru-

ary 5 internal forecast projected a potential EPS of 11 cents.

IN RE ORACLE CORPORATION SECURITIES LITIGATION 18537

A February 12 internal forecast returned the quarter’s poten-

tial EPS to 12 cents. A February 19 internal forecast again

lowered the potential EPS to 11 cents. Then, a February 26

internal forecast—prepared two days prior to the end of the

quarter—again predicted a potential EPS of 11 cents. While

Oracle had exceeded late-quarter internal forecasts in quarters

past, the recurring surge in late-quarter sales historically

resulting from the hockey-stick effect did not materialize this

time.

On March 1, 2001, Oracle preliminarily announced a 3Q01

EPS of 10 cents—a two penny miss. The announcement

quoted Ellison as saying,

License growth was strong in the first two months of

Q3, and our internal sales forecast looked good up

until the last few days of the quarter. However, a

substantial number of our customers decided to

delay their IT spending based on the economic slow-

down in the United States. Sales growth for Oracle

products in Europe and Asia Pacific remained

strong. The problem is the U.S. economy.

On March 2, 2001, Oracle’s stock price dropped from $21.38

to $16.88.

Earlier in the quarter, Ellison and Henley had exercised

millions of Oracle stock options. Henley sold one million

Oracle shares for a total of $32 million on January 4, 2001.

Ellison sold 2.09% of his Oracle holdings between January 22

and January 31, 2001. A substantial amount of the shares sold

were acquired through options set to expire in August 2001.

In total, Ellison sold a little over 29 million Oracle shares for

approximately $895 million. Importantly, these sales predated

the first internal forecast indicating a potential EPS lower than

the quarterly guidance of 12 cents.

18538 IN RE ORACLE CORPORATION SECURITIES LITIGATION

II

The district court originally dismissed Plaintiffs’ revised

second amended complaint for failure to state a claim under

Federal Rule of Civil Procedure 12(b)(6), finding that the alle-

gations did not create a strong inference that intra-quarter

statements made by Defendants were known to be false when

made. See In re Oracle Corp. Sec. Litig., No. 01-CV-988,

2003 WL 23208956 (N.D. Cal. March 24, 2003). In Novem-

ber 2004 we reversed, holding that the operative complaint

met the heightened pleading requirements of the Private

Securities Litigation Reform Act (“PSLRA”). See Nursing

Home Pension Fund, Local 144 v. Oracle Corp., 380 F.3d

1226 (9th Cir. 2004). Copious discovery ensued.

On September 2, 2008, as a result of Defendants’ failure to

preserve all its potential evidence, the district court issued an

order concluding that Plaintiffs were entitled to adverse infer-

ences with regard to two categories of evidence: Ellison’s

email files and materials created in the process of writing the

book Softwar. As a sanction, the court ruled that Plaintiffs

would be entitled to an inference that the spoliated evidence

would demonstrate Ellison’s knowledge of any material facts

that Plaintiffs could otherwise establish.

Despite the absence of the missing Ellison emails and

tapes, discovery proceedings in this case produced over 134

deposition days, countless discovery requests and answers,

and over 2.1 million pages of documents. As the experienced

district judge quipped, the word “voluminous” does not do

justice to the record in this case. On October 20, 2008, Defen-

dants moved for summary judgment. Prior to the hearing on

summary judgment, Defendants made over eighty evidentiary

objections. Plaintiffs never responded to those objections—

notwithstanding the passage of four months between the sum-

mary judgment hearing and the district court’s final order.

On June 19, 2009, the district court made several key evi-

dentiary rulings and granted Defendants’ motion for summary

IN RE ORACLE CORPORATION SECURITIES LITIGATION 18539

judgment. In re Oracle Corp. Sec. Litig., No. 01-CV-988,

2009 WL 1709050 (N.D. Cal. June 19, 2009). The court con-

cluded that Plaintiffs had failed to create a genuine issue of

material fact as to (1) whether Oracle’s 3Q01 forecast lacked

a reasonable basis, (2) whether several intra-quarter state-

ments were false or misleading, (3) whether Plaintiffs’ loss

was caused by Defendants’ misrepresentations regarding

Suite 11i, and (4) whether Plaintiffs’ loss was caused by

Defendants’ misrepresentation of 2Q01 earnings. Plaintiffs

timely appealed.

III

Not surprisingly, Plaintiffs pursue numerous evidentiary

arguments on appeal.

A

We review the district court’s exclusion of evidence for an

abuse of discretion. United States v. Mitchell, 502 F.3d 931,

964 (9th Cir. 2007). A district court abuses its discretion if it

reaches a result that is illogical, implausible, or without sup-

port in inferences that may be drawn from facts in the record.

