Richard F. Thompson v. Relationserve Media, Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 30, 2010
• Docket: 07-13225
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 07-13225 JUNE 30, 2010 ________________________ JOHN LEY CLERK D. C. Docket No. 06-61327-CV-PCH

RICHARD F. THOMPSON,

Plaintiff, L. ALAN JACOBY,

Plaintiff-Appellant Cross-Appellee,

versus

RELATIONSERVE MEDIA, INC., a.k.a. SendTec, Inc.,

Defendant-Appellee,

DANIELLE KARP,

Defendant-Appellee Cross-Appellant,

MANDEE HELLER ADLER, WARREN “PETE” MUSSER, SCOTT YOUNG, et al.,

Defendants-Appellees. ________________________

Appeals from the United States District Court for the Southern District of Florida _________________________ (June 30, 2010)

Before TJOFLAT and BLACK, Circuit Judges, and EVANS,* District Judge.

BLACK, Circuit Judge:

This case comes to us as an appeal from the dismissal of appellant L. Alan

Jacoby’s putative class action lawsuit. In his Second Amended Complaint, Jacoby

alleged RelationServe Media, Inc.1 and eleven of its directors and employees2

violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by failing

* Honorable Orinda D. Evans, United States District Judge for the Northern District of Georgia, sitting by designation. 1 The principal defendant in this case, RelationServe Media, Inc. (RelationServe), is an internet marketing firm that maintains its principal place of business in Fort Lauderdale, Florida. RelationServe and Chubasco Resources Corporation merged on June 13, 2005. Following the merger, Chubasco Resources Corporation changed its name to RelationServe. On July 26, 2006, RelationServe changed its name to SendTec, Inc. For purposes of this opinion, we refer to SendTec, Inc. as RelationServe. 2 These defendants, with the exception of one, are (or were) officers and/or directors of RelationServe (Officers). Between June 2005 and February 2006, Danielle Karp served as President, Scott Hirsch served as Chief Operating Officer, and Adam Wasserman served as Chief Financial Officer (CFO). Eric Obeck has served as President since February 2006. Mandee Adler served as Chief Executive Officer (CEO) between June 2005 and November 2005, followed by Shawn McNamara as interim CEO and Vice President until June 2006. In February 2006, Paul Soltoff became CEO, and Donald Gould became CFO. Warren Musser was appointed Chairman of the Board of Directors in June 2005 and served until October 2005, at which point Michael Brausser became Chairman of the Board and served until September 2006. Scott Young was the founder and president of Chubasco and served in that capacity until June 13, 2005.

2 to disclose, before the company went public, that $2,000,000 in stock had been

privately offered for sale by unregistered brokers in ten different states. In the

district court, Jacoby joined co-plaintiff Richard Thompson, who had previously

initiated this action. Thompson represented a subclass seeking recovery premised

on state law claims in the Second Amended Complaint. After twice allowing the

plaintiffs to amend their complaint, the district court dismissed with prejudice

Jacoby’s § 10(b) and § 20(a) claims pursuant to Fed. R. Civ. P. 12(b)(6). The

district court found the allegations of the Second Amended Complaint failed to

satisfy the heightened pleading requirements of the Private Securities Litigation

Reform Act (PSLRA)3 and Rule 9(b) of the Federal Rules of Civil Procedure. The

court then dismissed Thompson’s state law claims without prejudice after

concluding it no longer had supplemental jurisdiction over those claims. In

separate orders, on three different occasions, the district court denied defendant

Danielle Karp’s motions for attorneys’ fees and Rule 11 sanctions.

Jacoby appeals the dismissal of his federal securities-law putative class

action. Additionally, Karp cross-appeals the denial of her request for Rule 11

3 The PSLRA applies to private actions seeking relief on the basis of alleged violations of the Securities Act of 1933 and the Securities Exchange Act of 1934. See 15 U.S.C. § 77z-1(c) (1933 Act) and 15 U.S.C. § 78u-4(c) (1934 Act).

3 sanctions and attorneys’ fees.4 Because we conclude the Second Amended

Complaint fails to satisfy the standard for pleading scienter, we affirm the district

court’s dismissal of Jacoby’s § 10(b) and § 20(a) claims. With regard to sanctions,

we remand to the district court to make findings in accordance with the PSLRA.

I. FACTUAL ALLEGATIONS 5

On May 24, 2005, RelationServe entered into an Independent Consulting

Agreement with Summit Financial Partners, LLC (Summit). Under the agreement,

Summit sold shares of RelationServe through a private offering to investors in

exchange for 1,050,000 shares of stock and a 7% seller’s fee.

On June 14, 2005, RelationServe filed a Form 10-QSB quarterly statement,

its first Securities and Exchange Commission (SEC) filing, indicating Chubasco

Resources Corporation (Chubasco) had completed a reverse acquisition of

RelationServe. RelationServe Media Inc. Quarterly Report–Small Business (Form

10-QSB), at 5 (June 14, 2005).6 On June 16, 2005, RelationServe filed a Form 8-K

4 Karp also cross-appeals the dismissal of Thompson’s state law claims, contending she is aggrieved because Thompson re-filed the claims in state court and she “is now facing the same frivolous allegations.” Thompson’s state court action has subsequently been dismissed with prejudice, so we decline to consider this aspect of Karp’s cross-appeal. 5 In considering a motion to dismiss, we accept all well-pleaded facts as true, and we make all reasonable inferences in favor of the plaintiff. Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir 1999)). Because the Second Amended Complaint alleges violations of securities laws, we may also take judicial notice of relevant SEC filings. Id. at 1278. 6 RelationServe had no duty to file securities filings prior to the merger with Chubasco.

4 and disclosed, for the first time, the Independent Consulting Agreement7 with

Summit. RelationServe Media Inc., Current Report (Form 8-K), at 29 (June 16,

2005).8 On June 28, 2005, twelve days after RelationServe disclosed its

relationship with Summit, Richard F. Thompson, an Indiana resident, purchased

50,000 shares at $2.00 per share. Tony Altavilla, a Summit employee, had advised

Thompson about the private offering and helped facilitate Thompson’s purchase of

the shares. On June 30, 2005, RelationServe became a publicly-traded company

and reported to the SEC it had received $2,000,000 in subscriptions through a

private offering.9 That same day, RelationServe listed its non-restricted shares on

the Over the Counter Bulletin Board. On July 22, July 26, and August 12, 2005, L.

Alan Jacoby purchased a total of 10,000 shares of RelationServe on the open

market.

7 A full copy of the Agreement between RelationServe and Summit was attached to the SEC filing as an exhibit; this attachment included language which explicitly noted Summit was not acting as a broker/dealer for RelationServe, but rather serving as a promoter of the company. 8 The Second Amended Complaint omitted any reference to RelationServe’s June 16, 2005, Current Report. 9 The report filed with the SEC disclosed RelationServe “completed a private offering of Units to ‘accredited investors,’” RelationServe “received and accepted $2,000,000 of subscriptions in the Offering,” and “[t]he Units were issued in reliance on an exemption from registration provided under Regulation D of the Securities Act and are restricted securities as defined by the Securities Act.” RelationServe Media, Inc., Current Report (Form 8-K), at 2 (June 30, 2005).

5 On March 3, 2006, Thompson filed a lawsuit in Indiana state court against

RelationServe and several of the defendants named in this federal action.

Unrelated to this litigation, RelationServe filed a registration statement with the

SEC on March 20, 2006. This statement did not mention the Thompson litigation.

On May 1, 2006, RelationServe amended the registration statement to provide the

public with notice of the lawsuit, and indicated it believed the suit lacked merit. In

response to an inquiry from the SEC requesting more details about the lawsuit,

RelationServe updated its filings on May 23, 2006.10

On May 23, 2006, RelationServe stock was valued at $1.35 per share. Three

weeks later, on June 15, 2006, the stock was valued at $0.63 per share. Jacoby

attributes this decline in value to the public disclosure of Thompson’s lawsuit.

II. PROCEEDINGS IN THE DISTRICT COURT

On August 28, 2006, Thompson initiated this action by filing a class action

in the United States District Court for the Southern District of Florida.

RelationServe and the other defendants moved to dismiss the complaint; the

10 The May 23 amendment stated, in part, “[t]he Company intends to file a motion to dismiss this action because the shares did not need to be registered under Indiana Law, as they were exempt from registration as a ‘federal covered security.’” RelationServe Media, Inc., Amendment No. 2 to Form SB-2 Registration Statement (Form SB-2/A), at 64-65 (May 23, 2006). The amendment also noted “Mr. Altavilla did not sell shares on the Company’s behalf[,]” although he “did receive, in addition to other compensation, a finder’s fee in the amount of 7% of total gross funding provided for introductions made by him to investors not already having a preexisting relationship with the Company.” Id.

6 district court then denied these motions and ordered that Thompson file an

amended complaint. On November 13, 2006, Thompson filed the First Amended

Complaint, which added Jacoby as a co-plaintiff. The defendants again moved to

dismiss, and on March 6, 2007, the district court dismissed the amended complaint

without prejudice.

On March 19, 2007, Thompson and Jacoby filed the Second Amended

Complaint, raising claims for two putative classes: one, led by Thompson, which

included all purchasers of securities through unregistered broker/dealers of

RelationServe, and another, led by Jacoby, which included all purchasers who

bought RelationServe stock on the open market prior to May 23, 2006. Defendants

then moved to dismiss the Second Amended Complaint for failure to state a claim,

and this time the district court granted the motion with prejudice, concluding

Jacoby had failed to state a claim for a violation of either § 10(b) or § 20(a) of the

Securities Act. The district court also dismissed without prejudice Thompson’s

state law claims for lack of subject matter jurisdiction.

Once before and twice after the district court dismissed the Second

Amended Complaint, defendant Karp moved for Rule 11 sanctions and attorneys’

fees, contending the claims against her were frivolous and demonstrated an utter

7 lack of legal or factual investigation. The district court denied the motions in three

separate orders. This appeal and cross-appeal ensued.

III. DISCUSSION

Our discussion is divided into three parts. First, we address whether the

Second Amended Complaint satisfies the standard for pleading scienter. Second,

we address whether the Second Amended Complaint states a claim of secondary

liability under § 20(a). Third, we address the district court’s refusal to impose

Rule 11 sanctions and award attorneys’ fees.

A. Scienter Pleading Requirements

We review the grant of a motion to dismiss for failure to state a claim under

Fed. R. Civ. P. 12(b)(6) de novo. Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500

F.3d 1276, 1282 (11th Cir. 2007).

In Count I, Jacoby asserted a violation of § 10(b) of the Securities Act and

SEC Rule 10b-5. Section 10(b) of the Securities Act makes it unlawful to “use or

employ, in connection with the . . . sale of any security . . . any manipulative or

deceptive device or contrivance.” 15 U.S.C. § 78j(b). Pursuant to § 10(b), the

SEC promulgated Rule 10b-5, which makes it unlawful, among other things, “to

make any untrue statement of a material fact or to omit to state a material fact

8 necessary in order to make the statements made, in the light of the circumstances

under which they were made, not misleading.” 17 C.F.R. § 240.10b-5(b).

To state a claim for a violation of § 10(b), a plaintiff must allege: (1) the

existence of a material misrepresentation (or omission), (2) made with scienter

(i.e., “a wrongful state of mind”), (3) in connection with the purchase or sale of any

security, (4) on which the plaintiff relied, and (5) which was causally connected to

(6) the plaintiff’s economic loss. Dura Pharm. Inc. v. Broudo, 544 U.S. 336, 341-

42, 125 S. Ct. 1627, 1631 (2005); see also Bryant v. Avado Brands, Inc., 187 F.3d

1271, 1281 (11th Cir. 1999) (elaborating on the scienter requirement).11 Because

Rule 10b-5 sounds in fraud, the plaintiff must plead the elements of its violation

with particularity. See Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1237 (11th

Cir. 2008) (stating Rule 9(b) requires securities fraud complaints “to state with

particularity the circumstances constituting fraud”).

When a § 10(b) claim is brought by a private litigant, it is subject to the

PSLRA, under which a plaintiff must “state with particularity facts giving rise to a

strong inference that the defendant acted with the required state of mind.” 15

U.S.C. § 78u-4(b)(2). In this context, a “strong inference” of scienter is one that is

11 Because we hold the Second Amended Complaint fails to satisfy the standard for pleading scienter, we do not reach the questions of whether the Second Amended Complaint adequately pleads the other elements of a § 10(b) claim.

9 “more than merely plausible or reasonable—it must be cogent and at least as

compelling as any opposing inference of nonfraudulent intent.” Tellabs, Inc. v.

Makor Issues & Rights, Ltd., 551 U.S. 308, 314, 127 S. Ct. 2499, 2504-05 (2007).

Three guidelines govern our review: courts must (1) “accept all factual allegations

in the complaint as true,” (2) “consider the complaint in its entirety” and determine

“whether all of the facts alleged, taken collectively, give rise to a strong inference

of scienter,” and (3) “take into account plausible opposing inferences.” Tellabs,

551 U.S. at 322-23, 127 S. Ct. at 2509; see also Rosenberg v. Gould, 554 F.3d 962,

965 (11th Cir. 2009). Moreover, “scienter must be found with respect to each

defendant and with respect to each alleged violation of the statute.” Phillips v.

Scientific-Atlanta, Inc., 374 F.3d 1015, 1017-18 (11th Cir. 2004).

Although the PSLRA imposes a heightened standard for pleading scienter, it

does not alter the substantive intent requirements necessary to establish a § 10(b)

and Rule 10b-5 violation. Mizzaro, 544 F.3d at 1238. In this Circuit, § 10(b) and

Rule 10b-5 require a showing of either an “intent to deceive, manipulate, or

defraud,” or “severe recklessness.” Id. (quoting Bryant, 187 F.3d at 1282). An

allegation of “severe recklessness” must satisfy a demanding standard:

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

10 sellers which is either known to the defendant or so obvious that the defendant must have been aware of it.

Bryant, 187 F.3d at 1282 n.18. Accordingly, to survive a motion to dismiss,

Jacoby “must (in addition to pleading all of the other elements of a § 10(b) claim)

plead ‘with particularity facts giving rise to a strong inference’ that the defendants

either intended to defraud investors or were severely reckless when they made the

allegedly materially false or incomplete statements.” Mizzaro, 544 F.3d at 1238.

The Second Amended Complaint alleges RelationServe did not disclose a

broker was involved in the securities sale to hide the fact that RelationServe sold

securities through unregistered brokers. Further, the Second Amended Complaint

asserts this act of hiding RelationServe’s use of a broker “could not have been

perpetrated over a substantial period of time . . . without the knowledge and

complicity of the . . . individual Defendants.” Viewed holistically, the Second

Amended Complaint alleges the following facts as supporting a reasonable

inference of scienter: (1) ten of the individual defendants “signed [or authorized]

one or more certification[s] pursuant to the Sarbanes-Oxley Act that impermissibly

omitted material facts;” (2) each individual defendant held a management position

at RelationServe; (3) each individual defendant was “involved in the drafting,

producing, reviewing, and/or dissemination of misleading statements and [was]

aware [of]—or recklessly disregarded—the fact that misleading statements were

11 being issued and approved or ratified these statements;” (4) each individual

defendant, “by virtue of [his or her] receipt of information . . . , control over or

receipt of RelationServe[’s] materially misleading statements and/or [his or her]

associations with RelationServe . . . [was an] active and culpable participant[];” (5)

several individual defendants signed SEC forms “that failed to indicate

RelationServe had contracted with Summit;” and (6) there were “accounting

irregularities” in RelationServe’s financial statements.

These conclusory allegations are insufficient to establish a “strong inference

that the defendants acted with the required state of mind.” See Tellabs, 551 U.S.

at 314, 127 S. Ct. at 2504. The inference that the individual defendants purposely

failed to disclose the use of unregistered brokers to mislead the public regarding

the company’s worth is not as compelling as the competing inference that the

defendants did not disclose its use of unregistered brokers because the brokers

were exempt from registration. Without an allegation that any of the named

defendants knew the Summit employees (1) were not registered brokers and (2)

were required to be registered brokers, we cannot conclude the inference of

nefarious wrongdoing is “at least as compelling as any opposing inference of

nonfraudulent intent.” See id.

12 Even if the Second Amended Complaint alleged the sales were not exempt

transactions, it would still not be a “cogent” possibility that the defendants failed to

disclose the use of unregistered brokers for the purpose of misleading the public.

The Second Amended Complaint does not allege facts tending to show that any of

the individual defendants were even aware of RelationServe’s relationship with

Summit. This is particularly so with respect to defendants Soltoff, Obeck, and

Gould—who, according to the Second Amended Complaint, were not employed by

RelationServe until after the events relied on by plaintiffs occurred—and with

respect to defendant Young—who, according to the Second Amended Complaint,

was not employed by RelationServe.

Simply put, the allegations in the Second Amended Complaint are

insufficient to create a “strong inference” of scienter. Accordingly, the district

court did not err by dismissing Jacoby’s § 10(b) and Rule 10b-5 claims against the

individual defendants under the heightened pleading standards imposed by the

PSLRA.

Although the Second Amended Complaint failed to adequately plead

scienter for any of the individual defendants, theoretically, the Second Amended

Complaint could create a strong inference that the corporate defendant,

RelationServe, acted with the requisite state of mind. Mizzaro, 544 F.3d at 1254.

13 Corporations have no state of mind of their own; rather, the scienter of their agents

must be imputed to them. Id. Here, the Second Amended Complaint fails to

sufficiently plead scienter as to any of the individuals who served as corporate

directors or officers of RelationServe, and there are no other allegations that give

rise to an inference of scienter. Thus, we affirm the district court’s dismissal of

Count I for failure to state a cause of action under § 10(b) and Rule 10b-5 of the

Securities Exchange Act.

B. Secondary Liability Under Section 20(a)

In Count II, Jacoby asserted a violation of § 20(a) of the Securities Exchange

Act. Section 20(a) provides:

Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action.

15 U.S.C. § 78t(a). Section 20(a) is not a freestanding claim but rather a means of

imposing liability “not only on the person who actually commits a securities law

violation, but also on an entity or individual that controls the violator.” Laperriere

v. Vesta Ins. Group, Inc., 526 F.3d 715, 721 (11th Cir. 2008).

14 Because a primary violation of the securities law is an essential element of a

§ 20(a) derivative claim, a plaintiff who pleads a § 20(a) claim can withstand a

motion to dismiss only if the primary violation is pleaded with legal sufficiency.

Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006). As the

Second Amended Complaint failed to allege primary liability under § 10(b), there

can be no secondary liability under § 20(a). Thus, we affirm the district court’s

dismissal of Count II for failure to state a cause of action under § 20(a) of the

C. Rule 11(b) Sanctions

We review the denial of sanctions under Federal Rule of Civil Procedure 11

for abuse of discretion. BankAtlantic v. Blythe Eastman Paine Webber, Inc., 955

F.2d 1467, 1478 (11th Cir. 1992). A district court’s denial of sanctions under the

PSLRA is reviewed under the same standard. See Morris v. Wachovia Sec., Inc.,

448 F.3d 268, 277 (4th Cir. 2006) (noting review of “all aspects” of a district

court’s Rule 11 determination is for abuse of discretion, and “[n]othing in the

Reform Act’s sanctions provision changes this standard of review”); Hartmarx

Corp v. Abboud, 326 F.3d 862, 866-67 (7th Cir. 2003) (reviewing the district

court’s imposition of sanctions under the PSLRA for abuse of discretion); Gurary

v. Nu-Tech Bio-Med, Inc., 303 F.3d 212, 219 (2d Cir. 2002) (same).

15 Congress passed the PSLRA in 1995, “motivated in large part by a perceived

need to deter strike suits by opportunistic private plaintiffs that filed securities

fraud claims of dubious merit in order to exact large settlement recoveries.”

Laperriere, 526 F.3d at 719 (quoting Novak v. Kasaks, 216 F.3d 300, 306 (2d Cir.

2000)). Through the PSLRA, Congress hoped to put an end to “the abuse of the

discovery process to impose costs so burdensome that it is often economical for the

victimized party to settle.” Id.

In addition to raising the standard for pleading scienter, the PSLRA

“mandate[s] imposition of sanctions for frivolous litigation.” Merrill Lynch,

Pierce, Fenner & Smith, Inc. v. Dabit, 547 U.S. 71, 81, 126 S. Ct. 1503, 1511

(2006). The PSLRA provides:

In any private action arising under this chapter, upon final adjudication of the action, the court shall include in the record specific findings regarding compliance by each party and each attorney representing any party with each requirement of Rule 11(b) of the Federal Rules of Civil Procedure as to any complaint, responsive pleading, or dispositive motion.

15 U.S.C. § 78u-4(c)(1) (emphasis added). If the court finds a party or attorney

violated any requirement of Rule 11(b), the court “shall” impose sanctions in

accordance with Rule 11. 15 U.S.C. § 78u-4(c)(3). If a complaint substantially

fails to comply with Rule 11(b), the presumptive sanction is attorneys’ fees and

expenses. 15 U.S.C. § 78u-4(c)(2). Accordingly, the PSLRA’s provisions

16 eliminate a district court’s discretion on two fronts: (1) in choosing whether to

conduct the Rule 11(b) inquiry and (2) in determining whether to impose sanctions

following a finding of a Rule 11(b) violation. See Morris, 448 F.3d at 276

(“Because the sanctions instruction comes in terms of the mandatory ‘shall,’ which

normally creates an obligation impervious to judicial discretion, the district court

must impose sanctions for each violation found.” (internal citation and quotation

marks omitted)); Simon DeBartolo Group, L.P. v. The Richard E. Jacobs Group,

Inc., 186 F.3d 157, 167 (2d Cir. 1999) (noting the PSLRA circumscribes a district

court’s discretion “in choosing whether to conduct the Rule 11 inquiry at all and

whether and how to sanction a party once a violation is found”).

Although the PSLRA alters the consequences of a Rule 11(b) violation in a

private securities fraud action, the substantive analysis under Rule 11 remains the

same.12 See 15 U.S.C. § 78u-4(c); see also Citibank Global Mkts., Inc. v. Santana,

573 F.3d 17, 32 (1st Cir. 2009) (noting the PSLRA “does not alter the standards

used to judge compliance with Rule 11”); Morris, 448 F.3d at 276 (“[F]or private

securities fraud suits Congress altered the consequences of a Rule 11(b) violation

12 Under Rule 11, sanctions are properly assessed when: (1) a party files a pleading that has no reasonable factual basis; (2) the party files a pleading based on a legal theory that has no reasonable chance of success and cannot be advanced as a reasonable argument to change existing law; or (3) the party files a pleading in bad faith for an improper purpose. Massengale v. Ray, 267 F.3d 1298, 1301 (11th Cir. 2001).

17 but did not rewrite the conventional standards for evaluating Rule 11(b)

compliance.”); Simon DeBartolo Group, L.P., 186 F.3d at 167 (“The PSLRA does

not in any way purport to alter the substantive standards for finding a violation of

Rule 11 . . . .”). Moreover, nothing in the PSLRA changes our abuse of discretion

standard of review of the district court’s Rule 11(b) findings. This position is

supported by the reasoning in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110

S. Ct. 2447 (1990), in which the Supreme Court held an abuse-of-discretion

standard applies “in reviewing all aspects of a district court’s Rule 11

determination,” including the legal aspects. Id. at 405, 110 S. Ct. at 2461. The

Cooter & Gell Court noted “[l]egal issues are raised in considering whether a

pleading is ‘warranted by existing law or a good faith argument’ for changing the

law and whether the attorney’s conduct violated Rule 11.” Id. at 399, 110 S. Ct. at

2457. It then explained even purely legal issues in the Rule 11 context require a

district court “to consider issues rooted in factual determinations.” Id. at 401, 110

S. Ct. at 2459. In this regard, “the district court is better situated than the court of

appeals to marshal the pertinent facts and apply the fact-dependent legal standard

mandated by Rule 11.” Id. at 402, 110 S. Ct. at 2459.

In this case, however, the district court’s conclusory Rule 11 analysis is not

sufficient to permit meaningful appellate review. Although the district court

18 explicitly denied Karp’s motion for sanctions,13 its one paragraph order provides

no explanation of the basis for its ruling and does not include the specific findings

the PSLRA requires.14 Specifically, the district court’s order does not discuss

“compliance by each party and each attorney representing any party with each

requirement of Rule 11(b) of the Federal Rules of Civil Procedure as to any

complaint, responsive pleading, or dispositive motion.” 15 U.S.C. § 78u-4(c)(1).

In fact, nowhere in the June 12, 2007, order did the district court even mention the

PSLRA or any of its requirements. As a result, we remand the case to the district

court to permit it to make the PSLRA-mandated findings in the first instance.15

13 The order stated: “Plaintiffs’ claims are not frivolous, or so devoid of evidentiary support as to warrant sanctions. Likewise, there is no evidence that Plaintiffs instituted this action for improper purposes, such as to harass Defendants or needlessly increase the cost of litigation.” 14 On July 16, 2007, Karp filed a second motion for attorneys’ fees and costs and moved the court to reconsider its June 12, 2007, sanctions order, contending the PSLRA required the court to conduct a more exacting inquiry into counsel’s compliance with Rule 11(b). The court denied her motion without explication on July 27, 2007. On August 3, 2007, Karp moved the court to clarify its ruling to indicate whether it had denied her motion for reconsideration on the merits. The court, on November 20, 2007, entered an order adhering to its rulings that plaintiffs’ counsel had not violated Rule 11(b). These motions and orders are not before us because the district court lost jurisdiction over the matter of sanctions upon the filing of the notices of appeal. Green Leaf Nursery v. E.I. DuPont de Nemours & Co., 341 F.3d 1292, 1309 (11th Cir. 2003) (“The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.”) (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58, 103 S. Ct. 400, 402 (1982)). Regardless, the district court’s November 20, 2007, order added nothing of substance to the June 12, 2007, sanctions order, and is likewise inadequate to allow meaningful appellate review. 15 Remand is consistent with the Supreme Court’s admonition in Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 128 S. Ct. 1140 (2008), that the circuit court should have

19 This approach is consistent with the procedure we use when a district court fails to

make the PSLRA sanctions findings altogether. See Ehlert v. Singer, 245 F.3d

1313, 1320-21 (11th Cir. 2001) (remanding for compliance with the PSLRA where

the district court made no Rule 11 findings).16

It may be tempting to engage in sanctions determinations ourselves, given

the apparent frivolity of the plaintiffs’ claims. In fact, the extensive record on

appeal may actually make such determinations possible. But, even assuming we

have the ability to conduct a thorough Rule 11 analysis, doing so in this case would

be ill-advised. Remand is the better route.

First, as is almost always the case, the district court is “better situated” than

this Court “to marshal the pertinent facts and apply the fact-dependent legal

standard mandated by Rule 11.” See Cooter & Gell, 496 U.S. at 402, 110 S. Ct. at

remanded to allow the district court to make its “determinations in the first instance, explicitly and on the record.” Id., 128 S. Ct. at 1146. In Mendelsohn, the district court essentially provided no explanation of the basis for its evidentiary ruling, but the circuit court presumed the district court applied the incorrect standard and proceeded to engage in its own analysis. Id. at 1144. The Supreme Court noted the broad discretion afforded to a district court’s evidentiary rulings and concluded the circuit court should have remanded to the district court, instead of engaging in its own inquiry. Id. at 1144-46. Although Mendelsohn dealt with an evidentiary ruling, the reasoning is applicable here. Both evidentiary rulings and Rule 11(b) findings are reviewed under the deferential abuse of discretion standard. See id.; Morris, 448 F.3d at 277. 16 This approach is also consistent with the procedure followed by the Second Circuit. See Rombach v. Chang, 355 F.3d 164, 178 (2d Cir. 2004) (remanding for compliance with the PSLRA when the district court failed to make the required Rule 11 findings); Gurary v. Winehouse, 190 F.3d 37, 47 (2d Cir. 1999) (remanding for findings regarding Rule 11(b) compliance pursuant to the PSLRA after the district court implicitly denied a motion for sanctions).

20 2459. Given the district court’s familiarity with the case and the parties, the

district court is in a better position “to make these determinations in the first

instance, explicitly and on the record.” See Sprint/United Mgmt. Co. v.

Mendelsohn, 552 U.S. 379, 387, 128 S. Ct. 1140, 1146 (2008). Moreover, our

analysis of the sanctions issue would likely further develop the record by, for

example, expounding upon the relevant SEC filings or drawing inferences from

undisputed facts. Consequently, if we elect to make such sanctions findings at the

appellate level, the parties would necessarily be less involved in the process and

would be unable to object if and when appropriate.

