Tax-Free Fixed Income Fund for PR Residents, Inc. v. Ocean Capital LLC

137 F.4th 6

• Court: Court of Appeals for the First Circuit
• Decided: May 12, 2025
• Docket: 24-1654
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 24-1654

TAX-FREE FIXED INCOME FUND FOR PUERTO RICO RESIDENTS, INC.; TAX-FREE FIXED INCOME FUND II FOR PUERTO RICO RESIDENTS, INC.; TAX-FREE FIXED INCOME FUND III FOR PUERTO RICO RESIDENTS, INC.; TAX-FREE FIXED INCOME FUND IV FOR PUERTO RICO RESIDENTS, INC.; TAX-FREE FIXED INCOME FUND V FOR PUERTO RICO RESIDENTS, INC.; PUERTO RICO RESIDENTS TAX-FREE FUND, INC.; PUERTO RICO RESIDENTS TAX-FREE FUND IV, INC.; PUERTO RICO RESIDENTS TAX-FREE FUND VI, INC.; TAX-FREE FUND FOR PUERTO RICO RESIDENTS, INC.,

Plaintiffs, Appellants,

v.

OCEAN CAPITAL LLC; WILLIAM HEATH HAWK; JOSÉ R. IZQUIERDO II; BRENT D. ROSENTHAL; ROXANA CRUZ-RIVERA; ETHAN DANIAL; MOJDEH L. KHAGHAN; PRCE MANAGEMENT LLC, BENJAMIN T. EILER; VASILEIOS A. SFYRIS; FRANCISCO GONZALEZ; GUSTAVO NEVAREZ TORRES; ALEJANDRO ACOSTA RIVERA; HONNE II, LP; MEIR HURWITZ; MARIO J. MONTALVO; JOSE M. PEREZ-GUTIERREZ; RAD INVESTMENTS, LLC; SANZAM INVESTMENTS LLC; JUAN E. SOTO ALVARADO; SANDRA CALDERON; THE ESTATE OF JOSE HIDALGO; AVRAHAM ZEINES,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Gina R. Méndez-Miró, U.S. District Judge] [Hon. Giselle López-Soler, U.S. Magistrate Judge]

Before

Gelpí, Montecalvo, and Rikelman, Circuit Judges.

Eamon P. Joyce, with whom Gustavo J. Viviani Meléndez, Alicia I. Lavergne Ramírez, Sanchez/LRV LLC, Arturo Díaz Angueira, Maraliz Vázquez Marrero, Díaz & Vázquez PSC, Andrew W. Stern, Alex J. Kaplan, Charlotte K. Newell, Robert M. Garson, Tyler J. Domino, Sidley Austin LLP were on brief, for appellants.

Michael Lloyd Charlson, with whom Harold D. Vicente Colón, Vicente & Cuebas, Meghan Natenson, Matthew X. Etchemendy, Marisa Antonelli, Vinson & Elkins LLP were on brief, for appellees Ocean Capital LLC, PRCE Management LLC, William Heath Hawk, Benjamin T. Eiler, Vasileios A. Syfris, José R. Izquierdo II, Brent D. Rosenthal, Roxana Cruz-Rivera, Ethan Danial, and Mojdeh L. Khaghan.

Heriberto López-Guzmán for appellees Francisco González, Alejandro Acosta-Rivera, Honne II, LLP, Meir Hurwitz, Mario J. Montalvo, Sanzam Investments LLC, Sandra Calderon, The Estate of José Hidalgo, Avraham Zeines, and RAD Investments, LLC.

May 12, 2025 GELPÍ, Circuit Judge. Plaintiffs-Appellants,

representing nine closed-end mutual funds (collectively, "the

Funds"),1 sued Ocean Capital LLC and several individuals and firms

(together, "Defendants-Appellees")2 for allegedly committing

securities violations. Specifically, the Funds allege that

Defendants-Appellees misled their shareholders by failing to make

complete and accurate disclosures, violating Sections 13(d),

14(a), and 20(a) of the Securities and Exchange Act of 1934 ("the

Exchange Act"), 15 U.S.C. § 78a et seq., and other applicable rules

of the Securities and Exchange Commission ("SEC").3 The district

1 Plaintiffs-Appellants represent the following mutual funds: Tax-Free Fixed Income Fund for Puerto Rico Residents, Inc. ("Fund I"); Tax-Free Fixed Income Fund II for Puerto Rico Residents, Inc. ("Fund II"); Tax-Free Fixed Income Fund III for Puerto Rico Residents, Inc. ("Fund III"); Tax-Free Fixed Income Fund IV for Puerto Rico Residents, Inc. ("Fund IV"); Tax-Free Fixed Income Fund V for Puerto Rico Residents, Inc. ("Fund V"); Puerto Rico Residents Tax-Free Fund, Inc. ("PRRTFF I"); Puerto Rico Residents Tax-Free Fund IV, Inc. ("PRRTFF IV"); Puerto Rico Residents Tax-Free Fund VI, Inc. ("PRRTFF VI"); and Tax-Free Fund for Puerto Rico Residents ("TFF I"). 2 The following individuals and firms are henceforth collectively referred to as Defendants-Appellees: Ocean Capital LLC; William H. Hawk; José R. Izquierdo II; Brent D. Rosenthal; Roxana Cruz-Rivera; Ethan Danial; Mojdeh L. Khaghan; PRCE Management LLC; Benjamin T. Eiler; Vasileios A. Sfyris; Francisco Gonzalez; Gustavo Nevarez Torres; Alejandro Acosta Rivera; Honne II, LP; Meir Hurwitz; Mario J. Montalvo; Jose M. Perez-Gutierrez; RAD Investments, LLC; Sanzam Investments LLC; Juan E. Soto Alvarado; Sandra Calderon; The Estate of Jose Hidalgo; and Avraham Zeines. 3 The Funds specifically allege that Defendants-Appellees violated Sections 78m(d), 78n(a), and 78t(a) of the Exchange Act and SEC Rules 13d-1, 13d-101, and 14a-9.

- 3 - court granted Defendants-Appellees' motions for judgment on the

pleadings and to dismiss. The Funds timely appealed.

For the reasons explained below, we affirm.

