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CEO Bernard Ellis sent a memo to shareholders of his Internet-related services business some
four days before the expiration of a lock-up period during which these shareholders had agreed
not to sell their stock. In the memo, he urged shareholders not to sell their stock on the release
date because in the event of a massive sell-off "our stock could plummet." He also stated "I think
our share price will start to stabilize and then rise as our company's strong performance
continues. "Based on Ellis' "strong performance" statement, a major corporate shareholder did
not sell. The price of the stock fell from $40 a share to 29 cents a share over the subsequent nine-
month period. The shareholder sued Ellis for fraud, seeking $27 million in damages. Analyze the
italicized statement to see if it contains an actionable misrepresentation of fact and a basis of
fraud liability. [New Century Communications v. Ellis, 318 F.3d 1023 (11th Cir.)]

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  • 1. CEO Bernard Ellis sent a memo to shareholders of his Internet-related services business some four days before the expiration of a lock-up period during which these shareholders had agreed not to sell their stock. In the memo, he urged shareholders not to sell their stock on the release date because in the event of a massive sell-off "our stock could plummet." He also stated "I think our share price will start to stabilize and then rise as our company's strong performance continues. "Based on Ellis' "strong performance" statement, a major corporate shareholder did not sell. The price of the stock fell from $40 a share to 29 cents a share over the subsequent nine- month period. The shareholder sued Ellis for fraud, seeking $27 million in damages. Analyze the italicized statement to see if it contains an actionable misrepresentation of fact and a basis of fraud liability. [New Century Communications v. Ellis, 318 F.3d 1023 (11th Cir.)]