Justia Securities Law Opinion SummariesArticles Posted in US Court of Appeals for the Second Circuit
Cavello Bay Reinsurance Ltd. v. Stein
The Second Circuit affirmed the district court's dismissal of Cavello Bay's claims of securities fraud for failure to plead a domestic application of the law. The court assumed without deciding that the transaction was "domestic," and agreed with the district court that Cavello Bay's claims are predominantly foreign under Parkcentral Global HUB Ltd. v. Porsche Automobile Holdings SE, 763 F.3d 198 (2d Cir. 2014). In this case, the claims are based on a private agreement for a private offering between a Bermudan investor (Cavello Bay) and a Bermudan issuer (Spencer Capital); Cavello Bay purchased restricted shares in Spencer Capital in a private offering; and the shares reflect only an interest in Spencer Capital, and they are listed on no U.S. exchange and are not otherwise traded in the United States. The court explained that it is not enough for Cavello Bay to allege that Spencer Capital made a misstatement from New York (through defendant); planned to use the funds to invest in U.S. insurance services; had its principal place of business and CEO and directors in New York; and was managed by a U.S. company. The court concluded that the contacts that matter are those that relate to the purchase and sale of securities. View "Cavello Bay Reinsurance Ltd. v. Stein" on Justia Law
United States Securities and Exchange Commission v. Alpine Securities Corp.
The SEC filed a civil enforcement action against Alpine, a registered broker-dealer specializing in penny stocks and micro-cap securities, claiming that Alpine's failure to comply with the reporting requirements for filing Suspicious Activity Reports (SARs) violated the reporting, recordkeeping, and record retention obligations under Section 17(a) of the Securities Exchange Act of 1934 (Exchange Act), and Rule 17a-8 promulgated thereunder. The district court granted in part and denied in part the SEC's motion for summary judgment and denied Alpine's motion for summary judgment.The Second Circuit affirmed the district court's judgment, holding that the SEC has authority to enforce Section 17(a) of the Exchange Act through this civil action; Rule 17a-8, which requires compliance with Bank Secrecy Act requirements, is a reasonable interpretation of Section 17(a); Rule 17a-8 does not violate the Administrative Procedure Act; the district court did not err in granting summary judgment with respect to the SARs; and, in imposing the civil penalty, the district court did not abuse its discretion. View "United States Securities and Exchange Commission v. Alpine Securities Corp." on Justia Law
Packer v. Raging Capital Management, LLC
The district court granted summary judgment for plaintiff in a derivative suit on behalf of 1-800-Flowers.com against Master Fund, ruling that Master Fund was the beneficial owner of more than ten percent of the shares of 1-800-Flowers, Inc., which were bought and sold within a period of six months, and requiring Master Fund to disgorge $4,909,393 in short-swing profits for violating section 16(b) of the Securities Exchange Act of 1934. Master Fund appealed and plaintiff cross-appealed.The Second Circuit concluded that factual questions remain on the issue of Master Fund's beneficial ownership and therefore remanded. In this case, RCM is a registered investment advisor; Master Fund, Offshore, and QP are customers of RCM; and William C. Martin holds positions in RCM, Master Fund, and Offshore, and indirectly has a role in QP. The relationship among RCM, Master Fund, Offshore, and QP is governed by an Investment Management Agreement (IMA), which was signed by Martin on behalf of all four parties to the agreement.The court concluded that it would be inconsistent with principles concerning section 16(b) of the Securities Exchange Act of 1934 to accept the district court's first reason for rejecting Master Fund's delegation of voting and investing authority to RCM. The court explained that, although Rule 13d-3(a) includes within the definition of a beneficial owner "any person who, directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise has" voting or investment authority, 17 C.F.R. 240.13d-3(a), using generalized wording such as "intertwined" or "not unaffiliated" to bring a person within the coverage of Rule 13d-3(a) would extend the reach of section 16(b) beyond the text of both the statute and the rule. The court also concluded that making an investment advisor a customer's agent for the specified purpose of carrying out the advisor's traditional functions for a customer does not make the advisor an agent for all purposes. Finally, the court concluded that there remains to be determined as a factual matter whether, under all the relevant circumstances, Martin is in control of Master Fund and the feeder funds with authority to commit these entities to altering or terminating the IMA. View "Packer v. Raging Capital Management, LLC" on Justia Law
