                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0405n.06

                                       Case No. 14-5696
                                                                                     FILED
                                                                               Jun 04, 2015
                         UNITED STATES COURT OF APPEALS
                                                                           DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT


PENSION FUND GROUP, consisting of                 )
Norfolk County Retirement System, Plymouth        )
County Retirement System and Oklahoma             )
Police Pension & Retirement System;               )
POLICE AND FIRE RETIREMENT                        )
SYSTEM OF THE CITY OF DETROIT,                    )
                                                  )
       Plaintiffs-Appellants,                     )
                                                  )
and                                               )       ON APPEAL FROM THE UNITED
                                                  )       STATES DISTRICT COURT FOR
ARTHUR BENNING, JR.,                              )       THE EASTERN DISTRICT OF
                                                  )       KENTUCKY
       Plaintiff,                                 )
                                                  )
v.                                                )
                                                  )
TEMPUR-PEDIC INTERNATIONAL, INC.;                 )
MARK A. SARVARY; DALE E.                          )
WILLIAMS,                                         )
                                                  )
       Defendants-Appellees.                      )


       BEFORE: KEITH, COOK, and DONALD, Circuit Judges.

       COOK, Circuit Judge. After posting record sales for five straight quarters, mattress

manufacturer Tempur-Pedic International, Inc.’s business declined in the second quarter of 2012.

Plaintiffs-Appellants—a group of pension funds who purchased Tempur-Pedic stock before the
Case No. 14-5696
Pension Fund Grp. et al. v. Tempur-Pedic Int’l, Inc. et al.

price-per-share fell nearly seventy-five percent over a seven-week period—filed a consolidated

class-action complaint against Defendants-Appellees Tempur-Pedic, president and chief

executive officer Mark A. Sarvary, and executive vice president and chief financial officer Dale

E. Williams (collectively, “Tempur-Pedic”) on behalf of all investors who purchased Tempur-

Pedic common stock between January 25, 2012, and June 5, 2012 (“the Class Period”). The

complaint alleges that Tempur-Pedic misled investors by issuing rosy financial projections and

failing to disclose the company’s deteriorating competitive position.

        The district court dismissed the complaint for failure to state a plausible claim of

securities fraud. We AFFIRM.

                                                  I.

        Tempur-Pedic manufactures and distributes viscoelastic (i.e., memory-foam) mattresses

and pillows. Its primary competitors—Sealy, Serta, and Simmons—historically sold inner-

spring mattresses, which accounted for the bulk of mattresses sold in the United States.

Tempur-Pedic, in contrast, targets the “specialty premium” market for non-inner-spring

mattresses that retail for at least $1,000.

        In April 2011, Serta launched its competing “iComfort” gel-foam mattress line.

According to the complaint, several iComfort mattresses cost less than Tempur-Pedic’s cheapest

model, and Serta’s advertising touted the gel-based iComfort’s technological superiority over

traditional memory-foam mattresses.           The pension funds contend that Tempur-Pedic’s

management grew concerned about Serta’s inroads in the memory-foam market even though

Tempur-Pedic’s sales continued to grow in the aggregate throughout 2011. According to a

former Tempur-Pedic business development manager, sales at his retail accounts declined forty

to sixty percent within a three-month period after retailers began selling the iComfort. He


                                                -2-
Case No. 14-5696
Pension Fund Grp. et al. v. Tempur-Pedic Int’l, Inc. et al.

provided the pension funds with company emails soliciting weekly sales reports and a document

titled “iComfort Risk Analysis for Mark Meeting Sept 11” that compared Tempur-Pedic’s sales

at certain retailers before and after Serta introduced the iComfort. According to the pension

funds, the “Risk Analysis” document shows that Tempur-Pedic’s year-over-year sales grew by

three percent between April and September 2011 at retailers that carried the iComfort and thirty-

three percent at comparable mid-size retailers that did not. The former business development

manager also disclosed that company executives learned at an August 2011 industry conference

that four of the company’s highest-grossing accounts planned to start carrying the iComfort in

January 2012.

