UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT E. OHMAN J:OR FONDER AB; No. 21-15604 STICHTING PENSIOENFONDS PGB, Lead Plaintiffs, D.C. No. 4:18-cv- 07669-HSG Plaintiffs-Appellants, and OPINION IRON WORKERS LOCAL 580 JOINT FUNDS,

Plaintiff,

v. NVIDIA CORPORATION; JENSEN HUANG; COLETTE KRESS; JEFF FISHER,

Defendants-Appellees, and OAKLAND COUNTY EMPLOYEES' RETIREMENT SYSTEM; OAKLAND COUNTY VOLUNTARY EMPLOYEES' 2 E. OHMAN J:OR FONDER AB V. NVIDIA CORP.

BENEFIT ASSOCIATION TRUST; OAKLAND COUNTY EMPLOYEES' RETIREMENT SYSTEM TRUST,

Defendants.

Appeal from the United States District Court for the Northern District of California Haywood S. Gilliam, Jr., District Judge, Presiding

Argued and Submitted May 10, 2022 San Francisco, California

Filed August 25, 2023

Before: J. Clifford Wallace, William A. Fletcher, and Gabriel P. Sanchez, Circuit Judges.

Opinion by Judge W. Fletcher; Dissent by Judge Sanchez

SUMMARY *

Securities Fraud

The panel affirmed in part and reversed in part the district court’s dismissal of a securities fraud action brought * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. E. OHMAN J:OR FONDER AB V. NVIDIA CORP. 3

under §§ 10(b) and 20(a) of the Securities and Exchange Act of 1934 and Rule 10b-5 against NVIDIA Corp. and three of its officers. Plaintiffs alleged that NVIDIA, a producer of graphics processing units, knowingly or recklessly made materially misleading and false statements regarding the impact of cryptocurrency sales on NVIDIA’s financial performance in order to conceal the extent to which NVIDIA’s revenue growth depended on the notoriously volatile demand for cryptocurrency. Plaintiffs alleged that the three individual defendants had actual knowledge that increases in demand for NVIDIA’s Gaming-segment products were largely driven by crypto-related sales, that their public statements minimizing the impact of crypto-related sales on NVIDIA’s revenues were materially false or misleading, and that the statements were made knowingly or recklessly. The district court dismissed plaintiffs’ amended complaint for failure to sufficiently plead that defendants’ allegedly false or misleading statements were made knowingly or recklessly. In order to prevail on their claims under § 10(b) and Rule 10b-5, plaintiffs were required to show both that defendants’ statements were materially false or misleading, and that their statements were made knowingly or recklessly. The panel held that the amended complaint sufficiently alleged that defendants Jensen Huang and Colette Kress made materially false or misleading statements, but the amended complaint did not sufficiently so allege as to defendant Jeff Fisher. The panel held that the amended complaint sufficiently alleged that Huang, but not Kress, made the statements knowingly or recklessly, in violation of § 10(b) and Rule 10b-5. Section 20(a) assigns joint and several liability for any person who controls any person liable under 4 E. OHMAN J:OR FONDER AB V. NVIDIA CORP.

§ 10(b). Because the panel held that the amended complaint did not sufficiently plead a cause of action under § 10(b) and Rule 10b-5 against defendants Kress and Fisher, the only alleged primary violation was that committed by NVIDIA through defendant Huang. The panel affirmed the district court’s dismissal of plaintiffs’ § 20(a) claims against Kress and Fisher, vacated the dismissal of the § 20(a) claims as to Huang, and remanded for further proceedings as to those claims. Dissenting, Judge Sanchez wrote that, under the pleading