Yukos Capital S.A.R.L. v. Feldman
A jury found that defendant had, through his actions in two distinct schemes, breached his fiduciary duty to Yukos, YHIL, Foundation 1, and Foundation 2 (collectively, the "Yukos Group"), as well as Mark Fleischman, as Trustee of the 2015 Security Trust, as successor in interest to the 2014 Security Trust. In this case, neither the Yukos Group nor Fleischman had sought compensatory damages for defendant's alleged breaches, and the jury declined to award them any disgorgement of defendant's compensation pursuant to New York's faithless servant doctrine. Therefore, the district court awarded the Yukos Group entities and Fleischman each $1 in nominal damages (for a total of $5).The Second Circuit affirmed the district court's grant of summary judgment to David Godfrey, its non-imposition sanctions, and its decision to instruct the jury as it did regarding the standard for disgorgement of a faithless servant's compensation. However, the court concluded that Foundation 1 and Foundation 2 failed to prove breach of fiduciary duty claims against defendant. Accordingly, the court reversed the district court's denial of defendant's Federal Rule of Civil Procedure 50 motion for judgment as a matter of law as to them. View "Yukos Capital S.A.R.L. v. Feldman" on Justia Law
In re: Bernard L. Madoff Investment Securities LLC
After the Bernie Madoff Ponzi scheme collapsed, Picard was appointed under the Securities Investor Protection Act, 15 U.S.C. 78aaa (SIPA), as the liquidation trustee for Bernard L. Madoff Investment Securities LLC (BLMIS). The Act established a priority system to make customers of failed brokerages whole before other general creditors. Where customer property is insufficient to satisfy customers' claims, the trustee may recover property transferred by the debtor that would have been customer property but for the transfer if and to the extent that the transfer is void or voidable under the Bankruptcy Code. 15 U.S.C. 78fff–2(c)(3). The provisions of the Bankruptcy Code apply only to the extent that they are consistent with SIPA.Picard attempted to recover transfers of money that the defendants had received from BLMIS in excess of their principal investments. The defendants are BLMIS customers who were unaware of the fraud but profited from it by receiving what they thought were legitimate profits; the funds were actually other customers' money. The Second Circuit affirmed summary judgment in favor of Picard. The Bankruptcy Code affirmative defense that permits a transferee who takes an interest of the debtor in property "for value and in good faith" to retain the transfer to the extent of the value given does not apply in this SIPA liquidation. The transfers were not "for value" and recovery would not violate the two-year limitation. View "In re: Bernard L. Madoff Investment Securities LLC" on Justia Law
Metzler Investment GmbH v. Chipotle Mexican Grill, Inc.
After the district court granted defendants' Federal Rule of Civil Procedure 12(b)(6) motion to dismiss with prejudice plaintiffs' second amended complaint alleging violations of the federal securities laws and entered judgment for defendants, plaintiffs brought a motion under Federal Rules of Civil Procedure 59(e) and 60(b) for relief from the judgment and for leave to file a third amended complaint.The Second Circuit affirmed the district court's denial of the motion and held that plaintiffs are not entitled to relief under Rules 59(e) and 60(b). The court held that the district court applied the correct legal standard to plaintiffs' post-judgment motion by considering whether plaintiffs were entitled to relief under Rules 59(e) or 60(b), and committed no abuse of discretion in denying the motion on the grounds that plaintiffs had failed to identify an adequate basis for relief pursuant to those rules. In this case, plaintiffs failed to proffer any newly discovered evidence that would entitle them to relief under Rules 59(e) or 60(b) and, even if the purported newly discovered evidence was indeed new, the result would be the same because amendment would be futile. View "Metzler Investment GmbH v. Chipotle Mexican Grill, Inc." on Justia Law
Holtzman v. Omega Healthcare Investors, Inc.
