Full opinion text
ORDER PRATT, Chief Judge. Before the Court is Defendants’ Motion to Dismiss Amended Class Action Complaint (Clerk’s No. 17), pursuant to Federal Rule of Civil Procedure 12(b)(6) and 15 U.S.C. § 78u-4. Plaintiff resisted the Motion (Clerk’s No. 23) and Defendants replied (Clerk’s No. 29). A hearing was held on May 15, 2006, and the matter is fully submitted. The present putative class action lawsuit was brought by Barry Yellen (“Plaintiff’) on behalf of himself and on behalf of a class consisting of persons who purchased or acquired the common stock of Maytag Corporation (“Maytag”) between March 7, 2005, and April 21, 2005. The Amended Complaint (Clerk’s No. 16) asserts a claim for violation of § 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) against Maytag, and a claim for violation of § 20(a) of the Exchange Act against Defendants George C. Moore (“Moore”) and Ralph F. Hake (“Hake”). I. FACTUAL BACKGROUND The facts as alleged in the Amended Complaint are as follows. On March 7, 2005, Maytag issued a press release announcing that the Company “reaffirmed its business strategies and guidance during the 26th Annual Raymond James Institutional Investors Conference [hereinafter “James Investors Conference”] in Orlando, Florida....” Amended Compl. ¶ 17. The press release quoted Hake and Moore on various aspects of Maytag’s claimed cost savings, and included positive remarks about Maytag, stating that at the conference, “Maytag executives reaffirmed plans to achieve improved earnings in 2005, expected by the company to be in the range of $1.10 to $1.30 per share, including about 5 cents of restructuring charges.” Id. Plaintiff claims that by “reaffirming” estimates, “defendants deliberately sought to bolster confidence in earnings estimates that defendants themselves did not genuinely believe and as to which criticism concerning lack of accuracy had been highlighted at internal board of directors meetings in the prior two weeks.” Id. The allegedly false and misleading statements by Defendants regarding Maytag’s anticipated earnings were repeated in investor conferences during a “roadshow” that coincided with the press release. Id. ¶ 18. The roadshow consisted of three presentations by Hake and Moore. Id. The first presentation was on March 7, 2005, at the James Investors Conference. Id. The second presentation was on March 9, 2005, at Smith Barney’s 18th Annual Global Industrial Manufacturing Conference (hereinafter “Smith Barney Conference”) in New York. Id. The third and final presentation was on March 10, 2005, at J.P. Morgan’s Small Cap Conference in Chicago (hereinafter “Morgan Conference”). Id. Each of the presentations was simulcast over the Internet. Id. According to Plaintiff, the press release and remarks made by Hake and Moore at the various presentations were knowingly or recklessly false and misleading because Defendants were aware that Maytag’s internal forecasts were lower than the public forecasts. Id. ¶ 19. Moreover, Plaintiff claims that Defendants were aware that: [Njumerous factors were negatively impacting the Company throughout the first quarter of the year and ... would be expected to negatively impact the Company such that the specific guidance provided by the defendants in the press release and at the conference was knowingly or recklessly overstated by a material amount. By the time of this press release and the related presentations, the defendants were aware that the bulk of the first quarter was over and that several negative factors — including significantly higher raw material prices and other high costs — were negatively impacting the Company. Following the release of this press release, the price of Maytag stock rose from a close of $14.70 per share on Friday, March 4, 2005, to a close of $15.93 per share on Monday!,] March 7, 2005, on unusually high volume. Id. “Indeed, [Defendants] were acutely aware that raw material costs were higher because they had materially impacted pri- or quarterly results and were continuing to significantly drag on earnings, and defendants were especially aware of the impact these factors among others had on the valuation of the Company’s stock because it was affecting the valuation of the Company in a major transaction being considered and negotiated at the time.” Id. ¶ 20. Plaintiff claims that Defendants were also aware that the company’s earnings forecasts were not accurate or reliable, and that previous forecasts for January and February 2005 had not been achieved. Id. According to Plaintiff, these issues were “repeated topics of discussion at Maytag’s board of directors meeting in February 2005.” Id. Thus, while Defendants made numerous other disclosures during the proposed class period, Plaintiff claims they took no action to correct the misleading information they placed on the market in and around March 7, 2005, until after the close of trading on April 21, 2005. Id. On April 22, 2005, prior to the market opening, Defendants announced that Maytag’s first quarter financial results for 2005 had “plunged by 80%.” Id. ¶ 21. In correcting its previous earnings guidance, Maytag lowered its 2005 net income forecast to a range of $0.45 to $0.55 per share. Id. In response to the news, the price of Maytag stock dropped from a close of $15.10 per share on April 21, 2005, to $10.89 per share on April 22, 2005, with over 17 million shares traded. Id. ¶ 22. On April 26, 2005, Hake internally shared his view with Maytag’s Board of Directors that it would take two to three years for Maytag to achieve an earnings turnaround. Id. ¶ 23. After market closing on May 19, 2005, Maytag announced that it was being purchased in a “going-private transaction led by Ripplewood Holdings LLC” at a price of $14.00 per share. Id. ¶ 23. According to Plaintiff, various filings with the Securities and Exchange Commission (“SEC”) make it clear that the process leading up to the Ripplewood transaction “was being negotiated at the time of Maytag’s fraudulent March 7, 2005 reaffirmation of grossly overstated earnings projections.” Id. ¶ 24. Specifically, Plaintiff contends that a May 20, 2005, Salomon Smith Barney report valued Maytag’s shares at $14.00 per share when taking into account “a significant premium associated with the going private transaction.” Id. Additionally, Ripplewood had signed a confidentiality agreement with Maytag in September 2004, permitting it to examine Maytag for the purposes of making the May 2005 offer. Id. Ripple-wood also met with Maytag’s Board of Directors on many occasions between September 2004 and March 2005 for purposes of negotiating a buy-out. Id. In its alleged efforts to obtain a higher price from Ripplewood, or to cause a bidding war, Plaintiff claims that Defendants intentionally ignored numerous internal reports circulated on February 9, 10, 22, and 25, 2005, advising that: 1) management forecasts had already been reduced to less than $1.00 per share for fiscal 2005; 2) Maytag had already missed its 2005 business plan forecast for January by 78%; and 3) management had difficulty accurately forecasting future performance and estimates and the forecasts were therefore unreliable. Id. ¶ 25. Plaintiffs Amended Complaint states: As Maytag has now acknowledged in its proxy statement issued in connection with the Ripplewood transaction, by February 2005, Maytag’s board of directors had noted that the Company had a negative earnings momentum reflected in its stock price which was negatively impacting Ripplewood’s offers for Maytag. Thus, it is clear that Maytag’s management was deliberately, knowingly or recklessly delivering overstated projections for fiscal 2005 in order to inflate the price of Maytag stock in an effort to secure a higher price from Rip-plewood and to attract greater interest from the community of potential suitors. The board has also acknowledged that Maytag’s management had difficulty accurately forecasting its future performance, demonstrating an internal lack of confidence in its forecasting, yet the defendant nevertheless falsely expressed confidence in such forecasting and expressly “reaffirmed” its publicly disseminated financial and earnings forecasts. Id. In addition to its alleged efforts to manipulate the stock price for purposes of a corporate merger or buy-out, Plaintiff claims that as of April 2005, “defendant Hake beneficially owned 533,436 shares of Maytag common stock and had stock-based holdings of 789,438 shares; defendant Moore beneficially owned 24,420 shares and had stock-based holdings of 88,187 shares.” Id. ¶ 27. Thus, according to Plaintiff, Defendants knew and ignored, or were reckless in not knowing that the particularized earnings guidance disseminated to the investing public between March 7 and April 21, 2005, was materially false and misleading. Id. ¶ 28. Moreover, Plaintiff claims that no meaningful cautionary statements applied to the purportedly forward-looking statements such that the “Safe Harbor” provision of the Private Securities Litigation Reform Act (the “PSLRA”) should apply. Id. ¶29. II. MOTION TO DISMISS A. Rule 12(b)(6) In addressing a motion to dismiss under Rule 12(b)(6), this Court “is constrained by a stringent standard.... A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Parnes v. Gateway 2000, Inc., 122 F.3d 539, 545-46 (8th Cir.1997) (quoting Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir.1982) (citation omitted) (emphasis added)). In addition, the complaint must be liberally construed in the light most favorable to the plaintiff and should not be dismissed simply because the court is doubtful that the plaintiff will be able to prove all of the necessary factual allegations. See Pames, 122 F.3d at 546. Finally, when considering a motion to dismiss for failure to state a claim, a court must accept the facts alleged in the complaint as true. See Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). The Supreme Court has articulated the test as follows: When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a claimant will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test. Moreover, it is well established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). A motion to dismiss should be granted “only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.” Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir.1995). B. 15 U.S.C. § 78<w-k In 1995, Congress enacted the PSLRA to remedy perceived abuses in securities class action litigation. The PSLRA, amongst other things, provides stringent standards regarding pleadings in private securities fraud actions. Specifically, the PSLRA, § 78u-4(b) provides: (1) Misleading statements and omissions In any private action arising under this chapter in which the plaintiff alleges that the defendant— (A) made an untrue statement of a material fact; or (B) omitted to state a material fact necessary in order to make the statements made, in light of the circumstances in which they were made, not misleading; the complaint shall specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed. (2) Required state of mind In any private action arising under this chapter in which the plaintiff may recover money damages only on proof that the defendant acted with a particular state of mind, the complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind. (3) Motion to dismiss; stay of discovery (A) Dismissal for failure to meet pleading requirements In any private action arising under this chapter, the court shall, on the motion of any defendant, dismiss the complaint if the requirements of paragraphs (1) and (2) are not met. 15 U.S.C. § 78u-4(b)(l-3). Defendants argue that Plaintiff has failed to state an Exchange Act § 10(b) claim under Rule 12(b)(6), because Plaintiff has failed to allege specific facts giving rise to a strong inference of actual knowledge that the challenged earnings forecast was false when made, within the meaning of § 78u-4(b)(2). Defendants also urge that the Plaintiffs claims are foreclosed by the “Safe Harbor” provision for forward-looking statements under the PSLRA, § 78u-5, as well as by the “bespeaks caution” doctrine. Additionally, Defendants argue that Plaintiffs claim against Hake and Moore under § 20(a) of the Exchange Act are barred in light of Plaintiffs failure to state a § 10(b) claim. III. LAW AND ANALYSIS A. Failure to State with Particularity Facts Giving Rise to a Strong Inference that Defendants Acted with the Required State of Mind Section 10(b) of the Exchange Act provides that it is unlawful for any person “to use or employ, in connection with the purchase or sale of any security ... any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary.” 15 U.S.C. § 78j(b). Rule 10b-5, promulgated by the SEC under § 10(b), prohibits fraudulent conduct in the sale and purchase of securities. See 17 C.F.R. § 240.10b-5 (providing that it is unlawful for “any person, directly or indirectly ... (a) To employ any device, scheme, or artifice to defraud; (b) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made in the light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.”). In 1976, the United States Supreme Court held that negligence is insufficient for civil liability under the Exchange Act, concluding that scienter, specifically “a mental state embracing intent to deceive, manipulate or defraud,” is required. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976); see also Fla. State Bd. of Administration v. Green Tree, 270 F.3d 645, 653 (8th Cir.2001) (“Although not explicitly mentioned in the text of the rule, scienter is nevertheless an essential element of a Rule 10b-5 claim.”). The PSLRA enhanced the pleading requirement regarding scienter by “effectively mandating] a special standard for measuring whether allegations of scien-ter survive a motion to dismiss. While under Rule 12(b)(6) all inferences must be drawn in plaintiffs’ favor, inferences of scienter do not survive if they are merely reasonable.... Rather, inferences of scienter survive a motion to dismiss only if they are both reasonable and ‘strong’ inferences.” Fla. State Bd., 270 F.3d at 660 (quoting Greebel v. FTP Software, Inc., 194 F.3d 185, 195-96 (1 st Cir.1999)). Through the PSLRA, Congress enacted two heightened pleading requirements for cases alleging securities fraud: The first requires that the complaint specify each false statement or misleading omission and explain why the omission was misleading. 