Decker

concurring, joined by BEEZER, CYNTHIA HOLCOMB HALL and RYMER, Circuit Judges, as to Parts I & III:

I agree with the majority that Rule 9(b) does not require plaintiffs to plead facts giving rise to an inference of scienter. I write separately, however, for two reasons: (1) to respond to the concerns of our sister circuits that have read an inference of scienter test into 9(b), and (2) to express my own concern that the majority’s discussion of the particularity requirement of 9(b) destabilizes settled Ninth Circuit law by effectively reading into the Rule a requirement that plaintiffs plead facts giving rise to an inference of falsity.

*1555 I

The First, Second and Seventh Circuits have all held that Rule 9(b) requires that plaintiffs in securities fraud cases plead a factual basis for allegations of fraudulent intent. See Greenstone v. Cambex Corp., 975 F.2d 22, 25 (1st Cir.1992) (“The courts have uniformly held inadequate a complaint’s general averment of the defendant’s ‘knowledge’ of material falsity, unless the complaint also sets forth specific facts that make it reasonable to believe that defendant knew that a statement was materially false or misleading.”) (emphasis…

A three-judge panel affirmed the district court’s dismissal of plaintiffs’ securities fraud class action against GlenFed, Inc. and various of its officers and directors. In re Glen-Fed, Inc. Sec. Litig., 11 F.3d 843 (9th Cir.1993). The panel dismissed plaintiffs’ claim under § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), as not meeting the requirements of Fed.R.Civ.P. 9(b). 1 The panel reasoned that “[although Rule 9(b) allows scienter to be pleaded generally, courts have required that the facts pled provide a basis for a strong inference of fraudulent intent.” 11 F.3d at 848 . As authority for this proposition, the panel cited two Second Circuit cases, O’Brien v. National Property Analysts Partners, 936 F.2d 674 , 676 (2d Cir.1991), and Ross v. A.H. Robins Co., 607 F.2d 545, 558 (2d Cir.1979), cert. denied, 446 U.S. 946 , 100 S.Ct. 2175 , 64 L.Ed.2d 802 (1980). We granted plaintiffs’ petition for rehearing en banc in order to determine whether the panel’s requirement of a “strong inference of fraudulent intent” is consistent with Fed.R.Civ.P. 9(b), whether the panel’s decision is consistent with circuit precedent, and whether we should embrace the Second…