Further, our decision to remand recognizes that when the district court

engaged in its sanctions analysis in 2007 our Circuit had not yet explicitly

addressed the level of specificity required by the PSLRA. To be sure, the PSLRA,

by its own terms, clearly requires findings as to each claim, each party, and each

attorney, such that the district court’s perfunctory analysis was insufficient even

without clear precedent from this Court. It is not until this case, however, that we

emphasize just how extensive the district court’s sanctions findings must be in the

PSLRA context. Thus, in light of our reiteration and accentuation of the PSLRA’s

requirements, it is appropriate to permit the district court to engage in a PSLRA-

compliant sanctions analysis prior to appellate review.

21 Additionally, we recognize the practical reality that this appeal arises from

complex factual circumstances that have not been organized in such a manner to

facilitate efficient sanctions review. As a result, prior to engaging in a Rule 11(b)

analysis, we would first have to unravel the dense record and examine it in a way

that no other issue in this case requires us to do. This task would require us to

obtain a level of familiarity with the parties and the evidence that the district court

already has; as a result, we would end up replicating much of the work that the

district court has already completed. This is not a wise use of judicial resources.

The better solution, from a practical standpoint, is for us to carefully and promptly

decide the issues on appeal, and then to remand to the district court to address any

outstanding fact-finding tasks. Expeditiousness is every bit as important to a well-

functioning judiciary as is thoroughness.

Finally, even if we were to engage in a full PSLRA sanctions analysis, it

would still be necessary to remand to the district court to determine a number of

outstanding issues. For instance, we would be unable to determine whether either

Thompson or Jacoby himself (as distinct from their lawyers) violated Rule 11 (the

record is silent on this point), whether the lawyers violated Rule 11(b)(1) by filing

the complaints for improper purposes (a subjective analysis that will likely require

testimony), or whether the plaintiffs can rebut the PSLRA’s presumptive award of

22 attorneys’ fees. These issues require the kind of record development in which

appellate courts cannot engage. As a result, even if we did expend the enormous

judicial resources necessary to parse through the record in the first instance, the

district court would still have to reexamine and further develop the record to

address these outstanding issues. Such a process would introduce even more

inevitable duplication of effort and would result in further depletion of limited

judicial resources.

Accordingly, even if we could in some cases engage in a PSLRA sanctions

analysis ourselves, we decline to do so in this case. Careful examination of the

relevant considerations counsels against such a use of judicial resources.

IV. CONCLUSION

With respect to Jacoby’s appeal, we AFFIRM the district court’s dismissal

of Counts I and II of the Second Amended Complaint pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure. With respect to Karp’s cross-appeal, the

district court’s order entered June 12, 2007, is VACATED and REMANDED for

further proceedings consistent with this opinion.

23 TJOFLAT, Circuit Judge, concurring in the appeal, No. 07-13225, and dissenting

in the cross-appeal, No. 07-13477:

In the appeal, I concur in the court’s judgment affirming the district court’s

dismissal of the second amended complaint. I dissent from the court’s decision in

the cross-appeal, vacating in full the district court’s decision denying Private

Securities Litigation Reform Act (“PLRSA”) sanctions, and remanding the

sanctions issues to the district court for reconsideration ab initio. I would reverse

the sanctions decision and remand the case with the instruction that the district

court sanction plaintiffs’ counsel for prosecuting the federal securities law claims

in the three complaints they presented to the district court—the initial, first, and

second amended complaints—because, in presenting those claims, counsel violated

Federal Rule of Civil Procedure 11(b)(2) as a matter of law. They also violated

Rule 11(b)(3) with respect to some of these claims because the claims lacked an

evidentiary foundation. In remanding the matter of sanctions to the district court, I

would instruct the court to hear from counsel for the parties on the questions of (1)

whether the remaining claims lacked the evidentiary support required by Rule

11(b)(3), and (2) whether plaintiffs’ counsel brought any of the claims for an

improper purpose in violation of Rule 11(b)(1).

24 The court is faced with two options in disposing of the cross-appeal. One is

to vacate the sanctions decision and remand the case for further proceedings on the

sanctions issues. The court has chosen this option. The court believes that it is

incapable of meaningfully reviewing the district court’s denial of Rule 11 sanctions

because the denial is framed in conclusory language, without findings of fact or

conclusions of law. The other option is to decide whether plaintiffs’ attorneys

failed to comply with Rule 11(b)’s requirements, and, if so, whether sanctions are

in order. I choose this option because, in the PSLRA context, Congress explicitly

requires a district court to impose sanctions whenever Rule 11 is violated. When,

as here, the record so clearly indicates a Rule 11 violation, it is both within our

capacity and in the broader interest of justice that we direct the district court to

impose sanctions that it will have to impose on remand.

An objective examination of plaintiffs’ three complaints reveals that

plaintiffs’ federal securities law claims are frivolous, and, under these facts, a

district court would necessarily abuse its discretion to conclude otherwise.

Moreover, plaintiffs sued some individual defendants who had no involvement

whatsoever in the management of Relationserve Media, Inc., or its predecessor,

Relationserve, Inc. The court’s disposition will require those uninvolved

defendants to participate in the further proceedings on remand. The disposition I

25 propose would limit their involvement to the simple task of presenting the court

with a list of their expenses, including the attorneys’ fees they incurred.

The court’s disposition is also likely to result in a second appeal, which

would put this court in the same position it now occupies. The disposition I would

reach would avoid a second appeal and thus would reduce the time, effort, and

expenses the district court, the parties, and this court will have to endure as a result

of today’s decision. To make this clear, I must take the reader through this case as

it evolved—from the filing of the initial complaint through the filing and

prosecution of the second amended complaint. I shall do so in accordance with the

following outline.

I. The Facts A. Relationserve Media, Inc.’s and Relationserve, Inc.’s Corporate Histories and the Alleged Fraud

B. Richard F. Thompson Sues Relationserve, Media Inc. in Indiana State Court

II. The Federal Procedural History A. The Initial Complaint 1. Thompson Files the Initial Complaint

2. The Defendants Warn Thompson’s Attorneys that the Suit is Frivolous

3. The Defendants Move to Dismiss, Request the Court to Retain Jurisdiction to Impose Sanctions

26 4. Thompson’s Attorneys Move the Court for Leave to Amend and for Limited Discovery to Add Individual Defendants

5. The Court Grants the Attorneys Leave to Amend and Limited Discovery and Warns the Attorneys About Rule 11

B. The First Amended Complaint 1. Thompson & Jacoby File the First Amended Complaint, Each Purporting to Represent All Class Members on All Claims

2. The Defendants Move to Dismiss, Request the Court to Retain Jurisdiction to Impose Sanctions

3. The Court Dismisses the First Amended Complaint

C. The Second Amended Complaint 1. Thompson & Jacoby File the Second Amended Complaint with Jacoby Leading an Open-Market Purchaser Subclass Bringing Federal Securities Claims and with Thompson Leading a Private Offering Purchaser Subclass Bringing State Law Claims

2. The Defendants Move to Dismiss, and Defendant Karp Moves for Sanctions

3. The Court Dismisses the Complaint with Prejudice but Denies Sanctions

4. Jacoby’s Appeal, Karp’s Cross-Appeal, and this Court’s Decision

III. This Court Errs by Summarily Remanding Karp’s Cross-Appeal for Sanctions Under the PSLRA A. The PSLRA Rule 11 Analytical Framework & Requirements

B. A Court of Appeals Should Not Remand for Rule 11 Findings When it Can Determine Conclusively that the District Court Abused its Discretion in Denying Sanctions

27 IV. With Respect to Plaintiffs’ Federal Securities Law Claims, the District Court Abused its Discretion in Denying Sanctions A. Rule 11(b)(2) Compliance 1. The Section 11 Claims a. The Initial Complaint’s Section 11 Claim b. The First Amended Complaint’s Section 11 Claim 2. The Section 12 Claims 3. The Section 10(b), Rule 10b-5 Claims a. Thompson’s Rule 10b-5 Claims b. Jacoby’s Rule 10b-5 Claims i. Jacoby Failed to Identify an Actionable Omission ii. Jacoby Made Only Frivolous Scienter Allegations iii. Jacoby Advanced a Frivolous Loss Causation Argument 4. The Section 20(a) Claims

B. Rule 11(b)(3) Compliance

C. Rule 11(b)(1) Compliance

D. The Plaintiffs’ Attorneys’ Rule 11 Violations Trigger the PSLRA’s Presumptive Sanction of Attorney’s Fees and Other Expenses

E. Summary

V. The Court Errs by Ignoring Karp’s Cross-Appeal for Rule 11 Sanctions on the State Law Claims Advanced in the Second Amended Complaint

VI. Conclusion

I. The Facts

A. Relationserve Media, Inc.’s and Relationserve, Inc.’s Corporate Histories and the Alleged Fraud

The principal defendant in this case, Relationserve Media, Inc., is an Internet

marketing firm that maintains its principal place of business in Fort Lauderdale,

28 Florida.1 The other defendants, with three exceptions, are (or were) officers and/or

directors of the company (“Officers”). Relationserve Media, Inc. was formed

when privately held Relationserve, Inc. merged with a wholly owned subsidiary of

publicly held Chubasco Resources Corp. For the sake of clarity, I refer to the

predecessor corporation as “Relationserve” and the merged entities as

“Relationserve Media” or simply “Media.”2

Relationserve was incorporated in Delaware on March 29, 2005. Shortly

thereafter, on April 20, 2005, Relationserve commenced a private offering of

common stock to “accredited investors”3 (the “April private offering”).

1 The appeal is from a district court order dismissing the federal securities law claims of the second amended complaint for failure to comply with the heightened pleading requirements of the PSLRA and Rule 9(b); accordingly, the complaint’s well-pleaded facts must be accepted as true and all reasonable inferences must be drawn from those facts in favor of the plaintiff. In the main, the facts set out in part I are taken from the three complaints filed in this case. They were known to plaintiffs’ attorneys prior to their filing of the initial complaint. The complaints refer to, and quote in part, filings the corporate defendant and some of the individual defendants made with the Securities and Exchange Commission (“SEC”). Regardless of whether pled, we “may take judicial notice . . . of relevant public documents required to be filed with the SEC, and actually filed.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999). This can be done “for the purpose of determining what statements the documents contain and not to prove the truth of the documents’ contents.” Id. “[C]onsidering the SEC documents in this manner . . . is permitted by Fed. R. Evid. 201, is consistent with the overall aims of the [PSLRA], and is not inconsistent with Rule 12(b)(6), common notions of fairness, or the law of this Circuit.” Id. 2 Relationserve Media, Inc. changed its name to SendTec, Inc. on July 26, 2006. Nevertheless, I refer to the company as Relationserve Media or simply Media. 3 The term “accredited investors” is a term of art, as defined by the SEC. See 17 C.F.R. § 230.501(a). The term delineates those permitted to invest in certain types of high risk investments. The term generally includes wealthy individuals and organizations, such as corporations, endowments, or retirement plans. According to the SEC, an individual qualifies as an “accredited investor” if his or her “individual net worth . . . at the time of . . . purchase exceeds $1,000,000,” id. § 230.501(a)(5), or if he or she has “an individual income in excess of

29 Throughout April and May 2005, Relationserve received and accepted $1,125,000

of subscriptions in exchange for Relationserve shares. The shares were issued in

reliance on a Regulation D exemption from registration under the Securities Act of

1933 (the “1933 Act”),4 and were “restricted shares” as defined by the Act. See 17

C.F.R. §§ 230.501 et seq.5

While the April private offering was going on, on May 16, 2005,

Relationserve acquired two Internet marketing companies, Omni Point Marketing

LLC and Friendsand LLC. In exchange for the ownership interest in those

companies, Relationserve paid $500,000 cash, 8,000,000 shares of its common

stock, and a two-year promissory note for $700,000. Relationserve also issued

4,001,000 shares to its founders as compensation for bridge loan advances and

$200,000 in each of the two most recent years . . . and has a reasonable expectation of reaching the same income level in the current year,” id. § 230.501(a)(6). 4 The 1933 Act is codified at 15 U.S.C. §§ 77a et seq. 5 Regulation D allows issuers to sell securities without registering them with the SEC if a series of both general and specific conditions is followed. Generally, the conditions that must be met are: (1) all sales within a certain time period must be “integrated” (that is, treated as one offering); (2) information about the securities must be disclosed to investors; (3) there must be no “general solicitation” of purchasers of the securities; and (4) the securities must contain restrictions on their resale. See 17 C.F.R. § 230.502. In this case, Relationserve sought a registration exemption on the basis of SEC- promulgated Rule 506. Id. § 230.506. Rule 506 imposes two specific conditions that must be met. First, “the issuer [must] reasonably believe[] that there are no more than 35 purchasers of securities from the issuer.” Id. § 230.506(b)(2)(i). Second, the issuer must reasonably believe that “[e]ach purchaser who is not an accredited investor either alone or with his purchaser representative(s) has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the prospective investment.” Id. § 230.506(b)(2)(ii).

30 negotiating the acquisitions. Relationserve’s chief operating officer at the time,

Scott Hirsch, was also the indirect majority owner and president of Omni Point.

Relationserve’s then president, Danielle Karp, is Scott Hirsh’s sister.

After completing the April private offering6 and the acquisition of Omni

Point and Friendsand, on May 24, 2005, Relationserve entered an Independent

Consulting Agreement (the “consulting agreement”) with Summit Financial

Partners, LLC (“Summit”). Under the consulting agreement, Summit and its

president, Tony Altavilla, agreed to “[i]ntroduce [Relationserve] to the financial

community” and “[p]erform the functions generally assigned to stockholder

relations and public relations departments in major corporations.” Relationserve

Media Inc., Current Report (Form 8-K), Ex. 2.6, at 1–2 (June 16, 2005).7 Summit

also agreed to act as a “finder” of financing sources or acquisition candidates for

6 I infer that Relationserve completed the April private offering no later than May 19, 2005. Issuers selling securities pursuant to Regulation D must notify the SEC of the sales. Relationserve gave the requisite notice by filing Form D on May 23, 2005. Relationserve, Inc., Notice of Sale of Securities Pursuant to Regulation D (Form D), at 1 (May 23, 2005). Relationserve disclosed its receipt of $1.125 million from twenty-two accredited investors. Id. at 4. Later filings indicate that Relationserve did not receive any more subscriptions from this offering. See Relationserve Media, Inc., Current Report (Form 8-K), at 29 (June 16, 2005) (“On April 20, 2005 Relationserve commenced a private offering . . . . Relationserve received and accepted $1,125,000 of subscriptions.”). The shares may not have been issued, however, until June. See Relationserve Media, Inc., Registration Statement under the Securities Act of 1933 (Form SB-2), at 26 (Mar. 20, 2006) (“In May and June 2005, we sold 1,625,000 shares of and granted 812,500 warrants to purchase 812,500 shares of common stock at an exercise price of $2.00 per share for net proceeds of $1,495,026.”). 7 As indicated infra, the consulting agreement was publicly disclosed, in its entirety, in this current report as Exhibit 2.6.

31 Relationserve. In exchange, Relationserve paid Summit 1,050,000 shares of its

common stock and promised to pay a cash finder’s fee. Id. at 3, 5. The consulting

agreement noted that “IT IS SPECIFICALLY UNDERSTOOD THAT [Summit]

IS NOT AND DOES NOT HOLD ITSELF OUT BE [sic] A BROKER/DEALER,

BUT IS MERELY A ‘FINDER’ IN REFERENCE TO [Media] PROCURING

FINANCING SOURCES AND ACQUISITION/MERGER CANDIDATES.” Id.

at 6.

From inception, Relationserve’s strategy was to become a publicly traded

company by means of a “reverse merger.” Accordingly, the April Offering’s

private placement memorandum explained the company’s intent to find

[a] publicly-traded company . . . which will acquire, by merger of Relationserve . . . all of the issued and outstanding capital stock of Relationserve (and any acquired businesses at the time of merger). Thereafter, the present stockholders of Relationserve and purchasers in the offering will, by virtue of the merger, become the controlling stockholders of the publicly-traded company.

Relationserve, Inc., Private Purchase Offering Document, at 1 (Apr. 20, 2005).

Consistent with this representation, Relationserve explored and ultimately entered

a merger agreement with Chubasco.

Prior to the merger, Chubasco, a Nevada corporation with its principal place

of business in Canada, was an exploration-stage mining company yet to commence

operations. In total, Chubasco had 51 shareholders and about $100,000 in assets.

32 The largest shareholder, Scott Young, owned 6.8 million shares and also served as

Chubasco’s president, chief financial officer, and sole director. The remaining

fifty shareholders purchased Chubasco shares in at least one of two exempt

Regulation S offerings.8 Collectively, the fifty shareholders owned 3,216,500

shares. Chubasco became a public reporting company by filing a registration

statement for these 3,216,500 shares on October 8, 2004. Once effective, the

registration statement would allow the fifty holders to trade that stock publicly.

Chubasco Res. Corp., Registration Statement Under the Securities Act of 1933

(SB-2) (Oct. 8, 2004). After a series of amendments, the Registration Statement

became effective on February 24, 2005. Chubasco Res. Corp., Quarterly Report

(Form 10-QSB), at 10 (Mar. 17, 2005).

Sometime between March and June 2005, Relationserve’s management

approached Chubasco and suggested a reverse acquisition of Relationserve. After

determining that the reverse acquisition would be “less speculative and contain[]

greater benefits,” Chubasco terminated its mining exploration activities and

negotiated a plan of merger and reorganization with Relationserve. Chubasco Res.

Corp., Quarterly Report (Form 10-QSB), at 5 (June 14, 2005).

8 Regulation S sets out rules governing exempt sales of securities because the transactions occur outside the United States. See 17 C.F.R. § 230.901 et seq.

33 The terms of the merger included the following. Chubasco would form a

wholly-owned subsidiary, Reland Acquisition. Reland would then merge into

Relationserve, with Relationserve surviving. Upon consummation of the merger,

each share of Reland would automatically convert into the right to receive one

share of Relationserve; thus Chubasco would own all of the issued and outstanding

shares of Relationserve. Relationserve Media Inc., Current Report (Form 8-K), Ex.

2.1 (Plan of Merger) ¶ 1.5(a) (June 16, 2005). In exchange, Relationserve’s stock

would automatically convert into the right to receive Chubasco stock on a 1:1

basis. Id. Additionally, Scott Young agreed to cancel his 6.8 million shares of

Chubasco and resign from his position as its sole director, president, and chief

financial officer. Danielle Karp, Relationserve’s president, would become the new

president and sole director of Chubasco. Finally, Chubasco would change its name

to Relationserve Media, Inc. Id. ¶ 6.4.

The merger took place on June 13, 2005. As a result of the merger,

Relationserve Media, Inc., f/k/a Chubasco Resources Corp., held Relationserve as a

wholly owned subsidiary. As planned, Scott Young resigned from all positions

with Media and Danielle Karp became its sole director and president. Media now

had two groups of shareholders. The first group consisted of the former Chubasco

shareholders who held 3,216,500 shares; these shares could be traded and

34 constituted Media’s “public float.” Id. ¶ 2.01. The second group consisted of

former Relationserve shareholders who owned 13,326,000 shares of Relationserve

stock, now convertible into Media stock. Id. Because the second group acquired

the shares in unregistered offerings and no subsequent registration statement had

been filed, the shares continued to be restricted and could not be traded. The

merger did not, of course, alter the duty of Media f/k/a Chubasco to make routine

filings with the SEC.

Accordingly, just three days after the merger, on June 16, 2005, the newly

formed Media filed an SEC current report (Form 8-K). Among other disclosures,

this report explained the merger and the resultant change in business—from mining

exploration to Internet marketing. This report also disclosed, for the first time, that

Media’s predecessor, Relationserve, had “entered into an Independent Consulting

Agreement with Summit Financial Partners, LLC.”9 Id. at 29. A full copy of the

consulting agreement was attached to the SEC filing as an exhibit; this attachment

9 There would have been no previous occasion for Relationserve to disclose the relationship with Summit since as a private company, Relationserve had no duty to file securities disclosures regarding its material definitive agreements. The full text of the report’s disclosure is as follows:

On May 24, 2005, the Company entered into an Independent Consulting Agreement with Summit Financial Partners, LLC. Under the terms of the Agreement, Summit Financial Partners, LLC. is to provide investor relations and similar services in exchange for issuance of 1,050,000 shares of Common Stock. A copy of the Agreement is annexed hereto as Exhibit 2.6.

Relationserve Media Inc., Current Report (Form 8-K), at 29 (June 16, 2005).

35 included, of course, Summit’s express representation that it would not be acting as

a broker/dealer, but rather would serve merely as a finder. As a consequence of the

merger, Summit performed the same services for Media as it had for Relationserve.

Shortly after the merger, Media commenced a Regulation D, Rule 506

private offering pursuant to a private placement memorandum dated June 22, 2005

(the “June private offering”).10 It was in this offering that plaintiff Richard F.

Thompson, an Indiana resident, purchased 50,000 Media shares at two dollars per

share and three-year warrants with an exercise price of $3.50, for a total investment

of $100,000.

Thompson bought the shares on June 28, 2005, twelve days after Media had

disclosed the consulting agreement with Summit. Gary Altavilla, Summit’s

president, advised Thompson about the private offering and helped facilitate

Thompson’s purchase. At the time of his purchase, Thompson signed a

subscription agreement wherein he attested to his knowledge of the consulting

agreement and that Summit was not licensed and did not hold itself out as a

broker/dealer. Indeed, in the subscription agreement that he signed, Thompson

acknowledge[d] that . . . [he] has read and evaluated, or has employed the services of an investment advisor, attorney or accountant to read and evaluate, all of the documents furnished or made available by the Company to [Thompson] . . . including . . . the Company’s Current

10 See supra note 5 for an explanation of Regulation D and Rule 506.

36 Report on Form 8-K filed with the Securities and Exchange Commission (“SEC”) on June 16, 2005 (“Current Report”) and subsequent SEC filings and reports . . . .

Relationserve Media, Inc., Current Report (Form 8-K), Ex. 4.1 (Subscription

Agreement), at 1–2 (June 30, 2005).11 As indicated above, this June 16, 2005

Current Report included the agreement between Media and Summit in its entirety.

On June 30, 2005, Media completed the June private offering. In a report

filed with the SEC, it disclosed:

On June 30, 2005 we completed a private offering of Units to “accredited investors” as that term is defined in Regulation D of the Securities Act, with each Unit consisting of 50,000 shares of our common stock, $0.0001 par value per share (“Common Stock”), and a three-year warrant to purchase 25,000 shares of Common Stock at $3.50 per share (the “Offering”). We received and accepted $2,000,000 of subscriptions in the Offering. The Units were issued in reliance on an exemption from registration provided under Regulation D of the Securities Act and are restricted securities as defined by the Securities Act.

Relationserve Media, Inc., Current Report (Form 8-K), at 2 (June 30, 2005).

Attached to this filing was a copy of the “Private Offering Subscription

Agreement” the purchasers signed (the “subscription agreement”). As in

Relationserve’s April offering, all of the shares sold in Media’s June private

11 In addition to attesting that he had read Media’s SEC filings, Thompson also “recognize[d] that Company reserves the right to pay a commission or finders fee of up to 5% of the gross proceeds of the Offering.” Relationserve Media, Inc., Current Report (Form 8-K), Ex. 4.1 (Subscription Agreement), at 3 (June 30, 2005).

37 offering were restricted and therefore could not be resold until registered under the

1933 Act.12

In addition to this current report, on July 14, 2005, Media filed a Form D

with the SEC to give further notice of and basic details about the June private

offering. Relationserve Media, Inc., Notice of Sale of Securities Pursuant to

Regulation D (Form D), at 1 (July 14, 2005). At the time, Form D required the

issuer to disclose information about “each person who has been or will be paid or

given, directly or indirectly, any commission or similar remuneration for

solicitation of purchasers in connection with the sales of securities in the offering.”

Id. at 3. Media did not disclose Summit’s involvement in the June private offering.

Media also filed a notice of the sale of unregistered securities with the

Indiana Secretary of State in compliance with Indiana’s securities act. See Ind.

Code §§ 23-2-1-1 et seq. (2005) (repealed 2008). This notice, received and filed

by the Secretary of State’s office on July 14, 2005, disclosed that Media’s June

12 Absent an exemption, the 1933 Act generally prohibits the sale of unregistered securities. In the subscription agreement, Media promised to register the shares within forty-five days of the closing of the final sale in the June private offering. Relationserve Media, Inc., Current Report (Form 8-K), Ex. 4.1 (Subscription Agreement), at III & Ex. C. (Registration Rights Agreement) (June 30, 2005). Media defaulted on this obligation, but in October 2005, Media’s board “ratified waivers obtained from a majority of the purchasers in the June [] 2005 offering and entered into new Consent and Waiver Agreements containing amended registration obligations of the Company.” Relationserve Media, Inc., Registration Statement Under the Securities Act of 1933 (Form SB-2), at F-25 (Mar. 20, 2006). Ultimately, as discussed below, Media did not file a registration statement for the shares until March 20, 2006, which did not become effective until July 14, 2006.

38 private offering had attracted twenty-two accredited investors to purchase an

aggregate total of $2 million of Media’s common stock. In particular, Media

attested to its sale of $340,000 of Media shares to five accredited investors in

Indiana.13

While the June private offering was going on, Media expanded its

management team. Recall that immediately after the merger, Danielle Karp was

Media’s sole president, chief executive officer, and director; Media’s subsidiary,

Relationserve, continued to be served by Scott Hirsch as its chief operating officer.

On June 21, Media hired Mandee Heller Adler to serve as its chief executive

officer and as a director; and on June 22, Media hired Warren “Pete” Musser to

serve as a director.

As discussed above, after the merger, the 3,216,500 shares that had been

registered by Chubasco could be traded in the open market. Media’s shares began

to trade on the Over the Counter Bulletin Board (the “OTCBB”) in late June 2005.

It was from this pool of stock that plaintiff L. Alan Jacoby purchased a total of

10,000 shares of Media stock in three separate transactions. These purchases

occurred on July 22, July 26, and August 12, 2005, and Jacoby claimed to have

13 The Indiana Securities Act exempted issuers from registering with the state in certain circumstances. See I.C. § 23-2-1-2(b)(10) (2005) (repealed 2008). As discussed in part IV, infra, Media satisfied the requirements for an exemption.

39 paid an average of six dollars per share.14 By March 2006, almost nine months

later, Media’s shares had lost 75% of their value in the open market.

Curiously, the plaintiffs alleged that Media’s shares traded on the NASDAQ

stock exchange. There is no evidence in Media’s SEC filings, however, that

Media’s stock traded anywhere except the OTCBB. Media did apply for a

NASDAQ listing on or about July 18, 2005, but there is no evidence that the

application succeeded. To the contrary, Media’s Annual Report filed on March 20,

2006 disclosed: “Our Common Stock has been quoted on the OTC Bulletin Board

since June 30, 2005 under the symbol RSVM.OB. Prior to that date, there was no

active market for our Common Stock.” Relationserve Media, Inc., Annual Report

(Form 10-KSB), at 7 (Mar. 20, 2006).15

14 While the record does not indicate Jacoby’s purchase price, I judicially note that, according to the OTCBB website, the closing prices of Media’s shares on those dates were as follows: $5.50 per share on July 22; $5.13 per share on July 26; and $8.75 on August 12. Note that this is not necessarily the price that Jacoby paid for Media’s shares, but rather is the closing price quoted by OTCBB for the particular days. 15 The OTCBB can be accessed through a NASDAQ workstation. The OTCBB website warns, however,

The OTCBB is a quotation medium for subscribing members, not an issuer listing service, and should not be confused with The NASDAQ Stock Market. . . . The OTCBB is unlike The NASDAQ Stock Market in that it: does not impose listing standards; does not provide automated trade executions; does not maintain relationships with quoted issuers; and does not have the same obligations for Market Makers.

OTC Bulletin Board, Comparison of NASDAQ and OTCBB, http://www.otcbb.com/aboutOTCBB/comparison.stm (last visited Apr. 6, 2010).

40 Around the same time that Jacoby purchased his stake in Media, Media’s

SEC filings indicate that it entered into two key transactions. First, on August 9,

2005, Media entered an asset purchase agreement to buy the business and

substantially all of the assets of theglobe.com’s wholly owned subsidiary,

SendTec, for $37.5 million. Relationserve Media, Inc., Current Report (Form 8-K)

(Aug. 12, 2005). The acquisition was subject to certain terms and conditions and

did not close until October 31, 2005. Second, on August 29, 2005, Media merged

with its wholly-owned subsidiary, Relationserve, with Media surviving.

