Daniel E. Sieggreen, Individually and On Behalf of All Others Similarly Situated v. Live Ventures Incorporated, Jon Isaac, Virland A. Johnson, and JanOne Inc.

1 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA — 2 — 3 Daniel E. Sieggreen, Individually and On Case No. 2:21-cv-01517-CDS-EJY Behalf of All Others Similarly Situated, 4 Order Denying Defendants’ Motions to Plaintiff Dismiss Plaintiff’s Second Amended 5 v. Complaint 6 Live Ventures Incorporated, Jon Isaac, Virland A. Johnson, and JanOne Inc. [ECF Nos. 78, 80] — 7 — 8 Defendants — 9 — 10 Plaintiff Daniel E. Sieggreen brings this class-action lawsuit against defendants Live 11 Ventures Incorporated, two of its executive officers, and JanOne Inc., for alleged violations of the 12 Securities Exchange Act of 1934. The defendants allegedly engaged in deceptive conduct 13 between December 28, 2016, and August 3, 2021—violating the Act and causing harm to those 14 who acquired Live’s securities during that time. Sieggreen seeks compensatory damages from 15 the defendants, jointly and severally, to remedy that harm. 16 At a hearing on the defendants’ motions to dismiss Sieggreen’s first amended complaint, I 17 found that Sieggreen failed to meet the heightened pleading standards that govern securities 18 class actions. Order, ECF No. 70. In turn, I granted the defendants’ motions to dismiss the first 19 amended complaint without prejudice and with leave to amend. Id. Sieggreen then filed a second 20 amended complaint (ECF No. 74), which the defendants move to dismiss (ECF Nos. 78, 80) on 21 the grounds that it too falls short of the heightened pleading standards that govern this action. 22 For the reasons stated herein, I deny the defendants’ motions to dismiss. 23 I. Background 24 Sieggreen filed this class action on behalf of persons and entities that purchased or 25 otherwise acquired Live Ventures securities between December 28, 2016, and August 3, 2021 26 (“class period”). Second am. compl., ECF No. 74 at ¶¶ 1–3. Sieggreen pursues claims against Live Ventures Incorporated, Jon Isaac, Virland A. Johnson (collectively, “Live defendants”) and 2|| JanOne Inc. under the Securities Exchange Act of 1934. Id. at $9 19-24. Isaac and Johnson served as Live’s CEO and CFO, respectively, during the class period. 4 Sieggreen alleges that the defendants, in violation of the Exchange Act, engaged in three 5]| deceptive schemes to artificially inflate Live’s stock. Id. at I 261-64. Because the plaintiff's claims rest on a “fraud-on-the-market” theory, the changes in Live stock’s price per share (PPS) 7|| during the class period are especially relevant. 8 Live PPS during the class period — 17 — 18 The second amended complaint divides the defendants’ securities fraud into three deceptive schemes. Within those schemes, some of the misrepresentations that immediately 20]| precede the change in Live stock’s PPS are as follows: 21 e The jump from $1.91 to $23.92 PPS on December 28, 2016, was allegedly due toa 22 press release claiming that Live stock’s EPS was $8.92, when in reality the EPS 23 was $6.33. Id. at I9 45-47. — 24 — — 25 — This chart reflects the changes to Live stock’s PPS during the class period, as alleged in the second amended complaint, ECF No. 74. 1 • The dip from $23.92 to $18.05 on January 6, 2017, was due to a SeekingAlpha 2 report exposing Live’s misrepresentations and fraudulent conduct, id. at ¶ 56–58. 3 • The dip from $18.05 to $13.29 on February 15, 2017, was due to the contents of 4 Live’s Form 8-K filed with the SEC the day prior, which restated Live’s financial 5 results for the past three quarters. Id. at ¶¶ 75–80. 6 • The dip from $13.29 to $10.02 on August 15, 2018, due to Live refiling its Q3 Form 7 10-Q for the quarter ended June 30, 2019, which disclosed that the SEC had 8 commenced an investigation into Live. Id. at ¶ 86–88; id. at ¶¶ 261–265. 9 • The increase from $13.29 to $75.25 on June 25, 2021, was due to the defendants’ 10 fraudulent schemes that set out to artificially inflate Live’s stock prices. Id. at 11 ¶¶ 261–65. 12 • Live’s stock dropped 46% to close at $33.50 on August 4, 2021, and then to $25.76 13 on August 10, 2021, due to the SEC action. Id. at ¶¶ 98–108. 14 The development of these facts within the framework of the defendants’ three deceptive 15 schemes is detailed below. 