449 v. SKECHERS INC (2020)

United States Court of Appeals, Second Circuit.

CAVALIER FUNDAMENTAL GROWTH FUND, Movant-Appellant, Steamfitters Local 449 Pension Plan, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. SKECHERS U.S.A, INC., Robert Greenberg, David Weinberg, Defendants-Appellees.

19-3468-cv

Decided: October 20, 2020

PRESENT: Jon O. Newman, Richard C. Wesley, Joseph F. Bianco, Circuit Judges.

For Movant-Appellant: David J. Goldsmith (Carol C. Villegas, Alec T. Coquin, on the brief), Labaton Sucharow LLP, New York, NY. For Defendants-Appellees: Abby F. Rudzin (Seth Aronson, Los Angeles, CA, on the brief), O'Melveny & Myers LLP, New York, NY.

SUMMARY ORDER

Movant-Appellant Cavalier Fundamental Growth Fund appeals from the district court's September 23, 2019 order dismissing the Second Amended Complaint for failure to state a claim. This Court reviews the grant of a motion to dismiss de novo, accepting all factual allegations in the complaint as true and drawing all reasonable inferences in favor of the plaintiff. City of Providence v. BATS Glob. Mkts., Inc., 878 F.3d 36, 48 (2d Cir. 2017). For substantially the reasons provided by the district court, we AFFIRM the decision below.¹

FOOTNOTES

1. Three alleged misstatements were not specifically identified as inactionable in the opinion below. See Joint App'x at 74, 96, 99. The district court's analysis of the other alleged misstatements extends to those three as well. Each is inactionable as opinion, puffery, or a forward-looking statement accompanied by meaningful cautionary language—or some combination of the three. Further, we agree with the district court that we need not reach the scienter issue since Appellant's Section 10(b) claim fails in the absence of actionable misstatements.

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