16-2812-cv Beazley Insurance Co. v. Ace American Insurance Co.
16‐2812‐cv Beazley Insurance Co. v. Ace American Insurance Co.
1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ____________________ 4 5 August Term, 2017 6 7 (Argued: August 23, 2017 Decided: January 22, 2018) 8 9 Docket No. 16‐2812‐cv 10 11 ____________________ 12 13 BEAZLEY INSURANCE COMPANY, INC., 14 15 Plaintiff‐Appellant, 16 17 v. 18 19 ACE AMERICAN INSURANCE COMPANY, 20 ILLINOIS NATIONAL INSURANCE COMPANY, 21 22 Defendants‐Appellees. 23 24 ____________________ 25 26 Before: POOLER and LYNCH, Circuit Judges, and COGAN, District Judge.1 27 28 The NASDAQ public stock exchange conducted the initial public offering 29 for Facebook, Inc. NASDAQ encountered a variety of technical difficulties in 30 executing the IPO that resulted in trades not being performed properly. Retail
1Judge Brian M. Cogan, of the United States District Court for the Eastern District of New York, sitting by designation. 1 investors sued NASDAQ, and those claims were eventually settled for $26.5 2 million. 3 4 NASDAQ maintained both errors and omissions (“E&O”) and directors’ 5 and officers’ (“D&O) insurance policies. Appellant Beazley Insurance Company 6 was the second‐level E&O carrier; appellees ACE American Insurance Company 7 and Illinois National Insurance Company were the first and second level D&O 8 carriers, respectively. ACE and Illinois National disclaimed coverage under the 9 D&O policies. Beazley paid out its policy limit of $15 million in E&O coverage 10 subject to an agreement with NASDAQ in which NASDAQ assigned Beazley its 11 contractual rights against ACE and National. Beazley then sued ACE and 12 National for coverage under D&O policies. 13 14 The United States District Court for the Southern District of New York 15 (Rakoff, J.) ultimately granted ACE and Illinois National summary judgment. 16 Beazley Ins. Co. v. ACE Am. Ins. Co., 197 F. Supp. 3d 616 (S.D.N.Y. 2016). The 17 district court found that (1) retail investors in Facebook were unambiguously 18 “customers” of NASDAQ; (2) the underlying securities claims against NASDAQ 19 arose out of NASDAQ’s provision of professional services; and (3) thus, the 20 claims were excluded from coverage pursuant to the D&O policy’s professional 21 services exclusion. 22 23 Affirmed. 24 ____________________
25 KEVIN KIEFFER, Troutman Sanders LLP (Ryan C. 26 Tuley, on the brief), Irvine, CA for Plaintiff‐Appellant 27 Beazley Insurance Co., Inc. . 28 29 JONATHAN D. HACKER, O’Melveny & Myers LLP 30 (Bradley N. Garcia, on the brief), Washington, DC, for 31 Defendant‐Appellant Ace American Insurance Company. 32
2 1 ALEXANDER S. LORENZO, Alston & Bird LLP, New 2 York, NY, for Defendant‐Appellant Illinois National 3 Insurance Company. 4 5 6 POOLER, Circuit Judge:
7 The NASDAQ public stock exchange conducted the initial public offering
8 for Facebook, Inc. NASDAQ encountered a variety of technical difficulties in
9 executing the IPO that resulted in trades not being performed properly. Retail
10 investors sued NASDAQ, and those claims were eventually settled for $26.5
11 million.
12 NASDAQ maintained both errors and omissions (“E&O”) and directors’
13 and officers’ (“D&O”) insurance policies. Appellant Beazley Insurance Company
14 was the second‐level E&O carrier; appellees ACE American Insurance Company
15 and Illinois National Insurance Company were the first and second level D&O
16 carriers, respectively. ACE and Illinois National disclaimed coverage under the
17 D&O policies. Beazley paid out its policy limit of $15 million in E&O coverage
18 subject to an agreement with NASDAQ in which NASDAQ assigned Beazley its
19 contractual rights against ACE and National. Beazley then sued ACE and
20 National for coverage under D&O policies.
3 1 The United States District Court for the Southern District of New York
2 (Rakoff, J.) ultimately granted ACE and Illinois National summary judgment.
