NOT RECOMMENDED FOR PUBLICATION
`File Name: 22a0363n.06
`
`No. 21-3863
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`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
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`
`
`
`RETIREMENT
`COUNTY
`PLYMOUTH
`ASSOCIATION, Individually and on Behalf of All
`Others Similarly Situated,
`
`Plaintiff-Appellant,
`
`
`
`v.
`
`INC.; SCOTT DRAKE; AJAY
`VIEWRAY,
`BANSAL; JAMES F. DEMPSEY; CHRIS A.
`RAANES; SHAHRIAR MATIN,
`
`
`
`Defendants-Appellees.
`
`)
`)
`)
`)
`)
`)
`)
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`)
`
`ON APPEAL FROM THE
`UNITED STATES DISTRICT
`COURT
`FOR
`THE
`NORTHERN DISTRICT OF
`OHIO
`
`
`
`Before: NORRIS, SUHRHEINRICH, and CLAY, Circuit Judges.
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`
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`SUHRHEINRICH, Circuit Judge. Plymouth County Retirement Association appeals the
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`dismissal of its complaint in this securities-fraud action against ViewRay, Inc., and some of its
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`officers. Because Plymouth failed to meet its hefty pleading burden under the Private Securities
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`Litigation Reform Act and Federal Rule of Civil Procedure 9(b), we affirm.
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`I.
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`ViewRay’s Business. ViewRay designs, manufactures, and markets the Linac MRIdian, a
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`machine that images and treats cancer simultaneously using MRI-guided radiation. The MRIdian
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`can distinguish between types of soft tissue and thus deliver radiation more accurately, reducing
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`collateral damage to healthy tissue. Nearly all of ViewRay’s revenue comes from sales of the
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`MRIdian.
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`No. 21-3863, Plymouth Cnty. Ret. Ass’n v. ViewRay, Inc., et al.
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`Each MRIdian system costs about $6 million, a cost that’s substantially more than
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`radiation-therapy systems lacking the MRI feature, but about the same as those with it. That sticker
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`price comes with other costs too. Typically, a customer needs between nine and fifteen months
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`after ordering an MRIdian to construct and prepare the room in which it’ll be installed—called a
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`“vault” in industry jargon. R. 55 at 1264–65 ¶ 36. Installation of the machine in the vault usually
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`takes another 60 to 90 days. All told, the time from contract-signing to installation is usually
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`between 12 and 18 months. However, due to the complicated nature of this sale, ViewRay is often
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`left to “mov[e] at [its] customers’ pace”—which could extend the process even further. Id. at 1293
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`¶ 115.
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`ViewRay went public in July 2015. Since then, the company has largely operated at a loss
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`and has raised capital to fund its operations. ViewRay held two public offerings of stock during
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`the alleged class period, raising about $173 million in August 2018 and about $150 million in
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`December 2019.
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`ViewRay’s Marketing and Backlog. ViewRay sells the MRIdian in the United States and
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`abroad. In the United States, ViewRay sells through a direct sales force. Abroad, ViewRay
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`primarily uses third-party distributors supported by ViewRay employees. To estimate future
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`revenue from MRIdian orders, ViewRay uses a “backlog” to track “all orders for which ViewRay
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`has not recognized revenue and that ViewRay considers ‘valid.’” Id. at 1254 ¶ 3.
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`Plymouth’s theories of fraud center on this backlog. Simply stated, Plymouth claims that
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`ViewRay misled investors by failing to follow the publicly disclosed criteria for determining which
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`orders to include in the backlog, which thereby inflated the backlog with orders that didn’t belong;
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`because ViewRay did not disclose to investors that it failed to follow the backlog criteria, those
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`omissions were misleading given ViewRay’s other disclosures about the backlog.
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`No. 21-3863, Plymouth Cnty. Ret. Ass’n v. ViewRay, Inc., et al.
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`Parties and Procedural History. The original complaint was filed by a different plaintiff
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`on behalf of a putative class of purchasers of ViewRay’s common stock between March and
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`August 2019. As a member of the proposed class, Plymouth moved for (and was granted)
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`appointment as lead plaintiff; it then filed its first amended complaint on behalf of a differently
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`defined class (those who purchased ViewRay stock between May 10, 2018, and January 13, 2020).
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`In addition to suing ViewRay, Plymouth named several ViewRay officers (current and former) as
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`individual defendants; their identities are irrelevant for our purposes.
