19-1300-cv
Jackson v. Abernathy




                       United States Court of Appeals
                          For the Second Circuit

                                   August Term 2019

                                Argued: April 22, 2020
                                Decided: May 27, 2020

                                     No. 19-1300-cv



                         RONALD JACKSON, individually and on
                         behalf of all others similarly situated,

                                   Plaintiff-Appellant,

                                            v.

                       ROBERT E. ABERNATHY, STEVEN E. VOSKUIL,
                       KIMBERLY-CLARK CORPORATION, THOMAS J.
                          FALK, MARK A. BUTHMAN, AVANOS
                                    MEDICAL, INC.,

                                  Defendants-Appellees,

                                HALYARD HEALTH, INC.,

                                       Defendant.
                  Appeal from the United States District Court
                    for the Southern District of New York
                   No. 16-cv-5093, Laura Taylor Swain, Judge.


      Before:      CALABRESI, WESLEY, AND SULLIVAN, Circuit Judges.

       Appellant Ronald Jackson appeals the denial of his motion to file an
amended securities fraud complaint against the manufacturers of an allegedly
defective surgical gown. The district court (Swain, J.) denied Jackson’s motion as
futile because he failed to raise a strong inference of scienter against any of the
defendants. On appeal, Jackson pursues only his claims against the corporate
defendants. We affirm the district court’s order, concluding that Jackson cannot
raise a strong inference of collective corporate scienter by (1) relying on the
knowledge of employees unconnected to the challenged statements or (2) pleading
that the challenged statements concerned a key product with which the company’s
senior management would be expected to be familiar.
      AFFIRMED.
                                            TAMAR A. WEINRIB (Jeremy A.
                                            Lieberman, Marc I. Gross, on the brief),
                                            Pomerantz LLP, New York, NY; Patrick
                                            V. Dahlstrom, Pomerantz LLP, Chicago,
                                            IL, for Plaintiff-Appellant.

                                            EAMON P. JOYCE (Francesca E. Brody, on
                                            the brief), Sidley Austin LLP, New York,
                                            NY; Christopher Y. Lee, Sidley Austin
                                            LLP, Chicago, IL, for Defendants-
                                            Appellees Kimberly-Clark Corporation,
                                            Thomas J. Falk, and Mark A. Buthman.

                                            JOHN A. JORDAK, JR. (Brett D. Jaffe,
                                            Elizabeth Gingold Clark, on the brief),
                                            Alston & Bird LLP, New York, NY, for
                                            Defendants-Appellees Avanos Medical,
                                            Inc., Robert E. Abernathy, and Steven E.
                                            Voskuil.

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PER CURIAM:

      This is a case about collective intent – or lack thereof. Section 10(b) of the

Securities Exchange Act of 1934 (the “Exchange Act”) forbids a company or an

individual from making a materially misleading statement to shareholders. But

liability for such a statement requires proof that it was made with fraudulent

intent. Where a defendant is an individual, demonstrating such intent is often

straightforward. Where the defendant is a corporation, however, a plaintiff must

show that the misstatement was not a case of mere mismanagement, but rather the

product of collective fraudulent conduct. As a result, a plaintiff must plead facts

that raise a strong inference of collective corporate scienter.

      Plaintiff-Appellant Ronald Jackson argues that his proposed amended

complaint makes that showing here. According to Jackson, the defendants – two

manufacturers of medical equipment – intentionally misled shareholders about

the quality of one of their surgical gown products through a series of fraudulent

misstatements. He asserts that the companies’ malintent is clear because a handful

of employees internally raised alarm that the surgical gown had failed several

quality-control tests. But while Jackson’s allegations support a strong inference

that those employees knew of issues with the surgical gown, Jackson has not



                                          3
alleged facts sufficient to impute their knowledge to the corporate entities. And

because Jackson has otherwise failed to plead facts tending to show that senior

executives must have known that the challenged statements were false, we

conclude that Jackson’s proposed amended complaint does not raise a strong

inference of collective corporate scienter.

                                  I. Background

      Jackson appeals from the district court’s refusal to set aside its judgment and

permit Jackson to file a second amended class action complaint against

Defendants-Appellees Kimberly-Clark Corporation (“Kimberly-Clark”), Avanos

Medical, Inc. (“Avanos” and, together with Kimberly-Clark, the “Corporate

Defendants”), Thomas Falk (Kimberly-Clark’s CEO), Mark Buthman, Robert

Abernathy, and Steven Voskuil (collectively, the “Individual Defendants,” and,

together with the Corporate Defendants, the “Defendants”).

      Jackson’s claims arise from the Corporate Defendants’ manufacture and sale

of the MicroCool Breathable High Performance Surgical Gown (the “MicroCool

gown”). The MicroCool gown is typically worn by health care providers when

treating patients with highly infectious diseases – like HIV and Ebola – to prevent

the transfer of microorganisms, bodily fluids, and particulate matter. Protective



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apparel like the MicroCool gown is rated according to a barrier classification

system developed by the Association for the Advancement of Medical

Instrumentation (“AAMI”), which ranges from 1 (least protective) to 4 (most

protective).