3 Beazley Ins. Co. Inc. v. ACE Am. Ins. Co., 197 F. Supp. 3d 616 (S.D.N.Y. 2016). The
4 district court found that (1) retail investors in Facebook were unambiguously
5 “customers” of NASDAQ; (2) the underlying securities claims against NASDAQ
6 arose out of NASDAQ’s provision of professional services; and (3) thus, the
7 claims were excluded from coverage pursuant to the D&O policy’s professional
8 services exclusion. We agree with the district court that federal securities law
9 makes clear that retail investors in company stock are “customers” of NASDAQ
10 within the meaning of the insurance policies at issue. We also agree that the
11 claims in the underlying complaint arose out of the provision of “professional
12 services,” as plaintiffs could not prevail without demonstrating that their losses
13 flowed from NASDAQ’s failure to properly process their trades. We thus affirm
14 the district court’s grant of summary judgment on the issue of indemnification.
15 BACKGROUND
16 NASDAQ is a public stock exchange that provides an electronic trading
17 platform on which its members, registered broker‐dealers, execute securities
18 transactions. See NASDAQ OMX Group, Inc. v. UBS Sec. LLC, 770 F.3d 1010, 1013‐ 4 1 14 (2d Cir. 2014). Members trade on NASDAQ both on their own behalf, and on
2 behalf of retail investors. See id.
3 As relevant here, NASDAQ maintained two stacks, or towers, of insurance
4 coverage. NASDAQ purchased a tower of E&O coverage from Chartis Specialty
5 Insurance Company, Beazley and ACE. Chartis provided primary coverage of
6 $15 million, above a $1 million self‐insured retention, for all “[d]amages resulting
7 from any Claim . . . for any Wrongful Act of the Insured” that “occur[ed] . . .
8 solely in rendering or failing to render Professional Services.” App’x at 204. The
9 Beazley E&O policy provided excess coverage with another $15 million in
10 coverage, and “follow[ed] form” to Chartis’ policy, that is, provided coverage on
11 the same terms. App’x at 192. ACE’s policy provided second level excess
12 insurance, with a $15 million limit after the Chartis and Beazley policies were
13 exhausted. [App’x 177] Altogether, NASDAQ purchased $50 million in E&O
14 coverage.
15 NASDAQ also purchased a tower of D&O coverage from ACE and Illinois
16 National. The ACE D&O policy was primary and provided $15 million in
17 coverage after a $2 million self‐insurance retention for liability incurred by
18 certain officers and directors for any “[w]rongful [a]cts.” App’x at 1624. The ACE 5 1 D&O also provided coverage to NASDAQ for any losses NASDAQ became
2 obligated to pay “by reason of a Securities Claim . . . for any Wrongful Acts.”
3 App’x at 1624. The ACE D&O policy also contained a “professional services
4 exclusion” that provided that ACE “shall not be liable for Loss on account of any
5 Claim . . . by or on behalf of a customer or client of the Company, alleging, based
6 upon, arising out of, or attributable to the rendering or failure to render
7 professional services.” App’x at 1628, 1653. Illinois National issued an excess
8 policy for an additional $15 million in coverage that follows form with the ACE
9 D&O policy.
10 NASDAQ carried Facebook’s initial public offering on May 18, 2012. It did
11 not go smoothly—NASDAQ’s trading platform suffered a series of technical
12 failures, resulting in the improper processing of orders to buy and sell stock.
13 Retail investors in Facebook sued NASDAQ, alleging that they suffered losses as
14 a result of NASDAQ’s technical failures. In all, more than 40 lawsuits related to
15 the Facebook IPO were brought against NASDAQ across the country, and were
16 eventually consolidated in the Southern District of New York.