       Notwithstanding Serta’s inroads, Tempur-Pedic reported a company-record $1.4 billion

in net sales in 2011—a twenty-eight percent increase over 2010. On January 24, 2012, Tempur-

Pedic released financial guidance projecting that its annual net sales would grow by about fifteen

percent in 2012 and total between $1.6 and $1.65 billion for the year. By mid-April, the

company appeared to be on track to meet or exceed its projections: net sales for the first quarter

of 2012 surpassed the previous year’s first-quarter sales by eighteen percent. But business

slowed soon thereafter. On June 6, the company revised its full-year guidance downward to

$1.43 billion in projected net sales, explaining in a press release that “[s]ales trends in our North

America business during the second quarter have been disappointing and below plan, primarily

due to changes in the competitive environment, including an unprecedented number of new

competitive product introductions, which have been supported by aggressive marketing and

promotion.” (R. 91-31, June 6, 2012 Form 8-K.)

       Tempur-Pedic’s stock price hit a Class Period high of $87.26 per share on April 19, 2012,

before declining precipitously over the next month-and-a-half. The stock price dropped to


                                                -3-
Case No. 14-5696
Pension Fund Grp. et al. v. Tempur-Pedic Int’l, Inc. et al.

$66.53 on April 20 after the company adhered to its full-year guidance despite its better-than-

predicted first quarter. It fell again to $48.29 per share in early May after Tempur-Pedic issued a

press release announcing a Memorial Day discount on its Cloud Supreme mattress line. Finally,

after the company revised its yearly projections downward on June 6, the stock price hit a Class

Period low of $22.39 per share.

       Ultimately, Tempur-Pedic’s 2012 net sales totaled $1.4 billion. According to the pension

funds, those results confirm that the initial projection ($1.6 to $1.65 billion) was “wildly off the

mark and . . . had no reasonable basis in fact.” They maintain that Tempur-Pedic, Sarvary, and

Williams violated Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and

related Securities and Exchange Commission (SEC) Rule 10b-5, 17 C.F.R. § 240.10b-5, by

touting the company’s recent successes and issuing rosy financial projections while failing to

disclose that sales growth slowed at retailers carrying Serta’s iComfort.

       Tempur-Pedic, Sarvary, and Williams moved to dismiss the pension funds’ consolidated

amended complaint for failure to state a plausible securities-fraud claim. The pension funds

opposed that motion and sought leave to file a second amended complaint that included two

exhibits referenced in the first amended complaint. The district court granted the motion to

dismiss and denied the motion to amend, finding that none of the challenged statements were

actionable and that amendment would be futile. The pension funds timely appealed.

                                                II.

       We review the district court’s decision to dismiss the complaint de novo, “constru[ing]

the complaint in the light most favorable to the plaintiff” and “accept[ing] all well-pleaded

factual allegations as true.” La. Sch. Emps. Ret. Sys. v. Ernst & Young, LLP, 622 F.3d 471, 477

(6th Cir. 2010).


                                               -4-
Case No. 14-5696
Pension Fund Grp. et al. v. Tempur-Pedic Int’l, Inc. et al.

       “To state a securities fraud claim . . . , a plaintiff must allege, in connection with the

purchase or sale of securities, the misstatement or omission of a material fact, made with

scienter, upon which the plaintiff justifiably relied and which proximately caused the plaintiff’s

injury.” Frank v. Dana Corp., 547 F.3d 564, 569 (6th Cir. 2008) (internal quotation marks and

citation omitted). A defendant is liable for omitting a fact only if he had a duty to disclose it.

City of Monroe Emps. Ret. Sys. v. Bridgestone Corp., 399 F.3d 651, 669 (6th Cir. 2005). But a

defendant who speaks voluntarily on a subject when he has no duty to do so “‘assume[s] a duty

to speak fully and truthfully on th[at] subject.’” Helwig v. Vencor, Inc., 251 F.3d 540, 561 (6th

Cir. 2001) (en banc) (first alteration in original) (quoting Rubin v. Schottenstein, Zox & Dunn,

143 F.3d 263, 268 (6th Cir. 1998) (en banc)), overruled on other grounds as recognized in

Ricker v. Zoo Entm’t, Inc., 534 F. App’x 495, 501 n.3 (6th Cir. 2013).

       “A misrepresentation or an omission is material only if there is a substantial likelihood

that ‘a reasonable investor would have viewed the misrepresentation or omission as having

significantly altered the total mix of information made available.’” In re Ford Motor Co. Sec.

Litig., 381 F.3d 563, 570 (6th Cir. 2004) (quoting In re Sofamor Danek Grp., Inc., 123 F.3d 394,

400 (6th Cir. 1997)). A court may dismiss a securities-fraud action if the challenged statements

“are so obviously unimportant to a reasonable investor that reasonable minds could not differ on

the question of their unimportance.” Helwig, 251 F.3d at 563 (quoting Ganino v. Citizens Util.

