by Carrington Calder, Associate Member, University of Cincinnati Law Review Vol. 93
I. Introduction
In November of 2024, the Supreme Court will hear two cases and seek to resolve two circuit splits that may alter the pleading standard required for securities laws.[1] Amalgamated Bank v. Facebook, Inc. and Nvidia Corp. v. E. Ohman J:or Fonder AB are two cases from the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) in which claims were brought by shareholders alleging that the companies materially represented themselves in a misleading manner.[2]
In both cases, plaintiffs claim that the companies violated Section 10(b) of the Securities and Exchange Act (“SEA”), among other securities laws.[3] Section 10(b) is an open-ended rule prohibiting the use of “any manipulative or deceptive device” in connection with the sale of a security.[4] The Securities and Exchange Commission (“SEC”) promulgated these rules to protect shareholders and ensure forthright information. However, the largest hurdle the plaintiffs face is the heightened pleading standard under the Private Securities Litigation and Reform Act (“PSLRA”).[5]
This blog argues that the Supreme Court should use these cases as an opportunity to relax the heightened pleading standard regarding scienter and falsity in securities law. To hold otherwise would overly burden plaintiffs in bringing misrepresentation claims and likely lead to the under-deterrence of fraud in SEC filings. Due to the fact intensive nature of the cases, Part II will provide a timeline and background for both Facebook and Nvidia and detail the two circuit splits the Supreme Court will seek to resolve along with the applicable securities laws. Part III will discuss how the cases apply to the securities laws involved and recommend a course of action. Lastly, Part IV will conclude by summarizing the future effects these decisions could have on securities law regulation.
II. Background
A. Amalgamated Bank v. Facebook
In September 2015, Facebook employees observed that Cambridge Analytica, an independent political consulting firm,[6] had been receiving large amounts of Facebook user data.[7] Despite this knowledge, Facebook invited Aleksandr Kogan, who assisted Cambridge Analytica in obtaining the Facebook data, to give an internal presentation on working with Facebook data.[8] Cambridge Analytica’s use of Facebook data became public in December of 2015 when The Guardian reported that Cambridge Analytica had obtained a database of American voter information from their Facebook data, harvested by Kogan using a Facebook quiz.[9]
Kogan accessed both the data of those who took the quiz and their Facebook friends’ data, ultimately accruing the data of millions of users.[10] Facebook responded to the article promising to take “swift action” against any misuse of data.[11] Between December 2015 and January 2016, Facebook notified Cambridge Analytica of their violation of Facebook’s policies and terms, so Cambridge Analytica agreed to delete the information.[12] However, Facebook learned from Kogan that the data was still being used by Cambridge Analytica.[13] Cambridge Analytica’s CEO, Alexander Nix, then refused to certify the deletion of the information.[14]
Under the risk factors listed in Facebook’s 2016 Form 10-K, filed with the SEC in February of 2017, Facebook noted that improper use of data “could harm [Facebook’s] business and reputation and diminish our competitive position.”[15] In 2017, The Guardian continued reporting on the data leak, and Facebook responded stating “no one is going to get your data that shouldn’t have it.”[16] In 2018, both The New York Times and The Guardian informed Facebook that they would be publishing pieces alleging that Cambridge Analytica had not deleted the data.[17] Facebook then responded stating that they were suspending Cambridge Analytica for violating their policies; however, this did not calm the media outcry.[18] After the news broke, Facebook’s stock plummeted, costing the company roughly $100 billion in market capitalization.[19] In April 2018, the CEO of Facebook, Mark Zuckerburg, assured users that they had control over their information.[20] However, in June 2018 The New York Times reported that Facebook still shared user data with third parties that had been whitelisted, meaning that they allowed certain companies privileged access to data.[21] Later in July of 2018, Facebook’s stocks dropped nearly nineteen percent.[22]