16 A. First Deceptive Scheme 17 The first deceptive scheme allegedly occurred in late 2016, months after the end of Live’s 18 2016 fiscal year, and ended September 30, 2016, in the run-up to Live reporting its fiscal year 19 (“FY”) 2016 financial results to the SEC on December 29, 2016. Id. at ¶ 4. Sieggreen alleges that 20 the Live defendants sought to boost Live’s FY 2016 financial results, drive up Live’s share price, 21 and then profit from sales of Live’s artificially inflated stock price. Id. Thus, the plaintiffs allege 22 that the defendants engineered an amendment to a software purchase agreement that Live had 23 entered into with Juan Yunis, a close personal friend of Isaac’s. Id. at ¶ 5. That amendment 24 consisted of Isaac’s friend “discounting” the software purchase price from $1.5 million to 25 $584,500 worth of shares and selecting September 15, 2016, as the “effective date” of the 26 amended agreement—even though the parties had not even begun discussing a potential 1 amendment to the agreement until November 30, 2016 (two months after the close of FY 2016). 2 Id. This allowed Live to misrepresent this “discount” to be $915,500 in “other income,” thus 3 boosting Live’s FY 2016 pre-tax income by over 20%. Id. 4 This in turn allowed the Live defendants to allegedly make material misrepresentations 5 and omissions to investors about Live’s FY 2016 financial results, the circumstances of the 6 purported amendment, and Live’s recognition of $915,500 in “other income” in its FY 2016 7 financial results. Id. The plaintiffs also allege that in December 2016, Isaac allegedly wound up 8 800,000 of his shares in Live for the purpose of decreasing Live’s outstanding share count and 9 increasing Live’s earnings per share to $8.92. Id. at ¶ 6. Isaac then approved of a press release to 10 be issued on December 28, 2016, which misleadingly claimed that Live’s FY 2016 EPS was $8.92 11 rather than the true EPS of $6.33. Id. 12 Shortly before issuing the press release on December 28, 2016, Live allegedly paid stock 13 promoters $120,000 to tout Live’s FY 2016 results. Id. at ¶ 7. On that same day, Isaac allegedly 14 instructed Live’s brokerage to sell up to 20,000 shares throughout the day on December 28, 2016. 15 Id. Throughout the day, Isaac is alleged to have placed 28 “good till cancel” limit orders through 16 Juan Yunis’s brokerage account, which Isaac had access to. Id. If all these transactions were 17 completed, Sieggreen alleges that Live would have realized profits of over $1.1 million. Id. 18 SeekingAlpha published a scathing report about Live on January 6, 2017, which is alleged 19 to have partially revealed the truth about Live’s actions and caused Live’s share price to drop by 20 12.7%. Id. SeekingAlpha reported that Live had lied about its 2016 financial results, including in 21 Live’s December 28, 2016 press release, which falsely claimed that Live’s EPS was $8.92. Id. It also 22 reported that Live had a history of paying stock promoters large sums of money, then selling 23 shares as Live’s share price rose after the stock touts before Live’s share price plummeted back 24 down. Id. The Live defendants allegedly attempted to cover up this deceptive scheme by lying to 25 Live’s outside accountants and making materially false and misleading statements and omissions 26 to investors by denying that Live had ever paid stock promoters. 1 B. Second Deceptive Scheme 2 Sieggreen alleges that the second deceptive scheme began in late 2017. Id. at ¶ 8. Live had 3 had an unprofitable first quarter of 2018 and would have to recognize a $2.3 million non-cash 4 charge due to a new U.S. tax law in its Q1 2018 financial results. Id. JanOne, whose CEO was 5 Tony Isaac (Jon Isaac’s father and a Live board of director), was also facing a tax hit because it 6 had sold real property at a gain during its FY 2017, which ended December 31, 2017. Id. The Live 7 defendants and JanOne came up with a scheme which would boost each party’s financial results: 8 Live and JanOne would engineer a transaction to create a misleading appearance that Live had 9 acquired ApplianceSmart (a subsidiary of JanOne) with the transaction closing on December 30, 10 2017, and then disseminate misleading news about the “transaction” to investors. Id. By selecting 11 the