Oklahoma Firefighters Pension and Retirement System, individually and on behalf of all others similarly situated, Plaintiff, v. XEROX CORPORATION (2019)

SUMMARY ORDER

Arkansas Public Employees Retirement System (“APERS”) appeals from the judgment of the District Court (Engelmayer, J.), dismissing its claims against Xerox and the individual Defendants under § 10(b) of the Securities Exchange Act of 1934 (Exchange Act), 15 U.S.C. § 78j(b), and Securities and Exchange Commission Rule 10b-5, 17 C.F.R. § 240.10b-5, and against the individual Defendants for control person liability under § 20(a) of the Exchange Act, 15 U.S.C. § 78t(a). APERS alleged that Xerox and the individual Defendants made misleading statements about the capabilities of a “platform” Xerox had developed to implement Medicaid Management Information Systems for various State governments, the success Xerox was having in implementing that platform in different States, and the profitability of those contracts. We refer to these categories of statements as the “Platform Statements,” “Success Statements,” and “Profitability Statements,” respectively. The District Court dismissed APERS’s claims on the ground that none of the alleged statements as described in the complaint were materially false or misleading.

On appeal, APERS argues principally that: (1) the Platform Statements are misleading, not puffery, or not protected by the safe harbor for forward-looking statements under the Private Securities Litigation Reform Act of 1995 (PSLRA), 15 U.S.C. § 78u-5(c); (2) the Success Statements are not puffery, are statements of opinion that are false or misleading under the standard set forth in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, ––– U.S. ––––, 135 S. Ct. 1318, 191 L.Ed.2d 253 (2015), are not forward-looking statements, or are false or misleading statements of fact; and (3) the Profitability Statements are either false or misleading or are not protected by the PSLRA’s safe harbor.

Upon review of the record on appeal, we affirm the judgment substantially for the reasons stated by the District Court in its Opinion & Order dated March 20, 2018.

We have considered all the arguments raised by APERS on appeal and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.