17 After consolidation, plaintiffs filed a consolidated amended class action
18 complaint (the “CAC”) against NASDAQ and two NASDAQ officers: Robert 6 1 Greifeld, then‐president and chief executive officer; and Anna Ewing, then‐chief
2 information officer (collectively, “NASDAQ”). The CAC, filed in April 2013, was
3 brought on behalf of a putative class of all persons who entered orders to buy or
4 sell Facebook’s common stock on May 18, 2012 and lost money as a result of
5 NASDAQ’s alleged wrongdoing. The CAC asserted securities fraud claims
6 pursuant to sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the
7 “Exchange Act”), as well as state law negligence claims.
8 NASDAQ provided notice of the CAC to each insurer. Chartis accepted
9 potential coverage under its E&O policy subject to a reservation of rights, as did
10 Beazley and ACE. However, both ACE and Illinois National disclaimed coverage
11 under the D&O policies, relying on the “professional services” exclusion in the
12 ACE policy. Neither NASDAQ nor its broker challenged the disclaimer.
13 NASDAQ renewed the D&O policy twice without ever raising the issue.
14 NASDAQ agreed to settle the CAC in April 2015 for $26.5 million, and
15 sought coverage under its E&O tower to pay for both the settlement and
16 NASDAQ’s defense costs. Chartis paid out its $15 million, and ACE paid out $4.9
17 million under its third‐level E&O policy. Because Chartis and ACE were
18 responsible for the cost of defending the lawsuits, the claim cost them more than 7 1 the $26.5 million settlement figure. Beazley also paid out its full $15 million
2 pursuant to an agreement in which NASDAQ “assign[ed] to Beazley any and all
3 contractual rights or extra‐contractual rights they have or that they may acquire .
4 . . against ACE and/or Illinois National in connection with the [CAC] up to the
5 amount of [$15 million].” App’x at 4101. The agreement also provided that
6 NASDAQ would not take “any formal position with regard to the availability of
7 coverage under the ACE D&O Policy and/or the [Illinois National policy] for the
8 claims asserted in the” CAC, and that NASDAQ would “not voluntarily provide
9 any testimony or declaration in connection with any proceeding between Beazley
10 on the one hand and ACE and/or Illinois National on the other arising out of or
11 related to the” CAC. App’x at 4128.
12 Beazley then attempted to get ACE to reconsider its denial of coverage,
13 and when those efforts were unsuccessful, sued for coverage under the D&O
14 policies in June 2015. In July 2015, Beazley moved for partial summary judgment
15 seeking a declaration that ACE had an obligation to provide a defense. The
16 district court granted the motion, noting:
17 On balance, the Court is in agreement with Beazley that 18 interpreting “customer [s] or client[s]” to exclude retail 19 investors in a public company listed on NASDAQ is at 8 1 least one reasonable interpretation of the ACE D&O 2 Policy. As a consequence, ACE has failed to satisfy its 3 “heavy burden of demonstrating that . . . the 4 [Professional Services] exclusion is subject to no other 5 reasonable interpretation” than the one it has proffered 6 to disclaim coverage, and ACE was therefore obligated 7 to provide NASDAQ with defense costs coverage in 8 connection with NASDAQ’s defense of the CAC. 9 10 Beazley Ins. Co., Inc. v. ACE Am. Ins. Co., 150 F. Supp. 3d 345, 353 (S.D.N.Y. 2015).
11 However, the district court cabined its holding:
12 To be clear, the Court is not interpreting “customer[s] or 13 client[s]” to exclude retail investors as a matter of law, 14 as that is not the relevant question for purposes of 15 plaintiff’s motion. Defendants are free, with the benefit 16 of discovery, to renew their arguments as to the 17 meaning of “customers or clients” on summary 18 judgment. 19 Id. at n.9.
