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In re Tyson Foods, Inc. Securities Litigation

United States District Court, W.D. Arkansas, Fayetteville Division

March 31, 2018

IN RE TYSON FOODS, INC. SECURITIES LITIGATION

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE.

         Currently before the Court is a Motion for Leave to File an Amended Complaint (Doc. 54) submitted by Lead Plaintiffs, Employees' Retirement System of the State of Hawaii and Blue Sky, [1] a Response in Opposition (Doc. 58) submitted by Defendants Tyson Foods, Inc. (“Tyson”), Donald J. Smith, Dennis Leatherby, Donnie King, and Noel White, and a Reply (Doc. 59) in further support. Additionally, the parties have each filed Notices of Subsequent Activity to update the Court about legal developments in related securities cases around the country. Plaintiffs filed the first Notice (Doc. 60) to advise the Court that the Complaint in the In re Broiler Chicken Antitrust litigation pending in the Northern District of Illinois had survived a Motion to Dismiss under Rule 12(b)(6). Defendants filed a response (Doc. 61). Defendants then submitted their own Notice (Doc. 62) that a lawsuit against Sanderson Farms with allegations strikingly similar to those in the case at bar had been dismissed with prejudice in the Southern District of New York. Plaintiffs responded to that Notice (Doc. 63).[2] Having considered the briefs submitted by the parties as well as these subsequent Notices, the Court is now in a position to rule on the Motion for Leave to Amend. For the reasons provided in this Opinion and Order, the Motion for Leave to Amend is DENIED.

         I. Factual and Procedural Background

         The Court has previously given a thorough and exhaustive recount of the factual and procedural background of this case in its Opinion and Order dismissing the initial Complaint (Docs. 52, 53). Because the Court is not ruling in a vacuum, it incorporates by reference that prior Opinion (Doc. 52) and, therefore, will recount here only the most pertinent facts necessary to resolve the instant Motion. In particular, this section will focus on Tyson's financial successes, Tyson's asserted reasons for this success, Plaintiffs' more nefarious allegations about the true causes of Tyson's success, and the prior procedural background of this case, as these are the most important facts to establish context for the Court's present ruling.

         Plaintiffs brought this proposed class action lawsuit against Tyson and certain of its Executive Officers pursuant to Section 10(b) of the Exchange Act and Rule 10b-5, [3]asserting that these Defendants made material misrepresentations of fact in public statements[4] that were false (and therefore actionable) because they attributed Tyson's recent business success to internal corporate improvements and not to two antitrust conspiracies that Plaintiffs contend Tyson was engaged in with fellow chicken producers. Plaintiffs allege that these two conspiracies-a large conspiracy to inflate chicken prices by depressing chicken supply, and a smaller conspiracy to inflate the price of chicken by manipulating the Georgia Dock, one of several ‘indices' used to generate wholesale chicken prices-were the true reasons for Tyson's record-breaking earnings and new-found ability to weather the “brutal swings” that previously characterized the chicken market. (Doc. 54-2, ¶ 37).

         A. Tyson's Boosted Performance

         This uptick in business for Tyson has already been extensively documented in the Court's prior Opinion.[5] But, the Court repeats some of the most important details here (often verbatim) to provide context for its current decision. The original Complaint in this case (Doc. 43) sets out in great detail the remarkable difference in Tyson's pre-Great Recession[6] performance and its Recession/Post-Recession performance. For instance, in the decade immediately preceding the Great Recession, Tyson's chicken margins fluctuated between 1.2% and 7.0%, and in no two consecutive years was Tyson able to sustain an increase in profit margin. During this time, or more specifically from 2001-2008, the average price per chicken was $0.696/lb for “WOG Broilers”[7] and $0.615/lb for “grade A whole birds.” (Doc. 43, ¶ 206). However, as the Great Recession took hold and the nation began its recovery, industry chicken prices increased steadily, hitting an average of $0.967/lb for WOG Broilers and $0.852/lb for grade A whole birds between 2009 to mid-2016. Tyson's chicken margins increased substantially as well. For example, in 2014, Tyson achieved a 7.9% margin. A year later it had increased its margin to 12.0%, and in each of the first three quarters of 2016, Tyson posted margins above 13.0%.