Relationserve Media, Inc., Current Report (Form 8-K), at 2 (Sept. 2, 2005).

For the purposes of this case, two facts are crucial about the SendTec asset

acquisition. First, as part of the terms and conditions mentioned, Media agreed to

terminate its contract with Summit. Relationserve Media, Inc., Current Report

(Form 8-K), Ex. 10.1 at 10 (Nov. 4, 2005). Second, Media agreed that it would

replace certain members of its current management with SendTec-approved

managers. Relationserve Media, Inc., Current Report (Form 8-K) (Aug. 12, 2005).

Accordingly, on October 6, 2005, Media terminated its agreement with

Summit.16 The exodus of Media’s senior management team began in late October

2005: director Musser resigned on October 31; chief executive officer and director

16 Media’s SEC filings indicate this.

41 Adler resigned on November 11. With one exception, the exodus was complete by

the first week of February 2006 with the departure of president and director Karp

and chief operating officer Hirsch on February 3 and February 2, respectively. The

lone exception was chief financial officer Adam Wasserman who was hired on a

part-time basis as chief financial officer on August 9, 2005, and ultimately served

Media in some capacity until June 15, 2006.17 Media’s original management team

was replaced by Sendtek-approved replacements: Michael Brauser joined as

director and chairman of the board on October 31, 2005; Shawn McNamara joined

as interim chief executive officer, senior vice president, and assistant secretary on

November 30, 2005; and Paul Soltoff, as chief executive officer and director, Erick

Obeck, as president, and Donald Gould, as chief financial officer, all joined on

February 3, 2006. For a complete listing of the terms of Media’s officers’ service,

see the Table attached to this opinion at 142.

B. Richard F. Thompson Sues Relationserve, Media Inc. in Indiana State Court

17 The plaintiffs alleged that Wasserman ended his tenure on February 3, 2006. (Second Am. Compl. ¶ 17.) The plaintiffs also alleged, however, that Wasserman signed a Sarbanes- Oxley certification as the principal financial officer on March 20, 2006. (First Am. Compl. ¶ 90.) The plaintiffs likely made the former allegation because Donald Gould became chief financial officer on February 3, 2006. Nevertheless, it appears that Wasserman continued to work for Media in some capacity until June 15, 2005. See Relationserve Media, Inc., Current Report (Form 8-K) (June 21, 2006) (noting that Wasserman resigned from all positions on June 15).

42 On March 3, 2006, in the Circuit Court of Hamilton County Indiana,

Thompson sued Summit, Altavilla, Media, and several other entities who used

Summit’s services, seeking rescission of his shares. Thompson was represented by

Cohen & Malad, LLP, an Indiana law firm. Thompson directed three of his

fourteen counts against Media: Count 4 claimed that Media sold unregistered, non-

exempt securities in Indiana; Count 7 alleged that Media had violated the Indiana

Securities Act’s anti-fraud provisions by failing to disclose the shares’ restricted

status; and Count 13 claimed Media deceived Thompson by failing to disclose the

shares’ restricted status. The other counts of the complaint were brought against

Summit, Altavilla, and other named defendants.18

Unrelated to this litigation, on March 20, 2006, Media filed a registration

statement and its annual report. Media filed the registration statement to register

the shares it sold in its private offerings—approximately 85 million shares of

common stock—to allow the private offering stockholders to sell their shares. In

the annual report, inter alia, Media disclosed that, “[i]n August 2005, the Company

paid a $28,500 success fee to Summit for services rendered in connection with a

private placement of its common stock.” Relationserve Media, Inc., Annual Report

18 With respect to Media, Thompson claimed that Altavilla had represented that, while Media’s shares had restrictions on resale, these restrictions would be released within 30 days of Thompson’s purchase.

43 (Form 10-KSB), at F-26 (Mar. 20, 2006). Neither the registration statement nor

the annual report disclosed the Thompson litigation.

On May 1, 2006, Media amended this registration statement to give the

public notice of Thompson’s lawsuit. Relationserve Media, Inc., Amendment No.

1 to Form SB-2 Registration Statement (Form SB-2/A), at 53 (May 1, 2006).

Media also related that Thompson sought rescission because the shares were not

registered as required under Indiana Law and because Media failed to disclose a

commission to Altavilla. Media also asserted its belief that the suit lacked merit

but noted that it could not predict the range of any loss. This disclosure prompted

the SEC to send a letter to Media requesting more information about the Thompson

litigation.

Responding to the SEC’s letter, on May 23, 2006, Media augmented the

amendment it had made to its registration statement. Answering the SEC’s

questions, Media added that: (1) Thompson sought rescission of 50,000 shares of

stock, (2) Media did not register the shares in Indiana because they qualified for an

exemption, and (3) Altavilla did not sell shares on the company’s behalf but did

receive a seven percent finder’s fee for introducing investors to Media. Media

reiterated its belief that the action lacked merit. Relationserve Media, Inc.,

Amendment No. 2 to Form SB-2 Registration Statement (Form SB-2/A), at 64–65

44 (May 23, 2006). The last amendment to this registration statement took place on

July 13, 2006, and the SEC declared it effective on July 14, 2006.

On May 9, 2006, Relationserve Media moved the Hamilton County Circuit

Court to dismiss it from Thompson’s lawsuit. It argued that the forum selection

clause in the subscription agreement required that all litigation be conducted in

Broward County, Florida. Thompson responded to this motion by filing an

affidavit in which he averred that he had no direct communication with Media and

in fact did not read the private offering memorandum or any other materials

concerning Media; rather, his son, Greg Thompson, read the materials. The court

agreed with Media’s position and, on July 19, 2006, dismissed Media from the

case.

Just before the Indiana circuit court dismissed the case, on July 17, 2006,

Thompson sold 10,000 shares at $0.40 a share, and another 10,000 shares at $0.35

a share. These sales obviously limited his ability to seek a full rescission of his

50,000-share initial purchase. Thompson’s investment strategy took a turn later in

the day, though, as he bought another 10,000 shares of Media at $0.42 a share on

July 17, only to sell 10,000 shares the next day at $0.39 a share. One month later,

on August 16, 2006, Thompson dumped the rest of his shares in three sales at

$0.37, $0.36, and $0.35 a share.

45 II. The Federal Procedural History

A. The Initial Complaint

1. Thompson Files the Initial Complaint

On August 28, 2006, Thompson brought the present lawsuit against Media,

three of its former officers and one of its former directors in the United States

District Court for the Southern District of Florida. The former officers were

Danielle Karp, Mandee Heller Adler, and Ohad Jehassi; the former director was

Warren Musser.19 Thompson was again represented by Cohen & Malad, LLP, and

now also by a Florida law firm, Friedman, Rosenwasser & Goldbaum, P.A. Eight

days after filing the complaint, on September 5, Cohen & Malad issued a press

release publicizing the lawsuit and inviting Media shareholders to contact the

firm.20

Thompson sued on behalf of a class consisting of “[a]ll persons [including

himself] who purchased Relationserve [Media] shares during the period beginning

May 24, 2005 and ending on the date of the commencement of this litigation,” on

19 Karp served as Media’s president from June 13, 2005 to February 3, 2006. Adler was Media’s chief executive officer from June 21, 2005 to November 11, 2005. Jehassi was the former chief operating officer of Media, beginning his tenure in July 2005 and ending it on an unspecified date. Musser served on Media’s board of directors from June 21, 2005 to October 31, 2005. 20 The PSLRA required this notice: “Not later than 20 days after the date on which the complaint is filed, the plaintiff or plaintiffs shall cause to be published, in a widely circulated national business-oriented publication or wire service, a notice advising members of the purported plaintiff class . . . .” 15 U.S.C. § 78u-4(a)(3)(A)(i).

46 August 28, 2006.21 While not explicit, the complaint’s proposed class consisted of

two subclasses: (1) those who bought shares in the private offerings; and (2) those

who bought shares in the public market. The complaint contained nine counts.

Counts I through III alleged violations of federal securities law and, for remedies,

prayed for rescission or damages. Counts IV through IX alleged violations of

Florida and Indiana statutes.22

21 As noted above, Thompson purchased 50,000 Media shares in Media’s June private offering. He also bought 10,000 shares on July 17, 2006, in the open market. Thompson apparently believed that the July 17 purchase enabled him to “fairly and adequately” represent and “protect the interests of” those of the class who purchased Media shares in the open market. See Fed. R. Civ. P. 23(a)(4). 22 The complaint was a typical “shotgun” pleading, in that each count incorporated by reference all preceding paragraphs and counts of the complaint notwithstanding that many of the facts alleged were not material to the claim, or cause of action, appearing in a count’s heading. This circuit condemns shotgun pleadings. See, e.g., Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th Cir. 1991) (“Anyone schooled in the law who read these [shotgun pleading] complaints . . . [] would know that many of the facts alleged could not possibly be material to all of the counts. Consequently, [the opposing party] and the district court [have] to sift through the facts presented and decide for themselves which [are] material to the particular cause of action asserted, a difficult and laborious task indeed.”); see also Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 984 (11th Cir. 2008) (refusing to award attorneys’ fees in a Title VII case because the use of shotgun pleadings “complicated [appellate review] to no end”); M.T.V. v. DeKalb County Sch. Dist., 446 F.3d 1153, 1156 n.1 (11th Cir. 2006) (noting that shotgun pleadings are “frowned upon in this circuit”); Byrne v. Nezhat, 261 F.3d 1075, 1131 (11th Cir. 2001) (“Shotgun pleadings, if tolerated, harm the court by impeding its ability to administer justice.”); Beckwith v. City of Daytona Beach Shores, Fla., 58 F.3d 1554, 1567 (11th Cir. 1995) (“The bar would be better served by heeding this advice: ‘In law it is a good policy never to plead what you need not, lest you oblige yourself to prove what you cannot.’”) (quoting Abraham Lincoln, Letter to Usher F. Linder, Feb. 20, 1848, in The Quotable Lawyer 241 (D. Shrager & E. Frost eds., 1986)). The first 50 paragraphs of the complaint contained allegations of fact that appeared to relate to a particular count of the complaint but not to other counts. Utilizing this method of pleading, Count I incorporated the first 50 paragraphs of the complaint, many of which had nothing to do with the Count I claim(s). Counts II through IX successively incorporated the allegations of all preceding paragraphs and counts, such that each succeeding count was loaded down with allegations having no bearing on the claim(s) the count purported to assert.

47 Count I, “Filing of False Registration Statement,” alleged a violation of

“Section 11 of the Securities Act of 1933, 15 U.S.C. § 77l(a).” Section 11 is

actually codified at 15 U.S.C. § 77k, not § 77l(a). Section 77k provides relief for

persons who purchase securities in reliance on a false or misleading registration

statement.23 Section 77l(a), which is a codification of § 12 of the 1933 Act,

provides relief for purchasers of securities who rely on a false or misleading

23 The text of 15 U.S.C. § 77k, Civil liabilities on account of false registration statement, states, in pertinent part:

(a) Persons possessing cause of action; persons liable In case any part of the registration statement, when such part became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, any person acquiring such security (unless it is proved that at the time of such acquisition he knew of such untruth or omission) may, either at law or in equity . . . sue—

(1) every person who signed the registration statement; (2) every person who was a director of (or person performing similar functions) or partner in the issuer at the time of the filing of the part of the registration statement with respect to which his liability is asserted;

....

(f) Joint and several liability; liability of outside director (1) [A]ll or any one or more of the persons specified in subsection (a) shall be jointly and severally liable, and every person who becomes liable to make any payment under this section may recover contribution as in cases of contract from any person who, if sued separately, would have been liable to make the same payment, unless the person who has become liable was, and the other was not, guilty of fraudulent misrepresentation.

(emphasis added).

48 statement in a prospectus or oral communication.24 To solve this inaccurate

citation problem, I read Count I to seek relief under both sections 11 and 12 of the

1933 Act. This squares with Count I’s allegation that

[Media’s] filings with the Securities Exchange Commission, including the registration statements, prospectus, and amendments thereto omitted to state material facts necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading in at least the following particulars:

a. RelationServe [Media] was selling its securities through unregistered agents and broker/dealers and paying commissions to these unregistered agents and broker/dealers;

24 The text of 15 U.S.C. § 77l, Civil liabilities arising in connection with prospectuses and communications, states, in pertinent part:

(a) In general Any person who

(2) offers or sells a security . . . by the use of any means or instruments of transportation or communication in interstate commerce or of the mails, by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading (the purchaser not knowing of such untruth or omission), and who shall not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of such untruth or omission,

shall be liable . . . to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.

49 b. The sale of RelationServe [Media] stock through unregistered agents and broker/dealers was in violation of state and federal securities laws, which caused a substantial contingent liability for claims of rescission by investors and exposed RelationServe to substantial legal fees; and

c. The potential civil liability of RelationServe [Media] for selling shares of its stock in violation of state and federal law, which would have an adverse impact on the RelationServe [Media] financial condition.

(Compl. ¶ 52 (emphasis added).) Count I thus alleged that Media had violated the

1933 Act by selling securities under a false or misleading registration statement(s),

prospectus, or oral communication, by failing to disclose its use of unregistered

brokers and the contingent liability arising therefrom (the “unregistered-broker

theory”).

Count II, “Violation of Securities Act of 1933,” incorporated all of the

preceding allegations of the complaint, including Count I. Count II alleged that

Media and the Officers, who were “controlling persons, offered and sold the shares

of RelationServe [Media] in violation of 15 U.S.C.A. § 77l.” (Compl. ¶ 56.)

Because I construe Count I to seek relief under § 12, codified at 15 U.S.C. § 77l,

Count II added nothing to Count I.

Count III, “Violation of Securities Exchange Act of 1934, Rule 10b-5,”

incorporated all of Counts I and II and further asserted that Media and the Officers

“offered and sold the shares of RelationServe [Media] in violation of” the

50 Securities Exchange Act of 1934 (the “1934 Act”), 15 U.S.C. § 77q, and Rule 10b-

5.25 (Compl. ¶ 60.) Section 10(b) of the 1934 Act,26 and Rule 10b-5,27 provide

25 The complaint referred to the 1934 Act, 15 U.S.C. § 77q, and Rule 10b-5. Actually, however, § 77q codifies § 17 of the 1933 Act. Section 10 of the 1934 Act, which provides the statutory authority for Rule 10b-5, is codified at 15 U.S.C. § 78j. The first and second amended complaints repeated the reference to § 77q. This time, I resolve the pleading ambiguity by assuming the citation to § 17 was an error; notwithstanding the citation to § 17, I read Count III of the initial complaint, Count III of the first amended complaint, and Count I of the second amended complaint to seek relief only under § 10(b) and Rule 10b-5. This results in no prejudice to the plaintiffs or their attorneys because this circuit has expressly refused to read a private right of action into § 17. Currie v. Cayman Res. Corp., 835 F.2d 780, 784–85 (11th Cir. 1988) (“We therefore hold that section 17(a) does not imply a private cause of action . . . .”); see also id. at 784 n.8 (noting that the Supreme Court has not decided the question). Therefore, reading the complaints to seek relief only under § 10(b) removes a roadblock in the plaintiffs’ path to recovery. In any event, the plaintiffs referenced the 1934 Act in Count III’s header and never pressed a 1933 Act § 17 claim either in the district court or in this court. Accordingly, notwithstanding the citation error, from this point forward, I treat the plaintiffs as bringing only a § 10(b) claim. 26 The text of § 10(b) of the 1934 Act, as codified at 15 U.S.C. § 78j, states, in pertinent part:

It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange

(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered . . . 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. 27 The text of Rule 10b-5, as codified at 17 C.F.R. § 240.10b-5, states that:

It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,

(a) To employ any device, scheme, or artifice to defraud,

51 relief for any person who relies on a false or misleading statement in connection

with the purchase or sale of a security.

More specifically, Count III alleged that “[t]he Defendants . . . offered and

sold the shares . . . in violation of . . . Rule 10b-5.” (Compl. ¶ 60.) Because Media

and the Officers only “offered and sold” shares to the private offering purchasers,

the § 10(b), Rule 10b-5 claim was limited to the private offering subclass. The

complaint did not directly identify any false or misleading statement made by any

defendant in connection with Media’s sale of shares to Thompson or any other

private offering purchaser; nor did the complaint allege any device or scheme to

defraud. Thompson did, however, refer to the omissions in Count I’s section 11

and 12 claims. (Compl. ¶ 58 (“As stated herein, the registration statement and

prospectus contained untrue statements of material facts . . . .”).) Therefore,

Thompson claimed the private offering purchasers could recover based on Media’s

failure to disclose its use of unregistered brokers in its public offering documents.

Thompson invoked the district court’s supplemental jurisdiction for the state

law claims asserted in Counts IV though IX. See 28 U.S.C. § 1367. Count IV

(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 circumstances 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.

52 alleged that Media, aided and abetted by the Officers, sold Media shares through

brokers, dealers, and agents who were not registered in Florida, in violation of

Florida Statutes §§ 517.12 and 517.061. Count V alleged that sales were made in

Indiana via unregistered brokers, dealers, and agents, in violation of Indiana Code

§ 23-2-1-8. Count VI alleged that Media, aided and abetted by the Officers, sold

Media shares that were unregistered in violation of Indiana Code §§ 23-2-1-2 and

23-2-1-3. Count VII alleged that Media, aided and abetted by the Officers, sold

Media shares in violation of the anti-fraud provisions of the Indiana Securities Act,

Indiana Code § 23-2-1-12. Count VIII alleged that Media, aided and abetted by the

Officers, defrauded the purchasers of Media shares, in violation of Indiana Code §

35-43-5-3. Count IX alleged that Media and the Officers defrauded the purchasers

of Media shares, in violation of the common law.

As remedies, Thompson sought rescission or damages for the federal

securities claims brought in Counts I through III. As for the state law claims,

Thompson sought rescission for Counts IV through VII, trebled compensatory

damages for Count VIII, and compensatory and punitive damages for Count IX.

Prior to filing his complaint, Thompson disposed of all of his Media shares.

Accordingly, the remedy of rescission was not available to him in Counts I through

VII. Nor was rescission available to the members of Thompson’s open market

53 subclass because they never bought shares from Media; therefore, they could not

obtain a judgment requiring the company to return the purchase price—which they

never paid to the company—in exchange for the shares they still held.

2. The Defendants Warn Thompson’s Attorneys that the Suit is Frivolous

After Media received the initial complaint, but before filing a responsive

pleading, Thomas Fleming, one of Media’s attorneys,28 wrote to Cohen & Malad to

advise the firm that Thompson’s claims were frivolous and that the complaint had

been filed in violation of Rule 11(b). While the record does not contain Fleming’s

letter, it does contain Cohen & Malad’s reply. Richard Bell replied on behalf of

Cohen & Malad, stating:

We are in receipt of your letter of October 6, 2006. We strongly disagree with your assessment of this securities litigation filed against your client []. Contrary to your opinion, the lawsuit was filed in good faith and was diligently investigated and researched before it was filed.29

Lastly at some point in time both our clients will want to resolve or settle this case. So I will commit to be respectful of your legal positions even though I may disagree.

28 Fleming was a member of the New York firm of Olshan, Grundman, Frome, Rosenzweig & Wolosky LLP. The firm withdrew from the case on November 17, 2006, and was later replaced as lead counsel for Media by White & Case. 29 Rest assured that we do plan to amend the complaint and will add additional defendants. Our investigation is ongoing.

54 (Pls.’ Mot. to Compel Disc. Ex. A (Oct. 11, 2006 Letter from Richard Bell to

Thomas Fleming, at 1, 4) (Oct. 24, 2006) (footnote in original).)

3. The Defendants Move to Dismiss, Request the Court to Retain Jurisdiction to Impose Sanctions

Shortly thereafter, on October 20, 2006, the defendants moved to dismiss

Thompson’s complaint on a slew of grounds.30 As for the federal securities law

claims, the defendants pointed to several pleading errors. The Counts I and II

claims under § 11 and § 12 of the 1933 Act failed to identify any purchase made in

reliance on false or misleading statements in a registration statement or

prospectus.31 The Count III § 10(b), Rule 10b-5 claim failed to identify any false

or misleading statements with the particularity and specificity required by Rule

9(b) of the Federal Rules of Civil Procedure and the PSLRA.

Turning to Thompson’s state law claims, the defendants argued that those

claims were barred by the Securities Litigation Uniform Standards Act

(“SLUSA”), 15 U.S.C. § 78bb, which mandates, with limited exceptions not

30 Media filed its motion to dismiss on October 20, 2006. Karp filed her motion to dismiss on October 31, 2006. Jehassi sought and was granted an extension to respond to the complaint but never actually needed to respond because Thompson withdrew the complaint and never again named him as a defendant. 31 The defendants also noted that because Thompson had purchased his shares in a private offering in June 2005—long before Relationserve Media filed its initial registration statement on March 20, 2006—and because it had not issued a prospectus, Thompson could not make out a violation of §§ 11 or 12 of the 1933 Act.

55 applicable here, that class action claims involving the purchase or sale of nationally

traded securities must be asserted under federal securities law.32

In their motions to dismiss, defense counsel also notified Thompson’s

counsel that they considered the claims to be baseless and in violation of Rule 11.

Indeed, both defendants who responded to the complaint moved the court to

dismiss the case and to retain jurisdiction to impose sanctions pursuant to the

PSLRA and Rule 11.33

4. Thompson’s Attorneys Move the Court for Leave to Amend and for Limited Discovery to Add Individual Defendants

Thompson did not respond to the defendants’ motions. Instead, on October

24, his attorneys moved the district court for leave to conduct limited discovery to

32 In relevant part, the SLUSA provides:

(f) Limitations on remedies (1) Class action limitations No covered class action based upon the statutory or common law of any State or subdivision thereof may be maintained in any State or Federal court by any private party alleging— (A) a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security; or (B) that the defendant used or employed any manipulative or deceptive device or contrivance in connection with the purchase or sale of a covered security. 15 U.S.C. § 78bb. 33 White & Case LLP represented Media and all individual defendants except Karp, who was represented by McClosky, D’Anna & Dieterle, LLP; Honig, who was represented by Tew Cardenas LLP; and Hill, who was represented by Genovese Joblove & Battista, P.A.

56 obtain the last known addresses for fourteen of the company’s officers and

directors so Thompson could amend his complaint and name them as defendants.

5. The Court Grants the Attorneys Leave to Amend and Limited Discovery and Warns the Attorneys About Rule 11

On November 3, the district court held a telephone conference to hear

argument on the pending motions. During the call, Thompson’s counsel informed

the court that they wished to file an amended complaint; the court granted them

leave to do so.34 Over Media’s strenuous objection that Thompson’s request for

limited discovery amounted to a scorched-earth litigation tactic,35 the court granted

Thompson’s motion. In granting this motion, the court, although it had not yet

read the complaint, reminded counsel,

Also, there’s Rule Eleven which provides sanctions if there is no legitimate basis for bringing a suit or serving the various officers and directors . . . .

. . . I don’t know whether these officers and directors are legitimate targets or not. There is no way I can know. I do know you lawyers being experienced lawyers know about Rule Eleven.

34 On November 7, 2006, the district court entered an order denying the defendants’ motions to dismiss. The order stated that the plaintiff had asked for, and had been granted, leave to amend his complaint. 35 Media argued that plaintiff’s counsel were pursuing a scorched-earth tactic in an effort to “coerce some money out of a business where the plaintiff lost maybe $150,000. He has asserted class action claims. He has tried every trick in the book.” (Teleconference Tr. 5, Nov. 3, 2006.)

57 ....

Mr. Goldbaum, I will tell you, you really ought to think long and hard before you just automatically sue everyone that happens to be on the list of officers and directors. That’s for you to decide . . . .

(Teleconference Tr. 4, 6–7, Nov. 3, 2006.) Responding to this warning,

Thompson’s counsel promised the court that they would be mindful of Rule 11 and

would name officers and directors as defendants only if they had a reasonable basis

for doing so.

B. The First Amended Complaint

1. Thompson & Jacoby File the First Amended Complaint, Each Purporting to Represent All Class Members on All Claims

On November 13, 2006, Thompson, now joined by new co-lead plaintiff L.

Alan Jacoby,36 filed a ten-count first amended complaint against Media, eleven

Officers and two non-officers.37 Recall that Jacoby purchased Media shares in the

36 The first amended complaint never explicitly declared that Jacoby was a lead plaintiff. In securities actions, the PSLRA requires proposed lead plaintiffs to file certifications with the district court. See 15 U.S.C. § 78u-4(a)(2)(A) (requiring a sworn statement that, for example, the proposed lead plaintiff has reviewed the complaint and authorized its filing). Because plaintiffs’ counsel filed Jacoby’s certification in a separate document and incorporated it by reference in the first amended complaint, I treat Thompson and Jacoby as co-lead plaintiffs. (See First Am. Compl. ¶ 1.) 37 The first amended complaint dropped Ohad Jehassi as a defendant. The Officers were Danielle Karp, Mandee Heller Adler, Warren “Pete” Musser (these three had been named as defendants in the initial complaint), Scott Young, Scott Hirsch, Adam C. Wasserman, Michael H. Brauser, Shawn McNamara, Paul Soltoff, Eric Obeck, and Donald Gould, Jr. The non-officer defendants were Richard Hill and Barry Honig. Hill was a “founder of Omni Point,” the company that Relationserve acquired on May 16, 2005. (First Am. Compl. ¶ 17.) Honig was “not registered with the Securities Exchange Commission” and therefore violated “the securities laws” when he “sold RelationServe securities to Investors and received remuneration.” (Id. ¶

58 open market in July 2005. Both plaintiffs purported to represent all buyers of

Media securities who bought during the class period as to all claims. (First Am.

Compl. ¶¶ 99, 102.) Like the initial complaint, however, this complaint had two

implicit subclasses: one of private offering purchasers, and one of open market

purchasers. Also like the initial complaint, this complaint was a shotgun pleading.

The new complaint differed by adding to its federal securities law claims

new theories of the defendants’ allegedly false or misleading statements. In

addition to Thompson’s unregistered-broker theory, Thompson and Jacoby also

alleged that Media failed to disclose its retention of outside counsel to investigate

accusations of employee theft and kickbacks (the “kickback theory”); that

beginning in the third quarter of 2005, its financial statements recognized income

in violation of Generally Accepted Accounting Principles (“GAAP”) and company

policy (the “overstated-income theory”); and that it did not disclose that director

Musser had been sued by stockholders of two other corporations for securities

violations (the “sued-director theory”).

18.) According to the complaint, the remainder of the defendants were Officers and/or directors of Media: Hirsch was chief operating officer, Wasserman was chief financial officer, Brauser was chairman of the board, McNamara was senior vice president and interim chief financial officer, Soltoff was chief financial officer, Obeck was president, Gould was chief financial officer, and Young founded Chubasco, Media’s predecessor. The complaint alleged that all of these Officers signed or authorized one or more certifications with the SEC. (Id. ¶¶ 10–22.)

59 The plaintiffs also tried to strengthen Thompson’s original unregistered-

broker theory. They added an allegation that Summit and another unregistered

broker, Barry Honig, sold securities to a Florida resident, Stuart Feick. (First Am.

Compl. ¶¶ 66–67.) Additionally, the plaintiffs essentially listed all of Media’s SEC

filings to date,38 with one notable exception. The first amended complaint did not

list Media’s June 16, 2005 Form 8-K current report, which revealed the Summit

consulting agreement, and, with it, Summit’s representation that it was not licensed

and would not act as a broker/dealer for Media.39 The amended complaint alleged

that all of the listed SEC filings were false or misleading because they failed to

state the material facts recounted above, including Media’s use of an unregistered

broker—Summit—to sell its shares.

38 The plaintiffs alleged that the following documents contained false or misleading statements due to omissions of material fact: (a) the June 13, 2005 Form 8-K; (b) the June 14, 2005 quarterly statement Form 10-QSB filed by Chubasco; (c) the June 27, 2005 Form 8-K; (d) the June 30, 2005 Form 8-K; (e) “several Form 8K’s [sic]” filed in July, August and September 2005; (f) the August 18, 2005 quarterly statement Form 10-QSB; (g) the November 18, 2005 quarterly statement Form 10-QSB; (h) “several Form 8K’s [sic]” filed in November 2005; (i) “several” Form 8-Ks filed on December 5, 2005; (j) the December 30, 2005 Form 8-A Registration Statement; (k) “several Form 8K’s [sic]” filed in February 2006; and (l) the March 20, 2006 Form SB-2 and Form 10-K. (First Am. Compl. ¶¶ 72–92.) 39 That the amended complaint contained no explicit reference to the June 16, 2005 current report is noteworthy for three reasons. First, the plaintiffs chose to list almost every other SEC filing, made both before and after June 16, 2005. Second, Thompson had attested in the subscription agreement he signed when he purchased his shares in the private offering that he had read and reviewed this June 16, 2005 filing. See supra note 11 and accompanying text. Third, the plaintiffs cited the June 16 filing in the initial complaint verbatim, and the only time the agreement was disclosed was in the June 16, 2005 filing.

