FILED

NOT FOR PUBLICATION JUN 23 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

In re: APOLLO GROUP, INC. No. 08-16971

SECURITIES LITIGATION,

D.C. No. 2:04-cv-02147-JAT

POLICEMEN’S ANNUITY AND MEMORANDUM *

BENEFIT FUND OF CHICAGO,

Plaintiff - Appellant,

v.

APOLLO GROUP, INC. et al.,

Defendants - Appellees.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding

Argued and Submitted March 3, 2010 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. page 2

Before: KOZINSKI, Chief Judge, W. FLETCHER, Circuit Judge and GETTLEMAN,** District Judge.

The district court erred in granting Apollo judgment as a matter of law. The

jury could have reasonably found that the UBS reports following various

newspaper articles were “corrective disclosures” providing additional or more

authoritative fraud-related information that deflated the stock price. Cf. In re

Gilead Scis. Sec. Litig., 536 F.3d 1049, 1058 (9th Cir. 2008) (later disclosure

corrective when public initially “failed to appreciate [the] significance” of negative

information); Hanon v. Dataproducts Corp., 976 F.2d 497, 503 (9th Cir. 1992)

(what market understands depends on “intensity and credibility” of information).

Apollo is not entitled to a new trial. The district court did not abuse its

discretion by excluding Flynn’s potentially confusing deposition testimony, which

Apollo had already chosen not to use on cross-examination. See Fed. R. Evid. 403;

Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008). The district

court also properly instructed the jury. It made clear that damages could be

awarded only for fraud-related losses, and it was not required to instruct the jury on

a theory of liability the plaintiffs hadn’t presented.

** The Honorable Robert W. Gettleman, United States District Judge for the Northern District of Illinois, sitting by designation. page 3

Finally, there is no basis for remittitur. The jury could have reasonably

credited the expert who testified that the fraud revealed by multiple corrective

disclosures accounted for $5.55 of the drop in stock price. Damages are limited by

the extent of Apollo’s fraud, not by the subset of fraud the UBS reports alone

revealed. See In re Dauo Sys., Inc., 411 F.3d 1006, 1027 (9th Cir. 2005)

(“[Plaintiffs’] economic loss was the decline in their stock value that was the direct

result of Dauo’s misrepresentations.”).

We reverse and remand with instructions that the district court enter

judgment in accordance with the jury’s verdict.

REVERSED AND REMANDED WITH INSTRUCTIONS.