In re Colonial BancGroup, Inc. Securities Litigation

9 F. Supp. 3d 1258, 2014 U.S. Dist. LEXIS 40808, 2014 WL 1259658
CourtDistrict Court, M.D. Alabama
DecidedMarch 27, 2014
DocketCase No. 2:09-CV-00104-RDP-WC
StatusPublished
Cited by2 cases

This text of 9 F. Supp. 3d 1258 (In re Colonial BancGroup, Inc. Securities Litigation) is published on Counsel Stack Legal Research, covering District Court, M.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Colonial BancGroup, Inc. Securities Litigation, 9 F. Supp. 3d 1258, 2014 U.S. Dist. LEXIS 40808, 2014 WL 1259658 (M.D. Ala. 2014).

Opinion

MEMORANDUM OPINION

R. DAVID PROCTOR, District Judge.

This matter is before the court on the remaining portion of PwC’s Motion to Dismiss Plaintiffs’ First Amended Consolidated Class Action Complaint (“FAC”) (Doc. #436), and deals with a claim asserted against PwC not addressed in the court’s prior Order. (Doc. # 522). That particular claim arises under Section 10(b) of the Securities Exchange Act of 1934 (the “Act”), which forbids:

[A]ny person, directly or indirectly ... [from] ... us[ing] or employ[ing], in connection with the purchase or sale of any security registered on a national securities exchange ... any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.

15 U.S.C. § 788(b). Rule 10b-5, issued by the Securities Exchange Commission under Section 10(b) of the Act, makes it unlawful:

(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 [1263]*1263circumstances 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.

17 C.F.R. § 240.10b-5.

I. Applicable Law

Pursuant to Section 10(b) and Rule 10b-5, a securities fraud claim based on failure to reveal information to investors has six required elements: “(1) a material misrepresentation or omission; (2) made with scienter; (3) a connection with the purchase or sale of a security; (4) reliance on the misstatement or omission; (5) economic loss; and (6) a causal connection between the material misrepresentation or omission and the loss, commonly called ‘loss causation.’ ” Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1236-37 (11th Cir.2008) (quoting Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 341-42, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)).

Securities fraud claims, like general fraud claims, must meet the heightened pleading standard of Federal Rule of Civil Procedure 9(b), which requires that such claims be pled with “particularity.” Fed. R.Civ.P. 9(b). The requirements of Rule 9(b) are designed to notify defendants of the “precise misconduct with which they are charged.” Ziemba v. Cascade Intern., Inc., 256 F.3d 1194, 1202 (11th Cir.2001) (quoting Durham v. Bus. Mgmt. Assocs., 847 F.2d 1505, 1511 (11th Cir.1988) but internal quotations omitted). In Ziemba, the Eleventh Circuit found that Rule 9(b) was satisfied when the complaint states “(1) precisely what statements were made in what documents or oral representations or what omissions were made, and (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) same, and (3) the content of such statements and the manner in which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the fraud.” Id. (quoting Brooks v. Blue Cross and Blue Shield of Florida, Inc., 116 F.3d 1364, 1371 (11th Cir.1997)). Under Rule 9(b), “[mjalice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b).

In 1995, Congress passed the Private Securities Litigation Reform Act (“PSLRA”), which was intended to be “a check against abusive litigation by private parties.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 313, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). Upon its passage, the PSLRA was intended to impose stringent pleading requirements on securities fraud plaintiffs and made two important changes in the area of securities fraud class action pleading. First, a securities fraud class action complaint must “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.” 15 U.S.C. § 78u-4(b)(l)(B). Second, the PSLRA requires a securities fraud plaintiff to offer heightened pleading of scien-ter:

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.

[1264]*126415 U.S.C. § 78u-4(b)(2). The Supreme Court has held that this “strong inference” of scienter is met when the inference is “more than merely plausible or reasonable — it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent.” Tellabs, 551 U.S. at 314, 127 S.Ct. 2499 (emphasis added). This inquiry should focus on whether “all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard.” Id. at 323, 127 S.Ct. 2499.

The Eleventh Circuit has also addressed claims under Section 10(b) and Rule 10b-5 and has found that those provisions “require a showing of either an Intent to deceive, manipulate, or defraud’ or ‘severe recklessness.’ ” Mizzaro, 544 F.3d at 1238 (quoting Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1282 (11th Cir.1999)).

Severe recklessness is limited to those highly unreasonable omissions or misrepresentations that involve not merely simple or even inexcusable negligence, but an extreme departure from the standards of ordinary care, and that present a danger of misleading buyers or sellers which is either known to the defendant or is so obvious that the defendant must have been aware of it.

Id.

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Bluebook (online)
9 F. Supp. 3d 1258, 2014 U.S. Dist. LEXIS 40808, 2014 WL 1259658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-colonial-bancgroup-inc-securities-litigation-almd-2014.