United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009)

(en banc). A district court’s ruling on a motion for summary

judgment may only be based on admissible evidence. Beyene

v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir.

1988) (citing Fed. R. Civ. P. 56(e)).

In this case, prior to the district court’s ruling on Defen-

dants’ motion for summary judgment, Plaintiffs failed to

respond to over eighty evidentiary objections made by Defen-

dants. There is much disagreement between the parties as to

whether or not each of these objections had been preemp-

tively addressed by Plaintiffs. Irrespective of that dispute, we

conclude the district court did not abuse its discretion on this

record.

18540 IN RE ORACLE CORPORATION SECURITIES LITIGATION

[1] Plaintiffs, as the parties seeking admission of most of

the evidence at issue, bore the burden of proof to show its

admissibility. Pfingston v. Ronan Eng’g Co., 284 F.3d 999,

1004 (9th Cir. 2002). Given the overwhelming volume of

documents before the district court, once Defendants objected

to the evidence Plaintiffs sought to be admitted, the onus was

on Plaintiffs to direct the district court’s attention to authenti-

cating documents, deposition testimony bearing on attribu-

tion, hearsay exceptions and exemptions, or other evidentiary

principles under which the evidence in question could be

deemed admissible by the district court. Plaintiffs failed to do

so.1 We cannot declare that the district court reached an illogi-

cal or implausible result by excluding apparent hearsay or

documents without sufficient foundational support as the rules

of evidence prescribe, or that the district court otherwise

exceeded the permissible bounds of its discretion by failing to

comb through the voluminous record searching for evidenti-

ary bases to introduce the evidence at issue. That was Plain-

tiffs’ obligation.

It behooves litigants, particularly in a case with a record of

this magnitude, to resist the temptation to treat judges as if

they were pigs sniffing for truffles. See Downs v. Los Angeles

Unified Sch. Dist., 228 F.3d 1003, 1007 n.1 (9th Cir. 2000)

(citing United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.

1991)). Moreover, for Plaintiffs to fail to respond to Defen-

dants’ objections, and to then challenge the district court’s

evidentiary rulings on appeal, is to invite the district court to

err and then complain of that very error. We cannot counte-

nance such a tactic on appeal. Cf. United States v. Reyes-

Alvarado, 963 F.2d 1184, 1187 (9th Cir. 1992) (“The doctrine

1

Plaintiffs now urge us to take judicial notice of certain deposition testi-

mony that they claim bears on the propriety of the district court’s hearsay

rulings. We decline Plaintiffs’ invitation. The proper place to call attention

to any such testimony was in front of the district court, and furthermore,

the content of a deposition is not a clearly established “fact” of which this

panel can take notice. See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th

Cir. 2007).

IN RE ORACLE CORPORATION SECURITIES LITIGATION 18541

of invited error prevents a [party] from complaining of an

error that was his own fault.”).

B

The district court found that Defendants wilfully failed to

preserve Ellison’s email files and taped discussions with the

author of the book Softwar. As a result, the district court gave

Plaintiffs the benefit of an adverse inference that the emails

and tapes would have proved Ellison’s knowledge of any

material facts that Plaintiffs were able to establish. Unsuc-

cessful in their efforts to persuade the district court that mate-

rial issues of fact actually existed, Plaintiffs now argue the

adverse inferences should not have been limited to Ellison’s

knowledge. Instead, they urge the inferences should be suffi-

cient to defeat a challenge to the insufficiency of their prima

facie case.

[2] We review a district court’s imposition of spoliation

sanctions for an abuse of discretion. Anheuser-Busch, Inc. v.

Natural Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995).

On this record, we see no abuse of discretion in the district

court’s construction and application of the adverse inferences.

Over 2.1 million documents were produced during discovery.

Although Ellison’s email account files were not produced, the

documents that were produced contained numerous email

chains in which Ellison’s correspondence was contained. If

there were material issues of fact supporting securities fraud,

Plaintiffs should have been able to glean them from the docu-

ments actually produced, the extensive deposition testimony,

and the written discovery between the parties. An adverse

inference would then properly apply to establish that Ellison

must have known of those damaging material facts. Plaintiffs’

problem here lies in the dearth of admissible evidence to show

fraud.

[3] A district court’s adverse inference sanction should be

carefully fashioned to deny the wrongdoer the fruits of its

18542 IN RE ORACLE CORPORATION SECURITIES LITIGATION

misconduct yet not interfere with that party’s right to produce

other relevant evidence. Campbell Indus. v. M/V Gemini, 619

F.2d 24, 27 (9th Cir. 1980). In light of the enormous record

developed in this case, the only conceivable benefit of Defen-

dants’ spoliation was the possibility of disclaiming Ellison’s

knowledge of any damaging facts underlying the purported

fraud. The district court’s sanction was carefully fashioned to

deny Defendants that benefit. As a result, there was no abuse

of discretion. See id.

