Benevento v. LifeUsa Holding, Inc.

181 F.R.D. 298, 1998 U.S. Dist. LEXIS 13789, 1998 WL 596056
District Court, E.D. Pennsylvania·Decided September 4, 1998·No. Civ.A. No. 97-7827·Published·Cited by 2 cases

Opinion

MEMORANDUM AND ORDER

JOYNER, District Judge.

The Defendant has filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 9(b), on grounds that the complaint fails to plead any alleged fraudulent conduct with the particularity required by that rule. In addition, Defendant asserts that the remaining counts, which incorporate and rely so heavily upon the insufficiently particularized fraud counts, cannot stand independently of those fraud counts and must be dismissed as well. For the reasons set forth below, Defendant’s motion is denied.

Background

Joseph Benevento, Drew W. Krapf, Esther Rosenblum, Bruce C. Compaine, Edward Maze and Rita Baskin (“Plaintiffs”) on behalf of themselves and all other similarly situated purchasers of annuities sold by LifeUSA Holding Inc. and its subsidiaries and divisions including LifeUSA Insurance Company, Inc. (“LifeUSA”), brought an action against the defendant seeking injunctive and declaratory relief and compensatory and punitive damages arising from Defendant’s standardized pattern and practice of deceptive and fraudulent practices in the issuance, circulation, solicitation, and sale of its “Accumulator” series of annuity policies.

Defendant LifeUSA Holding, Inc. began in 1987 as a new annuity company. Defendant sells a variety of annuities products, including its Accumulator annuity products. Generally speaking, annuity policies are a savings vehicle which allows a purchaser to deposit funds with an insurance company for a minimum of one year based upon representations of having a “fully insured” and guaranteed cash account which accumulates and pays interest on funds on a tax deferred basis; and then, at any time after one year of investment, electing either a lump sum return of funds or receiving a payout for a minimum of five (5) years of principal and interest or interest only and then receiving the lump sum distribution.

Plaintiffs can be broken down into two subgroups of Accumulator annuity purchasers who, (1) like Drew Krapf and Esther Rosenblum, purchased LifeUSA’s Accumulator annuity policies between August 1, 1989 and October 1,1997 (“the Class Period”) and have not, to date, withdrawn any funds from the Accumulator annuity and their principal and interest remains with LifeUSA; or (2) like Joseph Benevento, Bruce Compaine, Edward Maze and Rita Baskin, purchased Li-feUSA’s Accumulator annuity policies and decided during the Class Period to withdraw their funds through a minimum five-year payout.

•Plaintiffs claim that during the Class Period, Defendant created and disseminated material misrepresentations and nondisclosures with the intent of inducing Plaintiffs and others to purchase Defendant’s annuity policies.

Specifically, Plaintiffs allege that LifeUSA created and ' implemented a purposeful scheme to deceive and mislead the plaintiffs and the class of LifeUSA purchasers through:1

(l)(a) inducing agents to sell LifeUSA annuities, as opposed to other annuity policies, by promising the highest com[300] missions, equity ownership in LifeUSA, “producer perks” and wire transfer of commissions within twenty-four hours of obtaining the purchaser’s funds and before the purchasers receive their LifeUSA “fine print” contract;
(b) training their sales agents through standardized and uniform misrepresentations and nondisclosures that, inter alia, the agents’ clients, through LifeUSA, would be paid substantial interest bonuses, “current” interest rates, and obtain “fully insured” and “safe” economic gain greater than the gains offered in the stock market or Certificates of Deposit;
(c) concealing and failing to disclose the true terms of the LifeUSA Accumulator annuity from the purchasers, who are given no written materials from the LifeUSA and provided with only an application and the uniform representations of LifeUSA agents based upon LifeUSA’s standardized misrepresentations and material omissions taught to the agents;
(d) immediately rewarding the agents with “producer perks” within twenty-four (24) hours of sale and then later sending fine print annuity contracts which are misleading and ambiguous;
(e) disguising the interest rates paid to LifeUSA purchasers in quarterly account-ings by comparing the Accumulator annuity favorably with Bank Certificates of Deposit and then misrepresenting the “yield” as the “interest rate,” thus purposefully creating a false impression that the represented “compounded daily” interest rate is much higher, when in fact, the interest rate is less than the represented “interest rate”.

By this motion, Defendant argues that this ease should be dismissed because Plaintiffs failed to plead fraudulent conduct with sufficient particularity as is required Fed. R.Civ.P. 9(b). Defendant further alleges that if all of Plaintiffs’ claims and causes of action other than their fraud claims rely on and incorporate the fraud claims to such an extent that the remaining claims and causes of action cannot stand if the fraud claims are dismissed, the complaint should be dismissed in its entirety.

Discussion

As noted, Defendant’s motion to dismiss for failure to plead fraudulent conduct with sufficient particularity invokes Fed. R.Civ.P. 9(b). This rule provides that,

In all averments of -fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

Additionally, to state a cause of action for fraud or fraudulent misrepresentation under Pennsylvania law, Plaintiffs must plead damages to the recipient as the proximate result of the misrepresentation. Killian v. McCulloch, 850 F.Supp. 1239, 1252 (3d Cir.1994) (quoting Constitution Bank v. DiMarco, 155 B.R. 913, 918 (E.D.Pa.1993)). Other elements of a properly pleaded claim for fraudulent misrepresentation include: 1) a misrepresentation; 2) a fraudulent utterance thereof; 3) intention by the maker that the recipient will thereby be induced to act; and 4) justifiable reliance by the recipient upon the misrepresentation. Christidis v. First Pennsylvania Mortgage Trust, 717 F.2d 96, 99 (3d Cir.1983); Killian, 850 F.Supp. at 1252; Constitution Bank, 155 B.R. at 918.

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Benevento v. LifeUsa Holding, Inc., 181 F.R.D. 298, 1998 U.S. Dist. LEXIS 13789, 1998 WL 596056 (E.D. Pa. 1998).

181 F.R.D. 298 (Benevento v. LifeUsa Holding, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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