Lord Abbett Municipal Income Fund, Inc. v. Asami

653 F. App'x 553

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 29, 2016
• Docket: 14-16532
• Status: Unpublished

Opinion

MEMORANDUM *

Lord Abbett Municipal Income Fund, located in New Jersey, appeals from the district court’s grant of summary judgment to the defendants in Lord Abbett’s action for damages arising out of its purchase of bonds issued by a California nonprofit private school that later failed, Win-drush. We affirm the district court’s judgment in favor of both the individual board members of the school and Stone & Youngberg (“S & Y”), the broker-dealer handling the sale of the bonds.

The district court did not err in granting summary judgment in favor of S & Y under both the California Securities Act and the New Jersey Uniform Securities Law. There is no dispute that the California Securities Act requires strict privity between a buyer and a seller in order to maintain a claim against a seller for relief. See, e.g., Apollo Capital Fund, LLC v. Roth Capital Partners, LLC, 158 Cal.App.4th 226, 70 Cal.Rptr.3d 199, 221-22 (2007). Lord Abbett argues that privity is not required under the New Jersey Uniform Securities Law, but the controlling authority is the New Jersey Supreme Court’s decision in Kaufman v. i-Stat Corp., 165 N.J. 94, 754 A.2d 1188 (N.J. 2000), which holds that the New Jersey Uniform Securities Law does require privity. 754 A.2d at 1197-98.

While Lord Abbett contends that there was privity because S & Y was a seller, the controlling document is the contract between Windrush and S & Y. It established S & Y’s role as a “placement agent,” not a seller. As a placement agent, S & Y was required to use its best efforts to find purchasers for the bonds; the agreement did not create any obligation on the part of S & Y to pay Windrush for the bonds if purchasers were not found.

While in some transactional documentation, S & Y referred to itself as an “underwriter” or “principal,” the district court correctly observed that these were labels that did not define the role S & Y played in the bond issuance. The contract established the relationship between S & Y and the school.

The district court did not err in disregarding a declaration of Lord Abbett’s proffered expert witness. She had not been established as an expert, and in any event, her testimony was offered for the purpose of creating an ambiguity in the document that contained none.

With respect to the 20.10 purchase of the bonds .by Lord Abbett in the secondary market, there could have been no reasonable reliance on the three-year-old preliminary limited offering memorandum (“PLOM”). The defendants had made available to Lord Abbett information that would have shown that the projections would not be fulfilled. Lord Abbett was invited to attend a conference call in which the relevant information was provided, but Lord Abbett did not participate.

Under California law, the board members are not vicariously liable to Lord Abbett because they did not authorize, direct, or otherwise meaningfully participate in making the alleged misrepresentations in the PLOM. United States Liab. Ins. Co. v. Haidinger-Hayes, Inc., 1 Cal.3d 586, 83 Cal.Rptr. 418, 463 P.2d 770, 775 (1970); Frances T. v. Village Green Owners Ass’n, 42 Cal.3d 490, 229 Cal.Rptr. 456, 723 P.2d 573, 580-84 (1986). The board members are not individually liable to third persons for negligence amounting to nonfeasance in a case that involves only pecuniary harm. See id.

AFFIRMED.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.