Co., 228 F.3d 154, 162 (2d Cir. 2000)). Applying that standard,

       [c]ourts everywhere “have demonstrated a willingness to find immaterial as a
       matter of law a certain kind of rosy affirmation commonly heard from corporate
       managers and numbingly familiar to the marketplace—loosely optimistic
       statements that are so vague, so lacking in specificity, or so clearly constituting
       the opinions of the speaker, that no reasonable investor could find them important
       to the total mix of information available.”



                                               -5-
Case No. 14-5696
Pension Fund Grp. et al. v. Tempur-Pedic Int’l, Inc. et al.

Ford, 381 F.3d at 570–71 (quoting Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1217 (1st Cir.

1996)).

          The Private Securities Litigation Reform Act of 1995 (PSLRA), Pub. L. 104-67, 109 Stat.

737, created a limited safe harbor for “forward-looking statements.” Helwig, 251 F.3d at 547–

48. Forward-looking statements covered by the Act include projections of revenues, income, and

earnings-per-share; statements concerning a company’s future economic performance; and

statements about the assumptions underlying forward-looking statements. 15 U.S.C. § 78u-

5(i)(1). Such statements are actionable as securities fraud only if (1) a reasonable investor would

find the statement material, (2) the defendant failed to identify its statement as forward looking

or provide “meaningful cautionary statements identifying important factors that could cause

actual results to differ materially from those in the forward-looking statement,” and (3) the

defendant made the statement “with actual knowledge . . . that [it] was false or misleading.” 15

U.S.C. § 78u-5(c)(1); see also Miller v. Champion Enters., Inc., 346 F.3d 660, 672 (6th Cir.

2003).

                                                III.

          The pension funds allege that Tempur-Pedic, Williams, and Sarvary made numerous false

and misleading statements during the Class Period. We agree with the district court that none of

the challenged statements or omissions constituted securities fraud.

A. January 24 Press Release

          On January 24, 2012, Tempur-Pedic issued a press release announcing the company’s

2011 financial results and issuing financial guidance for the upcoming year. The pension funds

argue that the company’s financial guidance and a statement about “competitiveness” were

materially false or misleading. Both arguments fail. The financial guidance falls within the


                                               -6-
Case No. 14-5696
Pension Fund Grp. et al. v. Tempur-Pedic Int’l, Inc. et al.

PSLRA safe harbor, and Sarvary’s vague mention of “competitiveness” was immaterial

corporate puffery that no reasonable investor would find important.

       1. 2012 Financial Guidance

       For the upcoming year, Tempur-Pedic projected between $1.60 and $1.65 billion in net

sales and between $3.80 and $3.95 in earnings-per-diluted-share. Such guidance falls squarely

within the PSLRA’s definition of forward-looking statements. See 15 U.S.C. § 78u-5(i)(1).

       The pension funds nevertheless argue that Tempur-Pedic’s 2012 financial guidance was

not, in fact, forward looking because it omitted how Serta had already affected the company’s

sales growth. But they find no support in our precedent for characterizing financial projections

as representations of historical or current fact. Under the PSLRA, we ask if a statement meets

the statutory definition of forward looking; if it does, we look to whether the defendant

meaningfully alerted investors to the risks that might prevent it from reaching its financial

targets. See Miller, 346 F.3d at 672, 678. In other words, we ask if Tempur-Pedic “convey[ed]

substantive information about factors that realistically could cause results to differ materially

from those projected in the forward-looking statements.” Helwig, 251 F.3d at 558–59.

       Here, the January 24 press release warned about competitive risks and incorporated

warnings in other SEC filings by reference. The press release identified numerous “risks and

uncertainties that could cause actual results to differ materially” from projected results, including

“industry competition.” (R. 91-14, Jan. 24. 2012 Form 8-K.) The warning referred readers to

the company’s SEC filings, particularly the “Risk Factors” section of the company’s most recent

Form 10-K annual report. That report, released in January 2011, disclosed: “The mattress and

pillow industries are highly competitive. Participants in the mattress and pillow industries have




                                                -7-
Case No. 14-5696
Pension Fund Grp. et al. v. Tempur-Pedic Int’l, Inc. et al.

traditionally competed based primarily on price.” (R. 91-4, FY 2010 Form 10-K at 4.) It

mentioned Serta specifically:

       The standard mattress market in the U.S. is dominated by manufacturers of
       innerspring mattresses, with three nationally recognized brand names: Sealy,
       Serta and Simmons. These three competitors also offer premium innerspring
       mattresses and collectively have a significant share of the premium mattress
       market in the U.S. . . . [Many of our] competitors and, in particular, the three
       largest brands of innerspring mattresses named above, have significant financial,
       marketing and manufacturing resources, strong brand name recognition, and sell
       their products through broader and more established distribution channels.
       During the past several years, a number of our competitors, including Sealy,
       Serta and Simmons, have offered viscoelastic mattress and pillow products.

