18

‐ 1165

‐ cv

Ark. Pub. Emps. Ret. Sys. v. Xerox Corp.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO

A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS

GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S

LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH

THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION A SUMMARY ORDER @ ). A PARTY

CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT

REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, 1

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2

City of New York, on the 6 th day of June, two thousand nineteen. 3

4

PRESENT: GUIDO CALABRESI, 5

RAYMOND J. LOHIER, JR., 6

Circuit Judges

, 7

ANN M. DONNELLY,  8

District Judge

. 9

10

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐ 11

ARKANSAS PUBLIC EMPLOYEES 12

RETIREMENT SYSTEM, 13

14

Plaintiff

‐ Appellant, No. 18

‐ 1165

‐ cv 15

16

OKLAHOMA FIREFIGHTERS 17

PENSION AND RETIREMENT 18

 Judge Ann M. Donnelly, of the United States District Court for the Eastern District of

New York, sitting by designation.2 SYSTEM, individually and on behalf 1

of all others similarly situated, 2

3

Plaintiff, 4

5

v. 6

7

XEROX CORPORATION, URSULA 8

M. BURNS, LUCA MAESTRI, 9

KATHRYN A. MIKELLS, LYNN R. 10

BLODGETT, ROBERT K. ZAPFEL, 11

DAVID H. BYWATER, MARY 12

SCANLON, 13

14

Defendants

‐ Appellees. 15

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 16

FOR APPELLANT: A NDREW L. Z IVITZ (Johnston 17

de F. Whitman, Jr., Kessler 18

Topaz Meltzer & Check, LLP, 19

Radnor, PA; Jonathan 20

Gardner, David J. Goldsmith, 21

Alfred L. Fatale III, Labaton 22

Sucharow LLP, New York, NY 23

on the brief ). 24

25

FOR APPELLEES: S ANDRA C. G OLDSTEIN (Stefan 26

Atkinson, Robert Allen, on 27

the brief ), Kirkland & Ellis LLP, 28

New York, NY, for Xerox 29

Corporation, Ursula M. Burns, 30

Luca Maestri, Kathryn A. 31

Mikells, Lynn R. Blodgett, 32

David H. Bywater, and Mary 33

Scanlon. 343 J AMES M. A DRIAN (Anna Karin 1

F. Manalaysay, on the brief ), 2

Adrian & Associates, LLC, 3

New York, NY, for Robert K. 4

Zapfel. 5

6

Appeal from a judgment of the United States District Court for the 7

Southern District of New York (Paul A. Engelmayer, Judge ). 8

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 9

AND DECREED that the judgment of the District Court is AFFIRMED. 10

Arkansas Public Employees Retirement System (“APERS”) appeals from 11

the judgment of the District Court (Engelmayer, J.), dismissing its claims against 12

Xerox and the individual Defendants under § 10(b) of the Securities Exchange 13

Act of 1934 (Exchange Act), 15 U.S.C. § 78j(b), and Securities and Exchange 14

Commission Rule 10b

‐ 5, 17 C.F.R. § 240.10b

‐ 5, and against the individual 15

Defendants for control person liability under § 20(a) of the Exchange Act, 15 16

U.S.C. § 78t(a). APERS alleged that Xerox and the individual Defendants made 17

misleading statements about the capabilities of a “platform” Xerox had 18

developed to implement Medicaid Management Information Systems for various 19

State governments, the success Xerox was having in implementing that platform 204 in different States, and the profitability of those contracts. We refer to these 1

categories of statements as the “Platform Statements,” “Success Statements,” and 2

“Profitability Statements,” respectively. The District Court dismissed APERS’s 3

claims on the ground that none of the alleged statements as described in the 4

complaint were materially false or misleading. 5

On appeal, APERS argues principally that: (1) the Platform Statements are 6

misleading, not puffery, or not protected by the safe harbor for forward

‐ looking 7

statements under the Private Securities Litigation Reform Act of 1995 (PSLRA), 8

15 U.S.C. § 78u

‐ 5(c); (2) the Success Statements are not puffery, are statements of 9

opinion that are false or misleading under the standard set forth in Omnicare, 10

Inc. v. Laborers District Council Construction Industry Pension Fund, 135 S. Ct. 11

1318 (2015), are not forward

‐ looking statements, or are false or misleading 12

statements of fact; and (3) the Profitability Statements are either false or 13

misleading or are not protected by the PSLRA’s safe harbor. 14

Upon review of the record on appeal, we affirm the judgment substantially 15

for the reasons stated by the District Court in its Opinion & Order dated March 16

20, 2018. 175 We have considered all the arguments raised by APERS on appeal and 1

conclude that they are without merit. For the foregoing reasons, the judgment 2

of the District Court is AFFIRMED. 3

FOR THE COURT: 4

Catherine O = Hagan Wolfe, Clerk of Court 5