JOHN E. GOLUB, On Behalf of Himself and All Others Similarly Situated v. Gigamon Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
J OHN E. GOLUB, On Behalf of
Himself and All Others Similarly
Situated,
Plaintiff-Appellant,
and
BRIAN C ARPENTER,
Plaintiff,
v.
GIGAMON I NC.; COREY M. M ULLOY ;
PAUL A. HOOPER; ARTHUR W.
COVIELLO, J R.; J OAN A. DEMPSEY;
TED C. HO; J OHN H. KISPERT ; PAUL
E. M ILBURY ; M ICHAEL C.
RUETTGERS ; ROBERT E. SWITZ ;
DARIO Z AMARIAN ; ELLIOTT
M ANAGEMENT CORPORATION ;
ELLIOTT ASSOCIATES , L.P.; ELLIOTT
I NTERNATIONAL , L.P.; EVERGREEN
COAST CAPITAL CORPORATION ;
GINSBERG H OLDCO , I NC.; GINSBERG
M ERGER SUB, I NC.,
Defendants-Appellees.
No. 19-16975
D.C. No.
3:17-cv-06653-
WHO
OPINION

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2 GOLUB V . GIGAMON
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted October 14, 2020
Submission Vacated December 15, 2020
Resubmitted April 13, 2021
San Francisco, California
Filed April 20, 2021
Before: Ferdinand F. Fernandez, Kim McLane Wardlaw,
and Daniel P. Collins, Circuit Judges.
Opinion by Judge Wardlaw
SUMMARY*
Securities Law
The panel affirmed the district court’s dismissal, for
failure to state a claim, of a putative securities class-action
lawsuit alleging violations of §§ 14(a) and 20(a) of the
Securities Exchange Act of 1934 and Securities Exchange
Commission Rule 14a-9.
Plaintiff alleged misrepresentations and omissions in a
proxy statement used to secure shareholder approval for the
sale of defendant Gigamon, Inc. The panel held that the
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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GOLUB V . GIGAMON 3
standards for actionability explained in Omnicare, Inc. v.
Laborers District Council Construction Industry Pension
Fund, 575 U.S. 175 (2015), with respect to falsity under § 11
of the Securities Act of 1933, also govern whether a plaintiff
has sufficiently alleged the falsity of a statement of opinion
under SEC Rule 14a-9 through either a misrepresentation-
of-fact theory or an omission-of-material-fact theory.
Omnicare identified three ways in which a statement of
opinion may nonetheless involve a representation of material
fact that, if that representation is false or misleading, could
be actionable. First, every statement of opinion explicitly
affirms that the speaker actually holds the stated belief.
Second, some sentences that begin with opinion words like
“I believe” contain embedded statements of fact. And third,
a reasonable investor may, depending on the circumstances,
understand an opinion statement to convey facts about how
the speaker has formed the opinion.
The panel applied the Omnicare standards in an
accompanying memorandum disposition and affirmed the
judgment of the district court.
COUNSEL
Randall J. Baron (argued), David T. Wissbroecker, Danielle
S. Myers, and Maxwell R. Huffman, Robbins Geller
Rudman & Dowd LLP, San Diego, California; Shawn A.
Williams, Robbins Geller Rudman & Dowd LLP, San
Francisco, California; for Plaintiff-Appellant.
Jerome F. Birn Jr. (argued) and David J. Berger, Wilson
Sonsini Goodrich & Rosati PC, Palo Alto, California, for
Defendants-Appellees Gigamon Inc., Corey M. Mulloy,
Paul A. Hooper, Arthur W. Coviello Jr., Joan A. Dempsey,

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4 GOLUB V . GIGAMON
Ted C. Ho, John H. Kispert, Paul E. Milbury, Michael C.
Ruettgers, Robert E. Switz, and Dario Zamarian.
Brian M. Lutz (argued) and Michael J. Kahn, Gibson Dunn
& Crutcher LLP, San Francisco; Nathan L. Powell, Gibson
Dunn & Crutcher LLP, Palo Alto, California; for
Defendants-Appellees Elliott Management Corporation,
Elliott Associates L.P., Elliott International, L.P., Evergreen
Coast Capital Corporation, Ginsberg Holdco Inc., Ginsberg
Merger Sub Inc.
OPINION
WARDLAW, Circuit Judge:
Lead Plaintiff John Golub appeals the district court’s
dismissal of his putative securities class-action lawsuit,
alleging violations of section 14(a) and section 20(a) of the
Securities Exchange Act of 1934 and Securities Exchange
Commission (SEC) Rule 14a-9. See 15 U.S.C. § 78n(a); id.
§ 78t; 17 C.F.R. § 240.14a-9(a). As we explain in the
accompanying memorandum disposition, we affirm the
district court’s order dismissing Golub’s amended complaint
for failure to state a claim under these provisions. We write
here only to clarify that the standards for actionability
explained in Omnicare, Inc. v. Laborers District Council
Construction Industry Pension Fund, 575 U.S. 175 (2015),
with respect to falsity under section 11 of the Securities Act
of 1933, also govern whether a plaintiff has sufficiently
alleged the falsity of a statement of opinion under SEC Rule
14a-9 through either a misrepresentation-of-material-fact
theory or an omission-of-material-fact theory.