(Id. at 5 (emphasis added).) The “Risk Factor” section further explained: “[A] number of our

significant competitors offer non-innerspring mattress and viscoelastic pillow products. Any

such competition by established manufacturers or new entrants into the market could have a

material adverse effect on our business, financial condition and operating results by causing our

products to lose market share.” (Id. at 8.)

       The press release’s warning about industry competition—which incorporates by

reference the Form 10-K’s more thorough risk disclosures, see Miller, 346 F.3d at 677–78—

adequately disclosed the risk that Tempur-Pedic would fail to sustain its current rate of growth

due to increased competition from Serta for share of the memory-foam market. We found

similar disclosures meaningful in Miller v. Champion Enterprises, Inc., rejecting the argument

that a model-home company should have disclosed its loan to a struggling retailer whose default

might leave it saddled with excess inventory:

       The July 8 letter cited Champion’s risk disclosures in its 1998 Form 10-K, which
       included a risk related to inventory levels of manufactured housing retailers.
       Additionally, the letter itself contained warnings that “housing stocks in general
       have underperformed the markets in 1999,” and that “in certain regions we see too
       many retail locations, suggesting an over supply of retail inventory of homes in
       that region.” Plaintiff argues that Champion should also have disclosed the nature
       of their loans to Parker Homes. This goes too far. Champion disclosed the exact

                                                -8-
Case No. 14-5696
Pension Fund Grp. et al. v. Tempur-Pedic Int’l, Inc. et al.

       risk that occurred in this situation: excess retailer inventory that could lead to
       negative economic effects on Champion. Champion is not required to detail
       every facet or extent of that risk to have adequately disclosed the nature of the
       risk.

346 F.3d at 677–78. Similarly, having disclosed the risks posed by competition, Tempur-Pedic

was not required to disclose its internal analyses of how a specific competitor affected sales to

claim safe-harbor protection.

       The pension funds’ argument to the contrary finds no support in Helwig v. Vencor, Inc.,

which denied safe-harbor protection to a healthcare provider’s “cursory and abstract” statements

disclaiming any knowledge of how a pending federal law might affect its business. 251 F.3d at

558–59.    Helwig stands for the proposition that a defendant fails to provide meaningful

cautionary language when it refuses to identify or address imminent risks; it does not address the

level of specificity required once a defendant discloses such risks. Id. at 559. Miller, not

Helwig, controls our consideration of Tempur-Pedic’s cautionary language.

       Further, Tempur-Pedic’s warning remained meaningful even if sales at certain retailers

grew at a slower rate in the months leading up to the January 24 press release. Although several

district courts have denied safe-harbor protection when defendants’ risk disclosures treat

currently existing conditions as mere possibilities, they have done so only where the warnings

clearly misrepresented facts. See, e.g., In re Compuware Sec. Litig., 301 F. Supp. 2d 672, 685

(E.D. Mich. 2004) (“Defendants’ statement that ‘there can be no assurance that IBM will not

choose to offer significant competing products in the future,’ implied that IBM’s development of

competing software was a possibility as opposed to an actuality, and therefore, this statement

does not qualify as meaningful cautionary language.”). We decline to find Tempur-Pedic’s risk

disclosures inadequate merely because the company’s growth appeared to slow—but not

reverse—due to competition in 2011. Holding otherwise would deny safe-harbor protection any

                                               -9-
Case No. 14-5696
Pension Fund Grp. et al. v. Tempur-Pedic Int’l, Inc. et al.

time a plaintiff could show that a defendant perceived a general negative trend, even if the trend

had not yet affected its bottom line. Such a rule would undermine the PSLRA’s pro-disclosure

objective. See Helwig, 251 F.3d at 559.