I. BACKGROUND

At its heart, this case is about a dispute over the

sufficiency and accuracy of Defendants-Appellees' disclosures and

proxy materials. We begin by recounting the facts of the case, as

pled in the amended complaint, followed by the procedural history.

In reciting the facts of the case, we "construe the [amended]

complaint liberally, treating all well-pleaded facts as true and

drawing all reasonable inferences in favor of the [Funds]."

Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998) (applying

the same standard when evaluating motions to dismiss under Rules

12(b)(1) and 12(b)(6)). However, "[w]e shall summarize only those

facts and prior proceedings believed necessary to an understanding

of the issues raised on appeal." New England Anti-Vivisection

Soc., Inc. v. U.S. Surgical Corp., 889 F.2d 1198, 1199 (1st Cir.

1989).

A. The Funds

The Funds primarily invest in securities of Puerto Rico

issuers. From the return on their investments, the Funds

distribute dividends to their shareholders on a monthly basis.

The Funds' investors are mostly, but not exclusively, residents of

Puerto Rico. They do not pay U.S. federal income tax on Puerto

- 4 - Rico source income, paying Puerto Rico income tax instead. Each

fund holds an annual meeting at which its shareholders vote to

elect directors to their board, among other matters. The elected

board of directors is then responsible for governing that

particular fund.

B. Stockholder Group Letter to PRRTFF IV

In May 2021, a group of PRRTFF IV shareholders sent

identical letters to that fund. These letters proposed adding an

objective "to return to shareholders the net assets of [PRRTFF IV]

by or before January 31, 2022." Each letter stated that it was

from "the Stockholder Group," but each had its own signatory.

Among these was defendant-appellant William Hawk ("Hawk"), an

executive officer of defendant-appellant Ocean Capital LLC ("Ocean

Capital") and a principal owner of defendant-appellant PRCE

Management, LLC ("PRCE"), an investment management firm that

focuses on closed-end mutual funds based in Puerto Rico and that

manages Ocean Capital.4 The Funds allege that many signatories to

the Stockholder Group letters used non-party First Southern, a

financial services company affiliated with PRCE, as a stockbroker.

4 The following individuals signed the Stockholder Group letters sent to the PRRTFF IV directors: Hawk on behalf of Ocean Capital; Danial on behalf of RAD Investments; Jaime Santiago on behalf of Sanzam Investments; Avraham Zeines; Soto Alvarado; and Gabriel de Jesus on behalf of Honne II; Gonzalez; Montalvo; Calderon; Acosta Rivera; Hurwitz; Nevarez Torres; Perez-Gutierrez; and José L. Hidalgo on behalf of The Estate of Jose Hidalgo.

- 5 - The Funds note that the Stockholder Group letters were delivered

to PRRTFF IV "via Hawk and First Southern." First Southern is (or

was at the time) managed by Hawk and his associates,

defendants-appellants Vasileios A. Sfyris and Benjamin T. Eiler.

The Stockholder Group did not send letters to any other fund.

C. Proxy Contests

In summer 2021, after Funds IV and V scheduled their

annual meetings, Ocean Capital and Hawk put forth nominees for the

boards of those funds (collectively, "the Nominating Parties").5

Ocean Capital then launched proxy campaigns at both funds, starting

with the issuance of a letter to shareholders. The letter

announced the formation of a "Coalition of Concerned UBS Closed-End

Bond Fund Investors" (henceforth, "CCI") that sought to elect

"highly qualified and independent individuals" who would evaluate

all paths to maximizing value, including the liquidation of Fund

IV and Fund V. The letter disclosed no other CCI members beyond

Ocean Capital and Hawk.

In addition to issuing a letter to shareholders, the

Nominating Parties also launched a public website where investors

could learn more about CCI and its director nominees. Under the

"Our Coalition" tab of the website, the Nominating Parties stated

that Ocean Capital formed CCI, a coalition "comprised of

The complaint defines "the Nominating Parties" as Ocean 5

Capital, Hawk, Izquierdo, Rosenthal, and Cruz-Rivera.

- 6 - shareholders," to "advocate for improved leadership" at Funds IV

and V by nominating "aligned and experienced director candidates

to serve" on the board of those funds. The Nominating Parties

attached copies of the materials posted to the CCI website to its

Schedule 14A filing.

In a proxy statement filed in July 2021, the Nominating

Parties declared that "there are no arrangements or understandings

between Ocean Capital or its affiliates and the

Nominees . . . other than the consent by each Nominee to be named

in this Proxy Statement and to serve as a director of the Fund, if

elected . . . ."6

In August 2021, the Nominating Parties sent a second

letter to the shareholders of Funds IV and Fund V. These letters

stated that Ocean Capital's "interests are squarely aligned with

shareholders," emphasizing that Ocean Capital is "not looking to

'extract short-term profits' at the expense of our fellow

investors." The letter also declared that "Ocean Capital is not

a 20/22 Act Company and therefore does not enjoy tax benefits under

those statutes."

Between September 2021 and April 2022, the Nominating

Parties and Ethan Danial ("Danial") launched proxy campaigns

6 In the ensuing months, the Nominating Parties launched proxy campaigns at Fund I, Fund II, Fund III, PRRTFF I, PRRTFF IV, PRRTFF VI, and TFF I. Other proxy materials filed with the SEC pertaining to these funds contained the same disclaimer.

- 7 - seeking to elect new directors to the remaining seven funds, filing

proxy statements along the way containing similar or identical

information about CCI.7

D. Schedule 13D Filings

The SEC requires a person or group who owns or acquires

more than five percent of a voting class of securities in a public

company to file a Schedule 13D. See 15 U.S.C. § 78m(d); 17 C.F.R.

§ 240.13d-101. In a Schedule 13D filing, the person or group must

disclose, among other things, the identity and holdings of all

group members; any "contracts, arrangements, understandings or

relationships"; and any intent to "acquire control" or make any

other major changes to the company. See 17 C.F.R. § 240.13d-101.

