25-1292 In re Mobileye Global Sec.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of The United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of December, two thousand twenty-five.

PRESENT: BETH ROBINSON, SARAH A. L. MERRIAM, Circuit Judges, SIDNEY H. STEIN,* District Judge. _________________________________________

IN RE: MOBILEYE GLOBAL SECURITIES LITIGATION ______________________________________

RETIREMENT PLAN FOR CHICAGO TRANSIT AUTHORITY EMPLOYEES,

Lead-Plaintiff-Appellant,

*Judge Sidney H. Stein, of the United States District Court for the Southern District of New York, sitting by designation. OKLAHOMA FIREFIGHTERS PENSION AND RETIREMENT SYSTEM,

Plaintiff-Appellant,

JOHN MCAULIFFE, Individually and On Behalf of All Others Similarly Situated,

Plaintiff,

TUNG LEE, Individually and On Behalf of All Others Similarly Situated,

Consolidated-Plaintiff,

v. No. 25-1292

MOBILEYE GLOBAL INC., AMNON SHASHUA, MORAN SHEMESH ROJANSKY, ANAT HELLER, DANIEL GALVES,

Defendants-Appellees. †

_________________________________________

FOR PLAINTIFFS-APPELLANTS: JOHN J. RIZIO-HAMILTON (Avi Josefson, Mathews R. de Carvalho, on the brief), Bernstein Litowitz Berger & Grossmann LLP, New York, NY.

FOR DEFENDANTS-APPELLEES: DANA M. SESHENS (Daniel J. Schwartz, on the brief), Davis Polk & Wardwell LLP, New York, NY.

† The Clerk’s office is respectfully directed to amend the caption as reflected above.

2 Appeal from a judgment of the United States District Court for the Southern

District of New York (Cote, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of dismissal entered on April

16, 2025, is AFFIRMED.

Plaintiffs appeal from a judgment dismissing their putative class action

asserting claims under §§ 10(b) and 20(a) of the Securities Exchange Act of 1934,

15 U.S.C. §§ 78j(b), 78t(a); Rule 10b-5,

.10b-5; and §§ 11 and 15 of the

Securities Act of 1933, 15 U.S.C. §§ 77k, 77(o). They allege that, during the class

period between January 26, 2023, and August 1, 2024, Mobileye and several

executives failed to disclose an alleged “channel-stuffing scheme” through which

Mobileye had used its market power to compel its customers to execute annual

minimum commitment contracts to purchase EyeQ chips—its flagship product—

at levels exceeding actual demand, so that Mobileye’s reported revenues were

misleading because they were attained by “cannibalizing future growth.” App’x

72. Their Exchange Act claims are predicated primarily on a series of statements

that Plaintiffs allege were false or misleading in light of these practices, as well as

on an alleged scheme to defraud. Their Securities Act claims are based on misstatements and a failure to disclose these practices in connection with a June

2023 secondary public offering.

The district court dismissed both sets of claims, and Plaintiffs appealed. We

assume the parties’ familiarity with the underlying facts, procedural history, and

arguments on appeal, to which we refer only as necessary to explain our decision.

1. Exchange Act Claims

We review the district court’s dismissal of the Exchange Act claims without

deference to the district court’s reasoning. See ECA and Local 134 IBEW Joint

Pension Trust of Chicago v. JP Morgan Chase Co.,

(2d Cir. 2009). We

also accept all factual allegations as true and draw all reasonable inferences in

favor of the plaintiff.

A complaint alleging fraud “must state with particularity

the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). In addition, under the

Private Securities Litigation Reform Act of 1995, or “PSLRA,” it must “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). And it must “state

4 with particularity facts giving rise to a strong inference that the defendant acted

with the required state of mind.” Id. § (b)(2)(A).