       2. Sarvary’s “competitiveness” statement

       The January 24 press release also attributed the following comment to Sarvary: “In 2011,

we delivered strong financial performance, strengthened our competitiveness and implemented a

range of strategic growth initiatives.” (R. 91-14, Jan. 24, 2012 Form 8-K.) The pension funds

contend that Sarvary’s statement was false or misleading because he knew that Tempur-Pedic’s

growth slowed at retailers carrying the iComfort. But Sarvary’s unspecific reference to the

company’s “competitiveness” is immaterial as a matter of law: the term is “too squishy, too

untethered to anything measurable, to communicate anything that a reasonable person would

deem important to a securities investment decision.” City of Monroe, 399 F.3d at 671. The

pension funds fail to identify a “standard against which a reasonable investor could expect

[Sarvary’s reference to competitiveness] to be pegged.” Id.

B. January 24 Earnings Call

       Williams and Sarvary also discussed the company’s 2011 results and 2012 guidance

during a January 24 “earnings call.” The pension funds challenge several of their statements.

       1. Statements about growth and competition

       Sarvary and Williams both spoke about the company’s recent successes during the call.

For instance, Sarvary said: “Sales growth [in 2011] was strong, both in the U.S. and overseas,

and we have gained share domestically and around the world.” (R. 91-15, Jan. 24, 2012

Earnings Call Tr. at 4.) Williams informed investors that the company “experienced improving

growth rates by month” during the final quarter of 2011 and that “sales trends through the first


                                               - 10 -
Case No. 14-5696
Pension Fund Grp. et al. v. Tempur-Pedic Int’l, Inc. et al.

23 days [of the first quarter of 2012] have continued to be strong.” (Id. at 7.) Later, he said:

“We’re very pleased with how the business is performing . . . . Both the international business

and the North American business are performing well but it’s early in the quarter and this can be

a fluctuating industry so we don’t take 23 days lightly but we also don’t project it out forever.”

(Id. at 10.)

        Although most of the analysts on the call asked about Tempur-Pedic’s recent

performance and future plans, one asked whether Sarvary and Williams perceived a connection

between competitors’ recent launches and the overall growth in consumer demand for memory-

foam mattresses. (Id. at 14–15.) Sarvary acknowledged that Tempur-Pedic operated in a “tough

market with some very good competitors in it and they will continue to introduce products.”

(Id. at 15.) He attributed both Tempur-Pedic’s recent successes and the increase in memory-

foam sales generally to “customers [who] are increasingly prepared to pay a premium for a

product that will enable them to sleep better.” (Id.)

        The pension funds do not contend that Tempur-Pedic misstated its sales figures in 2011

or early 2012. Instead, citing the duty to “provide complete and non-misleading information

with respect to subjects on which [one] undertakes to speak,” Helwig, 251 F.3d at 561, the

pension funds argue that Williams and Sarvary misled investors by speaking about growth and

competition without disclosing how Serta specifically affected Tempur-Pedic’s growth rate.

They also contend that Sarvary’s response to the analyst’s question about competition falsely

implied that Tempur-Pedic maintained a competitive edge over Serta.

         But we do not read Helwig to require Williams and Sarvary to disclose that Tempur-

Pedic’s sales might have grown more without competition from Serta’s iComfort once they

chose to speak about the company’s recent positive results or competition generally. Holding an


                                               - 11 -
Case No. 14-5696
Pension Fund Grp. et al. v. Tempur-Pedic Int’l, Inc. et al.

earnings call did not obligate them to disclose all facts contributing to or undermining the

company’s recent successes. “Such a rule would require almost unlimited disclosure on any

conceivable topic related to an issuer’s financial condition whenever an issuer released any kind

of financial data.” Miller, 346 F.3d at 682.

       2. Statements forecasting that the current state of affairs would “continue”

       The pension funds also challenge Williams’s statement that Tempur-Pedic’s domestic

business “will continue to perform” and Sarvary’s statement that the company would look “to

capitalize on this fundamental trend [of consumers buying specialty mattresses] by continuing to

have products that are both genuinely differentiated and preferred by consumers.” (R. 91-15,

Jan. 24, 2012 Earnings Call Tr. at 9, 15.)

