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Today, the Supreme Court issued a per curiam decision dismissing the petition in NVIDIA v. E. Ohman J:or Fonder AB as improvidently granted. This is more a decision deferred than a decision denied.
One of the questions presented related to complaints that incorporate expert reports in an effort to buttress the plaintiffs’ allegations of fraud. That question will be back before the Court, and the only question is when.
Plaintiffs’ counsel are rational. They will respond to today’s decision by incorporating paid expert reports in their complaints with greater frequency.
The lower courts will then have to develop norms for processing these expert reports. How will the courts discount the opinions offered in these report given that they are paid for? How will the courts address the fact that these opinions often conflate opinion and fact? How will the courts address the fact that the sources upon which these opinions rely are often not described with particularity?
Over time, the circuits will likely split as to these and other questions presented by securities fraud complaints that incorporate expert reports. And it is only a matter of time until a circuit split arises that presents a question that will draw the Court's attention and result in a clarifying opinion.
But until then, the decision to dismiss NVIDIA is clearly a win for plaintiffs and portends a period of litigation uncertainty over expert report pleading practice.