acquisition date as December 30, 2017, Live could turn what had been an unprofitable 12 quarter into a profitable quarter, and JanOne could offset the negative tax implications from 13 selling real property at a gain in its FY 2017 financial results. Id. 14 As part of the scheme, the defendants allegedly claimed that ApplianceSmart was worth 15 over $10 million and that Live only paid $6.5 million for it. Id. This allegedly allowed Live to 16 claim that it had gained $3.7 million in income (the difference between the purported value of 17 the asset and the purchase price). Id. But unbeknownst to investors, Live allegedly could not— 18 and did not—take effective control of ApplianceSmart on December 30, 2017, because 19 ApplianceSmart was encumbered by a credit agreement with its lender, MidCap. Id. at ¶ 9. 20 Under the credit agreement, MidCap had sole possession of ApplianceSmart’s stock certificate, 21 and ApplianceSmart could not sell any of its stock or assets without permission of MidCap— 22 which ApplianceSmart had not obtained. Id. Further, the Live defendants allegedly lied to Live’s 23 outside accountants and told them that Live had “effective control” of ApplianceSmart, 24 representing to both Live’s outside accountants and to Live’s investors that ApplianceSmart had 25 transferred its stock certificate into escrow as of December 30, 2017. Id. But in reality, — 26 — 1 ApplianceSmart had not transferred its stock certificate into escrow, and it remained in sole 2 possession of MidCap. Id. 3 Later, when Live was unable to pay any portion of the purchase price for 4 ApplianceSmart, the defendants allegedly came up with another plan to claim that Live had paid 5 part of the purchase price in the amount of $2.6 million. Id. at ¶ 10. Live is alleged to have made 6 materially false and misleading representations and omissions to investors that Live had paid 7 $2.6 million in cash to JanOne as part of the purchase price. Id. The defendants came up with the 8 $2.6 million amount by treating revenues ApplianceSmart had paid to its lender as amounts paid 9 by Live to JanOne for the purchase price. Id. Unbeknownst to investors, MidCap maintained sole 10 possession of ApplianceSmart’s stock certificate until March 22, 2018, and it was not until May 11 24, 2018, that JanOne’s board of directors executed the corporate disclosures approving the sale 12 of ApplianceSmart to Live. Id. 13 C. Third Deceptive Scheme 14 Sieggreen alleges that the third deceptive scheme occurred in connection with the 15 compensation paid to Isaac and Live’s disclosures concerning the same. Id. at ¶ 11. Over the 16 course of FY 2016–2018, Live allegedly paid Isaac a total of $315,000 in housing allowances. Id. 17 However, the total amount Live reported to investors as paid to Isaac for housing allowances for 18 FY 2016–2018 was $162,000. Id. The Live defendants’ statements regarding Isaac’s FY 2016–2018 19 compensation are alleged to be material misrepresentations, as they understated the total 20 compensation paid to Isaac during that time by 94% and misrepresented the terms of Isaac’s 21 employment agreement with Live. Id. 22 Sieggreen further alleges that the Live defendants effectively admitted that their financial 23 statements for five quarters were materially false and misleading and that, for the entirety of the 24 class period, Live lacked effective internal control over financial reporting. Id. at ¶ 12. Live 25 restated its financial statements for Q1, Q2, and Q3 of 2017 on February 14, 2018, which allegedly 26 revealed that Live had materially understated its debts and materially overstated its net cash 1 provided by operations, causing Live’s share price to plummet by 15.5%. Id. On August 14, 2020, 2 Live restated its financial statements for the quarters ended December 31, 2019, and March 31, 3 2020. Id. Throughout the class period, Live was subject to numerous credit agreements and 4 struggled to maintain compliance with its various loan covenants. Id. As of December 31, 2017, 5 Live had allegedly fallen out of compliance under a $30 million loan agreement. Id. 6 On August 3, 2021, following a nearly four-year investigation, the SEC announced that it 7 had filed an enforcement action against the Live defendants and JanOne in the U.S. District 8 Court for the District