       To the extent that Williams and Sarvary’s statements predict that the current state of

affairs will continue into the future, they are protected by the PSLRA safe harbor. See Miller,

346 F.3d at 677. At the beginning of the call, a Tempur-Pedic executive cautioned investors that

any forward-looking statements, including financial projections, fell within the safe harbor,

added that “economic, competitive, operating and other factors” could cause actual results to

differ materially from projected results, and referred investors to the annual Form 10-K report

discussed above. (R. 91-15, Jan. 24, 2012 Earnings Call Tr. at 3.) Those warnings meaningfully

warned investors of the risks of purchasing Tempur-Pedic stock.

       Moreover, to the extent that Williams and Sarvary’s statements suggest that Tempur-

Pedic was currently “performing” and producing customer-preferred mattresses, such

representations are the kind of “loosely optimistic” statements that we have elsewhere found

immaterial. See City of Monroe, 399 F.3d at 670–72 (finding general claims about quality and




                                               - 12 -
Case No. 14-5696
Pension Fund Grp. et al. v. Tempur-Pedic Int’l, Inc. et al.

safety immaterial); Ford, 381 F.3d at 570–71 (finding self-praising statements about “quality,

safety, and corporate citizenship” immaterial).

C. January 30 FY 2011 Annual Report (Form 10-K)

       On January 30, the company filed its annual Form 10-K for the period ending

December 31, 2011. The pension funds contend that the report contains two false statements.

       First, the pension funds challenge the statement: “The TEMPUR-Cloud® collection

continues to be well received by retailers.” (R. 91-8, FY 2011 Form 10-K at 29, 38.) But they

have not alleged facts that would plausibly render the “well received” statement misleading, and

any evidence that four major Tempur-Pedic retailers decided to sell Serta’s iComfort has no

bearing on their attitude toward Tempur-Pedic’s TEMPUR-Cloud® line.

       Second, the pension funds suggest that Tempur-Pedic spoke falsely when it claimed to

“provide strong channel profits to our retailers and distributors which management believes will

continue to provide an attractive business model for our retailers and discourage them from

carrying competing lower-priced products.” (Id. at 38.) They argue that the statement, among

others, “drew a false and misleading parallel between their successful results in 2011 and future

results.” As noted above, the word “continue” renders the statement both a representation of

current fact and a forward-looking projection. To the extent that the statement predicted how

retailers might respond to incentives in the future, the pension funds have not argued that

Tempur-Pedic failed to adequately warn investors of the risks underlying its channel-profit

strategy. Further, to the extent the statement represents management’s current opinion, it is

immaterial as a matter of law. The complaint includes no facts that would tend to show that

management either did not believe that strong channel profits could have that effect or lacked a

factual basis for that belief. See Helwig, 251 F.3d at 562 (“‘Material statements which contain


                                               - 13 -
Case No. 14-5696
Pension Fund Grp. et al. v. Tempur-Pedic Int’l, Inc. et al.

the speaker’s opinion are actionable . . . if the speaker does not believe the opinion and the

opinion is not factually well-grounded.’” (quoting Mayer v. Mylod, 988 F.2d 635, 639 (6th Cir.

1993))).

D. February 22 Webcast

       During Tempur-Pedic’s “Investor Day” webcast in mid-February, Sarvary allegedly

referred to Tempur-Pedic’s “consumer preferred” product line. (R. 87, Am. Compl. at ¶ 114.)

That statement is immaterial puffery. As we have noted elsewhere, “[a]ll public companies

praise their products,” and Sarvary’s statement that the company sells a “consumer preferred”

product is the sort of “rosy affirmation commonly heard from corporate managers” that we hold

immaterial as a matter of law. Ford, 381 F.3d at 570–71.

       During the same webcast, Sarvary allegedly said that the company had grown and

continued to grow, and added that there were “a variety of reasons why we’re very confident [in

projections of continued] growth.” (R. 87, Am. Compl. at ¶ 114.) The pension funds allege no

facts tending to show that the company lacked confidence in continued growth as of February 22

or had no reasonable basis for that confidence. See Helwig, 251 F.3d at 562. According to their

complaint, Tempur-Pedic’s internal data showed that its growth slowed at retailers carrying the

iComfort, not that it stopped or reversed course.

E. March 5 Presentation

       Williams continued to tout Tempur-Pedic’s successes during the company’s presentation

at the Raymond James Institutional Investors Conference on March 5, 2012.               He told

participants: “2011 [was] another great year for the company . . . just a phenomenal year for the

company, very pleased with the performance, and we look for that kind of growth opportunity to

continue into the long-term in the future.” (R. 91-17, Mar. 5, 2012 Conf. Tr. at 3.)    Later he


                                               - 14 -
Case No. 14-5696
Pension Fund Grp. et al. v. Tempur-Pedic Int’l, Inc. et al.

said: “2011 was a record year on every measure of the business. And we are looking for

continued growth.” (Id. at 5.) With respect to future growth, he advised, “We continue to see

. . . a long runway of opportunity, to continue to improve gross margins in the business.” (Id.)