20 Following discovery, in January 2016 Beazley moved for partial summary
21 judgment seeking a declaration that ACE had a duty to indemnify in connection
22 with the CAC settlement. ACE and Illinois National cross‐moved for summary
23 judgment on the remaining claims. The district court denied Beazley’s motion,
24 granted ACE and Illinois National’s motion and also found ACE liable for
25 unreimbursed attorneys’ fees and costs reasonably incurred by NASDAQ in
26 excess of the policy’s $2 million retention. This appeal followed. 9 1 DISCUSSION
2 “We review orders granting summary judgment de novo.” Hizam v. Kerry,
3 747 F.3d 102, 107 (2d Cir. 2014). The parties are in agreement that New York law
4 applies to their dispute. ACE based its disclaimer on the D&O policy’s
5 professional services exclusion, which provides that:
6 The Insurer shall not be liable for Loss on account of 7 any Claim . . . by or on behalf of a customer or client of 8 the Company [i.e., NASDAQ], alleging, based upon, 9 arising out of, or attributable to the rendering or failure 10 to render professional services. 11 12 App’x at 1628, 1653. The D&O policy defines neither “customer or client” nor
13 “professional services.” Beazley argues that the district court erred in enforcing
14 the exclusion because (1) the retail investors who sued and settled the CAC are
15 not customers or clients within the meaning of the D&O policy, and (2) the
16 claims settled in the CAC are not “alleging, based upon, arising out of, or
17 attributable to the rendering or failure to render professional services.” The
18 burden of proving the exclusion applies rests with the insurer. Pioneer Tower
19 Owners Ass’n v. State Farm Fire & Cas. Co., 12 N.Y.3d 302, 307 (2009).
20 “The law governing the interpretation of exclusionary clauses in insurance
21 policies is highly favorable to insureds.” Id. at 306 (internal quotation marks 10 1 omitted). Policy exclusions are enforced only when they “have a definite and
2 precise meaning, unattended by danger of misconception . . . and concerning
3 which there is no reasonable basis for a difference of opinion.” Id. at 307. Thus:
4 [W]henever an insurer wishes to exclude certain 5 coverage from its policy obligations, it must do so in 6 clear and unmistakable language. Any such exclusions 7 or exceptions from policy coverage must be specific and 8 clear in order to be enforced. They are not to be 9 extended by interpretation or implication, but are to be 10 accorded a strict and narrow construction. 11 12 Id. (citation omitted).
14 I. Customers and clients
15 “[A]n insurance contract is interpreted to give effect to the intent of the
16 parties as expressed in the clear language of the contract.” Parks Real Estate
17 Purchasing Grp. v. St. Paul Fire & Marine Ins. Co., 472 F.3d 33, 42 (2d Cir. 2006)
18 (citation omitted). “[W]e begin with the terms of the [policy] itself to see if the
19 intent of the parties can be gleaned without resort to extrinsic evidence.” Hugo
20 Boss Fashions, Inc. v. Fed. Ins. Co., 252 F.3d 608, 617 (2d Cir. 2001). Here, as in
21 Hugo Boss, the policy fails to define “customers” or “clients.” As is relevant here,
11 1 Hugo Boss teaches that a court may find a policy term unambiguous where that
2 term has a clear meaning in federal law.
3 In the absence of guidance from the policy language, courts ask whether a
4 body of law or an established custom or usage provides a definition. “For it is
5 quite possible that even where a contract does not define a particular—and
6 potentially ambiguous—term, a body of state law or an established custom fills
7 in the gaps left by the drafters.” Id. Hugo Boss makes clear that federal law can
8 similarly serve to fill such a gap:
9 [U]nder these conditions—where neither the contract 10 nor state law defines a disputed term—a court may, 11 nevertheless, find the term, as used in a state‐law 12 contract, to be unambiguous. For contracting parties 13 operate against the backdrop not only of state law, but 14 of federal law as well. And when federal law concepts, 15 such as those relevant to trademark—paradigmatically 16 a federal field—are employed, the parties may be read 17 as having incorporated established meanings and 18 definitions forged in the relevant federal cases. 19 Id. at 618.
