                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 07 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



THE HEMMER GROUP,                                No. 11-56154

              Plaintiff - Appellant,             D.C. No. 2:08-cv-07844-JHN-
                                                 AGR
  v.

SOUTHWEST WATER COMPANY;                         MEMORANDUM *
ANTON C. GARNIER; MARK A.
SWATEK; CHERYL L. CLARY; PETER
J. MOERBEEK,

              Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Central District of California
                 Jacqueline H. NGUYEN, District Judge, Presiding

                       Argued and Submitted April 10, 2013
                              Pasadena, California

Before: REINHARDT and MURGUIA, Circuit Judges, and LASNIK, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Robert S. Lasnik, District Judge for the U.S. District
Court for the Western District of Washington, sitting by designation.
      This securities class action stems from SouthWest Water’s announcement

that its financial statements for 2005, 2006, and 2007 could no longer be relied on

and that the company intended to file restated financials for those years. The

company filed restated financials on July 9, 2009. According to the company, the

restatement “correct[ed] errors in the consolidated financial statements.” The

restatement resulted in a massive downward adjustment of operating income. The

adjustment of revenue was not as severe, but was negative for all years. The

complaint alleges that the restatement negatively changed many key financial

numbers. The company also disclosed that it did not “maintain an effective control

environment” due to 15 enumerated “material weaknesses.”

      The Second Consolidated Amended Class Action Complaint alleges

violations of: Section 11 of the Securities Act against all Defendants; Section 15 of

the Securities Act against the individual Defendants; Section 10(b) of the

Securities Exchange Act against all Defendants; Section 20(a) of the Securities

Exchange Act against the individual Defendants; and Section 20A of the Securities

Exchange Act against Granier and Moerbeek. Defendants moved to dismiss the

complaint for failure to state a claim under F.R.C.P. 12(b)(6). The district court

granted the motion and dismissed all claims with prejudice.




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         The district court had jurisdiction under the Securities Act (15 U.S.C. §§

77k, 77o) and the Securities Exchange Act (15 U.S.C. §§ 78j(b), 78t(a–b), 78t-

1(a)). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a motion to

dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)

de novo. Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th Cir.

2009).

                                            I.

         To establish a claim under Section 11 of the Securities Act, Plaintiff must

show “(1) that the registration statement contained an omission or

misrepresentation, and (2) that the omission or misrepresentation was material, that

is, it would have misled a reasonable investor about the nature of his or her

investment.” Rubke v. Capitol Bancorp Ltd, 551 F.3d 1156, 1161 (9th Cir. 2009)

(quoting In re Daou Sys., Inc., 411 F.3d 1006, 1027 (9th Cir. 2005)). Section 11 is

a strict liability statute and does not require fraudulent intent. Daou, 411 F.3d at

1027.

         Because the Section 11 allegation “sounded in fraud” it is subject to the

heightened pleading requirements of Rule 9. Vess v. Ciba-Geigy Corp. USA, 317

F.3d 1097, 1103–04 (9th Cir. 2003) (Section 11 claims that rely on a “unified

course of fraudulent conduct” are subject to Rule 9(b)).


                                       Page 3 of 8
      The financial statements issued by SouthWest during the class period were,

by SouthWest’s own admission, incorrect. By definition, a restatement corrects

financial data that was false when made. The complaint adequately alleges the

originally reported financial data, the restated financial data, and the difference

between the two. The complaint adequately alleges falsity.

      A fact is material if there is “a substantial likelihood that the disclosure of

the omitted fact would have been viewed by the reasonable investor as having

significantly altered the ‘total mix’ of information made available.” Matrixx

Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1318 (2011) (quoting Basic v.

Levinson, 485 U.S. 224, 231–32 (1988)). Materiality should be resolved as a

matter of law in the defendant’s favor “only if the omitted fact is so obviously

unimportant that no reasonable shareholder could have viewed it as significantly

altering the ‘total mix’ of information made available to stockholders.” Zell v.

InterCapital Income Sec., Inc., 675 F.2d 1041, 1045 (9th Cir. 1982) (quoting TSC

Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976)). The misstatements

alleged in the complaint were material and not obviously unimportant.