Between October 2021 and April 2022,

Defendants-Appellees filed Schedule 13Ds for seven of the nine

funds.8 More specifically, Ocean Capital, Hawk, Brent D. Rosenthal

7 The Nominating Parties launched proxy contests at Fund I, Fund III, and PRRTFF VI in September 2021, subsequently filing proxy materials for those funds in October 2021. Ocean Capital, Hawk, Izquierdo, and Rosenthal filed proxy statements for PRRTFF I and PRRTFF IV in December 2021. After Fund II scheduled its annual meeting, the Nominating Parties and Danial filed a proxy statement for that fund in January 2022. A few months later, in April 2022, Ocean Capital, Hawk, Danial, Izquierdo, and Rosenthal filed proxy statements for TFF I. 8 Only beneficial owners of an issuer can be part of a 13D "group" and, thus, be required to file a Schedule 13D with the SEC. See Calvary Holdings, Inc. v. Chandler, 948 F.2d 59, 63 (1st Cir. 1991). Defendants-Appellees filed a Schedule 13D pertaining to Fund I, Fund II, Fund III, PRRTFF I, PRRTFF IV, PRRTFF VI, and TFF I. It is unclear if the five percent ownership threshold triggering Section 13(d) filing requirements has been met for Funds

- 8 - ("Rosenthal") and José R. Izquierdo II ("Izquierdo") filed a

Schedule 13D for Fund I, PRRTFF I, PRRTFF IV, and PRRTFF VI; Ocean

Capital, Hawk, Rosenthal, Roxana Cruz-Rivera ("Cruz-Rivera"), and

Izquierdo filed a Schedule 13D for Fund II and Fund III; and Ocean

Capital, Hawk, Danial, Rosenthal, and Izquierdo filed a Schedule

13D for TFF I. Each Schedule 13D filed listed the number of shares

owned by Ocean Capital, Hawk, and the director nominees for that

particular fund. Defendants-Appellees included a Joint Filing and

Solicitation Agreement with each of their initial Schedule 13D

filings, stating that "the undersigned agree[] to form the Group

for the purpose of soliciting proxies or written consents for

proposals submitted to stockholders for approval and the election

of the persons nominated by the Group to the Board . . . ." The

Schedule 13Ds did not disclose any information relating to the

Stockholder Group.

E. The Funds' Allegations

The Funds filed their complaint on February 28, 2022,

subsequently filing an amended complaint on January 5, 2023. In

IV and V. Defendants-Appellees amended their Schedule 13D filings for PRRTFF I, PRRTFF VI, and TFF I. Ocean Capital, Hawk, Izquierdo, Rosenthal, Cruz-Rivera, Danial, and Khaghan filed amended Schedule 13Ds for PRRTFF I and VI. Ocean Capital, Hawk, Danial, Rosenthal, Izquierdo, Cruz-Rivera, and Khaghan filed an amended Schedule 13D for TFF I.

- 9 - the amended complaint, the Funds allege three counts of violations

of federal securities laws and appliable SEC rules.9

In Count I, the Funds maintain that Defendants-Appellees

filed incomplete Schedule 13Ds for its disclosed members and failed

to file them for its undisclosed members. Particularly, the Funds

contend that the Schedule 13Ds filed did not identify shareholding

members of CCI beyond Ocean Capital and Hawk. The Funds also

allege that Defendants-Appellees failed to file Schedule 13Ds for

shareholding members of the Stockholder Group who "should have

been disclosed as acting with" Hawk and Ocean Capital "regarding

the Funds." These supposed disclosure deficiencies, the Funds

allege, violate Section 13(a) of the Exchange Act, 15 U.S.C.

§ 78m(d), and SEC Rule 13d-1, 17 C.F.R. § 240.13d-1, which govern

the filing requirements and the information that must be disclosed

in a Schedule 13D.

In Count II, the Funds assert deficiencies with

Defendants-Appellees' proxy materials that violate Section 14(a)

9 The counts are brought against different combinations of defendants-appellees. Count I is against "the Nominating Parties, Danial, and the Stockholder Group." As mentioned, the complaint defines "the Nominating Parties" as Ocean Capital, Hawk, Izquierdo, Rosenthal, and Cruz-Rivera. The complaint identifies Ocean Capital, RAD Investments, Sanzam Investments, Zeines, Soto Alvarado, Honne II, Gonzalez, Montalvo, Calderon, Acosta Rivera, Hurwitz, Nevarez Torres, Perez-Gutierrez, and The Estate of Jose Hidalgo as the "Stockholder Group." Count II is against "the Nominating Parties and Danial." Count III is against "the Controlling Persons," which the complaint defines as Hawk, Sfyris, Eiler, and PRCE.

- 10 - of the Exchange Act, 15 U.S.C. § 78n(a), and SEC Rule 14a-9, 17

C.F.R. § 240.14a-9(a). This section and its corresponding SEC

rule prohibit soliciting proxies through communications that are

false or misleading as to any material fact. The Funds first

contend that Defendants-Appellees' proxy filings misstate or omit

information about the members of the Stockholder Group and CCI.

In their complaint, the Funds allege that the use of the term

"coalition" to describe only two shareholders created a misleading

impression of broad shareholder support for their nominees. The

Funds further insist that Defendants-Appellees' proxy filings

contained materially false and misleading information about their

intent to liquidate the funds, their status as Act 22

beneficiaries, the experience of their board nominees, the

performance of the funds, the compensation of certain incumbent

directors, the outcome of an SEC proceeding against UBS Financial

Services Inc. of Puerto Rico ("UBS Puerto Rico"), and the result

of the shareholder vote at PRRTFF I.

Lastly, in Count III, the Funds claim a violation of

Section 20(a) of the Exchange Act, 15 U.S.C. § 78t(a), which

extends joint liability to every person who controls another found

liable for securities violations. The Funds allege that "the

controlling persons of Ocean Capital" had "intimate knowledge of

the incomplete and misleading statements described in Counts I-II"

- 11 - but did not prevent or correct these filings in violation of

Section 20(a).

As relief, the Funds sought, among other things, an order

directing Defendants-Appellees to "publicly correct their material

misstatements or omissions relating to the Funds, including by

filing with the SEC complete and accurate disclosures required by

Sections 13(d) and 14(a) of the Exchange Act." In addition, the

Funds requested a permanent injunction barring

Defendants-Appellees "from soliciting proxies regarding the Funds

until the above-described disclosures are issued."

