Alaska Elec. Pension Fund v. Flotek Indus., Inc.
Alaska Elec. Pension Fund v. Flotek Indus., Inc.
Opinion
*979 This appeal arises out of a putative class action filed on behalf of purchasers of Flotek Industries, Inc. common stock. Plaintiffs allege that defendants, Flotek and three of its officers, exaggerated the usefulness of its products. They allege misrepresentations relating to a proprietary software Flotek developed to help market these products. The district court dismissed the complaint, holding that plaintiffs had failed to plead facts giving rise to a strong inference of fraudulent scienter. We AFFIRM.
I
Plaintiffs filed this putative securities class action on behalf of investors who purchased Flotek common stock between October 23, 2014, and November 9, 2015. Defendants are Flotek Industries, Inc. and three of its officers: Chief Executive Officer (CEO) and President John W. Chisholm and Chief Financial Officers H. Richard Walton and Robert M. Schmitz. Flotek sells oilfield products called "Complex nano-Fluid technologies" (CnF), which are supposed to improve the productivity of oil and gas wells. According to the complaint, CnF is Flotek's "hallmark" product, and "[b]y the beginning of the Class Period, the Energy Chemistry Technologies segment [of Flotek] represented over 50% of the Company's revenue due to sales of its CnF products." This lawsuit concerns representations made about a software application Flotek developed to help market CnF to exploration and production companies. The software, called "FracMax," analyzes and presents data concerning hydraulically fractured wells to allow comparison of the productivity of oil and gas wells that use CnF with those that do not.
Flotek introduced FracMax to investors at a June 2014 investor conference. Over the next sixteen months, "[D]efendants attended at least 21 conferences, including Flotek's earning conference calls, analyst-hosted conferences and [c]ompany-hosted investor conferences, where they focused on and praised FracMax and its ability to conclusively validate the efficacy and economic benefits of Flotek's CnF products." Defendants promoted FracMax as an integral component of Flotek's sales strategy and as "key to 'materially broaden[ing] the reach of Flotek's marketing efforts' for its CnF products." "[D]efendants reported that the FracMax database included production data from 80,000 wells across key U.S. basins and that based on this data, Flotek's sales force could demonstrate to potential customers that the use of Flotek CnF chemistries added at least an estimated $ 8 billion in aggregate value for operators when compared to those operators that had not adopted Flotek's CnF products." In a 2015 press release, Chisholm, Flotek's President and CEO, stated, "Our FracMax software technology provides conclusive evidence that our [CnF] suite of completion chemistries provides compelling economic benefits to production companies." Flotek also represented in a quarterly earnings press release that sales of CnFs increased substantially because of FracMax.
Although their complaint largely refers to Defendants generically, Plaintiffs' references to specific representations, to the extent they specify, primarily relate to statements made by Chisholm, who at various times emphasized FracMax's empirical validity. During several conference *980 calls with investors, Chisholm explained that FracMax used publicly available data that companies self-reported to state agencies to compare production from wells that used CnF and wells that did not, suggesting this made FracMax's output more reliable. In September 2015, Chisholm gave a presentation at an investor conference in which he explained that FracMax used data reported to the Texas Railroad Commission, a state agency, and he suggested that the data was "back check[ed] and validate[d]." In his PowerPoint presentation, Chisholm presented an "About FracMax" slide stating that the data was "sourced from operator-provided completion data." This slide further stated that the data was "un-adjusted, providing for comparison and analysis of operators' self-reported data sets." Chisholm also presented images of the FracMax interface in order to compare the productivity of four Texas wells, one that used CnF and three that did not, again emphasizing the difference in production levels.
On November 9, 2015, online financial publication Bronte Capital released a blog post (the Bronte Report) contending that the data in Chisholm's presentation was wrong and suggesting that the data had been intentionally altered to make CnF look significantly more effective. Specifically, the Bronte Report alleged that, as compared with the numbers reported by the Texas Railroad Commission, "Flotek had reduced the production data for the [three] non-CnF wells by 40% to 50% ..., while leaving the production data for the CnF well unchanged." After release of the Bronte Report, Flotek shares declined.
The next day, Flotek issued a press release conceding that Bronte Capital's analysis was correct, 1 and ascribing the error to data provided by a third party, Drillinginfo, that "caused FracMax to identify the three non-CnF wells as contained in units with multiple wells (as opposed to single well units), which required FracMax to incorrectly apply an allocation algorithm to the production for the non-CnF wells." According to Flotek, because Texas reports oil and gas production by lease, rather than by well, FracMax used an algorithm to apportion production within multiple-well lease units, leading to unwarranted adjustments of the non-CnF wells discussed at the September conference. Flotek also held a conference call, during which "Chisholm admitted that the Company's internal controls 'did not catch' " the errors, and "that the Company had no internal controls in place to check the accuracy of the third-party data from Drillinginfo." He explained that they did not cross-reference the third-party data against the underlying state-agency data and that the company "had, several months ago, evolved to a different allocation program" that would provide greater accuracy.