60 Counts I through III replicated nearly verbatim Counts I through III of the

initial complaint. Count I alleged that Media violated § 11 by filing a false

registration statement; Count II claimed that Media violated § 12 by issuing false

or misleading prospectuses or oral communications; Count III alleged violations of

§ 10(b) and Rule 10b-5. The plaintiffs added a new count, Count IV, “Violation

Of Section 20(a) of The Exchange Act Against the Individual Defendants.” That

count asserted that the Officers were liable for the Count III § 10(b), Rule 10b-5

violations because the Officers were controlling persons under § 20(a) of the 1934

Act, 15 U.S.C. § 78t.40 For all three federal securities claims, the plaintiffs alleged

the same misleading statements—Media’s securities filings misled because they

omitted Media’s use of an unregistered broker, its investigation of kickbacks, its

overstatement of income, and its sued director.

Similarly, with two notable exceptions, the plaintiffs re-pled their state law

claims almost verbatim. See Part II.A.1, supra. The state law claims were now

pled as Counts V through X (they were pled as counts IV through IX in the initial

40 Section 20(a) provides:

Every person who, directly or indirectly, controls any person liable under any provision of [the 1934 Act] or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action.

15 U.S.C. § 78t(a).

61 complaint). The two exceptions involved the allegations of fraud in the now Count

VIII Indiana Securities Act fraud claim and the now Count IX Indiana deception

claim. In the initial complaint’s iteration, Thompson alleged that Media

fraudulently failed to disclose: sizeable commissions and fees it paid to Altavilla,

that the stock was not registered and therefore restricted, and that Media had hired

“unregistered agents to sell there [sic] securities.” (Compl. ¶¶ 76, 78.) In the

amended complaint, Thompson eliminated any claim that Media misled him about

the unregistered status of his shares and pled the unregistered-broker, kickback,

overstated-income, and sued-director theories of misrepresentation instead. (First

Am. Compl. ¶¶ 147, 149.)

2. The Defendants Move to Dismiss, Request the Court to Retain Jurisdiction to Impose Sanctions

The defendants responded to the first amended complaint with motions to

dismiss, which articulated virtually the same rationales as their previous motions to

dismiss. Addressing the Counts I and II claims under § 11 and § 12 of the 1933

Act, the defendants argued that the private offering subclass could not have relied

on a Media registration statement or prospectus because none had been issued for

those shares. Addressing Jacoby’s purchase of 10,000 shares in the open market in

July and August 2005, the defendants argued that these shares were purchased

under a registration statement and prospectus issued by Chubasco in February 2005

62 and thus could not form the basis for a § 11 or § 12 claim against Media. Turning

to the Count III § 10(b), Rule 10b-5 claim, the defendants argued that the plaintiffs

failed to plead the claim with the particularity and specificity demanded by Rule

9(b) and the PSLRA. As for the state law claims, the defendants again reiterated

that they were barred by the SLUSA, and, even if they were not barred by the

SLUSA, they failed to state a claim. Finally, defendants Media, Adler, Musser,

Wasserman, Brauser, McNamara, Soltoff, Obeck, Gould, and Young, and, in her

separate motion, defendant Karp, reiterated the request that the court retain

jurisdiction to impose sanctions.

In response to the defendants’ motions, plaintiffs’ counsel conceded that

their § 11 claim had no merit.41 Although the plaintiffs also conceded that their §

12 claim could not succeed on the basis of any false or misleading prospectus, they

maintained the claim had merit because Thompson relied on certain (unidentified)

“oral communication[s]” in the June private offering.42 (Pls.’ Resp. to Defs.’ Mot.

41 In their response, plaintiffs’ counsel stated: “After reviewing the Defendants’ briefs and further investigating the claims, Plaintiffs Jacoby and Thompson have decided to abandon their Section 11 claims.” (Pls.’ Resp. to Defs.’ Mot. to Dismiss 26, Jan. 29, 2007.) 42 The first amended complaint alleged that Thompson had relied on “oral communications” from Altavilla. Paragraph 56 stated: “Before investing Plaintiff Richard F. Thompson reviewed the public statements on the internet about Relationserve [Media], listened to the sales pitch of Tony Altavilla and reviewed all document[s] presented by Tony Altavilla.” Paragraph 58 stated: “In order to complete the purchase of Relationserve [Media] shares by the Plaintiff Richard F. Thompson, Altavilla negotiated the final purchase price between the parties, and facilitated wire transfers of money from the Plaintiff to Relationserve [Media].”

63 to Dismiss 25, Jan. 29, 2007.)43 As for the § 10(b), Rule 10b-5 claim, counsel

argued that they had met the strict pleading requirements of Rule 9(b) and the

PSLRA.44 (Id. at 11.)

Regarding the state law claims, the plaintiffs conceded that the SLUSA

barred them from maintaining three of the five claims as class actions: the Count

VIII Indiana securities fraud claim, the Count IX Indiana deception claim, and the

Count X common law fraud claim. They argued that Counts V, VI, and VII were

cognizable. (Id. at 23–24.) Counts V and VI alleged that Media sold securities via

unregistered brokers in violation of Florida and Indiana law, respectively; Count

VII alleged that Media sold unregistered, non-exempt securities in violation of the

Indiana Securities Act. The defendants contended that these claims were “not

within the purview of SLUSA because the claims do not allege that the Defendants

misrepresented or omitted a material fact in connection with the purchase or sale of

such security.” (Id. at 23 (quotation omitted).)

43 Plaintiffs’ counsel apparently concluded that they lacked evidentiary support, legal support, or both, for the “oral communication[s],” because, when they filed the second amended complaint, they did not assert a § 12 claim. 44 The plaintiffs’ allegations of fraudulent conduct on the part of the Officers were that they “omitted to state material facts” in documents with the SEC. (See First Am. Compl. ¶¶ 9–22.) For example, “Defendant Danielle Karp was the President and Secretary of Relationserve. Danielle Karp signed one or more certifications per Sarbanes-Oxley Act filed with the SEC which omitted to state material facts.” (Id. at ¶ 10.)

64 The district court heard the defendants’ motions to dismiss during a

conference call with counsel on March 6, 2007. Referring to the § 10(b), Rule

10b-5 claims, the court questioned whether Thompson was a suitable class

representative because of a possible conflict with the open market purchasers. The

court also indicated that it had serious concerns about the adequacy of the

plaintiffs’ pleading. At one point, the court said:

So I don’t see anything where it is alleged that [Thompson and Jacoby] relied on anything specific. Nothing is tied together. There are a lot of things thrown out in the first amended complaint, but I see very little connecting of the dots.

Seems to me there are some real gaps there. Seems to me you may have more than one lawsuit tied into one lawsuit. . . .

Again, it’s kind of hard to follow. It’s like so what, who relied on it, who did what? Where is the reliance causation?

I don’t see . . . where anyone is alleged to have relied on any particular filing whether [a Form] 10[-] K, [Form] 10-Q[SB], or registration statement that led that person to purchase something.

(Hr’g Tr. 8, Mar. 6, 2007.) After detailing why the federal securities claims failed,

the court offered plaintiffs’ counsel “one final time to take care of” the

deficiencies. (Id. at 5.) The court therefore dismissed the first amended complaint

without prejudice, with leave to file a second amended complaint by March 19,

2007.

65 C. The Second Amended Complaint

1. Thompson & Jacoby File the Second Amended Complaint with Jacoby Leading an Open-Market Purchaser Subclass Bringing Federal Securities Claims and with Thompson Leading a Private Offering Purchaser Subclass Bringing State Law Claims

The plaintiffs filed a second amended complaint on March 19, 2007. This

complaint, unlike the prior ones, pled two class actions: one under federal

securities law, with Jacoby as the class representative, and the other under state

law, with Thompson as the class representative. Both actions sought rescission or

damages for purchasers of Media stock.

As for the federal claims, Jacoby brought his class action in two counts, I

and II, “on behalf [of] himself and all others similarly situated that purchased

RelationServe Media, Inc. . . . securities on the open market prior to May 23,

2006.” (Second Am. Compl. ¶ 1.) In Count I, except for the class definition,

Jacoby replicated the claim brought by Thompson in Count III of the initial

complaint and by Thompson and Jacoby in Count III of the first amended

complaint—that Media and the Officers “offered and sold RelationServe securities

in violation of” § 10(b) of the 1934 Act and Rule 10b-5. (Second Am. Compl. ¶¶

101–03.)45 In Count II, except for the class definition, Jacoby replicated the §

45 In drafting the second amended complaint, plaintiffs’ counsel did not include the § 11 and § 12 claims asserted in Counts I and II of the initial and first amended complaints, which were based on misrepresentations allegedly made in Media’s registration statement and prospectus. See supra parts II.A and B. Nonetheless, in presenting Count I in the second

66 20(a) claim brought by Thompson and Jacoby in Count IV of the first amended

complaint—“[b]y virtue of their positions as controlling persons [of Media], the

individual Defendants are liable” for Media’s violation of § 10(b) and Rule 10b-5.

(Id. ¶¶ 104–11.)

The biggest difference between the federal securities claims in the first and

second amended complaints was what the second amended complaint omitted.

Gone was Thompson from any federal securities claim; gone were two of the

individual defendants;46 gone were the § 11 and § 12 claims; gone were the

kickback and the overstated-income theories of misrepresentation.47 Only Jacoby

remained, representing open market purchasers and bringing a § 10(b), Rule 10b-5

claim and a parasitic § 20(a) claim.48 Jacoby asserted only the unregistered-broker

and sued-director theories of misrepresentation.

amended complaint, counsel repeated the allegation that “RelationServe[ Media’s] registration statement(s) and prospectus contained misleading information and omitted material facts necessary to make the statements alleged therein not misleading.” (Second Am. Compl. ¶ 102.) 46 The plaintiffs dropped Richard Hill and Barry Honig. 47 The plaintiffs did not even plead the factual predicate for the kickback theory; the plaintiffs did plead the factual predicate for the overstated-income theory (Second Am Compl. ¶¶ 60, 61), but did not plead it as an actionable omission in the § 10(b), Rule 10b-5 claim, (id. ¶¶ 3, 80, 95). Further, in the district court and in this appeal, the plaintiffs advanced it only to demonstrate the defendants’ venal character in support of the plaintiffs’ scienter argument. 48 A § 20(a) claim is a parasitic claim because it can only succeed if a predicate § 10(b), Rule 10b-5 claim succeeds; thus the § 20(a) claim lives and dies by the Rule 10b-5 claim.

67 Thompson asserted his class action in Count III “on behalf of himself and all

others similarly situated that purchased RelationServe [Media] securities by way of

a private offering.” (Id. ¶ 2.) Count III alleged that the defendants

violated the securities laws of California, Connecticut, Florida, Illinois, Indiana, Nevada, New Jersey, New York, Ohio, and Pennsylvania by way of (1) their sale of RelationServe [Media] securities through the use of broker/dealers and agents who were not registered with the SEC [and those states] and (2) their payment of a commission.49

(Id. ¶ 113.) Furthermore,

[e]ach Defendant having access to RelationServe [Media] business prior to and during RelationServe[ Media’s] use of unregistered broker/dealers personally participated or aided in making the sales to Thompson and his putative class and is jointly and severally liable for rescission if the purchaser still owns the security or for damages if the purchaser has sold the security.

(Id. ¶ 114.) Here again, most notable was what was omitted: gone was the claim

that Media sold unregistered, non-exempt securities in violation of the Indiana

securities act, and gone were all of the state law fraud claims.

The first 100 paragraphs resembled the first 117 paragraphs of the first

amended complaint. Like that complaint, the second amended complaint omitted

any reference to Media’s June 16, 2005 current report, which indicated that

Summit was not registered and would not act as a broker/dealer, but, rather would

49 As it pertained to the securities laws of Florida and Indiana, Count III replicated the allegations of Counts IV and V of the initial complaint and Counts V and VI of the first amended complaint.

68 only act as a finder. Nevertheless, the second amended complaint addressed the

licensing issue by alleging that “RelationServe [Media], and its officers and

directors, knew and failed to report . . . that Summit and its agents [we]re not

registered with the SEC or the state securities divisions.” (Second Am. Compl. ¶

45.) It also alleged that the Officers acted with scienter in failing to report this: the

Officers “knew and/or recklessly disregarded the falsity and misleading nature of

the information which they caused to be disseminated to the investing public.” (Id.

¶ 80.)

2. The Defendants Move to Dismiss, and Defendant Karp Moves for Sanctions

Once again, the defendants moved to dismiss the plaintiffs’ complaint. They

did so on several grounds, among them that (1) the § 10(b), Rule 10b-5 claim’s

allegations of misrepresentation and scienter were insufficient under the

heightened pleading requirements of Rule 9(b) and the PSLRA; and (2) as a

consequence, the parasitic § 20(a) claim failed. As for Thompson’s state law class

action, the defendants pointed out that of the ten states where Media allegedly sold

shares through unregistered brokers, the plaintiffs had identified only one sale in

only one state—specifically, Media’s sale to Thompson through Summit in

Indiana. Accordingly, the state law claims in all states except Indiana failed from

69 the get-go. As for the Indiana sale to Thompson, the plaintiffs pointed out that

Summit did not need to be registered as a broker under Indiana law.

In addition to moving for the dismissal of the complaint, defendant Karp

moved for sanctions against the plaintiffs and their attorneys under Rule 11 with

respect to all counts and under the PSLRA with respect to the Count I § 10(b),

Rule 10b-5 claim and the Count II § 20(a) claim.50

3. The Court Dismisses the Complaint with Prejudice but Denies Sanctions

On June 12, 2007, the district court entered an order disposing of the

defendants’ motions. The court dismissed Count I because it failed to meet the

heightened pleading standards of Rule 9(b) and the PSLRA. In the court’s view,

the § 10(b), Rule 10b-5 elements of misrepresentation and scienter had not been

pled with the requisite specificity. Specifically, the § 10(b), Rule 10b-5 claim did

not identify one statement of significance in any SEC filing that was allegedly false

or misleading due to the omission of a material fact, and it pled scienter in a

conclusory fashion, thereby failing to create a strong inference of severe

recklessness on the part of Media or the Officers. The court dismissed Count II

50 All defendants except Jehassi sought Rule 11 sanctions when they moved the district court to dismiss the initial complaint; eleven of thirteen defendants renewed this request in their motions to dismiss the first amended complaint; and all defendants renewed this request in their motions to dismiss the second amended complaint. Karp was the only defendant who sought the imposition of sanctions in a separate motion and was the only defendant who appealed the denial of sanctions.

70 because Count I was legally insufficient. The dismissal of Counts I and II left the

court with the state law claims of Count III. The court declined to exercise its

supplemental jurisdiction over those claims and therefore dismissed them without

prejudice.

In a separate order entered on June 12, the court denied Karp’s motion for

sanctions. The court found “that Plaintiffs’ claims are not frivolous, or so devoid

of evidentiary support as to warrant sanctions. Likewise, there is no evidence that

Plaintiffs instituted this action for improper purposes, such as to harass [Media,

Karp, or any other named defendant] or needlessly increase the cost of litigation.”

(Sanctions Order 1, June 12, 2007 (internal citations omitted).)51 Karp contended

that sanctions were warranted because, “[i]n dismissing the instant matter three

times for failing to state a cause of action, the District Court in essence ruled

Plaintiffs’ claims were frivolous.”

4. Jacoby’s Appeal, Karp’s Cross-Appeal, and this Court’s Decision

51 The two page order denying sanctions did not explicitly address Rule 11(b) compliance under the PSLRA with respect to: (1) the § 11 claims brought as Count I in the initial and first amended complaints; (2) the § 12 claims brought as Count II in the initial and first amended complaints; (3) the § 10(b), Rule 10b-5 claims brought as Count III of the initial complaint and first amended complaints and Count I of the second amended complaint; or (4) the § 20(a) claims brought as Count IV of the first amended complaint and Count II of the second amended complaint. After declining to exercise jurisdiction over Count III of the second amended complaint, Thompson’s state law claims, the district court did not decide whether Rule 11 sanctions should be imposed for plaintiffs’ prosecution of those claims.

71 Subsequently, Jacoby appealed to this court and Karp cross-appealed.

Jacoby appeals the district court’s dismissal of the § 10(b), Rule 10b-5 and § 20(a)

claims of the second amended complaint. Karp cross-appeals the court’s denial of

PSLRA Rule 11 sanctions for the federal claims and ordinary Rule 11 sanctions for

the second amended complaint’s state law claims.

Today, the court correctly affirms the dismissal of Jacoby’s federal securities

law claims. The court disposes of Karp’s appeal regarding PSLRA sanctions by

vacating the district court’s sanctions order and remanding the case for further

proceedings, because the district court’s PSLRA order is too conclusory to permit

meaningful appellate review. The court’s disposition contains insufficient

instructions as to precisely what the district court must do on remand. In my view,

under the court’s disposition, the district court must carry out its PSLRA duties

from scratch with respect to all parties and their respective attorneys. Finally, the

court makes no explicit holding regarding Karp’s motion for ordinary Rule 11

sanctions on the state law claims.

III. This Court Errs by Summarily Remanding Karp’s Cross-Appeal for Sanctions Under the PSLRA

In Karp’s cross-appeal for Rule 11 and PSLRA sanctions, the court errs for

two reasons. First, the court’s opinion fails to make perfectly clear that, on

remand, the district court must review and make “specific findings regarding”

72 plaintiffs and plaintiffs’ counsel’s compliance with each requirement of Rule 11(b)

with respect to all three complaints.52 Second, the court should not have remanded

with a blank slate; at bottom, the court should have instructed the district court to

sanction plaintiffs’ attorneys for noncompliance with Rule 11(b). This discussion

proceeds in two parts. Part A sets out the duties the PSLRA imposes on district

courts and shows that the district court must review all three complaints for Rule

11 compliance on remand. Part B explains that under the PSLRA, there is no need

for a remand when the record demonstrates conclusively that an attorney or party

violated Rule 11.

A. The PSLRA Rule 11 Analytical Framework & Requirements

The PSLRA mandates sanctions for filing and prosecuting frivolous or

abusive securities actions under the 1933 and 1934 Acts and emphasizes the need

not only to deter such filings but also to compensate the victims. See H.R. Rep.

No. 104-369, at 39–40 (1995) (Conf. Rep.), reprinted in 1995 U.S.C.C.A.N. 730,

738–39. Accordingly, the PSLRA requires both (1) mandatory findings regarding

compliance with Rule 11, and (2) mandatory sanctions whenever any portion of a

52 See 15 U.S.C. §§ 77z-1(c), 78u-4(c). Full compliance with the PSLRA requires the district court to review the motions the defendants filed in response to the three complaints as well, but the focus on remand will be the complaints.

73 plaintiff’s complaint fails to comply with Rule 11.53 15 U.S.C.

53 Section 78u-4(c), which is materially identical to § 77z-1(c), provides:

Sanctions for abusive litigation

(1) Mandatory review by court

In any private action arising under this chapter, upon final adjudication of the action, the court shall include in the record specific findings regarding compliance by each party and each attorney representing any party with each requirement of Rule 11(b) of the Federal Rules of Civil Procedure as to any complaint, responsive pleading, or dispositive motion.

(2) Mandatory sanctions

If the court makes a finding under paragraph (1) that a party or attorney violated any requirement of Rule 11(b) of the Federal Rules of Civil Procedure as to any complaint, responsive pleading, or dispositive motion, the court shall impose sanctions on such party or attorney in accordance with Rule 11 of the Federal Rules of Civil Procedure. Prior to making a finding that any party or attorney has violated Rule 11 of the Federal Rules of Civil Procedure, the court shall give such party or attorney notice and an opportunity to respond.

(3) Presumption in favor of attorneys’ fees and costs

(A) In general

Subject to subparagraphs (B) and (C), for purposes of paragraph (2), the court shall adopt a presumption that the appropriate sanction—

(i) for failure of any responsive pleading or dispositive motion to comply with any requirement of Rule 11(b) of the Federal Rules of Civil Procedure is an award to the opposing party of the reasonable attorneys’ fees and other expenses incurred as a direct result of the violation; and

(ii) for substantial failure of any complaint to comply with any requirement of Rule 11(b) of the Federal Rules of Civil Procedure is an award to the opposing party of the reasonable attorneys’ fees and other expenses incurred in the action.

74 § 77z-1(c); 15 U.S.C. § 78u-4(c).

The PSLRA-mandated Rule 11 compliance review is sweeping. In a

paragraph entitled “Mandatory review by court,” the statute provides that, in any

private securities action, “the court shall include in the record specific findings

regarding compliance by each party and each attorney . . . with each requirement of

Rule 11(b) . . . as to any complaint, responsive pleading, or dispositive motion.”

15 U.S.C. § 78u-4(c)(1) (emphasis added). Congress imposed this heavy duty on

district courts via statute; thus, whether a party moved for sanctions is irrelevant.

(B) Rebuttal evidence

The presumption described in subparagraph (A) may be rebutted only upon proof by the party or attorney against whom sanctions are to be imposed that—

(i) the award of attorneys’ fees and other expenses will impose an unreasonable burden on that party or attorney and would be unjust, and the failure to make such an award would not impose a greater burden on the party in whose favor sanctions are to be imposed; or

(ii) the violation of Rule 11(b) of the Federal Rules of Civil Procedure was de minimis.

(C) Sanctions

If the party or attorney against whom sanctions are to be imposed meets its burden under subparagraph (B), the court shall award the sanctions that the court deems appropriate pursuant to Rule 11 of the Federal Rules of Civil Procedure.

Because the two subsections are materially identical, from this point forward, I cite only to 15 U.S.C. § 78u-4(c).

75 Moreover, because Congress extended this duty to “any” complaint, when a

plaintiff files multiple complaints, each must be scrutinized. See Reeves v. Astrue,

526 F.3d 732, 734 (11th Cir. 2008) (“Statutory interpretation begins and ends with

the text of the statute so long as the text’s meaning is clear.”). The PSLRA does

not grant a get-out-of-jail-free card—one nonfrivolous complaint does not

immunize the earlier filing of frivolous complaints. See ATSI Commc’ns, Inc. v.

Shaar Fund, Ltd., 579 F.3d 143, 152 (2d Cir. 2009) (“The PSLRA sanctions

provision forecloses the kind of safe harbor afforded in Rule 11(c)(2). The PSLRA

explicitly directs courts to make Rule 11 findings ‘upon final adjudication of the

action’ . . . and it is well-settled that no safe harbor could apply retroactively.”)

(quoting 15 U.S.C. § 78u4-(c)(1)). Even in the ordinary Rule 11 context, where a

complaint contains multiple claims, one nonfrivolous claim will not preclude

sanctions for frivolous claims. E.g., Reed v. Great Lakes Cos., 330 F.3d 931, 936

(7th Cir. 2003) (“The fact that Reed’s accommodation claim, while it has failed,

was not frivolous would be no bar to imposing sanctions for putting his opponent

to the expense of opposing a frivolous claim (or defense) just because he had a

nonfrivolous claim as well.”). Here, the district court erred when it based its

sanctions review on only the second amended complaint. The district court should

76 have reviewed all three complaints (as well as, for that matter, each party, each

attorney, and each motion to dismiss) for compliance with Rule 11.

Although the PSLRA forces a district court to conduct the Rule 11 inquiry, it

does not alter the ordinary Rule 11 analysis. Simon DeBartolo Group, L.P. v.

Richard E. Jacobs Group, Inc., 186 F.3d 157, 167 (2d Cir. 1999). Rule 11 is

violated when: (1) a paper is presented for “any improper purpose, such as to

harass or to cause unnecessary delay or needless increase in the cost of litigation;”

(2) the legal contentions are not “warranted by existing law” or by a “nonfrivolous

argument” for changing existing law; or (3) the factual contentions lack evidentiary

support. Fed. R. Civ. P. 11(b) (2006).54 A Rule 11(b)(2) or (b)(3)

violation—bringing a legally or factually frivolous claim—is often probative of a

54 When this case was litigated, Federal Rule of Civil Procedure 11(b) provided:

(b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney . . . is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,— (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims . . . and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery . . . .

Fed. R. Civ. P. 11 (2006). Rule 11 was amended in 2007 “as part of the general restyling of the Civil Rules,” this amendment was “intended to be stylistic only.” Fed. R. Civ. P. 11 advisory committee’s note, 2007 amendment. Nevertheless, I refer to the 2006 version of the Rule.

77 Rule 11(b)(1) improper purpose violation. Therefore, it helps to begin the PSLRA

examination with Rule 11(b)(2) and (3).

In this circuit, there are two prongs to the Rule 11(b)(2) and (b)(3) inquiry:

whether the legal claims or factual contentions are objectively frivolous, and, if so,

whether a reasonably competent attorney should have known they were frivolous.

Worldwide Primates, Inc. v. McGreal, 87 F.3d 1252, 1254 (11th Cir. 1996). Both

inquiries measure attorney conduct under an objective reasonably competent

attorney standard. Donaldson v. Clark, 819 F.2d 1551, 1556 (11th Cir. 1987) (en

banc).

A legal claim is frivolous if no reasonably competent attorney could

conclude that it has any “reasonable chance of success” or is a reasonable argument

to change existing law. Worldwide Primates, 87 F.3d at 1254 (quoting Jones v.

Int’l Riding Helmets, Ltd., 49 F.3d 692, 694 (11th Cir. 1995)); McGregor v. Bd. of

Comm’rs of Palm Beach County, 956 F.2d 1017, 1022 (11th Cir. 1992) (“If an

allegation in a complaint contains no colorable claim for relief, then a Rule 11

sanction is proper.”). Not every Federal Rule of Civil Procedure 12(b)(6)

dismissal will warrant sanctions, but sanctions may be imposed when settled

precedent clearly bars a claim. See Davis v. Carl, 906 F.2d 533, 538 (11th Cir.

1990) (noting that legal claims are frivolous in egregious circumstances such as

78 when a party ignores the plain language of a statute of limitations or conceals

controlling authority); compare Thomas v. Early County, Ga., No. 09-12232, 2010

WL 27970, at *4 (11th Cir. Jan. 7, 2010) (unpublished) (concluding that Rule

11(b)(2) had been violated where “allegations of vicarious liability fail as a matter

of long-established law”), with Anderson v. Smithfield Foods, Inc., 353 F.3d 912,

915–16 (11th Cir. 2003) (per curiam) (affirming a district court’s dismissal of a

RICO count, but reversing the imposition of sanctions when there was “scant on-

point authority” to guide the attorney to the conclusion that the claim had no

chance of success).

A factual claim is frivolous if no reasonably competent attorney could

conclude that it has a reasonable evidentiary basis. Davis, 906 F.2d at 535–37.

Thus, where no evidence or only “patently frivolous” evidence is offered to

support factual contentions, sanctions can be imposed. Id. at 537. If, however, the

evidence supporting the claim is reasonable, but simply “weak” or “self-serving,”

sanctions cannot be imposed. Id. at 536.

Once a court concludes that either the factual or legal contentions are

frivolous, the question becomes whether the attorney should have known they were

frivolous. Worldwide Primates, 87 F.3d at 1254. We ask what was known or

reasonably knowable when the paper was “present[ed] to the court.” Fed. R. Civ.

79 P. 11(b). Again, measured objectively, if a reasonable investigation would have

revealed the error to a reasonably competent attorney, then sanctions can be

imposed; if not, then sanctions cannot be imposed. The reasonableness of the

inquiry turns on the totality of the circumstances, including, for example, the time

available for investigation and whether the attorney had to rely on the client,

another member of the bar, or others. Worldwide Primates, 87 F.3d at 1254.

Rule 11(b)(1) sanctions are appropriate when an attorney or party presents a

paper for an improper purpose. Improper purpose is often inferred from

circumstantial evidence. For example, it can be inferred from “‘excessive

persistence in pursuing a claim or defense in the face of repeated adverse rulings.’”

