will give Plaintiffs leave to amend.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendants' Motion to Dismiss the Consolidated Amended Class Action Complaint [DE 42] is hereby GRANTED, in part.
2. The Court hereby DISMISSES those portions of Count III and Count IV that relate to the statements made before October 29, 2002.
3. Plaintiffs are hereby granted leave to file an Amended Complaint by October 11, 2005. Failure to timely file an Amended Complaint will result in a dismissal with prejudice of the portion of the Complaint relating to the dismissed allegations.
NOTES [1] The individual Defendants are Robert J. Adamson ("Adamson"), MSN's President, Chief Executive Officer, and a Director during the class period; Kevin S. Little ("Little"), MSN's Chief Financial Officer and a Director during the class period; Joel Ackerman ("Ackerman"), a Director of MSN during the class period; David J. Wenstrup ("Wenstrup"), a Director of MSN during the class period; and Scott Hillinski ("Hillinski"), a Director of MSN during the class period (collectively the "individual Defendants").
[2] Plaintiffs only assert the Exchange Act counts against MSN and individual Defendants Adamson and Little.
[3] Specifically, the Prospectus contained the following risk disclosures:
IF WE ARE UNABLE TO ATTRACT QUALIFIED NURSES AND ALLIED HEALTHCARE PROFESSIONALS FOR OUR HEALTHCARE STAFFING BUSINESS, OUR BUSINESS COULD BE NEGATIVELY IMPACTED.
WE OPERATE IN A HIGHLY COMPETITIVE MARKET AND OUR SUCCESS DEPENDS ON OUR ABILITY TO REMAIN COMPETITIVE IN OBTAINING AND RETAINING HOSPITAL AND HEALTHCARE FACILITY CLIENTS AND TEMPORARY HEALTHCARE PROFESSIONALS.
OUR BUSINESS DEPENDS UPON OUR CONTINUED ABILITY TO SECURE AND FILL NEW ORDERS FROM OUR HOSPITAL AND HEALTHCARE FACILITY CLIENTS, BECAUSE WE DO NOT HAVE LONG-TERM AGREEMENTS OR EXCLUSIVE CONTRACTS WITH THEM.
AN IMPORTANT PART OF OUR STRATEGY IS THE EXPANSION OF OUR BUSINESS THROUGH THE OPENING AND DEVELOPMENT OF DE NOVO BRANCHES. THE SUCCESS OF THIS EXPANSION
DEPENDS ON OUR ABILITY TO CONTINUE TO IDENTIFY AND RETAIN LOCAL MANAGEMENT AND TO SECURE GOOD LOCATIONS.
FLUCTUATIONS IN PATIENT OCCUPANCY AT OUR CLIENTS' HOSPITALS AND HEALTHCARE FACILITIES MAY ADVERSELY AFFECT THE DEMAND FOR OUR SERVICES AND THEREFORE THE PROFITABILITY OF OUR BUSINESS.
WE OPERATE IN A REGULATED INDUSTRY AND CHANGES IN REGULATIONS OR VIOLATIONS OF REGULATIONS MAY RESULT IN INCREASED COSTS OR SANCTIONS THAT COULD REDUCE OUR REVENUES AND PROFITABILITY.
WE MAY FACE DIFFICULTIES INTEGRATING OUR ACQUISITIONS INTO OUR OPERATIONS AND OUR ACQUISITIONS MAY BE UNSUCCESSFUL, INVOLVE SIGNIFICANT CASH EXPENDITURES OR EXPOSE U.S. TO UNFORESEEN LIABILITIES.
(Defendant's Motion [DE 42] at 3).
[4] In part, the Defendants argue that the Section 15 count must be dismissed, since the Plaintiffs have failed to plead an adequate Section 11 count. See Brown v. Enstar Group, Inc., 84 F.3d 393, 396-97 (11th Cir.1996) (holding that if there is no primary violation of Section 11, then there can be no vicarious liability under Section 15). However, as discussed above, the Court has found that Plaintiffs have sufficiently plead their Section 11 count, thus Defendants' argument on this ground is moot.
[5] The controlling person analysis under