Liu v. Credit Suisse First Boston Corp.
Liu v. Credit Suisse First Boston Corp.
Opinion of the Court
OPINION AND ORDER
I. INTRODUCTION
Although this case is included in the coordinated In re Initial Public Offering Securities Litigation proceedings, it arises from a very different set of allegations. Plaintiffs’ allegations are set forth at length in my Opinion of June 8, 2004.
While defendants make several arguments in support of their contention that plaintiffs’ complaint should be dismissed, one particular argument—that plaintiffs’ causation allegations are flatly contradicted by objective fact—is pivotal. If plaintiffs fail to allege that defendants’ scheme actually caused their losses, then other questions about the sufficiency of the complaint are irrelevant.
II. FACTS
A. The Parties
Plaintiffs allege that the following named plaintiffs purchased securities of various issuers in the open market during each relevant Subclass Period:
Defendant Credit Suisse First Boston Corp. (“CSFBC”) is a Massachusetts corporation doing business as an investment bank, and was at all relevant times a registered broker-dealer and member of the National Association of Securities Dealers, Inc. (“NASD”).
Plaintiffs name as defendants five of the fourteen Issuers (the “Issuer Defendants”), to wit: Efficient Networks, eMachines, Lightspan, Tanning, and
B. The Alleged Scheme
Plaintiffs allege that, while marketing then- services to prospective Issuers, the CSFB defendants introduced a scheme called “Pop and Performance,” which is referenced by name on at least one marketing slide used by defendants.
C. The Alleged False Statements
Plaintiffs attach to their complaint a thick volume compiling alleged misstatements made by defendants in connection with the revenue forecasts contained in Sales Memos and research reports issued by the CSFB defendants.
Plaintiffs further attach one of two labels to each of their alleged misrepresentations.
D. Causation
Plaintiffs allege that “[t]he purposes [sic] and effect of [the alleged] scheme was to create the illusion of ever rising stock prices.”
Plaintiffs allege that this scheme did not continue indefinitely; the fraud effectively ended when one of three events occurred: (1) the Issuer reported quarterly revenues that failed to exceed projected revenues; (2) the company announced prior to a full quarterly report that its revenues would not meet projected revenues; or (3) analysts revised downward their own published estimates (collectively, “Disclosing Events”).
III. LEGAL STANDARD
A. Standard of Review
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a motion to dismiss should be granted only if “ ‘it appears beyond doubt that the plaintiff[s] can
B. Judicial Estoppel
The doctrine of judicial estoppel prevents a party from asserting a factual position in a legal proceeding that is contrary to a position previously taken in a prior legal proceeding.
C. Section 10(b) and Rule 10b-5
1. Pleading Standard
To state a prima facie case for securities fraud under section 10 of the Exchange Act
Securities fraud actions are subject to the heightened pleading requirements of Federal Rule of Civil Procedure 9(b).
A plaintiff may also bring a 10b-5 claim alleging “market manipulation”—a term that, in the context of the securities laws, refers “generally to practices, such as wash sales, matched orders, or rigged prices, that are intended to mislead investors by artificially affecting market activity.”
2. Bespeaks Caution
Under the “bespeaks caution” doctrine, a misrepresentation or omission contained in a registration statement will be considered immaterial if the registration statement contains cautionary language sufficiently specific to render reliance on the false or omitted statement unreasonable.
Cautionary language in securities offerings is just about universal. Thus, the key question a district court must decide when determining whether to grant a motion to dismiss a securities fraud complaint is whether plaintiffs have overcome the existence of such language. Plaintiffs may do this by showing, for example, that the cautionary language did not expressly warn of or did not directly relate to the risk that brought about plaintiffs’ loss.55
3. Transaction Causation and Loss Causation
To maintain a claim for securities fraud, a plaintiff must plead, among other things, both (1) that it relied upon defendant’s allegedly fraudulent conduct in purchasing or selling securities, and (ii) that defendant’s conduct caused, at least in part, plaintiffs loss.
“Transaction causation is generally understood as reliance.”
Succinctly put: “The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business.... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.... The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations.”58
Pleading that defendants perpetrated a fraud on the market, therefore, fulfills a plaintiffs transaction causation pleading requirement. Reliance may also be presumed in cases based on omissions if plaintiffs can show that such omissions were
Loss causation, on the other hand, refers to the requirement that a plaintiff demonstrate that the fraudulent scheme caused her loss.