20 The district court properly relied on custom and usage of the terms
21 “customers” in determining that the retail investors were “customers” of
22 NASDAQ within the meaning of the ACE D&O policy. Similar to trademark law,
23 securities law is “paradigmatically a federal field.” Id. “In assessing whether 12 1 there is [] a prevailing federal definition, we consider not whether there is
2 complete unanimity among the courts that have addressed the question, but
3 rather whether there is an overwhelming current of judicial opinion, that is, a
4 meaning used by the vast majority of federal courts.” CGS Indus. Inc. v. Charter
5 Oak Fire Ins. Co., 720 F.3d 71, 78 (2d Cir. 2013) (internal quotation marks omitted).
6 We have little trouble finding that the vast majority of federal courts to
7 consider the issue find retail investors to be “customers” of a stock exchange. In
8 Lank v. New York Stock Exchange, our Court held that “[t]he primary purpose of
9 the Exchange Act was to protect customers of the stock exchanges that is, public
10 investors.” 548 F.2d 61, 64 (2d Cir. 1977) (emphasis added). “One method of
11 effectuating this was to impose on the exchanges a statutory duty to protect
12 investors by regulating (the exchanges’) members.” Id. (citation and internal
13 quotation marks omitted). District courts also regularly characterize retail
14 investors as “customers” of stock exchanges. See, e.g., Matter of Lake States
15 Commodities, Inc., 936 F. Supp. 1461, 1469 (N.D. Ill. 1996) (“[T]he Second Circuit
16 [has] construed the NYSE constitution and rules as intending to provide
17 customers of the exchange with the right to force members into arbitration over
18 disputes”), abrogated on other grounds by Damato v. Hermanson, 153 F.3d 464 13 1 (7th Cir. 1998); Carr v. New York Stock Exch., Inc., 414 F. Supp. 1292, 1298 (N.D.
2 Cal. 1976) (“In enforcing its rules and in making complex decisions on the
3 suspension or forced liquidation of members, the Exchange must consider the
4 often conflicting interests of the member firm, its partners, and investors, and the
5 corporations whose securities are handled by the firm, as well as the Exchange’s
6 public customers.”); New York Stock Exch., Inc. v. Sloan, 1980 WL 1431, at *3
7 (S.D.N.Y. Aug. 15, 1980) (“[The New York Stock Exchange’s] right to relief is
8 predicated upon its subrogation to the rights of its customers.”). It appears most
9 federal courts take the meaning of “customer” in this context “as a given.” Hugo
10 Boss, 252 F.3d at 619.
11 Beazley argues that the district court erred in turning to federal law to
12 provide a definition for “customer,” primarily because (1) industry usage should
13 be considered before federal case law; (2) the professional services exclusion was
14 standard language, thus its terms cannot be defined in the context of a specific
15 industry; and (3) other evidence in the record indicates that NASDAQ
16 considered broker‐dealers, not retail investors, to be NASDAQ’s customers. We
17 find these arguments unavailing.
14 1 First, in this context, there is little distinction between looking to “industry
2 usage” and federal case law to define a term. Federal case law is simply another
3 way of determining whether the parties shared a common language that would
4 lead them to a mutual, unambiguous understanding of the meaning of an
5 undefined term. Second, the fact that the professional services exclusion is a
6 standard clause does not alter the analysis here. The parties are not required to
7 tailor language for every policy in order for terms to have industry‐specific
8 meanings. Who counts as a customer of a particular insured within the meaning
9 of the generic exclusion will often depend on the nature of the industry in which
10 the insured does business. What is relevant here is that the insurer sold the
11 policy to its insured, a stock exchange, against the backdrop of well‐established
12 federal securities law that unambiguously considers retail investors to be
13 customers of the exchange.
14 Third, a 2012 rule change NASDAQ submitted to the Securities and
15 Exchange Commission cannot bear the weight Beazley assigns it. There,
16 NASDAQ sought to provide accommodation payments to members who could
17 demonstrate losses stemming from the ill‐fated Facebook IPO that the members,
18 in turn, could use to pay claims from retail investors. The rule change would 15 1 make $62 million available to pay claims from retail investors, rather than the
2 $500,000 then available to each member. In submitting the rule change,
3 NASDAQ stated that “[NASDAQʹs] business and legal relationships are with its
4 members, not its members’ customers. [NASDAQ] has no contractual or other
5 relationships with its members’ customers, and generally does not possess
6 information about interactions between a member and its customer that may
7 underlie members’ trading activity.” App’x at 2578.
