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A recent decision of the U.S. Court of Appeals for the Fourth Circuit analyzed the “scienter” requirement that a shareholder must meet to prevail under the federal securities laws in showing that the company or its executives fraudulently induced the shareholder to buy or retain shares. KBC Asset Management v. DXC Technology Co., No. 20-1718 (4th Cir., Dec. 1, 2021). The company or executives act with “scienter” only when they have a certain fraudulent state of mind, intending to mislead or being extremely careless about misleading shareholders. As the Fourth Circuit decision shows, shareholders must meet a high bar in demonstrating scienter to avoid early dismissal of the case. The decision also shows the fact-intensive approach courts use to distinguish fraudulent statements from those that, even if mistaken, were made innocently.
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By Jonathan S. Feld and Lisa M. Burnett
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