         Tyson's financials and its stock prices increased significantly along with these improved margins. From fiscal year 2011 to fiscal year 2014, Tyson's chicken segment's annual operating income “rose from $164 million to $883 million, a more than five-fold increase.” Id. at ¶ 38. “In 2013 and 2014, Tyson's chicken segment achieved best-in-history earnings and record-breaking earnings per share.” Id. Tyson's $778 million profit in 2013, in fact, was a record high for the company. Id. at ¶ 205. On November 13, 2015, Tyson reported its fiscal year 2015 financial results. They included “full year chicken segment revenues of $11.39 billion and overall revenues of $41.3 billion, chicken segment net income of $1.36 billion and overall net income of $2.17 billion.” Id. at ¶ 281. The market responded favorably to these results, and Tyson's stock price rose from $43.65 on November 20, 2015, to $48.09 by close of market on November 23. Id. at ¶ 288.

         Tyson's record results continued into the next year. On February 5, 2016, Tyson announced its first quarter financials. It reported “chicken segment revenues of $2.63 billion, overall revenues of $9.15 billion, chicken segment net income of $358 million, [and] overall net income of $776 million.” Id. at ¶ 292. Once again the market responded favorably, and Tyson's stock price shot up from $51.95 on February 4, 2016, to $57.10 on the 5th. Id. at ¶ 302. Tyson's second quarter financials were similarly impressive. It achieved “chicken segment revenues of $2.73 billion, overall revenues of $9.17 billion, chicken segment net income of $347 million, [and] overall net income of $704 million.” Id. at ¶ 304. And, Tyson's third quarter results followed suit. Its August 8, 2016, disclosures listed “chicken segment revenues of $2.74 billion, overall revenues of $9.4 billion, chicken segment net income of $380 million, [and] overall net income of $767 million.” Id. at ¶ 323. In the days following this announcement, Tyson's stock price topped $75.00. Id. at ¶ 333. By September 22, 2016, its stock had reached a high of $76.76. Id. at ¶ 7.

         B. Tyson's Stated Reasons for the Improved Performance

         Tyson and certain of its executives attributed this financial success to a variety of factors. One was Tyson's decision to improve its “product mix” by increasing its offerings of “value-added products”; that is, processed chicken products that can be sold for a higher price than commodity chicken parts. Id. at ¶ 42. As Defendant Donald J. Smith, Tyson's former President and CEO, explained in a 2015 conference call with investors, Tyson's “chicken business model is primarily value-added as a large branded component and is anchored in consumer insights and demand, and has only a small amount of commodity exposure.” Id. at ¶ 273. Defendant Noel White, Tyson's COO and former President of Poultry, echoed this sentiment in a 2016 press release, stating that Tyson had “upgraded its product mix into more branded, value-added items.” Id. at ¶ 321. Smith reiterated in early 2016 that Tyson was “finding ways to upgrade . . . raw materials into value-added, high margin opportunities.” Id. at ¶ 298. Defendant Donnie King, who was Tyson's President of North American Operations and who Smith labelled “the architect” who had “led the charge” in expanding Tyson's chicken margins, declared in May of 2016 that Tyson “made a conscious decision” to change its business model to be “in a number one brand position” and to “add value to products.” Id. at ¶ 314. Defendant Dennis Leatherby, Tyson's CFO, described Tyson's business model as being in “a much better position, ” in August of 2016, “because [Tyson has] the value-added mix.” Id. at ¶ 328.

         Coupled with its efforts to change its product mix to include more branded, value-added items, Tyson implemented a newly developed “buy-versus-grow” strategy. Formerly, Tyson would grow-that is, raise from egg to slaughter-substantially all of the chicken it brought to market, rather than purchasing some of its chicken from competing producers. Indeed, as late as 2008, Tyson's then-CFO openly rejected the idea of purchasing some of its supply, stating, “we're not going to . . . go out and buy open market meat to subsidize other people's growth.” Id. at ¶ 158 (alteration omitted, ellipses in original) (quoting Tyson's then-CFO, Wade Miquelon). But, by 2012, Tyson had adopted a markedly different strategy: it began buying chicken from other producers to re-sell to its customers. For example, where Tyson's value-added products called for just a part of the chicken-say, a breast-Tyson would purchase the part from another producer, rather than growing the whole chicken itself. By 2014, this strategy led Tyson to purchase over 4 million pounds of broiler chicken on the open market per week. This figure increased to approximately 10% of Tyson's chicken sales by late 2015, or about 17.6 million pounds per week. Id. at ¶ 160-61.