IV

Turning to the merits of this dispute, we review the district

court’s order granting Defendants’ motion for summary judg-

ment de novo. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.

2004). We are mindful of the shifting burden of proof govern-

ing motions for summary judgment under Federal Rule of

Civil Procedure 56. The moving party initially bears the bur-

den of proving the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the

non-moving party bears the burden of proof at trial, the mov-

ing party need only prove that there is an absence of evidence

to support the non-moving party’s case. Id. at 325. Where the

moving party meets that burden, the burden then shifts to the

non-moving party to designate specific facts demonstrating

the existence of genuine issues for trial. Id. at 324. This bur-

den is not a light one. The non-moving party must show more

than the mere existence of a scintilla of evidence. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The non-

moving party must do more than show there is some “meta-

physical doubt” as to the material facts at issue. Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986). In fact, the non-moving party must come forth

with evidence from which a jury could reasonably render a

verdict in the non-moving party’s favor. Anderson, 477 U.S.

at 252. In determining whether a jury could reasonably render

a verdict in the non-moving party’s favor, all justifiable infer-

ences are to be drawn in its favor. Id. at 255.

IN RE ORACLE CORPORATION SECURITIES LITIGATION 18543

Plaintiffs allege Defendants violated Section 10(b) of the

Exchange Act and Securities Exchange Commission Rule

10b-5 promulgated thereunder. Section 10(b) makes it unlaw-

ful to “use or employ, in connection with the purchase or sale

of any security . . . any manipulative or deceptive device or

contrivance in contravention of such rules and regulations as

the Commission may prescribe.” 15 U.S.C. § 78j(b). The

scope of Rule 10b-5 is coextensive with that of Section 10(b).

SEC v. Zandford, 535 U.S. 813, 815 n.1 (2002). “In a typical

§ 10(b) private action a plaintiff must prove (1) a material

misrepresentation or omission by the defendant; (2) scienter;

(3) a connection between the misrepresentation or omission

and the purchase or sale of a security; (4) reliance upon the

misrepresentation or omission; (5) economic loss; and (6) loss

causation.” Stoneridge Inv. Partners, LLC v. Scientific-

Atlanta, Inc., 552 U.S. 148, 156 (2008) (citation omitted).

Plaintiffs argue that Defendants violated Section 10(b) by

(1) issuing a 3Q01 forecast that lacked a reasonable basis, (2)

making intra-quarter statements repeating the 3Q01 forecast

and denying the effects of a slowing economy with knowl-

edge of facts tending seriously to undermine those statements,

(3) misrepresenting the functionality and success of Suite 11i,

and (4) overstating 2Q01 earnings. Plaintiffs have not devel-

oped evidence that would allow a jury to reasonably conclude

that Defendants’ 3Q01 forecast or intra-quarter statements

constituted material misrepresentations or omissions. As to

their Suite 11i and 2Q01 claims, Plaintiffs cannot prove loss

causation because they have not developed evidence suffi-

cient to allow a jury to reasonably conclude that Defendants’

purported misrepresentations were a substantial cause of the

decline of Oracle’s stock price on March 2, 2001.

A

[4] For a forward-looking statement such as Oracle’s 3Q01

public guidance to constitute a material misrepresentation giv-

ing rise to Section 10(b) or Rule 10b-5 liability, a plaintiff

18544 IN RE ORACLE CORPORATION SECURITIES LITIGATION

must prove either “(1) the statement is not actually believed

[by the speaker], (2) there is no reasonable basis for the belief,

or (3) the speaker is aware of undisclosed facts tending seri-

ously to undermine the statement’s accuracy.” Provenz v. Mil-

ler, 102 F.3d 1478, 1487 (9th Cir. 1996) (citation omitted).

Plaintiffs allege that Defendants lacked a reasonable basis

for their belief in Oracle’s December 14, 2000, public guid-

ance for 3Q01 because the guidance failed to account for the

serious impact that purported Suite 11i defects had on sales or

the effects of a declining economy.2 Oracle’s 3Q01 forecast

was based on a “bottom up” assessment of revenue that began

with sales representatives and that had produced accurate but

conservative forecasts for seven consecutive quarters. We

describe it below. The structure of this process in and of itself

refutes Plaintiffs’ argument that the forecast did not account

for negative sales trends resulting from alleged Suite 11i

problems or the declining economy. As a result, Plaintiffs

have not established sufficient evidence from which a jury

could reasonably render a verdict in their favor.