8 Beazley argues this language, at a minimum, raises a question of material
9 fact as to whether NASDAQ considered retail investors its customers. However,
10 as the district court correctly concluded, the fact that retail investors are
11 customers of NASDAQ’s member broker‐dealers does not mean that retail
12 investors were not also NASDAQ’s customers. Broker‐dealers are simply agents
13 of the retail investors, performing “the narrow task of consummating the
14 transaction requested.” Press v. Chem. Inv. Servs. Corp., 166 F.3d 529, 536 (2d Cir.
15 1999). Retail investors may be customers both of NASDAQ and of NASDAQ’s
16 members.
17 We agree with the district court that when considered against the
18 background of the “the customs, practices, usages and terminology as generally 16 1 understood in the particular trade or business,” the term “customers” of
2 NASDAQ unambiguously includes retail investors. Morgan Stanley Grp. Inc. v.
3 New England Ins. Co., 225 F.3d 270, 275 (2d Cir. 2000). We need not reach the
4 parties’ arguments regarding the import of extrinsic evidence in the record.
5 II. Professional services
6 To successfully invoke the exclusion, ACE also must demonstrate that the
7 claims arose out of the “rendering of or failure to render professional services.”
8 Under New York law, a court makes such a determination by examining whether
9 the asserted claim could succeed but for the excluded conduct. See Mount Vernon
10 Fire Ins. Co. v. Creative Hous. Ltd., 88 N.Y.2d 347, 350 (1996) (“[I]f no cause of
11 action would exist but for the [excluded conduct], the claim is based on [the
12 excluded conduct] and the exclusion applies”); Hugo Boss, 252 F.3d at 623 n.15
13 (applying “but for” test to breach of contract policy exclusion). “In other words,
14 if the plaintiff in an underlying action or proceeding alleges the existence of facts
15 clearly falling within such an exclusion, and none of the causes of action that he
16 or she asserts could exist but for the existence of the excluded activity or state of
17 affairs, the insurer is under no obligation to defend the action.” Scottsdale Indem.
18 Co. v. Beckerman, 992 N.Y.S.2d 117, 121 (2d Dep’t 2014). 17 1 In determining whether a professional service is at issue, courts “[look] to
2 the nature of the conduct under scrutiny rather than the title or position of those
3 involved, as well as to the underlying complaint. . . .” David Lerner Assocs., Inc. v.
4 Phila. Indem. Ins. Co., 934 F. Supp. 2d 533, 541 (E.D.N.Y. 2013) (quoting Reliance
5 Ins. Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 691 N.Y.S.2d 458, 460 (1st
6 Dep’t 1999). “[T]he question of whether one is engaged in a professional service
7 depends on whether those individuals ‘acted with the special acumen and
8 training of professionals when they engaged in the acts . . .’” Id. (citation
9 omitted).
10 Here, as below, the parties do not “dispute that the design and operation
11 of NASDAQ’s systems require the special acumen and training of professionals,
12 such that these activities constitute professional services.” Beazley II, 197 F. Supp.
13 3d at 628 (internal quotation marks omitted). The state law negligence claims set
14 forth in the CAC were based on the allegation that NASDAQ “failed to use
15 reasonable care in the design, testing, and implementation” of its systems. App’x
16 at 164. Again, as below, the parties do not dispute that the negligence claims
17 arose out of NASDAQ’s alleged failure to properly render professional services,
18 such that the exclusion applies. 18 1 Beazley, however, argues that the district court erred in finding that the
2 CAC’s federal securities claims were “alleging, based upon, arising out of, or
3 attributable to the rendering or failure to render professional services.” Beazley
4 argues that the CAC allegations accusing NASDAQ of misstatements and
5 omissions in violation of federal securities law are advertisements for
6 NASDAQ’s services, and thus do not fall under the professional services
7 exclusion. Beazley notes that the CAC pleads that “NASDAQ and its executives .