         The buy-versus-grow strategy, according to Tyson executives, had important benefits. For one, it allowed Tyson to better hedge against the cyclical price changes in the broiler chicken industry. As Smith explained in November of 2015, Tyson had “proven that by purchasing up to 10% of [its] chicken needs on the open market and further processing it into value-added convenience foods, [Tyson] can produce strong stable returns even in times of falling commodity chicken pricing.” Id. at ¶ 283. King described the strategy's benefit similarly: Tyson's business model is built “with the flexibility so that if chicken margins are really low, if there is excess supply . . . we go buy the raw material. In a situation where chicken might be tight, where sales came in much higher than what was projected . . . then we would grow the animal.” Id. at ¶ 316.

         The buy-versus-grow business model also meant that Tyson was able to eliminate certain inefficiencies from its production. For example, because certain parts of the chicken, namely, the breast-were most desirable, Tyson could buy those products from competitors rather than ending up with an excess supply of less desirable chicken parts-the leg quarters-if it opted to grow the animals instead. Smith remarked in February of 2016 that he couldn't remember Tyson ever “selling fewer leg quarters than we are today-and the Buy vs. Grow certainly plays a part of that.” Id. at ¶ 298. King confirmed this benefit a few months later, stating that Tyson doesn't “have excess chicken pieces or parts to sell.” Id. at ¶ 314.

         Tyson also attributed its increased financial outlook to cost-reduction measures. King declared in May of 2016 that Tyson had “taken well over $1 billion out of [its] cost structure.” Id. at ¶ 314. White acknowledged these savings a month later, explaining:

We've invested a fair amount of money in our plants and facilities to make sure those structures are right. We've invested in what we call one piece flow, which means that the production processes are all in flow. We gain from an efficiency standpoint, yield standpoint, and more processes we put in place, the better we've gotten. So there's about $1 billion in costs that have come out of our system.

Id. at ¶ 319. Tyson complimented these cost-reduction measures with changes to its pricing structure. For example, Tyson “mov[ed] away from fixed price contracts in its chicken business and towards contracts that relied on spot prices, thereby allowing Tyson to benefit from rising chicken prices . . . .” Id. at 119. In 2009, Smith described this change as “dramatically” reducing “the amount of fixed-price contracts that we have over 90 days with our customers.” Id.

         C. Plaintiffs' Explanations of Tyson's Success

         Plaintiffs have a different, more sinister, explanation for Tyson's sustained period of financial success. According to them, Tyson engaged in an industry-wide antitrust conspiracy aimed at depressing the domestic supply of broiler chickens, thus keeping prices and margins high. The broiler chicken industry is one characterized by steady, inelastic demand. When supply is low relative to the market's demand, chicken prices are naturally high. But, when chicken prices are high, producers make more money per chicken, creating an incentive for them to sell more chicken, lest their competitors gain market share by taking advantage of the high prices. The supply of chicken thus increased, correspondingly driving the price down. Paradoxically, then, it is advantageous for the industry as a whole to keep supply low (and prices high), but for the individual producers in the industry to increase supply when prices are high (consequently making prices low again). To counteract this paradox, chicken producers would all have to agree to keep supply low when prices are high, so that all can enjoy the high price of chicken without the risk of ceding market share to their competitors. This was the nature of the alleged conspiracy run by the broiler chicken industry, including Tyson, from 2008-2016. Plaintiffs also allege that Agri Stats, a company that according to Lead Plaintiffs provided a mechanism to facilitate the monitoring by chicken producers of their competitors activities to ensure compliance with the conspiracy.

         Tyson is alleged to have planned the industry conspiracy with its competitors during a series of industry conferences. The industry's higher-ups, including Tyson executives, gathered at the National Chicken Council's annual meeting on October 2, 2008, in the midst of significant turmoil in the economy at large and the chicken industry specifically. Shortly thereafter, the industry's leading chicken producers began announcing cuts to production levels. Pilgrim's Pride, Perdue, Wayne Farms, and Sanderson Farms all made such announcements in late 2008. Tyson followed by announcing a 5% production cut in January of 2009. Later that month, Tyson's senior executives met with leaders from other major chicken producers at the International Poultry Expo in Atlanta, Georgia. Another round of production cuts across the industry followed. Similar meetings continued throughout 2009, and producers sustained the agreed-upon production cuts during that time.