Indus. Risk Insurers v. M.A.N. Gutehoffnungshütte GmbH, 141 F.3d 1434, 1448

(11th Cir. 1998) (quoting Pierce v. Commercial Warehouse, 142 F.R.D. 687,

690–91 (M.D. Fla. 1992)). A “motive to harass” can also be inferred from an

attorney’s filing of factually or legally frivolous claims. Cf. Carr v. Tillery, 591

F.3d 909, 919–20 (7th Cir. 2010).

Ordinarily, even in the face of a blatant Rule 11 violation, a district court

retains discretion to decide how to sanction the party or even not to impose

sanctions at all. This discretion derives from Rule 11’s plain text: “If, after notice

and a reasonable opportunity to respond, the court determines that Rule 11(b) has

80 been violated, the court may impose an appropriate sanction on any attorney, law

firm, or party . . . .” Fed. R. Civ. P. 11(c)(1) (emphasis added); see also Fed. R.

Civ. P. 11 advisory committee’s note, 1993 Amendment (“[W]hat sanctions, if any,

to impose for a violation are matters committed to the discretion of the trial

court.”). Thus, ordinarily, a court can excuse an attorney’s negligence, mistake, or

plain-old incompetence.

But the PSLRA strips the district court of the discretion to grant mercy—the

PSLRA forces a district court to sanction an attorney for violating any prong of

Rule 11. The statute provides, in a paragraph entitled “Mandatory sanctions,” that

“[i]f the court makes a finding . . . that a party or attorney violated any requirement

of Rule 11(b) . . . as to any complaint, responsive pleading, or dispositive motion,

the court shall impose sanctions on such party or attorney . . . .” 15 U.S.C. § 78u-

4(c)(2) (emphasis added). Likewise, the PSLRA curtails a district court’s

discretion in fashioning the sanction. It does so by erecting a rebuttable

presumption that when any complaint “substantial[ly]” fails to comply with Rule

11, the sanction is the defendant’s attorneys’ fees for the entire action. Id. § 78u-

4(c)(3)(A)(ii).55 Even when the presumption is rebutted,56 a district court still must

55 For responsive pleadings and dispositive motions, the PSLRA erects a similar presumption but without the requirement that the violation be “substantial” and limiting the award of fees to those caused by the violation. See 15 U.S.C. § 78u-4(c)(3)(A)(i) (stating the penalty for “failure of any responsive pleading or dispositive motion to comply with any requirement of Rule 11(b)” is an “award to the opposing party of the reasonable attorneys’ fees

81 sanction the party in some appropriate manner. Id. § 78u-4(c)(3)(C) (“If the party

or attorney [to be sanctioned] meets its burden under subparagraph (B), the court

shall award the sanctions that the court deems appropriate pursuant to Rule 11 . . .

.”) (emphasis added).

The PSLRA’s mandate regarding Rule 11(b) compliance resulted from

Congress’s recognition of “the need to reduce significantly the filing of meritless

securities lawsuits without hindering the ability of victims of fraud to pursue

legitimate claims.” H.R. Rep. No. 104-369, at 39 (1995) (Conf. Rep.), reprinted in

1995 U.S.C.C.A.N. 730, 738. Further, in enacting the PSLRA, Congress

commented that the “[e]xisting Rule 11 has not deterred abusive securities

litigation” and that the PSLRA’s sanctions requirement would put “teeth” into Rule

11. Id. The Senate Report accompanying the legislation further notes,

Although private securities class actions can complement SEC enforcement actions, the evils flowing from abusive securities litigation start with the filing of the complaint and continue through to the final disposition of the action. A complaint alleging violations of the Federal securities laws is easy to craft and can be filed with little or no due diligence.

and other expenses incurred as a direct result of the violation”). 56 The presumption can be rebutted if the party or attorney is able to prove (1) that the sanction would impose an unreasonable, unjust burden and that a failure to impose the sanction would not impose a greater burden on the other party; or (2) that the Rule 11(b) violation was de minimis. 15 U.S.C. § 78u-4(c)(3)(B). Although they had the opportunity to do so when opposing Karp’s requests for sanctions, neither the plaintiffs nor their counsel have made either argument or offered either type of proof in this case.

82 ....

Most defendants in securities class action lawsuits choose to settle rather than face the enormous expense of discovery and trial. Of the approximately 300 securities lawsuits filed each year, almost 93% settle at an average settlement cost of $8.6 million. These cases are generally settled based not on the merits but on the size of the defendant’s pocketbook.

The fact that many of these lawsuits are filed as class actions has had an in terrorem effect on Corporate America . . . . These lawsuits have added significantly to the cost of raising capital and represent a “litigation tax” on business. Smaller start-up companies bear the brunt of abusive securities fraud lawsuits. Many of these companies are high-technology companies which, by their very nature, have unpredictable business prospects and, consequently, volatile stock prices.

S. Rep. No. 104-98, at 8–9 (1995), reprinted in 1995 U.S.C.C.A.N. 679, 687–88

(footnotes omitted).

Accordingly, the PSLRA’s sanctions mandate reflects Congress’s policy to

prevent the misuse of judicial resources in the securities context. To effectuate its

goals, Congress imposed a heavy burden on the district courts and removed the

courts’ discretion to grant mercy for a Rule 11(b) violation.

Significantly, our sister circuits agree with this strict, literal, and unforgiving

interpretation of the way Congress has curtailed the district courts’ Rule 11

discretion through the PSLRA; the courts of appeals that have considered the issue

have uniformly agreed—Congress meant what it said when it made Rule 11

83 sanctions mandatory whenever a violation is found. See Citibank Global Mkts.,

Inc. v. Rodriguez Santana, 573 F.3d 17, 31 (1st Cir. 2009) (“The statute requiring

such findings does not appear to brook any exceptions”); Morris v. Wachovia Sec.,

Inc., 448 F.3d 268, 276 (4th Cir. 2006) (“Because the sanctions ‘instruction comes

in terms of the mandatory “shall,” which normally creates an obligation impervious

to judicial discretion’ . . . the district court must impose sanctions for each

violation found.”) (quoting Lexecon Inc. v. Milberg Weiss Bershad Hynes &

Lerach, 523 U.S. 26, 35, 118 S.Ct. 956, 962 (1998)); Gurary v. Nu-Tech Bio-Med,

Inc., 303 F.3d 212, 215 (2d Cir. 2002) (“If the court determines that a violation has

occurred, the imposition of sanctions is mandatory.”).

In addition to mandating the Rule 11 inquiry and mandating sanctions for

any Rule 11 violation, the PSLRA imposes three procedural requirements. First,

the district court’s duty to conduct the Rule 11 compliance review is triggered only

“upon final adjudication of the action.” 15 U.S.C. § 78u-4(c)(1). Second, if, after

examining the complaints, responsive pleadings, or dispositive motions, the court

concludes that sanctions may be in order, the court “shall give [the] party or

attorney [against whom sanctions might be imposed] notice and an opportunity to

respond.” Id. § 78u-4(c)(2). Although the statute does not specify the type of

notice that should issue, an order directing the party or attorney “to show cause”

84 why sanctions should not be imposed would suffice. Cf. Fed. R. Civ. P. 11

advisory committee’s note, 1993 Amendment (“The power of the court to act on its

own initiative is retained, but with the condition that this be done through a show

cause order.”). Third, a district court must reduce its Rule 11 compliance review

to “specific findings.” These specific findings are akin to the findings of fact and

conclusions of law a district court makes pursuant to Federal Rule of Civil

Procedure 52(a) at the conclusion of a bench trial. These findings aid the court of

appeals in reviewing the district court’s sanctions decision. In this case, in addition

to erring by focusing solely on the second amended complaint, the district court

erred by entering only a conclusory order.

B. A Court of Appeals Should Not Remand for Rule 11 Findings When it Can Determine Conclusively that the District Court Abused its Discretion in Denying Sanctions

The PSLRA does not explain how a court of appeals should review a district

court’s failure to conduct an adequate PSLRA examination evidenced by “specific

findings” regarding the parties’ and their attorneys’ compliance with Rule 11.

Today, the court equivocates on whether it is possible for an appellate court to

determine PSLRA Rule 11 compliance when faced with conclusory findings and

declines to do so in this case. Maj. Op. at 20, 23. That conclusion, however,

ignores the precedent of this circuit, will set the stage for error on remand, will

85 generate another appeal, and will waste the time and resources of the district court,

this court, and the litigants. In my view, under the PSLRA, when it can be

determined conclusively that an attorney or party violated Rule 11, the court of

appeals should hold that sanctions must be imposed. This is so even where, as

here, the court of appeals can reach that holding only as to some of the claims or

defenses.

We review a district court’s Rule 11 determination for abuse of discretion.

Souran v. Travelers Ins. Co., 982 F.2d 1497, 1507 n.10 (11th Cir. 1993). “‘A

district court would necessarily abuse its discretion if it based its ruling on an

erroneous view of the law or on a clearly erroneous assessment of the evidence.’”

McGregor v. Bd. of Comm’rs of Palm Beach County, 956 F.2d 1017, 1022 (11th

Cir. 1992) (quoting Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 405, 110 S. Ct.

2447, 2461 (1990)).

The court seems to doubt whether it can review the district court’s exercise

of discretion in this case because the record contains only a conclusory,

unreviewable order. Accordingly, the court remands the case to the district court

so that it can make findings of fact and conclusions of law regarding the parties’

and counsel’s compliance with Rule 11. There is no doubt, however, that even

without extensive findings, it is possible for this court to review PSLRA Rule 11

86 determinations under the abuse of discretion standard. Sometimes, the record on

appeal will disclose Rule 11 violations that are so egregious that any refusal by the

district court to impose sanctions would necessarily constitute an abuse of

discretion. To see why, it is necessary to unpack the abuse of discretion standard

and the elements of a Rule 11 violation.

The critical difference between abuse of discretion review and de novo

review is that abuse of discretion “recognizes [a] range of possible conclusions the

trial judge may reach.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.

2004) (en banc). More specifically,

[b]y definition . . . under the abuse of discretion standard of review there will be occasions in which we affirm the district court even though we would have gone the other way had it been our call. That is how an abuse of discretion standard differs from a de novo standard of review. As we have stated previously, the abuse of discretion standard allows “a range of choice for the district court, so long as that choice does not constitute a clear error of judgment.”

Id. (quoting Rasbury v. I.R.S., 24 F.3d 159, 168 (11th Cir. 1994)). That said,

abuse of discretion never gives the district court unfettered discretion: the court

must not base its discretionary decision on an erroneous view of the law or a

clearly erroneous assessment of the evidence. Accordingly, the “range of possible

conclusions” varies with the nature of the inquiry (legal v. factual) and the relative

merit of the parties’ competing positions (whether the question is close). In sum,

87 when reviewing the elements of a district court’s decision of whether to impose

sanctions, the relevant question is not whether we would have come to the same

decision if deciding the issue in the first instance. The relevant inquiry, rather, is

whether the district court’s decision was tenable—in the “range of possible

conclusions,” or, metaphorically, “in the ballpark.”

In the non-PSLRA context, the Rule 11 ballpark is large because, as

discussed above, a district court has discretion to grant mercy for a violation of

Rule 11. Moreover, no hard legal test governs the court’s exercise of this ability to

be merciful. Thus, in an ordinary Rule 11 case, although a district court could not

arbitrarily ignore a Rule 11 violation, it has very broad discretion, and a remand

will almost always be necessary. The PSLRA, however, eliminates this wellspring

of discretion.

It follows that the PSLRA Rule 11 ballpark is much smaller. And while it is

difficult to make generalizations about the size of its fences, because the Rule 11

inquiry is governed by an objective standard, it is clear that they will sometimes be

so small as to admit only one conclusion. As discussed in part III.A, supra, to

conclude that Rule 11 has been violated, a district court must make two

determinations. First, the court must determine that a paper was filed for an

improper purpose, or contained legally frivolous claims, or contained factually

88 frivolous claims. Fed. R. Civ. P. 11(b). Second, the court must decide that a

reasonable investigation under the circumstances would have disclosed the

frivolity. Id. Thus, if, for example, a statute of limitations clearly bars a claim,57

and the record makes clear that the attorney had ample time for pre-filing

research,58 a district court could only conclude that Rule 11 has been violated

without abusing its discretion.59 Put differently, if the district court had the correct

view of the law and facts in mind, it could only conclude that the claim is

frivolous. See McGregor, 956 F.2d at 1022 (“A district court would necessarily

abuse its discretion if it based its ruling on an erroneous view of the law or on a

57 The Rule 11(b)(2) determination is whether counsel’s view of the law supporting the plaintiff’s claim is tenable, or in the ballpark, which is a legal rather than a factual determination. 58 Though the reasonable inquiry under the circumstances prong will sometimes necessitate a remand for findings, most complaints are not researched and filed at the eleventh- hour. Therefore, in most cases, a reasonably competent attorney will have had time to discover the violation. In this case, for example, plaintiffs’ counsel were fully informed as to the circumstances surrounding Thompson’s and Jacoby’s purchases of Media stock, had complete access to Media’s SEC filings, and had ample time to research and consider the validity of the claims they asserted in the three complaints presented to the district court. This is evident because the plaintiffs brought a claim based on substantially the same facts in Indiana circuit court five months before filing this suit. It is obvious that under the objective standard, five months is more than enough time to research a claim. 59 By contrast, under the PSLRA, if the Rule 11 determination focuses on whether the paper was filed for an improper purpose, a remand will more likely be necessary because the district court has wider discretion with respect to factual determinations. Where the ballpark would admit more than one conclusion, a remand is necessary.

89 clearly erroneous assessment of the evidence.”) (emphasis added) (quoting Cooter,

496 U.S. at 405, 110 S. Ct. at 2461).

Encapsulating this in a standard: under the PSLRA, when the court of

appeals can determine conclusively that Rule 11 has been violated, it should hold

that sanctions must be imposed. In such a case, we would reverse the district

court’s decision with respect to the claims a reasonably competent attorney could

not have presented and remand the case for the imposition of sanctions. This

standard finds support in precedent and avoids wasting the courts’ and litigants’

time and resources.

This standard is consistent with the clear precedent of this Circuit. Pelletier

v. Zweifel, 921 F.2d 1465, 1514, n.87 (11th Cir. 1991) (concluding that a remand

is unnecessary when the record “demonstrates beyond any question that Rule 11

sanctions are in order”). It also comports with how our sister circuits dispose of

cases when a district court’s sanctions decision is unreviewable because no

explanation is given, but the outcome is clear. See, e.g., Carr v. Tillery, 591 F.3d

909, 919–20 (7th Cir. 2010) (imposing § 1927 sanctions because the suit was “so

lacking in merit” that its filing “indicates a motive to harass” made conclusive by

the tone of the complaint and the briefs on appeal, even though the district court

denied the motion “without explanation”); cf. Citibank Global Mkts., 573 F.3d at

90 32 (concluding that “no purpose would be served by remanding this case to the

district court for Rule 11 findings” pursuant to the PSLRA because, in part, the

record revealed no basis for finding a Rule 11 violation); Dellastatious v. Williams,

242 F.3d 191, 197 n.5 (4th Cir. 2001) (finding no basis for sanctions under the

PSLRA and, thus, concluding that “a remand here would be unnecessary”).60

A case the court relies upon to justify its decision to remand, Gurary v.

Winehouse, 190 F.3d 37 (2d Cir. 1999) (“Gurary I”), illustrates how an

unnecessary remand can invite error and waste resources. In Gurary I, because the

district court made conclusory PSLRA Rule 11 findings, the court of appeals

remanded the case. Id. at 47. On remand, the district court assumed the court of

appeals “regarded [its] findings as merely formalistic” and simply gave a more

detailed explanation of its original decision. Gurary v. Winehouse, No.

97CIV3803, 2000 WL 20706, at *1 (S.D.N.Y. Jan. 12, 2000). On appeal from

that order, the Second Circuit reversed because two of the plaintiff’s claims were

barred by “both the plain language of the Exchange Act and well-settled case law.”

Gurary v. Winehouse, 235 F.3d 792, 798–99 (2d Cir. 2000) (“Gurary II”).

60 Note that when Citibank and Dellastatious concluded that a remand was unnecessary because there was no basis for sanctions under the PSLRA, they were implicitly holding that a district court would necessarily abuse its discretion if it imposed sanctions. There is no meaningful difference between this and the conclusion that a district court would necessarily abuse its discretion if it refused to impose sanctions.

91 Specifically, the Guary II court held that the plain language of Rule 10b-5 would

“prohibit a court from adopting a rule that would support Gurary’s claim.” Id. at

799. Accordingly, the court remanded the case for a determination of the amount

of sanctions. Ultimately, it took a third appeal and one more remand to close the

case,61 but the parties and the court would have avoided considerable time and

expense had the Gurary I court pointed out the obvious.

To be sure, courts of appeals must exercise caution when deciding whether

to remand a case. Sometimes the Rule 11 violation will not be so clear as to admit

only one conclusion. Sometimes the party or attorney against whom sanctions

have been imposed did not have the opportunity to be heard. Sometimes the

procedural history of the case will indicate that extenuating circumstances altered

the standard of care for the prefiling inquiry. Sometimes, particularly with respect

to the fact-heavy prongs of Rule 11, the record will not allow the court of appeals

to determine conclusively whether sanctions were warranted. In those cases, a

remand would be appropriate. But not in this case.

IV. With Respect to Plaintiffs’ Federal Securities Law Claims, the District Court Abused its Discretion in Denying Sanctions

61 Gurary v. Nu-tech Bio-Med, Inc., 303 F.3d 212 (2d Cir. 2002) (“Gurary III”).

92 After clearing the ground of any objection plaintiffs and their attorneys

might have to a conclusion that they violated Rule 11, I explain why the plaintiffs’

federal securities law claims and some of the factual allegations are so frivolous

that the district court necessarily abused its discretion when it denied sanctions.

That is, the violations are so clear that no matter what rationale the district court

might have had, it abused its discretion when it denied sanctions. Part A examines

the federal securities law claims in all three complaints for Rule 11(b)(2)

compliance; Part B examines all three complaints’ factual allegations pertaining to

the securities law claims for Rule 11(b)(3) compliance; Part C then turns to

whether the plaintiffs brought this action for an improper purpose under Rule

11(b)(1); Part D explains how the district court should proceed on remand.

First, the ground clearing. The plaintiffs’ attorneys in this case had adequate

notice of the possibility of sanctions and the possible grounds for the same.62 The

62 This is certainly so with respect to the plaintiffs’ legal contentions. As for the evidentiary support Rule 11(b)(3) required for those claims, Karp’s separate motion for sanctions expressly discussed factual deficiencies in the plaintiffs’ complaint. Even if this were not the case, “Rule 11 alone should constitute sufficient notice of the attorney’s responsibilities since the rule explicitly requires the attorney to certify that a complaint is well grounded in fact.” Donaldson v. Clark, 819 F.2d 1551, 1560 (11th Cir. 1987) (en banc); id. at 1561 (“When an attorney has failed to present necessary factual support for claims despite several opportunities to do so, for example, further hearing on the sanctions issue may well be not only unnecessary but also a waste of judicial resources.”). Notably, in their briefs to this court, plaintiffs said nothing about the adequacy of the notice they received regarding the possibility of sanctions against them or their attorneys.

93 PSLRA itself gave statutory notice. See ATSI Commc’ns v. Shaar Fund, Ltd., 579

F.3d 143, 152 (2d Cir. 2009) (“By virtue of this statutory notice, consideration of

sanctions in the PSLRA context can never be sua sponte and can never come as a

surprise, because Congress, not the court, has prompted and mandated a Rule 11

finding.”). Moreover, as discussed above, in their motions to dismiss the three

complaints, the defendants asked the court to retain jurisdiction to impose

sanctions. In response to the second amended complaint, Karp also sought

sanctions in a separate motion. Finally, the district court personally warned the

plaintiffs’ attorneys about the requirements of Rule 11. In response to these

motions and in their briefs to this court, the plaintiffs’ attorneys never attempted to

excuse their filing of frivolous claims because extenuating circumstances

precluded an adequate prefiling investigation. Nor could they have. The plaintiffs’

attorneys brought this case five months after filing a similar complaint against

Media in an Indiana circuit court; then, the district court gave the plaintiffs two

chances to amend their initial complaint. Because the plaintiffs’ attorneys had

adequate notice and ample time to research the claims, all that remains to be

decided is whether the complaints contained frivolous legal claims or factual

allegations, or were brought for an improper purpose.

A. Rule 11(b)(2) Compliance

94 Rule 11(b)(2) prohibits claims that are not “warranted by existing law or by

a nonfrivolous argument for [changing] existing law or the establishment of new

law.” Fed. R. Civ. P. 11(b)(2) (2006). The plaintiffs asserted claims under four

federal securities law provisions which are subject to the PSLRA’s mandatory

sanctions review: (1) the 1933 Act § 11 claims, brought by Thompson in the initial

complaint and Thompson and Jacoby in the first amended complaint; (2) the 1933

Act § 12 claims, brought by Thompson in the initial complaint and Thompson and

Jacoby in the first amended complaint; (3) the 1934 Act § 10(b), Rule 10b-5 claims

(the “Rule 10b-5 claim(s)”), brought by Thompson in the initial complaint,

Thompson and Jacoby in the first amended complaint, and Jacoby in the second

amended complaint; and (4) the 1934 Act § 20(a) claims brought by Thompson

and Jacoby in the first amended complaint and Jacoby in the second amended

complaint.

1. The Section 11 Claims

The § 11 claims advanced in both the initial and the first amended

complaints are legally frivolous. Section 11 prohibits false or misleading

statements in a registration statement. 15 U.S.C. § 77k. Section 11 provides, in

relevant part, “[i]n case any part of the registration statement, when such part

became effective, contained an untrue statement of material fact or omitted to state

95 a material fact required to be stated therein or necessary to make the statements

therein not misleading, any person acquiring such security” may sue. Id. § 77k(a).

Thus, to state a § 11 claim, a plaintiff must show (1) the purchase of a security

under a registration statement, (2) after the registration statement became effective,

and (3) that the registration statement contained a “material misstatement or

omission.” Herman & MacLean v. Huddleston, 459 U.S. 375, 381–82, 103 S.Ct.

683, 687, 74 L. Ed. 2d 548 (1983). Because the § 11 claims in the initial and first

amended complaints differed, I address each in turn.

a. The Initial Complaint’s Section 11 Claim

In the initial complaint, Thompson was the only plaintiff, and the

unregistered-broker theory was the only alleged material misstatement or omission.

Thompson purchased Media stock in two transactions: 50,000 shares in the 2005

June private offering, and 10,000 shares in the open market after his shares were

registered.

Thompson’s private offering purchase could never have formed the basis for

a § 11 claim because he did not purchase the shares under any effective registration

statement. By definition, a private offering means that the shares were issued in

reliance on an exemption from registration. It would have been impossible for

Thompson to rely on a registration statement that never existed. Accordingly, as a

96 private offering purchaser, Thompson could never have succeeded on a § 11 claim.

Because, however, Thompson claimed to represent the open market

purchasers—presumably based on his July 2006 open market

purchase—Thompson and some of his class members purchased shares that had

been registered. The class period stretched from May 24, 2005 to August 28, 2006

(Thompson first filed this suit on August 28, 2006). During that time, only two

registration statements existed: Chubasco’s February 2005 statement, in effect for

the entire class period, and Media’s July 2006 registration statement, in effect after

July 14, 2006. Therefore, with the exception of one month, the sole registration

statement in effect during the class period was Chubasco’s.

It would have been impossible, however, for Chubasco’s registration

statement to misrepresent or omit Media’s use of an unregistered broker because it

became effective in February 2005—well before any of this alleged wrongdoing

took place. Indeed, as of February 2005, Relationserve had not even been

organized. Without a crystal ball, it would have been impossible for Chubasco to

predict that Relationserve would suggest a merger, much less that it would use an

unregistered broker. Therefore, no open market purchaser who bought before July

14, 2006, could ever have succeeded on a § 11 claim.

97 Media first filed the other registration statement on March 20, 2006, to allow

its private offering purchasers to sell their shares. This registration statement was

amended three times and became effective on July 14, 2006. Thus, for purchasers

of Media stock between July 14 and August 28, 2006, Thompson could at least

identify an effective registration statement that was issued after the alleged use of

an unregistered broker.

Still, for the § 11 claim to have any chance of success, the July 14

registration statement would have had to fail to disclose Media’s use of an

unregistered broker when it became effective. Again, the unregistered-broker

theory was the only misrepresentation or omission identified in the initial

complaint. The July 14 statement, however, disclosed Thompson’s state court

action and Thompson’s allegation that Media failed to disclose a commission it

paid to Summit and Altavilla. And indeed, Thompson eventually contended that

the May 20 amendment to this registration statement corrected the alleged

omission of Media’s use of an unregistered broker. (See Second Am. Compl. ¶ 73

(“Between RelationServe’s the [sic] May 23, 2006 disclosure [in Media’s amended

registration statement] and June 15, 2006, RelationServe[ Media’s] shares fell . . . .

This drop was caused by the public’s knowledge of Thompson’s lawsuit.”).) Thus,

98 even for this class of purchasers, Thompson failed to identify any misstatement or

omission.

Even putting all of this aside, Thompson could never have recovered on a §

11 claim based on his open market purchase. Section 11 expressly prohibits

recovery by persons who “at the time of [the] acquisition [] . . . knew of such

untruth or omission.” 15 U.S.C. § 77k(a). By his own admission, Thompson knew

of Media’s alleged use of an unregistered-broker when he purchased the 10,000

shares in July 2006. Accordingly, Thompson could never have succeeded or

adequately represented the open market purchasers on a § 11 claim.

Particularly egregious was the initial complaint’s § 11 claim against the

individual Officers. For an individual to be liable under § 11, the individual must

have either (1) signed the registration statement, (2) been a director of the issuer at

the time of the filing, (3) been named as about to become a director, (4) been

named as a person having prepared or certified any report or valuation used in

connection with the registration statement, or (5) been an underwriter. Id. None of

the individual defendants were even affiliated with either Media or Chubasco when

either registration statement was first filed.63 Nor do their names appear as having

63 Thompson sued Danielle Karp, Mandee Heller Adler, Ohad Jehassi, and Warren “Pete” Musser. Karp stopped working for Media on February 3, 2006; Adler on November 11, 2005; Musser on October 31, 2005. Although it is unclear when Jehassi ended his tenure, he was

99 certified any report or valuation used in either registration statement. Finally

there is no allegation and there is no evidence that any of these Officers sold stock

under the registration statement, thus it would have been impossible for these

individuals to act as underwriters. Nevertheless, the plaintiffs sought to hold

“[Media] and the individual Defendants” liable for violating § 11. (Compl. ¶ 54.)

Overall, Thompson’s § 11 claim in the initial complaint is frivolous beyond

doubt. None of the individual defendants had anything to do with either

registration statement. As against Media, the initial complaint attempted to state a

§ 11 claim on the basis of a registration statement that did not exist (Thompson’s

private offering purchase), or, alternatively, a registration statement that never

contained a material misstatement or omission when it became effective

(Chubasco’s registration statement became effective long before any of the alleged

misconduct took place and by the time Media’s July 14 registration statement

became effective, it, too, had been cured of all deficiencies). Finally, Thompson

admittedly knew of the alleged fraud when he purchased his shares, so the § 11

claim would fail even had the July 14 registration statement omitted the alleged

fraud. No argument for the modification of existing law could be deemed

reasonable in view of Thompson’s complete failure to satisfy the basic elements of

never a director, and never signed a registration statement in any capacity.

100 § 11. Therefore, the district court necessarily abused its discretion by failing to

sanction Thompson’s attorneys for bringing this § 11 claim.

b. The First Amended Complaint’s Section 11 Claim

The first amended complaint’s § 11 claim differed from the initial

complaint’s iteration by adding Jacoby as a co-lead plaintiff, adding ten new

individual defendants, and adding three new theories of misrepresentation.

Nevertheless, like the initial complaint, the first amended complaint’s § 11 claim is

frivolous: Jacoby lacked standing to sue; Thompson knew of the alleged fraud.

As discussed above, any viable § 11 claim could only have been based on

Media’s July 14, 2006, registration statement. To have standing to sue under § 11,

a plaintiff must have bought the shares “pursuant to” an effective registration

statement. Huddleston, 459 U.S. at 382, 103 S. Ct. at 687. That is, a plaintiff must

be able to “‘trace the purchase of his securities to the registration statement that

allegedly violated section 11.’” In re Hamilton Bankcorp., Inc. Sec. Litig., 194 F.