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GOLUB V . GIGAMON 5
I.
On November 24, 2017, Gigamon Inc. filed a proxy
statement urging its shareholders to vote in favor of a
proposed sale of Gigamon. Among other things, the proxy
statement laid out: the proposed terms of sale, the
company’s current and projected finances, and the decision-
making process of Gigamon’s Board of Directors and CEO
in approving and recommending the sale of the company.
Gigamon supplemented this proxy statement on December
12, 2017, making minor updates to the background and
fairness sections of that document.
Some of Gigamon’s shareholders, however, believed
that Gigamon’s directors and officers had deliberately
agreed to sell Gigamon at an undervalued price and that
Gigamon had filed “a materially false and misleading Proxy
Statement in order to secure shareholder support for” that
sale. As a result, a wave of putative shareholder class-action
lawsuits against Gigamon sprung up in the Northern District
of California. The district court consolidated those lawsuits
into the present dispute and appointed Golub as the lead
plaintiff.
In the main, Golub’s initial and later-amended
complaints assert that Gigamon, its CEO, and its Board of
Directors violated SEC Rule 14a-9, promulgated under
section 14(a) of the Securities Exchange Act of 1934,
15 U.S.C. § 78n(a), when they released the proxy
statement.1 His operative amended complaint specifically
1 Golub’s initial complaint also brought a claim under section 20(a)
of the Securities Exchange Act of 1934 against a variety of companies,
including Elliott Management Corporation, Elliott Associates, L.P.,
Elliott International, L.P., Evergreen Coast Capital, Ginsberg Holdco,

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6 GOLUB V . GIGAMON
identified five alleged misrepresentations of fact and two
alleged omissions in the proxy statement that purportedly
rendered false or misleading certain statements of opinion
also contained in the proxy statement. See Va. Bankshares,
Inc. v. Sandberg, 501 U.S. 1083, 1087 (1991).
Defendants moved to dismiss both Golub’s initial and
amended complaints for failure to state a claim. The district
court granted both motions to dismiss, primarily on the
alternative grounds that Golub had failed to plead (1) an
actionably false misrepresentation or omission that (2) could
overcome the safe-harbor provision of the Private Securities
Litigation Reform Act (“PSLRA”), 15 U.S.C. § 78u-5.
Moreover, the second time around, the district judge
dismissed the amended complaint without further leave to
amend because of the futility of Golub’s prior amendments.
The court entered judgment against Golub, and Golub filed
a timely notice of appeal.
After hearing oral argument in this appeal, we vacated
submission pending our court’s decision in Wochos v. Tesla,
Inc., 985 F.3d 1180 (9th Cir. 2021), which addressed claims
of falsity under section 10(b) of the Securities Exchange Act
of 1934 and SEC Rule 10b-5. With the benefit of that
decision, we now decide this matter through this opinion and
the simultaneously filed memorandum disposition.
II.
We have jurisdiction under 28 U.S.C. § 1291. We
review the district court’s dismissal of Golub’s amended
complaint de novo. See Wochos, 985 F.3d at 1188. As
Inc., and Ginsberg Merger Sub, Inc., for their alleged roles in facilitating
Gigamon’s violation of section 14(a).

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GOLUB V . GIGAMON 7
relevant to this opinion, we review questions of statutory and
regulatory interpretation de novo, at least in the absence of a
competing interpretation from the agency that administers
the organic statute and ensuing regulations. Danny P. v.
Catholic Health Initiatives, 891 F.3d 1155, 1157–58 (9th
Cir. 2018).
III.
As discussed, Golub’s principal claim arises under
section 14(a) of the Securities Exchange Act of 1934 and
SEC Rule 14a-9, promulgated thereunder. Rule 14a-9,
specifically, prohibits the use of a proxy statement to secure
shareholder approval for the sale of a company if that
document
contain[s] any statement which, at the time
and in the light of the circumstances under
which it is made, is false or misleading with
respect to any material fact, or which omits
to state any material fact necessary in order
to make the statements therein not false or
misleading or necessary to correct any
statement in any earlier communication with
respect to the solicitation of a proxy for the
same meeting or subject matter which has
become false or misleading.
17 C.F.R. § 240.14a-9(a) (emphases added).
Despite Rule 14a-9’s use of the word “fact,” that
provision has long permitted a plaintiff to plead and prove
false the “statements of reasons, opinions, or beliefs” of a
company’s directors that are placed in a proxy statement to
urge shareholders to vote in a particular manner. Va.
Bankshares, 501 U.S. at 1090–91; see also id. at 1095