         One of the methods used across the industry for cutting production was reducing the size of broiler breeder flocks. As its name implies, a broiler breeder is a hen that lays the fertilized eggs that become broiler chickens. From 2008 to 2009, the industrywide broiler breeder population dropped from north of 58 million hens to south of 54 million. By reducing the size of their broiler breeder flocks, and by sharing that information through Agri Stats, participants in the alleged conspiracy could be assured of their allies' commitments to long-term production cuts.

         By mid-2010, the industry had enjoyed sustained high prices for a year. This consistent high price, according to Plaintiffs, caused some members of the conspiracy to lose discipline and start increasing production to capitalize on the higher prices.

         Tyson and its co-conspirators sought to rectify the issue promptly. Following the January 2011 International Poultry Expo, Tyson signaled the continuing need to cut supply of chicken in the United States. The complaint alleges that chicken producers then began taking a number of different actions, including reducing production at a deboning operation (Cagle's), delaying the development and construction of a North Carolina Broiler complex (Sanderson Farms), reducing egg sets (House of Raeford), abandoning already planned increased (Mountaire Farms), and pulling eggs from incubators (Tyson). (Doc. 54-2, ¶ 130).

         Two other facets of the alleged conspiracy are worth describing. The first involves the industry's efforts to suppress domestic supply by increasing exports. During 2013 and 2014, Mexico experienced an outbreak in the avian flu. This led to the culling of Mexican breeder hens, and gave the industry “guise” to further reduce the size of its domestic breeder flock by exporting breeders and their eggs to Mexico. Exportation continued through 2015, with Tyson noting in May that “it was sending 3% of its eggs to Mexico to ‘fill incubators.'” Id. at ¶ 173. Later in 2015, the avian flu outbreak caused export limitations on American-hatched chickens. Facing decreased exports and a potential corresponding rise in supply, the industry undertook further measures to keep domestic supply low. Chicken producers allegedly began breaking eggs instead of setting them for growth. And, producers began “dumping” large quantities of chicken thighs in Vietnam, selling then from 29% less than they could obtain in the domestic market.

         Second, participants in the alleged antitrust conspiracy engaged in a scheme to manipulate the Georgia Dock-an important industry price index upon which a high volume of sales contracts (especially with grocers) were based. As the Complaint describes it, four indices tracked broiler chicken prices. Each index relied on producers to report the prices of their sales to customers, allowing the index to compile the industry-average price. The Georgia Dock was the most important of the four, as it influenced chicken prices for approximately 25% of the entire U.S. market. The Georgia Dock was the only index that did not verify the sales prices reported to it by producers. Beginning in mid-2014, the broiler chicken price listed by the Georgia Dock began diverging significantly from the Urner Barry and USDA indices.[8] By January 11, 2016, the divergence between the Georgia Dock and the USDA indices reached a high of $0.46/lb. The Georgia Dock listed a price of $1.12/lb, while the USDA's listed price was only $0.66/lb. Id. at ¶ 182.

         The alleged conspiracy began to crest on September 2, 2016, when a group of customers in the broiler chicken industry filed a lawsuit in Chicago alleging an industrywide antitrust conspiracy to fix prices. See Maplevale Farms, Inc. v. Koch Foods, Inc., et al., No. 16-cv-08367 (N.D. Ill.). Then, on October 7, 2016, a veteran industry analyst at Pivotal Research Group issued a report supporting the theory that Tyson had been engaged in an antitrust conspiracy.

         D. Subsequent Procedural History

         A number of shareholder suits followed. In fact, plaintiffs initiated four lawsuits around the country against the company and certain of its executives. Cases filed in the Central District of California, Southern District of New York, and Southern District of Ohio were subsequently transferred to this Court, where the fourth case had been filed. This Court issued an Opinion and Order on January 25, 2017, consolidating the cases, appointing Hawaii ERS and Blue Sky as Lead Plaintiffs, and approving their selection of lead counsel. The Court also set a deadline to file an Amended Complaint[9] and a Motion to Dismiss, which were both filed in due course. Defendants' Motion to Dismiss was predicated on the argument that the original Complaint failed to meet certain heightened pleading requirements-namely the requirement to plead certain allegations with particularity imposed by the PSLRA. The Court heard oral argument on the Motion to Dismiss on June 30, 2017, and subsequently granted the Motion to Dismiss in its Opinion on July 26, 2017 (Doc. 52). About a month later, Plaintiffs filed the present Motion for Leave to Amend (Doc. 54), and the Court has subsequently benefitted from reading the Defendants' Response in Opposition (Doc. 58) and Plaintiffs' Reply in Support (Doc. 59) as well as the aforementioned Notices of Subsequent Activity and Responses thereto (Docs. 60-63).