15 U.S.C. § 78u~ 4(b)(1). The second requires that the complaint state ‘with particularity’ facts giving rise to a “strong inference” that the Defendant acted with the scienter required for the cause of action. 15 U.S.C. § 78u-4(b)(2). In re Navarre Corp. Sec. Litig., 299 F.3d 735, 741-42 (8th Cir.2002) (quoting Fla. State Bd., 270 F.3d at 654). Thus, in evaluating whether a complaint is sufficient under the stringent pleading standards of the PSLRA, the Court must “disregard ‘catch-all’ or ‘blanket’ assertions that do not live up to the particularity requirements of the statute.” Id. (quoting Fla. State Bd., 270 F.3d at 660). Moreover, where, as here, the statements alleged to be misleading are forward-looking, the PSLRA requires that the Plaintiff allege sufficient facts to show that the statement was made with “actual knowledge by [the person making the statement] that the statement was false or misleading; or if made by a business entity ... was ... made by or with the approval of an executive officer of that entity; and made or approved by such officer with actual knowledge by that officer that the statement was false or misleading.” 15 U.S.C. § 78u-5(c)(l)(A)-(B). In support of their Motion to Dismiss, Defendants first contend that Plaintiffs claims must be dismissed because the Amended Complaint fails to state with particularity facts giving rise to a strong inference that Defendants had actual knowledge that the earnings projections were false or misleading. Plaintiffs resistance urges that, on March 7, 2005, when Maytag issued a press release “reaffirming” its earnings “guidance,” and stating: “Maytag executives reaffirmed plans to achieve improved earnings in 2005, expected by the company to be in the range of $1.10 to $1.30 per share, including about 5 cents of restructuring charges,” Maytag was well aware that the earnings projections were completely unreliable. Indeed, Plaintiff points out, on April 21, 2005, Maytag cut its projected earnings forecast to between $0.45 and $0.55 per share, causing stock prices to drop from $15.10 per share to $10.89 per share after the announcement. Plaintiff proffers several allegations in support of his conclusion that he has adequately alleged facts sufficient to demonstrate that Defendants knew or were reckless in not knowing their March earnings guidance and roadshow contained false or misleading earnings estimates. First, Plaintiff argues that in February 2005, the Board of Directors of Maytag commented on management’s inability to accurately forecast, calling into doubt the reliability of the financial forecasting function at Maytag. Second, Plaintiff claims that by the time of the February 2005 Board of Directors meeting, Hake had acknowledged that “the company had failed to achieve its January earnings forecast and would likely fail to achieve its February forecast.” Regarding this failure, Plaintiff states that Maytag knew, but concealed, the fact that its business forecast for January 2005 was off by 78%. Third, Plaintiff claims that internal reports circulated at the February 2005 meeting showed that internal management forecasts had been reduced to amounts well below those circulated to the public in March 2005. Finally, Plaintiff urges that ongoing negotiations with Rip-plewood gave an additional incentive for Defendants to mislead the public in an effort to maintain a higher stock value, an important factor in Maytag attaining the best possible merger or buy-out offer. Correspondingly, Plaintiff claims that, because the negotiations involved a complete sale of Maytag, the individual defendants had ample motive to bolster the stock price, as each owned numerous shares in Maytag that would be sold if the transaction with Ripplewood took place. “Generally, the issue of whether a particular intent existed is a question of fact for the jury.” In re K-tel Intern., Inc. Sec. Litig., 300 F.3d 881, 894 (8th Cir.2002). Nonetheless, in a § 10(b) case, “[sjince ‘eonclusory allegations’ do not satisfy the pleading requirements ... the complaint must provide a factual basis for allegations of scienter.” Id. (citing In re Carter-Wallace, Inc. Sec. Litig., 220 F.3d at 40) (other citations omitted). In evaluating what is sufficient to satisfy the scienter pleading requirement, the Eighth Circuit Court of Appeals has stated the following: [W]e can say three things about motive and opportunity allegations. First, motive and opportunity are generally relevant to a fraud case, and a showing of unusual or heightened motive will often form an important part of a complaint that meets the Reform Act standard. Second, in some cases the same circumstantial allegations that establish motive and opportunity also give additional reason to believe the defendant’s misrepresentation was knowing or reckless. For instance, in insider trading cases, the timing of trades shows motive and opportunity, but it may also provide additional circumstantial evidence that the defendant knew of an advantage. Such allegations may meet the Reform Act standard, but if so it is because they give rise to a strong inference of scienter, not merely because they establish motive and opportunity. Third, when the complaint does not show motive and opportunity of any sort-either the unusual, heightened motive highlighted in the Second Circuit cases, or even an everyday motive such as keeping one’s job— then other allegations tending to show scienter would have to be particularly strong in order to meet the Reform Act standard. Fla. State Bd., 270 F.3d at 660. In keeping with the requirements of the PSLRA, then, while inferences must be drawn in favor of the non-moving party, “inferences of scienter do not survive if they are merely reasonable.... Rather, inferences of scienter survive a motion to dismiss only if they are both reasonable and ‘strong’ inferences.” Fla. State Bd., 270 F.3d at 660-61 (citing Greebel, 194 F.3d at 195-96 and Helwig v. Vencor, Inc., 251 F.3d 540, 553 (6th Cir.2001) (“[Tjhe strong inference requirement means that plaintiffs are entitled only to the most plausible of competing inferences.”)). 1. Maytag’s concerns over inaccurate forecasting. Plaintiffs first allegation that Defendants possessed the requisite level of scienter is that Defendants were aware that Maytag management “had difficulty accurately forecasting its future performance and such estimates and forecasts were therefore unreliable.” Amended Compl. ¶ 25. The preliminary proxy statement filed by Maytag with the SEC states that on February 22, 2005, “the special committee discussed certain challenges facing the company, including the company’s difficulty in accurately forecasting its future performance and adverse industry conditions, as well as the company successes, including recent additions to management and cost reductions.” Defs.’ Ex. 12 at 20. It is important to note that the PSLRA requires a showing that the Defendants knew or recklessly disregarded that them representations were misleading at the time they were made. “The mere fact that [a] forecast proved to be wrong in hindsight ... does not render the statement untrue when made.” Rubin v. Trimble, 1997 WL 227956, at * 15 (N.D.Cal. April 28, 1997) (citing In re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir.1996)). While Plaintiff has alleged in the Amended Complaint that Maytag issued earnings forecasts knowing that it had a concern over its ability to accurately forecast earnings, this is insufficient, standing alone, to give rise to a strong inference of scienter. “Certainly, predictions ‘are not exempt’ from the securities laws ... but they are only actionable if the forecast might affect a ‘reasonable investor’ in contemplating the value of a corporation’s stock.” Suna v. Bailey Corp., 107 F.3d 64, 70 (1st Cir.1997) (finding forecasts not actionable where plaintiff failed to present facts demonstrating that the defendant had actual knowledge that the predictions were inaccurate at the time they were made) (quoting Colby v. Hologic, Inc., 817 F.Supp. 204, 211 (D.Mass.1993)); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1432 (3d Cir.1997) (noting that forecasts do not contain an obligation by a company to disclose internal forecasts or even all material information, but rather “contain no more than the implicit representation that the forecasts were made reasonably and in good faith” at the time of their making). While Plaintiff claims that Defendants hid their concerns from the public, notably an allegation that is not articulated in the Amended Complaint, Maytag’s SEC filings clearly indicate that it had lowered its public earnings forecasts on more than one occasion in the past. See Pl.’s Resistance Br. at 2 (noting that Maytag’s “own SEC filings make clear that through February 2005, the defendants were involved in a series of meetings in which their internal earnings estimates were subject to enormous criticism and constantly being revised downward.”). It is implausible to conclude, given Maytag’s history of adjusting downwards its earnings forecasts, that the public was somehow misinformed about the likely accuracy of the March 7, 2005 forecast. 2. Internal forecasts were stibstantially lower than the public forecast. Plaintiff next contends that Maytag management was “circulating projections in the range of $1.10 to $1.30 per share, when they had internal projections that were already down to $0.97 per share.” PL’s Resistance Br. at 11 (citing Amended Comp. ¶ 25, which alleges that at the time of the allegedly fraudulent earnings forecast, “management forecasts had already been reduced to well below the amounts circulated to public investors in March 2005”). Plaintiffs contention in this regard, however, is belied by Maytag’s SEC preliminary proxy statement. The proxy statement notes that “[o]n February 10, 2005, Maytag management reviewed with the board a 2005 earnings forecast range of $0.97 to $1.77 per share, based upon various assumptions, and certain changes to the earnings forecast resulting from, among other things, risks associated with pricing issues, higher costs and customer-related developments, as well as opportunities associated with pricing issues, cost savings, potential unit volume upside and currency rates from international operations.” Defs.’ Ex. 12 at 18 (emphasis added). The proxy statement also provides that at a February 25, 2005, board meeting, representatives from La-zard discussed three earnings per share forecasts for fiscal year 2005: $1.15, $1.30, and $1.45. Each of these projections were prepared by Maytag management, “except for the $1.15 per share forecast.” Id. Plaintiffs assertion, then, that the March 7, 2005, earnings forecast was “well below” the publicly circulated amount is flatly contradicted by Maytag’s SEC filings. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir.1998) (“[W]e are not required to accept as true conclusory allegations which are contradicted by documents referred to in the Complaint.”). Indeed, the range of $1.10 to $1.30 is below to the middle of those forecasts discussed at the February 25, 2005, board meeting, and well on the lower end of the range of figures discussed at the February 10 meeting. The mere allegation that management discussed some earnings forecasts lower than those actually publicly issued is unpersuasive to show scienter where, as here, the earnings forecast publicly issued was well within the range of numbers discussed by management in February 2005. Moreover, the allegation that some lower numbers were discussed does not amount to an allegation that Defendants did not reasonably believe that the $1.10 to $1.30 forecast was reasonable when made public in March 2005. “One of the classic fact patterns giving rise to a strong inference of scienter is that defendants published statements when they knew facts or had access to information suggesting that their public statements were materially inaccurate.” Fla. State Bd., 270 F.3d at 665 (8th Cir.2001). Nothing in Plaintiffs Amended Complaint attempts to discredit the methodology used to arrive at the internal management ranges discussed in February 2005, or otherwise indicates, or even implies that the methodology was unreasonable. See In re Synovis Life Tech., Inc. Sec. Litig., 2005 WL 2063870, at *14-16 (D.Minn. Aug. 25, 2005) (finding no strong inference of intent where plaintiff alleged that defendants had “no basis” for their earnings projections where plaintiff failed to allege the methodology was false or misleading). 3. Maytag missed its January 2005 forecast and expected to miss its February 2005forecast. Plaintiff next asserts that scienter is demonstrated by the fact that Defendants knew they had missed their internal forecasts by 78% and were likely to miss their internal forecasts for February 2005. Maytag’s preliminary proxy report notes that a decreased offering by Ripplewood was caused, in part, by “the failure to meet the 2005 ‘0 + 12’ operating profit forecast by 78% for the month of January 2005.” Defs.’ Ex. 12 at 19. The report also provides that at the February 25, 2005, meeting, representatives of Lazard noted “that the company failed to achieve the January earnings forecast and would likely fail to achieve the February forecast.” Id. Defendants cite Kurtzman v. Compaq Computer Corp., 2002 WL 32442832 (S.D.Tex. Mar. 30, 2002) in support of the proposition that it is entirely plausible that Maytag could have missed its internal forecasts in the first two months of fiscal year 2005, and still perform well enough over the remaining ten months of the year to achieve its full year forecast of $1.10 to $1.30 per share. More specifically, Defendants argue that two bad months do not a bad year make. In Kmtzman, between January 7, 1999 and April 9, 1999, Compaq made announcements that “presented a glowing picture” of its business prospects. Id. at *1. Specifically, the plaintiff in Kurtzman alleged that Compaq had falsely represented that “business was booming, that demand for and sales of Compaq products were strong, that Compaq was successfully integrated with and enjoying synergies from its June 1998 acquisition of Digital Equipment Corporation ... and that it was in strong competition with Dell for direct sales to customers.” Id. at *1-2. On April 9, 1999, after trading hours, “Compaq finally revealed to the market that its earnings expectations were vastly reduced to 15 cents per share.” Id. at *2. The next