Huntley v. Chicago Board of Options Exchange
Huntley v. Chicago Board of Options Exchange
Opinion of the Court
Plaintiff Sterling Huntley filed a two-count amended complaint on behalf of himself and all others similarly situated against Defendants Chicago Board of Options Exchange (“CBOE”), Options Clearing Corporation (“OCC”), and John Doe (Market Maker). The original complaint was filed on June 1, 2015 in the Northern District of Georgia, but the ease was transferred to this district on September 23, 2015. The amended complaint alleges violations of the Securities Exchange Act (“the Act”), as well as fraud and unfair business practices under Georgia law. Currently ripe for decision is the motion to dismiss previously filed by Defendants on July 9, 2015, before the case was transferred to this Court. For the reasons set forth below, the Court now grants Defendants’ motion to dismiss.
LEGAL STANDARD
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g., Hollinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While “detailed factual allegations” are not required, “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. The complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “ ‘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.’ ” Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). In applying this standard, the Court accepts all well-pleaded facts as true and-draws all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.
BACKGROUND
The well-pleaded facts of the complaint, accepted as true for purposes of this motion, show the following. Plaintiff Huntley is a resident of Georgia who purchased stock options on the Chicago Board of Options Exchange. R. 9 (Compl., ¶ 3).
In November 2012, Plaintiff purchased options contracts with funds from two trading accounts held in his ■ name. Id.
Because of the second adjustment made by the OCC, the market value of Plaintiffs options dropped overnight, and Plaintiff suffered significant losses. Id. (Compl., ¶ 24). Plaintiff seeks a declaratory judgment establishing among other things that Defendant John Doe (Market Maker) has been unjustly enriched by the OCC’s adjustments, while Plaintiff and others similarly situated have been harmed. R. 9 at 21 (Prayer for Relief, ¶ f).
DISCUSSION
Defendants have moved to dismiss the complaint based on the doctrine of regulatory immunity. It is well established that self-regulating organizations (“SROs”) are immune “from suit for conduct falling within the scope of the SRO’s regulatory and general oversight functions.” D’Alessio v. N.Y. Stock Exch., Inc., 258 F.3d 93, 105 (2d Cir. 2001). “ ‘[A]bsolute immunity is particularly appropriate in the unique context of the self-regulation of the national securities exchanges,’ where [the exchanges]’ ’perform[ ] a variety of regulatory functions that would, in other circumstances, be performed by [the SEC].” Id. (quoting Barbara v. N.Y. Stock Exch., Inc., 99 F.3d 49, 59 (2d Cir. 1996) (emphasis added)).
The [SRO] thus stands in the shoes of the SEC in carrying out these functions. Because the SEC would enjoy absolute immunity from suit if it carried out these responsibilities itself, SROs have similar immunity when exercising functions delegated to them by the SEC. Moreover, absolute immunity must be absolute, because only such immunity can protect regulatory agencies from the fear of burdensome damage suits that would inhibit the exercise of their independent judgment.
Dexter v. Depository Trust & Clearing Corp., 406 F.Supp.2d 260, 263 (S.D.N.Y. 2005) (internal quotation marks and citations omitted), aff'd, 219 Fed.Appx. 91 (2d Cir. 2007).
“The term ‘self-regulatory organization’ means any national securities exchange, registered securities association, or registered clearing agency....” 15 U.S.C. § 78c(a)(26). Plaintiff admits that the CBOE and the OCC are SROs. See R. 9 (Compl., ¶ 4) (alleging that the CBOE is a national securities • exchange registered with the SEC); id. (Compl., ¶ 7) (alleging that the “OCC operates under the jurisdiction of both the SEC and the Commodity Futures Trading Commission (‘CFTC’),” and that, “[a]s a registered clearing agency under SEC jurisdiction, [the] OCC clears transactions for exchange-listed options, security futures and Over-the-Counter options”).