The plaintiffs in this case are shareholders who allege that Facebook committed fraudulent representations.[23] These shareholders argue that Facebook stating that the improper data use could happen, instead of stating the improper use actually happened and was known to Facebook, was a deceptive practice and damaged them as shareholders.[24]
B. Nvidia Corp. v. E. Ohman J:or Fonder AB
Nvidia is a tech company that manufactures Graphics Processing Units (“GPUs”).[25] GPUs can perform complex calculations and are used for things such as video games or cryptocurrency mining.[26] Cryptocurrency mining is when computers perform complex calculations in exchange for currency like bitcoin.[27] Generally, Nvidia does not sell to users, rather to device manufacturers who distribute their product.[28]
In 2016, cryptocurrencies largely increased in value,[29] and the demand for crypto mining and the required GPUs also grew.[30] Additionally, purchases of Nvidia’s gaming GPU, GeForce, skyrocketed.[31] In May 2017, Nvidia reported record sales of its gaming products and released a new GPU, Crypto SKU, which was created specifically for crypto mining.[32] Despite shareholders’ wariness about the crypto bubble bursting,[33] Nvidia CEO, Jensen Huang, downplayed concerns that Nvidia relied on crypto revenue, stating that crypto demands were a “small percentage of Nvidia’s overall business.”[34] In November of 2017, Nvidia filed a form 10-Q with the SEC stating that increased profits were “due primarily to increased revenue from sales of GeForce GPU products for gaming.”[35]
Eventually, the crypto bubble burst, and Nvidia’s stock price dropped 28.5%.[36] The plaintiffs are shareholders claiming that Huang deliberately misled them regarding the scope of the company’s dependence on the crypto market.[37] The plaintiffs produced two empirical reports claiming that from May 2017 to November 2018, Nvidia underreported crypto-related earnings by around 1.2 billion dollars.[38] The plaintiffs claim hinges on crypto miners continuing to buy GeForce rather than Crypto SKU which was only compatible with crypto mining.[39] By Nvidia representing the GeForce sales as gaming revenue rather than crypto mining revenue, the Plaintiffs claim that contrary to their prior assertions, Nvidia was highly reliant on the volatile crypto market.[40]
C. Securities Laws
Ultimately, both cases bring claims under Section 10(b) of the SEA and SEC Rule 10b-5.[41] SEC Rule 10b-5 forbids a party from making an untrue statement of material fact or omitting a true statement of material fact in connection with the sale or purchase of any security.[42] The Supreme Court has imposed six requirements for claims under these securities laws: a falsity, such as material misrepresentation or omission; scienter; a connection with the purchase or sale of a security; transaction causation; economic loss; and a causal connection between the misrepresentation and the economic loss.[43]
The plaintiffs in both cases must satisfy the Private Securities Litigation Reform Act (“PSLRA”) which operates as a heightened pleading standard.[44] The PSLRA was enacted to prevent meritless claims from shareholders, and requires plaintiffs to plead with particularity the alleged misleading statements by the defendant.[45] Congress sought to minimize cases against securities issuers where plaintiffs sought discovery with the faint hope that it “might lead eventually to some plausible cause of action.”[46]
The requirements of scienter in Nvidia and falsity in Facebook will likely receive the most scrutiny by the Supreme Court.[47] Under the heightened pleading standard, falsity requires the complaint to “specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed.”[48] Furthermore, scienter is whether the defendant has a guilty mind and requires that the complaint “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.”[49]
D. Pleading Requirements Circuit Split
Although these cases deal with different facets of the heightened pleading standard, the combined result of these cases has the potential to relax the standard in allowing shareholders to bring cases under misrepresentation claims. If the Supreme Court agrees with the plaintiffs, it will represent a large shift in the interpretation of the heightened pleading standard.