of Nevada. Id. at ¶ 13. The SEC action was assigned to the Honorable James 9 C. Mahan (Case No. 2:21-cv-01433-JCM-VCF). Id. The SEC alleged seventeen counts for 10 violations of the Exchange Act against the defendants and sought to (1) bar Isaac and Johnson 11 from acting as an officer or director of any issuer permanently, (2) order Isaac to disgorge all 12 funds received from his illegal conduct, and (3) order all the defendants to pay civil penalties. Id. 13 On this news, Live’s share price plummeted by 46%. Id. 14 After the class period, the defendants moved to dismiss the SEC action pursuant to Rule 15 12(b)(6) of the Federal Rules of Civil Procedure (FRCP). Id. at ¶ 14. On November 28, 2022, 16 Judge Mahan denied the Live defendants’ and JanOne’s motions to dismiss the SEC action 17 entirely. Id. Judge Mahan found that the SEC had stated claims against the defendants for 18 engaging in deceptive acts and for issuing materially false and/or misleading statements and/or 19 omissions in violation of the Exchange Act. Id. Sieggreen alleges that these same fraudulent 20 courses of conduct and materially misleading statements and omissions in the instant action. Id. 21 II. Legal Standard 22 A. Pleading Standard 23 The court may dismiss an action when a plaintiff fails to state a claim upon which relief 24 can be granted. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff’s complaint must 25 include, at a minimum, “a short and plain statement of the claim showing that the [plaintiff] is 26 entitled to relief.” Fed. R. Civ. P. 8(a)(2). In most cases, the complaint will survive a motion to 1 dismiss if its factual allegations, taken as true, “state a claim to relief that is plausible on its face.” 2 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570 ). But if the plaintiff’s 3 claim involves fraud, then Rule 9(b)’s heightened pleading standard applies. Fed. R. Civ. P. 9(b); 4 see In re Cloudera, Inc., 121 F.4th 1180, 1186 (9th Cir. 2024). 5 Rule 9(b) of the FRCP requires the plaintiff to “state with particularity the 6 circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). The pleading must identify 7 “the who, what, when, where, and how of the misconduct charged.” Davidson v. Kimberly-Clark 8 Corp., 889 F.3d 956, 964 (9th Cir. 2018) (citation omitted). When a party is charged with 9 misrepresentation, the pleading must describe the “time, place, and specific contents of the false 10 representations as well as the identities of the parties to the misrepresentation.” In re Cloudera, — 11 — 121 F.4th at 1187 . And it cannot rely on the benefit of hindsight in doing so. Id. Rather, the 12 pleading must explain “why the statements were false or misleading at the time they were 13 made.” Id. (quoting In re Rigel Pharms., Inc. Sec. Litig., 697 F.3d 869, 876 (9th Cir. 2012)). 14 In private securities fraud actions, the Private Securities Litigation Reform Act of 1995 15 (PSLRA) reinforces Rule 9(b) by imposing additional pleading requirements. In re Rigel Pharm., — 16 — 697 F.3d at 876 . Congress enacted the PSLRA and its heightened pleading standards to tame 17 abusive securities litigation by private parties. Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308 , 18 313 (2007). Under the PSLRA, a private securities complaint must “state with particularity both 19 the facts constituting the alleged violation” and the “facts evidencing scienter”—that is, “the 20 defendant’s intention ‘to deceive, manipulate, or defraud.’” Id. (quoting Ernst & Ernst v. Hochfelder, — 21 — 425 U.S. 185, 194 (1976)). If the complaint alleges that the defendant made a “false or misleading 22 statement,” then it must also (1) “specify each statement alleged to have been misleading,” (2) 23 detail the “reasons why the statement is misleading,” and (3) “state with particularity facts 24 giving rise to a strong inference that the defendant acted with the required state of mind.’” Id. 25 (first quoting 15 U.S.C. § 78u-4(b)(1); and then quoting 16 U.S.C. § 78u-4(b)(2)). — 26 — 1 B. Exchange Act’s Statutory Scheme 2 Section 10(b) of the Exchange Act prohibits the use “any manipulative or deceptive 3 device or contrivance” in connection with “the purchase or sale of any security.” 