F. Supplemental Disclosures

In March 2022, before any of the Funds held elections,

the Nominating Parties voluntarily filed Schedule 14A definitive

additional materials with the SEC (together, "the Supplemental

Disclosures").10 The Supplemental Disclosures informed

shareholders about the alleged securities violations described in

the amended complaint and clarified various statements at the

center of the dispute, noting that the information in the

Supplemental Disclosures "supersede[s] or supplement[s] the

information" in previous filings. The Nominating Parties also

attached copies of the complaint and amended complaint to the

10The filings pertained to Fund I, Fund II, Fund III, Fund IV, Fund V, PRRTFF I, PRRTFF IV, and PRRTFF VI.

- 12 - Supplemental Disclosures, emphasizing their view that the

complaint was "completely without merit."

The Supplemental Disclosures also denied the existence

of an undisclosed 13D group. It stated that "[n]one of Ocean

Capital, its nominees, or Mr. Hawk has agreed to act as a 'Group'

with any of [the Funds'] shareholders." The filings clarified

that CCI "is not intended to describe a discernible group of

investors, but instead is used to describe a like-mindedness of

various shareholders who might understand and think similarly

about the Fund and its affiliated funds with respect to which Ocean

Capital has made nominations for director elections." The

Supplemental Disclosures emphasized that "Ocean Capital, its

managing member, Mr. Hawk, and its nominees have never entered,

and have no intention to enter, into any agreement . . . to act

together with any other person or persons who could be described

as a 'Concerned UBS Closed-End Bond Fund Investor' for the purpose

of acquiring, holding, voting or disposing of securities of any of

the Funds."

The Supplemental Disclosures further clarified the

objectives of CCI's nominees. Those disclosures stated that, if

elected, their nominees would consider "all avenues to maximize

value," including liquidation. As to 20/22 Act status, the

Supplemental Disclosures noted that while "Ocean Capital is not a

20/22 Act Company," certain principals of Ocean Capital, including

- 13 - Hawk, were entitled to tax benefits under that Act. In addition,

the Nominating Parties elucidated previous statements regarding:

(1) the compensation of certain incumbent directors; (2) the

experience and qualifications of Izquierdo, one of its nominees;

the performance of certain funds; (3) public statements made by a

former UBS Group officer; and (4) the outcome of an SEC enforcement

action against UBS Puerto Rico and two of its executives.

CCI's nominees ultimately won election by wide margins

at PRRTFF I, PRRTFF VI, and TFF I.11

G. District Court Proceedings

On August 10, 2023, U.S. Magistrate Judge Giselle

López-Soler issued a report and recommendation pursuant to Rule

72(b) of the Federal Rules of Civil Procedure and 28 U.S.C.

§ 636(b)(1) proposing dismissal of the Funds' complaint on two

independent grounds: failure to state a claim and mootness. At

the outset, she recommended that the Section 13(d) claims be

dismissed for failure to state a claim as to Fund I, Fund II, Fund

III, PRRTFF VI, PRRTFF I, and TFF I, finding that "there is

absolutely no factual allegation to affirmatively link the letter

of the Stockholder Group to" these funds. Judge López-Soler

11 Izquierdo and Rosenthal won election to PRRTFF I's Board of Directors at its 2021 Annual Meeting held on March 17, 2022; Izquierdo and Rosenthal won election to PRRTFF IV's Board of Directors at its 2021 Annual Meeting on December 15, 2022; and Danial, Izquierdo, and Rosenthal won election to TFF I's Board of Directors at its Annual Meeting held on March 9, 2023.

- 14 - assumed, for discussion purposes, the existence of a 13D group as

to PRRTFF IV and concluded that dismissal would be independently

appropriate as to all funds because the Defendants-Appellees'

Supplemental Disclosures cured any defect in their previous

disclosures, mooting their Section 13(d) claims. That is because

attaching copies of the complaint and amended complaint to their

filings "ma[de] clear . . . [the Funds'] position that a group

exists as to each fund . . . , that such a group and its suspected

members . . . should have been disclosed by

[Defendants-Appellees], and that the goal of that group is the

liquidation of the [F]unds' shares."

Similarly, Judge López-Soler recommended dismissal as to

the Funds' Section 14(a) claims. Regarding the Funds' assertion

that Defendants-Appellees' proxies failed to disclose the

identities of members of an undisclosed group, she noted that this

was a disputed issue, and, in any event, the proxy statements were

"cured by advising shareholders of [the] lawsuit and attaching

[the] complaint." Judge López-Soler also concluded that the "use

of the term 'coalition' in and of itself cannot be said to

necessarily imply broad shareholder support for the nominations

proposed by Ocean Capital," in particular because the

Defendants-Appellees' description of CCI on its website and in its

proxy statements was "vague and noncommittal." Furthermore, she

found "no factual support for the proposition that liquidation is

- 15 - in fact the only alternative to be considered by the new directors

if elected." Judge López-Soler dismissed the Funds' remaining

Section 14(a) challenges, concluding that the statements at issue

were not false or misleading.

Finally, Judge López-Soler recommended dismissal of the

claims under Section 20(a), noting that Section 20(a) claims are

not actionable without accompanying securities violations. Since

the Funds failed to plead actionable Section 13(d) and 14(a)

claims, she reasoned, their Section 20(a) claim must also fail.

The Funds duly objected to the report and recommendation

and Defendants-Appellees responded. After independently reviewing

the record, U.S. District Judge Gina R. Méndez-Miró adopted the

entire report and recommendation. In doing so, she dismissed the

Funds' claims but retained jurisdiction over Defendants-Appellees'

counterclaims. The Funds then moved for a stay of the proceedings

on the counterclaims under Rule 54(b). Judge Méndez-Miró denied

the Funds' motion to stay and granted the Defendants-Appellees'

requested relief on their counterclaims by issuing an injunction

ordering the Funds to seat CCI's victorious nominees for the board

of directors of PRRTFF I, PRRTFF VI, and TFF I. The Funds timely

appealed those decisions and orders. This Court has jurisdiction

over this appeal pursuant to 28 U.S.C. § 1291.