The Supreme Court decision in Facebook will decide the circuit split between the Sixth and the Ninth Circuits regarding the falsity requirement in risk statements.[50] The question is whether risk statements are to be interpreted as exclusively forward looking or must disclose present harms. The United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”) argues that these statements should be interpreted narrowly to forward looking harms, saying that such risk statements do not have to detail present harms.[51] However the Ninth Circuit relied upon its own decision in Alphabet Secs. Litig., R.I. v. Alphabet, Inc., which would require risk statements to include disclosures of risks that have already happened.[52]
The Supreme Court decision in Nvidia will decide the circuit split between the Fifth and the First Circuits.[53] The determinative factor in Nvidia will come down to the scienter requirement.[54] The United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”) refused to allow an inference of scienter and required evidence of actual knowledge.[55] However, the United States Court of Appeals for the First Circuit (“First Circuit”) is more permissible in allowing an inference of knowledge, stating that plaintiffs should not be required to prove a prima facie case in the pleadings.[56] If the Supreme Court were to follow the First Circuit it would create precedent that is friendlier to plaintiffs in surviving the pleading stage.[57]
III. Discussion
The foremost difficulty for the plaintiffs in Facebook and Nvidia is the heightened pleading standard under the PSLRA.[58] The law has been criticized for requiring plaintiffs to “already have facts in hand that strongly suggest a deliberate fraud.”[59] Without discovery, this can be difficult to come by. The Supreme Court could cite the PSLRA in denying the plaintiff’s pleading of scienter in Nvidia.[60] If so, they would agree with the Fifth Circuit in setting a high bar for plaintiffs in requiring “proof that the defendant acted with a particular state of mind.”[61] If the Supreme Court follows the Sixth Circuit in Facebook, it is unlikely that the plaintiff’s claims will be deemed to have satisfied the particularity requirement of the PSLRA.[62] A limited reading of risk statements could create a difficult precedent for future stockholder plaintiffs.[63]
The Supreme Court will likely rely on its precedent from Tellabs Inc. v. Makor Issues and Rights, Ltd., which refined the PSLRA and required evidence that is “cogent and compelling” rather than irrefutable.[64] Both Facebook and Nvidia must adequately plead all elements of SEC Rule 10b-5. However, the Supreme Court’s decision will likely hinge on the falsity element in Facebook and the scienter element in Nvidia, its decision will resolve two circuit splits and set a clearer standard for future securities litigation.[65]
A. Facebooks Falsity
The key issue in Facebook is the use of hypothetical terms in the company’s 2016 Form 10-K filing.[66] Risk factors in a Form 10-K are meant to be forward-looking,[67] yet plaintiffs argue that Facebook knew wrongful data use was still occurring.[68] Further, by disclosing in the risk statement that this problem “could” damage Facebook, it was a falsity by omission.[69]
There is a split among circuit courts on the requirements of risk statements. The Sixth Circuit argues that present harms are irrelevant to risk statements since they are intended to disclose future harms, not present harms.[70] Without being required to disclose the known data usage problems in their risk statements, Facebook would be able to defeat the plaintiffs claim of falsity.[71] However, the United States Court of Appeals for the Second Circuit (“Second Circuit”) stated that “cautionary words about future risk cannot insulate from liability an issuer’s failure to disclose that the risk has, in fact, materialized in the past and is virtually certain to materialize again.”[72] In deciding Facebook, the Ninth Circuit relied upon its holding in Alphabet Secs. Litig., R.I. v. Alphabet, Inc., which states that “[r]isk disclosures that “speak[] entirely of as-yet-unrealized risks and contingencies” and fail to alert readers that such risks may have already come to fruition can mislead reasonable investors.[73] The Ninth Circuit held that the plaintiffs in Facebook had adequately pled their claims as to the falsity of the risk disclosures.[74]
The Second and Ninth Circuit Courts’ interpretations are the most compelling. To disclose that harm could happen while such harm is currently happening is deceptive to shareholders. The Sixth Circuit is too limited in its requirements of risk disclosures because present harms can easily extend to future harms as well.[75] If at the time of filing the 2016 Form 10-K, Facebook knew that the improperly drawn data was still being used by third parties, then it would be difficult to argue that they were not aware that this information would materially affect share price. Therefore, the Ninth Circuit was justified in allowing the case to move forward.[76]
