After nearly a decade of litigation and a rare ruling from an appeals court, attorneys at Cohen Milstein Sellers & Toll reached a $28.25 million settlement Wednesday with Harman International Industries Inc. in a securities fraud case.
Partner Steven Toll and a team at Cohen Milstein represented a class of investors, led by the Arkansas Public Employees Retirement System, who purchased Harman stock between April 2007 and February 2008. In their lawsuit, filed in 2007, APERS and others alleged Harman made false statements about its business, which artificially inflated its stock prices. In a 2015 decision, the U.S. Court of Appeals in the District of Columbia reversed the district court's dismissal of the case and remanded it.
“I think it was an important ruling by the Court of Appeals on these critical issues that pop up all the time in securities law,” Toll said. “So getting results for investors … was satisfying for a case that had been languishing all these years.”
The case centered on whether two statements Harman made about its financial situation fell under a safe harbor provision in the Securities Exchange Act as well as whether one statement qualified as "puffery" and was therefore not actionable. To fall under the safe harbor statute, statements must not only be “forward looking” but also “accompanied by meaningful cautionary statements.” The appeals court said that it was likely Harman's statements were not entitled to safe harbor protection because its “cautionary statements” were misleading.
The court also said the third statement, in which the company said sales of certain products “were very strong” was too specific to be considered “mere ‘puffery’.”
“We conclude that the ‘very strong’ statement ... is plausibly understood as a description of historical fact rather than unbridled corporate optimism, i.e., immaterial puffery,” the opinion, by Judge Judith Rogers, said.
After the appeals court remanded the case, Harman asked for a rehearing en banc, which was denied, and then appealed to the U.S. Supreme Court in November 2015. The high court declined to consider the case in February 2016.
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