To state a private securities fraud claim under § 10(b) and the corresponding

Securities and Exchange Commission (SEC) Rule 10b–5,

.10b–5, a

plaintiff must plausibly allege, among other things, “a material misrepresentation

or omission by the defendant.” Stoneridge Investment Partners, LLC v. Scientific-

Atlanta, Inc.,

(2008). 1 Generic statements of corporate optimism

or puffery, forward-looking statements, and opinions are generally non-

actionable. See, e.g., In re Vivendi,

, 243–246 (2d Cir. 2016); Tongue v.

Sanofi,

(2d Cir. 2016). “To determine whether a statement is

misleading, our inquiry is objective, from the perspective of a reasonable

investor,” and to be actionable, “there must be a substantial likelihood that the

statement or omission would have been viewed by the reasonable investor as

having significantly altered the total mix of information made available.” Gimpel

v. The Hain Celestial Group, Inc.,

, 139 (2d Cir. 2025).

1In quotations from caselaw and the parties’ briefing, this summary order omits all internal quotation marks, footnotes, and citations, and accepts all alterations, unless otherwise noted.

5 The district court dismissed Plaintiffs’ claims on the basis that they failed to

allege any actionable material misrepresentation. We agree. First, they have not

identified any material misrepresentations regarding Mobileye’s use of minimum

commitment contracts in 2022 and 2023. Plaintiffs allege that statements in

Mobileye’s 2022 Form 10-K, issued in March 2023, were misleading because they

suggested that Mobileye’s shipments to its customers would “depend upon

market conditions.” Appellants’ Br. at 14. But the Form 10-K statement as a whole

belies that assertion. The Form noted that Mobileye generally does not have

minimum commitment contracts with customers, but said that some of their

customers, including their “top three Tier 1” customers, “committed to purchasing

minimum quantities of certain solutions in 2023.” App’x 200. The Form further

explained that, in prior periods, certain Tier 1 customers increased their orders,

and that Mobileye expected “these Tier 1 customers will utilize accrued inventory

on hand before placing new orders to meet the demand of [their downstream

customers] in current or future periods.”

The same analysis applies to similar

statements in Mobileye’s 2023 Form 10-K.

In light of these disclosures, we see nothing misleading in Mobileye’s

statement that, although it secured minimum purchase commitments from

6 customers, Mobileye was not itself obligated to supply fixed volumes and the

volumes it ultimately supplied would “depend upon market conditions.”

; see also

. This statement referred to market conditions affecting

Mobileye’s ability to supply the agreed-upon quantities. Nor was the disclosure

misleading because Mobileye did not identify which of its two primary products

were subject to these minimum commitment contracts (EyeQ, Supervision, or

both) or disclose the specific volumes subject to minimum commitment

agreements. The absence of such granular detail did not render Mobileye’s

statements misleading. Cf. Setzer v. Omega Healthcare Investors, Inc.,

,

214 n.15 (2d Cir. 2020) (Once a company speaks on a topic, it must “tell the whole

truth,” meaning that it may not “omit material facts” necessary to make its

statement not misleading, not that it must “disclose all the facts that pertain to a

subject.”).

Second, Plaintiffs have not plausibly alleged that various statements by

Mobileye executives in April and July 2023 regarding stabilization of EyeQ orders

from quarter to quarter were materially false. In an April earnings call, a Mobileye

executive explained that Mobileye was in discussions with Tier 1 customers who

were subject to yearly commitments in an effort to balance those customers’ orders

7 from quarter to quarter, “rather than lumping it into 1 or 2 quarters towards the

end of the year.” App’x 244. Then, in a July earnings call, the same executive

reported that requests to move volume around had largely ceased and said

inventory that Mobileye “customers have piled up in terms of EyeQs . . . has

stabilized.” App’x 493. He explained: “We don’t see any requests to push volumes

from quarter to quarter.”