B. Nvidia’s State of Mind
The scienter requirement is one of the most difficult aspects of the heightened pleading standard for a plaintiff to prove. In Nvidia, the plaintiffs attempt to prove Huang’s mens rea through empirical reports, undisclosed former employees’ testimony, and Huang’s comments toward the public.[77] The Fifth Circuit states that “[a] pleading of scienter may not rest on the inference that defendants must have been aware of the misstatement based on their positions within the company.”[78] However, the the First Circuit was more lenient in allowing circumstantial evidence to show an inference of knowledge of a falsity.[79] The First Circuit states that to hold otherwise would in effect require plaintiffs to “plead evidence”.[80]
The Fifth Circuit’s interpretation would require a plaintiff to prove that the defendant had knowledge of the falsity.[81] This is too high of a burden for plaintiffs. Without complete discovery, it could be difficult for a plaintiff to produce evidence that meets this burden, such as producing an internal document that detailed the falsity and was known to be observed by the defendant. The First Circuit is correct in that such a standard would in effect require plaintiffs to have conclusive evidence of scienter before discovery.[82] Relying on the higher standard could result in the under-deterrence of securities fraud due to plaintiffs’ inability to survive the pleadings stage. Both the SEC and the Department of Justice have filed amicus curiae briefs arguing that the Supreme Court should allow the Nvidia shareholders’ claim to move forward.[83] The Supreme Court precedent from Tellabs allows more room for interpretation in defining what evidence meets cogent and compelling.[84] The Supreme Court should follow the First Circuit in Nvidia in allowing the plaintiffs’ claims to move forward.[85]
IV. Conclusion
The Supreme Court will soon have the opportunity to either provide more protections for shareholders or strictly follow the principles intended by the PSLRA. This decision will set a strong precedent for future securities law. To deny the plaintiffs’ claims in Facebook and Nvidia may allow for bad faith actions by company executives and provide incentives for withholding information. Hesitancy to limit the provisions of the PSLRA would be understandable, as it could result in shareholders bringing suit in any case where their shares fell, leading to an abundance of meritless claims and a significant burden on public companies. However, securities laws should be interpreted in light of their primary purpose, which is to protect shareholders. Therefore, the Supreme Court should allow the plaintiffs’ claims to move forward in Facebook and Nvidia.[86]
[1] E. Ohman J:or Fonder AB v. Nvidia Corp., 81 F.4th 918 (9th Cir. 2023) cert. granted, No. 23-970 (2024).; In re Facebook, Inc. Sec. Litig., 84 F.4th 844 (9th Circ. 2023), cert. granted sub nom. Facebook, Inc. v. Amalgamated Bank, No. 23-980 (2024).
[2] Id.
[3] Id.
[4] 15 U.S.C. § 78j(b).
[5] 15 U.S.C § 78u-4.
[6] Nicholas Confessore, Cambridge Analytica and Facebook: The Scandal and the Fallout So Far, N.Y. Times (Apr. 4, 2018), https://www.nytimes.com/2018/04/04/us/politics/cambridge-analytica-scandal-fallout.html.
[7] In re Facebook, Inc. Sec. Litig., 84 F.4th 844, 852 (9th Cir. 2023) cert. granted sub nom. Facebook, Inc. v. Amalgamated Bank, No. 23-980 (2024).
[8] Julia Carrie Wong et al., How academic at centre of Facebook scandal tried – and failed – to spin personal data into gold, The Guardian (Apr. 24, 2018, 3:18 AM), https://www.theguardian.com/news/2018/apr/24/aleksandr-kogan-cambridge-analytica-facebook-data-business-ventures.
[9] Id.
[10] Id.
[11] Harry Davies, Facebook told me it would act swiftly on data misuse – in 2015, The Guardian (Mar. 26, 2018, 6:00 AM), https://www.theguardian.com/commentisfree/2018/mar/26/facebook-data-misuse-cambridge-analytica.
[12] In re Facebook, Inc. Sec. Litig., 84 F.4th at 853.
[13] Id.; Facebook data row: Cambridge Analytica academic a ‘scapegoat’, BBC News (Mar. 21, 2018), https://www.bbc.com/news/uk-43480978.
[14] In re Facebook, Inc. Sec. Litig., 84 F.4th at 853.
[15] Facebook Inc., Annual Report (Form 10-K) (Dec. 31, 2016).
[16] Kevin M. LaCroix, Facebook Privacy-Related Securities Suit Dismissed Without Prejudice, The D&O Diary (Sept. 29, 2019), https://www.dandodiary.com/2019/09/articles/securities-litigation/facebook-consolidated-privacy-related-securities-suit-dismissed-without-prejudice/.
[17] In re Facebook, Inc. Sec. Litig., 84 F.4th at 854.
[18] Carole Cadwalladr & Emily Graham-Harrison, Revealed: 50 million Facebook profiles harvested for Cambridge Analytica in major data breach, The Guardian (Mar. 17, 2018, 6:03 PM), https://www.theguardian.com/news/2018/mar/17/cambridge-analytica-facebook-influence-us-election.