According to Plaintiffs, a report issued by Iberia Capital Partners that same day "stated that the four wells presented at the September 11, 2015 investor conference were designated by Drillinginfo as being single well leases, not multiple leases, therefore the Texas Railroad Commission data for those wells did not require adjustment," and Flotek shares fell further as a result. Contrary to its earlier statements following the Bronte Report, Flotek then reported that an internal investigation concluded that the error originated in the software, not the data set, as Chisholm had stated earlier, and "most likely resulted from the accidental inclusion of test code by the third-party software developer.... who was hired to write code for FracMax."
*981
Plaintiffs filed this lawsuit, alleging violations of Section 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b) ; Securities and Exchange Commission Rule 10b-5,
II
This court reviews the sufficiency of a complaint de novo.
Ind. Elec. Workers' Pension Tr. Fund IBEW v. Shaw Grp., Inc.
,
To state a viable securities-fraud claim under Section 10(b) and Rule 10b-5, Plaintiffs must allege that (1) Defendants made a misrepresentation or omission relating to the purchase or sale of a security, (2) such representation or omission related to a material fact, (3) the representation or omission was made with scienter, (4) Plaintiffs acted in reliance on Defendants' representation or omission, and (5) the representation or omission proximately caused Plaintiffs' losses.
Neiman v. Bulmahn
,
III
A
The Private Securities Litigation Reform Act (PSLRA) specifically requires that a complaint in a securities case support allegations of scienter with "facts giving rise to a strong inference that the defendant acted with the required state of mind." 15 U.S.C. § 78u-4(b)(2)(A). " 'Scienter' is 'a mental state embracing intent to deceive, manipulate, or defraud.' "
Goldstein v. MCI WorldCom
,
*982
(quoting
Nathenson
,
To evaluate scienter in a securities-fraud case, a court must (1) take the well-pleaded allegations as true; (2) evaluate the facts collectively, including facts contained in "documents incorporated in the complaint by reference and matters subject to judicial notice," "to determine whether a strong inference of scienter has been pled"; and (3) "take into account plausible inferences opposing as well as supporting a strong inference of scienter."
Scienter must be alleged with respect to "the individual corporate official or officials who make or issue the statement (or order or approve it or its making or issuance, or who furnish information or language for inclusion therein, or the like) rather than generally to the collective knowledge of all the corporation's officers and employees acquired in the course of their employment."
Southland,
B
Plaintiffs identify several alleged misrepresentations they argue give rise to a sufficient inference of scienter, both because Defendants were severely reckless in making statements counter to information that should have been obvious to them, and because, after learning of that contrary information, they continued to make those statements. The alleged misrepresentations are: (1) Defendants' repeated use of the term "conclusive" in describing FracMax's effect, which Plaintiffs characterize as tantamount to assuring that FracMax's data was irrefutable; (2) Defendants' reference to FracMax data as "un-adjusted" when, in fact, FracMax used an algorithm to adjust certain data; (3) Defendant Chisholm's presentation at the September 11, 2015, conference of direct comparisons between several wells that used CnF versus several that did not, which Defendants concede relied on incorrect data for the non-CnF wells; and (4) Chisholm's representation at this same conference that this data was "back check[ed] and validate[d]," when Defendants later admitted that "Flotek had no internal controls in place to ensure the integrity of the FracMax database." The district court determined that these representations failed to generate a strong inference of scienter. We consider each representation in turn, and ultimately agree with the district court's conclusion that each fails to raise a strong inference of scienter. 2
*983 1. Description of FracMax as "Conclusive"
Plaintiffs suggest that Defendants' use of the term "conclusive" to describe FracMax was obviously misleading because Flotek employed "no internal controls" over the information used for FracMax provided by third-party Drillinginfo, yet the term "conclusive" suggests the data is infallible. However, in context, Chisholm's use of the term "conclusive" may have had innocent intentions and may not have been inconsistent with a lack of internal controls.
See
Shaw
,
2. Characterization of FracMax-Provided Information as "Un-Adjusted"
Plaintiffs also contend that a slide show Chisholm presented at least once, which stated that FracMax "data is un-adjusted," was misleading and Chisholm should have known it was incorrect, because FracMax used an allocation algorithm that necessarily made adjustments to Texas production data. In response to the fallout from the Bronte Report, Flotek disclosed that it used an "allocation algorithm" for Texas data, because data provided by the Texas Railroad Commission was not broken down by well, but instead by lease, and a lease might contain multiple wells. Therefore, according to Plaintiffs, any statement positing that the data was not adjusted was patently false, supporting an inference of scienter. However, there is no specific allegation that Chisholm knew at the time he made the statement at issue that FracMax utilized an algorithm. Moreover, as the district court correctly pointed out, the use of an algorithm does not make the claim that the data was "un-adjusted" misleading.
