Indiana Law Journal

Document Type


Publication Date

Spring 2011

Publication Citation

86 Indiana Law Joural 595 (2011)


Voluntary public disclosure of soft information—corporate projections and predictions and other forward-looking statements—is now the norm, following a brief learning curve after the enactment of the Private Securities Litigation Reform Act’s safe harbor for forward-looking information in 1995. As a consequence, allegations of false forward-looking statements are also quite standard in today’s class action securities fraud pleading. This work addresses an emerging trend, spearheaded by the Seventh Circuit’s decision in Asher v. Baxter International, to introduce a subjective scienter or intent-like inquiry into consideration of the application of the PSLRA’s safe harbor. Numerous district courts have followed Asher’s lead, employing a variety of semantic maneuvers to circumvent the safe harbor’s straightforward, occasionally distasteful application. Bolstered by a 2009 opinion from the Fifth Circuit, this important minority view has created a circuit court split. This Article provides a definitive analysis of the Asher-inspired jurisprudential detour, concluding that it is supported neither by the statute and its legislative history, nor any sound policy argument. With this premise established, the Article then prescribes intellectually grounded ameliorative measures that can be taken by courts, which face increasingly imaginative and often appealing arguments for avoiding the prophylactic nature of the statutory safe harbor.