Justia Securities Law Opinion Summaries

Standing alone, a general disclaimer (still less a general merger clause) is not sufficient as a matter of law to preclude reasonable reliance on material factual misrepresentations, even by a sophisticated investor. FIH appealed the district court's grant of summary judgment dismissing federal securities law claims against defendants. The district court concluded as a matter of law that FIH could not have reasonably relied on the alleged misrepresentations, because such reliance was precluded by a general merger clause in Foundation's agreement, incorporated by reference into the subscription agreements by which FIH had invested in Foundation. However, the Second Circuit held that the merger clause did not as a matter of law preclude FIH's reasonable reliance on the alleged misrepresentations. The court also held that the district court did not err nor abuse its discretion in excluding as untimely an expert report. Accordingly, the court vacated the judgment and remanded for further proceedings. View "FIH, LLC v. Foundation Capital Partners, LLC" on Justia Law

SEC Rule 10b–5 makes it unlawful to (a) “employ any device, scheme, or artifice to defraud,” (b) “make any untrue statement of a material fact,” or (c) “engage in any act, practice, or course of business” that “operates . . . as a fraud or deceit” in connection with the purchase or sale of securities. The Supreme Court has held that to be a “maker” of a statement under subsection (b), one must have “ultimate authority over the statement, including its content and whether and how to communicate it.” Lorenzo, a brokerage firm's director of investment banking, sent e-mails to prospective investors. The content, supplied by Lorenzo’s boss, described a potential investment in a company with “confirmed assets” of $10 million. Lorenzo knew that the company had recently disclosed that its total assets were worth less than $400,000. The SEC found that Lorenzo had violated Rule 10b–5, 17 CFR 240.10b–5; section 10(b) of the Exchange Act, 15 U.S.C. 78j(b); and section 17(a)(1) of the Securities Act, 15 U.S.C. 77q(a)(1).The Supreme Court affirmed the D.C. Circuit in holding that Lorenzo could not be held liable as a “maker” under Rule 10b-5(b) but affirmed with respect to subsections (a) and (c) and statutory sections 10(b) and 17(a)(1). Dissemination of false or misleading statements with intent to defraud can fall within the scope of Rules 10b–5(a) and (c), and the statutory provisions, even if the disseminator did not “make” the statements under Rule 10b–5(b). By sending e-mails he understood to contain material untruths, Lorenzo “employ[ed]” a “device,” “scheme,” and “artifice to defraud” under subsection (a) and section 17(a)(1); he “engage[d] in a[n] act, practice, or course of business” that “operate[d] . . . as a fraud or deceit” under subsection (c). There is considerable overlap among the Rule's subsections and related statutory provisions. The "plainly fraudulent behavior" at issue might otherwise fall outside the Rule’s scope. The Court rejected Lorenzo’s claim that imposing primary liability upon his conduct would erase or weaken the distinction between primary and secondary liability under the statute’s “aiding and abetting” provision. View "Lorenzo v. Securities and Exchange Commission" on Justia Law

In this case brought under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1962, 1964, the First Circuit affirmed the district court's ruling dismissing Plaintiff's claims against all defendants, holding that Plaintiff's claims against his securities broker may only be resolved through arbitration, the claims against the broker's wife and the couple's conjugal partnership were also subject to the arbitration agreement, and Plaintiff's claims against a bank were out of time.Plaintiff, a building contractor in Puerto Rico, argued that his securities broken, in collusion with the investment firm and affiliated bank, fraudulently stole more than $400,000 from his investment account. Plaintiff also named as defendants his broker's wife and their conjugal partnership . The district court dismissed all claims against all defendants. The First Circuit affirmed, holding (1) subject to the binding agreement between the parties, Plaintiff's claims against the broker may only be resolved through arbitration; (2) the claims against the broker's wife and the conjugal partnership were derivative of the claims against the broker and therefore also subject to the arbitration agreement; and (3) Plaintiff's claims against the bank were time-barred under 18 U.S.C. 1964. View "Alvarez-Mauras v. Banco Popular of Puerto Rico" on Justia Law

Van Dyke is a licensed insurance producer, 215 ILCS 5/1, and registered with the Secretary of State Securities Department as an investment adviser, 815 ILCS 5/1. The Department received a complaint from the adult children of one of Van Dyke’s deceased clients, investigated, and held a hearing to determine whether Van Dyke’s registration should be retroactively revoked or suspended, alleging that Van Dyke had defrauded over 21 clients, all senior citizens. Van Dyke effectuated 31 purchase transactions involving the liquidation of the clients’ previously owned indexed annuities to purchase new indexed annuities. Van Dyke earned $316,278.56 in commissions; his clients lost $263,822.13 in surrender charges, penalties, and other fees. The Secretary of State found that Van Dyke had violated the Act, revoked his investment adviser registration, and ordered him to pay fines and costs. The appellate court reversed, holding that the Department had failed to prove that Van Dyke violated the Act. The Illinois Supreme Court agreed. Annuity contracts issued by authorized insurers are insurance products, not securities, because they fall within the exclusion from face amount certificates and are not investment contracts under section 2.1; Van Dyke’s recommendation that his clients purchase the indexed annuities cannot form the basis of a violation of sections 12(A), (F), (G), or (I) of the Act. The evidence failed to establish that Van Dyke violated the Act or perpetrated a fraud on his clients with regard to the replacement transactions at issue. View "Van Dyke v. White" on Justia Law