In the Second Circuit, “in misrepresentation cases, a plaintiff must allege something more than merely artificial inflation [to plead loss causation adequately].”
In market manipulation cases, however, the plaintiffs burden is somewhat different, because of the nature of the artificial inflation caused by manipulative conduct.
Market manipulation is a discrete act that influences stock price. Once the manipulation ceases, however, the information available to the market is the same as before, and the stock price gradually returns to its true value. For example, suppose that a bank manipu*578 lates the market for a stock by engaging in ‘wash sales,’ fictitious trading for the purpose of creating a false appearance of activity. By creating an appearance of increased trading volume, wash sales may drive up the price of a security. Once the wash sales cease, ordinary trading resumes. The spectre of wash sales may continue to affect the stock price for some time as investors recall the recent increased activity and observe the higher price; over time, however, the security will fall back to its true investment value.... In market manipulation cases, therefore, it may be permissible to infer that the artificial inflation will inevitably dissipate.66
The United States Supreme Court is now considering what pleading standard should be applied to allegations of loss causation.
IV. DISCUSSION
A. The Alleged Scheme
The parties devote dozens of pages of briefing to a relatively simple question: exactly what type of fraudulent conduct do plaintiffs allege?
The stakes in this semantic dispute are high. If plaintiffs’ alleged losses were caused by market manipulation, rather than by misstatements and omissions, then plaintiffs face a lighter burden in pleading their claims.
Market manipulation cases are treated differently in large part because the method of generating demand in the marketplace is secretive and difficult for an investor to detect.
Similarly, when market manipulation is the cause of artificial inflation, pinpointing a “disclosing event” at which point all the artificial inflation leaves the market price of a security is difficult. Because the initial manipulation occurred in secret, artificial inflation can be presumed to dissipate gradually as investors analyze all available information, including the return to normal levels of market activity, and come to realize that the stock is overvalued.
Plaintiffs’ allegations do not present the pleading difficulties present in true market manipulation cases. All of the actions that plaintiffs claim affected market beliefs took the form of publicly available statements about the Issuers’ prospects and revenues. Similarly, plaintiffs allege that the materially misleading information was corrected by “Disclosing Events,” at which point “[e]ach Issuer’s stock price suffered substantially” and “the fraudulently induced expectation of continuing upside surprises ended.”
While plaintiffs bring no claims pursuant to the Securities Act of 1933 (the “Securities Act”)
1. Judicial Estoppel
Defendants argue that because of certain representations made in plaintiffs’ submissions in connection with their motion for leave to amend, plaintiffs are judicially estopped from now relying on IPO underpricing as the basis for their claimed damages. Defendants rest their argument on the following passage from plaintiffs’ moving papers:
While it is true that Plaintiffs do provide in their Amendment references to certain background facts or adjunct activities that may be fraudulent—in particular, the deliberate under pricing of Issuer Defendants’ IPOs—those references are neither the basis for Plaintiffs’ claims of alleged fraud, nor the basis for the damages that Plaintiffs seek to recover.88
Defendants are correct. Plaintiffs may not assert any claims arising solely from the alleged underpricing of the Issuers’ IPOs.
The Issuers’ prospectuses each assert that the offering prices were determined after negotiations between the Issuer and the CSFB defendants, and list factors that were taken into consideration in setting the offering price.
Defendants are correct. Every one of the prospectuses contains pages of warnings counseling investors not to rely on the offering documents as any indication of the ultimate market value of the securities.
Our quarterly operating results are subject to fluctuations and seasonality that make it difficult to predict our future performance.
Prior to this offering, there has not been a public market for our common stock. We cannot predict the extent to which investor interest in eMachines will lead to the development of a trading market or how liquid that market might become. The initial public offering price for our shares has been determined by negotiations between us and the representatives of the underwriters and may not be indicative of prices that will prevail in the trading market.
*583 We have a limited operating history upon which you can base an evaluation of our business and prospects. Our prospects must be considered in light of the risks, expenses, and difficulties encountered by companies in their early stage of development. It is likely that in some future quarter our operating results may fall below the expectations of securities analysts and investors. In this event, the trading price of our common stock may fall significantly.97
Each of the prospectuses contains similar cautionary language.
