Fezzani v. Bear, Stearns & Co.

777 F.3d 566, 2015 WL 400547, 2015 U.S. App. LEXIS 1572

• Court: Court of Appeals for the Second Circuit
• Decided: January 30, 2015
• Docket: Docket Nos. 14-3983, 09-4414-cv
• Status: Published

Opinions

ON PETITION FOR REHEARING

WINTER, Circuit Judge:

This opinion addresses petitions for rehearing by appellants from the court’s summary order and from the opinion filed the same day. It also addresses an cmicus brief filed by the Securities and Exchange Commission in support of the Petition for Rehearing from the panel opinion. Familiarity with the summary order, the panel opinion, and the dissent from the panel opinion is assumed. We deny appellants’ petitions.

I

The petition for rehearing relating to the summary order argues that this court’s decision in Levitt v. J.P. Morgan, 710 F.3d 454 (2d Cir.2013), filed just before the summary order, is inconsistent with that summary order with respect to the complaint’s allegations of Bear Stearns’ liability as the clearing broker for Baron’s fraud. We disagree.

We begin by noting that the issue in Levitt was whether the common issues with regard to the liability of clearing brokers for the fraud or manipulation of introducing brokers so predominated oyer individual issues as to justify certification of a class. See Fed.R.Civ.P. 23(b)(3). That issue necessarily caused a discussion of the caselaw governing such liability. That discussion stated in part:

We begin by noting that the issue in Levitt was whether the common issues with regard to the liability of clearing brokers for the fraud or manipulation of introducing brokers so predominated over individual issues as to justify certification of a class. See Fed.R.Civ.P. 23(b)(3). That issue necessarily caused a discussion of the caselaw governing such liability. That discussion stated in part:

III. Duty of a Clearing Broker (Generally)

We have previously said that “a clearing ‘agent [ ]’ is generally under no fiduciary duty to the owners of the securities that pass through its hands”....

[District courts in this Circuit have distinguished two categories of cases. First, in cases where a clearing broker was simply providing normal clearing services, district courts have declined to “impose [ ] liability on the clearing broker for the transgressions of the introducing broker.” Fezzani v. Bear, Stearns & Co., 592 F.Supp.2d 410, 425-26 (S.D.N.Y.2008). The district courts have so held even if the clearing broker was alleged to have known that the introducing broker was committing fraud, Fezzani, 592 F.Supp.2d at 425; even if the clearing broker was alleged to have been clearing sham trades for the introducing broker ... and even if the clearing broker was alleged to have failed to enforce margin requirements against the introducing broker — thereby allowing the introducing broker’s fraud to continue — in violation of Federal Reserve and NYSE rules.

In the second, much more limited category of cases, district courts have found plaintiffs’ allegations to be adequate— and so have permitted claims to proceed — where a clearing broker is alleged effectively to have shed its role as clearing broker and assumed direct control of the introducing firm’s operations and its manipulative scheme. Thus, in Berwecky v. Bear, Stearns & Co., 197 F.R.D. 65 (S.D.N.Y.2000), the district court granted class certification in a suit brought by investors against clearing broker Bear, Stearns for its role in the introducing firm A.R. Baron & Company’s (“Baron”) scheme to defraud investors. The Berwecky plaintiffs allege that Bear Stearns “asserted control over Baron’s trading operations by, inter alia, placing Bear, Stearns’ employees at Baron’s offices to observe Baron’s trading activities, approving or declining to execute certain trades, imposing restrictions on Baron’s inventory, and loaning funds to Baron.” Id. at 67. The plaintiffs alleged that Bear Stearns asserted control over Baron’s activities “in order to keep A.R. Baron a viable concern while Bear, Stearns ... continued to reap the large profits they received from their activities with A.R. Baron.” Id. The district court found the allegations that Bear Stearns “controlled]” the implementation of the scheme to manipulate the price of securities sold by Baron sufficient to satisfy Rule 23(b)(3)’s predominance requirement. Id. at 68-69.

Levitt, 710 F.3d at 465-67 (some internal citations omitted).