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`ViewRay moved to dismiss the first amended complaint for failure to state a claim; after
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`that motion was fully briefed, Plymouth moved for leave to amend the complaint again, which the
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`district court granted in a text-only order, and the second amended complaint (the “operative
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`complaint”) was docketed.
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`ViewRay moved to dismiss the operative complaint for failure to state a claim, arguing that
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`Plymouth failed to meet the heightened pleading standards for securities fraud under the Private
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`Securities Litigation Reform Act (“PSLRA”), Federal Rule of Civil Procedure 9(b), or both. The
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`district court agreed, granting the motion in a thorough and well-reasoned opinion and order. See
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`generally Plymouth Cnty. Ret. Ass’n v. ViewRay, Inc., 556 F. Supp. 3d 772, 791, 801–02 (N.D.
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`Ohio 2021). Plymouth now appeals.
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`II.
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`We review de novo an order granting a Rule 12(b)(6) motion to dismiss. Dougherty v.
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`Esperion Therapeutics, Inc., 905 F.3d 971, 978 (6th Cir. 2018). We construe the complaint in the
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`plaintiff’s favor and accept its well-pleaded factual allegations as true. City of Taylor Gen. Emps.
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`Ret. Sys. v. Astec Indus., Inc., 29 F.4th 802, 809 (6th Cir. 2022). Although our review is normally
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`limited to the complaint, we may also consider any document attached to the defendant’s motion
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`-3-
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`No. 21-3863, Plymouth Cnty. Ret. Ass’n v. ViewRay, Inc., et al.
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`to dismiss if it “is referred to in the complaint and is central to the plaintiff’s claim.” Greenberg
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`v. Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir. 1999) (citation omitted); see also In re Omnicare,
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`Inc. Sec. Litig., 769 F.3d 455, 466–67 (6th Cir. 2014).
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`To avoid dismissal, any complaint generally must “contain sufficient factual matter,
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`accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Securities-
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`fraud complaints like Plymouth’s, however, must clear a higher bar. The PSLRA stands as an
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`“elephant-sized boulder” to such suits and its “requirements are not easily satisfied.” Omnicare,
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`769 F.3d at 461. Along with Federal Rule of Civil Procedure 9(b), the PSLRA requires certain
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`elements of these claims (including both elements considered here) to be pleaded with
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`particularity. Astec Indus., 29 F.4th at 810, 812. At bottom, the plaintiff must “allege the ‘who,
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`what, where, when, and why’ of the fraudulent statements.” Id. at 810 (citation omitted).
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`III.
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`
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`Count One of the operative complaint alleges that ViewRay violated Section 10(b) of the
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`Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and SEC Rule 10b-5, 17 C.F.R. § 240.10b-
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`5. Section 10(b) makes it unlawful for anyone to “use or employ, in connection with the purchase
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`or sale of any security . . . any manipulative or deceptive device.” 15 U.S.C. § 78j(b).1
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`
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`Section 10(b) claims have six elements, but ViewRay challenges Plymouth’s allegations
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`as to only three of them—arguing Plymouth failed to adequately allege that (1) ViewRay made “a
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`material misrepresentation or omission” (what we call the “falsity” element) in connection with
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`the sale of a security, (2) ViewRay made that statement or omission with the requisite scienter,
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`1 SEC Rule 10b-5 implements Section 10(b), and its “coverage” is “coextensive with” Section 10(b). SEC
`v. Zanford, 535 U.S. 813, 816 n.1 (2002).
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`No. 21-3863, Plymouth Cnty. Ret. Ass’n v. ViewRay, Inc., et al.
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`and (3) the alleged fraud caused Plymouth’s loss. See Matrixx Initiatives, Inc. v. Siracusano, 563
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`U.S. 27, 37–38 (2011) (citation omitted). Falsity and scienter must be pleaded with particularity,
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`Astec Indus., 29 F.4th at 810, 812, while loss causation need be pleaded only plausibly, Ohio Pub.
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`Emps. Ret. Sys. v. Fed. Home Loan Mortg. Corp., 830 F.3d 376, 384 (6th Cir. 2016).
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`
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`The district court reached only the falsity and scienter elements, finding that Plymouth
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`failed to adequately allege either. See Plymouth, 556 F. Supp. 3d at 786–801. Although ViewRay
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`renews its arguments as to all three elements, we focus on falsity, since (as explained below)
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`Plymouth’s appeal revolves almost entirely around that element. Because we conclude as such,
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`we need not separately analyze scienter. See Astec Indus., 29 F.4th at 812 (explaining that scienter
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`must be alleged for each false or misleading statement). That said, the district court’s scienter
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`analysis was sound and provides an alternative basis for affirming the decision below.
