Reese v. McGraw-Hill Companies, Inc.

293 F.R.D. 617, 2013 WL 5338328, 2013 U.S. Dist. LEXIS 136532
CourtDistrict Court, S.D. New York
DecidedSeptember 24, 2013
DocketNo. 08 Civ. 7202 (SHS)
StatusPublished
Cited by10 cases

This text of 293 F.R.D. 617 (Reese v. McGraw-Hill Companies, Inc.) 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
Reese v. McGraw-Hill Companies, Inc., 293 F.R.D. 617, 2013 WL 5338328, 2013 U.S. Dist. LEXIS 136532 (S.D.N.Y. 2013).

Opinion

OPINION & ORDER

SIDNEY H. STEIN, District Judge.

This securities fraud action was filed on behalf of a putative class of former shareholders of The McGraw-Hill Companies, Inc. to recover losses incurred as a result of the company’s alleged misstatements made by Standard & Poor’s (“S & P”), its financial services division. Plaintiffs brought claims [618]*618against McGraw-Hill and two of its executives—Harold McGraw III and Robert Ba-hash—pursuant to Section 10(b) and Rule 10b-5, as well as Section 20(a) of the Securities Exchange Act of 1934. This Court previously dismissed plaintiffs’ second amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See Reese v. McGrawHill Cos., No. 08 Civ. 7202(SHS), 2012 WL 9119573, 2012 U.S. Dist. LEXIS 83753 (S.D.N.Y. March 30, 2012), aff'd sub nom. Boca Raton Firefighters and Police Pension Fund v. Bahash, 506 Fed.Appx. 32 (2d Cir.2012).

Nearly one year after the issuance of this Court’s Order, interim lead plaintiff Boca Raton Firefighters and Police Pension Fund filed a motion seeking: (1) the extraordinary remedy of relief from final judgment pursuant to Federal Rule of Civil Procedure 60(b)(2) and (2) leave to amend the complaint for the third time pursuant to Federal Rules of Civil Procedure 15(a) and (d), citing new facts that allegedly would have changed the outcome. Almost two months later, plaintiffs filed an additional motion seeking leave to file a “Supplemental Memorandum with Additional, Recently Discovered Evidence” in support of their Rule 60(b)(2) motion.

Because the purported new facts set forth by plaintiffs would not have changed the outcome of the Court’s previous decision, those motions are denied.

I. Background

Plaintiffs based their securities fraud claims on allegations of egregious mismanagement by S & P of its ratings business— specifically of its ratings of residential mortgage-backed securities (“RMBS”) and collateralized debt obligations (“CDOs”) backed by those securities. According to the complaint, S & P’s ratings of these financial instruments were motivated not by an interest in the quality and accuracy of those ratings, but by S & P’s profits and its need to maintain market share—resulting in inaccurate and biased results. Taking these allegations as true, the Court nevertheless found that certain alleged misstatements were commercial puffery, that plaintiffs failed to allege with particularity circumstances demonstrating that other alleged misstatements were false, and that they failed to allege scienter adequately. Plaintiffs now urge that, because certain newly discovered facts correct these defects, this Court should rescind its previous dismissal of the complaint with prejudice.

A. Procedural History

This litigation began with the filing of a complaint in 2007 in the U.S. District Court for the District of Columbia. That court appointed Boca Raton Firefighters and Police Pension Fund, which had purchased shares of McGraw-Hill on the open market between October 2004 and March 2008, as interim lead plaintiff. Plaintiffs filed a consolidated class action complaint in May 2008, and the parties consented to a transfer of the litigation to the Southern District of New York in June 2008. Thereafter, plaintiffs filed in this Court an amended complaint in December 2008 and a second amended complaint in July 2010.

Following plaintiffs’ multiple opportunities to correct their pleadings, the Court dismissed the second amended complaint for failure to state a claim in a March 30, 2012 Order. Reese, 2012 WL 9119573, 2012 U.S. Dist. LEXIS 83753. That Order was affirmed in all respects by the U.S. Court of Appeals for the Second Circuit. Boca Raton Firefighters, 506 Fed.Appx. 32.

B. Dismissal of Plaintiffs Complaint and Affirmance of that Dismissal

The Court assumes the parties’ familiarity with the orders dismissing plaintiffs’ complaint and affirming that decision, but highlights certain aspects of their analyses upon which this Opinion focuses. Plaintiffs alleged that S & P and certain of its executives defrauded investors by making numerous material misstatements, which fell into three general categories. The two categories at issue here are statements representing the stringency, independence, and integrity of S & P’s credit ratings process (see, e.g., Second Am. Compl. ¶¶ 349, 351, 362) and statements regarding S & P’s ongoing surveillance of the [619]*619credibility of its ratings (see, e.g., id. ¶¶ 271, 325, 327).1

In the memoranda of law supporting the motion to reopen, plaintiffs emphasize several allegedly misleading statements by S & P executives from the second amended complaint regarding the integrity of the company’s ratings:

A statement by Executive Vice President Vickie Tillman during a July 2007 conference call in which she stated, inter alia, that “[tightening criteria may have an adverse impact on [S & P’s] market share, but [the company] will continue to develop and adjust [its] criteria to reflect how changing conditions impact credit risk.” (Id. at ¶ 349.)
•Tillman’s answer to a question on the same July 2007 call, in which she explained that S & P “raised [its] requirements in terms of ratings” in early 2007 for “collateralized mortgage-backed securities,” despite the fact that this action could “have an adverse impact on whether [investment banks] come to Standard & Poor’s or not, but that’s not what [S & P is] concerned about. We’re concerned about calling it as it is.” (Id. at ¶ 351.)
A statement by individual defendant McGraw during a September 2007 Goldman Sachs conference that S & P has “institutional safeguards in place to ensure the independence and integrity of [its ratings] opinions.” (Id. at ¶ 362.)
•Another statement by McGraw during that conference explaining that S & P does not differentiate between the financial products it rates, but rather “applies] its own predetermined, nonnegotiable, and publicly available criteria and assumptions to the facts presented”—even though “there may be more dialogue between S & P and an issuer in [a] structured finance transaction.” (Id.)

Plaintiffs similarly draw the Court’s attention to certain alleged misstatements regarding S & P’s ongoing surveillance of the credibility of its ratings from the second amended complaint:

A statement by Executive Managing Director of Structured Finance Ratings Joanne Rose during a July 2005 conference in which she explained that S & P has a “dedicated surveillance unit to oversee the continuing credibility of [its] ratings” and that the ratings are “regularly reviewed” and back tested “to show their credibility over time.” (Id. at ¶ 271.)
A statement by McGraw during a March 2007 conference that “S & P has [a] fully integrated surveillance process for residential mortgage-backed securities and CDOs ...

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293 F.R.D. 617, 2013 WL 5338328, 2013 U.S. Dist. LEXIS 136532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reese-v-mcgraw-hill-companies-inc-nysd-2013.