Confidential Sources Still Alive & Kicking

What's that? You thought Tellabs banned confidential witnesses? Well, let's not get carried away here, as there's certainly at least two ways to read that opinion. Of course, after the 7th Circuit decided Higginbotham v. Baxter, it was beginning to look like you might actually be right. But Senior Judge Samuel Conti (Nixon '70) (yes I said 1970) chose to reject the Seventh Circuit and go with the Fifth Circuit's view on the subject, which says that Tellabs does not "presumptively preclude confidential sources."

But wait a minute. The Fifth Circuit (in Central Laborers' Pension Fund v. Integrated Electrical Services Inc., 497 F.3d 546 (5th Cir. 2007)), never mentioned Tellabs in its CW analysis, so how can that be you ask? It's because "although the Fifth Circuit did not discuss Tellabs in its analysis of confidential sources, the court was clearly aware of the Tellabs decision as evidenced by numerous citations to Tellabs in its lengthy discussion of the PSLRA pleading standards. Thus, Central Laborers' Pension Fund suggests that, contrary to the Seventh Circuit's conclusion, Tellabs does not presumptively prohibit confidential sources."

So overall result: Defendants' Motions to dismiss denied in full.

You can read the whole opinion on Acquirelaw™ at ND CA Acquirelaw 242205801 In re Secure Computing II Sec. Litig. (March 4th, 2008) (just type the number in the citation in any Acquirelaw search box to quickly retrieve the Order).

Nugget: "The Ninth Circuit has not yet spoken to the issue of whether confidential sources, if described with the requisite particularity, may give rise to the cogent and compelling inference of scienter required by Tellabs. Without guidance stating otherwise, this Court is unwilling to abandon the binding Ninth Circuit precedent of Daou for the reasoning articulated by the Seventh Circuit in Higginbotham."

No Mondays Puh-leeze

Attorneys who voluntarily set Monday deadlines are just simply no fun. I mean, you get to pick the days, so why kill a future weekend? You know all the work gets done at the last minute, so nix those Mondays the next time your curmudgeon opposing counsel tries to get you to agree to one.

Well, we've located one Judge who agrees. In the Sourcefire securities class action, Judge J. Frederick Motz (Reagan '85) asked the attorneys to "confer with one another to agree upon a briefing schedule in the event that defendants decide to file a motion to dismiss. In your discussions, please agree upon deadlines that will have the effect of moving this litigation along expeditiously but avoid (1) Monday deadlines, and (2) deadlines that would have an adverse effect upon the holiday schedule of counsel on either side."

What's that? A Judge who actually is professional enough to care about attorney's personal and family lives? This Judge needs to talk to some of his brethren, as he (unfortunately for our families) sure seems in the minority.

You can read the whole letter on Acquirelaw™ at DD MD Acquirelaw 24686286 In re Sourcefire Sec. Litig. (D. Md. Sept. 4th, 2007) (just type the number in the citation in any Acquirelaw search box to quickly retrieve the Order).

Nugget: "Despite the informal nature of this ruling, it shall constitute an Order of Court, and the Clerk is directed to docket it accordingly.”