The bottom-up process began with sales representatives

entering potential sales into a computer database. These

potential sales were known as the “pipeline.” Based on the

pipeline, sales representatives would submit a forecast indi-

cating what deals were likely to close and for how much.

These forecasts were then adjusted up or down by regional

managers based on that manager’s assessment of the likeli-

hood that those potential sales would close.

Regional forecasts were aggregated by Oracle’s Senior

2

On appeal, Defendants have disclaimed invocation of the PSLRA safe

harbor exempting from liability forward-looking statements “containing a

projection of revenues, income (including income loss), earnings (includ-

ing earnings loss) per share, capital expenditures, dividends, capital struc-

ture, or other financial items” that are also accompanied by meaningful

cautionary statements. 15 U.S.C. § 78u-5(i)(1)(A).

IN RE ORACLE CORPORATION SECURITIES LITIGATION 18545

Vice President of Global Finance and Operations, Jennifer

Minton. Minton would aggregate a forecast that adjusted the

underlying forecasts up or down depending on several factors.

Those factors included: a license pipeline conversion analysis;

a review of the status of certain large transactions and at times

a request for executive involvement to ensure that a deal prog-

ressed and closed; conversations with “key financial person-

nel” in the field to seek their “independent thinking” as to

whether or not the forecast was realistic; corrections to errors

made in the underlying forecast when it was originally sub-

mitted; and an adjustment for “sandbagging,” a label manage-

ment applied to understated forecasts by certain salespersons

and managers who consistently exceeded their forecasts in the

hope of generating larger bonuses.

In light of this process, Plaintiffs’ argument that Minton’s

forecast and Oracle’s guidance failed to take into account the

serious impact that purported Suite 11i defects had on sales

finds no support in the record. Baseline sales information sub-

mitted by sales representatives necessarily included any

alleged impact that Suite 11i problems had on sales. In addi-

tion, “the effects of the declining economy” were also neces-

sarily included in the size of deals and the probability of

closing that sales representatives estimated for the quarter.

[5] Plaintiffs’ strongest argument is that Minton took the

aggregate volume of potential sales revenue in the pipeline for

3Q01 and simply applied the 3Q00 “conversion ratio” to

come up with her 3Q01 forecast. Oracle’s “conversion ratio”

is calculated by dividing the potential sales revenue in the

pipeline at a given point in a quarter by the actual amount of

revenue closed at the end of a quarter. Plaintiffs thus maintain

that if Oracle’s 3Q01 guidance announced December 14,

2000, was solely established by applying the 3Q00 conversion

ratio to 3Q01 pipeline information, then the guidance would

have failed to have accounted for alleged Suite 11i problems

and the effects of the declining economy that had developed

18546 IN RE ORACLE CORPORATION SECURITIES LITIGATION

between 3Q00 and 3Q01. While appealing in the abstract, this

argument is unsupported by the record.

[6] Oracle did not solely apply the 3Q00 conversion ratio

to the pipeline at the outset of 3Q01 to come up with the fore-

cast. While Minton indicated in deposition testimony that she

heavily relied on the 3Q00 conversion ratio, Defendants intro-

duced an expert report containing a chart comparing the

actual conversion ratio at several points in 3Q00 to Minton’s

3Q01 forecast’s estimated conversion ratio for the same

points in 3Q01. The two ratios are different at each interval.

This comparison indicates that Minton took other factors into

account—such as information gathered from conversations

with key financial analysts within Oracle’s various divisions

as well as the likelihood of closing certain targeted large deals

—when determining the 3Q01 forecast. This conclusion is

corroborated by the deposition testimony of several Oracle

employees. While we must draw justifiable inferences in

Plaintiffs’ favor, Anderson, 477 U.S. at 255, the undisputed

chart renders unjustifiable any inference that Oracle’s guid-

ance was solely based on the 3Q00 conversion ratio.

[7] As a result of Oracle’s thorough forecasting process,

Plaintiffs are unable to prove that Defendants lacked at least

a reasonable basis for their belief in the 3Q01 forecast.3 More-

over, the fact that Oracle’s forecast turned out to be incorrect

does not retroactively make it a misrepresentation. See In re

VeriFone Sec. Litig., 11 F.3d 865, 871 (9th Cir. 1993) (“The

fact that the prediction proves to be wrong in hindsight does

not render the statement untrue when made.”) (citing Marx v.

3

Plaintiffs also argue that the 3Q01 forecast lacked a reasonable basis

as a result of two purported accounting frauds that resulted in a fraudu-

lently overstated EPS of 11 cents for 2Q01. First, we reject Plaintiffs’ rep-

resentation that the district court “found” a triable issue as to whether

2Q01 earnings were overstated. That representation is not supported by

the district court’s order. Second, in light of the forecasting process dis-

cussed supra, we reject Plaintiffs’ argument that the 3Q01 forecast was

rendered unreliable based upon fraudulently overstated 2Q01 earnings.