There is no allegation that these reports of fluctuation

and then stabilization of quarterly orders by customers subject to minimum

purchase contracts were untrue. Nor have Plaintiffs identified any omitted fact

whose absence renders these statements, read together, misleading. See Setzer,

n.15. Rather, Plaintiffs contend only that the statements failed to

disclose that it was “impossible” for customers to adjust the quantities, App’x 23—

but that fact was apparent from the disclosure of the minimum commitment

contracts.

Third, Plaintiffs have not alleged that Mobileye’s statements about various

performance measures, such as its growth relative to prior guidance, were actually

false. Rather, they allege that the statements were misleading because they

attributed the growth “to legitimate market demand.” Appellants’ Br. at 33. But

the identified statements do not do so; and, again, Mobileye consistently disclosed

8 that (1) its main Tier 1 customers were subject to minimum commitment contracts

and (2) at some point, Tier 1 customers were expected to use accrued inventory

before placing new orders from Mobileye. Against this backdrop, its accurate

reporting of its performance metrics is not misleading. For similar reasons,

Mobileye’s January 2024 estimate that accumulated excess inventory levels

contributed “1% or 2%” to its prior market share does not render past market share

data false or misleading.

Fourth, none of Plaintiffs’ allegations render misleading Mobileye’s

statements attributing excess customer inventory in part to customers’ decisions

to increase orders in 2021 and 2022 to avoid parts shortages caused by COVID-

related supply chain interruptions. There is no allegation that customers did not,

in fact, increase their orders during those years to avoid potential supply chain

disruptions. Nor is there an allegation that, when these customers entered into

minimum commitment contracts, they agreed to purchase a greater volume of

EyeQ chips than they actually wanted or that Mobileye knew that the contracts

would result in shipping greater quantities than needed; rather, the supported

allegations suggest that once they had entered into the contracts, some customers

sought to reduce their commitments. Plaintiffs’ assertion that the customer excess

9 inventories were caused primarily by Mobileye’s alleged channel-stuffing

practices, rather than by customers’ prior purchasing decisions in combination

with minimum purchase obligations and declining downstream market demand,

is not supported by any non-conclusory allegation.

Nor were the statements materially misleading. Mobileye did not identify

customers’ decisions in 2021 and 2022 to build inventory as the sole cause of the

excess; it also pointed to lower-than-expected downstream production during

2023. And, as noted above, Mobileye had long disclosed that, in 2022 and 2023,

some of its Tier 1 customers were subject to minimum commitment contracts.

Fifth, a number of the challenged statements are non-actionable because

they are forward-looking. See In re Vivendi, 838 F.3d at 245–246. This includes

statements in Mobileye’s 2023 Form 10-K expressing its expectation that customers

would use the vast majority of their excess inventory in the first quarter of 2024,

and that customer orders would normalize over the remainder of the year, while

cautioning that “there is no guarantee that they will do so.” App’x 435. It also

includes statements in a January 2024 earnings call about Mobileye’s projected

market share through the decade and the growth possibility in Western markets.

10 Finally, understood in context, the challenged statement by a Mobileye

executive at a February 2023 conference is an inactionable opinion and forward-

looking statement. A questioner asked about Mobileye’s ability to sustain its

market share over the coming years in the face of increasing competition. As a

closing point, the Mobileye executive noted that downstream manufacturers have

to “super-cost optimize.” App’x 608. He said:

And our Tier 1s have so much capacity to buy cameras, put them into housings, take our chip, put them on to the PCB board and deliver it to the [downstream manufacturers] that – we think that our ecosystem is also the cost leader pretty significantly. So we – it’s a very kind of long visibility business, so we feel comfortable with our share.

This statement did not relate to customers’ then-current inventories or their

immediate capacity to absorb additional EyeQ chips; rather, it addressed their

longer-term ability to use Mobileye’s chips to deliver products downstream in a

cost-effective way.