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`A.
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`
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`Plymouth claims that ViewRay falsely inflated the backlog with orders that did not meet
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`its publicly disclosed backlog criteria. The district court concluded that Plymouth failed to plead
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`enough; it reasoned that “ViewRay . . . sufficiently identified discretion and judgment as factors”
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`in determining which orders to include in the backlog. Plymouth, 556 F. Supp. 3d at 787; see also
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`id. (observing that ViewRay “cautioned [investors] that determining when or how much of the
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`backlog would turn into revenue presented a difficult exercise”). Based largely on this finding of
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`subjectiveness, the court held that Plymouth insufficiently alleged (1) that any backlogged order
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`identified by Plymouth violated the backlog criteria, id. at 787–88 (discussing “sham orders,” stale
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`orders, and allegedly invalid distributor orders), (2) that ViewRay’s statements regarding the
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`No. 21-3863, Plymouth Cnty. Ret. Ass’n v. ViewRay, Inc., et al.
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`backlog’s value were false, id. at 788–90, or (3) that ViewRay misled investors regarding its
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`revenue projections, id. at 790–91.2
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`We agree with each of those conclusions, and we confine our analysis to one narrow issue.
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`On appeal, Plymouth rests each falsity theory on a single premise: That ViewRay’s backlog
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`criteria objectively require every backlogged order to have a contract signed by an end-customer,
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`except where the end-customer was not required to pay a deposit. It argues that ViewRay violated
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`this requirement for several orders in the backlog, then failed to disclose that fact, thereby
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`misleading investors. And, because this “firm, objective requirement” is not subject to ViewRay’s
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`judgment and discretion, Plymouth argues that the backlog criteria’s references to subjective
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`factors are beside the point. See Pl. Opening Br., pp. 19, 22.
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`Although we agree with the district court that ViewRay’s backlog methodology turns
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`largely on its discretion and subjective judgment, the narrow question we consider is whether the
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`criteria also objectively require contracts signed by end-customers (except where a deposit is not
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`required), as Plymouth argues.3 We answer that question in the negative, apply it to the orders
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`identified in the operative complaint, and then otherwise reject Plymouth’s falsity theories for the
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`reasons stated by the district court.
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`2 Plymouth does not challenge this third conclusion on appeal, so we do not address it. Nor does Plymouth
`challenge the legal standard used by the district court; it instead takes issue with only the court’s conclusions.
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`3 Plymouth raised a slightly different version of this argument below, arguing that a contract is always
`required (irrespective of the deposit requirement), so certain third-party distributor orders lacking end-customer
`contracts violated the backlog criteria. The district court rejected this claim, concluding that the criteria do not require
`contracts signed by end-customers to include distributor orders in the backlog. Plymouth, 556 F. Supp. 3d at 788. We
`agree with that conclusion too, as explained below. We also note that, although Plymouth’s argument here is slightly
`different from the one made below, we need not resolve whether it was forfeited, since we conclude it fails on the
`merits. See, e.g., Rui He v. Rom, 751 F. App’x 664, 670 (6th Cir. 2018).
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`No. 21-3863, Plymouth Cnty. Ret. Ass’n v. ViewRay, Inc., et al.
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`The Backlog Criteria’s Objective Requirements. We interpret the backlog criteria, and
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`discern their requirements, as a reasonable investor would. See Basic Inc. v. Levinson, 485 U.S.
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`224, 232 (1988). In its first-quarter 2018 Form 10-Q, ViewRay provided those criteria:
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`The determination of backlog includes objective and subjective judgment about the
`likelihood of an order contract becoming revenue. . . . Among other criteria we use
`to determine whether a transaction to be in backlog, we must possess both an
`outstanding and effective written agreement for the delivery of a MRIdian signed
`by a customer with a minimum customer deposit or a letter of credit requirement,
`except when the sale is to a customer where a deposit is not deemed necessary or
`customary (i.e. sale to a government entity, a large hospital, group of hospitals or
`cancer care group that has sufficient credit, sales via tender awards, or indirect
`channel sales that have signed contracts with end-customers).
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`R. 60-9 at 1594–95 (emphases added).