15 U.S.C. § 4 78j(b). SEC Rule 10b-5 implements that provision and creates a private right of action against 5 those who make or disseminate material misrepresentations with the intent to defraud. 17 C.F.R. 6 § 240.10b-5; Lorenzo v. SEC, 587 U.S. 71, 83 (2019). 7 A private right of action under Section 10(b) and Rule 10b-5 only extends to primary 8 violators, not secondary violators. Cent. Bank, N.A. v. First Interstate Bank, N.A., 511 U.S. 164 , 191 9 (1994). Anyone who makes or disseminates a material misrepresentation can be a primary 10 violator, “assuming all of the requirements for primary liability under Rule 10b-5 are met.” Id.; see 11 also Janus Cap. Grp. v. First Derivative Traders, 564 U.S. 135, 142 (2011) (identifying the primary 12 violator of Rule 10b-5(b) to be the “maker” of the material misrepresentation); Lorenzo, 587 U.S. 13 at 78 (identifying the primary violator of Rule 10b-5(a) and (c) to the “disseminator” of the 14 material misrepresentation). 15 Even so, a person who does not meet all the requirements for primary liability can still be 16 held vicariously liable for a Rule 10b-5 violation, per Section 20(a) of the Exchange Act. 15 U.S.C. 17 § 78t(a). Section 20(a) imposes vicarious liability on any person who directly or indirectly 18 controls the primary violator. Id. The controlling person is held “jointly and severally” liable 19 with—and to the same extent as—the primary violator, “unless the controlling person acted in 20 good faith and did not directly or indirectly induce” the primary violation. Id. And even if the 21 requirements of Section 20(a) are met, the controlling person will not be vicariously liable if the 22 controlled person’s liability is not proven. In re Alphabet, Inc. Sec. Litig., 1 F.4th 687 , 701–02 (9th Cir. 23 2021). 24 This contingency distinguishes Section 20(a) claims from Rule 10b-5 claims. A defendant 25 who disseminates material misrepresentations may be liable under Rule 10b-5(a), regardless of 26 whether the “maker” of that misrepresentation is liable under Rule 10b-5(b). But a controlling 1 person cannot be liable for the controlled person’s 10b-5 violation if the plaintiff fails to prove 2 that the controlled person was a primary violator. See In re Alphabet, 1 F.4th at 701–02. 3 III. Discussion 4 Sieggreen asserts the following claims in its second amended complaint: violation of 5 Exchange Act § 10(b) and SEC Rule 10b-5(b) against the Live defendants; violation of Exchange 6 Act § 10(b) and SEC Rules 10b-5(a) and 10b-5(c) against the Live defendants and JanOne; and 7 violations of Exchange Act § 20(a) against Isaac and Johnson. ECF No. 74. I find that Sieggreen 8 meets the pleading threshold for all these claims and, in turn, deny the defendants’ motions to 9 dismiss. 10 A. Violation of Exchange Act § 10(b) and SEC Rule 10b-5 11 Section 10(b) of the Exchange Act prohibits the use “any manipulative or deceptive 12 device or contrivance” in connection with “the purchase or sale of any security.” 15 U.S.C. § 13 78j(b). SEC Rule 10b-5(b) implements that prohibition and bars “any person” from 14 misrepresenting the material facts, whether by false statement or misleading omission, in 15 connection with a securities transaction. 17 C.F.R. § 240 .10b-5(b); see Macquarie Infrastructure Corp. 16 v. Moab Partners, L.P., 601 U.S. 257, 263 (2024). SEC Rule 10b-5(a) and (c) bars any person from 17 disseminating those misrepresentations with the intent to defraud. Lorenzo, 587 U.S. at 78 . Even 18 so, these provisions do not “create an affirmative duty to disclose any and all material 19 information.” Macquarie, 601 U.S. at 264 . Rather, disclosure is required “only when necessary” to 20 “ensure that statements already made are clear and complete.” Id. at 264 . 