We also reject Plaintiffs’ alternative contention that, wholly apart from any

specific misrepresentations, Mobileye and the named executives are liable under

Rules 10b-5(a) and (c) for “scheme liability” arising from their alleged channel-

stuffing practices. To plead scheme liability, Plaintiffs must allege “something

11 beyond misstatements and omissions” that renders the challenged conduct a

scheme to defraud. Security and Exchange Commission v. Rio Tinto,

, 49

(2d Cir. 2022); see also

. They have not done so. Minimum commitment

contracts are not unlawful. And Mobileye disclosed their presence here. Plaintiffs

have not adequately pled scheme liability under either subsection of Rule 10b-5.

For these reasons, the district court properly dismissed Plaintiffs’ Exchange

Act claims, along with the accompanying control-person claims. See ATSI

Communications, Inc. v. Shaar Fund, Ltd.,

(2d Cir. 2007) (control-

person liability under § 20(a) requires an underlying primary violation).

2. Securities Act Claims

We review the district court’s dismissal of the Securities Act claims without

deference to the district court’s reasoning. See ECA,

. When

evaluating claims under § 11 of the Securities Act based on alleged misstatements

or omissions in a registration statement, the ordinary Rule 8(a) notice-pleading

standard applies where the claims sound in negligence, and the heightened Rule

9(b) pleading standard applies where the claims sound in fraud. See Hutchison v.

Deutsche Bank Securities Inc.,

(2d Cir. 2011). Under either

standard, Plaintiffs fail to state a claim.

12 To plead a § 11 violation, Plaintiffs who purchased a registered security

from the issuer or in the aftermarket following a public offering must plausibly

allege, among other things, that “the registration statement contained an untrue

statement of a material fact or omitted to state a material fact required to be stated

therein or necessary to make the statements therein not misleading.” In re Morgan

Stanley Information Fund Securities Litigation,

, 358–59 (2d Cir. 2010)

(quoting 15 U.S.C. § 77k(a)).

Plaintiffs allege both material misstatements and omissions, including

omissions of information they contend was required under Items 303 and 105 of

SEC Regulation S-K. Item 303 requires disclosure of “known trends or

uncertainties” reasonably expected to have a material “unfavorable impact” on

revenues. Panther Partner Inc. v. Ikanos Communications, Inc.,

(2d

Cir. 2012);

. Item 105 requires disclosure of factors that make an

investment in the offering “speculative or risky.”

.

Like the district court, we conclude that Plaintiffs failed to allege any

actionable material misrepresentation or omission for purposes of their Securities

Act claim. First, Plaintiffs identify no materially false or misleading statements in

the offering documents or the SEC filings incorporated by reference. To the extent

13 that they point to statements discussed above, including statements in the 2022

Form 10-K that was part of the SEC filing for the June 2023 public offering,

Plaintiffs’ claims fail for the reasons set forth above.

Second, Plaintiffs fail to allege an actionable omission under Item 303. See

. Plaintiffs contend that Mobileye was required to disclose the

“known trend[] or uncertaint[y]” that excess EyeQ inventories held by Tier 1

customers posed a risk to future revenue. But Mobileye did disclose this supposed

trend. As noted above, the offering documents stated that certain Tier 1 customers

were party to minimum commitment contracts, had increased orders in prior

periods, had accumulated inventory, and were expected to use that inventory

before placing new orders. Because the registration statement disclosed the

alleged trend, Plaintiffs cannot state an Item 303 claim.

Third, Plaintiffs identify no actionable omission under Item 105, which

requires disclosure of the factors that make an investment in the offering

“speculative or risky.” See

. The offering materials warned that

Mobileye depended on a small number of Tier 1 customers, warned that order

volumes could fluctuate, and, as noted above, disclosed the minimum

commitment contracts and accrued inventories that were expected to impact new

14 orders. Plaintiffs’ contention that the offering documents should have described

the precise volume of inventory build-up reflects a preference for more detailed

disclosure, not an omission of a “significant” risk under Item 105.

Because Plaintiffs fail to state a primary violation under § 11, their control-

person claim under § 15 of the Securities Act necessarily fails. See ECA,

.

* * *

For these reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

15