C. Transaction Causation and Loss Causation
Every one of plaintiffs’ six claims for relief is based on plaintiffs’ allegation that “[t]he purposes and effect of [the alleged] scheme was to create the illusion of ever rising stock prices....”
“Though all reasonable inferences are drawn in the plaintiffs favor on a motion to dismiss on the pleadings, ‘conclusions of law or unwarranted deductions of fact are not admitted.’ ”
Defendants have submitted a number of charts summarizing pertinent trading data
If plaintiffs had alleged that defendants had misrepresented material facts about the Issuers’ prospects and that such misrepresentations had “buoyed a price that otherwise would have sunk much faster,”
As defendants note, plaintiffs’ alleged “scheme is largely (if not entirely) coun-terintuitive.”
By contrast, the kind of “reverse psychology” manipulation alleged by plaintiffs here requires more than bare allegations of falsity and materiality. Plaintiffs’ allegations, which rely on the idea that re
However, plaintiffs cannot simply allege that stock prices rose at some point during the class period and infer from that activity that the alleged fraudulent activity actually caused prices to rise or caused investors to buy more shares. Where plaintiffs’ theory of causation depends not just on the content of individual misstatements creating misleading information about market value, but rather on investor beliefs caused by the confluence of depressed projections, conditioning statements, upside surprises and observed increases in stock prices, publicly available trading data directly contradicting plaintiffs’ allegations of price increases can be fatal to plaintiffs’ case. By contrast, plaintiffs’ background allegations that defendants sought to generate quick initial price increases by underpricing IPOs and selectively informing investors of the underpricing are supported by actual immediate growth in each of the Issuers’ market values immediately following their IPOs.
Plaintiffs make much of their argument that they allege a “market manipulation” case, as opposed to one based on misrepresentations. The difference between the type of causation alleged by plaintiffs here and the type that might be alleged by plaintiffs in a hypothetical market manipulation case is illustrative. In a case alleging that trading volume was artificially enhanced by wash sales or escalating purchase agreements, transaction causation springs from the trust investors have in market efficiency-—i.e., the market relies on the price and activity level of the market itself to reflect the real worth of the security. Plaintiffs, though, allege that the market relied on explicit information about the value of the security—not on the objective features of the market—to determine the market price of the Issuers’ securities. Plaintiffs thus may not rely on bare allegations that the market price was manipulated to establish transaction causation; rather, they must allege that the beliefs fostered by defendants’ alleged misstatements and omissions induced reasonable investors to purchase the Issuers’ securities. Under the peculiar allegations of this case, plaintiffs’ burden is even greater, because plaintiffs do not simply allege that the misrepresentations themselves inflated prices, but rather that a complex pattern of necessary steps—depressed projections, conditioning statements, building anticipation, publicity regarding upside surprises, and price increases before and after such surprises—combined to instill a misleading belief in investors. But plaintiffs do not allege facts supporting an inference that such price inflation ever actually happened.
Although the Supreme Court has not yet ruled on exactly what loss causation standard should be applied in the context of a motion to dismiss, no loss causation standard can be satisfied without a basic allegation that defendants’ conduct actually caused some price changes in the stock.
Unlike scienter, which may be pled adequately as to some defendants and inadequately as to others,
V. CONCLUSION
For the foregoing reasons, plaintiffs’ Third Amended Complaint is dismissed with prejudice. A conference to discuss pending motions for sanctions is scheduled for 4:30 P.M. on April 12, 2005, in Courtroom 15C. The Clerk is directed to close these motions (Nos. 15, 19, 22, 24, 26 and 31 on the docket sheet).
SO ORDERED.
. See In re Initial Public Offering (“In re IPO") Sec. Litig., 341 F.Supp.2d 328, 329-43 (S.D.N.Y. 2004).
. See Plaintiffs' Third Amended Complaint ("TAC”) ¶ 2 ("Defendants made statements within [] research reports designed to condition the public market to expect ‘upside surprises.' ”).