- 16 - II. DISCUSSION

The Funds advance several arguments on appeal. The Funds

first argue that the district court (collectively, Judges

López-Soler and Méndez-Miró) erred in dismissing their Section

13(d) claims as moot, contending that the Supplemental Disclosures

did "nothing to cure the alleged violations" because

Defendants-Appellees continue to deny the existence of an

undisclosed 13D group.12 According to the Funds, moreover, their

amended complaint plausibly pleaded the existence of an

undisclosed 13D group had the district court considered their

allegations cumulatively.

Second, the Funds maintain that the district court erred

in dismissing their Section 14(a) claims because, to cure their

filings, Defendants-Appellees would have had to disclose "the

truth" to shareholders, not just the existence of the lawsuit.

The Funds also contend that they pleaded multiple examples of

materially false and misleading omissions and representations in

Defendants-Appellees' proxy statements. Those examples pertained

to the level of shareholder support for their nominees, their

12When, as here, the district judge adopts the magistrate judge's report and recommendation in its entirety, this court may choose to adopt an "institutional view" and refer to the magistrate and district judges' reasoning collectively as "the district court." C.G. ex rel. A.S. v. Five Town Cmty. Sch. Dist., 513 F.3d 279, 282 (1st Cir. 2008); see also Santiago v. Mun. of Utuado, 114 F.4th 25, 34 (1st Cir. 2024) (reviewing the magistrate judge's fully adopted reasoning as one with the district judge).

- 17 - intent to liquidate the funds, and their "aligned" interests with

shareholders. We address each argument in turn.

A. Section 13(d) Claims

The district court dismissed the Funds' Section 13(d)

claims for failure to state a claim.13 In reviewing the dismissal

of a complaint under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, "we are free to affirm on any ground apparent from the

record." Vargas-Colón v. Fundación Damas, Inc., 864 F.3d 14, 22

(1st Cir. 2017). Our review here is de novo. E.g., Douglas v.

Hirshon, 63 F.4th 49, 54-55 (1st Cir. 2023). As explained below,

we conclude that the Funds failed to state a Section 13(d) claim

as to the non-PRRTFF IV funds. Regarding PRRTFF IV, we dismiss

the Section 13(d) claim on the ground that the Funds did not

adequately demonstrate a showing of irreparable harm to justify

granting the injunctive relief they seek. Thus, we need not assess

the adequacy of the Funds' pleadings as to PRRTFF IV.

i. Failure to State a Claim

To survive dismissal for failure to state a claim under

Rule 12(b)(6), a complaint must allege a "plausible entitlement to

relief." Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir. 2011)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007)).

13The district court also concluded that it could dismiss the Funds' Section 13(d) claims independently on mootness grounds. We need not address mootness since we resolve the Section 13(d) claims based on the insufficiency of the pleadings.

- 18 - "A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged." Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at

556). For purposes of our review, we must accept the well-pleaded

factual allegations in the amended complaint as true and resolve

all inferences in favor of the Funds. See McKee v. Cosby, 874

F.3d 54, 58 (1st Cir. 2017); see also 3137, LLC v. Town of Harwich,

126 F.4th 1, 8 (1st Cir. 2025) ("The standard of review of a motion

for judgment on the pleadings . . . is the same as that for a

motion to dismiss under Rule 12(b)(6).") (citation omitted).

Further, as a claim sounding in fraud, Section 13(d)

claims are subject to the heightened pleading standards of Rule 9

of the Federal Rules of Civil Procedure ("Rule 9") and the Private

Securities Litigation Reform Act ("PSLRA"), 15 U.S.C. § 78u-4.

See Ponsa-Rabell v. Santander Sec. LLC, 35 F.4th 26, 33 (1st Cir.

2022) ("[t]he PSLRA imposes a heightened pleading standard on

complaints alleging securities fraud"); see also Mgmt. Assistance

Inc. v. Edelman, 584 F. Supp. 1016, 1018 (S.D.N.Y. 1984) (applying

the heightened pleading standard under the PSLRA to Section 13(d)

claims). Rule 9(b) instructs a party to "state with particularity

the circumstances constituting fraud or mistake." Fed. R. Civ. P.

9(b). In other words, the pleading party must aver with

particularity the time, place, and content of the challenged

- 19 - misrepresentations, omissions, or fraud. Ponsa-Rabell, 35 F.4th

at 33-34. The PSLRA requires that plaintiffs specify "each

statement alleged to have been misleading, the reason or reasons

why the statement is misleading, and, if an allegation regarding

the statement or omission is made on information and belief, the

complaint shall state with particularity all facts on which that

belief is formed." 15 U.S.C. § 78u-4(b)(1); Miss. Pub. Employees'

Ret. Sys. v. Bos. Sci. Corp., 523 F.3d 75, 85 (1st Cir. 2008).

"This circuit has been notably strict and rigorous in applying the

Rule 9(b) standard in securities fraud actions." Greebel v. FTP

Software, Inc., 194 F.3d 185, 193 (1st Cir. 1999).

Section 13(d) of the Securities and Exchange Act

requires that any person who owns or acquires a beneficial

ownership of more than five percent of any class of equity

securities registered under the Exchange Act to file ownership

reports with the SEC on a Schedule 13D. See 15 U.S.C. § 78m.

Essentially, Section 13(d) requires any person, or group of persons, after acquiring more than five percent of a class of registered equity securities, to send to the issuer . . . and file with the [SEC] the statement required by the Act, disclosing, among other things, the identity of the persons filing, the number of shares owned by them, the source of the funds used to purchase the shares, and the purpose of the purchase.

Gen. Aircraft Corp. v. Lampert, 556 F.2d 90, 94 (1st Cir. 1977).

A "group" under Section 13(d) is defined as "two or more persons

- 20 - act[ing] . . . for the purpose of acquiring, holding, or disposing

of securities of an issuer." 15 U.S.C. § 78m(d)(3).

The Funds insist that they have sufficiently pled

Section 13(d) violations, pointing to the Stockholder Group letter

as conclusive evidence of an undisclosed 13D group as to PRRTFF IV

and as "powerful circumstantial evidence" as to the other funds.

In addition, the Funds stress that each proxy campaign was launched

by a self-described "coalition," that a signatory of the

Stockholder Group letter -- Danial, who signed on behalf of RAD

Investments, LLC ("RAD") -- was also a director nominee, that

members of the Stockholder Group and CCI used First Southern as a

stockbroker, and that the Stockholder Group letters were delivered

via First Southern. We begin by assessing the sufficiency of the

Funds' pleadings as to the non-PRRTFF IV funds.