The petition argues that Levitt held that the allegations in Berwecky were sufficient to state a claim for relief under Rule 12(b)(6) against a clearing broker. The petition further notes, correctly, that the allegations in Berwecky that “[Bear Stearns] asserted control over Baron’s trading operations by, inter alia, placing Bear, Stearns’ employees at Baron’s offices to observe Baron’s trading activities, approving or declining to execute certain trades, imposing restrictions on Baron’s inventory and loaning funds to Baron,” Berwecky, 197 F.R.D. at 67, are substantially identical to those in the present case. The complaint here alleges that “Bear Stearns assumed control over and sent Bear employees to Baron to ‘enforce that control’” and required that every trade ticket be checked and “reviewed every order at this discretion [to] determine whether to execute the trade.” Thus, because the pertinent factual allegations in the present case and Berwecky are substantially identical, the petition concludes that our affirmance by summary order resolved the merits of the claim incorrectly.

However, Levitt also cited the district court opinion in Fezzani twice favorably, the very decision that our summary order affirmed, and any seeming inconsistency evaporates once it is recognized that Levitt’s discussion quoted above was entirely in the context of determining only whether a, class was properly certified under Fed.R.Civ.P. 23(b)(3) and not whether the factual allegations were sufficient under Rule 12(b)(6). Levitt, 710 F.3d at 465. Indeed, Berwecky was itself a district court decision under Rule 23(b), and the issues regarding the legal sufficiency of the allegations were never finally determined. Berwecky, 197 F.R.D. at 68-69.

The issues regarding the sufficiency of the pleadings under Rule 12(b)(6) are quite different from those regarding certification of a class pursuant to Rule 23(b)(3). Whereas the Rule 12(b)(6) inquiry goes to the merits, the Rule 23(b)(3) issue is whether “law or fact questions common to the class predominate over questions affecting individual members.” In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 32 (2d Cir.2006). As the Supreme Court noted in Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, although

a court’s class-certification analysis must be “rigorous” and may “entail some overlap with the merits of the plaintiffs underlying claim,” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. -, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011), Rule 23 grants courts no license to engage in free — ranging merits inquiries at the certification stage. Merits questions may be considered to the extent — but only to the extent — that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.

— U.S.-, 133 S.Ct. 1184, 1194-95, 185 L.Ed.2d 308 (2013).

Therefore, Levitt’s comment on Berwecky at most held that Bear Stearns’ alleged “control” of Baron was “sufficient to satisfy Rule 23(b)(3)’s predominance requirement.” Levitt, 710 F.3d at 467 (citing Berwecky, 197 F.R.D. at 68-69).

Because Levitt is not in conflict with our summary order in Fezzani, the present panel did not overlook or misapprehend the law as is required for rehearing by F.R.A.P. 40(a)(2). We, therefore, reaffirm our holding that Bear Stearns’ conduct as alleged in the Amended Complaint is not sufficient to state a claim for relief under Section 10(b) and Rule 10(b)(5). While the Amended Complaint alleges in conclusory fashion that Bear Stearns asserted “control” over Baron’s trading activity, it fails to allege facts showing how this “control” related to fabricating “market” prices of particular securities and communicating them to customers or to manipulating prices with regard to any particular securities. Appellants allege that Bear Stearns was aware of the manipulations, knew that these manipulations were leading to a crisis, but continued to clear trades that did not involve unnecessary exposure to itself. Knowledge alone, however, is not enough to attach liability to a clearing broker under Section 10(b). ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 102 (2d Cir.2007). Moreover, there are legitimate reasons for clearing brokers to monitor the trading activities of some introducing brokers. A clearing broker guarantees the performance of buyers and sellers of the securities being traded and often extends credit to clearing brokers. Indeed, the complaint states that Baron was in deep debt to Bear Stearns, reason enough to monitor Baron’s activities.

