The opinion of the court was delivered by: Richard J. Holwell, District Judge
MEMORANDUM OPINION AND ORDER
Defendants AtriCure, Inc. ("AtriCure" or the "Company"), David J. Drachman and Thomas Etergino (collectively, "defendants") move for reconsideration under Local Civil Rule 6.3 of the Court's September 13, 2007 Memorandum Opinion and Order, see Levine v. AtriCure, Inc., 508 F. Supp. 2d 268 (S.D.N.Y. 2007), denying their motion to dismiss the complaint or, in the alternative, to certify the Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(6) and to stay proceedings pending any such appeal. For the reasons stated below defendants' motion is denied.
As discussed in greater detail in the September 2007 Opinion, plaintiff purchased shares of AtriCure, a medical device company, in an initial public offering ("IPO") at $14 per share in August 2005. The purported class action complaint alleges that AtriCure's Registration Statement was materially misleading because it failed to disclose a damaging conflict of interest arising out of the fact that the Cleveland Clinic, a prestigious hospital that used an AtriCure device, had an interest in the Company through an investment fund and that several of the hospital's doctors were paid consultants to the Company. (Compl. ¶ 55.) The complaint also alleges that the Wall Street Journal published an article on December 12, 2005 that disclosed the alleged conflict of interest, and that on February 16, 2006 the Company issued a press release stating that it believed it was experiencing a "negative impact" on its business as a result of recent newspaper articles published in December 2005. (Id. ¶¶ 27-28.) In response to this announcement the price of AtriCure shares declined from $10.36 per share to $8.04 per share. (Id. ¶ 29.) During the period between the August 4, 2005 IPO and the December 12, 2005 Wall Street Journal article, the price of AtriCure shares traded at a high of $14.95/share (on August 11, 2005) and a low of $10.67/share (on October 28, 2005). According to the certification attached to his complaint, plaintiff purchased 250 shares on August 9 at $12.00 per share and sold them at a slight loss ($11.80 per share) on November 21, 2005. The complaint alleges that plaintiff and other members of the purported class sustained damages due to the decline in value of the shares subsequent, and due to, defendants' misleading registration statement. (Compl. ¶ 38.)
In their motion to dismiss, defendants argued, inter alia, that because plaintiff sold his shares before publication of the Wall Street Journal article he had not plead and could not plead an essential element of his claim under § 11 of the Securities Act of 1933, namely "loss causation." (Def.'s Mot. to Dismiss Mem. 2-3.) Indeed, according to defendants, the absence of loss causation was apparent on the face of the complaint. (Id.) Further, because plaintiff could not show that his loss was actually caused by the alleged non-disclosures plaintiff also lacked constitutional standing to sue, thus depriving this Court of subject matter jurisdiction. (Id.)
In denying the motion to dismiss the Court, relying on McMahon & Co. v. Wherehouse Entertainment, Inc., 65 F.3d 1044, 1048 (2d Cir. 1995), concluded that a plaintiff in a § 11 case is not required to plead or prove loss causation. (See Levine, 508 F. Supp. 2d at 272.) Rather, under § 11(e) of the 1933 Act, the absence of loss causation, also known as "negative causation," is an affirmative defense that is defendants' burden to plead and prove. (See id. at 272-74.) While declines in the value of shares prior to a corrective disclosure of previously undisclosed information generally will establish negative causation, the complaint did not on its face negate causation and, therefore, defendants' motion came under the wrong rule (12 instead of 56) and was premature. (Id. at 274.) With respect to the issue of Article III standing, the Court concluded that plaintiff's allegations that he purchased AtriCure shares pursuant to a false or misleading registration statement, and that at the time he resold the shares their value had declined, properly alleged injury-in-fact traceable to defendants' actions as required by Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), and related cases. (See Levine, 508 F. Supp. 2d at 274-76.)