Supp. 2d 1353, 1356–57 (S.D. Fla. 2002) (quoting In re Unicapital Corp. Sec.

Litig., 149 F. Supp. 2d 1353. 1369 (S.D. Fla. 2001)). Here, Jacoby swore that his

only purchases of Media stock occurred in July and August of 2005. It therefore

would have been impossible for Jacoby to trace his stock to the July 14, 2006,

registration statement and his § 11 claim is clearly frivolous.

101 Turning to Thompson’s two purchases, his attorneys’ new theories of

alleged fraud did not render Thompson’s § 11 claim non-frivolous. The July 14

registration statement did not disclose the facts underlying the kickback, overstated

income, and sued-director theories, but, even so, Thompson could never have

prevailed. For one, the sued-director theory is simply frivolous on the merits:

Media had no duty to disclose the fact that a former director had been sued—but

not necessarily found liable—for securities violations.64 Assuming that Media had

a duty to disclose the overstated income and kickbacks, Thompson’s claim is still

frivolous because, as discussed above, Thompson admitted that he knew of the

facts underlying the alleged fraud when he completed his July 2006 open market

purchase.65 (See First Am. Compl. ¶¶ 97, 80, 71, 81, 62, 3.)

64 The sued director, director Musser, served on the board from June 2005 to October 2005. No registration statement was issued during that period and there is no duty to disclose information about the lawsuits of past directors. See 17 C.F.R. § 228.401(d) (2005) (“Describe any of the following events . . . that are material to an evaluation of the ability or integrity of any director, person nominated to become a director, executive officer, . . . of the small business issuer.”). What is more, the plaintiffs alleged only that director Musser had been sued for securities law violations, not that he had actually been found liable, which is a prerequisite for reporting. 17 C.F.R. § 228.401(d)(4) (2005) (“Being found by a court of competent jurisdiction (in a civil action) [or by] the Commission . . . to have violated a federal or state securities . . . law . . . .”). 65 Thompson’s claim may well be frivolous for another reason: he suffered no damages that could be traced to the disclosure of any of the alleged misrepresentations. Under § 11, a plaintiff need not plead damages or loss causation as a part of a prima facie case, Huddleston, 459 U.S. at 382, 103 S. Ct. at 687. Moreover, the damages are presumed to be the difference between the higher of the price paid or the offering price and the “value” of the security at the time of the suit. 15 U.S.C. § 77k (emphasis added). Accordingly, even where, as here, the lawsuit at issue is the first disclosure of the alleged misrepresentation, a plaintiff can argue that

102 Most troubling, in both plaintiffs’ § 11 claims, the plaintiffs’ attorneys

repeated their egregious claims against three of the initial complaint’s individual

defendants who could never have been held liable for any § 11 violation based on

the July 14 registration statement. Worse, in the face of the district court’s Rule 11

warning not to sue officers just because they were officers, the plaintiffs’ attorneys

added ten new defendants, four of whom had nothing to do with the July 14, 2006,

registration statement. This brought the total of individuals who were allegedly

liable for the § 11 violation to thirteen, seven of whom could never have been

liable under the plain language of § 11. Specifically, as to defendants Karp, Adler,

Musser, Young, Hill, Honig, and Hirsch, the plaintiffs’ § 11 claim is frivolous

beyond any doubt.66 Young, Hill, and Honig never worked for Media; Karp,

the damages are the difference between the market price on the day the suit was filed and the actual value of the stock on that day. See Grossman v. Waste Mgmt. Sys., Inc., 589 F. Supp. 395, 415–16 (N.D. Ill. 1984). Thompson, however, could never succeed on such a theory because he bought Media stock in the open market and sold it one day later; accordingly, he both purchased and sold over-valued stock and suffered no loss. See In re Initial Pub. Offering Sec. Litig., 241 F. Supp. 2d 281, 347 (S.D.N.Y. 2003). 66 Defendants Soltoff, Wasserman, McNamara, and Brauser signed the initial March 20 iteration of the July 14, 2006, registration statement; Gould signed the third amendment to this registration statement. Obeck was not a director and did not sign or certify the registration statement, but sold stock under the July 14, 2006, registration statement and may have been a control person underwriter. See 15 U.S.C. § 77b(11) (“The term ‘underwriter’ means any person who . . . offers or sells for an issuer in connection with[] the distribution of any security . . . . [T]he term ‘issuer’ shall include . . . any person directly or indirectly controlling or controlled by the issuer . . . .”).

103 Adler, Musser, and Hirsch all ended their tenure with Media well before the

registration statement was first filed on March 20, 2006.67

2. The Section 12 Claims

The § 12 claims—brought as Count II in both the initial and first amended

complaints—are legally frivolous beyond doubt. Section 12 prohibits any person

from offering or selling securities by means of a false or misleading statement in a

prospectus or oral communication. 15 U.S.C. §77l. Because the 1933 Act

requires, in relevant part, that a prospectus include the “information contained in

the registration statement,” 15 U.S.C. § 77j(a)(1), there is substantial overlap

between § 11 and § 12. The major difference between the two statutes is that § 12

imposes a privity requirement not found in § 11 and § 12 allows liability for “oral

communications.” See In re Morgan Stanley Info. Fund Sec. Litig., 592 F.3d 347,

358 (2d Cir. 2010). Thus, even assuming that § 12’s privity requirement is

satisfied here, Thompson’s and Jacoby’s § 12 claims are frivolous for the same

reasons as their § 11 claims.68

67 Adler stopped working at Media on November 11, 2005; Karp on February 3, 2006; Musser on October 31, 2005; Hirsch on February 2, 2006. 68 It is very unlikely that the privity requirement could be satisfied here because Media did not sell the stock, its private offering purchasers did. See Ehlert v. Singer, 245 F.3d 1313, 1316 (11th Cir. 2001) (“Section 12 liability extends to those who transfer title to the security and to those who successfully solicit the purchase.”); Thomas Lee Hazen, Treatise on the Law of Securities Regulation § 7(7) (6th ed.) (“The issuer will not ordinarily be a section 12 seller since

104 Nevertheless, in responding to the defendant’s motion to dismiss the first

amended complaint, the plaintiffs’ attorneys defended Thompson’s § 12 claims on

the basis of certain oral communications by Altavilla. (See Pls.’ Resp. to Defs.’

Mot. to Dismiss First Am. Compl., Jan. 29, 2007.) This argument is frivolous

because the plaintiffs never identified these oral communications in any

complaint.69 (See, e.g., Compl. ¶¶ 55–56; First Am. Compl. ¶¶ 122–23.)

the presence of an underwriter as an intermediary means that the issuer is not in privity with the purchaser of the security.”); id (“[O]rdinarily an issuer’s officers and directors will not have a sufficiently substantial connection to qualify as sellers . . . .”). 69 Even had Thompson pled the alleged “oral communications,” his claim would still border on frivolous because the oral communications were made in connection with his June private offering purchase. The Supreme Court has made clear that the only oral communications that count are those that “relate to a prospectus.” Gustafson v. Alloyd Co., 513 U.S. 561, 567–68, 115 S. Ct. 1061, 1065–66, 131 L. Ed. 2d. 1 (1995). And, by defining “prospectus” as a “term of art referring to a document that describes a public offering of securities by an issuer or controlling shareholder,” the Supreme Court has limited § 12 claims to public offerings. See id. at 584, 115 S. Ct. at 1073–74. Thompson’s claim would “border” on frivolous because it is not on all fours with Gustafson. Gustafson involved a private secondary sale of securities from one equity holder to another, id. at 564–65, 115 S. Ct. 1064–65; Thompson purchased Media shares in a private primary sale from an issuer. See, e.g., Yung v. Lee, 432 F.3d 142, 148 (2d Cir. 2005) (noting that the Second Circuit had yet to “reach the issue of whether the rationale for . . . Gustafson . . . necessarily precludes a Section 12(a)(2) claim with respect to any private securities transaction). But when the plaintiffs’ attorneys filed the initial and first amended complaints, at least three circuits had already held that no § 12 claim could lie in any private offering. See id. (citing Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001); Maldonado v. Dominguez, 137 F.3d 1, 8 (1st Cir. 1998); Joseph v. Wiles, 223 F.3d 1155, 1161 (10th Cir. 2000)). Nevertheless, this circuit had not ruled on the question prior to Thompson’s suit. Therefore, had Thompson alleged the oral communications, I would remand so that the district court could make the Rule 11 determination in the first instance. In any event, I note my deep concern that Thompson’s attorneys never mentioned Gustafson and simply justified the § 12 claims because “an oral communication is sufficient so long as an instrument of interstate commerce is involved.” (Pls.’ Resp. to Defs.’ Mot. to Dismiss First Am. Compl. 25, Jan. 29, 2007.)

105 3. The Section 10(b), Rule 10b-5 Claims

To evaluate the legal sufficiency of the Rule 10b-5 claims in all three

complaints, it is first necessary to clarify who brought the claim. In the initial

complaint, Thompson alone brought the claim; in the first amended complaint,

Thompson and Jacoby brought the claim together; in the second amended

complaint, Jacoby alone brought the claim. I first discuss Thompson’s Rule 10b-5

claims in the initial and first amended complaints, and then turn to Jacoby’s in the

first and second amended complaints.

Implementing § 10(b), Rule 10b-5 forbids, in relevant part, “any person,

directly or indirectly . . . (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 circumstances under which they were made, not misleading . . . .” 17

C.F.R. § 240.10b-5 (2005). To state a claim for an omission, a plaintiff must plead

six elements with particularity: (1) an omission of material fact, (2) made with

scienter, (3) in connection with the purchase or sale of a security, (4) reliance on

the omission, (5) economic loss, and (6) loss causation (a causal relationship

between the omission and the economic loss). See Dura Pharms., Inc. v. Broudo,

544 U.S. 336, 341–42, 125 S. Ct. 1627, 1630–31, 161 L. Ed. 2d. 577 (2005).

106 Ultimately, I conclude that all of the Rule 10b-5 claims are so frivolous that

the district court necessarily abused its discretion when it denied sanctions.

Thompson’s claims are frivolous because he never identified a false or misleading

statement and because he knew of the alleged fraud when he purchased his shares.

Jacoby’s claims are frivolous because he too failed to allege any actionable

omission, he egregiously failed to allege scienter with the specificity required by

the PSLRA and Rule 9(b), and because he advanced a frivolous argument so as to

cherry-pick the starting point for measuring loss causation.

a. Thompson’s Rule 10b-5 Claims

Neither of Thompson’s purchases form the basis for a nonfrivolous Rule

10b-5 claim. As for the purchase in the 2005 June private offering, Thompson

never identified any false or misleading statement. As for the July 2006 open

market purchase, Thompson admittedly knew about the alleged fraud when he

bought the stock and suffered no loss that could have been traced to any fraud on

the part of the defendants.

Thompson identified no actionable false or misleading statement in

connection with his 2005 June private offering purchase. The PSLRA requires

plaintiffs to “specify each statement alleged to have been misleading [and] the

reason or reasons why the statement is misleading” 15 U.SC. § 78u-4(b(1). In the

107 initial complaint’s Rule 10b-5 claim, Thompson alleged only the unregistered-

broker theory of misrepresentation. E.g. Compl. ¶ 37.70 The trouble is that the

2005 June private offering formed the basis for this alleged omission, thus no SEC

filing prior to Thompson’s purchase could have disclosed the alleged contingent

liability—the contingency had not happened yet.71 Moreover, Media did disclose

Summit’s unregistered status in the June 16 current report, which Thompson

certified that he had read. Thompson thus did not—and could not—point to any

specific statement that was misleading because of Media’s use of an unregistered

broker prior to Thompson’s June 2005 purchase.

In his Indiana state securities law fraud claim (brought in Count VII of the

initial complaint), Thompson did allege other specific omissions. Giving

Thompson’s attorneys the benefit of the doubt, I will assume that Thompson meant

to plead these same omissions in his Rule 10b-5 claim. On this assumption,

Thompson alleged that Media: (1) failed to disclose “sizeable commissions and

fees to Altavilla” and (2) failed to explain that the shares in the private offering

70 In the first amended complaint, Thompson added the kickback theory, the overstated- income theory, and the sued-director theory. Any Rule 10b-5 claim based on these theories is frivolous because Thompson completely failed to plead loss causation. See page 95–96, infra. 71 This fact is especially significant because throughout this litigation, Thompson’s purchase was the only purchase specifically identified as having been illegally brokered by Summit.

108 were restricted securities and were not registered. (Compl. ¶ 78.) But Media

disclosed all of this in the subscription agreement Thompson signed. Thompson

“acknowledge[d] that . . . [he] has read and evaluated . . . the Company’s Current

Report on Form 8-K . . . on June 16, 2005.” Relationserve Media Inc., Current

Report (Form 8-K), Ex. 4.1 (Subscription Agreement), ¶ 1.4 (June 30, 2005). The

June 16, 2005 Form 8-K attached Media’s agreement with Summit, including the

provision that Summit would be paid a seven percent finder’s fee. Thompson also

recognize[d] that the purchase of Units involves a high degree of risk in that . . . (ii) the Units are not registered under the Securities Act of 1933 . . . or any state securities law; (iii) there is no trading market for the Units, none is ever likely to develop, and the Subscriber may not be able to liquidate his investment.

Id. ¶ 1.2.

Even further assuming Thompson had alleged—as he did in Indiana circuit

court—that Altavilla never provided him with the full subscription agreement and

told him the shares would be registered and could be quickly sold for a profit, it

would not save his Rule 10b-5 claim. The subscription agreement expressly

required Thompson to

represent[] that, except as expressly set forth in the Offering Documents, no representations or warranties have been made to the Subscriber by the Company or any agent, employee or affiliate of the Company and in entering into this transaction, the Subscriber is not relying on any information, other than that contained in the Offering

109 documents and the results of independent investigation by the Subscriber.

Id. at ¶ 1.14. In view of this representation, any argument that Thompson

justifiably relied on Altavilla’s misrepresentation is frivolous. See Rissman v.

Rissman, 213 F.3d 381, 383–84 (7th Cir. 2000) (joining two courts of appeals in

holding “that non-reliance clauses in written stock-purchase agreements preclude

any possibility of damages under the federal securities laws for prior oral

statements”). And because justifiable reliance on a misrepresentation is a

prerequisite to a Rule 10b-5 recovery, even this hypothetical Rule 10b-5 claim

utterly fails.

Any Rule 10b-5 claim based on Thompson’s July 2006 open market

purchase is preposterous. It is hornbook law that an investor who is aware of the

fraudulent conduct cannot recover in a Rule 10b-5 action predicated on that same

fraudulent conduct because it is impossible to prove reliance or transaction

causation. See Thomas Lee Hazen, Treatise on the Law of Securities Regulation §

12(10) (6th ed.); see, e.g., Gurary v. Winehouse, 190 F.3d 37, 44–45 (2d Cir.

1999). And indeed, by Thompson’s own admission, he became aware of the

alleged fraud on May 1, 2006, fully two months before his open market purchase.

(First Am. Compl. ¶ 97 (“Thompson did not discover the omissions set forth above

110 until May 01, 2006.”).) Worse than simply knowing of the alleged fraud, when

wearing the open market purchaser hat, Thompson caused his own harm.

Specifically, he brought suit in an Indiana circuit court, then, five months later,

sued in federal court purporting to represent a class of shareholders injured by

Media’s failure to disclose the factual basis of his Indiana lawsuit. Thus, there can

be no doubt that Thompson purchased Media stock in the open market with full

awareness of the alleged fraud, if fraud there was, and could not, under any

circumstances, have succeeded in a Rule 10b-5 claim based on that purchase.

Even assuming Thompson did not have knowledge, he could never have

proved loss causation. Thompson purchased 10,000 shares on July 17, 2006, at .42

cents a share, only to sell them the very next day at .39 cents per share. To prove

loss causation, Thompson would have needed to show that the market became

aware of the alleged fraud in the twenty-four hours between his purchase and sale.

Thompson alleged no such disclosure, nor could I find one. In fact, Media did not

file any SEC documents on July 17th or July 18th, or any day thereafter until

August 14, 2006.

For many of the same reasons, Thompson could never have “fairly and

adequately” represented the subclass of purchasers who bought Media’s shares in

the open market as required by Federal Rule of Civil Procedure Rule 23(a)(4).

111 Unlike Thompson, most open market purchasers who purchased before the

disclosure of Thompson’s Indiana lawsuit, would not have had actual knowledge

of Media’s use of an unregistered broker. See, e.g., Gary Plastic Packaging Corp.

v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990)

(“[C]lass certification is inappropriate where a putative class representative is

subject to unique defenses which threaten to become the focus of the litigation. . . .

there is a danger that the absent class members will suffer if their representative is

preoccupied with defenses unique to it.”) (internal citations omitted).72

Worse, Thompson had a fundamental conflict of interest with the open

market purchasers. Assuming, for the sake of argument, that Thompson could

have rescinded his private offering purchase, Media’s illegal sale of securities gave

him a de facto “put option” at two dollars per-share. A put option grants the holder

the right to sell the securities at a given price (the seller promises to buy the

72 In addition to Thompson’s inability to satisfy the Rule 23(a)(4) requirement of “fairly and adequately” representing the class, Thompson’s class would likely fail for want of typicality and commonality. Fed. R. Civ. P. 23(a)(2)–(3); see Cooper v. Southern Co., 390 F.3d 695, 713 (11th Cir. 2004) (“A class representative must possess the same interest and suffer the same injury as the class members in order to be typical under Rule 23(a)(3). Typicality measures whether a sufficient nexus exists between the claims of the named representatives and those of the class at large.”) (internal citations and quotations omitted) (overruled on other grounds by, Ash v. Tyson Foods, Inc., 546 U.S. 454, 457, 126 S.Ct. 1195, 1197, 163 L. Ed. 2d 1053 (2006)). Because Thompson’s initial purchase was in a private offering, Thompson had received and relied on information (the offering documents and subscription agreement) not available to those who bought shares in the open market. Accordingly, it is highly doubtful that he could have fulfilled the typicality and commonality requirements of Rule 23(a)(2) and (3).

112 securities at that price). Thus if Thompson could have rescinded his purchase,

Media would have had to return his full purchase price (two dollars per share) in

exchange for the securities (50,000 shares plus warrants). Of course, Thompson

would never have exercised this right if the value of his shares grew beyond two

dollars per share; but if they fell, he could have recouped his entire investment less

the cost of enforcement. Thompson essentially had a risk-free investment that

harmed the open market purchasers. Accordingly, Thompson “derive[d] a net

economic benefit from the very same conduct alleged to be wrongful” to the open

market purchasers. Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1190

(11th Cir. 2003). When a named plaintiff has such a conflict with the proposed

class, the named plaintiff can never adequately represent the class. See id. at 1189

(“A fundamental conflict exists where some party members claim to have been

harmed by the same conduct that benefitted other members of the class. In such a

situation, the named representatives cannot ‘vigorously prosecute the interests of

the class through qualified counsel.’”) (quoting In re HealthSouth, 213 F.R.D. 447,

461–62 (N.D. Ala. 2003)). No reasonably competent attorney could have

contended otherwise.73

73 Here, of course, the plaintiffs’ attorneys did so contend by arguing to the district court that “there is no conflict between Plaintiffs and other class members—all investors are aligned in the common interest of recovering the maximum possible damages from defendants.” (Mem. of

113 b. Jacoby’s Rule 10b-5 Claims

I now turn to Jacoby’s Rule 10b-5 claims in the first and second amended

complaints. Under a literal reading, Jacoby’s claim is simply laughable. Jacoby

alleged that Media and its officers “offered and sold Relationserve [Media]

securities in violation of 15 U.S.C.A. § 17q and Rule 10b-5.” (Second Am. Compl.

¶ 103 (emphasis added); see also First Am. Compl. ¶ 127 (“The Defendants,

including the Individual Defendants . . . offered and sold the shares of

Relationserve [Media] . . . .”) (emphasis added).) Jacoby purported to bring this

claim on behalf of the open market purchasers, but Media never “offered and sold”

securities in any public offering. Rather, Media only sold securities in exempt

private offerings. No Rule 10b-5 claim can survive on the basis of an offer and

sale of securities that never existed.

In an abundance of caution, however, I will read Jacoby’s Rule 10b-5 claim

broadly to invoke the fraud-on-the-market doctrine. Under the fraud-on-the-

market doctrine, a plaintiff must still plead all the elements of a Rule 10b-5 claim,

but benefits from a presumption that the plaintiff indirectly relied on the alleged

misrepresentation by relying on the integrity of the stock price established by the

Law in Supp. of Pls.’ Mot. for Appointment as Co-Lead Pls. 12, Nov. 3, 2006.)

114 market. See Basic, 485 U.S. at 242, 108 S. Ct. at 989 (citing Peil v. Speiser, 806

F.2d 1154, 1160–61 (3d Cir. 1986)).

Read broadly, Jacoby claimed that Media misstated its financial health in

sundry SEC filings by failing to report “$2,000,000 in contingent civil and criminal

liabilities and other material information to the investing public.” (E.g. Second

Am. Compl. ¶ 11.) In the first amended complaint, Jacoby asserted four theories of

fraudulent omissions, which formed the basis of this liability: the unregistered-

broker theory, the kickback theory, the overstated-income theory and the sued-

director theory. In the second amended complaint, Jacoby only replicated the

unregistered-broker theory.74 Whether based on any of these theories, Jacoby’s

Rule 10b-5 claim is legally frivolous.

The three abandoned theories are the easiest to conclude are frivolous.

Assuming Media had a duty to disclose the kickbacks, overstated income, and sued

director, Jacoby never alleged that the truth became known to the market and that

this failure caused any economic loss to him. No Rule 10b-5 claim can survive

74 Actually, Jacoby also pled the sued-director theory of liability. (Second Am. Compl. ¶ 95(b).) In Jacoby’s response to the defendants’ motion to dismiss, however, Jacoby abandoned it and did not press it here. (See, e.g., Pls.’ Mem. in Resp. to Defs.’ Mot. to Dismiss 7, n.3, April 30, 2007 (“Jacoby withdraws this allegation as [Media] is correct in its . . . assertion that there is no nexus between this specific failure and Jacoby’s damages.”).) Similarly, Jacoby did plead the facts underlying the overstated-income theory, but did not assert it as an actionable Rule 10b-5 omission. (See Second Am. Compl. ¶¶ 60, 3, 86, 95.) Jacoby did not press any claim based on overstated income here.

115 without these elements; Jacoby completely failed to plead them—despite three

chances to do so—rendering any claim based on the theories frivolous.75

Only the unregistered-broker theory remains. On this theory, Jacoby’s

fraud-on-the-market, Rule 10b-5 claim fails because Jacoby never identified an

actionable omission, utterly failed to plead scienter, and advanced an untenable

theory of loss causation.

i. Jacoby Failed to Identify an Actionable Omission

Most importantly, Jacoby never identified any actionable omission. Under

the plain language of Rule 10b-5, for the omission of a material fact to be

actionable, there must have been a duty to disclose the fact. 17 C.F.R. § 240.10b-5

(2005) (prohibiting the omission of a material fact “necessary to make the

statements made . . . not misleading.”); Basic, 485 U.S. at 239, n.17, 108 S. Ct. at

987, n.17 (“Silence, absent a duty to disclose, is not misleading under Rule

10b-5.”). Most commonly, a duty to disclose is triggered either because the

omitted fact was necessary to render a preexisting statement not misleading, or

because the securities law otherwise required its disclosure. Thomas Lee Hazen,

supra, § 12.19(1).

75 This reasoning also applies to any claim based on these alleged omissions by Thompson in the first amended complaint.

116 Here, Jacoby identified no specific statements made by the defendants

rendered actually misleading by the alleged omission, or any other duty to speak.

The closest Jacoby came was quoting the Sarbanes-Oxley Act certifications signed

by Officers Adler and Wasserman on Media’s August 2005 Form 10-QSB.

(Second Am. Compl. ¶ 58.)76 Jacoby alleged that Adler and Wasserman certified

that the Quarterly Report “complie[d] with the requirements of Section 13(a) or

15(d) of the Securities Exchange Act of 1934 [and that] the information contained

in the Report fairly present[ed], in all material respects, the financial condition and

results of the operations of the Company.” (Id.) Jacoby further alleged that the

“statements” Adler and Wasserman made in their certifications “were false and

76 Jacoby also pointed to other Sarbanes-Oxley certifications. I say this was the closest Jacoby came because the August 2005 certifications were closest in time to Summit’s alleged illegal conduct. Jacoby also pointed to Media’s failure to disclose Summit’s involvement in the June private offering on SEC Form D filed on July 16, 2005. The 2005 Form D required disclosure of certain background information with respect to “each person who has been or will be paid or given, directly or indirectly, any commission or similar remuneration for solicitation of purchasers in connection with sales of securities in the offering.” Assuming, for the sake of argument, that Media knew that Summit “solicited” purchasers—which would go beyond merely acting as a finder—this amounted to an omission. The trouble for Jacoby is that he did not base his claim on this omission. Rather, he alleged that Media failed to disclose and account for the $2 million contingent liability flowing from the use of an unregistered broker. Indeed, if the Form D omission had formed the basis for his claim, this alleged omission was corrected on March 20, 2006, when Media disclosed its August 2005 payment to Summit of a total “success fee” of $28,500 “in connection with a private placement of its common stock.” Relationserve Media, Inc., Registration Statement under the Securities Act of 1933 (Form SB-2), at F-22 (March 20, 2005). Jacoby, however, alleged that the omission was not corrected until the May 23, 2006 disclosure of Thompson’s Indiana lawsuit.

117 misleading because they failed to indicate that Relationserve [Media] and its

officers and directors had violated state and federal securities law, presenting a

$2,000,000.00 contingent civil and criminal liability.” (Id. ¶ 59.) As the district

court aptly noted, however, “Jacoby’s argument is circular because it contends that

the filing was misleading precisely because the filing promised not to be

misleading.” (Dismissal Order 7, June 12, 2007.)

Again endeavoring to give the plaintiffs’ lawyers the benefit of the doubt, I

will not stop here. I will assume that Jacoby meant to say that, after the June 2005

private offering, Media had a duty to report the contingent liability on its financial

statements or SEC reports either because of specific SEC disclosure requirements

or a GAAP violation (because Media promised to comply with GAAP).77 Even

so, Jacoby did not point to an actionable omission.

As relevant here, two line-items on the 2005 Form 10-QSB required

management to disclose certain contingent liabilities. See 17 C.F.R. § 228.10 et

seq. (2005) (repealed 2008). First, Item 103 of Regulation S-B required disclosure

of “any pending legal proceeding” or of “any proceeding that a governmental

authority is contemplating (if the small business issuer is aware of the

77 Relationserve Media Inc., Quarterly Report (Form 10-QSB), at 6 (Aug. 18, 2005) (“The consolidated financial statements are prepared in accordance with generally accepted accounting principles in the United States of America (‘US GAAP’).”).

118 proceeding).” id. § 228.103. Second, Item 303 of Regulation S-B required

disclosure of “[a]ny known . . . uncertainties that have or are reasonably likely to

have a material impact on the small business issuer’s short-term or long-term

liquidity.” Id. § 228.303(b)(1)(i) (emphasis added).78

For its part, at the time, GAAP, via Financial Standards Accounting Board

(“FASB”), Financial Accounting Standards 5 (“FAS 5”),79 required the reporting of

a “loss contingency”80 when “there [wa]s at least a reasonable possibility that a loss

or an additional loss may have been incurred.” FAS 5, ¶ 10; see also id. ¶ 3

(distinguishing loss contingencies that are “probable,” that is, “the future event or

events are likely to occur;” from those that are “reasonably possible,” that is, “the

chance of the future event or events occurring is more than remote but less than

likely;” from those that are “remote,” that is, “the chance of the future event or

78 The assumption that Item 303 of Regulation S-B would impose an actionable duty to speak under Rule 10b-5 is generous. At least the Third Circuit has expressly held that “a violation of SK-303’s reporting requirements does not automatically give rise to a material omission under Rule 10b-5” and that where plaintiffs fail to plead “any actionable misrepresentation or omission” under Rule 10b-5, Item 303 cannot provide a basis for liability. Oran v. Stafford, 226 F.3d 275, 288 (3d Cir. 2000). Item 303 of the 2005 iteration of Regulation S-B and Item 303 of Regulation S-K are materially identical. 79 See City of Monroe Employees Ret. Sys. v. Bridgestone Corp., 399 F.3d 651, 677–78 (6th Cir. 2005) (identifying FAS 5 as GAAP); Ganino v. Citizens Utils. Co., 228 F.3d 154, 160 n.4 (2d Cir. 2000) (“The SEC treats the FASB’s standards as authoritative.”). FAS 5 has since been superseded by FASB’s codification of GAAP, which became effective in 2009. 80 FAS 5 defined a “contingency” as “an existing condition, situation, or set of circumstances involving uncertainty as to possible gain . . . or loss.” FAS 5, ¶ 1.

