Levine v. Metal Recovery Technologies, Inc.

182 F.R.D. 108, 1998 U.S. Dist. LEXIS 21716, 1998 WL 557559
Procedural entryThis page is a short order in Levine v. Metal Recovery Technologies, Inc.. Read the opinion of the Court — 182 F.R.D. 112
District Court, D. Delaware·Decided June 26, 1998·No. No. Civ.A. 96-525-JJF·Published

Opinion

MEMORANDUM OPINION

FARNAN, Chief Judge.

Presently before the Court is Defendant Gary Salter’s Motion To Dismiss The Amended Class Action Complaint (D.I.75) pursuant to Federal Rules of Civil Procedure (“FRCP”) 9(b) and 12(b)(6). The Amended Complaint alleges that Defendant Salter engaged in a scheme and conspiracy to defraud that involved three basic components:

(1) certain Defendants, including Salter, issued statements regarding Malvy Technology, Inc.’s (“Malvy”)1 stage of development, principal product, and prospects which misrepresented and omitted material facts and had no factual basis;

(2) Defendant Salter in conspiracy with other Defendants bribed securities brokers and traders to induce them to aggressively sell Malvy stock to unsuspecting members of the investing public, and thereby, inflate the market price for Malvy stock; and

(3) Defendants laundered large amounts of unregistered stock into the United States market, in large part through Salter’s accounts, thereby reaping substantial personal profits. (D.I. 65). Specific to Salter,2 the Amended Complaint alleges that he violated Rule 10b-5 and Section 10(b) of the Securities Exchange Act of 1934 by conspiring with Defendants Lucas and Rabhi to manipulate and inflate the price of Malvy stock by means of false and misleading public statements and bribes to stock traders and brokers. (D.I. 65, para.15).

A. FRCP 9(b) Claim

Salter’s first argument in support of dismissal is that the Amended Complaint fails to allege fraud in compliance with FRCP 9(b), which requires that in pleading claims of fraud, “the circumstances constituting fraud ... shall be stated with particularity.” With regard to the claim that Salter caused press releases and investment reports to be issued, Salter contends that Plaintiff does not specifically allege, as required by the Private Securities Litigation Reform Act of 1995, (1) each statement that was allegedly made by Salter which Plaintiff claims to be misleading; or (2) the reason why such statement is misleading. (D.I. 76 at 3). Salter also argues that the bare allegations that he bribed stock brokers to stimulate trading activity and inflate the price of the Malvy stock do not satisfy the specificity requirements necessary to properly plead fraud. (D.I. 76 at 3-4).

Rule 9(b) requires a plaintiff to plead (1) a specific false representation of material fact; (2) knowledge by the person who made it of its falsity; (3) ignorance of its falsity by the person to whom it was made; (4) the intention that it should be acted upon; and (5) that the plaintiff acted upon it to his [111] damage. Shapiro v. UJB Financial Corp., 964 F.2d 272, 284 (3d Cir.1992) (citation omitted). In reviewing a pleading in a case involving corporate fraud, the Court of Appeals for the Third Circuit has emphasized that “plaintiffs cannot be expected to have personal knowledge of the details of corporate internal affairs,” particularly when the factual information is within the defendant’s knowledge or control. Id. at 285 (quotation omitted). All that is required is that the complaint place the defendants on notice of the precise misconduct with which they are charged. Gurfein v. Sovereign Group, 826 F.Supp. 890, 906 (E.D.Pa.1993). As this Court has noted previously, the requirement of particularity does not require “ ‘an exhaustive cataloging of facts but only sufficient factual specificity to provide assurance that plaintiff has investigated ... the alleged fraud and reasonably believes that a wrong has occurred.’ ” In re ML-Lee Acquisition Fund II, L.P. and ML-Lee Acquisition Fund (Retirement Accounts) II, L.P. Securities Litigation, 848 F.Supp. 527, 555 (D.Del. 1994) (quotations omitted).

Here, the Amended Complaint identifies with particularity the participants in the fraud (specifying Salter’s role), the nature of the fraud, where and when the fraud occurred, and the means that Defendants used to perpetrate it. As to the bribery claim, the Amended Complaint identifies four of the persons whom Salter bribed, states that three of them have pled guilty to accepting the bribes, and describes the sworn testimony of Salter’s former assistant that Salter bribed approximately 100 brokers across the country to induce them to sell Malvy stock to their clients. (D.I. 65, para. 41). Moreover, Plaintiff alleges that Salter paid undisclosed bribes to 100 brokers in the range of 15-20% of any Malvy stock sold, in response to Salter’s argument that these bribes were mere commissions. (D.I. 65, para. 41). The Court concludes that the Amended Complaint alleges with sufficient particularity that Salter engaged in a bribery scheme.

Similarly, the Court is persuaded that Plaintiff has adequately alleged Salter’s misrepresentations relating to Malvy. The Amended Complaint specifically describes the Focus Reports and Press Release issued by Salter’s company, CAM, and it further details those statements which were allegedly misleading. (D.I. 65, para. 45, 47-48, 69). Moreover, Salter’s knowledge of the misrepresentation is substantiated by his alleged bribery activities and his undisclosed sales of over 1.6 million shares of unregistered Malvy stock. Consequently, the Court concludes that Plaintiffs Amended Complaint adequately pleads Salter’s misrepresentations in sufficient detail.

B. FRCP 12(b)(6) Claim

Salter contends that the Amended Complaint fails to plead the requisite elements to state a cause of action under Section 10(b) of the Securities Exchange Act of 1934. Under Section 10(b), a plaintiff must show that (1) the sale or purchase of a security was accompanied by a misrepresentation or omission of a material fact; (2) the defendant acted with scienter; (3) the plaintiff justifiably relied on such misrepresentation in connection with the purchase or sale of a security; and (4) the plaintiff suffered damage as a result of the misrepresentation or omission. See Sowell v. Butcher & Singer, Inc., 926 F.2d 289, 296 (3d Cir.1991) (citations omitted).

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Levine v. Metal Recovery Technologies, Inc., 182 F.R.D. 108, 1998 U.S. Dist. LEXIS 21716, 1998 WL 557559 (D. Del. 1998).

182 F.R.D. 108 (Levine v. Metal Recovery Technologies, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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