IN RE ORACLE CORPORATION SECURITIES LITIGATION 18547

Computer Scis. Corp., 507 F.2d 485, 489-90 (9th Cir. 1974));

Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 96 F.3d 1151,

1158-59 (9th Cir. 1996) (“[T]he Investors have not introduced

evidence that GE Capital lacked at least a reasonable basis for

their various representations, even though in hindsight they

may now appear a little too rosy.”). Therefore, a jury could

not reasonably conclude that Oracle’s 3Q01 forecast was a

material misrepresentation giving rise to Section 10(b) or

Rule 10b-5 liability.

B

[8] A statement can constitute a material misrepresentation

giving rise to Section 10(b) or Rule 10b-5 liability if there is

no reasonable basis for the speaker’s belief in the statement’s

accuracy or if the speaker is aware of undisclosed facts tend-

ing seriously to undermine the statement’s accuracy. Provenz,

102 F.3d at 1487. Plaintiffs argue that several intra-quarter

statements in which Defendants expressed confidence in the

3Q01 forecast or denied the effects of a weakening economy

were material misrepresentations. In light of the district

court’s evidentiary rulings, however, Plaintiffs are only able

to challenge the accuracy of two statements by Oracle manage-

ment.4 We conclude as a matter of law that neither of these

statements constituted a material misrepresentation.

Plaintiffs must “demonstrate that a particular statement,

when read in light of all the information then available to the

market, or a failure to disclose particular information, con-

veyed a false or misleading impression.” In re Convergent

Techs. Sec. Litig., 948 F.2d 507, 512 (9th Cir. 1991). They

must also show that Defendants engaged in “knowing” or “in-

4

Given our conclusion that Oracle’s December 14, 2000, guidance had

a reasonable basis, we do not address Plaintiffs’ challenges to December

14, 2000, and December 15, 2000, statements reaffirming that guidance,

which, unlike the district court, we view as part and parcel of the guidance

itself.

18548 IN RE ORACLE CORPORATION SECURITIES LITIGATION

tentional” conduct or acted with “deliberate recklessness.”

South Ferry LP, No. 2 v. Killinger, 542 F.3d 776, 782 (9th

Cir. 2008). In the securities context, “an actor is reckless if he

had reasonable grounds to believe material facts existed that

were misstated or omitted, but nonetheless failed to obtain

and disclose such facts although he could have done so with-

out extraordinary effort.” Howard v. Everex Sys., Inc., 228

F.3d 1057, 1064 (9th Cir. 2000) (citation omitted).

First, Plaintiffs allege that a February 13, 2001, statement

made by Executive Vice President George Roberts was a

material misrepresentation. Roberts purportedly said, “our

guidance remains the same that we indicated at the beginning

of Q3.” As previously discussed, Oracle’s internal forecasts

began to fluctuate on February 5, 2001. Plaintiffs thus argue

that Roberts’ February 13 statement was a material misrepre-

sentation.

[9] While the February 5, 2001, internal forecast indicated

a potential EPS of 11 cents, the February 12 internal forecast

returned the potential EPS to the original forecast of 12 cents.

Roberts’ statement was therefore supported by the February

12 internal forecast. The fact that the February 13 prediction

proved incorrect in hindsight does not make it untrue when

made. In re VeriFone Sec. Litig., 11 F.3d at 871. Rather, the

question is whether Roberts lacked at least a reasonable basis

for his representation when it was made, or whether he made

the representation with knowledge of facts tending to seri-

ously undermine its accuracy. Paracor Fin., Inc., 96 F.3d at

1158-59.

Plaintiffs base a considerable amount of their argument on

a single flash report produced on January 17, 2001. This

report indicates that, but for a single $60 million license deal

with Covisint, the December FY01 growth rate would have

been only six percent. With the Covisint deal, however,

December growth was thirty-five percent—ten points better

than the publicly forecasted twenty-five percent growth and

IN RE ORACLE CORPORATION SECURITIES LITIGATION 18549

twenty-five points better than the ten percent growth in

December FY00. We see no reason why a successful transac-

tion should be excluded from Oracle’s forecasting model.

Moreover, we note that information contained in such flash

reports and internal emails was necessarily included in Ora-

cle’s internal forecasts throughout the quarter—including the

February 12, 2001, internal forecast preceding Roberts’ state-

ment.