Plaintiffs conclusory allegation that Defendants were not acting within the scope of their regulatory functions does
The purpose of absolute immunity is to protect all conduct of an SRO from liability, so long as the conduct arises out of the discharge of its duties under the Exchange Act. Thus, assuming arguendo that the OCC’s methodology in valuing Plaintiffs “put” options after the stock split was “flawed” and that the methodology caused Plaintiffs losses in contravention of the OCC’s “guarantee,” Defendants still enjoy immunity from Plaintiffs claims. As the Second Circuit explained, “immunity depends only on whether specific acts and forbearances were incident to the exercise of regulatory power, and not on the propriety of those actions or inactions. Indeed, if .. .immunity only attaches to those who follow the law, the immunity doctrine would be effectively subverted. After all, individuals characteristically do not bring suit alleging an SRO is obeying its statutory and legal obligations; they bring suit alleging an SRO is violating the law or acting inconsistently with its legal obligations.” In re NYSE Specialists Sec. Lit., 503 F.3d 89, 98 (2d Cir. 2007) (emphasis in original); see also Dexter, 406 F.Supp.2d at 263 (“There would be no point to an immunity that only protected actions that were in any event correct. Since absolute immunity must be absolute, it must protect even actions that a plaintiff could ultimately establish were in violation of law.”) (internal quotation marks and citation omitted).
Plaintiff appears to acknowledge that his claims fall generally within the regulatory immunity principle discussed above but argues for an exception based on what he claims to be unique circumstances. According to Plaintiff, the adjustment formula used by the OCC is so flawed that if the formula adjustment were to be applied to any “put” option enough times, the ultimate effect of those multiple adjustments would be to render the “put” option completely worthless. Plaintiff argues that, because the OCC’s adjustment formula has the potential to destroy all value in all “put” options, it is tantamount to fraud. But again, this argument runs directly against the rationale for the regulatory immunity doctrine as discussed in the ease law cited above. If courts were to allow a fraud exception to the doctrine of regulatory immunity, the exception would swallow the rule. See, e.g., In re NYSE Specialists Sec. Lit., 503 F.3d at 98 n. 3 (rejecting argument that “absolute immunity is inappropriate where an SRO has either recklessly permitted or knowingly fostered wrongdoing and fraud”); DL Capital Group, LLC v. Nasdaq Stock Market, Inc., 409 F.3d 93 98 (2d Cir. 2005) (“precedent, not to mention common sense, strongly militates against carving out a ‘fraud’ exception to SRO immunity”); see also Sparta Surgical Corp. v. Nat’l Ass’n of Secs.
Moreover, such an exception would be particularly inappropriate here, where the actions challenged by Plaintiff presumably resulted in both winners and losers in the marketplace, and where Plaintiff does not allege that the challenged actions conferred any particular benefit on Defendants.
Plaintiff cites to Weissman v. National Association of Securities Dealers, Inc., 500 F.3d 1293, 1297 (11th Cir. 2007), for the proposition that SROs do not have complete immunity from lawsuits. While Plaintiff is correct that the case law draws a line between immune and non-immune conduct, the relevant question for this Court is which side of the immunity line the conduct at issue here falls. To avoid Defendants’ regulatory immunity, Plaintiff would have to allege facts plausibly showing that Defendants were “acting in [their] own interests] as [] private entities],” id (internal quotation marks and citations omitted), as opposed to within the ambit of
CONCLUSION
Defendants’ motion to dismiss raises several issues other than regulatory immunity, but the Court need not address those other issues. The amended complaint is barred by the doctrine of regulatory immunity, and, accordingly, Defendants’ motion to dismiss [R. 23] is granted.
. Options contracts are securities that give investors the right to buy or sell specific securities at a specified price within a specified time. R. 9 (Compl., ¶ 15).
. A "put” option gives the holder the right to sell the stock at the "strike price” during the life of the option. R. 9 (Compl., ¶ 15). "LEAPS” are Long-Term Equity Anticipation Securities Options, which means an option contract that expires one year or more in the future. Id. Thus, the options Plaintiff purchased gave him the right to sell shares of UVXY at $1.00 per share until the options expired in January 2015.
. A reverse stock split is a corporate action in which a company reduces the number of shares of stock and increases the share price of the stock proportionately. R. 9 (Compl., ¶ 15).
. A "market maker” is “an exchange member whose function is to aid in the making of a market, by making bids and offers for his account in the absence of public buy or sell orders.” R. 9 (Compl., ¶ 9); see also Citadel Sec., LLC v. Chi. Bd. Options Exch., 808 F.3d 694, 694 (7th Cir. 2015) (where plaintiffs were the "market makers,” defined by the court as "securities firms and members of the exchanges!,] [who] operate... under the exchanges’ rules... [to] compete for customer order flow by displaying buy and sell quotations for particular stocks”). Plaintiff alleges that the identity of the market maker or makers for the particular security at issue in this case will be uncovered in discovery. R. 9 (Compl., ¶ 9). Because Defendant John Doe (Market Maker) has not yet been identified or served, references herein to "Defendants” are to the two exchange defendants who have appeared in this matter.