21 To plead a claim under § 10 and Rule 10b-5, the plaintiff must adequately plead six 22 elements: (1) the defendant made or disseminated a material misrepresentation or omission; (2) 23 scienter; (3) a connection between a private securities transaction and the misrepresentation or 24 omission; (4) the plaintiff’s reliance on the misrepresentation; (5) economic loss; and (6) loss 25 causation. Stoneridge Inv. Partners, LLC v. Scientific–Atlanta, Inc., 552 U.S. 148, 157 (2008). Because the 26 elements for a claim under Rule 10b-5(b) are the same as the elements for a claim under Rule 1 10b-5(a) and (c), I address all of Sieggreen’s Rule 10b-5 claims against the Live defendants and 2 JanOne in this discussion. — 3 — 4 A misleading statement or omission is actionable if (1) the complaint pleads it with 5 particularity and explains why it is misleading, and (2) a reasonable investor would consider it 6 material to investment decisions. Retail Wholesale & Dep’t Store Union Loc. 338 Ret. Fund v. Hewlett7 Packard Co., 845 F.3d 1268, 1275 (9th Cir. 2017). The first prong is met if the factual allegations 8 meet the pleading standards of Rule 9(b) and the PSLRA. Id. The second prong is met if the 9 misrepresentation is “capable of objective verification” and objectively false, and there is a 10 “substantial likelihood” that a “reasonable investor” would view the misrepresentation as one 11 that is objectively false and significantly alters the “total mix” of information made available for 12 stockholders’ investment decisions. Id. (quoting Basic Inc. v. Levinson, 485 U.S. 224 , 231–32 (1988)). 13 Subsection (b) of Rule 10b-5 requires the defendant to be the “maker” of the material 14 misrepresentation, while subsections (a) and (c) require the defendant to be the “disseminator” 15 of the material misrepresentation. See Lorenzo, 587 U.S. at 78 . The “maker” is the “the person or 16 entity with ultimate authority over the statement, including its content and whether and how to 17 communicate it.” Janus, 564 U.S. at 142 . The “disseminator” is the person who “employ[s] any 18 device, scheme, or artifice to defraud” or “engage[s] in any act, practice or course of business” 19 that “operates as a fraud or deceit.” Lorenzo, 587 U.S. at 77 (citation modified) (quoting 15 C.F.R. 20 § 240.10b-5). 21 Here, Sieggreen alleges with particularity that the defendants made or disseminated 22 material misrepresentations. Live made and disseminated material misrepresentations in the 23 statements concerning Live’s 2016 FY financial results, ECF No. 74 at ¶¶ 153–57; the statements 24 concerning Live’s stock promotions, id. at ¶¶ 158–60; statements concerning Live’s Q1 2018 25 financial results, id. at ¶¶ 161–66; the statements concerning Live’s payment of the purchase price 26 for ApplianceSmart, id. at ¶¶ 167–70; the statements concerning Jon Isaac’s FY 2016–2018 1 compensation, id. at ¶¶ 171–79; and Live’s financial statements for the quarters ended December 2 31, 2016, March 31, 2017, and June 30, 2017, id. at ¶¶ 180–84. Further, JanOne disseminated 3 material misrepresentations with respect to the ApplianceSmart transaction and MidCap Credit 4 Agreement. Id. at ¶¶ 166, 170. Sieggreen’s second amended complaint identifies each 5 misrepresentation and states with particularity the reasons why the misrepresentation is 6 materially misleading. See id. at ¶¶ 158–88. Thus, the first element of Sieggreen’s Rule 10b-5 7 claims against the Live defendants and JanOne meet the pleading threshold. — 8 — 9 To survive a motion to dismiss, the complaint’s factual allegations must collectively 10 create a “strong inference” of scienter that is not outweighed by “nonculpable explanations for 11 the defendant’s conduct. Tellabs, Inc., 551 U.S. at 324 . The Supreme Court has characterized 12 “scienter” in a Section 10(b) claim as “a mental state embracing intent to deceive, manipulate, or 13 defraud.” Lorenzo, 587 U.S. at 76 (quotation omitted). The Ninth Circuit has added “deliberate 14 recklessness” to that list. In re Alphabet, 1 F.4th at 701 . Deliberate recklessness is “an extreme 15 departure from the standards of ordinary care” that “presents a danger of misleading buyers or 16 sellers that is either known to the defendant or is so obvious that the actor must have been 17 aware of it.” Schueneman v. Arena Pharm., Inc., 840 F.3d 698, 705 (9th Cir. 2016) (quotation omitted). 18 Here, Sieggreen meets the pleading threshold for the scienter element of his Rule 10b-5 19 claims against the defendants. When the allegations in the complaint are reviewed as a whole, 20 and with nonculpable explanations for the defendants’ conduct considered, there is a strong 21 inference of scienter. The allegations create a consistent theme of hollow transactions and 22 fraudulent reporting designed to save face with investors after a poor financial quarter. ECF No. 23 74 at ¶¶ 197–260. Because the allegations as a whole create a strong inference of scienter, 24 Sieggreen’s second amended complaint meets the pleading threshold for the scienter element of 25 his Rule 10b-5 claims. — 26 — — 1 — 2 SEC Rule 10(b) requires the deceptive act to be “in connection with the purchase or sale 3 of any security.” 