In Matrixx Initiatives, Inc. v. Siracusano, ____ U.S. ____, (3/22/2011, No. 09‑1156), the Supreme Court addressed the question of whether the materiality of scientific data hinges on its statistical significance. The Court employed the "total mix" standard for materiality regarding an omitted fact which requires a determination of whether there is a “substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having altered the ‘total mix’ of information available.”
Nevertheless, in United States v. Sayre, 2011 U.S. App. LEXIS 7027, 1‑5 (4/4/2011, 9th Cir. No. 08‑50519) [NOTICE: This opinion is UNPUBLISHED.] the Ninth Circuit held that the district court “did not abuse its discretion in declining to give Sayre's proposed ‘total mix’ materiality instruction [citing United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010)].” In Sayre the district court instructed the jury that "an act, statement or omission is material if there is a substantial likelihood a reasonable investor would have considered it important in deciding whether to buy, sell or hold the security." The Ninth Circuit held that this definition “is an accurate statement of the law and is supported by both Supreme Court and Ninth Circuit case law. [Citing Basic Inc. v. Levinson, 485 U.S. 224, 108 S. Ct. 978, 99 L. Ed. 2d 194 (1988); TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 96 S. Ct. 2126, 48 L. Ed. 2d 757 (1976); Zweig v. Hearst Corp., 594 F.2d 1261 (9th Cir. 1979)].” In so holding the Court concluded that the "total mix" definition is an alternative means of expressing the materiality concept.
[*Note: The current Ninth Circuit model jury instructions resemble the Zweig definition. Ninth Circuit Manual of Model Criminal Instructions (2010) at § 9.9 ("iTo be material, the fact [omitted] must have a natural tendency to influence, or be capable of influencing, the decision of purchasing or selling securities.").]
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