See
Rosenzweig
,
*984 3. Presentation of Incorrect Well Data
The starkest example of Flotek's provision of false information is that Chisholm presented demonstrably false information at the September 2015 conference in the form of incorrect well data. However, even these statements fail to support a strong inference of scienter, because Plaintiffs fail to plead that any Defendant knew of these errors at the time, and the misstatements were not sufficiently obvious that Defendants were severely reckless in presenting the information. As the district court pointed out, although Plaintiffs pleaded that the three non-CnF wells used in the September 2015 presentation were downwardly adjusted, they "failed to plead facts establishing this discrepancy is true throughout FracMax's 80,000 well database," and "a trend as to six wells out of 80,000 is not sufficient on its own to establish a strong inference of scienter." Plaintiffs contend that the fact that the discrepancies inured to Flotek's benefit weighs in favor of a finding of scienter, as it suggests that Chisholm made intentional misrepresentations rather than mistakes. But the mere fact that an error favors the defendant is insufficient to support a strong inference of scienter.
Cf.
Shaw
,
It does appear that it would have been very easy to check if this data was correct-Flotek verified the alleged errors and responded to the Bronte Report within a day. However, while this suggests negligence, there is no indication that Defendants had reason to know of any deficiencies in quality control problems before the data was made public.
Cf.
Abrams v. Baker Hughes Inc.
,
4. Statement that Data Was Back-Checked and Validated
Finally, Plaintiffs claim that Chisholm represented that the data presented at the September 2015 conference was "back check[ed] and validate[d]." Plaintiffs allege that this was false, as "Flotek had no internal controls in place to ensure the integrity of the FracMax database." Indeed, as Chisholm admitted, there was a failure in quality control, because Flotek did not cross-reference "[the Drillinginfo data] with the [Texas] Railroad Commission data." Despite Chisholm's subsequent recognition that Flotek "should have had the quality control in place that could have validated [the Drillinginfo data] and it wasn't," Plaintiffs nonetheless fail to allege that Chisholm knew of this lack of quality control at the time he made the statement, or that it would have been so obvious that he should have known.
Cf.
Abrams
,
C
In the absence of specific allegations that any Defendant knew of the falsity of any of the statements discussed above at the time they were made or were severely reckless with respect to the statements' truth, Plaintiffs invoke Chisholm's position as an inventor of the FracMax technology as sufficient to "permit a plaintiff to plead scienter."
3
Neiman
,
Our "special circumstances" doctrine does not apply here, and therefore our analysis regarding the alleged misrepresentations,
supra
Part III.B, holds. Plaintiffs concede that they "do[ ] not contend Flotek is a small company," and instead ask us to find special circumstances based on Defendants' knowledge of the FracMax product. However, we have never found special circumstances permitting an inference of scienter based solely on a defendant's position when the company was large.
Compare
Dorsey v. Portfolio Equities, Inc.,
The other special circumstances factors also cut against applying that doctrine
*986
here. Although FracMax was important to Flotek's sales of CnF, it cannot be said to be critical to its "continued vitality," as required.
4
See
Diodes
,
D
Finally, we review the complaint holistically, as the district court did, to determine "whether
all
of the facts alleged, taken collectively, give rise to a strong inference of scienter,"
Tellabs
,
IV
Plaintiffs contend that the district court erred by dismissing their Section 20(a) claims against the individual defendants for control-person liability. "Control person liability is secondary only and cannot exist in the absence of a primary violation."
Southland
,
*987 * * *
For these reasons, the judgment of the district court is AFFIRMED.
Earlier, Flotek had denied the allegations contained in the Bronte Report.
Because we conclude that the alleged misrepresentations here do not reflect scienter on the part of any Defendant, we need not reach Plaintiffs' argument that FracMax's importance to the company permits an inference that Defendants had a motive to mislead.
Plaintiffs' complaint repeatedly refers to Chisholm as "one of FracMax's inventors and President and CEO of Flotek," but does not specify what role Chisholm played in inventing FracMax. Although conceivable that Chisholm knew the intricacies of the software code underpinning FracMax, the Plaintiffs have made no specific allegations from which we could conclude such an inference is as likely as an opposing inference that Chisholm merely thought of the concept while others implemented it. The lack of specific facts leading to an inference of knowledge or severe recklessness of FracMax's flaws leaves only the possibility that Chisholm's title as "one of FracMax's inventors and President and CEO of Flotek" might result in such an inference, a possibility which we conclude also fails under our "special circumstances" test.
We have concluded that, in order to constitute a special circumstance, the required level of importance to the company must be such that the company's continued existence depends on, or the company would be completely transformed by, the success of a product or business line.
See
Dorsey
,
Reference
- Full Case Name
- ALASKA ELECTRICAL PENSION FUND, Lead Plaintiff, Plaintiff - Appellant v. FLOTEK INDUSTRIES, INCORPORATED; John W. Chisholm ; H. Richard Walton; Robert M. Schmitz, Defendants - Appellees
- Cited By
- 10 cases
- Status
- Published