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8 GOLUB V . GIGAMON
(“Under § 14(a), then, a plaintiff is permitted to prove a
specific statement of reason knowingly false or misleadingly
incomplete, even when stated in conclusory terms.”). These
statements of opinions “are factual in two senses: as
statements that the directors do act for the reasons given or
hold the belief stated and as statements about the subject
matter of the reason or belief expressed.” Id. at 1092.
We have not, however, addressed how the Supreme
Court’s more recent decision and analysis in Omnicare
affect such claims. There, the Supreme Court examined the
standards for alleging falsity of an opinion under section 11
of the Securities Act of 1933. Omnicare, 575 U.S. at 178.
And, as we recently summed up, “Omnicare identified three
ways in which a statement of opinion may nonetheless
involve a representation of material fact that, if that
representation is false or misleading, could be actionable.”
Wochos, 985 F.3d at 1189. “First, every statement of
opinion ‘explicitly affirms one fact: that the speaker actually
holds the stated belief.’” Id. (quoting Omnicare, 575 U.S.
at 184). “Second, ‘some sentences that begin with opinion
words like “I believe” contain embedded statements of
fact.’” Id. (quoting Omnicare, 575 U.S. at 185). And
“[t]hird, ‘a reasonable investor may, depending on the
circumstances, understand an opinion statement to convey
facts about how the speaker has formed the opinion—or,
otherwise put, about the speaker’s basis for holding that
view.’” Id. (quoting Omnicare, 575 U.S. at 188). Such a
statement could “potentially giv[e] rise to liability under an
omission theory” if the facts conveyed in that fashion are
untrue, as would be apparent based on a more fulsome
disclosure. Id.
Though the first two Omnicare standards for falsity of an
opinion align with those enunciated in Virginia Bankshares,

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GOLUB V . GIGAMON 9
compare Omnicare, 575 U.S. at 184–85, with Va.
Bankshares, 501 U.S. at 1092, the district court hesitated to
extend Omnicare’s discussion of how omissions can render
a statement of opinion false or misleading to the Rule 14a-9
context without our explicit approval. After all, Virginia
Bankshares was largely silent about such a theory of
liability, and Omnicare was not a section 14(a) and Rule
14a-9 case. Having considered the issue, however, we hold
that Omnicare’s standards for pleading falsity of opinion—
via either a misleading representation or omission—apply to
claims arising under section 14(a), as implemented by Rule
14a-9.
Our discussion of the Omnicare standards in City of
Dearborn Heights Act 345 Police & Fire Retirement System
v. Align Technology, Inc., 856 F.3d 605 (9th Cir. 2017),
makes for a natural starting point. “The Supreme Court’s
definition of opinion statements and differentiation of them
from factual statements was specific to Section 11 only to
the extent that Section 11 imposes liability for ‘untrue
statement[s] of . . . fact.’” Id. at 616 (alterations in original)
(quoting Omnicare, 575 U.S. at 183). We have thus
previously concluded that the Omnicare standard applies to
claims under section 10(b) and Rule 10b-5, because Rule
10b-5 and section 11 contained an “identical limitation of
liability to ‘untrue statement[s]’ and omissions of ‘fact.’” Id.
(quoting 17 C.F.R. § 240.10b-5(b)).
This same reasoning is equally applicable to the section
14(a) and Rule 14a-9 context, as Rule 14a-9 contains a
virtually identical limitation on liability. Only proxy
statements that contain “false or misleading” statements of
“material fact” or omit “material fact[s]” that render
statements in the proxy false or misleading can give rise to
liability under Rule 14a-9. 17 C.F.R. § 240.14a-9(a). Like

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10 GOLUB V . GIGAMON
its siblings, then, Rule 14a-9 is concerned primarily with
questions of “fact.” See Omnicare, 575 U.S. at 185 n.2
(explaining that § 14(a) “bars conduct similar to that
described in § 11”).
Given the presence of this limitation on liability under
Rule 14a-9, we conclude that Omnicare’s elucidation of
what “facts” a statement of opinion may convey and the
possibility and manner of proving those “facts” false or
misleading through an omission theory applies to the Rule
14a-9 context. See Dearborn Heights, 856 F.3d at 616; see
also Paradise Wire & Cable Defined Benefit Pension Plan
v. Weil, 918 F.3d 312, 322–23 (4th Cir. 2019) (applying the
Omnicare standards to claims under Rule 14a-9).
IV.
We apply these standards in the simultaneously filed
memorandum disposition in this case, and, as explained in
that memorandum, AFFIRM the decision and judgment of
the district court.

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