UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-10527 Summary Calendar

JOHN MORTENSEN, on behalf of himself and all others similarly situated; PHILIP KATZ, on behalf of himself and all others similarly situated, Plaintiffs-Appellants,

versus

AMERICREDIT CORP.; CLIFTON H. MORRIS, JR.; DANIEL E. BERCE; MICHAEL R. BARRINGTON, Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Texas 3:99-CV-789-D

November 22, 2000 Before POLITZ, HIGGINBOTHAM, and DeMOSS, Circuit Judges,

PER CURIAM:*

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. John Mortensen and Philip Katz, on behalf of themselves and all those similarly

situated, appeal the district court’s dismissal of their amended complaint for failure to

plead scienter. A close review of the record persuades that we should affirm.

BACKGROUND

Defendant Americredit Corp. primarily purchases, securitizes and services

automobile receivables. Defendants Morris, Berce and Barrington are officers of

Americredit, sued in their individual capacities. Americredit buys sub-prime loans from

automobile dealerships, and then sells them to financing securitization trusts. The

details of this complex financing scheme are set forth in the trial court’s opinion and

are adopted by reference.

Plaintiffs, investors who purchased Americredit stock during the relevant time

period, assert that Americredit, with the knowledge and approval of the individual

Defendants, intentionally misled investors by using unapproved accounting methods

and corporate policies regarding loan deferrals that served to overstate income and

understate loan delinquencies, thereby allowing Americredit access to capital at

borrowing rates lower than otherwise available. When the Securities and Exchange

Commission subsequently issued a directive that precluded use of the accounting

method utilized by Americredit, the company issued a restatement of earnings for the

relevant period which reflected lower earnings. Americredit also was required to

2 increase its cash reserve. This resulted in a reduction in earnings per share. Plaintiffs

claim that the lower earnings and increased reserve requirement were the result of

intentional deception aimed at reducing the cost of borrowing. The trial court rejected

the plaintiffs’ pleadings as being fatally defective. This timely appeal followed.

ANALYSIS

A trial court’s dismissal of a securities fraud complaint for failure to adequately

plead the elements with requisite particularity is reviewed de novo.1 The trial court

herein determined that Plaintiffs initially failed to plead scienter adequately, a crucial

element in a securities fraud claim,2 and dismissed the original complaint with leave to

amend. Plaintiffs subsequently re-filed their complaint, which was again dismissed by

the trial court for the same reason. Defendants’ appeal asserts, among other things, that

the district court’s requirements for scienter pleading are excessive and erroneous, and

that the court improperly acted as a trier of fact.

Our review of the district court opinion, the relevant authorities, and the filings

of counsel compels the conclusion that the record and controlling law conclusively

support the determination of the district court. Accordingly, the judgment of the district

court is, in all aspects, AFFIRMED.

1 Tuchman v. DSC Communications Corp.,

(5th Cir. 1994). 2 See

3 4