Binder

ORDER

The majority opinion and dissent, reported at 172 F.3d 649 (9th Cir.1999),- is hereby withdrawn and superseded by the attached majority opinion and dissent. *1062 With the filing of these opinions, Judges Skopil and Farris vote to deny the petition for rehearing; Judge Reinhardt votes to grant rehearing. Accordingly, the petition for rehearing is DENIED.

The new majority opinion and dissent have been circulated to all active judges of the court, along with appellants’ petition for rehearing en banc, amicus curiae brief in support of rehearing en banc, and appel-lees’ briefs in opposition to rehearing en banc. No active judge has called for a vote en banc. Accordingly, the petition for rehearing en banc is DENIED.

OPINION

Albert Binder brought this action against Aqua Vie Beverage Corporation (AVBC), various AVBC officers and directors, and the accounting firm of De-loitte & Touche (Deloitte), asserting, on his own behalf and as a representative for a class of investors, that defendants violated federal and state securities laws. The district court decertified the class and declined to exercise supplemental jurisdiction over the related state law class claims. The court…

dissenting in part:

Because the plaintiffs are entitled to a presumption of reliance under the doctrine of Affiliated Ute Citizens v. United States, 406 U.S. 128, 153-54 , 92 S.Ct. 1456 , 31 L.Ed.2d 741 (1972), I would reverse the district court’s decision to decertify the class of investors represented by Binder. I therefore respectfully dissent.

*1068 In today’s decision, the,majority decides that the Affiliated Ute presumption does, not apply .to cases involving both material misrepresentations and material omissions, “unless the case can be characterized as one. that primarily alleges omissions.” (Opinion at 1064) In so holding, the majority resolves a question, that we have previously, and explicitly, reserved: “whether Affiliated Ute Citizens applies equally to misrepresentations.” Kramas v. Security Gas & Off Inc., 672 F.2d 766 , 769 n. 2 (9th Cir.1982). To reach this conclusion, the majority simply adopts the procedure followed by two other circuits. See Finkel v. Docutel/Olivetti Corp., 817 F.2d 356, 359 (5th Cir.1987); Cavalier Carpets, Inc. v. Caylor, 746 F.2d 749, 756 (11th Cir.1984). Those circuits have determined that, in mixed cases, it is necessary to…