The Second Circuit affirmed the district court's order granting MetLife a preliminary injunction barring defendant from arbitrating his claims before the Financial Industry Regulatory Authority (FINRA). The court held that the district court did not err in holding that the question of whether MetLife was obligated to arbitrate the dispute was to be decided by the court, rather than the arbitrator.Furthermore, the district court did not err by holding that MetLife was not required by the FINRA arbitration code to arbitrate claims arising out of events that occurred long after MetLife's withdrawal from FINRA's predecessor, the National Association of Securities Dealers (NASD). The court held that the arbitration code did not apply to a dispute based on events that occurred years after the parties had severed their connections with the NASD. In this case, the court found nothing in the Code that clearly and unmistakably evidenced a contractual intent to confer resolution of arbitrability on the arbitrators for a claim such as defendant's, which was based on facts long subsequent to the parties' involvement in the NASD. View "Metropolitan Life Insurance Co. v. Bucsek" on Justia Law

COR, a securities clearing and settlement firm, filed suit against Calissio seeking to recover losses resulting from a dividend transaction that it has not already recovered in other proceedings. The Eighth Circuit affirmed the district court's grant of summary judgment dismissing all claims against SST (the transfer agent) and the Broker Defendants. The court held that the transfer agent had no knowledge of a misrepresentation in the use of a seemingly appropriate "CUSIP" number for additional shares of the same class as existing shares and the transfer agent reasonably relied on attorney opinion letters in issuing the new shares. Furthermore, COR failed to show it reasonably relied on the transfer agent's alleged misrepresentation. Accordingly, the transfer agent was entitled to judgment on plaintiff's fraudulent misrepresentation claims.The court also held that the district court properly dismissed claims against the Broker Defendants. In this case, COR has no conversion claim against the Broker Defendants, who simply acted as pass-through agents of the buyers in receiving and distributing due bill credits. Likewise, COR's unjust enrichment claim failed because the Broker Defendants received due bill credits from DTC for the benefit of their account holders and passed the benefit to their account holders without delay. View "COR Clearing, LLC v. Calissio Resources Group, Inc." on Justia Law

After the merger of RCA and AFIN, RCA shareholders filed suit alleging that the proxy statement was false and misleading under federal securities laws. In this case, the shareholders alleged that the proxy statements and omissions regarding (A) the AFIN NAV; (B) the sale of the Merrill Lynch properties; (C) SunTrust Bank; and (D) the AFIN Standalone Projections were materially misleading.The Fourth Circuit affirmed the district court's dismissal of the claims, holding that the statements the shareholders complained of were not false or misleading and the alleged omissions were addressed by narrowly tailored warning language. View "Paradise Wire & Cable Defined Benefit Pension Plan v. Weil" on Justia Law

The Second Circuit affirmed the district court's order requiring defendant to pay a civil penalty of almost $93 million in a civil suit brought by the SEC. Defendant was the managing general partner and portfolio manager of Galleon Management and its affiliated hedgefunds. Defendant was found to have executed trades in Galleon's accounts and in the account of Rajiv Goel, an Intel executive who had provided tips to defendant, in the stock of five companies on the basis of inside information.The court held that a plain reading of Section 21A(a)(2) of the Securities and Exchange Act indicates that it permits a civil penalty to be based on the total profit resulting from the violation. In this case, defendant executed Galleon's and Goel's illegal trades and thus his civil penalty could be calculated under subsection (a)(2) based on the profit gained or loss avoided as a result of defendant's unlawful purchases and sales. The court also held that the district court did not abuse its discretion by determining that every factor in SEC v. Haligiannis, 470 F. Supp. 2d 373, 386 (S.D.N.Y. 2007), favored the use of a treble penalty. View "SEC v. Rajaratnam" on Justia Law

The Second Circuit affirmed the district court's dismissal of a class action alleging violations of federal securities laws by Cigna and its officers. Plaintiffs alleged that certain of defendants' statements were materially misleading, constituting fraud under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5.The court held that the statements were not materially misleading, because they were tentative and generic, emphasizing the complex and evolving regulatory environment Cigna faced. Therefore, plaintiffs failed to plausibly allege that a reasonable investor would view these statements as having significantly altered the total mix of information made available. In this case, the statements at issue in Cigna's Code of Ethics were a textbook example of puffery, and a reasonable investor would not rely on the 2013 and 2014 Form 10-K statements as representations of satisfactory compliance. View "Singh v. Cigna Corp." on Justia Law

A shareholder of Transgenomic filed a class action against former shareholders, alleging materially misleading statements and omissions in the proxy statement. The Eighth Circuit reversed the district court's ruling that any omissions or misstatements in the proxy statement were not materially misleading, and held that the district court improperly resolved the materiality of the omission as a matter of law. The court also held that issues regarding whether a revenue table was misleading were also questions for the trier of fact. Finally, plaintiff's section 20(a) of the Securities Exchange Act allegation was sufficiently pled. Accordingly, the court remanded for further proceedings. View "Campbell v. Transgenomic, Inc." on Justia Law