day, the stock price for Compaq plummeted. Id. The plaintiff alleged that Compaq knew that sales would not meet the projections for the year at the time it made positive statements, as Compaq knew as early as August 1998 that 1999 sales of Compaq personal computers were expected to decline across the board. Id. at *10. Moreover, the plaintiff alleged that Compaq executives participated in a meeting in February 1999 where it was revealed that Compaq’s actual sales for the first six weeks of the fiscal year were well below expectations. Id. at *11. The Kurbzman court dismissed the plaintiffs action on the basis that the plaintiff had failed to adequately allege facts giving rise to a strong inference of scienter. Id. at *13. The court specifically noted that the class period, January 9-April 9, 1999, was extremely brief, and the computer industry, for the past few years, had suffered extreme fluctuations in demand and sales. Id. The court found, in light of the short class period, that plaintiffs failure of allegations was fatal: Plaintiffs have made no attempt to compare Compaq’s situation with that of the industry as a whole at this time. Especially in light of the brevity of the Class Period designated here, moreover the Court finds that it is essential for Plaintiffs to allege particular facts and to provide specific time points of comparison that would demonstrate that the business problems experienced by Compaq from January 9-April 9, 1999 were not merely a short-term fluctuation but of considerable import and that Defendants were aware that the declines in demand and in sales in January 1999 were significant and material, i.e., that they indicated or determined the entire year’s results. Plaintiffs need to prove factually and numerically specific information about the alleged decline in the Class Period and contrast it with conditions in parallel or equivalent quarters of past years or with past years as a whole, to establish by an objective means of measurement the significance as well as the particulars of the generally asserted downturn. The Court finds that they have completely failed to do so. Thus they fail to show that the claimed decline was significant in its impact in the short as well as in the long view. Id. Defendants also cite other federal cases, similar to Kurtzman, that they claim demonstrates that a company’s failure to meet its projection for a short period does not show that a company knew that its full year projections were false when made. For example, in Moss v. HealthCare Compare Corp., 75 F.3d 276, 282 (7th Cir.1996), HealthCare, “an independent provider of medical utilization review and preferred provider organization services,” issued forward looking statements in early 1993 regarding revenues, earnings, and year-end revenues. Id. at 278. A March 30 press release indicated that “HealthCare was ‘uncomfortable’ with earlier analysts’ estimates of year-end revenues and earnings ....” Id. “The announcement in effect revised the prior ... comfort statements .... On the next trading day, HealthCare’s stock declined ... more than 30 percent.” Id. Plaintiff claimed that HealthCare’s positive public representations were made despite HeathCare possessing information demonstrating that it would not be able to meet the earnings projections. Id. at 279. The district court dismissed the plaintiffs claims of securities fraud, finding that the plaintiff had failed to adequately allege fraud by failing to show either: “(1) that the early February comfort statements lacked a reasonable basis, or (2) that a duty arose prior to the March 30 press release to correct the early February comfort statements.” Id. at 281. The Seventh Circuit Court of Appeals affirmed, finding that the plaintiffs allegations that Healthcare knew enrollments were down for the period ending January 1,1993 “does not show lack of a reasonable basis, primarily because it fails to demonstrate that Healthcare knew on February 2 and 9' — the dates of the comfort statements — that total revenues for the year-end would be materially lower than analysts’ projections.” Id. at 282. Similarly, in In re Duane Reade Inc. Sec. Litig., 2003 WL 22801416 (S.D.N.Y. Nov. 25, 2003), the defendant released information regarding its 2002 first quarter earnings, and its forecasts for anticipated performance in the second quarter of 2002. Id. at *1. The forecasts ultimately proved incorrect, and the plaintiff alleged that they were overstated and dishonest. Id. The district court dismissed the case, in part because the plaintiffs allegation that the defendant must have known that its projections for the second quarter were inaccurate due to sales being down at the end of the first quarter, amounted to “the typical type of ‘fraud by hindsight’ theory that courts have been unwilling to entertain.” Id. at *10 (quoting Stevelman v. Alias Research Inc., 174 F.3d 79, 85 (2d Cir.1999)). And in Wallace v. Systems & Computer Tech. Corp., 1997 WL 602808 (E.D.Pa. Sept. 23, 1997), an allegation that defendants lacked a good faith belief in the truth of their forecast due to knowledge that certain portions of their operations were performing poorly was rejected on the basis that it was “entirely possible that [defendants] and its officers expected revenues derived from other markets to make up for any increase in expenses resulting from difficulties” in other portions of the company. Id. at *18. Plaintiff argues that Defendants’ cited cases are inapposite, because “it is the defendants themselves who readily acknowledged in their devastating April 21 announcement that the failure to achieve the results in line with their estimates for the first three months had totally undermined their full year projections.” Pl.’s Resistance Br. at 12. Specifically, Plaintiff is referring to Hake’s statement to the Board of Directors on April 26, 2005, that “in his view, it would take two to three years for the Company to achieve an earnings turnaround.” Defs.’ Ex. 12 at 21. According to Plaintiff, this is “an enormous change of perspective in six weeks’ time and it completely undermines any contention that the disastrous first two months of 2005 could be discounted or ignored as an aberration.” PL’s Resistance Br. at 13. The Court must disagree. In In re Cerner Corp. Securities Litigation, 425 F.3d 1079 (8th Cir.2005), the Defendant made favorable statements about its growth, the demand for its products, and its opinions on future earnings forecasts, specifically, that the demand for its products was “strong.” Id. at 1082. Defendant eventually announced that it would not meet its revenue and earnings projections for the first quarter of 2003, causing its stock price to fall approximately forty-five percent. Id. The Eighth Circuit Court of Appeals affirmed the district court’s dismissal of the case on the pleadings. Regarding the plaintiffs allegation that scienter was established by the fact that a former sales manager of the defendant had stated that “he and some others discussed among themselves the unattainable nature of the earnings forecasts,” the Court noted: “At best, this allegation establishes that such an opinion was held by the regional sales manager and his peers. It sheds