. See Memorandum of Law in Support of the Motion to Dismiss the Third Amended Complaint of Credit Suisse First Boston Corp., Credit Suisse First Boston (USA), Inc., and Credit Suisse First Boston, Inc. ("CSFB Mem.”); Motion to Dismiss and Incorporated Memorandum of Law of eMachines, Inc. (the "eMachines Mem.”); Tumbleweed Communication Corp.’s Memorandum of Law in Support of Its Motion to Dismiss the Third Amended Complaint ("Tumbleweed Mem.”); Motion to Dismiss and Incorporated Memorandum of Law of Tanning Technology Corp. (the "Tanning Mem.”); Issuer Defendants' Memorandum of Law in Support of their Motion to Dismiss the Third Amended Complaint ("Issuer Mem.”); Memorandum of Law in Support of the Motion to Dismiss the Third Amended Complaint of Credit Suisse First Boston and Credit Suisse Group (the "CS Mem.”); Supplemental Motion to Dismiss and Incorporated Memorandum of Law of Tanning ("Tanning Supp. Mem.”).
.In addition to their transaction and loss causation arguments, defendants argue: that the TAC fails to identify any misstatements made by certain defendants, see Issuer Mem. at 5-9, CS Mem. at 4, or plead that any misstatements made by others should be attributed to those defendants, see Issuer Mem. at 10-14; CS Mem. at 4-6; that the TAC inadequately pleads control person liability, see CS Mem. at 6-8; that the TAC inadequately pleads that defendants’ statements were false, see CSFB Mem. at 13-16; that the TAC inadequately pleads scienter as to one or more defendants, see CSFB Mem. at 16-24; Issuer Mem. at 15-20; eMachines Mem at 3-4; that plaintiffs have not properly served CSG, see CS Mem. at 1-4; that the named plaintiffs lack standing with respect to Tanning or Tumbleweed, see Tanning Mem. at 1-2; Tumbleweed Mem. at 1-2; and that plaintiffs fail to allege any non-IPO manipulation of the eMachines market, see eMachines Mem. at 2-3.
. As I have noted, plaintiffs' allegations are set forth at length in my June 8, 2004 Opinion. This section sets forth only those facts that are pertinent to the instant motion.
. See TAC ¶ 53.
. See id. ¶¶ 8-23.
. See id. ¶ 24.
. See id.; Ex. A to TAC.
. See id. ¶¶ 25-26.
. See id. ¶ 27.
. See id.
. See id. ¶ 28.
. Id.
. See id. ¶ 73.
. See id.
. See id.
. See id. ¶ 62.
. 15 U.S.C. § 78 etseq.
. See Plaintiffs’ Attached Exhibits to [Third] Amended Complaint ("TAC Exhibits”). The TAC Exhibits comprise five exhibits and four pages of introductory text, entitled "Index Key.” Citations are to the Index Key unless otherwise noted.
. Id. at 1-3.
. Id. at 3.
. See id. at 4.
. Id.
. See Ex. C to TAC Exhibits.
. TAC ¶¶ 256, 267. Plaintiffs’ remaining four claims for relief all arise under section 20(a) of the Exchange Act and depend upon plaintiffs’ 10b-5 claims, both of which explicitly allege that the scheme produced “the illusion of ever-rising stock prices.’’ See id. ¶¶ 276-294.
. See id. ¶ 218.
. See id. ¶¶ 220-222.
. Id. ¶ 223.
. See id. ¶¶ 224-225.
. See id. ¶¶ 53, 225.
. See id. ¶¶ 226-227.
. Weixel v. Board of Educ. of New York, 287 F.3d 138, 145 (2d Cir. 2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
. Levitt v. Bear Steams & Co., Inc., 340 F.3d 94, 101 (2d Cir. 2003) (quotation marks and citations omitted).
. See Chambers v. Time Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002).
. See id. at 152-53; In re IPO, 241 F.Supp.2d 281, 331 (S.D.N.Y. 2003).
. Ganino v. Citizens Utilities Co., 228 F.3d 154, 167 n. 8 (2d Cir. 2000) (citing cases). Accord In re AOL Time Warner, Inc. Sec. and ERISA Litig., 381 F.Supp.2d 192, 2004 WL 992991, at *38 n. 61 (S.D.N.Y. May 5, 2004).
. See New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001); In re Bradlees Stores, Inc., No. 01 Civ. 3934, 2001 WL 1112308, at *10 (S.D.N.Y. Sept. 20, 2001).
. See Seetransport Wiking Trader Schiffarhtsgesellschaft MBH & Co. Kommanditgesellschaft v. Republic of Romania, 123 F.Supp.2d 174, 189 (S.D.N.Y. 2000) (citing United States v. Hussein, 178 F.3d 125, 130 (2d Cir. 1999); Simon v. Safelite Glass Corp., 128 F.3d 68, 71 (2d Cir. 1997); Maharaj v. Bankamerica Corp., 128 F.3d 94, 98 (2d Cir. 1997)).
