Here at The D&O Diary, we read everything so you don’t have to. One item that crossed my desk this week particularly resonated with me. The specific item was the court’s dismissal motion grant in the securities class action lawsuit pending against the footwear and apparel company Allbirds.

The plaintiffs had tried to argue that by their use in their complaint of bold and italicized font they had indicated which of the defendants’ statements they (the plaintiffs) alleged to be false and misleading. The court said it could not discern from the plaintiffs’ typography what statements or portions or statements were supposed to be misleading and granted the defendants’ dismissal motion with leave for the plaintiffs to attempt to replead. While the ruling could be only a setback for the plaintiffs, there arguably are some lessons here for all of us that should not be overlooked.

Allbirds completed an IPO on November 3, 2021. Later, the company experienced business setbacks and its share price declined. Plaintiff shareholders then filed securities class action lawsuits against the company and certain of its directors and officers. The lawsuits were consolidated, the plaintiffs filed an amended consolidated complaint, and the defendants filed motions to dismiss.

In a May 10, 2024, Northern District of California Judge Araceli Martínez-Olguín granted the defendants’ motion to dismiss, with leave to amend. In ruling on the motions, Judge Martínez-Olguín first observed that “the parties’ briefing reflects a lack of clarity as to which statements or portions of statements are allegedly false or misleading.” The court provided as an example of the lack of clarity this excerpt from the text of the amended complaint (boldface and italics below as in the original):

115. As another reason for its success, the Company listed a “deep connection with our community of customers”:

By making great products and telling the story of an inspirational, purpose-driven brand, we have formed a deep connection with our community of customers. We have sold our products to over four million customers since our founding.

The Registration further touted that:

Approximately 53% of our net sales in 2020 came from repeat customers.

116. While acknowledging the significance of Allibirds’ core customers to the brand’s success, the Registration Statement failed to disclose that the Company had begun neglecting its ‘deep connection with [its] community of customers” by shifting focus away from its core consumer and putting its resources toward overemphasizing new product offerings (e.g., apparel) extending beyond its core DNA.

The Court said that it was unable to discern from amongst these statements and assertions what specifically the defendants were alleged to have said that was misleading. The plaintiffs had tried to explain that they “often…use… bold and italicized font” to indicate “what portion of each statement is misleading.”

The Court said that “Rather than guess as to which instances of bold and italicized font Plaintiffs intend to denote the statements (or portions of statements) they claim are false and misleading, the Court leaves it to Plaintiffs to make that clear – for each statement offered as a basis of their claims – in the first instance.” The Court granted the plaintiffs’ thirty days leave to file a second amended complaint.


I would like to personally thank Judge Martínez-Olguín for highlighting the fact that typographical marks are not a substitute for clarity and sometimes can actually produce the opposite. While many writers use typographical marks like boldface or italics to try to add emphasis or to highlight phrases or words, the use of these marks – and, in particular, the excessive use of these marks – can sometimes obscure rather than enhance meaning.

One source of the problem here may be the ease with which these kinds of typographical indicators can be incorporated into text. Ease of operation may sometimes lend itself to excessive or ill-advised use.

Earlier in my career, I had a case against an opposing counsel whose use of typographical marks was so profligate that the majority of the words in one of his briefs were boldfaced, underlined, or italicized, or some combination thereof. The effect of this typographical onslaught was almost as if Jackson Pollack had been enlisted to complete the brief. Rather than adding clarity to his brief, the content and meaning of his words were obscured to the point of meaninglessness.

Obviously, this anecdote represents an extreme case and I do not mean to suggest that the plaintiffs’ complaint here was anywhere near as overdone. Nevertheless, there is no doubt that the plaintiffs’ use of boldface and italics in their amended complaint was no substitute for clear expression. Fortunately for the plaintiffs, they will now have the opportunity to try to state clearly what they had in fact intended to say. They would be well-advised in drafting their amended complaint to give the typographical marks a rest and to focus instead on clarity.

There is a lesson here for all of us. Bold-face, italics, and underlining may all have their place, but they can be overdone. Using typographical marks in a text is kind of like adding bay leaves to a soup or stew. Judiciously sprinkled into the sauce, a few bay leaves can add flavor. Overdo the bay leaves, and they can overpower the rest of the dish. When it comes to typographical marks, a little goes a long way, so don’t overdo it. Perhaps even more to the point, bay leaves are no substitute for the more basic things required to make soup.