[10] We have previously said that issuers need not reveal

all internal projections. In re Stac Elecs. Sec. Litig., 89 F.3d

1399, 1411 (9th Cir. 1996) (citation omitted). Companies gen-

erate numerous estimates internally, and they may reveal the

projection they think best while withholding others, as long as

the projection revealed had a reasonable basis. Id. The most

recent internal forecast to precede Roberts’ statement sup-

ported Oracle’s 3Q01 guidance, and his statement therefore

had a reasonable basis. In addition, viewing the totality of the

information available to Roberts at the time he made the state-

ment, a jury could not reasonably conclude that he had knowl-

edge of facts tending seriously to undermine its accuracy.

[11] Second, Plaintiffs allege that a February 21, 2001,

public statement made by Henley, as repeated in a February

26, 2001, internal email, was a material misrepresentation. As

reflected in the email, Henley purportedly said, “we do not

expect the slowing economy, barring a serious slide to a

recession, to significantly impact near term guidance.”5 This

statement is not unambiguous. The contingency, “barring a

serious slide to a recession” and the modifier “significantly”

attached to “impact near term guidance” leave a reader with

a less-than-certain impression that Henley stood by Oracle’s

5

Unlike the district court, after de novo review, we view this statement

as a forward-looking projection bearing upon Oracle’s 3Q01 guidance. It

is thus arguably subject to the PSLRA safe harbor. See 15 U.S.C. § 78u-

5(i)(1)(A). However, Defendants have not invoked that provision on

appeal.

18550 IN RE ORACLE CORPORATION SECURITIES LITIGATION

3Q01 guidance. Furthermore, there is no dispute over the fact

that the United States economy slid to a recession beginning

in March 2001, when the dot-com bubble burst. See The

Business-Cycle Peak of March 2001, National Bureau of Eco-

nomic Research (Nov. 26, 2001), available at http://

www.nber.org/cycles/november2001/recessions.pdf. Henley’s

contingency therefore arose. His confidence in Oracle’s guid-

ance barring such a slide into a recession was not a material

misrepresentation.6

C

At the heart of Plaintiffs’ Suite 11i argument is their funda-

mental disagreement with the district court’s theory of loss

causation. In the end, if Plaintiffs cannot establish loss

causation—the sixth element of a Section 10(b) violation—

then a jury could not reasonably return a verdict in their favor

on this claim. We see no error in the district court’s applica-

tion of precedent on this point.

[12] Loss causation is the causal connection between a

defendant’s material misrepresentation and a plaintiff’s loss.

Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 344-45 (2005).

“A plaintiff bears the burden of proving that a defendant’s

alleged unlawful act ‘caused the loss for which the plaintiff

seeks to recover damages.’ ” In re Gilead Scis. Sec. Litig., 536

F.3d 1049, 1055 (9th Cir. 2008) (quoting 15 U.S.C. § 78u-

4(b)(4)). In Dura, the Supreme Court held that a person who

misrepresents the financial condition of a corporation in order

to sell stock is only liable to a relying purchaser for the loss

the purchaser sustains when the facts “become generally

6

We note that this conclusion would also apply to Henley’s December

14, 2000, statement in which he hedged, “So, you know, if we were to

have a—I guess, a hard landing, a recession, depression, I mean certainly,

that could have some impact,” as well as his December 15, 2000, state-

ment in which he hedged, “If the economy got really really bad then obvi-

ously that would probably have some effect on all of us.”

IN RE ORACLE CORPORATION SECURITIES LITIGATION 18551

known” and “as a result” share value depreciates. 544 U.S. at

344-45. To adequately plead loss causation, the Court held, a

plaintiff must allege that the “share price fell significantly

after the truth became known.” Id. at 347.

The district court concluded that this case is analogous to

Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049,

1063 (9th Cir. 2008). We agree. In Metzler, the purported

fraud was the manipulation of student enrollment figures at a

college. Id. We applied Dura and indicated that loss causation

is not adequately pled unless a plaintiff alleges that the market

learned of and reacted to the practices the plaintiff contends

are fraudulent, as opposed to merely reports of the defen-

dant’s poor financial health generally. Id. The market need

not know at the time that the practices in question constitute

a “fraud,” nor label them “fraudulent”, but in order to estab-

lish loss causation, the market must learn of and react to those

particular practices themselves. Id. This reaction, in turn, must

be the cause of a plaintiff’s loss. Id. As the stock drop in

Metzler was not adequately alleged to be a result of the mar-

ket learning of and reacting to enrollment fraud, as opposed

to the college’s poor financial health generally, the plaintiffs

had not adequately pled loss causation. Id. at 1064.