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`
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`The parties share plenty of common ground as to what this disclosure requires. They agree
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`that it identifies two objective criteria: (1) a “written agreement for the delivery of a[n] MRIdian”
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`and (2) a “customer deposit or a letter of credit.” Id. at 1595. They also agree that ViewRay “must
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`possess both” of those to include an order in the backlog, “except when the sale is to a customer”
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`who is not required to pay a deposit. Id. And they agree that a deposit is not required for “indirect
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`channel [(i.e., distributor)] sales that have signed contracts with end-customers,” among other
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`types of sales. Id.
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`Plymouth and ViewRay part ways, however, as to whether certain orders may be
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`backlogged if they lack contracts signed by end-customers. And that question turns on whether
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`the “except when” clause exempts both the written-contract and deposit requirements, or only the
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`deposit requirement, a point on which the parties also differ. Plymouth argues the except-when
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`clause applies to both; an order that doesn’t require a deposit could be backlogged even if it also
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`lacks a written contract—unless it is “an indirect channel sale[]” (i.e., a distributor sale), in which
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`case the distributor must always have a contract signed by an “end-customer[].” Pl. Opening Br.,
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`No. 21-3863, Plymouth Cnty. Ret. Ass’n v. ViewRay, Inc., et al.
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`p. 19 (citation omitted). ViewRay takes the opposite position, arguing that the except-when clause
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`exempts only the deposit requirement; a distributor order may be backlogged even if there is no
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`end-customer contract, so long as (presumably) the order comes with a deposit.4 Defs. Br., p. 25;
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`see also id., p. 29 (“[I]f a distributor placed an order and provided a down payment, that order
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`would not violate ViewRay’s backlog criteria.”).
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`ViewRay has the better reading of the criteria. Under the last-antecedent rule, “a limiting
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`clause or phrase” (here, the phrase “except when the sale is to a customer where a deposit is not
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`deemed necessary or customary”) “should ordinarily be read as modifying only the noun or phrase
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`that it immediately follows” (here, the phrase “signed by a customer with a minimum customer
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`deposit or letter of credit requirement”). Barnhart v. Thomas, 540 U.S. 20, 26 (2003). Although
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`this rule “is not an absolute and can assuredly be overcome by other indicia of meaning,” no such
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`indicia exist here. Id. In fact, two indicia (among others) cut against Plymouth’s reading.
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`First, Plymouth’s reading would allow for the backlogging of orders supported by only
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`oral agreements for MRIdians, whenever they are ordered by customers not required to pay
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`deposits (e.g., government entities, large hospitals, cancer-care groups with sufficient credit). That
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`would likely surprise any reasonable investor, whom we doubt expects such immense
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`transactions—a single MRIdian machine costs millions of dollars—to be done on a handshake (or
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`less), without even a deposit to show for it. And it would make even less sense given Plymouth’s
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`rationale for its reading: that orders with written contracts are more likely to result in revenue than
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`4 ViewRay stops just short of conceding that deposits are required for these types of distributor orders (those
`lacking end-customer contracts). See Defs. Br., p. 27 (“When evaluating whether to maintain orders in backlog,
`ViewRay will consider—among other factors—whether there is a signed agreement with a ‘customer’ and a deposit
`(if required).”). But this is the logical consequence of its reading; if deposits are generally required, and the except-
`when clause exempts only the deposit requirement, then a deposit is required whenever a condition triggering the
`clause is missing—like with distributor orders lacking contracts with end-customers. We therefore assume as much.
`At any rate, this matters little because (as discussed below) Plymouth failed to allege that any distributor order lacking
`an end-customer contract also lacked a deposit.
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`No. 21-3863, Plymouth Cnty. Ret. Ass’n v. ViewRay, Inc., et al.
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`orders without written contracts. Put differently, the rationale for Plymouth’s reading is squarely
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`at odds with the consequences that would follow from it.
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`Second, Plymouth’s reading would turn some of ViewRay’s other disclosures into
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`meaningless surplusage. For example, ViewRay’s 2018 Form 10-K annual report disclosed that,
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`when “decid[ing] whether to remove or add back an order from or to our backlog,” ViewRay
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`“evaluate[s] the following criteria: changes in customer or distributor plans or financial
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`conditions; the customer’s or distributor’s continued intent and ability to fulfill the order
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`contract; . . . and other reasons for potential cancellation of order contracts.” R. 60-20 at 1711
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`(emphases added). If orders from distributors lacking end-customers could not be backlogged,
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`ViewRay would not need to disclose how changes in distributors’ plans could impact backlog—
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`ViewRay could simply say that the orders in backlog turn only on the end-customers’ plans.
