Case 8:24-cv-02900-DKC Document 106 Filed 11/17/25 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND DANNY WALKER, Individually and on Civil Action No. 8:24-cv-02900-DKC Behalf of All Others Similarly Situated, Hon. Deborah K. Chasanow Plaintiff, v. ILEARNINGENGINES, INC., et al., Defendants. DEFENDANT MARCUM LLP’S NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF MOTION TO DISMISS THE AMENDED CLASS ACTION COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS Defendant Marcum LLP (“Marcum”) respectfully submits the attached opinion, which was issued on November 10, 2025 in Hunt v. PricewaterhouseCoopers LLP (PwC), No. 24-3568, --- F.4 th ----, 2025 WL 3137726 (9th Cir. Nov. 10, 2025). The Ninth Circuit’s opinion constitutes the second circuit court opinion to confirm the applicability of the pleading requirements of Omnicare, Inc. v. Laborers Dist. Council Const. Indus. Pension Fund, 575 U.S. 175 (2015), to a Section 11 claim brought against an independent accountant. In affirming Hunt v. Bloom Energy Corp., 2021 WL 4461171 (N.D. Cal. Sept. 29, 2021) (on which Marcum relied in its briefing, see, e.g., Dkt. 80-1 (“MTD”) at 10–11; Dkt. 102 (“Reply”), at 2, 4, 6)), the Ninth Circuit held without qualification that plaintiffs asserting Section 11 claims against an auditor must “challenge[] [auditors] based on their audit opinion as Omnicare outlines.” Ex. A at 18. See also id. (quoting Omnicare, 575 U.S. at 186, 194) (noting that audit opinions give rise to Section 11 liability only when a plaintiff plausibly pleads “(1) ‘the speaker did not hold the belief she professed’; (2) ‘the supporting fact[s] [the speaker] supplied were untrue’; or (3) the opinion omits facts ‘whose omission makes the opinion statement at issue misleading.’”). The Hunt court also rejected 1 Case 8:24-cv-02900-DKC Document 106 Filed 11/17/25 Page 2 of 4 outright the notion that Section 11 applies strict liability to auditors: “Accountants do not, ‘by virtue of auditing a company’s financial statements, somehow make, own or adopt the assertions contained therein.’” Ex. A at 20 (quoting Deephaven Priv. Placement Trading, Ltd. v. Grant Thornton & Co., 454 F.3d 1168, 1174 (10th Cir. 2006)). In so holding, the Ninth Circuit joined the Second Circuit (Querub v. Hong Kong, 649 F. App’x 55 (2d Cir. 2016)), in accepting Marcum’s argument for dismissal. 1 Both courts have now squarely held that Marcum’s analysis of Section 11 is the correct one. See Ex. A at 18; see also Querub, 649 F. App’x at 58 (“Audit reports, labeled ‘opinions’ and involving considerable subjective judgment, are statements of opinion subject to the Omnicare standard for Section 11 claims.”). What’s more—the Hunt opinion also implicitly overrules the sole post-Omnicare authority Plaintiffs cite on the question of Omnicare’s applicability to Section 11 claims against an auditor. Compare Special Situations Fund III QP, L.P. v. Marrone Bio Innovations, Inc., 243 F. Supp. 3d 1109, 1118 (E.D. Cal. 2017) (declining to adopt the reasoning in Querub because it was (1) “without precedential value … not binding on this Court[, and it] did not consider the pertinent question here: whether an audit report included in a registration statement constitutes a certification of the audited financial statements.”) with Ex. A at 1, 24 (binding Ninth Circuit precedent; holding that “an accountant’s certification of financial statements is nothing more than an opinion. … Omnicare protects opinions from liability unless one of the three exceptions is met.”). See also Reply at 6–7 (discussing Marrone); Dkt. 91 (“Opp.”) at 13. The Hunt Court’s analysis is squarely on point for purposes of Marcum’s Motion to Dismiss. An auditor who does no more than issue an opinion on underlying financial statements 1 See, e.g., MTD at 11–12; Reply at 5–7. Lead Plaintiffs sought to minimize the impact of Querub as an unpublished opinion. Even if that distinction had merit, which Marcum disputes, see Reply at 6 n.3, Hunt is not subject to the same challenge. 2 Case 8:24-cv-02900-DKC Document 106 Filed 11/17/25 Page 3 of 4 is not strictly liable for material misrepresentations therein; a plaintiff who seeks to bring a claim against such an auditor must plausibly do so in accordance with Omnicare’s framework. See Ex. A at 18-19. As Plaintiffs tacitly conceded in their opposition, see Opp. at 3, they have not done so. Marcum’s motion to dismiss should be granted with prejudice. See MTD at 12–16; Reply at 2–5. Dated: November 17, 2025 Respectfully submitted, /s/ Shirlethia V. Franklin Shirlethia V. Franklin D. Md. Bar No. 28662 JONES DAY 51 Louisiana Avenue, N.W. Washington, D.C. 20001 T: 202.879.3892 E: sfranklin@jonesday.com Adrienne Ferraro Mueller Jacob J. Thackston Admitted Pro Hac Vice JONES DAY 901 Lakeside Ave. Cleveland, OH 44114 T: 216.586.3939 E: afmueller@jonesday.com jthackston@jonesday.com Samir Kaushik Admitted Pro Hac Vice JONES DAY 2727 North Harwood Street, Suite 500 Dallas, Texas 75201-1515 T: 214.220.3939 E: skaushik@jonesday.com Attorneys for Defendant Marcum LLP 3 Case 8:24-cv-02900-DKC Document 106 Filed 11/17/25 Page 4 of 4 CERTIFICATE OF SERVICE I hereby certify that on November 17, 2025, I electronically filed the foregoing Motion to Dismiss by using the CM/ECF system which will send a notice of electronic filing to all counsel or parties of record. /s/ Shirlethia V. Franklin Shirlethia V. Franklin 4