[19] James B. Stewart, Facebook Falls From Grace, and Investors’ Stock Holdings Tumble Too, N.Y. Times (Mar. 29, 2018), https://www.nytimes.com/2018/03/29/business/facebook-stock.html#:~:text=has%20been%20swift.-,Since%20hitting%20its%20peak%20on%20Feb.,Thursday%20and%20closed%20at%20%24159.79.
[20] Hard Questions: Q&A With Mark Zuckerberg on Protecting People’s Information, Meta (Apr. 4, 2018) https://about.fb.com/news/2018/04/hard-questions-protecting-peoples-information/.
[21] In re Facebook, Inc. Sec. Litig., 84 F.4th at 856.
[22] Id.
[23] Id. at 844.
[24] Id. at 851.
[25] Graphics Cards, Nvidia, https://www.nvidia.com/en-us/geforce/graphics-cards/. (last visited Oct. 7, 2024).
[26] E. Ohman J:or Fonder AB v. Nvidia Corp., 81 F.4th 918, 924 (9th Cir. 2023).
[27] Euny Hong et al., How Does Bitcoin Mining Work? A Beginner’s Guide, Investopedia (Nov. 8, 2028), https://www.investopedia.com/tech/how-does-bitcoin-mining-work/.
[28] E. Ohman J:or Fonder AB, 81 F.4th at 925.
[29] Frederick Reese, Not Just Bitcoin: The Top 7 Cryptocurrencies All Gained in 2016, CoinDesk (Dec. 31, 2016, 10:36 AM), https://www.coindesk.com/markets/2016/12/31/not-just-bitcoin-the-top-7-cryptocurrencies-all-gained-in-2016/.
[30] E. Ohman J:or Fonder AB, 81 F.4th at 926.
[31] Id.
[32] Id.
[33] A stock bubble burst occurs when a stock experiences a large surge and develops an inflated valuation. When the stock comes crashing down to its actual value the bubble is said to have burst. All stock bubble bursts have an incline and a sudden crash, the dot com crash being an example. Adam Hayes et al., Dotcom Bubble Definition, Investopedia (May 31, 2024), https://www.investopedia.com/terms/d/dotcom-bubble.asp.
[34] E. Ohman J:or Fonder AB, 81 F.4th at 934.
[35] Nvidia Corp., Quarterly Report (Form 10-Q) (Oct. 29, 2017).
[36] E. Ohman J:or Fonder AB, 81 F.4th at 927.
[37] Id. at 923.
[38] Id. at 929.
[39] Id. at 926.
[40] Id. at 923.
[41] 15 U.S.C.. § 78j; 17 C.F.R. §240.10b-5.
[42] 17 C.F.R. §240.10b-5(b).
[43] Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 341 (2005).
[44] Christopher P. Malloy & Shaud G. Tavakoli, Securities Litigation under the Private Securities Litigation Reform Act (PSLRA), Skadden, Arps, Slate, Meagher & Flom LLP, https://www.skadden.com/-/media/files/publications/2021/11/securities_litigation_under_the_private_securities_litigation_reform_act.pdf?rev=4e451ad704ae414ab8a6b2a8ecb6605c (last visited Nov. 11, 2024).
[45] Id.
[46] H.R. Rep. No. 104-369 (1995).
[47] Micheal Charlson et al., 2 High Court Securities Cases Could Clarify Pleading Rules, Vinson & Elkins LLP (Oct. 3, 2024), https://media.velaw.com/wp-content/uploads/2024/10/04132329/Law360-2-High-Court-Securities-Cases-Could-Clarify-Pleading-Rules.pdf.
[48] 15 U.S.C. § 78u-4(b)(1).
[49] 15 U.S.C. § 78u-4(b)(2)(A).
[50] In re Facebook, Inc. Sec. Litig.. 84 F.4th 844 (9th Circ. 2023), cert. granted sub nom. Facebook, Inc. v. Amalgamated Bank, No. 23-980 (2024); Bondali v. Yum! Brands, Inc., 620 Fed. Appx. 483, 491 (6th Cir. 2015). Set Capital LLC v. Credit Suisse Grp. AG, 996 F.3d 64, 85 (2nd Cir. 2021).
