# City of Dearborn Heights Act 345 Police & Fire Retirement System v. Align Technology, Inc.

> Court of Appeals for the Ninth Circuit · May 5, 2017 · 856 F.3d 605

URL: https://www.frixlaw.com/law-library/cases/9875102

## Case

- **Full name:** CITY OF DEARBORN HEIGHTS ACT 345 POLICE & FIRE RETIREMENT SYSTEM, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. ALIGN TECHNOLOGY, INC.; Thomas M. Prescott; Kenneth B. Arola, Defendants-Appellees
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** May 5, 2017
- **Citations:** 856 F.3d 605; 2017 U.S. App. LEXIS 8005; 2017 WL 1753276
- **Precedential status:** Published
- **Opinion:** Concurrence by Kleinfeld
- **Judges:** Kleinfeld, Smith, Kronstadt
- **Nature of suit:** Civil
- **Cited by:** 156 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9875102

## How later opinions describe it (automated extraction)

- finding failure to plead channel stuffing claim where 16 there are “no facts establishing that defendants used the inflated 2010 revenues that resulted from 17 Cadent’s channel stuffing to conduct its goodwill impairment testing at the end of 2011, and [failure 18 to plead] th…
- stating, 10 with respect to “pleading falsity of opinion statements,” that, “when a plaintiff relies on a theory of 11 material misrepresentation, the plaintiff must allege both that ‘the speaker did not hold the belief 12 she professed’ and that the belief is objectively untrue”
- explaining that an executive’s resignation coinciding 17 with the suspicious circumstances of an announcement of a $11.9 million goodwill impairment 18 was a “mere conclusory allegation” that could not, without more, support an inference of 19 scienter
- holding that to allege a defamatory opinion statement, a plaintiff must plead that the defendant did “not honestly hold the stated belief and the belief is objectively incorrect[]”
- explaining that, in certain circumstances, "an employee's resignation supports an inference of scienter"

## Opinion text

KLEINFELD, Senior Circuit Judge,
concurring in the judgment:
I concur. The majority opinion is compelling on the record before us, with respect to Jack of scienter. Because scienter is an element of section 10(b) liability, the reasoning in Part I.B., with which I fully agree, compels the result we reach.
The majority provides an alternative ground for reaching the same result, under the Supreme Court decision in Omnicare Inc., v. Laborers District Council Construction Industry Pension Fund. 1 That was a section 11 case. This js a section 10(b) case. As the Supreme Court explained in Herman & MacLean v. Huddleston, section 10(b) and section 11 are materially different, 2 The majority holds that the reasoning in Omnicare effectively overrules our decision in Reese v. Malone. 3 Under Miller v. Gammie 4 and its progeny, the tension between Reese and Omni-care and the doubt Omnicare casts on our analysis in Reese does not suffice to overrule Reese. Reese has to be “clearly irree- *624 oncilable” with Omnicare for Reese to be overruled. 5 Whether it is clearly irreconcilable strikes me as debatable, because Om-nicare is a section 11 case and Reese is a section 10(b) case.
I do not suggest that Reese survives. My concern is that it is an important and debatable question, one that we need not decide, and therefore one that we ought not to decide. 6 The delicacy of the question arises from the considerable differences, noted in Herman, between section 11 and section 10(b), as well as the pleading difference, Federal Rule of Civil Procedure 9(b) for section 10(b) claims and Federal Rule of Civil Procedure 8(a) for section 11 claims unless they are grounded in fraud. 7 Though I might well agree with the majority that the Omnicare analysis applies to section 10(b) cases, I think it is wiser to leave that arguable and important determination to a case where it has to be made.
. - U.S. -, 135 S.Ct. 1318 , 191 L.Ed.2d 253 (2015).
. 459 U.S. 375, 380-84 , 103 S.Ct. 683 , 74 L.Ed.2d 548 (1983).
. 747 F.3d 557 (9th Cir. 2014).
. 335 F.3d 889 (9th Cir. 2003) (en banc).
. Id. at 900.
. See Nat’l Fed. of the Blind v. United Airlines, 813 F.3d 718, 745-47 (9th Cir. 2016) (Klein-feld, J. concurring).
. In re Rigel Pharm., Inc. Sec. Litig, 697 F.3d 869, 875-77, 885-86 (9th Cir. 2012).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9875102. Public record. Not legal advice.