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`Accepting Plymouth’s reading, however, would nullify these specific references to distributors’
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`plans.
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`Plymouth’s counterarguments fall short. It primarily argues that the criteria’s reference to
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`distributor “sales that have signed contracts with end-customers” requires signed contracts with
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`end-customers before distributor orders may be backlogged. R. 60-9 at 1595. But this provision
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`cannot be fairly read to mandate that—it merely contemplates the possibility of distributors having
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`contracts with end-customers for some orders. And, when that’s the case, the provision states only
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`that such orders are of the type (like orders from government entities or large hospitals) that do not
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`require deposits. Critically, however, that in no way forecloses the counterfactual—a distributor
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`order lacking a contract with an end-customer, which may be backlogged if paired with a deposit.
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`Plymouth responds that, even in such cases, the backlog criteria still require a “written
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`agreement . . . with a customer”—the backlog’s first objective criterion. See Pl. Reply Br., pp. 4,
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`No. 21-3863, Plymouth Cnty. Ret. Ass’n v. ViewRay, Inc., et al.
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`5–6 (citation omitted). True, but Plymouth fails to persuade us why this reference to customer
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`must be read to mean end-customer. ViewRay argues that “customer” refers to either end-
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`customers or distributors, and we see no better reading than that. Most importantly, that the
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`backlog criteria differentiate in the same breath between “customers” and “end-customers,” see
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`R. 60-9 at 1595, is strong support for this dual interpretation: If ViewRay meant that “written
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`agreement . . . with a customer” requires contracts from end-customers, ViewRay would have said
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`so—as it said just a few words later in the parenthetical describing which orders do not require
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`deposits, see id.
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`Further, context—in particular, how ViewRay recognizes revenue for some distributor
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`orders—reinforces this dual interpretation of customer. When ViewRay sells an MRIdian directly
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`to an end-customer (not through a distributor), ViewRay itself typically installs the machine, then
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`recognizes revenue after installation. For “[c]ertain customer contracts with distributors,”
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`however, “the distributors typically perform the installation.” R. 60-20 at 1726. And, for those
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`orders, ViewRay recognizes revenue “when the entire system is delivered,” not installed. Id. Put
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`differently, ViewRay hands off the machine to the distributor (who is then in charge of
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`installation), at which point ViewRay considers the deal done and recognizes revenue. That makes
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`the distributor practically identical to a customer. This is further underscored by Plymouth’s own
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`allegations, one of which asserts that a Chinese distributor accepted and warehoused several
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`machines, intending to “on-sell” them to end-customers. R. 55 at 1275 ¶ 61. That distributor,
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`though not an end-customer, is effectively a customer—especially if ViewRay recognized revenue
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`for these orders upon delivery (and Plymouth alleges no facts suggesting otherwise).
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`In sum, the backlog criteria do not objectively require that every backlogged order (except
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`those not requiring deposits) be supported by contracts with end-customers. Rather, to include an
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`No. 21-3863, Plymouth Cnty. Ret. Ass’n v. ViewRay, Inc., et al.
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`order in the backlog, the criteria generally require ViewRay to possess (1) a written agreement
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`signed by a customer (which could be either an end-customer or a distributor) and (2) a deposit,
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`unless the sale is to a customer who is not required to pay a deposit; and customers not required to
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`pay deposits include (among others) distributors with contracts signed by end-customers.5
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`Therefore, when a distributor orders a machine based on a contract signed by an end-customer, the
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`order may be backlogged without a deposit. On the flipside (when a distributor orders a machine
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`but lacks a contract with an end-customer), the order may still be backlogged if it comes with a
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`deposit and the distributor signs a contract with ViewRay.
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`No Order Violated the Backlog’s Objective Criteria. Having nailed down the backlog’s
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`objective criteria, we turn to Plymouth’s allegations that ViewRay included invalid orders in the
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`backlog; according to Plymouth, those invalid orders inflated the value of the backlog, misleading
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`investors. Plymouth’s problem, however, is that it failed to allege—let alone with particularity—
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`facts suggesting that any such order was “invalid” under the backlog criteria. See Astec Indus., 29
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`F.4th at 810 (“[W]hen examining allegedly fraudulent statements, we ask: Who said the statement?