      Jackson alleges that between August 2014 and April 2016, the Corporate

Defendants misled shareholders as to the quality and infection-prevention

capabilities of the MicroCool gown, in violation of Sections 10(b) and 20(a) of the

Exchange Act, and Rule 10b-5 promulgated thereunder. Specifically, Jackson

claims that the Corporate Defendants represented the MicroCool gown as meeting

the AAMI Level 4 standard, despite the companies’ senior executives knowing

that the gown had failed numerous quality-control tests.

      On March 30, 2018, the district court dismissed Jackson’s complaint in its

entirety and entered judgment in favor of the Defendants. It reasoned that Jackson

had failed to adequately allege scienter as to the Individual Defendants and,

because Jackson sought to impute their scienter to the corporate entities, the

Corporate Defendants as well.

      Less than a month later, Jackson moved to set aside the judgment under

Federal Rules of Civil Procedure 15(a), 59(e), and 60(b), and file a proposed



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amended complaint. His proposed amended complaint included several new

allegations based on a related California consumer fraud case concerning the

MicroCool gown (the “California Action”).

      In the California Action, three of the Corporate Defendants’ employees

testified that the MicroCool gown’s compliance problems were well known at the

companies. Joanne Bauer, President of Kimberly-Clark’s healthcare division and

Falk’s direct report, testified that she held a meeting with her team to discuss the

MicroCool gown’s testing failures. Bernard Vezeau, Director of Global Strategic

Marketing for Surgery and Infection Prevention for both Corporate Defendants,

testified that he “prepared documents for senior Kimberly-Clark executives that

detailed manufacturing problems and resulting product compliance failures,”

which were “presented to senior management, including to Mr. Falk.” J. App’x

at 145 (internal quotation marks omitted). Lastly, Keith Edgett, Kimberly-Clark’s

former Global Director of Surgical and Infection Prevention, testified that “Falk

was informed of [the MicroCool gown’s] noncompliance issues.” Id. (internal

quotation marks and brackets omitted). The jury in the California Action found,

likely based in part on this testimony, that the companies had intentionally misled

consumers about the gown’s protective qualities, in violation of California’s



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consumer protection laws.

      In moving to set aside the judgment, Jackson argued that both the

employees’ testimony and the jury verdict tended to support a strong inference of

scienter against each of the Individual Defendants. The district court disagreed

and denied Jackson’s motion as futile. It reasoned that the new allegations

required the court to speculate about what precisely Falk was told and whether

those warnings were sufficiently obvious as to render Falk’s inaction reckless.

Moreover, the district court noted that Vezeau clarified that he did not personally

know whether Falk received the presentations about the MicroCool gown’s testing

failures, but merely assumed that he had. The district court concluded that it

would have to engage in several layers of speculative inferences to find that Falk

(or any other defendant) acted recklessly.

      Jackson timely appealed. On appeal, he has abandoned his claims against

the Individual Defendants, and argues only that his proposed amended complaint

raises a strong inference of scienter against the Corporate Defendants.

      Ordinarily, we review a district court’s denial of a post-judgment motion for

leave to amend for abuse of discretion. Williams v. Citigroup Inc., 659 F.3d 208, 212

(2d Cir. 2011). But where the district court denies such a motion solely on the



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grounds that amendment would be futile, we review de novo. Ind. Pub. Ret. Sys. v.

SAIC, Inc., 818 F.3d 85, 92 (2d Cir. 2016).

                                         II. Discussion

       The crux of Jackson’s appeal is that his proposed amended complaint raises

a strong inference of collective corporate scienter. 1 That inference may be drawn,

he says, because (i) the knowledge of the three employees that testified in the

California Action may be imputed to the Corporate Defendants and (ii) the

MicroCool gown was a key product with which the companies’ senior

management would be expected to be familiar. 2 We are unpersuaded.

       To adequately plead scienter, a complaint must “state with particularity

facts giving rise to a strong inference that the defendant acted with” the intent to

deceive, manipulate, or defraud. 15 U.S.C. § 78u-4(b)(2)(A); see Tellabs, Inc. v.



1We note that Jackson did not pursue this theory of scienter below and thus could be found to
have waived that argument. But as “our waiver doctrine is entirely prudential,” In re Nortel
Networks Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir. 2008), and because Jackson’s appeal “presents
a question of law and there is no need for additional fact-finding,” Allianz Ins. Co. v. Lerner, 416
F.3d 109, 114 (2d Cir. 2005) (internal quotation marks omitted), we exercise our discretion to
consider his argument on the merits.
2 Jackson also suggests that the Corporate Defendants are precluded from contesting scienter
because the jury in the California Action found that the companies had intentionally defrauded
consumers. But Jackson has not demonstrated that the issues in the two proceedings are identical.
See Proctor v. LeClaire, 715 F.3d 402, 414 (2d Cir. 2013). Indeed, it is not at all apparent that the
individuals whose states of mind are relevant to prove corporate scienter in the context of a
consumer fraud action are the same individuals whose states of mind are relevant in the context
of a securities fraud action.
                                                 8
Makor Issues & Rights, Ltd., 551 U.S. 308, 313 (2007). Under this heightened

pleading standard, a “complaint will survive . . . 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.” Slayton v. American Exp. Co., 604

F.3d 758, 766 (2d Cir. 2010) (quoting Tellabs, 551 U.S. at 324).

