NEIL EINHORN, Individually and on behalf of all others similarly situated, Plaintiff, POLICE AND FIRE RETIREMENT SYSTEM OF THE CITY OF DETROIT, Individually and on behalf of all others similarly situated, Plaintiff-Appellant, versus AXOGEN, INC., KAREN ZADEREJ, PETER J. MARIANI, GREGORY G. FREITAG, JAMIE M. GROOMS, ROBERT J. RUDELIUS, MARK GOLD, GUIDO NEELS, AMY WENDELL, LEERINK PARTNERS LLC, JMP SECURITIES LLC, JEFFERIES LLC, WILLIAM BLAIR & COMPANY, L.L.C., Defendants-Appellees, JOHN HARPER, et al., Defendants., 42 F.4th 1218

Summary

HOLDINGS: [1]-A medical technology company's assertion that a certain number of peripheral nerve injuries and procedures occurred in the United States "each year" was forward looking under the 1933 Securities Act, 15 U.S.C.S. § 77z-2, because it was, at least in part, a prediction about the number of injuries requiring nerve repair procedures that were likely to occur "each year" in the future; [2]-To the extent the phrase "each year" could have two aspects, one that was forward looking and one that was backward looking, the phrase was not readily severable into distinct present-tense and forward-looking components; [3]-A city retirement system did not state a claim upon which relief could be granted in its action alleging violations of the Act because it failed to plead actual knowledge that the statements were false or misleading.