         II. LEGAL STANDARDS

         As a preliminary matter, the Court must resolve a disagreement between the parties as to whether Rule 15 or a post-judgment rule, Rule 59, provides the appropriate legal standard by which to assess Plaintiffs' Motion. Although Plaintiffs have styled the instant Motion as one for Leave to Amend, Defendants assert that Rule 59, which pertains to Motions to Alter or Amend a Previous Judgment, provides the appropriate rule. In support of their position, Defendants cite to a number of cases where courts have applied Rule 59 (or Rule 60) to motions to amend following entry of judgment. However, Defendants fail to appreciate that these cases involve appeals where the trial court initially dismissed the action with prejudice, often entering judgment contemporaneously with the 12(b)(6) dismissal opinion. That fact readily distinguishes those cases from the case at bar, where the dismissal was one without prejudice and where the Court's opinion, at various points, specifically contemplated that a revised version of the Complaint could theoretically cure the pleading deficiencies of the original Complaint.[10]

         Thus, unlike the plaintiffs in the cases Defendants cite, there is no need here for Plaintiffs to seek alteration of the judgment, or, therefore, to meet the more exacting standards of Rule 59. Indeed, this approach comports with the way that courts nationwide have recently handled proposals to amend complaints that have previously been dismissed as deficient under the PSLRA. See, e.g., Kader v. Sarepta Therapeutics, Inc., 2017 WL 72396, at *3 (D. Mass. Jan. 6, 2017) (analyzing a proposed amended complaint under Rule 15(a) after having previously dismissed without prejudice the initial complaint); In re Nuverra Envtl. Solutions Securities Litig., 2015 WL 1120000, at *2 (D. Ariz. Mar. 12, 2015) (same); In re Stemline Therapeutics, Inc. Sec. Litig., 2018 WL 1353284, at *6 (S.D.N.Y. Mar. 15, 2018) (dismissing complaint but giving Plaintiffs a period of 30 days in which to move under Rule 15 for leave to amend). Therefore, Rule 15, and not Rule 59, is the appropriate standard by which to assess Plaintiffs' proposed AC.

         Under Federal Rule of Civil Procedure 15(a)(2), the Court “should freely give leave” to amend a pleading “when justice so requires.” However, leave to amend is not an absolute right, and when there is “good reason for denial, ‘such as undue delay, bad faith, or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the non-moving party, or futility of the amendment, '” it is within the Court's discretion to deny leave to amend. Becker v. Univ. of Neb. at Omaha, 191 F.3d 904, 907-08 (8th Cir. 1999) (quoting Brown v. Wallace, 957 F.2d 564, 566 (8th Cir. 1992)). An amendment is considered futile if it would not survive a subsequent motion to dismiss. See Hintz v. JPMorgan Chase Bank, N.A., 686 F.3d 505, 511 (8th Cir. 2012).

         In this case, in determining whether the proposed amended Complaint would be futile because it could not withstand a subsequent Motion to Dismiss, the Court must employ a modified version of the usual 12(b)(6) standard because of the burdens imposed upon Plaintiffs by the PSLRA. Because this is, at bottom, a securities case, the PSLRA imposes certain heightened pleading requirements distinct and apart from those normally governing pleading in the federal courts. Indeed, as the Court explained in much greater detail in its prior Opinion, Congress passed the PSLRA after finding that litigation brought pursuant to Section 10(b)[11] of the Exchange Act was wrought with abuses and frivolities, such as “nuisance filings, targeting of deep-pocket defendants, vexatious discovery requests, and manipulation by class action lawyers of [their] clients.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, 547 U.S. 71, 81 (2006) (quotation omitted). To counteract these perceived abuses of the litigation process, Congress imposed the following requirements:

         First, “the complaint 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); see also In re Cerner Sec. Litig., 425 F.3d 1079, 1083 (8th Cir. 2005) (“[T]he plaintiff must plead falsity by specifying each allegedly misleading statement and the reasons why each statement is misleading.”). To satisfy this heightened pleading standard, “a securities plaintiff often must plead the ‘who, what, when, where and how' of the misleading statements or omissions.” Cornelia I. Crowell GST Trust v. Possis Med., Inc., 519 F.3d 778, 782 (8th Cir. 2008) (quoting In re K-tel Int'l, Inc. Sec. Litig., 300 F.3d 881, 890 (8th Cir. 2002)).