119 events occurring is slight”). GAAP did not require disclosure of loss contingencies

arising out of “unasserted claims” when there was no indication that the potential

claimant was aware of the claim, unless it was both “probable that a claim w[ould]

be asserted” and there was a “reasonable possibility that the outcome w[ould] be

unfavorable.” FAS 5, ¶ 10.81

Despite Jacoby’s shotgun pleadings, his allegations do not even remotely

suggest that Media or any of its officers knew enough about Thompson’s possible

claim to trigger a reporting obligation under Regulation S-B or GAAP. For one, as

of August 2005, Media had no duty to report the claim as a pending legal

proceeding. Other than Thompson’s March 3, 2006, Indiana lawsuit, Jacoby did

not allege that any private placement purchaser sued Media. Nor did Jacoby allege

any government investigation into Media’s contract with Summit (despite Media’s

81 Appendix A of FAS 5 gave this example:

[A]n enterprise may believe there is a possibility that it has infringed on another enterprise’s patent rights, but the enterprise owning the patent rights has not indicated an intention to take any action and has not even indicated an awareness of the possible infringement. In that case, a judgment must first be made as to whether the assertion of a claim is probable. If the judgment is that assertion is not probable, no accrual or disclosure would be required. On the other hand, if the judgment is that assertion is probable, then a second judgment must be made as to the degree of probability of an unfavorable outcome. . . . If an unfavorable outcome is probable but the amount of loss cannot be reasonably estimated, accrual would not be appropriate, but disclosure would be required . . . .

FAS 5 at ¶ 35.

120 full disclosure of that agreement in the June 2005 Form 8-K). As a result, Media

had absolutely no duty to report the so-called contingent liability as a pending legal

proceeding.

Nor did Jacoby allege facts that would have required disclosure under Item

303 of Regulation S-B, “Management’s Discussion and Analysis.” Jacoby claimed

that Media should have disclosed a contingent liability arising out of the conduct of

another entity, Summit. In the consulting agreement, Summit represented that it

was not a registered broker and that it did not need to be a registered broker,

because it would only act as a finder. Under federal law, this contract was not per

se illegal. See Paul Anka, SEC No-Action Letter, Fed. Sec. L. Rep. ¶ 79,797 (July

24, 1991) (granting no action relief to a finder who would merely refer accredited

investors to the issuer). State regulation of broker/dealers and finders varies.

Thus, to show a “known” “uncertainty” “reasonably likely to have a material

impact” on Media’s liquidity, Jacoby would have had to plead some facts

indicating that Media knew that Summit had breached its agreement and violated

federal or state law.82 Jacoby failed to do so.

82 In fact, at the time, Media would have had no reason to believe Summit would breach the consulting agreement and broker a private offering purchase in violation of state law. This is because the cost to Summit would have likely been prohibitive. Breaching the consulting agreement in this manner would, in addition to rendering Summit liable to the purchaser for rescission or damages, have exposed Media to potential civil and criminal liability. If Media were sued by a purchaser, the company would have demanded that Summit hold it harmless.

121 Jacoby identified only one private offering transaction allegedly brokered by

Summit: Thompson’s.83 The factual allegations concerning Thompson’s purchase

focused almost entirely on Summit’s interaction with Thompson rather than

Summit’s interaction with Media. (See, e.g., Second Am. Compl. ¶ 40 (“In June

2005, Altavilla began soliciting Thompson and other class members and

encouraged them to purchase RelationServe [Media] securities by way of a private

offering.”); id. at ¶ 41 (“Thompson . . . . reviewed all documents presented by

Altavilla, and listened to the sales pitch of Altavilla.”).) It simply does not follow

that because Summit gave Thompson a sales pitch that Media knew about the sales

pitch, much less that it would subject Media to legal liability.

The closest Jacoby came to alleging Media’s awareness of Summit’s breach

was, “Altavilla negotiated the purchase price of [Thompson’s] shares, facilitated

the wire transfer, and oversaw the delivery of certificates.” (Id. at ¶ 42.) Viewed

in the light most favorable to Jacoby, it could be inferred that Altavilla had some

contact with someone at Media. It cannot be inferred that whoever acted for Media

Depending on the outcome of the litigation, Summit might have had to return to Media the 1,050,000 shares it received pursuant to the consulting agreement, as well as any finder’s fees it may have earned. 83 In the first amended complaint, Jacoby did allege one other sale through an unregistered broker to a Stuart Feick. I do not include Feick in this discussion because the allegation was abandoned and not pled in the second amended complaint. See Part IV.B, infra.

122 gleaned that the exchange gave Thompson the ability to rescind his purchase, let

alone that it was “reasonably likely” that Thompson would seek rescission.

This is especially so in light of Indiana law. Thompson’s theory of liability

relied on Indiana Securities Law § 8(b). Section 8(b) provided, in relevant part,

“[i]t is unlawful for a[n] . . . issuer to employ an agent unless the agent is

registered.” I.C. § 23-2-1-8(b) (2005) (repealed 2008). An “agent” was defined as

an “individual, other than a broker-dealer, who represents a[n] . . . issuer in

effecting or attempting to effect purchases or sales of securities.” I.C. § 23-2-1-

1(b) (2005) (repealed 2008). However, an agent did not include “an individual

who represents an issuer in: . . . (2) effecting transactions exempted by section 2(b)

of this chapter.” Id. Section 2(b)(10), in turn, exempted transactions where: (A)

the issuer reasonably believed there were no more than 20 purchasers in Indiana;

(B) the issuer did not “offer or sell . . . securities by means of a form of general

advertisement or general solicitation;” (C) the issuer reasonably believed that each

purchaser was buying for the purchaser’s own investment and was aware of the

restrictions imposed on the transferability of the securities; (D) . . . (E) . . . (F) . . . ;

(G) “[t]he issuer need not [have] compl[ied] with clause (D), (E), or (F) if: . . .

there [were] not more than fifteen (15) purchasers in Indiana and each Indiana

purchaser [wa]s an accredited investor . . . .” Id.

123 Media had every reason to believe that it complied with this exception.

Media’s Form D disclosed that there were only five (5) Indiana investors total. To

qualify for the Rule 506 Regulation D exemption under federal law, Media could

not have offered or sold securities by means of a general advertisement or

solicitation. In signing the subscription agreement, Thompson certified that he

purchased the units “for his . . . own account, for investment only.” Relationserve

Media Inc., Current Report (Form 8-K), Ex. 4.1 (Subscription Agreement), ¶ 1.7

(June 30, 2005). Additionally, Thompson certified that he knew the shares were

not registered under the 1933 Act and that the shares could not be traded under

federal law “for at least one (1) year . . . and there can be no assurance that the

conditions necessary to permit such sales . . . will ever be satisfied.” Id. at ¶1.8;

see also id. at 1.2. Finally, Thompson certified that he was an accredited investor

under Indiana law.84 Consequently, even assuming that Media knew of Summit’s

84 Compare I.C. § 23-2-1-1(r) (2005) (repealed 2008) (equating the definition of “accredited investor” with the definition in the federal Securities Act), and 17 C.F.R. 230.215(f) (2005) (“accredited investor” includes a “natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year.”), with (Defs.’ Mot. to Dismiss, at 58, ex. F (Oct. 20, 2006) (certifying that Thompson satisfied the requirements of 17 C.F.R. 230.215(f)).).

124 breach, Media would have had little reason to suspect that Thompson would have

sued because he could not recover under state law.85

Even putting the exemption aside, this would still be correct. Indiana law

prevented plaintiffs who knowingly participated in a violation of the securities law

from prevailing. See I.C. § 23-2-1-19(a) (2005) (repealed 2008) (“A person who

offers or sells a security in violation of this chapter . . . is liable to any other party

to the transaction who did not knowingly participate in the violation or who did not

have, at the time of the transaction, knowledge of the violation . . . .”) (emphasis

added). Again, in the subscription agreement, Thompson certified his knowledge

of Summit’s unregistered status and that he relied only on the offering documents.

By now, it should be apparent that Jacoby did not plead sufficient facts to

show that the alleged contingent liability was “known,” much less “reasonably

likely” to materially impact Media’s liquidity. Therefore, Regulation S-B imposed

no duty to report the so-called contingent liability on Media’s Forms 10-QSB or

10-K. A fortiori, then, Jacoby failed to allege sufficient facts to trigger a reporting

85 Indeed, after the district court dismissed this case, the plaintiffs pressed Thompson’s state court claims in a Florida circuit court. That court granted the defendant’s motion to dismiss in part because Media complied with Indiana’s limited offering exemption, Indiana Code § 23-2- 1-2(1). Thompson v. Sendtec, Inc., No. 07-17797(09), slip op. at 4–5 (Fla. Cir. Ct. Aug. 6, 2007).

125 obligation under GAAP. Under GAAP, because Jacoby did not allege that any

lawsuit had even been threatened, Media had a duty to report the purported liability

only if it was both probable that a suit would be filed and reasonably possible that

Media would lose. I have already explained at length why Media would have had

no reason to believe either that Thompson would have filed suit or that he could

have succeed.

All in all, even giving Jacoby the benefit of the doubt by assuming that he

invoked the fraud-on-the-market theory, Jacoby completely failed to point out any

actual statement that was misleading on account of the alleged omission or any

other duty to speak. Even further assuming that Jacoby had pled a duty to report

the liability under Regulation S-B or GAAP, his claim is still frivolous because he

alleged no facts that would have triggered any reporting requirement. An

actionable misrepresentation or omission is step one in any Rule 10b-5 claim;

Jacoby failed to take this first step, and his claim is therefore frivolous under any

reasonable view of the law.

ii. Jacoby Made Only Frivolous Scienter Allegations

Jacoby’s Rule 10b-5 claim is also legally frivolous because he completely

failed to plead scienter with the specificity required by established law. This is

especially inexcusable with respect to the Officers because the district court

126 cautioned against “just automatically su[ing] everyone that happens to be on the

list of officers and directors.” (Teleconference Tr. 4, 6–7 (Nov. 3, 2006).)

Negligence has long been insufficient to trigger civil liability under Rule

10b-5. In Ernst & Ernst v. Hochfelder, the Supreme Court held that a defendant

must act with scienter, defined as a “mental state embracing intent to deceive,

manipulate, or defraud.” 425 U.S. 185, 193 n.12, 96 S. Ct. 1375, 1381 n.12, 47 L.

Ed. 2d 668 (1976). In this circuit, “severe recklessness” can amount to scienter,

but it is the bare minimum. Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1282–83

(11th Cir. 1999) (“We quantify scienter as encompassing at least a showing of

severe recklessness . . . .”). “‘Severe recklessness is limited to those ‘highly

unreasonable omissions or misrepresentations that involve . . . an extreme

departure from the standards of ordinary care.’” Id. at 1282 n.18 (quoting

McDonald v. Alan Bush Brokerage Co., 863 F.2d 809, 814 (11th Cir. 1989)).

Since 1996, the PSLRA has required plaintiffs to “state with particularity

facts giving rise to a strong inference that the defendant acted with the required

state of mind.” 15 U.S.C. 78u-4(b)(2) (emphasis added). Thus, in a securities

fraud class action, a plaintiff may no longer plead the scienter element generally, as

was previously possible under Rule 9(b). Rather, the complaint must allege facts

supporting a strong inference of scienter “for each defendant and with respect to

127 each violation.” Phillips v. Scientific-Atlanta, Inc., 374 F.3d 1015, 1016 (11th Cir.

2004). Jacoby’s attorneys do not come close to meeting this standard because they

alleged only conclusory statements, not facts giving rise to an inference of scienter.

Jacoby’s best argument is that Karp intentionally hid Summit’s involvement

in the 2005 June private offering on the Form D she signed and filed with the SEC.

Karp did not list Summit in response to a question that asked for basic information

about “each person who has been or will be paid or given, directly or indirectly,

any commission or similar remuneration for solicitation of purchasers in

connection with sales of securities in the offering.” Relationserve Media, Inc.,

Notice of Sale of Securities Pursuant to Regulation D (Form D), at 3 (July 16,

2005). At the time, however, it was unclear that a finder constituted a person

compensated for “solicitation” of purchasers. A new version of Form D, adopted

by the SEC in 2009, requires information about any person paid transaction-based

compensation “in connection with” the offering, “including finders.” Thus, it is

unclear that Karp even knew that she needed to disclose Summit on the Form D,

particularly so because Media had already publicly disclosed that Summit could act

as a finder on the June 16, 2005, current report.

128 Jacoby’s remaining scienter allegations can loosely be grouped into three

categories: (1) the officers must have known, (2) the “venal” character of the

corporation, and (3) motive and opportunity.

Typical of Jacoby’s “they must have known” allegation is the following:

“The ongoing fraudulent scheme and violation of securities laws described in this

Complaint could not have been perpetrated over a substantial period of time . . .

without the knowledge and complicity of the personnel at RelationServe[ Media’s]

highest level, including the individual Defendants.” (Second Am. Compl. ¶ 81.) 86

When Jacoby filed the first and second amended complaints, it was absolutely

clear that this sort of conclusory allegation could not satisfy the requirement that

the complaint state “facts” “with particularity.” See, e.g., In re Recoton Corp. Sec.

86 (See also Second Am. Compl. ¶ 76 (“Defendants acted with scienter, in that Defendants knew RelationServe[ Media’s] public documents and statements issued and/or disseminated by or in the name of RelationServe [Media] were materially false and misleading.”); id. ¶ 78 (“Defendants knowingly and substantially participated or acquiesced in the issuance or dissemination of such statements or documents.”); id. ¶ 79 (“Defendants, by virtue of their receipt of information reflecting RelationServe [Media] and its business practices, control over or receipt of RelationServe [Media] materially misleading statements and/or their associations with RelationServe [Media] were active and culpable participants in the fraudulent scheme alleged herein.”); id. ¶ 24 (“The above-listed Defendants, by virtue of their high-level positions with RelationServe [Media], directly participated in the management of RelationServe [Media], were directly involved in RelationServe[ Media’s] day-to-day operations at the highest levels, and were privy to proprietary information concerning RelationServe [Media] and its business operations and financial condition as alleged herein.”); id. ¶ 25 (“The above-listed Defendants were involved in the drafting, producing, reviewing, and/or dissemination of misleading statements and were aware—or recklessly disregarded—of the fact that misleading statements were being issued and approved or ratified these statements in violation of federal securities law.”).)

129 Litig., 358 F. Supp. 2d 1130, 1147 (M.D. Fla. 2005) (“Conclusory allegations that

do no more than state that [the defendant] ‘would have known,’ ‘knew and

ignored,’ or ‘recklessly failed to know’ are insufficient to state a claim under

PSLRA and 9(b).”) (footnotes omitted). Rather, this kind of allegation is a mere

conclusion. And particularly because of the theory of liability asserted here—

Media’s failure to disclose a contingent liability arising from Summit’s breach of

its contract with Media—it is a dubious conclusion at that.

This conclusory allegation that “they must have known” is particularly

dubious when applied to certain Officers. Recall that the alleged fraud involved

Summit’s breach of the consulting agreement during the June private offering.

Media’s SEC filings indicate that the offering ended on June 30, 2005. Of all the

individual defendants named in the complaints, only Karp, Hirsch, Adler, and

Musser worked for Media when Summit allegedly breached the agreement.

Moreover, Adler and Musser did not commence their employment with Media

until June 21, 2006, only nine days prior to the end of the June private offering.

All of the other individual defendants either never worked for Media (Young,

Honig, and Hill), or began their tenure after Summit’s alleged breach concluded

(Jehassi, Wasserman, Brauser, McNamara, Soltoff, Obeck, and Gould). See Table

at 142, infra. As applied to the latter group of defendants, the “they must have

130 known” allegation is absurd. Without more, especially after a personal warning

from a district court not to sue officers just because they were officers, no

reasonably competent attorney could have sued these officers.87

Perhaps recognizing the insufficiency of the “they must have known”

allegations, Jacoby’s counsel also alleged that accounting irregularities show that

Media had a venal corporate character. According to Jacoby, an officer of Media

discovered a memorandum from “Richard Hill . . . a founder of Relationserve to

[an employee] in RelationServe’s finance department . . . instruct[ing the

employee] to recognize specific revenue in violation of company operating

procedures, applicable law, and generally-accepted accounting principles.”

(Second Am. Compl. ¶ 60.) This entire argument is frivolous because the alleged

accounting irregularities were ordered by Richard Hill, who was never a Media

Employee or even a defendant in the second amended complaint.88 Especially

87 Even worse, the plaintiffs repled the same “they must have known” allegations in the second amended complaint after the district court had warned them against such reasoning in the teleconference when the court dismissed the first amended complaint. The court explained to the plaintiffs that “[i]t’s not fair to throw every defendant in there when we know from the facts we have alleged in the first amended complaint that some of these defendants could not be held responsible for some preexisting public statements.” (Hr’g Tr. at 10, Mar. 6, 2007.) 88 Plaintiffs sued Hill in the first amended complaint. Hill moved to dismiss in part because he was “never an officer or director of Relationserve [Media] . . . and Plaintiffs plead no other facts to establish that Hill controlled corporate affairs or policies.” (Def. Hill’s Mot. to Dismiss First Am. Compl. 5.) The plaintiffs did not rename Hill as a defendant in the second amended complaint.

131 because the alleged misconduct violated “company operating procedures,” it

cannot be inferred that Media had a venal corporate culture based on the misdeeds

of a non-employee.

Moreover, the Media employee who allegedly followed Hill’s instruction

was not a corporate officer or defendant in the suit and never signed an SEC filing.

In any event, five months before Jacoby filed his second amended complaint, this

court squarely held that accounting irregularities, even violations of GAAP in

Sarbanes-Oxley certified accounting statements, cannot support an inference of

scienter unless the officer certifying the statements was “severely reckless.”

Garfield v. NDC Health Corp., 466 F.3d 1255, 1266 (11th Cir. 2006). This

standard is satisfied if “the person signing the certification had reason to know, or

should have suspected, due to the presence of glaring accounting irregularities or

other ‘red flags,’ that the financial statements contained material misstatements or

omissions.” Id.89 Here, Jacoby pointed to no glaring violations in Media’s

certified accounting statements. Thus, he based his venal corporate culture

89 Garfield v. NDC Health Corp., 466 F.3d 1255 (11th Cir. 2006) was decided on October 12, 2006; Jacoby filed his second amended complaint on March, 19, 2007. Even prior to Garfield, we had made clear that “allegations of violations of GAAS or GAAP, standing alone, do not satisfy the particularity requirement of Rule 9(b).” Ziemba v. Cascade Intern., Inc., 256 F.3d 1194, 1208–09 (11th Cir. 2001); see also id. at 1209 (“[P]laintiffs must therefore allege more than mere violations of auditing standards.”).

132 allegation on the misdeeds of two individuals when neither individual was a

defendant in the second amended complaint and both acted in violation of

company policy. Without more, alleging that the defendant Officers or Media had

a “venal character” is unfounded and irresponsible.

Finally, Jacoby claimed that scienter could be inferred because “[t]he

individual Defendants engaged in the above-alleged activities to inflate the price of

RelationServe [Media] securities, to protect and enhance their respective positions,

and to enhance the substantial compensation they obtained thereby.” (Second Am.

Compl. ¶ 82.) It is immediately apparent that, like the other scienter allegations,

this one is conclusory. Notably, Jacoby never alleged that any officer or director

defendant sold Media stock during the class period, or did anything else that would

support the motive and opportunity theory. It stands to reason, of course, that a

company’s officers and directors have a motive to commit securities fraud. But

that could be said of any public company’s officers and directors, which is why the

precedent of this circuit squarely forecloses any argument that stand-alone

allegations of “motive and opportunity” will satisfy the PSLRA’s standard.

Bryant, 187 F.3d at 1285–86 (“While allegations of motive and opportunity may

be relevant to a showing of severe recklessness, we hold that such allegations,

133 without more, are not sufficient to demonstrate the requisite scienter in our

Circuit.”).

Jacoby’s scienter allegations boil down to three empty conclusions born of

no facts: because the defendants were officers or directors of Media, (1) they must

have known about Summit’s breach, (2) they were immoral, and (3) they had a

motive to lie. These allegations probably fail under ordinary notice pleading

standards;90 they certainly fail under any reasonable view of the PSLRA’s

heightened pleading requirements. Without more, no reasonably competent

attorney could have brought Jacoby’s claim.

iii. Jacoby Advanced a Frivolous Loss Causation Argument

Finally, Jacoby’s Rule 10b-5 claim is legally frivolous because he advanced

an untenable theory of loss causation. Loss causation is an essential element of a

Rule 10b-5 claim and requires a plaintiff to prove that the defendant’s fraud

proximately caused the plaintiff’s loss. Dura, 544 U.S. at 346, 125 S. Ct. at 1633.

As explained above, Jacoby’s Rule 10b-5 claim alleged that Media fraudulently hid

a $2 million contingent liability arising out of Summit’s work in the 2005 June

90 For the purposes of this sanctions discussion, the law is frozen as it existed in 2006—as such, Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) does not apply. Nevertheless, our cases made clear that although we accept a plaintiff’s allegations as true, “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts” are insufficient to avoid dismissal. See Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).

134 private offering. Jacoby’s theory fails because he began to measure loss causation

over twenty days after the market had learned of the alleged fraud.

Even before Dura, our cases “explicitly require[d] proof of a causal

connection between the misrepresentation and the investment’s subsequent decline

in value.” Robbins v. Koger Props., Inc., 116 F.3d 1441, 1448 (11th Cir. 1997)

(citing cases). To prove loss causation, a plaintiff must allege that the fraud-

induced price inflation was removed from the stock price and caused the plaintiff’s

losses. Id. (granting judgment as a matter of law for defendant company because

there was “no evidence that this price inflation [caused by defendant’s fraud] was

removed from the market price of [the] stock.”).

Jacoby’s loss causation theory boils down to this: Media’s May 23, 2006,

disclosure of Thompson’s Indiana lawsuit corrected Media’s failure to disclose its

use of an unregistered broker-dealer; on May 23, Media’s shares traded at $1.35

and eventually fell to $.63 per share on June 13, 2006; the May 23 disclosure

caused this stock price drop. Media, however, initially disclosed Thompson’s

Indiana suit on May 1, 2006. Jacoby’s loss causation argument is frivolous

because the market had already known and digested all the information supposedly

added by the May 23 disclosure.

135 On March 3, 2006, Thompson filed his Indiana lawsuit against Media.

Media’s first disclosure of this lawsuit came in the May 1, 2006 amendment to the

registration statement that was filed on March 20. That amendment disclosed, in

pertinent part, that

On March 3, 2006, Richard F. Thompson, Thompson Family Wealth Management, Dwight Thompson, Greg Thompson and Parabolic Investment Fund, L.P. commenced an action in the State Court of Indiana, County of Hamilton, against Anthony D. Altavilla, Summit Financial Partners, LLC, Barron Partners, LP, US MedSys Corp. and RelationServe Media, Inc. The plaintiffs in this action assert a variety of claims against non-related defendants. As against the Company, plaintiffs seek rescission of the RSMI common stock they purchased in July 2005, alleging that the shares they received were not registered as required under Indiana Law, and that the Company failed to disclose a commission to Mr. Anthony Altavilla. The Company believes this action is without merit, and intends to vigorously defend itself with respect to this matter, however; its outcome or range of possible loss, if any, cannot be predicted at this time. The Company cannot provide any assurance that the outcome of this matter will not have a material adverse effect on its financial position or results of operations.

Relationserve Media, Inc., Amend. No. 1 to Form SB-2 Registration Statement

(Form SB-2/A), at 53 (May 1, 2006). Jacoby seems to have alleged that this

disclosure was insufficient because it was incomplete. (See Second Am. Compl. ¶

72 (“On May 23, 2006, RelationServe [Media] updated its disclosure concerning

Thompson’s lawsuit . . . .”).)

136 Media filed a second amendment to the registration statement on May 23,

2006, which amplified the May 1 amendment.91 This amendment stated:

On March 3, 2006, Richard F. Thompson, Thompson Family Wealth Management, Dwight Thompson, Greg Thompson and Parabolic Investment Fund, L.P. commenced an action in the State Court of Indiana, County of Hamilton, against Anthony D. Altavilla, Summit Financial Partners, LLC, Barron Partners, LP, US MedSys Corp. and RelationServe Media, Inc. The plaintiffs in this action assert a variety of claims against non-related defendants. As against the Company, plaintiffs seek rescission of the 110,000 shares of Company[] common stock they purchased in July 2005 (plaintiffs also received warrants for 55,000 shares of RSMI common stock), alleging that the shares they received were not registered as required under Indiana Law, and that the Company failed to disclose a commission. The Company intends to file a motion to dismiss this action because the shares did not need to be registered under Indiana Law, as they were exempt from registration as a “federal covered security.” Mr. Altavilla did not sell shares on the Company’s behalf. Mr. Altavilla did receive, in addition to other compensation, a finder’s fee in the amount of 7% of total gross funding provided for introductions made by him to investors not already having a preexisting relationship with the Company.

91 Recall that Media filed this amendment after receiving an inquiry from the SEC on May 11, which asked (1) whether the shares sold to Thompson were registered under Indiana law; (2) whether Altavilla sold shares for Media and received compensation for each sale; and (3) because Thompson was seeking rescission, the number of shares he purchased and the price he paid. Media did allege that even the May 23 amendment failed to disclose Altavilla’s sales in other states and the amount of Summit’s commissions. I assume that Jacoby still deemed the May 23 amendment sufficient to give the market notice of the fraud and simply included these observations for some other purpose. I say this for two reasons: (1) if the May 23 amendment did not give the market notice of the fraud, then Jacoby would have no loss causation argument at all, and (2) as a matter of fact, Media had already disclosed the full amount of the finder’s fees it paid to Summit.

137 Relationserve Media, Inc., Amend. No. 2 to Form SB-2 Registration Statement

(Form SB-2/A), at 64–65 (May 23, 2006).

Jacoby’s argument that the May 1 amendment was incomplete and that the

public did not know about the compensation package Summit and Altavilla

received is frivolous. As relevant to the unregistered-broker theory, the May 23

amendment added the number of shares purchased by the plaintiffs, and that

Summit did not sell shares on Media’s behalf but did receive a finder’s fee. The

material aspects of both of these amplifications had already been disclosed to and

digested by the market. The efficient market theory—on which Jacoby

relies—posits that all publicly available information about a security is reflected in

the market price of the security. As of July 14, 2005, the market knew that Media

sold $340,000 worth of stock to five Indiana investors. Relationserve Media, Inc.,

Notice of Sale of Securities Pursuant to Regulation D (Form D), at 7 (July 14,

2005). As of June 16, 2005, the market knew that Summit could act as a finder and

would be paid a seven percent finder’s fee. Relationserve Media, Inc., Current

Report (Form 8-K), Ex. 2.6 (June 16, 2005). And as of March 20, 2006, the

market knew that Media paid Summit a total “success fee” of $28,500 in

connection with its private placement of common stock. Relationserve Media,

Inc., Registration Statement under the Securities Act of 1933 (Form SB-2), at F-22

138 (March 20, 2005). Accordingly, the market had absorbed this information well

before the May 23 amendment. If not, those shares were not being traded in an

“impersonal, well-developed” and efficient market, as required for the application

of the fraud-on-the-market doctrine. Basic, 485 U.S. at 247, 108 S. Ct. at 991. It

follows that the proper starting place for measuring loss causation should have

been no later than May 1.

4. The Section 20(a) Claims

The § 20(a) control-person claims are frivolous beyond doubt. As discussed

in Part II.B & C, supra, § 20(a) is a parasitic federal securities claim that imposes

joint and several liability against individuals “who, directly or indirectly, control[]

any person liable under any provision of [the 1934 Act] or of any rule and

regulation thereunder.” 15 U.S.C. § 78t(a). In this circuit

[A] defendant is liable as a controlling person under section 20(a) if he or she “had the power to control the general affairs of the entity primarily liable at the time the entity violated the securities laws . . . [and] had the requisite power to directly or indirectly control or influence the specific corporate policy which resulted in the primary liability.”

Brown v. Enstar Group, 84 F.3d 393, 396 (11th Cir. 1996) (quoting Brown v.