15 U.S.C. 78j(b). This requirement concerns “the statute’s coverage rather than 4 causation.” Stoneridge, 552 U.S. at 160 . As for covered transactions, the statute only protects 5 securities “listed on an American stock exchange” that are purchased or sold “in the United 6 States.” Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 273 (2010). As for deceptive acts, the 7 statute broadly covers fraudulent acts and schemes that “coincide” with a securities transaction. 8 Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 85 (2006). 9 Here, Sieggreen meets the pleading threshold for the “in connection with a securities 10 transaction” element of his Rule 10b-5 claims against the defendants. The clearest way that 11 Sieggreen shows this connection is by incorporating the SEC complaint and describing the 12 proceedings. ECF No. 74 at ¶¶ 216–39; ECF No. 74-1. The SEC action, which was based on the 13 same events and allegations that Sieggreen sets forth in his complaint, sets forth the alleged 14 fraudulent misrepresentations that the defendants made or disseminated which coincided with 15 securities transactions. ECF No. 74 at ¶¶ 216–39; ECF No. 74-1. And the securities at issue are 16 listed on the NASDAQ exchange, which is an American stock exchange. Id. at ¶¶ 20, 24, 186. 17 Thus, Sieggreen pleads this element with the requisite specificity. — 18 — 19 Reliance is the “causal connection between the alleged fraud and the securities 20 transaction”—i.e., the defendant’s fraudulent act “played a substantial part in the plaintiff’s 21 investment decision.” Desai v. Deutsche Bank Sec. Ltd., 573 F.3d 931, 939 (9th Cir. 2009). A plaintiff is 22 said to have “relied” on the defendant’s fraudulent act if it “played a substantial part in the 23 plaintiff’s investment decision.” Id. Traditionally, plaintiffs show reliance by alleging that they 24 were “aware of a defendant’s misrepresentation and engaged in a transaction based on that 25 misrepresentation.” Goldman Sachs Grp., Inc. v. Ark. Tchr. Ret. Sys., 594 U.S. 113, 118 (2021). — 26 — 1 Alternatively, reliance may be presumed based on a breached duty to disclose or a fraud-on-the2 market theory. Stoneridge, 552 U.S. at 169 . 3 Here, Sieggreen alleges both presumptions, but explicitly devotes a part of the second 4 amended complaint to articulating why the fraud-on-the-market theory creates a presumption 5 of reliance in this case. See ECF No. ¶¶ 261–66. Sieggreen alleges that the defendants’ 6 misrepresentations artificially inflated Live’s share price, which reached a class period high of 7 $75.25 PPS on June 25, 2021. Id. at ¶ 261. He further alleges that the class relied upon the 8 integrity of the market price of Live’s securities and market information to buy the shares, and 9 that the integrity of the market price was damaged by the defendants’ fraud. Id. Specifically, 10 Sieggreen alleges that Live securities were traded on the NASDAQ; Live filed periodic public 11 reports with the SEC and NASDAQ; Live regularly communicated with public investors via 12 established market communication mechanisms; and Live was followed by securities analysts 13 who wrote and published reports about Live to the public. Id. at ¶ 263. I find that Sieggreen 14 alleges a fraud-on-the-market theory with enough particularity to create a presumption of 15 reliance that satisfies this element of his Rule 10b-5 claims against the defendants. — 16 — 17 A plaintiff must allege—but not necessarily prove—that he suffered an economic loss to 18 support a securities fraud action. See Stoneridge, 552 U.S. at 157 . Here, Sieggreen alleges that he 19 and the class suffered economic harm due to the defendants’ fraudulent actions and schemes. 