[13] While Metzler addressed loss causation on a motion

to dismiss, our discussion of loss causation applies with even

greater force to our consideration of Defendants’ motion for

summary judgment in the present case. Plaintiffs take issue

with our opinion in Metzler. Specifically, they assert that they

should be able to prove loss causation by showing that the

market reacted to the purported “impact” of the alleged fraud

—the earnings miss—rather than to the fraudulent acts them-

selves. We reject that assertion. Loss causation requires more

than an earnings miss. See Dura, 544 U.S. at 343 (“To ‘touch

upon’ a loss is not to cause a loss, and it is the latter that the

law requires.”); Metzler, 540 F.3d at 1063 (“Loss causation

requires more.”). Loss causation is established if the market

learns of a defendant’s fraudulent act or practice, the market

18552 IN RE ORACLE CORPORATION SECURITIES LITIGATION

reacts to the fraudulent act or practice, and a plaintiff suffers

a loss as a result of the market’s reaction. See Metzler, 540

F.3d at 1063.

[14] Evaluating the totality of evidence in this case, we

hold that Plaintiffs are unable to create a triable dispute that

Oracle’s share price dropped as a result of the market learning

of and reacting to Defendants’ purported fraud, as opposed to

Oracle’s poor financial health generally. Plaintiffs allege a

fraud that consisted of statements misrepresenting the quality

and success of Oracle’s Suite 11i product. Even though Plain-

tiffs acknowledge that the market was already aware of initial

rollout issues with Suite 11i, Plaintiffs allege that Defendants’

misrepresentations downplayed defects in the product. The

alleged fraud in this case, therefore, concealed a purported

“truth” about Suite 11i. According to the Plaintiffs, the March

1, 2001 earnings miss revealed this “truth”: Suite 11i was

defective and customers had not bought it as a result of the

defects. Thus, Plaintiffs argue, the truth regarding Suite 11i

“[became] generally known” on March 1 and the stock price

dropped as a result.7 Dura, 544 U.S. at 345.

[15] Plaintiffs’ theory is unsupported by the record. The

overwhelming evidence produced during discovery indicates

the market understood Oracle’s earnings miss to be a result of

several deals lost in the final weeks of the quarter due to cus-

tomer concern over the declining economy. Numerous analyst

7

Plaintiffs argue that Oracle’s March 1 earnings announcement served

as the final piece of the puzzle regarding Suite 11i from investors’ point

of view, such that previous disclosures about 11i’s functionality do not

eliminate a triable issue as to loss causation. In certain circumstances, it

may be possible to prove loss causation even where the market reaction

and loss occur some time after an initial public disclosure of the fraud. See

Gilead, 536 F.3d at 1058. We merely conclude, as did the district court,

that nobody could reasonably find, based on the evidence admitted into the

record in this case, that Plaintiffs’ losses were caused substantially by mis-

statements separate and apart from other independent factors. See id. at

1055.

IN RE ORACLE CORPORATION SECURITIES LITIGATION 18553

reports support this conclusion. To be sure, the miss was

caused by customers not buying Oracle’s products. But the

market did not learn on March 1, 2001, that customers did not

buy Suite 11i as a result of defects. Instead, the market

learned that customers did not buy Oracle’s products in the

final weeks of the quarter as a result of uncertainty in an econ-

omy that would slide into a recession within the next month.

In other words, the market reacted to reports of Oracle’s

“poor financial health generally.” Metzler, 540 F.3d at 1063;

cf. In re Daou Sys., Inc., Sec. Litig., 411 F.3d 1006, 1026 (9th

Cir. 2005) (holding loss causation sufficiently pled where

analyst reports specifically noted, “[y]ou have got to question

whether they are manufacturing earnings”); see also In re

Williams Secs. Litig. — WCG Subclass, 558 F.3d 1130, 1139-

40 (10th Cir. 2009) (holding that loss causation was not estab-

lished when a plaintiff failed to show that losses following

public disclosures could be “reliably attributed to the revela-

tion of fraud rather than to other factors”).

While Plaintiffs did find two analyst reports purportedly

questioning this explanation, these reports would not allow a

jury reasonably to render a verdict in their favor in light of the

agglomeration of evidence supporting a contrary conclusion.

Moreover, “the market” must react to the fraudulent acts or

practices. Metzler, 540 F.3d at 1063. Plaintiffs’ two reports

are not indicative of what “the market” learned of and reacted

to. Over 130 pages of the record before this court consist of

analyst reports—many based on independent interviews with

Oracle’s customers—confirming that late-quarter sales were

lost as a result of customer concerns over a faltering econ-

omy. This overwhelming evidence renders unjustifiable an

inference that Plaintiffs’ two reports reflect the market’s consen-

sus.8 Plaintiffs’ reliance on a single March 13, 2001, email

8

We agree with the district court that Plaintiffs do not accurately

describe the evidence they cite in support of their argument on this point.

While Plaintiffs purport to have four analyst reports supporting “an 11i

link,” only two could fairly be construed to imply that product problems

caused the March 1, 2001,earnings miss.

