In re Virtus Investment Partners, Inc. Securities Litigation

195 F. Supp. 3d 528, 2016 U.S. Dist. LEXIS 86149
CourtDistrict Court, S.D. New York
DecidedJuly 1, 2016
Docket15cv1249
StatusPublished
Cited by26 cases

This text of 195 F. Supp. 3d 528 (In re Virtus Investment Partners, Inc. Securities Litigation) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Virtus Investment Partners, Inc. Securities Litigation, 195 F. Supp. 3d 528, 2016 U.S. Dist. LEXIS 86149 (S.D.N.Y. 2016).

Opinion

OPINION & ORDER

WILLIAM H. PAULEY III, District Judge:

Lead Plaintiff, the Arkansas Teacher Retirement System, brings this securities class action on behalf of itself and others who purchased the publicly traded securities of Defendant Virtus Investment Partners (“Virtus Partners”) between January 25, 2013 and May 11, 2015. Defendants Virtus Partners, Virtus Opportunities Trust (“Virtus Trust”), George R. Ayi-ward, Michael A. Angerthal, Jeffrey T. Cerutti, and Francis G. Wattman (collectively, “Defendants”) move to dismiss the Consolidated Class Action Complaint (“Complaint”). Defendants’ motion to dismiss is granted in part and denied in part.

BACKGROUND

The allegations in the Complaint are presumed to be true for purposes of this motion. In 2009, after its initial public offering, Virtus Partners began marketing -a new family of funds called ‘AlphaSector.” (Complaint ¶ 4-5.) AlphaSector was based on an algorithm formulated by a 20-year old intern, purporting to use a proprietary strategy that had outperformed the S&P 500 for years. (Complaint ¶ 5.) Virtus Investment Advisers (“Virtus Advisers”), an entity owned and controlled by Virtus Partners, retained F-Squared Investments, Inc. (“F-Squared”) to sub-advise on AlphaSector funds offered by Virtus Trust.

In marketing materials, Virtus Trust represented that the outsized pei'formance of the AlphaSector indices was achieved through live trading with real client assets beginning in 2001. (Complaint ¶ 6.) In fact, the AlphaSector indices did not come into existence until 2008. (Complaint ¶ 50.) Over the next four years, Defendants marketed the AlphaSector funds under the Virtus moniker, emphasizing its stellar performance record.

A. The Boca Raton Conference

In December 2012, Virtus Partners convened a conference in Boca Raton for its wholesalers. Cerutti and Wattman attended and Aylward participated by telephone. (Complaint ¶ 79.) During the conference, Howard Present, F-Squared’s principal, lauded AlphaSector’s returns and performance record to the assembled sales force. He noted that “the AphaSector Premium Index [was] based on an active strategy with an inception date of April 1, 20Ó1. Inception date is defined as the date as on which investor assets began tracking the strategy.” (Complaint ¶ 80.) After Present addressed the conferees, Virtus Partners’ product manager cautioned , the wholesalers to disregard Present’s claim that Al-phaSector’s performance was based on a live strategy going back to 2001 because the index was only developed in 2008, and pre-2008 returns were based on back-tested, hypothetical assets. (Complaint ¶81.) According to the Complaint, Defendants’ senior management sat “stone-faced” while the sales force expressed visible shock at this revelation. (Complaint ¶¶ 82-85.)

B. The 2013 Registration Statements and SEC Investigation

Despite the startling disclosure at the Boca Raton conference, Defendants contin[534]*534ued to tout AlphaSector’s performance. (Complaint ¶ 86.) Indeed, the January 25, 2013 Registration Statement, signed by Aylward, and the accompanying January 31, 2013 Prospectus—both issued by Vir-tus Trust and filed with the SEC—noted that the “inception date” of the indices was April 1, 2001 and continued to report pre-October 2008 performance as “live,” (Complaint ¶ 91.)

In July 2013, the SEC initiated an investigation into F-Squared and AlphaSector’s performance history. (Complaint ¶ 97.) In the wake of that investigation, Virtus Trust excised that portion of its registration statement discussing AlphaSector’s pre-2008 track record without making any corrective disclosure. (Complaint ¶¶ 104-OS.) Shortly thereafter, Aylward (and other non-defendants) organized a conference call and told Virtus employees to destroy any materials they had relating to Alpha-Sector’s track record. (Complaint ¶ 102.)

In September 2013, Virtus Partners issued 1,129,000 shares of common stock. At the time, Virtus Trust’s operative registration statement and prospectus, filed in June 2013, highlighted Virtus Partners’ ability to monitor the “quality” of its sub-advisers, including F-Squared: “We monitor the quality of our products by assessing the managers’ performance, style, consistency and the discipline with which they apply their investment process. ... Our primary objective is to provide clients with a diverse offering of high-quality investment capabilities from the best managers.” (Complaint ¶ 95.)

In December 2013, The Wall Street Journal reported that F-Squared was “under scrutiny” because its marketing materials reflected theoretical performance, not actual investor returns. Eleven months later, Present resigned from F-Squared. (Complaint ¶ 116.) And in December 2014, F-Squared admitted to “willfully” violating securities laws, and settled with the SEC by paying $35 million in disgorgement and civil monetary penalties. (Complaint ¶ 117.)

In February 2015, Plaintiff filed this securities class action, asserting claims under Sections 10(b) and 20(a) of the Securities Act of 1934 and Rule 10b-5 promulgated thereunder.

LEGAL STANDARD

To withstand dismissal, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In assessing plausibility, courts follow a “two-pronged approach.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. First, a court must take the plaintiffs “factual allegations to be true and draw[ ] all reasonable inferences in the plaintiffs favor.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (citation omitted). But “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Second, a court must determine “whether the ‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an entitlement to relief.’” Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir.2010) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937).

Under Fed. R. Civ. P. 9(b), a securities fraud complaint must satisfy heightened pleading requirements, “stating with particularity the circumstances of fraud.” Employees’ Ret. Sys. of Gov’t of the Virgin Islands v. Blanford, 794 F.3d 297, 304 (2d Cir.2015) (citation omitted). Additionally, the Private Securities Litigation Reform Act (“PSLRA”) requires that a complaint state with particularity “each statement alleged to have been misleading,” the “reason or reasons why the statement is mis[535]*535leading,” and facts “giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u4(b)(1), (2)(A).

DISCUSSION

I. Primary Liability Under Section 10(b) and Rule 10b-5

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Bluebook (online)
195 F. Supp. 3d 528, 2016 U.S. Dist. LEXIS 86149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-virtus-investment-partners-inc-securities-litigation-nysd-2016.