20 ECF No. 74 at ¶ 194–95, 264, 277. Specifically, he alleges that the defendants’ fraud and material 21 misrepresentations caused economic harm to him and the class, which includes those who 22 purchased Live securities during the class period at artificially high prices. Id. Stated otherwise, 23 Sieggreen alleges that he and other investors lost money because of they purchased stock at 24 inflated values. These allegations as to the economic loss suffered by Seiggreen and the class 25 satisfies the economic loss element of his Rule 10b-5 claims against the defendants. — 26 — — 1 — 2 The Ninth Circuit requires the plaintiff in a private securities action to plead loss 3 causation with the particularity required of Rule 9(b). Or. Pub. Emps. Ret. Fund v. Apollo Grp. Inc., 774 4 F.3d 598, 605 (9th Cir. 2014). Loss causation “requires a plaintiff to show that a 5 misrepresentation that affected the integrity of the market price also caused a subsequent 6 economic loss.” Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 812 (2011). 7 Here, Sieggreen alleges loss causation with the requisite specificity to support his Rule 8 10b-5 claims against the defendants. See ECF No. 74 at ¶¶ 194–96. He does so by alleging that the 9 defendants’ fraudulent misrepresentations and schemes directly and proximately caused 10 economic harm to the class by artificially inflating Live securities. Id. at ¶¶ 194–95. Specifically, 11 Sieggreen alleges that the defendants concealed the truth about Live’s business, operations, and 12 prospects, which materialized on January 6, 2017, February 14, 2018, August 14, 2018, and August 13 3–10, 2021. Id. at ¶ 196. He alleges that this caused the price of Live’s stock to significantly 14 decline, “thereby damaging investors as the artificial inflation in Live’s stock price was 15 removed.” Id. at ¶ 196. I find that Sieggreen’s allegations as to loss causation meet the pleading 16 standard. And in turn, Sieggreen’s Rule 10b-5 claims against the defendants survives the motions 17 to dismiss. 18 B. Violation of Exchange Act § 20(a) against the individual defendants 19 A person who controls a primary violator of Rule 10b-5 may be vicariously liable for that 20 violation under Section 20(a) of the Exchange Act. 15 U.S.C. § 78t(a). The SEC defines “control” 21 as “the possession, direct or indirect, of the power to direct or cause the direction of the 22 management and policies of a person, whether through the ownership of voting securities, by 23 contract, or otherwise.” 17 C.F.R. § 230.405 . Glazer Cap. Mgmt., L.P. v. Forescout Techs., Inc., 63 F.4th 24 747, 765 (9th Cir. 2023). “Section 20(a) claims are derivative.” Id. Thus, vicarious liability of Rule 25 10b-5 requires the plaintiff to show that there was a primary violation of that Rule and that the 26 Section 20(a) defendant had “control” of the 10b-5 primary violator. See In re Alphabet, 1 F.4th at 702 ; see also Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 990 (9th Cir. 2009) (to state a claim 2|| for control-person liability under Section 20(a), plaintiffs must allege a “primary violation of 3}| federal securities law” and that “the defendant exercised actual power or control over the primary violator” (quoting No. 84 Emp.-Teamster Joint Council Pension Trust Fund v. Am. W. Holding 5]| Corp., 320 F.3d 920 , 945 (9th Cir. 2003))). 6 Here, Sieggreen sufficiently alleges that the individual defendants’ vicarious liability of 7|| the Rule 10b-5 claims. As discussed above, Sieggreen sufficiently alleges that the Live defendants 8} violated Rule 10b-5(b), and that the Live defendants and JanOne violated Rule 10b-5(a) and (c). 9|| Also, I find that Sieggreen sufficiently alleges control by the Isaac and Jonson, as they were Live’s respective CEO and CFO during the class period. See ECF No. 74 at 99 21-23. Isaac was also the 11|| CFO and 13.6% owner of JanOne during the class period. Id. at 9 24. Sieggreen alleges that Isaac and Johnson “possessed the power and authority to control the contents of [Live’s] reports to the SEC, press releases and presentation, to securities analysts, money and portfolio managers 14|| and institutional investors, i.e., the market. Id at 9 23. I find that Sieggreen’s allegations are 15]| sufficient to support the vicarious liability of Isaac and Johnson under Section 20(a). Conclusion 17 IT IS HEREBY ORDERED that defendant JanOne Inc.’s motion to dismiss [ECF No. 78] 18]| is denied. 19 IT IS FURTHER ORDERED that the Live defendants’ motion to dismiss [ECF No. 80] 20} is denied. / } 21 Dated: September 30, 2025 / / 33 [fey 34 / Upiited States District 25 ‘ — 26 — — 16 —