. AXA Marine and Aviation Ins. (U.K.) Ltd. v. Seajet Indus. Inc., 84 F.3d 622, 628 (2d Cir. 1996).
. 15 U.S.C. § 78j.
. Lawrence v. Cohn, 325 F.3d 141, 147 (2d Cir. 2003) (quoting Ganino, 228 F.3d at 161 (citing cases)).
. Ganino, 228 F.3d at 168 (quoting Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976)).
. Rule 9(b) provides that "[i]n all averments of fraud or mistake, the circumstances concerning fraud and mistake shall be stated with particularity. Malice, intent, knowledge and other condition of mind may be averred generally.” See also In re Scholastic Corp. Sec. Litig., 252 F.3d 63, 69-70 (2d Cir. 2001) (applying Rule 9(b) standard to securities fraud claims).
. Pub.L. No. 104-67, 109 Stat. 737 (1995). See Novak v. Kasaks, 216 F.3d 300, 306 (2d Cir. 2000).
. 15 U.S.C. § 78u-4(b)(1).
. Rombach v. Chang, 355 F.3d 164, 172 (2d Cir. 2004) (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir. 1993)). See also id. ("The PSLRA imposes similar requirements to claims brought under the Exchange Act: 'the complaint shall specify each statement alleged to have been misleading [and] the reason or reasons why the statement is misleading.’ ”) (citing 15 U.S.C. § 78u-4(b)(1)).
. Santa Fe Indus., Inc. v. Green, 430 U.S. 462, 476-77, 97 S.Ct. 1292, 51 L.Ed.2d 480 (1977).
. THC Inc. v. Fortune Petroleum Corp., No. 96 Civ. 2690, 1999 WL 182593, at *3 (S.D.N.Y. Mar. 31, 1999).
. Sabratex Corp. v. Keyser, No. 99 Civ. 8589, 2000 WL 423529, at *4 (S.D.N.Y. Apr.19, 2000) (emphasis added).
. See P. Stolz Family P’ship L.P. v. Daum, 355 F.3d 92, 96 (2d Cir. 2004); see also Halperin v. eBanker USA.com, Inc., 295 F.3d 352, 357 (2d Cir. 2002) ("Certain alleged misrepresentations in a stock offering are immaterial as a matter of law because it cannot be said
. Olkey, 98 F.3d at 5.
. See In re IPO, 358 F.Supp.2d 189, 211-12 (S.D.N.Y. 2004).
. Rubinstein v. Collins, 20 F.3d 160, 171 (5th Cir. 1994).
. Halperin, 295 F.3d at 359.
. See Castellano v. Young & Rubicam, Inc., 257 F.3d 171, 179 (2d Cir. 2001).
. Id. at 186.
. Basic, Inc. v. Levinson, 485 U.S. 224, 241-42, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (alterations in original) (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir. 1986)).
. See Castellano, 257 F.3d at 186; Press v. Chemical Inv. Servs. Corp., 166 F.3d 529, 539 (2d Cir. 1999). See also In re WorldCom, Inc. Sec. Litig., 219 F.R.D. 267, 291 (S.D.N.Y. 2003) (citing Affiliated Ute Citizens v. United States, 406 U.S. 128, 153-54, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972)).
. See Marbury Mgmt., Inc. v. Kohn, 629 F.2d 705, 716-17 (2d Cir. 1980) (Meskill, J„ dissenting) (noting that "a fundamental principle of causation which has long prevailed under the common law of fraud and which has been applied to comparable claims brought under the federal securities acts ... is, quite simply, that the injury averred must proceed directly from the wrong alleged and must not be attributable to some supervening cause.''). In 1995, Congress codified the loss causation requirement in the PSLRA:
In any private action arising under this chapter, the plaintiff shall have the burden of proving that the act or omission of the defendant alleged to violate this chapter caused the loss for which the plaintiff seeks to recover damages.
15 U.S.C. § 78u-4(b)(4).
. See, e.g., Suez Equity Investors, L.P. v. Toronto-Dominion Bank, 250 F.3d 87, 96 (2d Cir. 2001).