1. The Complaint Does Not, Standing on its Own, Establish Negative Causation
After defendants filed their initial memorandum in support of their motion to dismiss, the Supreme Court decided Bell Atlantic v. Twombly 550 U.S. 544, 127 S.Ct. 1955 (2007). In Twombly, the Court "retired" the familiar formulation of Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that a motion to dismiss must be denied unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." In its place, the Court held that while "we do not require heightened fact pleading of specifics," a complaint must allege "enough facts to state a claim to relief that is plausible on its face." 127 S.Ct. at 1974. Defendants contend that Twombly imposes a more "stringent" standard of pleading under Rule 8. With a finer point, the Second Circuit after "careful consideration of . . . the conflicting signals" in Twombly concluded that the Supreme Court "is not requiring a universal standard of heightened fact pleading, but is instead requiring a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 158 (2d Cir. 2007), cert. granted sub nom. Ashcroft v. Iqbal, 128 S.Ct. 2931 (2008). Putting aside the question of whether imposition of a "plausibility standard" creates a pleading standard that falls somewhere between what was required by Conley and the more demanding standard of Federal Rule of Civil Procedure 9(b), defendants argue that this Court overlooked Twombly and that its application mandates dismissal of the complaint because plaintiff has not alleged "enough facts" to show that his "claim to relief is plausible on its face." (Def.'s Recon. Mem. 2 (quoting Twombly 127 S.Ct. at 1974).) Under the Court's Local Civil Rule 6.3, reconsideration is of course appropriate where a court overlooks "controlling decisions . . . that were put before it on the underlying motion . . . and which, had they been considered, might have reasonably altered the result before the court."
Plaintiff cries foul, pointing out that defendants completely ignored Twombly in every written submissions made to the Court after Twombly was decided. (Pls.' Recon. Opp. Mem. 4-5.) This is a fair point, although defense counsel did make a reference to Twombly during the course of oral argument. (Aug. 15, 2007 Tr., at 9.) Defendants make an interesting point, however, in explaining why they did not cite Twombly in their motion to dismiss papers: "[T]he AtriCure Defendants believed that their argument [that plaintiff's complaint on its face established the absence of loss causation] to be a complete answer . . . whether the Twombly or pre-Twombly pleading standard applied." (D. Recon. Reply Mem. 2.) The Court agrees with at least one aspect of this statement, that defendants' central argument does not turn on whether the Conley or Twombly pleading standard applies. For this very reason, however, the motion for reconsideration must fail, as explicit consideration of Twombly does not alter the result of the Court's earlier decision.
Though framed as a Twombly argument, defendants' central claim is nothing more than an attempt to apply the unexceptional holding of Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67 (2d Cir. 1998), first cited in defendants' original motion to dismiss, that "an affirmative defense [here, negative causation] may be raised by a pre-answer motion to dismiss under Rule 12(b)(6), without resort to summary judgment procedure, if the defense appears on the face of the complaint." Id. at 74 (emphasis added); cf. Defs.' Recon. Memo 15 ("Where, as here, the plaintiff has pleaded facts that without more, establish an affirmative defense to his claim, he plainly has not met that [Twombly] standard."). This well-settled aspect of federal pleading practice has little to do with the specificity (or "plausibility," in Twombly terms) of the plaintiff's prima facie claim to relief. Instead, the doctrine recognizes that a litigant may plead itself out of court by unintentionally alleging facts (taken as true) that establish an affirmative defense:
In a situation involving the barring effect of an affirmative defense, the claim is stated adequately from that perspective, but in addition to the claim the contents of the complaint includes matters of avoidance that effectively vitiate the pleader's ability to recover on the claim. . . . [T]he problem is not that the plaintiff merely has anticipated the defendant's answer and tried to negate a defense he believes his opponent will attempt to use against him; rather, the plaintiff's own allegations show that a defense exists that legally defeats the claim for relief.
Charles Alan Wright & Arthur R. Miller, 5B Federal Practice and Procedure § 1357, at 708-13 (3d ed. 2004). See, e.g., Jones v. Bock, 549 U.S. 199, 215 (2007) ("A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. If the allegations, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim; that does not make the statute of limitations any less an affirmative defense . . . .");*fn1 U.S. Gypsum Co. v. Indiana Gas Co., Inc., 350 F.3d 623, 626 (7th Cir. 2003) ("A litigant may plead itself out of court by alleging (and thus admitting) the ingredients of a defense . . . but this complaint does not do so . . . .");
Official Committee of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 158 (2d Cir. 2003) ("[A] complaint can be dismissed for failure to state a claim pursuant to a Rule 12(b)(6) motion raising an affirmative defense 'if ...