Abdo

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 6 JOHN E. ABDO, et al., Case No. 17-cv-00851-TSH

Plaintiffs,

ORDER RE MOTION IN LIMINE

v. CONCERNING ADVICE OF COUNSEL

EVIDENCE

MICHAEL FITZSIMMONS, et al., Re: Dkt. No. 331 Defendants.

12 In securities fraud cases, the advice of counsel defense can cause confusion. Everybody calls it a defense, and indeed the Defendants in this case have pleaded it as a defense (ECF No. 85, 41st aff. def. (Defendants Power, Goettner, Borcher, Del, Yi, Peters and Badran), ECF No. 86, 39th aff. def. (Defendant Fitzsimmons)), but it’s not really a defense, or at least it doesn’t have to be a formal defense. It can be a shorthand for saying that if certain things are shown, scienter (an element of the claim) has been negated. “‘[A]dvice of counsel is not regarded as a separate and distinct defense but rather as a circumstance indicating good faith which the trier of fact is entitled to consider on the issue of fraudulent intent.’” United States v.…