The facts alleged in the Amended Complaint, if proven, would not show that Bear Stearns directed the fraud or instructed Baron or Dweck¹ to set up sham transactions. There is a real danger of harm to the financial industry in allowing such allegations to suffice to subject clearing brokers to the cost of discovery and perhaps a trial even though there is no evidence of participation by the brokers in the fraud or manipulation. The potential of such litigation would deter clearing brokers from engaging in normal business activities — guaranteeing performance, extending credit, and therefore often monitoring the financial condition of introducing brokers — and drive up costs of trading generally. See Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, 552 U.S. 148, 163-64, 128 S.Ct. 761, 169 L.Ed.2d 627 (2008) (“extensive discovery and the potential for uncertainty and disruption in a lawsuit allow plaintiffs with weak claims to extort settlements from innocent companies,” and because “contracting parties might find it necessary to protect against these threats, [this may] rais[e] the costs of doing business” and “[o]verseas firms ... could be deterred from doing business” in United States security markets.). The complaint similarly alleges that Bear Stearns lent Baron money and propped it up, but this activity is integral to the ordinary clearing function of a clearing broker.² Finally, appellants fail to claim that Bear Stearns’ alleged “control” was sufficient to render it a Section 20(a) control person with respect to Baron. The petition for panel rehearing with respect to Bear Stearns is, therefore, denied.

II.

We also address arguments, echoed in appellants’ petition for rehearing, made in an amicus brief filed by the SEC. The SEC incorrectly reads our opinion as holding that, in any and all manipulation cases, liability attaches only to persons who communicate a misrepresentation to a victim. The SEC argues that “[t]he essence of manipulation is not a misrepresentation, but market activity — the buying and selling of shares — that itself creates a ‘false pricing signal.’ A manipulative transaction, such as parking, is an ‘intentional interference with the free forces of supply and demand’ ” (quoting ATSI, 493 F.3d at 100; In re Pagel, Inc., 33 S.E.C. Docket 1003, 1985 WL 548387, *3 (1985), aff'd, 803 F.2d 942 (8th Cir.1986)). Arguing that our opinion conflated manipulative conduct with misrepresentations, the brief further states:

This Court has similarly recognized that engaging in manipulative acts — practices ‘that are intended to mislead investors by artificially affecting market activity’ — are violations distinct from making ‘misrepresentations.’ Ganino v. Citizens Utils. Co., 228 F.3d 154, 161 (2d Cir.2000). Emphasizing that distinction is this Court’s ruling that a manipulation claim requires ‘market activity aimed at deceiving investors as to how other market participants have valued a security.’ ATSI, 493 F.3d at 99-100, 105 (emphasis added).

[Pet. Panel Rehear. 4]

We write only to state the obvious: our opinion did not require that reliance by a victim on direct oral or written communications by a defendant must be shown in every manipulation case. Indeed, we agree with the propositions of law asserted by the SEC that, in a manipulation claim, a showing of reliance may be based on “market activity” intended to mislead investors by sending “a false pricing signal to the market,” upon which victims of the manipulation rely. ATSI, 493 F.3d at 100.

However, the discussion in ATSI of “false pricing signal[s] to the market” is derived from the Supreme Court’s use of the efficient market hypothesis to establish a rebuttable presumption of reliance based on the effect of misrepresentations on the market price of securities. Basic Inc. v. Levinson, 485 U.S. 224, 241-45, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988). ATSI extended a variation of that theory to market prices affected by manipulation. In the present case, however, there is no claim that there existed a market in any sense of the word for the shares Baron sold to appellants. The shares in question are not alleged to have been traded in any structure reasonably viewed as an independent market with publicly reported prices purportedly representing arms-length transactions based on supply and demand. See ATSI, 493 F.3d at 100-01 & n. 4. Therefore, there is not a claim that the inflated prices paid by appellants were based on “false pricing signal[s] to the market.” The allegations in the present complaint state only that Baron sold shares to appellants at prices that were manufactured by Baron salespeople but were represented as set by trading in a market that was falsely represented to exist. The appellants’ and the SEC’s concerns that our opinion disregarded ATSI are, therefore, wholly unfounded. Not only did our opinion cite ATSI repeatedly and quote extensively from it, but it read ATSI in a way favorable to manipulation claims. Our opinion stated the “market” “signaled” by manipulative conduct need not be fully efficient— a highly efficient market is an unlikely site for manipulation, see Fezzani v. Bear, Stearns & Co. Inc., 716 F.3d 18, 21 n. 2 (2d Cir.2013)—and suggested that a future court might create a rebuttable presumption of reliance in a less-than-efficient market context. See id. What we did not, and could not, say was that ATSI’s holding and rationale applies where no actual ongoing market for the securities in question exists.