no light on the relevant issue of whether the individual Defendants shared this view, or indeed of whether the forecasts were necessarily unattainable.” Id. at 1086. Here, Hake’s statements that a turnaround in revenues would take a substantial amount of time occurred well after the public statements of which Plaintiff complains. As in Cerner, Hake’s statement reflects his own personal opinion that an earnings turnaround would take several years, not necessarily the opinion of either Maytag or Moore that such was the case. Moreover, Plaintiff has not offered any specific facts which could lead this Court to the conclusion that poor performance in the first two months made the achievement of the publicly announced earnings forecasts “necessarily unattainable.” Id. Plaintiff has not alleged particular facts that could lead the Court to reasonably conclude that the failed performance by Maytag in January and February amounted to more than a short-term fluctuation. Plaintiff has offered no comparisons with Maytag’s past performance, nor any comparisons with competitor operations that would support such a conclusion. At best, Plaintiff has offered an opinion statement by Hake, made more than a month after the March earnings forecasts. This evidence shows, “at most, that [Defendants] relied on ... forecasts that turned out in hindsight, to be inaccurate.” In Re Symbol Techs. Class Action Litig., 950 F.Supp. 1237, 1246 (E.D.N.Y.1997). Such an allegation does nothing to show that Defendants knew or recklessly ignored, at the time the March 2005 earnings projections were made, that they were false or otherwise misleading. 4. Ripplewood transaction. Plaintiff denies that, standing alone, these factors cannot, as a matter of law, give rise to an inference of scienter. Rather, Plaintiff claims that the “allegations may in fact be sufficient since the named defendants were seeking to dispose of all of their shares of Maytag stock.” Pl.’s Resistance Br. at 9; see Amended Compl. ¶ 27 (“Defendant Hake beneficially owned 533,436 shares of Maytag common stock and had stock-based holdings of 789,438 shares.... Defendant Moore beneficially owned 24,420 shares and had stock based holdings of 88,187 shares. All of these shares were to be sold at the price being paid by Ripplewood.”). Further, Plaintiff urges the Court to assess the totality of the circumstances, and view the facts alleged in the context of Plaintiffs claim that Defendants were motivated to falsify the March earnings forecast to increase Maytag stock value to garner a premium price in the Ripplewood buyout/merger. Specifically, Plaintiffs Amended Complaint contends: “By maintaining artificially inflated prices for Maytag’s stock, defendants were attempting to manipulate and ensure a higher offer price in connection with the transforming transaction.” Amended Compl. ¶ 27. The Eighth Circuit Court of Appeals has observed: “The desire to make a company seem more profitable is a desire ‘universally held among corporations and their executives,’ and thus is insufficient to prove scienter as a matter of law.” Cerner, 425 F.3d at 1085 (quoting Fla. State Bd., 270 F.3d at 664); see also Kalnit v. Eichler, 264 F.3d 131, 141 (2d Cir.2001) (“[T]he desire to achieve the most lucrative acquisition proposal can be attributed to virtually every company seeking to be acquired. Such generalized desires do not establish scienter.”). This is because it is simply “too implausible to suggest that [a company could] hope[ ] a buyer would purchase the company without performing its own examination of [the company’s] financial status.” Fla. State Bd., 270 F.3d at 664. “Furthermore, unless the complaint shows that the benefit to an individual defendant is unusual, a desire to increase executive compensation is also insufficient to prove scienter.” Id. (citing K-Tel, 300 F.3d at 894-95). In the present case, no “unusual benefit” is apparent. While Plaintiff points to the stock holdings of Moore and Hake, and emphasizes that each planned to sell (though by necessity) all their shares in the event of a buyout by Ripplewood, he makes no allegation whatsoever that either attempted to sell or otherwise dispose of their stock while the price was “artificially inflated.” “This deficiency, along with the fact that none of the ... Individual Defendants are alleged to have traded any stock during the class period, ‘decreases any inference of scienter.’ ” Cerner, 425 F.3d at 1085 (quoting K-Tel, 300 F.3d at 895-96). Plaintiff is correct that the Court, in assessing whether Plaintiffs have sufficiently pled scienter, must consider “whether the total of plaintiffs’ allegations, even though individually lacking, are sufficient to create a strong inference that defendants acted with deliberate or conscious recklessness.” No. 84 Employer-Teamster Joint Council Pension Trust Fund v. Am. West Holding Corp., 320 F.3d 920, 938 (9th Cir.2003); Fla. State Bd., 270 F.3d at 660 (suggesting that allegations of scienter may be considered collectively). After reviewing all of Plaintiffs allegations, however, the Court is unconvinced that they individually or collectively amount to a strong inference of scienter. Essentially, Plaintiffs allegations state that Defendants had difficulty making accurate earnings projections, discussed earnings projections both above and below those actually issued, and suffered poor performance in the first two months of the fiscal year for which the earnings projections were made. Even viewed in light of Defendants’ negotiations with Ripplewood, a transaction which, contrary to Plaintiffs assertions was not imminent (Plaintiff admits, and Maytag’s preliminary proxy statement provides, that Maytag had opted to discontinue discussions with Ripplewood prior to the public announcements here at issue), the Court finds that Plaintiff has offered a weak collection of allegations that amount at most to fraud by hindsight. Nothing in Plaintiffs Amended Complaint gives rise to a strong inference that Defendant actually knew that its earnings projections of March 2005 lacked a reasonable basis. Indeed, none of Plaintiffs allegations in any way posit that information used by Defendants in reaching its publicly announced projections was faulty. Moreover, Plaintiffs allegations, even when viewed in their totality, do not demonstrate “the likely prospect of [Defendants] achieving concrete benefits by the means alleged.” See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1130 (2d Cir.1994); City of Philadelphia v. Fleming Cos., Inc., 264 F.3d 1245, 1261 (10th Cir.2001); Helwig, 251 F.3d at 548; United States v. Chacko, 169 F.3d 140, 148 (2d Cir.1999) (finding the requisite intent exists only “[w]hen it is clear that a scheme, viewed broadly, is necessarily going to injure”). This is insufficient to meet the pleading requirements of the PSLRA. B. Safe Harbor In the PSLRA, Congress expressly limited liability for forward-looking statements. Title 15 U.S.C. 78u-5 provides in relevant part: (c) Safe harbor (1) In general Except as provided in subsection (b) of this section, in any private action arising under this chapter that is based on an untrue statement of a material fact or omission of a material fact