       The pension funds contend that Williams misled investors by linking the company’s

recent successes to its future prospects. But his statements concerning expected future growth

are forward looking and were accompanied by meaningful cautionary language that insulated

them from liability. Although the company did not issue a formal warning about forward-

looking statements, Williams began his presentation by saying: “As usual—we may say

something today that’s forward-looking, so it’s under the safe harbor provisions.” (Id. at 2.) He

described his comments as a “very condensed version” of the Investor Day webcast and referred

participants to the full presentation on the company’s website, which warned about industry

competition and referred to the more thorough disclosures in the company’s SEC filings.

F. April 19 Press Release

       On April 19, Tempur-Pedic issued a press release announcing better-than-expected first-

quarter results and reaffirming its financial guidance for the full year. The pension funds

contend that the reaffirmed guidance falls outside the safe harbor because Tempur-Pedic failed to

adequately amend its cautionary language as the threat posed by Serta increased. We have never

held that a company’s repeated use of similarly worded warnings renders them meaningless.

Further, Tempur-Pedic updated its warning in its 2011 Form 10-K to disclose that “[d]uring the

past several years, a number of our competitors, including Sealy, Serta and Simmons, have

offered viscoelastic mattress and pillow products, including several new prominent product

introductions in 2011.” (R. 91-8, FY 2011 Form 10-K at 5 (emphasis added).) That new




                                               - 15 -
Case No. 14-5696
Pension Fund Grp. et al. v. Tempur-Pedic Int’l, Inc. et al.

language adequately warned investors of the risks posed by Serta’s launch of the iComfort in

April 2011.

G. April 19 Earnings Call

       Shortly after the company issued the press release reaffirming its full-year guidance,

Sarvary and Williams answered several questions about competition during an earnings call with

industry analysts. Sarvary acknowledged from the outset that the company faced “significant

new competitive launches and aggressive price promotion in the industry[] as it has moved

increasingly toward non-spring mattresses.” (R. 91-20, Apr. 19, 2012 Earnings Call Tr. at 4.)

       One analyst asked whether increased competition influenced the decision to adhere to

their original guidance after a better-than-expected first quarter:

       I think you’ve had some branded competition in this space for almost a year now.
       Is there something that’s changed in the landscape in the last three months or so?
       Is the competition getting more price-competitive? Have there been new entrants
       in the last three months? Or, has something changed recently that’s caused you to
       tone down your comments today?

(Id. at 10.) Sarvary responded that “there’s been competition forever, and the competition,

we’ve always said, is very strong,” and suggested that the company’s competitors were “very

promotional and very focused on price.” (Id.)

       Another analyst pressed Williams and Sarvary to address whether they thought the

growing demand for specialty mattresses reflected a “different approach that’s being taken by

some of your competitors.” (Id. at 12–13.) Sarvary replied that the trend “provides us an

opportunity” and “it’s happening something like we expected.” (Id. at 13.)

       Relying on Helwig, the pension funds argue that Williams and Sarvary incurred a duty to

disclose Serta’s adverse effect on Tempur-Pedic’s sales when they chose to speak about

competition on April 19. But they fail to explain how statements acknowledging “significant


                                                - 16 -
Case No. 14-5696
Pension Fund Grp. et al. v. Tempur-Pedic Int’l, Inc. et al.

new competitive launches” and “strong competition” required them to also disclose Serta’s

specific effects on their business. Helwig requires defendants to disclose information “essential

to complete a picture they had only partially revealed.” 251 F.3d at 560. Here, Williams and

Sarvary spoke fully when they acknowledged increased competition; they were not required to

mention specific competitors to avoid misleading investors.

                                                IV.

       We discern no error in the district court’s dismissal of the amended complaint or abuse of

discretion in its order denying the pension funds’ motion to file a second amended complaint.

Amendment was futile because the proposed second amended complaint included the same

factual and legal allegations as the first amended complaint, and the district court properly

considered the new exhibits appended to the proposed amended complaint when ruling on the

motion to dismiss. We AFFIRM.




                                               - 17 -