18554 IN RE ORACLE CORPORATION SECURITIES LITIGATION

written by an employee in Oracle’s European division is

equally unavailing. The email is not evidence of what the

market learned of and reacted to on March 1, 2001.9 Finally,

Oracle made $338 million in revenue from Suite 11i in 4Q01

alone. If “the market” learned of and reacted to fraudulently

concealed Suite 11i defects at the end of 3Q01, surely Ora-

cle’s customers would have reacted as well.

[16] Plaintiffs cannot establish loss causation. Their Sec-

tion 10(b) claim alleging misrepresentations of Suite 11i’s

quality and success fails as a result.

D

[17] Plaintiffs also argue that their losses were caused by

fraudulently overstated 2Q01 earnings. This claim fails for the

same reasons as Plaintiffs’ Suite 11i claim. There is simply no

evidence to support the conclusion that Oracle’s stock price

dropped as a result of the market’s reaction to learning of

fraudulently overstated 2Q01 earnings on March 1, 2001, as

opposed to Oracle’s poor financial health generally.10 Metzler,

9

We also note that the email, written by Sergio Giacoletto, is insuffi-

cient to allow a jury reasonably to conclude that North American custom-

ers did not buy Suite 11i as a result of defects. Giacoletto opines that

salespeople in Oracle’s European division pushed “technology” sales over

“apps” sales in 3Q01 as a result of Suite 11i rollout “problems” in 1Q01

and 2Q01. This email has no bearing on whether these “problems” were

present in Oracle’s North American division or whether they persisted

throughout 3Q01. Despite serving over one hundred subpoenas on Ora-

cle’s customers, Plaintiffs have not developed evidence to support a con-

clusion that North American customers declined to buy Suite 11i in 3Q01

as a result of defects. Giacoletto’s email is inadequate to support such a

conclusion.

10

Plaintiffs argue that a fraudulent transaction with Hewlett Packard was

part of the 2Q01 accounting fraud, and that the district court erred by

denying Plaintiffs an opportunity to amend their complaint to include this

transaction. We do not need to address this argument, however, because

even including this transaction with the purported 2Q01 “debit memo

accounting fraud” that the district court considered, Plaintiffs have failed

to establish that the market learned of and reacted to a 2Q01 fraud when

Oracle announced its 3Q01 earnings miss.

IN RE ORACLE CORPORATION SECURITIES LITIGATION 18555

540 F.3d at 1063. Oracle’s 2Q01 earnings have never been

revised downward. To the extent Plaintiffs argue that the pur-

portedly fraudulent 2Q01 earnings statement caused the 3Q01

earnings miss, we reiterate that an earnings miss alone is

insufficient to establish loss causation. See id.; Dura, 544 U.S.

at 343. As control-person liability under Section 20(a)

requires a prerequisite Section 10(b) violation, Plaintiffs’ Sec-

tion 20(a) claim fails as well. See 15 U.S.C. § 78t(a).

V

Plaintiffs separately allege that Ellison and Henley are lia-

ble for contemporaneous trading under Section 20A of the

Exchange Act. See 15 U.S.C. § 78t-1(a). Under that section,

“Any person who violates any provision of this chapter or the

rules or regulations thereunder by purchasing or selling a

security while in possession of material, nonpublic informa-

tion shall be liable . . . to any person who . . . has [contempo-

raneously] purchased . . . securities of the same class.” Id.

“Claims under Section 20A are derivative and therefore

require an independent violation of the Exchange Act.” John-

son v. Aljian, 490 F.3d 778, 781 (9th Cir. 2007). Plaintiffs

“must demonstrate that the alleged fraud occurred ‘in connec-

tion with the purchase or sale of a security.’ ” Id. at 782 (quot-

ing Ambassador Hotel Co., Ltd. v. Wei-Chuan Inv., 189 F.3d

1017, 1025 (9th Cir. 1999)). As with their Section 10(b)

claim, Plaintiffs “must prove both actual cause (‘transaction

causation’) and proximate cause (‘loss causation’).” Id.

[18] Plaintiffs’ inability to establish a triable issue on loss

causation for their Suite 11i and 2Q01 claims ends their Sec-

tion 20A claim. See Johnson, 490 F.3d at 782. Moreover, as

all of Ellison’s trades were completed prior to the first internal

forecast indicating that Oracle might miss its 3Q01 guidance,

the district court’s adverse inference merely imputes to Elli-

son the knowledge that Oracle was on track to fulfill its fore-

cast. Plaintiffs’ contemporaneous-trading claims fail as a

result.

18556 IN RE ORACLE CORPORATION SECURITIES LITIGATION

V

The district court properly granted Defendants’ motion for

summary judgment.

AFFIRMED.