. Fogarazzo, 341 F.Supp.2d at 287 (footnote omitted). But see Broudo v. Dura Pharms., Inc., 339 F.3d 933, 938 (9th Cir. 2003) (holding that plaintiffs need only allege that they bought securities at artificially inflated prices to allege loss causation), cert. granted by Dura Pharms., Inc. v. Broudo, — U.S. —, 124 S.Ct. 2904, 159 L.Ed.2d 811 (2004).
. Lentell v. Merrill Lynch & Co., Inc., 396 F.3d 161, 173 (2d Cir. 2005) (emphasis in original) (quoting Suez Equity, 250 F.3d at 95). See also Fogarazzo, 341 F.Supp.2d at 289 (noting that courts have found plaintiffs sufficiently pleaded loss causation where "de-fendantsf] misrepresentations [] went to the value of the security” and that “the ultimate decline in the companies' stock price was attributable to the very thing that the defendants allegedly lied about”). But see Broudo, 339 F.3d at 938.
. Lentell, 396 F.3d at 175.
. The word “manipulative” is "virtually a term of art when used in connection with securities markets. It connotes intentional or wilful conduct designed to deceive or defraud investors by controlling or artificially affecting the price of securities.” Hochfelder, 425 U.S. at 199, 96 S.Ct. 1375.
. In re IPO, 297 F.Supp.2d 668, 674 (S.D.N.Y. 2003) (footnotes omitted).
. See Dura Pharms., Inc. v. Broudo, No. 03-932, cert. granted by Dura Pharms., 124 S.Ct. 2904 (2004), argued Jan. 12, 2005.
. Broudo, 339 F.3d at 938. Broudo is a misrepresentation case. Id. at 935-36. However, the Ninth Circuit has applied a similar standard to cases alleging market manipulation. See, e.g., Polinsky v. MCA, Inc., 680 F.2d 1286, 1290 (9th Cir. 1982) (holding that plaintiffs' market manipulation claims failed to satisfy loss causation requirement because even if the allegedly fraudulent “tender offer had been successful ... then Appellees’ position would not have changed and they would not have made the additional profits they seek”). In any case, any ruling by the Supreme Court in Dura Pharms. will certainly affect the pleading standard for misrepresentation cases like this one.
. See, e.g., Issuer Mem. at 3-5, 32; Plaintiffs' Response in Opposition to Defendants' Motions to Dismiss ("Pl.Opp.”) at 2-16, 20-30, 34, 39-45, 57, 61-64, 74-75; Reply Memorandum of Law in Support of the Motion to Dismiss the Third Amended Complaint of CSFBC, CSFB-USA and CSFBI (“CSFB Reply”) at 2-8; Issuer Defendants' Reply Memorandum of Law in Support of Their Motion to Dismiss the Third Amended Complaint ("Issuer Reply”) at 2-5.
. See, e.g., Pl. Opp. at 2-16, 20-30.
. The acts plaintiffs allege constituted defendants' fraudulent scheme include: issuing prospectuses that omitted "the material fact that Defendants had purposely discounted the IPO price and made limited disclosures of that fact to select IPO investors,” issuing purposefully discounted earnings predictions for the Issuers, and issuing analysts’ reports that deemed the securities subject to "upside surprise”—that is, that the securities would likely exceed defendants' predictions. Id. at 12-13. While plaintiffs have disclaimed any reliance on IPO underpricing in proving their damages, alleged misstatements contained in the Issuers’ prospectuses remain relevant to the
. TAC ¶¶ 1-2.
. Issuer Reply at 3 (quoting PI. Opp. at 10).
. See supra Parts III.C.l (discussing relaxed requirement to plead manipulative acts with particularity), III.C.l.b (discussing relaxed requirement to plead loss causation in market manipulation cases).
. See Santa Fe, 430 U.S. at 476-77, 97 S.Ct. 1292.
. See THC, 1999 WL 182593, at *3.
. See, e.g., In re Executive Telecard, Ltd. Sec. Litig., 979 F.Supp. 1021, 1028 (S.D.N.Y. 1997) (“Under the efficient market hypothesis endorsed by the plurality in Basic v. Levinson, the price of a security reflects all publicly available information.”).
