ALF long has been an advocate for ensuring that only reliable expert opinions are considered by courts and/or juries during any phase of litigation. In April 2024 ALF filed an amicus brief supporting NVIDIA Corporation’s certiorari petition in NVIDIA Corp. v. E. Ohman J:or Fonder AB, No. 23-970, a securities fraud suit governed by the Private Securities Litigation Reform Act (“PSLRA”). NVIDIA’s petition asks the Supreme Court to address the heightened pleading requirements for “scienter” and “falsity” that the PSLRA, 15 U.S.C. §§ 78u-4(b)(1) & (2), and Federal Rule of Civil Procedure 9(b), establish for plaintiffs in private securities fraud actions. As to the requirements for pleading falsity (i.e., allegations that the defendant made false statements of material fact and/or made statements that omitted material facts), the question presented relates to the use of an expert opinion as a substitute for particularized allegations of fact.
The Supreme Court granted NVIDIA’s certiorari petition on June 17, 2024. Now ALF has filed an amicus brief on the merits, arguing, as it did during the petition stage, that an unreliable expert opinion cannot satisfy the PSLRA’s heightened pleading requirements for alleging “falsity.” ALF’s brief urges the Court to hold that district courts should use the reliability criteria established by Federal Rule of Evidence 702 to assess whether an expert opinion cited in a securities fraud complaint is reliable enough to help satisfy the PSLRA.
Case Background
NVIDIA has explained to the Court that it designs and markets high-speed “GeForce”-branded graphics processing units (GPUs) for video gaming. In 2017 some purchasers began using NVIDIA GeForce GPUs for cryptocurrency “mining”—which involves using computing power to solve complicated math problems to acquire cryptocurrency. To preserve the supply of GeForce GPUs for gamers, NVIDIA designed and marketed a new GPU, branded “Crypto SKUs,” specifically for cryptocurrency mining.
The plaintiff shareholders filed a putative class action contending that NVIDIA knowingly understated the extent to which NVIDIA’s gaming segment revenues were driven by sales of GeForce GPUs to cryptocurrency miners, as opposed to gamers. According to NVIDIA, rather than citing internal NVIDIA sales data to support their allegations, the plaintiffs hired an outside expert, whose opinion relies on generic market research rather than particularized facts and data.
A California federal district court dismissed the plaintiffs’ complaint, holding in part that the complaint’s falsity allegations relied entirely on a expert opinion that lacked the particularity required by the PSLRA. A divided panel of the Ninth Circuit reversed the district court’s dismissal.
ALF’s Amicus Brief
ALF’s amicus brief explains that the PSLRA is intended to protect defendants from securities fraud suits where the plaintiffs do not have enough evidence to justify subjecting a company to the burdens, costs, and risks of litigation, including intrusive discovery and reputational harm. The statute, coupled with Federal Rule of Civil Procedure 9(b) (Fraud or Mistake; Conditions of Mind), establish heightened requirements for pleading falsity, which is a necessary component of a securities fraud claim. More specifically, a securities fraud complaint subject to the PSLRA “shall 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.” 15 U.S.C. § 78u-4(b)(1).
ALF’s brief discusses why an expert opinion is only as good as the data on which it relies. In the NVIDIA case, rather than alleging with particularity facts relating to falsity, the plaintiffs’ complaint cites a conclusory expert opinion, which apparently was not even provided to the district court. ALF’s amicus brief argues that such an expert opinion cannot be used to satisfy, or even bolster, securities fraud pleading requirements if it is unreliable.
The brief further argues that to assess reliability, district courts should utilize the criteria established by Federal Rule of Evidence 702 (Testimony by Expert Witnesses), which are used to determine whether proffered expert testimony is admissible. One of Rule 702’s reliability criteria requires that an expert opinion be “based on sufficient facts or data.” ALF argues that a district court, as an expert opinion “gatekeeper,” should find that an expert opinion fails to satisfy the PSLRA and Rule 9(b) pleading requirements for falsity if it is not based on facts or data sufficient to satisfy Rule 702.