      Allegations of “improper accounting requiring a restatement does not, by

itself, establish materiality.” United States v. Reyes, 660 F.3d 454, 470 (9th Cir.

2011). A plaintiff must “show with particularly how the [accounting irregularities]


                                      Page 4 of 8
affected the company’s financial statements and whether they were material in

light of the company’s overall financial position.” Daou, 411 F.3d at 1018. A

restatement can “be used as evidence” to support such a showing. Reyes, 660 F.3d

at 470.

       The complaint pleads materiality with sufficient particularity. The

complaint describes “massive” changes in financial data including downward

revisions in Net Income from 2004 to 2007 to between 33% and 100% of

previously recorded income. The complaint reproduces a chart from SouthWest’s

2008 10-K that identifies the Operating Income, Income from Continuing

Operations, Income from Discontinued Operations, and Net Income as originally

stated, the amount it was restated by, and the restated amount for 2004 to 2007.

These allegations, especially when combined with the fact that the SouthWest

restated its financials, are sufficient to plead materiality.

       We REVERSE the dismissal of the Section 11 claims.

                                            II.

       To prevail on a claim for fraudulent misrepresentation under Section 10(b)

of the Securities Exchange Act of 1934, Plaintiff must allege: “(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;


                                       Page 5 of 8
(4) reliance upon the misrepresentation or omission; (5) economic loss; and (6)

loss causation.” Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, 552 U.S. 148,

157 (2008).

       Plaintiff must establish that the misrepresentations were made with “a

mental state embracing intent to deceive, manipulate, or defraud.” Matrixx, 131 S.

Ct. at 1323. It is sufficient to demonstrate that the defendant acted with “deliberate

recklessness.” S.E.C. v. Platforms Wireless Intern. Corp., 617 F.3d 1072, 1093

(9th Cir. 2010); Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1568–69 (9th

Cir. 1990) (en banc); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551

U.S. 308, 319 n.3 (2007) (noting that all courts of appeals have found recklessness

sufficient).

       The Private Securities Litigation Reform Act (“PSLRA”) imposes a special

pleading regime over the substantive law of scienter and the complaint 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)(A). A complaint

survives a motion to dismiss “only if a reasonable person would deem the

inference of scienter cogent and at least as compelling as any opposing inference

one could draw from the facts alleged.” Tellabs, 551 U.S. at 324.




                                     Page 6 of 8
      The complaint here does not survive because the more likely inference from

the facts alleged is that SouthWest was at most negligent in its failure to maintain

proper accounting internal controls. Most of the facts alleged in the complaint are

consistent with both the fraudulent and non-fraudulent inference. But the facts

that: (1) the company disclosed potential problems in its accounting system during

the class period; (2) the Confidential Witness testified that the company was

making efforts to improve its accounting system; and (3) the accounting errors

originated from distinct geographic regions, are consistent only with the non-

fraudulent inference. The inference of scienter is therefore not as compelling as

the inference of negligence.

      We AFFIRM the dismissal of the Section 10(b) claims.

                                         III.

      The Section 20(a) and Section 20A claims require a violation of Section

10(b). Because we affirm the dismissal of the Section 10(b) claims, we also affirm

the dismissal of the Section 20(a) and 20A claims.

      The complaint does, however, state a claim for violation of Section 11, and

therefore if Defendants “exercised actual power or control over the primary

violator,” they are liable for a violation of Section 15 of the Securities Act. Howard

v. Everex Systems, Inc., 228 F.3d 1057, 1065 (9th Cir. 2000). At the pleading


                                     Page 7 of 8
stage, Plaintiffs must only show authority to exercise such power, rather than

actual exercise of such power. Id. Here, the complaint sufficiently alleges that the

executives were control persons based on their role in the company. Specifically,

the complaint alleges that Defendants signed registration statements containing the

false financial statements. Howard, 228 F.3d at 1066 (denying motion of

executive that signed financial statements); Paracor Fin., Inc. v. Gen. Elec. Capital

Corp., 96 F.3d 1151, 1161 (9th Cir. 1996) (denying summary judgment motion of

CEO that signed allegedly false statements). We therefore reverse the dismissal of

the Section 15 claims.

      AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

      Each party shall bear their own costs on appeal.




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