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IN RE MUTUAL FUNDS INVESTMENT LITIGATION

No. 07-1607.

566 F.3d 111 (2009)

In re MUTUAL FUNDS INVESTMENT LITIGATION. First Derivative Traders, on behalf of itself and all others similarly situated, Plaintiff-Appellant, and Craig Wiggins, individually and on behalf of all others similarly situated, Plaintiff, v. Janus Capital Group, Incorporated, f/k/a Stilwell Securities Laws Financial, Incorporated; Janus Capital Management, Defendants-Appellees, and Mark B. Whiston; Loren M. Starr; Gregory A. Frost, Defendants.

United States Court of Appeals, Fourth Circuit.

Decided: May 7, 2009.

Attorney(s) appearing for the Case

ARGUED: Ira M. Press, Kirby McInerney, L.L.P., New York, New York, for Appellant. Mark Andrew Perry, Gibson, Dunn & Crutcher, L.L.P., Washington, D.C., for Appellees. ON BRIEF: Amanda M. Rose, Gibson, Dunn & Crutcher, L.L.P., Washington, D.C., for Appellees.

Reversed and remanded by published opinion. Judge MICHAEL wrote the opinion, in which Judge DUNCAN concurred. Judge SHEDD wrote a separate concurring opinion.

OPINION

MICHAEL, Circuit Judge:

Plaintiff First Derivative Traders (First Derivative) appeals the Rule 12(b)(6) dismissal of its putative class action complaint, which alleges violations of § 10(b) and § 20(a) of the Securities Exchange Act of 1934(Act) and Securities and Exchange Commission (SEC) Rule 10b-5. First Derivative, individually and on behalf of certain shareholders of Janus Capital Group Inc. (JCG), filed the operative complaint against...

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