Mendel, 864 F. Supp. 1138, 1145 (M.D. Ala. 1994) (alteration in original); see also

Theoharous v. Fong, 256 F.3d 1219, 1227 (11th Cir. 2001).

139 Here, the plaintiffs’ attorneys alleged that each of the fourteen individual

defendants in the first amended complaint and the eleven individual defendants in

the second amended complaint were liable as “control persons” under § 20(a). All

of the § 20(a) claims are frivolous because the plaintiffs never pled a nonfrivolous

primary Rule 10b-5 claim. Moreover, some of the defendants never even worked

for Media; therefore, absent extraordinary facts not alleged here,92 they could not

conceivably have had the power to control either Media’s “general affairs” or to

directly or indirectly control or influence the specific “corporate policy” resulting

in the primary liability. Thus, even had the plaintiffs pled a valid Rule 10b-5

claim, as against defendants Young, Hill, and Honig—who never worked for

Media—plaintiffs’ § 20(a) claim would still be clearly frivolous. Either way, the §

20(a) claims were so frivolous that the district court necessarily abused its

discretion when it denied sanctions.

I now review all three complaints for Rule 11(b)(3) compliance. Rule

11(b)(3) requires that the factual contentions “have evidentiary support or, if

92 For example, the plaintiffs might have an argument if the non-employees had the power to control the corporate policy of Media by contract, majority shareholder status, or otherwise. Cf. Theoharous v. Fong, 256 F.3d 1219, 1228 (11th Cir. 2001) (rejecting the argument that a minority stake gave the § 20(a) defendants the power to control the general busines affairs of the company).

140 specifically so identified, are likely to have evidentiary support after a reasonable

opportunity for further investigation or discovery.” Fed. R. Civ. P. 11(b)(3)

(2006). Ordinarily, it is difficult for a court of appeals to conclude that a

complaint’s factual contentions lack all non-frivolous evidentiary support because

there is no requirement that all evidence be attached to the complaint. Here,

however, it is possible to conclude this with respect to some of the factual

contentions because the plaintiffs’ attorneys misrepresented easily verifiable SEC

filings. After setting out these violations, I also point out suspicious factual

contentions to facilitate the district court’s review on remand.

First, the blatant violations. As discussed above, in their § 11 claims, the

plaintiffs’ attorneys alleged that each of the individual defendants met at least one

of the statutory conditions necessary to their liability as individuals. Paraphrasing,

to be liable, an individual must have either, (1) signed the registration statement in

some capacity, (2) been a director or named as about to become a director, or (3)

been an underwriter. See 15 U.S.C. § 77k. When the plaintiffs filed suit, the two

registration statements and the SEC filings clearly indicated that eight of the named

individual defendants could not possibly have fit into either of the first two

categories. With respect to the underwriter category, with one exception, none of

these eight individual defendants even sold shares under either registration

141 statement. Moreover, there is no allegation that any of the individual defendants

had been underwriters. Accordingly, the plaintiffs’ factual contention that these

individual defendants fit into § 11’s categories of those who could be held liable is

frivolous beyond doubt. See also supra part IV.A.1.

Moving on, in all three complaints, the plaintiffs’ attorneys alleged that

Media and its Officers knew and failed to report in SEC filings that Summit and its

agents were not registered with the SEC. (Compl. ¶ 33; First Am. Compl. ¶ 68;

Second Am. Compl. ¶ 45.) But as explained above, Media repeatedly disclosed

Summit’s unregistered status. On June 16, 2005, Media made its entire agreement

with Summit public by filing it with the SEC. The agreement declared: “IT IS

SPECIFICALLY UNDERSTOOD THAT [Summit] IS NOT AND DOES NOT

HOLD ITSELF OUT BE [sic] A BROKER/DEALER, BUT IS MERELY A

‘FINDER’ IN REFERENCE TO THE COMPANY PROCURING FINANCING

SOURCES AND ACQUISITION/MERGER CANDIDATES.” Relationserve

Media, Inc., Current Report (Form 8-K), Ex. 2.6 (Consulting Agreement), at 6

(June 16, 2005). Media attached the same agreement to its August 2005 quarterly

report. See Relationserve Media, Inc., Quarterly Report (Form 10-QSB), at 26

(Aug. 15, 2005) (incorporating the agreement by reference). In light of these

142 disclosures, no reasonably competent attorney could have alleged that Media failed

to disclose Summit’s unregistered status in its SEC filings.

Nor could a reasonably competent attorney have alleged, as plaintiffs’

attorneys did, that Karp signed a Form 10-QSB on June 14, 2005, which “failed to

indicate that RelationServe [Media] had contracted with Summit to sell

RelationServe [Media] securities or alert the investing public to the contingent civil

and criminal liabilities that derive from this agreement.” (Second Am. Compl. ¶

37.) This is because Karp never signed this Form 10-QSB; Scott Young did on

behalf of the predecessor public corporation, Chubasco. See Chubasco Resources

Corp., Quarterly Report (Form 10-QSB), at 8 (June 14, 2005) (signed by Scott

Young, dated June 13, 2005). Plaintiffs’ counsel also alleged that Karp signed a

“Form 10SB” “[o]n June 30, 2005” (Second Am. Compl. ¶ 43) but no such filing

exists (only a Form 8-K was signed or filed on that date). No reasonably

competent attorney could have contended that Karp signed forms that were never

filed or forms that were filed but without her signature.

I now turn to some of the questionable factual assertions that the district

court should examine on remand. To begin, the first amended complaint contained

allegations and defendants not realleged and renamed in the second amended

complaint. The first amended complaint alleged: (1) Altavilla sold Media

143 securities to Florida resident Stuart Feick, and (2) Media received information

about employee thefts and kickbacks in July 2005. (First Am. Compl. ¶¶ 62, 92.)

Neither allegation appears in the second amended complaint. In the first amended

complaint, the plaintiffs named Barry Honig and Richard Hill as defendants, but

not in the second. To be sure, there may be a completely innocent explanation for

not realleging these facts and renaming these defendants, but the district court must

determine what evidentiary basis the plaintiffs had in the first place.

Appearing in both the first and second amended complaints, another

questionable factual contention is that Media traded on the NASDAQ stock

exchange. (See First Am. Compl. ¶ 24; Second Am. Compl. ¶ 26.) Media’s SEC

filings indicate that it traded only on the National Association of Securities

Dealers’ Over-the-Counter Bulletin Board. This seems to be confirmed by the

OTCBB website, which has stock prices for Media beginning in July 2005 through

the filing of the second amended complaint. If Media traded on NASDAQ, Jacoby

would have had an easier time proving his Rule 10b-5 claims. This is because

Jacoby seemed to invoke the fraud-on-the-market doctrine, which requires a

plaintiff to prove that the security traded on an efficient market. Securities traded

on NASDAQ are often presumed to be traded on an efficient market. E.g., Burke

v. China Aviation Oil (Singapore) Corp., 421 F. Supp. 2d 649, 653 (S.D.N.Y.

144 2005) (“The NASDAQ is recognized as maintaining an efficient market, but the

Court is unaware of any court holding that the OTCBB or Pink Sheets meet this

same standard.”). If an efficient market cannot be presumed, a plaintiff must plead

and prove its existence. E.g., id. Although I cannot take judicial notice that Media

never traded on NASDAQ, the district court should explore the basis for the

plaintiffs’ contention.

Finally, in the initial and second amended complaints, Jacoby in effect

alleged that Summit sold all of the securities in the June private offering where

Media grossed $2 million dollars from buyers in California, Connecticut, Florida,

Illinois, Indiana, Nevada, New Jersey, New York, Ohio, and Pennsylvania.

Relationserve Media, Inc., Notice of Sales of Unregistered Securities (Form D), at

4, 7–8 (July 14, 2006). This allegation is implicit because the plaintiffs repeatedly

claimed that Media failed to report a $2 million dollar contingent liability arising

out of Media’s sales of securities through Summit. (See, e.g., Second Am. Compl.

¶¶ 44, 46; see also Compl. ¶ 24 (“In order to complete the purchase of

RelationServe [Media] shares by the Plaintiff and Class members . . . .”).) This

allegation is suspicious for two reasons.

First, other than Thompson, in the initial and second amended complaints

plaintiffs never provided specific facts about private offering purchasers in the

145 other states. Second, in the initial and second amended complaints, the plaintiffs

never alleged that any unregistered broker participated in the sales except for

Summit. This latter point is significant because Summit was entitled to a 7%

finder’s fee of the “total gross funding provided” by investors Summit introduced

to the company. Relationserve Media, Inc., Current Report (Form 8-K), Ex. 2.6

(Consulting Agreement), at 6 (June 16, 2005). Therefore, if Summit had been

responsible for all $2 million raised in the June private offering, it would have

earned a $140,000 finder’s fee. Media’s SEC filings, however, indicate that

Summit received only $28,500. Relationserve Media, Inc., Registration Statement

under the Securities Act of 1933 (Form SB-2), at F-22 (March 20, 2005). Thus,

the district court should find out what evidence the plaintiffs had to support their

claim that Summit’s activity subjected Media to a $2 million liability.

I could go on, but will stop here. The plaintiffs’ attorneys must be

sanctioned for their clear violations of Rule 11(b)(3) and the district court should

explore their questionable factual contentions—both those I identified and any

others—on remand.

Rule 11(b)(1) prohibits filing papers for an improper purpose. On this

record, while there are indications that the plaintiffs’ attorneys brought this action

146 for an improper purpose, it is not so clear that the district court necessarily abused

its discretion in denying sanctions under Rule 11(b)(1).

Most troubling is that, in the face of a warning by the district court, the

plaintiffs’ attorneys sued multiple officers with only the barest allegation that they

had any part in—or even knowledge of—the alleged wrongdoing. This is

especially so in light of the particular Officers the plaintiffs added in the first

amended complaint: nine out of ten of the new defendants either never worked for

Media or began working there after (and in most cases long after) Summit

allegedly breached the consulting agreement. See Table at 142, infra. And,

particularly with respect to the § 11 claims, the defendants added four new

plaintiffs who could not possibly be held liable under the statute bringing the total

number of such defendants to seven (eight if Jehassi is included from the initial

complaint). Suing individual defendants without any legal or evidentiary basis is

strong evidence that, as the defense counsel argued, plaintiffs were conducting

scorched earth litigation. (Hr’g Trans. 4, Nov. 3, 2006.)

And indeed, it could be inferred that the plaintiffs’ attorneys attempted to

extort a settlement by strategically bringing frivolous claims, adding numerous

defendants, overstating the scope of the plaintiffs’ injury, and filing difficult to

decipher shotgun pleadings, all while counting on the district court not to clear the

147 smoke. If plaintiffs’ counsel pursue this strategy long enough, defendants will

settle. Further evidence of this comes from plaintiffs’ attorney Richard Bell’s

letter, replying to defense counsel’s warning that the suit was frivolous, that “at

some point in time both our clients will want to resolve or settle this case.”

On the other hand, the plaintiffs’ attorneys did voluntarily drop some of the

Officer defendants and some of their frivolous claims. And as for Bell’s letter,

most civil cases settle. Accordingly, it is unclear whether the plaintiffs’ attorneys

were employing a calculated strategy or were just incompetent.93 After considering

any new Rule 11(b)(2) and (3) violations, the district court should evaluate the

evidence and determine whether the attorneys brought this case in bad faith or for

an improper purpose.

Finally, I note that the district court must determine whether Jacoby or

Thompson violated Rule 11.94 The current record is much less developed in this

regard, but there is still one fact that raises an eyebrow: Thompson’s purchase on

93 The plaintiffs’ attorneys expressly disavowed any incompetence in their argument to the district court that they should be appointed class counsel: “The attorneys at Cohen & Malad are highly skilled and experienced practitioners with extensive experience in federal securities class action litigation and are throughly committed to the vigorous prosecution of this action.” (Mem. of Law in Supp. of Pls.’ Mot. for Appointment as Co-Lead Pls. 13, Nov. 3, 2006.) 94 “A represented party who is responsible for a violation of Rule 11 may be sanctioned. Responsibility for a violation will depend on the extent of the client’s involvement in the management of litigation and the decisions that resulted in a violation of the Rule.” James Wm. Moore et. al., Moore’s Federal Practice § 11.23[6][c][i] (3d Ed. 2009).

148 July 17, 2006, of 10,000 Media shares, only to sell them the next day for a small

loss. This could indicate that Thompson purchased the shares to enable himself to

act as lead plaintiff for the open market purchasers. The district court should

consider this on remand.

D. The Plaintiffs’ Attorneys’ Rule 11 Violations Trigger the PSLRA’s Presumptive Sanction of Attorney’s Fees and Other Expenses

Having identified the violations of Rule 11(b) that can be conclusively

determined from the record, all that remains is to determine whether the violations

are “substantial.” The PSLRA creates a presumptive sanction of a defendant’s

attorneys’ fees incurred in the action for “any complaint” that “substantially” fails

to comply with Rule 11.

Here, I would hold that the plaintiffs’ attorneys triggered this presumption

three separate times. In the initial complaint, all of the federal securities claims

violated Rule 11(b)(2)—the § 11 claim, the § 12 claim, and the Rule 10b-5 claim.

In the first amended complaint, all of the federal securities claims violated Rule

11(b)(2)—Thompson and Jacoby’s § 11 claims, § 12 claims, Rule 10b-5 claims,

and § 20(a) claims. In the second amended complaint, Jacoby realleged his

frivolous Rule 10b-5 and § 20(a) claims. Even setting aside the Rule 11(b)(3)

violations and the possibility of 11(b)(1) improper purpose violations, it is clear

149 that each of the three complaints “substantial[ly] fail[ed]” to comply with Rule 11.

15 U.S.C. § 78u-4(c)(3)(A)(ii).95 On remand, the plaintiffs will have the

opportunity to rebut the presumption by demonstrating that the award of attorneys’

fees would impose an unreasonable, unjust burden on them and that the failure to

award fees would not impose a greater burden on the defendants. See 15 U.S.C. §

78u-4(c)(3)(B)(i).

In sum, with respect to Karp’s motion for Rule 11 sanctions under the

PSLRA, I would hold as follows. I would hold that the plaintiffs’ attorneys

violated Rule 11(b)(2) with respect to every federal securities claim brought in this

case. I would hold that the plaintiffs’ attorneys violated Rule 11(b)(3) by alleging

that some of the individual defendants’ met § 11’s statutory requirements, Karp

signed and filed SEC filings that she never signed or filed, and Media never

disclosed Summit’s unregistered status. Finally, I would hold that the Rule 11(b)

violations triggered the PSLRA’s presumptive sanction of the defendant’s

attorneys’ fees incurred in the entire action. A remand would still be necessary for

95 Although the Rule 11(b)(2) violations alone trigger the PSLRA’s presumption, a remand is still necessary for further findings regarding (b)(1) and (3) because further violations will have a bearing on the scope of the harm caused to the defendants and the plaintiffs’ ability to rebut the presumption.

150 four determinations: (1) whether Thompson and Jacoby violated Rule 11, (2)

whether the plaintiffs’ attorneys violated Rule 11(b)(1) by filing any or all of the

complaints for an improper purpose, (3) whether other Rule 11(b)(3) violations

exist, and (4), in any event, whether the plaintiffs can rebut the PSLRA’s

presumptive award of attorneys’ fees. I would also instruct the district court to

consider whether the plaintiffs should be sanctioned under 28 U.S.C. § 1927 for

“unreasonably and vexatiously” multiplying these proceedings.

V. The Court Errs by Ignoring Karp’s Cross-Appeal for Rule 11 Sanctions on the State Law Claims Advanced in the Second Amended Complaint

The court does not address Karp’s cross-appeal seeking non-PSLRA Rule 11

sanctions against the plaintiffs’ attorneys for filing the state law claims. Karp

properly moved for Rule 11 sanctions only with respect to the second amended

complaint. See Fed. R. Civ. P. 11(c)(2) (requiring that a motion for sanctions be

made separately from any other motion and be served but not filed for twenty-one

days). The district court did not consider Karp’s motions for sanctions because it

refused to exercise its supplemental jurisdiction over the claims and dismissed

them without prejudice. Such a dismissal does not and should not insulate

frivolous claims from Rule 11 scrutiny. Accordingly, I would vacate the district

court’s refusal to consider Rule 11 sanctions on the state law claims brought in the

151 second amended complaint and order the district court to decide whether to impose

sanctions for those claims.

Congress enacted the PSLRA to address the “evils flowing from abusive

securities litigation,” especially in the class action format.96 As the Senate

Judiciary Committee observed, these evils generally have their onset with “the

filing of the complaint and continue through to the final disposition of the

action.”97 Among other evils, these actions generate “an in terrorem effect on

Corporate America[,] . . . add[ing] significantly to the cost of raising capital and

represent[ing] a ‘litigation tax’ on business.”98 This is precisely what has occurred

in this case. In addition to imposing a litigation tax on Media, this action has

wreaked havoc on individuals who had absolutely nothing to do with the injuries

purportedly suffered by Jacoby and Thompson and the members of the classes they

attempted to represent.

A careful reader of the orders and opinions in this case—the district court’s

perfunctory order refusing to sanction plaintiffs’ counsel because, although

96 S. Rep. No. 104-98, at 8 (1995), reprinted in 1995 U.S.C.C.A.N. 679, 687. 97 Id. As the Committee saw it, “[a] complaint alleging violations of the Federal securities laws is easy to craft and can be filed with little or no due diligence.” Id. 98 Id. at 9, 1995 U.S.C.A.N. 688.

152 plaintiffs were unable to state a claim sufficient to withstand a Rule 12(b)(6)

motion to dismiss, their claims were not frivolous, and this court’s opinion—may

conclude that Congress was out to lunch when it enacted the PSLRA. For, if this

case is typical, the federal courts cannot, as a practical matter, enforce the PSLRA.

That is, if a case is pled as this case was, handled in the district court as this case

was, and disposed of on appeal as this case is, I doubt that the time, expense, and

burden on judicial resources incurred in PSLRA enforcement is worth the candle.

The point is not to pick fault with Congress for passing the PSLRA; the point is

that the courts must carry out the PSLRA mandate by enforcing it in a manner

consistent with congressional intent.

This case was litigated under the Rule 12(b)(6) umbrella. The initial and

two succeeding complaints were typical shotgun pleadings99 and thus were

practically incapable of precise comprehension by the district judge and opposing

counsel. After reading the first amended complaint, the district judge indicated as

much in a telephone conversation he conducted with counsel. Referring to the

complaint’s allegations, he made these observations: “Nothing is tied together;” “I

see very little connecting the dots;” “Seems to me there are some real gaps there;”

99 See, e.g., supra note 22.

153 “Again, it’s kind of hard to follow. It’s like . . . who did what?”100 The court

therefore gave plaintiffs’ counsel one more chance to file a comprehensible

pleading that would connect the dots, close the gaps, and explain who did what.

They responded with the second amended complaint. It did not clear the air, so the

court dismissed it under Rule 12(b)(6) for failure to satisfy the heightened pleading

standards of Rule 9(b) and the PSLRA.

When the court subsequently turned to the question of whether the plaintiffs

and/or their attorneys should be sanctioned under the PSLRA for noncompliance

with the requirements of Rule 11(b), it did not parse the allegations of the

complaints that had been filed, as I have done here. Rather, it perfunctorily

concluded—without reference to any of the complaints’ allegations—that

plaintiffs’ had complied with Rule 11. The court stated, “Plaintiffs’ claims are not

frivolous, or so devoid of evidentiary support as to warrant sanctions. Likewise,

there is no evidence that Plaintiffs instituted this action for improper purposes,

such as to harass Defendants or needlessly increase the cost of litigation.” (Order

on Mot. For Attys.’ Fees and Rule 11 Sanctions, 1, June 12, 2007 (internal

citations omitted).). I am convinced that the court ruled in this way because it did

not realize just how insufficient the pleadings were; the court was too busy to plow

100 (Hr’g Tr. at 8, Mar. 6, 2007.)

154 through the pleadings and see them for what they were—simply smoke and

mirrors.

This case demonstrates that it is easy for a district court to dismiss a federal

securities law complaint under Rule 12(b)(6) and Rule 9(b) without carefully

parsing it, identifying which allegations pertain to which claims, and squeezing the

controversy down to its core. That approach, however, is not consistent with the

PSLRA’s requirements. The PSLRA forces a district court to determine whether

the complaint—three complaints in this case—satisfied “each requirement of Rule

11(b),” and, having done that, to enter “in the record specific findings regarding

compliance” with those requirements.101 The approach the court must take is the

one I have taken here: parse the complaint’s allegations, determine which

allegations pertain to which claims, and examine the claims under the PSLRA’s

lens.

The PSLRA and the broader interests of justice would best be served by a

district court laying the foundation for this task early on. Here, for example, the

district court could have done so after it examined plaintiffs’ first amended

complaint.102 It could have parsed the complaint, detailed the problems, and,

101 See 15 U.S.C. 78u-4(c)(1). 102 The court did not read the initial complaint due to plaintiffs’ request for leave to file an amended complaint. The court’s first encounter with plaintiffs’ allegations came when it read

155 pursuant to its inherent power, ordered a repleader. Such an order would be akin to

a Federal Rule of Civil Procedure 12(e) motion for a more definite statement in

that it would “point out the defects” of the complaint and explain what would be

necessary to cure them.103 We have stated on several occasions that

The importance of using the Rules to uncover bogus claims and defenses, thereby reducing the parties’ dispute to its bare essentials, cannot be overemphasized. As we have stated on several occasions . . . if, in the face of a shotgun complaint, the defendant does not move the district court to require a more definite statement, the court, in the exercise of its inherent power, must intervene sua sponte and order a repleader.104 Implicit in such instruction is the notion that if the plaintiff fails to comply with the court’s order—by filing a repleader

the first amended complaint prior to its telephone conference with the parties’ attorneys. 103 Federal Rule of Civil Procedure 12(e) provides:

A [defendant] may move for a more definite statement of a [claim] . . . which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the [claim] or issue any other appropriate order. 104 Discharging this duty ensures that the issues get defined at the earliest stages of litigation. The district court “should [strike] the complaint[ ] and instruct[ ] counsel to replead the[ ] case[ ]-if counsel could in good faith make the representations required by Fed. R. Civ. P. 11(b).” Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir. 1997) citing Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162 (11th Cir. 1997) (per curiam); Cesnik v. Edgewood Baptist Church, 88 F.3d 902, 905 (11th Cir. 1996); Anderson v. Dist. Bd. of Trustees of Cent. Fla. Community College, 77 F.3d 364, 366–67 (11th Cir. 1996); Pelletier v. Zweifel, 921 F.2d 1465, 1517–18 (11th Cir. 1991); Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984).

156 with the same deficiency—the court should strike his pleading or, depending on the circumstances, dismiss his case and consider the imposition of monetary sanctions.

Byrne v. Nezhat, 261 F.3d 1075, 1132–33 (11th Cir. 2001) (footnote in original).105

The attorneys representing the plaintiffs in this case purport to be

sophisticated class action lawyers who specialize in federal securities law cases. I

have no doubt that faced with a detailed order requiring a more definite statement

“connecting the dots,” filling in the “gaps,” and indicating “who did what,” so that

the allegations would not be “hard to follow,” sophisticated securities lawyers

would have done a better job of drafting the second amended complaint. Better

yet, had the court engaged counsel face-to-face in chambers, explained what the

PSLRA and Rule 11(b) demanded, and told them what they would have to allege

to stay in court, we probably would not be here. Counsel would have dismissed

the case voluntarily under Federal Rule of Civil Procedure 41(a)(1)(A), or, if they

produced an amended complaint that simply mimicked their earlier complaint (as

the second amended complaint did), the court, in the exercise of its discretion,

would have dismissed the complaint under Rule 41(b) and its inherent power for

105 Fed. R. Civ. P. 16 provides further authority for a district court to squeeze down the case sua sponte. “At any pretrial conference, the court may consider and take appropriate action on the following matters: (A) formulating and simplifying the issues, and eliminating frivolous claims or defenses; (B) amending the pleadings if necessary or desireable . . . .” Fed. R. Civ. P. 16(c)(2)(A)–(B).

157 failure to comply with a court order.106 Had the court dealt with plaintiffs’ counsel

in this way, it would have been easier for the court—regardless of the tact

plaintiffs’ counsel may have taken in responding to the court’s demand for a more

definite statement—to carry out its PSLRA duties at the end of the day.

Of course, that is not how the district court handled this case. And that

would have been satisfactory had the district court taken up the task of parsing the

complaints at the end of the action. Instead, the district court kicked the task down

the road. Today, this court unfortunately follows the same approach. This judicial

approach takes the teeth out of the PSLRA and delays the day when the parties will

have repose. Meanwhile, litigants in the court’s queue waiting to have their cases

heard will have to wait even longer. Worst of all, handling PSLRA cases in this

106 As we stated in State Exch. Bank v. Hartline, The Federal Rules expressly authorize a district court to dismiss a claim, including a counterclaim, or entire action for failure to prosecute or obey a court order or federal rule. Fed. R. Civ. P. 41(b)-(c). See, e.g., Veazey v. Young’s Yacht Sale & Service, Inc., 644 F.2d 475 (5th Cir. 1981). In addition to the federal rule, this power, as well as the power to strike a pleading, is inherent in a trial court’s authority to enforce its orders and ensure prompt disposition of legal actions. Link v. Wabash Railroad Co., 370 U.S. 626, 630–31, 82 S. Ct. 1386, 1388–89, 8 L. Ed. 2d 734 (1962); Marshall v. Southern Farm Bureau Casualty Co., 353 F.2d 737, 737 (5th Cir.), cert. denied, 384 U.S. 910, 86 S. Ct. 1352, 16 L. Ed. 2d 363 (1966). Cf. 6 C. Wright & A. Miller, Federal Practice and Procedure § 1526 at 597 (1971) (defense may be stricken for failure to provide information required in pretrial order). An appellate court reviewing the exercise of this power is constrained by the abuse of discretion standard. Link, 370 U.S. at 633, 82 S. Ct. at 1390.

693 F.2d 1350, 1352 (11th Cir. 1982).

158 manner destroys confidence in the ability of the courts to resolve disputes and

administer civil justice. Congress, the courts, the litigants, and the public deserve

better.

I respectfully dissent.

159 Table107

Defendant Complaint(s) Named as Relationserve Media, Inc. Term Defendant of Service Danielle Karp Initial, First Amended, CEO (6/13/2005–6/21/2005) Second Amended President (6/13/2005–2/3/2006) Dir. (6/13/2005–2/3/2006) Scott Hirsch First Amended, Second COO (6/13/2005–2/2/2006) Amended Mandee Adler Initial, First Amended, CEO (6/21/2005–11/11/2005) Second Amended Dir. (6/30/2005–11/11/2005) Warren Musser Initial, First Amended, Dir. (6/21/2005–10/31/2005) Second Amended Ohad Jehassi Initial COO (7/2005– ) Adam First Amended, Second CFO (8/9/2005–2/3/2006) Wasserman Amended Employee (2/3/2006–6/15/2006) First Amended, Second Chairman (10/31/2005–9/7/2006) Michael Amended Brauser Shawn First Amended, Second Interim CEO McNamara Amended (11/30/2005–2/3/2006) SVP (11/30/2005–6/15/2006)

107 This table is based on the allegations plaintiffs made in the second amended complaint, supplemented by SEC filings where noted below. The abbreviations are: chief executive officer (“CEO”), director (“Dir.”), chief operating officer (“COO”), chief financial officer (“CFO”), assistant secretary (“Assistant Sec’y”); senior vice president (“SVP”). The difference between the dates listed and what was pled are as follows: Danielle Karp (the second amended complaint alleged only that she was president from June 13, 2005 to February 3, 2006); Mandee Heller Adler (the CEO dates are the same but the second amended complaint alleged only that she served as a director); Adam C. Wasserman (the second amended complaint alleged only that he served as CFO from August 9, 2005 until February 3, 2006); Shawn McNamara (the start dates are the same but the second amended complaint lumped together the interim president and SVP positions by alleging that McNamara served in both roles for his entire time at Media).

160 Assistant Sec’y (11/30/2005–6/15/2006) Paul Soltoff First Amended, Second CEO (2/3/2006– ) Amended Dir. (2/3/2006– ) Eric Obeck First Amended, Second President (2/3/2006– ) Amended Donald Gould, First Amended, Second CFO (2/3/2006– ) Jr. Amended

Scott Young First Amended, Second None (resigned on consummation amended of merger)

Richard Hill First Amended None

Barry Honig First Amended None