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`What is the statement? Where did they say it? When did they say it? Why is it misleading? . . . If
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`the complaint does not answer all of these questions, it fails to sufficiently plead securities fraud.”).
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`Start with Plymouth’s allegations regarding distributor orders. Although each order
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`allegedly lacked contracts signed by end-customers, Plymouth failed to allege that any order also
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`lacked a deposit—the other path to including a distributor order in the backlog. And no order was
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`alleged to lack a contract between the distributors and ViewRay. This is fatal: Plymouth failed to
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`plead any facts showing that these distributor orders violated the backlog’s criteria.
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`5 Again, we assume that these are truly objective and independent requirements—separate from ViewRay’s
`subjective judgment—in the way that Plymouth claims. We can assume as such because, as discussed next, Plymouth
`has failed to plead sufficient facts showing that any order violated these objective requirements.
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`No. 21-3863, Plymouth Cnty. Ret. Ass’n v. ViewRay, Inc., et al.
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`Plymouth’s allegations regarding direct (not distributor) orders fare no better, but for
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`different reasons. Plymouth claims that one university “was not moving forward with the
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`installation of the MRIdian system, despite a signed contract in place.” R. 55 at 1274 ¶ 58.
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`Similarly, Plymouth alleges that a different “university hospital . . . was unclear as to when it
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`would proceed with” the second of two orders, after the first order was installed. Id. at 1275 ¶ 60.
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`The operative complaint fails to allege, however, that these orders could not be cancelled per the
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`terms of their contracts, which was a risk that ViewRay forthrightly disclosed. R. 60-9 at 1594
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`(“Orders may be revised or cancelled according to their terms or upon mutual agreement between
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`the parties.”). Moreover, Plymouth stops short of alleging that these orders would never move
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`forward—as opposed to being temporarily stalled in the morass of a complicated sales process—
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`and, even if we inferred otherwise, Plymouth does not allege that the orders remained in the
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`backlog after ViewRay knew they would not move forward.
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`The last allegation claims that a different university did not pay a deposit or paid “a deposit
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`that was so small that it was not an impediment to the customer walking away from the order.”
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`R. 55 at 1274–75 ¶ 59. But Plymouth does not allege any facts suggesting that this university was
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`required to pay a deposit in the first place. And that seems doubtful, at any rate, because
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`“government entit[ies]” and “large hospital[s]” need not pay deposits under the backlog criteria,
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`R. 60-9 at 1595—two boxes in which a university hospital (especially a public university hospital)
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`could comfortably fit.
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`In short, for those reasons and the additional reasons provided by the district court,
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`Plymouth failed to plead with particularity any theory of falsity based on the backlog.
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`No. 21-3863, Plymouth Cnty. Ret. Ass’n v. ViewRay, Inc., et al.
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`B.
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`Plymouth’s scienter allegations rise and fall with its falsity theories—since the PSLRA
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`requires plaintiffs to, “‘with respect to each act or omission alleged[,] . . . state with particularity
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`facts giving rise to a strong inference that the defendant acted with the required state of mind’ in
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`violating the securities laws.” Astec Indus., 29 F.4th at 812 (first emphasis added) (quoting
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`15 U.S.C. § 78u-4(b)(2)(A)). Plymouth failed to allege any material misrepresentation or
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`omission, so we need not analyze scienter. Nonetheless, the district court conducted a scienter
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`analysis, after apparently assuming for argument’s sake that Plymouth adequately alleged falsity.
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`Plymouth, 556 F. Supp. 3d at 791–801. Because we find no error in the district court’s scienter
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`analysis, we affirm alternatively on that basis. We do so for the reasons stated in the district court’s
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`thorough opinion.
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`IV.
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`Finally, Count Two of the operative complaint alleged control-person claims, under
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`Section 20(a) of the Securities Exchange Act, against ViewRay’s officers and directors. See
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`generally 15 U.S.C. § 78t(a). Control-person claims are viable only if the plaintiff first adequately
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`pleads a “primary violation of the securities laws” (here, Section 10(b) and SEC Rule 10b-5).
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`Doshi v. Gen. Cable Corp., 823 F.3d 1032, 1045 (6th Cir. 2016). Because Plymouth failed to do
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`so, we likewise affirm the dismissal of these claims.
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`
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`We affirm the judgment of the district court.
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`V.
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`-13-
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