Our point is illustrated by the claims against Dweck. There is no allegation that Dweck’s parking transactions, and their purported prices, were ever reported in a market. Indeed, there is no allegation that the “prices” used in the parking transactions — or in sham transactions by others coordinated with the parking — were ever made known to the buyers of the securities in question or that the securities were sold to appellants at prices “signaled” by the prices used in the parking or coordinated transactions. There are, in short, no factual allegations that Dweck’s parking transactions sent “a signal” to any identified market or that any buyer or seller relied upon the parking prices. In the entire 116-page complaint, appellants have not specifically pleaded a causal link between any single stock purchase or sale and a corresponding parking by Dweck or coordinated transactions by others. See ATSI, 493 F.3d at 106-07.

Even though each of the individual plaintiffs must show reliance on a misrepresentation for which the particular defendant is responsible, there is no factual allegation by any of the eleven individual plaintiffs as to how the various “signals,” “appearances,” or “illusions” emphasized in the dissent as created by Dweck’s parking moved the price they paid for particular shares. Much of the dissent turns on an attempt to confine the purposes of “parking” to avoiding downward pressure on a security’s market price. But parking, a tactic that we agree can be a serious violation, can have many purposes. To establish this, we need look no further than the SEC’s own description of Baron’s frauds. Having found the lack of an independent market for the securities fraudulently sold by Baron, the SEC stated that “[w]hile persons may park stock for a variety of reasons!,] Baron parked stock to maintain the appearance of compliance with the commission’s net capital rules.” In re Bear, Stearns Secs. Corp., 70 S.E.C. Docket 537, 1999 WL 569554, *3 n. 6 (1999).

We do not reject the “signals” theory. Far from it. We simply recognize that it is a red herring given the nature of appellants’ claims. The pleading gaps described above are hardly unintentional. The complaint seeks damages from all defendants for all losses of all plaintiffs whether or not a particular defendant is alleged to have engaged in a sham transaction in a security purchased by a particular plaintiff. For example, appellants’ claims against Dweck lump together sales of securities that Dweck did not park with those of securities he did park. Appellants claim that Dweck is liable for all of the losses of all of the plaintiffs whether or not the securities they bought were the subject of Dweck’s parking transactions.³ Clearly, ATSI’s reference to false pricing signals to a market necessarily has to involve — in private actions for damages — allegations of: (i) particular securities (ii) manipulated by particular defendants (iii) causing the losses to the particular buyers. See ATSI, 493 F.3d at 101-02. Appellant claims fail to meet that requirement.

To sum up, the facts alleged in this complaint do not involve any ongoing market affected by false pricing signals by Dweck. What they involve are misrepresentations to the victims by Baron salespeople as to how the price they were charging for particular securities was arrived at. Dweck’s role in parking certain securities was unknown to, and not relied upon by, those who purchased identical securities, much less by those who purchased securities not parked by Dweck. Although the complaint occasionally references an “inflated” market or “price movements,” there is no allegation that customers relied on publicly reported prices⁴ or anything other than the fraudulent representations of Baron salespeople. For all that appears in the complaint, the stock parking may have been intended to deceive regulators, as actually found by the SEC, 70 S.E.C. Docket 537, 1999 WL 569554, *3-4, and perhaps Bear Stearns, but is not alleged to have caused particular transactions. Our dissenting colleagues’ discussion of market manipulation, while indisputable in the abstract, is used to create a theory of manipulation in the absence of a market.

Given these facts, Stoneridge clearly applies to the claims against Dweck. There is no presumption of reliance based on any identifiable market, and — given the lack of an allegation that any plaintiff knew of the stock parking or prices used therein — no allegation of reliance upon the parking transactions. See Stoneridge, 552 U.S. at 159-60, 128 S.Ct. 761.