         Second, the complaint must “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2)(A) (emphasis added); see also McCrary v. Stifel, Nicolaus & Co., 687 F.3d 1052, 1056 (8th Cir. 2010) (“[T]he allegations should give rise to more than just a plausible or reasonable inference of scienter.”). “[I]n determining whether the pleaded facts give rise to a ‘strong' inference of scienter, the court must take into account plausible opposing inferences.” Tellabs, Inc. v. Makor Issues & Rights, Inc., 551 U.S. 308, 323 (2007). The Eighth Circuit has stated that the “strong inference” requirement can be satisfied in three ways: “(1) from facts demonstrating a mental state embracing an intent to deceive, manipulate, or defraud; (2) from conduct which rises to the level of severe recklessness; or (3) from allegations of motive and opportunity.” Cornelia I. Crowell, 519 F.3d at 782.

         In resolving two disagreements between the parties on the Motion to Dismiss, the Court set forth its understanding of how these heightened pleading requirements interact with the usual legal standard under Rule 12(b)(6). As to falsity, the relevant case law makes clear that the Plaintiffs' burden under the particularity requirement is to set forth the who, what, when, where, and how of the actionable statement itself. And, to the extent that the Plaintiffs' allegations of underlying wrongdoing regarding the statement are made on information and belief, those allegations must be supported by particularized facts. 15 U.S.C. § 78u-4(b)(1). Plaintiffs' theory of the case is, and indeed has always been, that Tyson's statements were false and materially misleading (and therefore actionable) because Tyson was participating in these two alleged conspiracies and because it did not disclose this information to investors. Therefore, because these statements are alleged to be false and materially misleading solely because of these conspiracies, which Plaintiffs allege Tyson participated in on information and belief, Plaintiffs must support their allegations as to these conspiracies with particularized facts.[12]

         As to scienter, while the Court must still draw reasonable inferences in the Plaintiffs' favor (just like with any other 12(b)(6) motion), it must, uniquely for these types of actions, also weigh those reasonable inferences against “plausible opposing inferences.” Tellabs, 551 U.S. at 323. In fact, the Supreme Court has mandated this very type of weighing, explaining in Tellabs that because “the strength of an inference cannot be decided in a vacuum” that “a court must consider plausible, nonculpable explanations for the defendant's conduct, as well as inferences favoring the plaintiff” in “[determining] whether the plaintiff has alleged facts that give rise to the requisite ‘strong inference' of scienter.” Tellabs, 551 U.S. at 323-24.

         III. DISCUSSION

         The Court noted in its prior order that the AC, just as the original, alleges two separate antitrust conspiracies-a larger conspiracy to suppress chicken supply and a smaller one to manipulate the Georgia Dock. As the Court determined above, Rule 15 provides the appropriate standard by which to assess Plaintiffs' Motion. Rule 15(a)(2) provides that a “court should freely give leave when justice so requires.” Nevertheless, before proceeding to the analysis of the AC's pleading of these conspiracies under Rule 15(a), the Court would note that there appears to be an active circuit split among the Courts of Appeals as to whether the heightened pleading requirements of the PSLRA alter the otherwise applicable Rule 15(a) “when justice so requires” standard. Compare, ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46, 56 (1st Cir. 2008) (“We hold that the PSLRA does not itself modify the liberal amendment policy of Rule 15(a).”) with Miller v. Champion Enters., Inc., 346 F.3d 660, 692 (6th Cir. 2003) (“[W]e think it is correct to interpret the PSLRA as restricting the ability of plaintiffs to amend their complaint, and thus as limiting the scope of Rule 15(a) of the Federal Rules of Civil Procedure.”). Nevertheless, the Court need not wade into this debate at the present time to resolve the conflict. That is because, after careful review of the original Complaint, the proposed AC, and the red-lined version showing the changes between the two, the Court ...


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