necessary to make the statement not misleading, a person referred to in subsection (a) of this section shall not be liable with respect to any forward-looking statement, whether written or oral, if and to the extent that— (A) the forward-looking statement is— (i) identified as a forward-looking statement, and is accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward-looking statement; or (ii) immaterial; or (B) the plaintiff fails to prove that the forward-looking statement— (i) if made by a natural person, was made with actual knowledge by that person that the statement was false or misleading; or (ii) if made by a business entity; was— (I) made by or with the approval of an executive officer of that entity; and (II) made or approved by such officer with actual knowledge by that officer that the statement was false or misleading. (2) Oral forward-looking statements In the case of an oral forward-looking statement made by an issuer that is subject to the reporting requirements of section 78m(a) of this title or section 78o(d) of this title, or by a person acting on behalf of such issuer, the requirement set forth in paragraph (1)(A) shall be deemed to be satisfied— (A) if the oral forward-looking statement is accompanied by a cautionary statement— (i) that the particular oral statement is a forward-looking statement; and (i) that the actual results might differ materially from those projected in the forward-looking statement; and (B) if— (i) the oral forward-looking statement is accompanied by an oral statement that additional information concerning factors that could cause actual results to materially differ from those in the forward-looking statement is contained in a readily available written document, or portion thereof; (ii) the accompanying oral statement referred to in clause (I) identifies the document, or portion thereof, that contains the additional information about those factors relating to the forward-looking statement; and (iii) the information contained in that written document is a cautionary statement that satisfies the standard established in paragraph (1)(A). Defendant argues that all of its March 2005 projections contained meaningful cautionary language that identified factors that could cause actual results to differ from the forecasts, such that they should be exempted from liability under the PSLRA’s Safe Harbor provision. Plaintiff, on the other hand, counters that the statements in question are “present tense” statements, rather than forward-looking to the extent they discuss “reaffirmation” of earnings “guidance,” thus prohibiting the statements from benefitting from the Safe Harbor provision of the PSLRA. Hearing Tr. at 50. Plaintiff relies on Schottenfeld Qualified Associates, L.P., v. Workstream, Inc., No. 05-cv-7092 (S.D.N.Y. May 3, 2006), in support of this proposition. In Schottenfeld, individuals who purchased Workstream stock between January 14, 2005, and April 14, 2005, claimed that Defendants made false and misleading statements regarding the Company’s $10 million revenue projection for the quarter ending February 28, 2005. Specifically, Workstream issued a statement on January 14, 2005, stating: “As we enter the February 2005 quarter, we have strong visibility into our quarterly revenue target of $10 million, positive cash flow from operations and positive EBITDA drive by the strength of our subscription and service revenues.” The company’s CEO then stated, “I am very pleased with the overall growth and the momentum in our business. The Company continues to perform well and we continue to strengthen our market leadership position as we continue to invest in our customers, products and employees.” These statements were reiterated several times in the following months and were accompanied over that time by a substantial increase in stock price. On April 14, 2005, Workstream released its quarterly earnings statements, which totaled only $6.87 million, rather than $10 million. The company’s stock price immediately declined from $4.20 per share to $1.76 per share. The district court found that cautionary language accompanying the allegedly false statements could not provide Safe Harbor protection because the “allegedly false statement has both a forward-looking aspect and an aspect that encompasses a representation of present fact.” Id. (citing In re AOL Time Warner.; Inc. Sec. & Erisa Litig., 381 F.Supp.2d 192, 221 (S.D.N.Y.2004)). The court specifically found that the CEO had referred to “overall growth and momentum” as an existing fact. Further, the CEO “emphasized the ‘strength of our subscription and services revenues’ — referring to the Company’s historical relationship with repeat subscription-based customers — as the source of the Company’s ‘strong visibility (sic)’ for a $10 million quarter.” “These are statements of present fact — Workstream’s repeat subscription-based revenue — -that bolstered the perceived veracity of the January Announcement, and are therefore not protected.” The PSLRA defines a “forward-looking statement” as: (A) a statement containing a projection of revenues, income (including income loss), earnings (including earnings loss) per share, capital expenditures, dividends, capital structure, or other financial items; (B) a statement of the plans and objectives of management for future operations, including plans or objectives relating to the products or services of the issuer; (C) a statement of future economic performance, including any such statement contained in a discussion and analysis of financial condition by the management or in the results of operations included pursuant to the rules and regulations of the Commission; (D) any statement of the assumptions underlying or relating to any statement described in subparagraph (A), (B), or (C); (E) any report issued by an outside reviewer retained by an issuer, to the extent that the report assesses a forward-looking statement made by the issuer; or (F) a statement containing a projection or estimate of such other items as may be specified by rule or regulation of the Commission. 15 U.S.C. § 78u-5(i). Here, the statements alleged to be false or misleading, that is, that Maytag “reaffirmed its business strategies and guidance” and that “Maytag executives reaffirmed plans to achieve improved earnings in 2005, expected by the company to be in the range of $1.10 to $1.30 per share,” are clearly forward-looking statements under 78u-5(i)(A). Nowhere in Plaintiffs Amended Complaint or in his Resistance Brief does Plaintiff ever refer to these statements as anything other than “forward-looking statements.” Indeed, the only characteristic of the allegedly false statements that could be deemed indicative of the present tense is the fact that the company “reaffirmed its business strategies and guidance.” Plaintiff does not allege that the reaffirmation of business strategies and guidance was false, but rather objects to the actual forecast itself, clearly stated in a forward-looking manner, that the company was maintaining its plan “to achieve improved earnings” that were “expected to be in the range of $1.10 to $1.30 per share.” Moreover, even if the allegedly false and misleading statements were based in part on present tense factors, numerous courts have rejected the notion that this removes a statement from possible protection under the Safe Harbor doctrine. See e.g., Harris v. Ivax Corp., 182 F.3d 799, 806 (11th Cir.1999) (“If the allegation is that the [whole] statement is misleading, then it makes no sense to slice the [statement] into separate sentences.”) Kurtzman, 2000 WL 34292632, at *13 (“[C]ourts have repeatedly recognized that whether a statement is technically characterized grammatically as present or future according to tense employed by the speaker is not the criterion; instead, as the PSLRA expressly states, it depends on whether it is ‘a statement containing a projection of revenues, income ... or other financial items,’ or even more generally, ‘a statement of future economic performance.’ ”); Hockey v. Medhekar, 1997 WL 203704, *5 (N.D.Cal. Apr. 15, 1997) (where “forward-looking statements ... are based on ... statements dealing with past or present facts, ... these non-predictive statements are ‘assumptions underlying or relating to’ statements of future economic performance [and] fall under the [PSLRA’s] definition of forward-looking statements”). Plaintiff also urges that the forward looking statements cannot be protected by the Safe Harbor provision because they were made with actual knowledge of their falsity. As discussed, supra, the Court has concluded that Plaintiff has not stated with particularity facts giving rise to a strong inference that Defendants either knew or recklessly disregarded the truth or falsity of the March 2005 earnings projections at the time they were made. ' Moreover, the Safe Harbor provision of the PSLRA does not require both that a statement be made with actual knowledge of its falsity and that the statement be accompanied by meaningful cautionary language to receive protection from liability. Rather, the statute is worded in the disjunctive, providing that forward-looking statements, whether written or oral, will not be subject to liability to the extent that: 1) the statement “is accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward-looking statement;” or 2) the forward-looking statement is “immaterial”; or 3) where the plaintiff fails to prove that the forward-looking statement was made with the requisite intent. See 15 U.S.C. § 78u-5 (e)(l)(A)-(B). Thus, assuming that Defendants’ allegedly false or misleading statements were accompanied by “meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward-looking statement,” this alone would be sufficient to invoke the Safe Harbor provision of the PSLRA. See In re Broadcom Corp. Securities Litig., 2004 WL 3390052, at * 1 (C.D.Cal. Nov. 23, 2004) (rejecting as dicta Ninth Circuit language indicating that the PSLRA does not grant safe harbor to knowingly false or misleading statements, even when accompanied by cautionary statements, and stating, “ ‘under the language of 15 U.S.C. § 78u-5, a defendant is insulated from liability if it satisfies either subsection (A) or subsection (B); either prong is sufficient for immunity.’ ”) (quoting In re SeeBeyond Tech. Corp. Sec. Litig., 266 F.Supp.2d 1150, 1165 (C.D.Cal.2003) and citing the Conference Committee as stating: “ ‘The first prong of the safe harbor requires courts to examine only the cautionary statement accompanying the forward-looking statement. Courts should not examine the state of mind of the person making the statement.’ ” H.R. Conf. Rep. 95-2, at 44, reprinted in 1995 U.S.C.C.A.A.N. 164, 743 (Joint Explanatory Statement of the Committee of Conference)); see also Southland Sec. Corp. v. Inspire Ins. Solutions, Inc., 365 F.3d 353, 371 (5th Cir.2004) (“The safe harbor has two independent prongs.... ”); Greebel, 194 F.3d at 201 (recognizing that the statute is disjunctive, providing “safe harbor” through “two alternative inlets”); Employers Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1130 (9th Cir.2004) (affirming summary judgment based on the safe harbor rule without considering whether the alleged forward-looking statement was made with knowledge of its falsity); In re Gilat Satellite Networks, Ltd., 2005 WL 2277476, *12 (E.D.N.Y. Sept. 19, 2005) (“Once a court determines that a forward-looking statement is accompanied by cautionary language sufficiently meaningful as to render it incapable of being reasonably relied upon, it is immaterial as a matter of law and the court need not consider the defendants’ state of mind.”); In re Noven Pharm., Inc. Sec. Litig., 238 F.Supp.2d 1315, 1321 (S.D.Fla.2002) (referring to prongs of the safe harbor provision, and finding that satisfaction of only one prong is sufficient to invoke immunity). Here, Defendants argue that the March 7, 2005 press release, as well as the investor presentations on March 7, 9 and 10, clearly identified the earnings forecasts as forward-looking statements and were accompanied by meaningful cautionary language that identified important factors that could cause the actual results to differ materially from the projections. Specifically, Defendants argue that meaningful cautionary language was presented in the following manner: 1) The March 7 press release expressly qualified management’s 2005 earnings forecasts by warning investors about “steel and fuel cost increases, which continue to pressure profitability,” and stated that management expected “material costs to be an ongoing challenge in 2005.” Defs.’ Ex. 6. 2) The investor presentations on March 7, 9, and 10 expressly cautioned investors to “expect approximately $90 to $100 million of unfavorable commodity price economics” in 2005, primarily from steel and fuel-related price increases, and identified “Volatility in raw material pricing” and “Competitive pricing” as two of the main challenges facing the company in 2005. Defs.’ Exs. 8-10 at 21, 29. 3) Both the press release and the investor presentations incorporated by reference the company’s quarterly reports, which attributed the declining financial performance of the company in 2004 to “increased costs, primarily related to steel and energy related items,” and warned investors that the “cost and availability of raw materials,” “the availability and cost of energy,” and “price competition” “may cause ... actual results to differ materially from those described in the forward looking statements.” Defs.’ Ex. 4 at 16, 23-24. 4) Both the press release and the investor presentations incorporated by reference the 2004 Annual Report, which warned investors that Maytag’s profitability in the first half of 2005 would be “adversely impacted by the significant steel cost increases that occurred in the second half of 2004,” that “the outlook for future material costs remains uncertain,” and that, while Maytag had “recently implemented several price increases to compensate for higher material costs,” “the impact of these price increases is uncertain due to potential competitive reactions and the uncertainty of consumer acceptance.” Defs.’ Ex. 5. at 19. Defs.’ Br. at 28-29. Plaintiff counters that, in each of these instances, the “language falls short of the safe harbor requirements.” Pl.’s Resistance Br. at 22. Plaintiff further notes, without any legal citation, “that much of [Defendants’] def