Finally, as we noted in our opinion, although claiming that defendants are liable for all losses of all investors caused by Baron, whether or not the losses involved sham transactions by a particular defendant, appellants have never offered either a theory of vicarious liability under state law or of controlling-person liability under federal law. The SEC’s amicus brief'fails even to purport to fill this gap.

1 . Isaac R. Dweck is sued individually and as a custodian for Nathan Dweck, Barbara Dweck, Morris I. Dweck, Ralph I. Dweck, and Jack Dweck. Although appellants refer broadly to “the Dwecks,” their allegations regarding the Dwecks seem to involve only Isaac R. Dweck.

2 . Appellants additionally argue that (1) they relied on Bear Stearns’s confirmation statements in future purchases of stock; (2) the confirmations and monthly statements were themselves manipulative acts directed at plaintiffs; and (3) the panel overlooked binding state court precedent as to aiding and abetting liability. None of these arguments warrant rehearing.

Arguments (1) and (2) may be rejected because appellants have still failed to sufficiently allege conduct not involving the ordinary functions of a clearing broker, as discussed above.

Argument (3) — regarding plaintiffs’ state law claim of aiding and abetting fraud — may also be easily dismissed. The District Court here dismissed that claim on the basis that "[a]s a matter of law, clearing brokers are not responsible or liable for the fraudulent sales practices of the introducing broker.” Fezzani v. Bear, Steams & Co., 592 F.Supp.2d 410, 426 (S.D.N.Y.2008) (citing Greenberg v. Bear, Steams & Co., 220 F.3d 22, 29 (2d Cir.2000)). Although Judge Crotty relied on federal rather than state precedent, the Greenberg case’s holding on this point is expressly as to New York state aiding and abetting liability. New York state law is not to the contrary, and 'we have recently reaffirmed exactly this principle. See In re Amaranth Natural Gas Commodities Litig., 730 F.3d 170, 185 (2d Cir.2013) ("|T]he mere performance of routine clearing services cannot constitute the aiding and abetting of fraud under New York law." (emphasis added)); Levitt, 710 F.3d at 466 ("Not does the ‘simple providing of normal clearing services to a primary broker who is acting in violation of the law ... make out a case of aiding and abetting against the clearing broker.’ ” (quoting Greenberg, 220 F.3d at 29)).

3 . The complaint alleges on page 107 that Dweck is liable for losses in the "Manipulated Securities.” Page 3 of the complaint defines "Manipulated Securities” to include several companies whose stock Dweck is not alleged to have parked or manipulated.

4 . The SEC's amicus brief states, in a footnote, that "the Commission previously found, and as judicially noticeable material confirms (i.e., news items, trading records, and public filings) the relevant securities traded 'in over-the-counter markets' (i.e., NASDAQ) and on AMEX. In re Bear, Stearns Secs. Corp., 54 S.E.C. 224, 228 (1999).” The citation has not led us to any SEC decision, much less one "finding” public trading of the securities in question. What the footnote may be referencing is a 1999 SEC decision, see In re Bear, Stearns Secs. Corp., 70 S.E.C. Docket 537, 1999 WL 569554, *2 (1999), that includes a cursory description of Baron's intended activities when it was founded in 1992: "Bressman and others established Baron in 1992 to underwrite the issuance of securities of small issuers trading in the over-the-counter markets, and to carry on market-making and retail sales of such securities.” This description hardly suffices to remedy the lack of any allegations in the complaint that transactions in the relevant securities and their pricing were publicly available or that the prices communicated by Baron salespeople were in any way related to publicly reported prices. Finally, and dispositively, even if publicly reported transactions with a connection to sales by Baron were alleged, they would not support the claims asserted in the complaint, which seeks to hold all defendants liable for all of the plaintiffs' losses. The suggestion that we take judicial notice of various unidentified documents that may or may not show public trades seems rather anomalous in light of the failure of the 116-page complaint to mention them and of the amicus brief's failure to provide detail. In any event, even if we discovered some public trading, that would not remedy the other problems described above.