The Second Circuit reversed and remanded the district court's dismissal of plaintiff's putative class action claims against Omega under Section 10(b) and 20(a) of the Securities Exchange Act of 1934. Plaintiffs alleged that Omega misled investors by failing to disclose a $15 million working capital loan it made to one of its major tenants, Orianna, and that the omission hid from investors the true magnitude of Orianna's solvency problems.The court held that the complaint adequately alleges that Omega acted with scienter in failing to disclose the loan. In this case, Omega's decision not to disclose the loan -- in the context of its disclosures regarding Orianna's financial health -- was a sufficiently extreme departure from the standards of ordinary care to satisfy the Private Securities Litigation Reform Act of 1995's requirement for showing recklessness. The court stated that the allegations in the complaint raise a strong inference that defendants acted, at the very least, recklessly in choosing to disclose incomplete and misleading information regarding Orianna. Furthermore, the facts as alleged create a compelling inference that defendants made a conscious decision to not disclose the loan in order to understate the extent of Orianna's financial difficulties. View "Holtzman v. Omega Healthcare Investors, Inc." on Justia Law
Nguyen v. NewLink
Plaintiffs filed a class action under S.E.C. Rule 10b-5, 17 C.F.R. 240.10b-5, following the failure of NewLink's Phase 3 clinical trial for a novel pancreatic cancer drug and the resulting decline in the market value of NewLink shares.The Second Circuit held that defendants' statements about the efficacy of their pancreatic cancer drug were puffery, not material misrepresentations. However, the court held that plaintiffs plausibly pled material misrepresentation and loss causation for defendants' statements about the scientific literature and the design of their clinical trial. Therefore, the court affirmed the district court's dismissal in part regarding the 2013-2016 Assessments; vacated the dismissal in part regarding the September, March, and Enrollment statements; and remanded for further proceedings. View "Nguyen v. NewLink" on Justia Law
XY Planning Network, LLC v. Securities Exchange Commission
The Second Circuit denied a petition for review, under the Administrative Procedure Act, of Regulation Best Interest, which creates new standards of conduct for broker-dealers providing investment services to retail customers. Petitioners claimed that Regulation Best Interest is unlawful under the 2010 Dodd Frank Wall Street Reform and Consumer Protection Act.The court held that Ford Financial Solutions has Article III standing to bring its petition for review. The court also held that the SEC lawfully promulgated Regulation Best Interest pursuant to Congress's permissive grant of rulemaking authority under Section 913(f) of the Dodd-Frank Act. Finally, the court held that Regulation Best Interest is not arbitrary and capricious, holding that the SEC's interpretation of the scope of the broker-dealer exemption was not so fundamental to Regulation Best Interest as to make the rule arbitrary and capricious, or otherwise not in accordance with law. Furthermore, the SEC gave adequate reasons for its decision to prioritize consumer choice and affordability over the possibility of reducing consumer confusion, and it supported its findings with substantial evidence. View "XY Planning Network, LLC v. Securities Exchange Commission" on Justia Law
Adar Bays, LLC v. GeneSYS ID, Inc.
The Second Circuit certified two questions to the New York Court of Appeals: 1) Whether a stock conversion option that permits a lender, in its sole discretion, to convert any outstanding balance to shares of stock at a fixed discount should be treated as interest for the purpose of determining whether the transaction violates N.Y. Penal Law 190.40, the criminal usury law. 2) If the interest charged on a loan is determined to be criminally usurious under N.Y. Penal Law 190.40, whether the contract is void ab initio pursuant to N.Y. Gen. Oblig. Law 5-511. View "Adar Bays, LLC v. GeneSYS ID, Inc." on Justia Law