8 . . undertook an aggressive marketing and commercial campaign to persuade
9 Facebook to list its securities on the NASDAQ Stock Market.” App’x at 472 ¶ 17.
10 “In doing do, Defendants Greifeld and Ewing caused NASDAQ to promote the
11 reliability and capability of its technology and electronic trading platform . . . in
12 the months leading up to the Facebook IPO.” Id. Beazley argues that these
13 representations were made with the intent of promoting NASDAQ as the best
14 exchange for the Facebook IPO. As advertising, Beazley argues, the statements
15 “are not actions that are based upon, arise out of, or that are attributable to the
16 rendering of or failure to render professional services.”
17 Beazley relies on Rob Levine & Assocs. Ltd. v. Travelers Cas. & Sur. Co. of Am.,
18 994 F. Supp. 2d 228 (D.R.I. 2014) for the proposition that actions taken to promote 19 1 a business are not professional services. In Rob Levine, the complaint alleged that
2 the defendant law firm engaged in false advertising that gave “the false
3 impression to future clients that [they] have special expertise in personal injury
4 cases and disability cases and will recover more money than other Rhode Island
5 lawyers.” Id. at 232. The law firm sought coverage from its insurer, which
6 disclaimed based on a professional services exclusion that denied coverage
7 “based upon or arising out of any Wrongful Act related to the rendering of, or
8 failure to render, professional services.” Id. The district court found the exclusion
9 did not apply, because the deceptive advertisement claim is “about advertising,
10 not about the provision of legal services.” Id. at 233. Other courts also hold that
11 advertising is not a professional service. See, e.g., Standard Mut. Ins. Co. v. Lay, 2
12 N.E.3d 1253, 1259 (Ill. App. Ct. 2014) (professional services exclusion did not
13 apply to advertising claim); Corky McMillin Constr. Servs. v. U.S. Specialty Ins. Co.,
14 597 Fed. App’x 925, 926‐27 (9th Cir. 2015) (professional exclusion did not apply
15 to misstatements in marketing and advertising materials).
16 The flaw in this argument is that the CAC plaintiffs could not win at trial
17 merely by showing that NASDAQ made false and misleading statements as to its
18 capabilities. “To prevail on the merits in a private securities fraud action, 20 1 investors must demonstrate that the defendant’s deceptive conduct caused their
2 claimed economic loss.” Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804,
3 807 (2011). “This requirement is commonly referred to as ‘loss causation.’ ” Id.
4 The CAC recognizes this, and pleads loss causation based on failures in the
5 technical service provided by NASDAQ:
6 [D]amages [to the class members] were foreseeable and 7 directly caused by the materialization of the concealed 8 risks of Defendants NASDAQ, Greifeld and Ewing; 9 namely, NASDAQ’s technology and trading platform 10 technical limitations and resulting failures, including 11 the breakdown of its IPO Cross system, and 12 Defendants’ failure to properly test NASDAQ’s systems 13 prior to the IPO. The materialization of these risks 14 occurred during the Class Period when NASDAQ’s 15 systems failed to: (i) properly execute Class Members’ 16 buy and sell pre‐market Cross orders and aftermarket 17 orders in Facebook’s IPO; and (ii) failed to timely 18 deliver confirmations of Class Members[‘] pre‐market 19 Cross orders, causing Class Members substantial 20 damages. 21
22 App’x at 123‐24 ¶ 238. The CAC thus attributes plaintiffs’ losses to NASDAQ’s
23 failure to “properly execute” the purchase and sale orders and deliver timely
24 confirmations, not to NASDAQ’s marketing of itself to Facebook as the best
25 exchange to handle the IPO. Failures to properly execute orders and deliver
21 1 timely order confirmations go to the heart of NASDAQ’s provision of
2 professional services. The district court correctly determined that the
3 professional services exclusion applies.
4 CONCLUSION
5 We have considered the remainder of Beazley’s arguments and find them
6 to be without merit. For the reasons given above, the judgment of the district
7 court is affirmed. As the Illinois National policy follows the ACE D&O policy,
8 we need not reach the alternate grounds for affirmance proffered by Illinois
9 National.