. See also In re Stock Exchs. Options Trading Antitrust Litig., 317 F.3d 134, 139 (2d Cir. 2003) (discussing the history of the SEC’s regulation of options trading on securities exchanges, including the CBOE); Chi. Bd. Options Exch., Inc. v. Int’l Sec. Exch., LLC, 2007 WL 604984, at *1-2 (N.D.Ill. Feb. 23, 2007) (the "CBOE operates a national securities exchange and specializes in the trading of standardized securities options,” and the "OCC is the sole issuer of standardized options contracts traded by U.S. options exchanges”); id. at *2 ("[a]ll standardized securities options must be traded on a national securities exchange registered with and regulated by the United States Securities and Exchange Commission”).
. The Court notes that correspondence to Plaintiff from Defendants attached to the complaint acknowledges Plaintiffs arguments for why the formula used by the OCC in calculating adjustments may have disproportionately caused losses to certain classes of market participants. The correspondence notes that Plaintiff's concerns have been brought to the attention of the Securities Committee of the OCC, which makes the adjustment decision. Balancing the respective interests of market participants is more appropriately done in the context of regulatory rule-making rather than civil litigation because the latter, by its nature, takes into account only the interests of the private litigants who are before the court.
. The OCC's By-Laws are referenced in the complaint (R. 9 at 21), and available at http:// www.optionsclearing.com/components/docs/ lega!/rules_and_bylaws/occ_bylaws.pdf. They provide in relevant part that "all adjustments to the terms of outstanding cleared contracts shall be made by the Securities Committee [of the OCC], which shall determine whether to make adjustments to reflect particular events in respect of an underlying interest, and the nature and extent of any adjustment, based on its judgment as to what is appropriate for the protection of investors and the public interest_” OCC By-Laws, Section 11(a) (R. 23-2 at 2). The OCC's adjustment decisions are "within the sole discretion of the Securities Committee,” and are "conclusive and binding on all investors and not subject to review.” OCC By-Laws, Section 11(b) (R. 23-2 at 2). "The Securities Committee may, in addition to determining adjustments on a case-by-case basis, adopt statements of policy or interpretations having general application to specified types of events or specified kinds of cleared contracts.” OCC By-Laws, Section 11(a) (R. 23-2 at 2). Section 11A of the By-Laws, which is the provision Plaintiff challenges, is an example of a specific adjustment formula adopted by the Securities Committee to apply in the situation, among others, where the underlying security undergoes either a stock split or a reverse stock split. See R. 23-2 at 4.
. Compare Weissman, 500 F.3d at 1299 (advertisements alleged by the complaint were in furtherance of exchange's "private business activity”); In re Barclays Liquidity Cross & High Frequency Trading Litig., 126 F.Supp.3d 342, 357, 2015 WL 5052538, at *10 (S.D.N.Y. Aug. 26, 2015) (exchange’s provision of co-location services held comparable to "the provision of commercial products and services that courts have held not to be protected by absolute immunity in other cases”); In re Facebook, Inc. IPO Sec. & Derivative Litig., 986 F.Supp.2d 428, 452 (S.D.N.Y. 2013) (denying absolute immunity with respect to an exchange's design of software and promotion of its ability to facilitate an initial public offering); Platinum Partners Value Arbitrage Fund, Ltd. P’ship v. Chi. Bd. of Options Exch., 364 Ill.Dec. 137, 976 N.E.2d 415, 424 (2012) (denying immunity where plaintiff alleged that "defendants CBOE and OCC knowingly shared the information about the price adjustment with only certain market participants, [ ] allowing] those participants to profit from that information by selling the IFN put options to plaintiff, which was unaware of the looming price reduction”); see also Kundrat v. Chi. Bd. Options Exch., 2002 WL 31017808, at *8-9 (N.D.Ill. Sept. 6, 2002) (where plaintiffs alleged, inter alia, that the SRO defendants attempted to prevent the plaintiffs from earning substantial trading profits by imposing severe reporting requirements on the plaintiffs' clearing firms and circulated to clearing firms a blacklist letter, which allegedly falsely accused the plaintiffs of potential trading abuses, court deferred ruling on regulatory immunity argument and denied the defendant SROs’ motion to dismiss with leave to reassert that argument later because the court thought it was unclear, at that stage of the proceeding, whether the defendant SROs were performing regulatory acts).
Reference
- Full Case Name
- Sterling HUNTLEY, individually and on behalf of all others similarly situated v. CHICAGO BOARD OF OPTIONS EXCHANGE Options Clearing Corporation and John Doe (Market Maker)
- Status
- Published