[51] Bondali, 620 Fed. Appx. at, 491.
[52] In re Alphabet, Inc. Sec. Litig., 1 F.4th 687, 703 (2nd Cir. 2021).
[53] E. Ohman J:or Fonder AB v. Nvidia Corp., 81 F.4th 918 (9th Cir. 2023) cert. granted, No. 23-970 (2024).
[54] Id.
[55] Abrams v. Baker Hughes Inc., 292 F.3d 424, 432 (5th Cir. 2002).
[56] In re Stone & Webster, Inc., Sec. Litig., 414 F.3d 187, 199 (1st Cir. 2005).
[57] Id.
[58] 15 U.S.C. § 78u-4.
[59] Jane Bryant Quinn, Madoff Victims Face Grim Prospects in Court, Bloomberg (Feb. 11, 2009, 12:02 AM),
[60] 15 U.S.C. § 78u-4.
[61] Abrams v. Baker Hughes, Inc., 292 F.3d 424, 432 (5th Cir. 2002). 15 U.S.C. § 78u-4.
[62] Bondali v. Yum! Brands, Inc., 620 Fed. Appx. 483, 491 (6th Cir. 2015).
[63] 15 U.S.C. § 78u-4.
[64] Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 324 (2007).
[65] Micheal Charlson et al, 2 High Court Securities Cases Could Clarify Pleading Rules, Vinson & Elkins LLP (Oct. 3, 2024), https://media.velaw.com/wp-content/uploads/2024/10/04132329/Law360-2-High-Court-Securities-Cases-Could-Clarify-Pleading-Rules.pdf.
[66] Facebook Inc. Annual Report (Form 10-K) (Dec. 31, 2016).
[67] Id.
[68] Id.
[69] In re Facebook, Inc. Sec. Litig., 84 F.4th 844, 853 (9th Circ. 2023).
[70] Bondali v. Yum! Brands, Inc., 620 Fed. Appx. 483, 491 (6th Cir. 2015). “Risk disclosures like the ones accompanying 10-Qs and other SEC filings are inherently prospective in nature. They warn an investor of what harms may come to their investment. They are not meant to educate investors on what harms are currently affecting the company.”
[71] In re Facebook, Inc. Sec. Litig., 84 F.4th at 844.
[72] Set Capital LLC v. Credit Suisse Grp. AG, 996 F.3d 64, 85 (2nd Cir. 2021).
[73] In re Alphabet, Inc. Sec. Litig., 1 F.4th 687, 703 (2nd Cir. 2021).
[74] In re Facebook, Inc. Sec. Litig., 84 F.4th at 862.
[75] Bondali, 620 Fed. Appx. at 491.
[76] In re Alphabet, Inc. Sec. Litig., 1 F.4th at 687.
[77] E. Ohman J:or Fonder AB v. Nvidia Corp., 81 F.4th 918 (9th Cir. 2023).
[78] Abrams v. Baker Hughes, Inc., 292 F.3d 424, 432 (5th Cir. 2002).
[79] In re Stone & Webster, Inc., Sec. Litig., 414 F.3d 187, 210-211 (1st Cir. 2005). “Rather, a jury could reasonably find that the ‘total mix’ of information available to an investor in the fall of 1999 – that is, the totality of new disclosures, read in the context of previous statements by the Company – still was materially misleading, by virtue of both false statements and material omissions.”
[80] Id. at 199.
[81] Abrams, 292 F.3d at 432.
[82] In re Stone & Webster, Inc., Sec. Litig., 414 F.3d at 199.
[83] Martina Barash, Nvidia Investors Backed by US in Supreme Court Crypto Sales Case, Bloomberg (Oct. 3, 2024, 4:17 PM), https://news.bloomberglaw.com/us-law-week/nvidia-investors-backed-by-us-in-supreme-court-crypto-sales-case.
[84] Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 324 (2007).
[85] E. Ohman J:or Fonder AB v. Nvidia Corp., 81 F.4th 918 (9th Cir. 2023) cert. granted, No. 23-970 (2024).; In re Facebook, Inc. Sec. Litig., 84 F.4th 844 (9th Circ. 2023), cert. granted sub nom. Facebook, Inc. v. Amalgamated Bank, No. 23-980 (2024).
[86] Id.
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