The Funds have failed to allege sufficient facts to allow

this court to infer the existence of an undisclosed 13D group as

to the non-PRRTFF IV funds. To start, we note that no letter or

other communication was ever sent on behalf of a purported group

to any fund other than PRRTFF IV, as the Stockholder Group letter

was only sent to shareholders of PRRTFF IV. And while the Funds

maintain that there is "powerful circumstantial evidence" linking

the Stockholder Group letter to CCI, we fail to see a connection.

The fact is that Ocean Capital is the only signatory to the

Stockholder Group letter that owns shares in every fund (although

- 21 - Hawk, too, personally owns shares in all but TFF I). Thus, based

on the Funds' pleadings, we cannot reasonably infer an undisclosed

overlap in the membership of the Stockholder Group and CCI.

Still, the Funds point to the fact that Danial is a

director nominee and a signatory to the Stockholder Group letter

as evidence of a hidden connection between the two groups. This

tenuous link, however, is insufficient to support a Section 13(d)

claim. First, we note that Defendants-Appellees disclosed in their

Schedule 13D filings any shares owned by RAD in any of the funds,

which Danial beneficially owned as a RAD manager. As to Danial,

he does not personally own shares in any of the funds, including

the fund for which he was nominated to serve as a director. For

these reasons, the fact that Danial signed the Stockholder Group

letter is insufficient to establish an undisclosed overlap in

membership between the Stockholder Group and CCI, or any other

Section 13(d) violation as to the non-PRRTFF IV funds.

The Funds further emphasize the fact that some

signatories of the Stockholder Group letter used First Southern as

their stockbroker as circumstantial proof of the existence of an

undisclosed 13D group. This fact, too, is insufficient to support

a Section 13(d) claim. This is so because "an investor [does not]

become a member of a group solely because his or her advisor caused

other (or all) of its clients to invest in securities of the same

issuer." Rubenstein v. Int'l Value Advisers, LLC, 959 F.3d 541,

- 22 - 547 (2d Cir. 2020). The Funds needed to have plausibly alleged an

agreement to act together with respect to the shares of the

particular fund, not merely overlapping advisors or interests.

See Augenbaum v. Anson Invs. Master Fund LP, No. 22 CIV. 249 (VM),

2023 WL 2711087, at *11 (S.D.N.Y. Mar. 30, 2023) (finding the

signing of parallel agreements with "no facts supporting that the

alleged group members interacted in any way" insufficient to

support the inference of an undisclosed 13D group). Here, the

Funds have failed to plea facts that the alleged undisclosed group

members interacted in any way with "the purpose of acquiring,

holding, or disposing of securities of an issuer." 15 U.S.C.

§ 78m(d)(3). And so, their Section 13(d) claim must fail.

Lastly, the fact that the proxy campaigns were launched

by a self-described "coalition" of investors is also insufficient

for this court to reasonably infer the existence of an undisclosed

13D group as to the non-PRRTFF IV funds. The Funds stress that

"the term 'Coalition' ordinarily indicates a group with many

members." But the fact that individuals have agreed to act

together, without more, is insufficient to state a Section 13(d)

claim. To do so, the Funds needed to have pled that CCI members

acted in furtherance of at least one of the statutorily defined

purposes. See 15 U.S.C. § 78m(d)(3) (defining a "group" under

Section 13(d) as "two or more persons act[ing] . . . for the

purpose of acquiring, holding, or disposing of securities of an

- 23 - issuer."). But, looking at the amended complaint in the light

most favorable to the Funds, all we can conclude is that CCI is

comprised of shareholders who are acting collectively with the

sole stated purpose of electing a slate of director nominees to

the boards of some of the funds. Those facts alone cannot sustain

a Section 13(d) claim, particularly under Rule 9's heightened

standard.

ii. Lack of Irreparable Harm

As to PRRTFF IV, the Funds insist that the Stockholder

Group letter supports the existence of an undisclosed Section 13(d)

group. We need not analyze the sufficiency of the Funds' pleadings

as to PRRTFF IV, as they failed to demonstrate a showing of

irreparable harm to warrant granting the injunctive relief they

seek. For that reason, the Funds' remaining Section 13(d) claim

must also fail.

Section 13(d) disclosure requirements have an

informative purpose: namely, "to provide investors and the market

in general with accurate information about potential changes in

corporate control." Hibernia Sav. Bank v. Ballarino, 891 F.2d

370, 372 (1st Cir. 1989) (quoting Ludlow Corp. v. Tyco Lab'ys Inc.,

529 F. Supp. 62, 65 (D. Mass. 1981)). In enacting Section 13(d),

"Congress expressly disclaimed an intention to provide a weapon

for management to discourage takeover bids or prevent large

accumulations of stock" to maintain its control. Rondeau v.

- 24 - Mosinee Paper Corp., 422 U.S. 49, 58-59 (1975). As we have

admonished in the past, federal courts should be careful not to

get drawn "into factional intracorporate disputes" by management

over the adequacy of disclosure requirements, "so long as the

interests of all investors are adequately protected." Lampert,

556 F.2d at 95.

Consistent with the informative purpose of Section

13(d), injunctive relief is the only available remedy for private

claims. See Hallwood Realty Partners, L.P. v. Gotham Partners,

L.P., 286 F.3d 613, 620 (2d Cir. 2002). However, "the bare fact

that [a party] violated the Williams Act," without more, is

insufficient to warrant a grant of injunctive relief. Rondeau,

422 U.S. at 60; see id. at 62 (emphasizing that injunctive relief

is "designed to deter, not to punish") (quoting Hecht Co. v.

Bowles, 321 U.S. 321, 329 (1944))). Rather, "a showing of

irreparable harm, in accordance with traditional principles of

equity, [is] necessary before a private litigant" is entitled to

relief under Section 13(d). Hibernia, 891 F.2d at 372 (citing

Rondeau, 422 U.S. at 58). Delay or failure to move for a

preliminary injunction undermines a showing of irreparable harm at

a later juncture. See, e.g., Voice of the Arab World, Inc. v.