      Where a defendant is a corporation, this requires pleading facts that give

rise to “a strong inference that someone whose intent could be imputed to the

corporation acted with the requisite scienter.” Teamsters Local 445 Freight Div.

Pension Fund v. Dynex Capital Inc., 531 F.3d 190, 195 (2d Cir. 2008). Ascribing a

state of mind to a corporate entity is a difficult and sometimes confusing task. This

is true “not because ‘collective intent’ . . . is an oxymoron,” but because “the

hierarchical and differentiated corporate structure” often muddies the distinction

between a deliberate fraud and an unfortunate (yet unintentional) error caused by

mere mismanagement. Makor Issues & Rights, Ltd. v. Tellabs Inc., 513 F.3d 702, 707

(7th Cir. 2008) (Posner, J.).

      In response to this problem, most courts look to the discrete roles played by

the corporate actors who are connected to the alleged misrepresentation to

determine which (if any) fall within the locus of a company’s scienter. See, e.g.,



                                          9
Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 177–78 (2d

Cir. 2015); In re Omnicare, Inc. Sec. Litig., 769 F.3d 455, 476 (6th Cir. 2014). Under

this approach, the “most straightforward” way to raise a strong inference of

corporate scienter is to impute it from an individual defendant who made the

challenged misstatement. Dynex, 531 F.3d at 195. The scienter of the other officers

or directors who were involved in the dissemination of the fraud may also be

imputed to the corporation, even if they themselves were not the actual speaker.

See Loreley, 797 F.3d at 177. But a shareholder need not always identify the

individuals responsible for the fraudulent statement.          In exceedingly rare

instances, a statement may be so “dramatic” that collective corporate scienter may

be inferred. Dynex, 531 F.3d at 195–96 (quoting Makor Issues & Rights, 513 F.3d

at 710).

       Jackson’s proposed amended complaint sets forth no such allegations. To

start, Jackson has not identified any individual whose scienter may be imputed to

the Corporate Defendants. Jackson’s reliance on the knowledge of the three

employees who testified in the California Action is misplaced. Those employees

did not themselves possess scienter, as the steps they took to raise concern about

the MicroCool gown’s testing failures belie any inference of fraudulent intent. See



                                         10
Slayton, 604 F.3d at 777 (noting that good faith efforts to uncover problems

undermine an inference of scienter). And while particularized allegations that

senior officers ignored those employees’ warnings could demonstrate that those

officers acted fraudulently, Jackson’s proposed amended complaint fails to make

that showing.

      The only specific individual Jackson identifies as having received these

warnings is Falk; but Jackson chose not to appeal the district court’s determination

that the proposed amended complaint did not raise a strong inference that Falk

acted with scienter. Otherwise, Jackson offers only general allegations of warnings

made to unidentified senior executives. Such allegations are not sufficiently

particularized to raise a strong inference of scienter against any individual, much

less one whose knowledge may be imputed to the Corporate Defendants. See

Dynex, 531 F.3d at 196 (“[W]here plaintiffs contend defendants had access to

contrary facts, they must specifically identify the reports or statements containing

this information.” (quoting Novak v. Kasaks, 216 F.3d 300, 309 (2d Cir. 2000))); see

also 15 U.S.C. § 78u-4(b)(2)(A) (requiring scienter to be alleged with

“particularity”).

      In short, Jackson’s proposed amended complaint sets forth allegations that



                                        11
three employees knew of problems with the MicroCool gown, but it provides no

connective tissue between those employees and the alleged misstatements. See

Silvercreek Mgmt., Inc. v. Citigroup, Inc., 248 F. Supp. 3d 428, 440–41 (S.D.N.Y. 2017)

(acknowledging that it is insufficient to “separately allege misstatements by some

individuals and knowledge belonging to some others where there is no strong

inference that, in fact, there was a connection between the two”). We can therefore

only guess what role those employees played in crafting or reviewing the

challenged statements and whether it would otherwise be fair to charge the

Corporate Defendants with their knowledge.

      Jackson is thus left to argue that the MicroCool gown was of such core

importance to the Corporate Defendants that their senior officers must have

known that the challenged statements were false. See Dynex, 531 F.3d at 195–96.

On that point, Jackson offers no arguments other than merely stating that the

MicroCool gown was a “key product” for the Corporate Defendants. Jackson’s Br.

at 28. Such a naked assertion, without more, is plainly insufficient to raise a strong

inference of collective corporate scienter. See Dynex, 531 F.3d at 195–96.

      We therefore agree with the district court that Jackson’s proposed amended

complaint would be futile.



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                         III. Conclusion

Accordingly, we AFFIRM the order of the district court.




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