MDTV Med. News Now, Inc., 645 F.3d 26, 35 (1st Cir. 2011) ("[T]he

failure to act sooner undercuts the sense of urgency that

ordinarily accompanies a motion for preliminary relief and

- 25 - suggests that there is, in fact, no irreparable injury.") (cleaned

up) (citation omitted).

The Funds here have not adequately shown the irreparable

harm necessary to warrant granting injunctive relief and, thus,

their Section 13(d) claim also fails as to PRRTFF IV. For

starters, we note that the Funds did not move for a preliminary

injunction, which undermines their claim of irreparable harm. Nor

have the Funds explained how the information included in the

Stockholder Group letter (including the voting power of the "group"

and its objectives) is so inadequate that "the evils to which the

Williams Act was directed" are implicated by Defendants-Appellees'

alleged technical violation. Rondeau, 422 U.S. at 59; see id. at

58 ("The purpose of the Williams Act is to insure that public

shareholders who are confronted by a cash tender offer for their

stock will not be required to respond without adequate information

regarding the qualifications and intentions of the offering party.

By requiring the disclosure of information to the target

corporation as well as the [SEC], Congress intended to do no more

than give incumbent management an opportunity to express and

explain its position." (footnote omitted)); see also Hibernia, 891

F.2d at 372 ("The underlying purpose of Section 13(d) is to provide

investors and the market in general with accurate information about

potential changes in corporate control" without "tip[ping] the

balance in favor of either management, or those attempting a change

- 26 - in corporate control." (quoting Ludlow Corp., 529 F. Supp. at 65)).

For these reasons, the Funds' complaint does not satisfy the

irreparable harm showing that would justify granting relief here.

Having determined that an independent ground supports

dismissal of the Section 13(d) claims, we need not address the

sufficiency of the Funds' pleadings as to PRRTFF IV. See Ungar v.

Arafat, 634 F.3d 46, n.4 (1st Cir. 2011) (noting that an appellate

court "may affirm a judgment on any independently sufficient ground

made manifest in the record" (citing Banco Popular de P.R. v.

Greenblatt, 964 F.2d 1227, 1230 (1st Cir.1992))); see also Lessler

v. Little, 857 F.2d 866, 874 (1st Cir. 1988) (affirming the

district court's dismissal on one ground and, accordingly,

declining to address the other).

B. Section 14(a) Claims

Next, we address the Funds' Section 14(a) claims. As

with the Section 13(d) claims, the district court dismissed the

Funds' Section 14(a) claims on two independent grounds: failure to

state a claim and mootness. Having affirmed dismissal of the

Section 13(d) claims for failure to state a claim, we will only

address the Funds' surviving allegations regarding material

misstatements or omissions in Defendants-Appellees' proxy

statements.

Section 14(a) makes it unlawful to solicit proxies in

contravention of "such rules and regulations as the [SEC] may

- 27 - prescribe as necessary or appropriate in the public interest or

for the protection of investors." 15 U.S.C. § 78n. SEC Rule

14a-9, 17 C.F.R. § 240.14a-9(a), provides, in relevant part, that

"[n]o solicitation subject to this regulation shall be made by

means of any proxy statement . . . which, at the time . . . it is

made, is false or misleading with respect to any material fact, or

which omits to state any material fact necessary in order to make

the statements therein not false or misleading." Congress enacted

Section 14(a) "to promote the free exercise of the voting rights

of stockholders by ensuring that proxies would be solicited with

an explanation to the stockholder of the real nature of the

questions for which authority to cast his vote is sought." Royal

Bus. Grp., Inc. v. Realist, Inc., 933 F.2d 1056, 1060 (1st Cir.

1991) (quoting Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 381

(1970)). That purpose is achieved if "the proxy materials fully

and fairly set forth the relevant and material facts from which a

reasonable shareholder may draw [their] own conclusions as to how

to vote." New England Anti-Vivisection Soc., Inc., 889 F.2d at

1202 (1st Cir. 1989).

To succeed on a Section 14(a) claim, the Funds must

satisfy a three-part test. That test requires (1) the Funds to

contend that a proxy statement contained a material

misrepresentation or omission, (2) which caused the plaintiff

injury, and (3) that the proxy solicitation itself was "an

- 28 - essential link in the accomplishment of the transaction." Gen.

Elec. Co. by Levit v. Cathcart, 980 F.2d 927, 932 (3d Cir. 1992)

(quoting Mills, 396 U.S. at 385).

A misrepresentation or omission is material "if there is

a substantial likelihood that a reasonable shareholder would

consider it important in deciding how to vote." TSC Indus., Inc.

v. Northway, Inc., 426 U.S. 438, 449 (1976). The standard for

materiality is not a low one, requiring fair accuracy, not perfect

expression. New England Anti-Vivisection Soc., Inc., 889 F.2d at

1202. As with the Section 13(d) claims discussed, the Funds'

Section 14(a) claims are also subject to a heightened pleading

standard under the PSLRA. See Savoy v. Bos. Priv. Fin. Holdings,

Inc., 626 F. Supp. 3d 242, 249 (D. Mass. 2022) (applying the PSLRA

heightened pleading standard to Section 14(a) claims).

With this standard in mind, we consider the Funds'

surviving Section 14(a) claims. The Funds allege that

Defendants-Appellees made false and misleading statements by: (1)

referring to a "coalition" of shareholders because such a claim

either created the impression of a broad group of shareholders or

triggered a "bandwagon effect"; (2) failing to disclose that

liquidation was its sole goal; and (3) representing that it was

- 29 - "aligned" with shareholders. We evaluate the sufficiency of each

allegation in turn.

i. Term "Coalition" and "Bandwagon Effect"

The Funds argue that Defendants-Appellees' use of the

term "coalition" on their CCI website and proxy filings was doubly

misleading: Either it referred to a broad group of shareholders,

in which case those shareholders needed to be disclosed, or it

referred only to Hawk and Ocean Capital, in which case the term

implied "broad stockholder support" when there was none. We

addressed the former argument in our consideration of the Section

13(d) claims, and so we turn to the Funds' latter argument that

the term "coalition" was misleading.

We disagree with the Funds' proposition that the

ambiguous description of CCI as a "coalition" produced a "bandwagon

effect," as that term is described in Lone Star Steakhouse &

Saloon, Inc. v. Adams, 148 F. Supp. 2d 1141, 1152 (D. Kan. 2001)

("If shareholders believe that a significant number of other

investors support defendant [because of inaccurate statements of

support], that belief will likely impact the decisions of those

investors with less time to research the claims of either existing

management or the proxy contender."); see also Gould v.

Am.-Hawaiian S. S. Co., 535 F.2d 761, 772 (3d Cir. 1976) (holding

that statements that communicated significant shareholder support

for the approval of a merger was material because it discouraged

- 30 - "careful consideration of the merits of the plan of merger and

even voting on it at all").

To trigger a "bandwagon effect," statements of support

must be concrete and sufficiently significant to the decision

confronting shareholders. For example, in Lone Star, the

defendant's proxy statements assured shareholders that "a number

of institutional and individual stockholders . . . would vote" to

elect him to the board of directors. 148 F. Supp. 2d at 1144. He

also provided a list of his purported institutional stockholders

and the amount of assets each held. Id. Likewise, the defendant

in Gould informed shareholders that the proposed merger already

enjoyed the support of sufficient shareholders to constitute the

necessary two-thirds majority for approval. 535 F.2d at 772.

Unlike Defendants-Appellees here, the defendants in Lone Star and

Gould made specific claims about the size and voting power of the

shareholder cohort. The Funds do not allege that

Defendants-Appellees are making such concrete and overwhelming

declarations of shareholder support for its nominees. Instead,

Defendants-Appellees clarified in their Supplemental Disclosures

that CCI is meant to "describe a like-mindedness of various

shareholders who might understand and think similarly about the

Fund and its affiliated funds with respect to which Ocean Capital

has made nominations for director elections." Such an ambiguous

description is insufficient to make the statement materially

- 31 - misleading for the purposes of Section 14(d) liability. Cf. Mills,

396 U.S. at 384-85 ("There is no need to supplement [Section

14(a)] . . . with a requirement of proof as to whether a defect

actually had a decisive effect on the voting.").

ii. Liquidation as the Sole Objective

The Funds argue that Defendants-Appellees' statements

concerning their intent for the funds were materially misleading.

The Funds point to the filings in which Defendants-Appellees

declared that, if elected, their nominees would consider "all

avenues to maximizing value," including liquidation. The Funds

argue that this statement is misleading because liquidation is in

fact Defendants-Appellees' only objective. In other words, the

Funds here insist that the intent behind the filings was

misleading. But "proof of mere disbelief or belief undisclosed

should not suffice for liability under [Section] 14(a)." Virginia

Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1096 (1991). Nothing

in the filings here supports a plausible inference that liquidation

was the only objective Defendants-Appellees' nominees would

consider if elected. For that reason, the Funds' claim fails.

For similar reasons, the statement in the Stockholder Group letter

that they sought to add liquidation as an "additional investment

objective" is not sufficient to show that liquidation was the sole

objective as to PRRTFF IV. And since Defendants-Appellees have

been clear in their initial and Supplemental Disclosures that its

- 32 - director nominees for PRRTFF IV would consider liquidation as one

of many options to maximize value, the Funds' Section 14(a) claim

must fail as to PRRTFF IV.

iii. Aligned Interests Statement

The Funds also contend that Defendants-Appellees'

affirmation that their interests are "squarely aligned with

shareholders" is materially misleading because it did not disclose

that Ocean Capital's principals were beneficiaries of Act 22,

unlike most other Fund shareholders. That statement is neither

false nor misleading. Defendants-Appellees consistently disclosed

that "Ocean Capital is not a 20/22 Act Company" and subsequently,

that some of its principles were entitled to tax benefits under

Act 20/22 in the event of a liquidation.

iv. Waiver of Additional Claims

The Funds asserted various other Section 14(a)

violations to the district court. On appeal, however, they only

list these claims in a single footnote of their brief.14 "We have

repeatedly held that arguments raised only in a footnote or in a

perfunctory manner are waived." P.R. Tel. Co., Inc. v. San Juan

14 The Funds allege that Defendants-Appellees' proxy statements contained other material misstatements regarding the performance of the funds, the outcome of an SEC enforcement action against UBS Puerto Rico and two of its executives, the salaries of certain incumbent directors, the professional experience of one of its nominees, and the outcome of the shareholder vote for PRRTFF I.

- 33 - Cable LLC, 874 F.3d 767, 770 (1st Cir. 2017) (quoting Nat'l Foreign

Trade Council v. Natsios, 181 F.3d 38, 61 n.17 (1st Cir. 1999));

see also Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 36 (1st

Cir. 1994) (argument raised by way of "cursory footnote" deemed

waived). Because the Funds waived those claims, we decline to

consider the sufficiency of the pleadings as to those claims.

C. Defendants-Appellees' Counterclaims

In accordance with its order dismissing the Funds'

claims, the district court granted relief on Defendants-Appellees'

counterclaims regarding PRRTFF I, PRRTFF VI, and TFF I. The

district court's injunction ordered the Funds to seat the

Defendants-Appellees' nominees as members of the board of

directors of those funds. Since we affirm the district court's

decision as to the Funds' securities claims, we reject the Funds'

- 34 - request that we vacate the judgment on Defendants-Appellees'

counterclaims.15

III. CONCLUSION

For the foregoing reasons, we affirm the district

court's dismissal of the Funds' Sections 13(d), 14(a), and 20(a)

claims.16

15 However, we recognize that the terms of office of those directors may have been impacted by the duration of this litigation. Izquierdo and Rosenthal were elected to serve as directors of PRRTFF I and PRRTFF VI "for a term expiring on the date of which the annual of meeting of shareholders is held in 2024 or until their successors are elected and qualified." Danial, Izquierdo, and Rosenthal were elected to serve as directors of TFF I "for a term expiring on the date of which the annual meeting of stockholders is held in 2025, 2024, and 2025, respectively, or until their successors are elected and qualified." 16Because we affirm the dismissal of the Section 13(d) and 14(a) claims, we also affirm the dismissal of the Section 20(a) claim, which the district court dismissed upon determining that each of the Funds' claimed securities violations failed.

- 35 -