. See, e.g., Greenberg v. Crossroads Systems, Inc., 364 F.3d 657, 662 n. 6 (5th Cir. 2004) ("Therefore, when someone purchases a company’s stock in an efficient market, we can presume that he relied 'on the supposition that the market price is validly set and that no unsuspected manipulation has artificially inflated the price.' ”) (alteration omitted) (quot
. See THC, 1999 WL 182593, at *3.
. See In re IPO, 297 F.Supp.2d at 674.
. See id. at 671 ("[C]ourts have held that a disclosure correcting an earlier misstatement or omission can, coupled with allegations of artificial inflation, suffice to plead loss causation.”).
. See Lentell, 396 F.3d at 173 (plaintiffs must allege "that the misstatement or omission concealed something from the market that, when disclosed, negatively affected the value of the security”).
. See TAC ¶¶ 225-227.
. Plaintiffs argue that this is a market manipulation case, based on the allegations that defendants conditioned the market to expect upside surprises, and therefore created some inflation independent of that caused by any false statements. Plaintiffs contend that this inflation gradually dissipated from the securities, rather than disappearing suddenly after a disclosing event, because no statements "ever disclosed what was truly going on and the gross extent to which the system had been rigged.” PL Opp. at 62. Essentially, plaintiffs argue that the alleged Disclosing Events did not result in complete market corrections because they did not disclose that defendants' alleged misstatements were part of a scheme to defraud investors. But a disclosing event need not disclose every bit of a fraudulent scheme, including the fact of the scheme itself, to remove price inflation from the market. Otherwise, no scheme could be fully "disclosed” until the matter is litigated, and every plaintiff class could avail itself of the relaxed "gradual dissipation” loss causation pleading requirement associated with market manipulation claims. The issue is moot, though, because
. 15U.S.C. §77 etseq.
. Plaintiffs allege that the CSFB defendants and the Issuer defendants participated in the creation and dissemination of the Issuers’ prospectuses. See TAC ¶¶ 192-193. Plaintiffs also allege generally that the Swiss defendants "aided and abetted CSFBC's fraud,” but do not allege any specific involvement by the Swiss defendants in drafting the Issuers’ prospectuses. Id. at 65 (section heading). See also id. ¶¶ 228-240 (describing the Swiss defendants’ involvement; alleging, inter alia, that some of the CSFB defendants “could not have carried out or continued their fraudulent scheme without CS and CSG’s explicit involvement.”).
. See TAC ¶ 190.
. 11/25/03 Plaintiffs’ Response in Opposition to Defendants’ Motions Opposing Plaintiffs’ Motion for Leave to Amend the Complaint at 3-4.
. This Court has already relied on plaintiffs’ representations. In considering plaintiffs' motion for leave to amend their complaint, I held that "[p]laintiffs’ allegations regarding analysts’ conflicts of interest and misrepresentations made during the IPO process are properly regarded as factual allegations establishing necessary background for the Plaintiffs’ claims for relief,” but their allegations of IPO underpricing cannot be the sole basis for their claims. In re IPO, 341 F.Supp.2d at 348.
. See Pl. Opp. at 34-36 (asserting that "[i]t is background and it is a piece of the overall scheme ... only to the extent that the selective telling of some members of the buying public is included and the creation of the demand was designed to create a ‘pop’ in the stock price in the aftermarket”).
. See id. at 11 (noting that such factors included "the recent market prices of, and the demand for, publicly traded common stock of generally comparable companies”) (quoting Ex. C to TAC Exhibits). The CacheFlow prospectus did not list any factors, but merely noted that the price was "based on several factors.” Id.
. See id. at 11-12.
. See Issuer Mem. at 6-8.
. See 9/30/04 Exhibit Book and Declaration of Robert W. Trenchard in Support of the Motion to Dismiss the Third Amended Complaint of CSFBC, CSFB-USA and CSFBI (“CSFB Exhibit Book”).
. See Chris-Craft Indus., Inc. v. Piper Aircraft Corp., 480 F.2d 341, 366 (2d Cir. 1973) (cert. denied by Securities and Exchange Commission v. Bangor Punta Corporation, 414 U.S. 924, 94 S.Ct. 234, 38 L.Ed.2d 158 (1973)) (holding that a release setting a price as a fair value for newly issued securities does not constitute a guarantee of market value absent explicit language to that effect, noting that "[a] reasonably knowledgeable investor is aware that the value’ of a security can refer either to the market or sales price of the security or to its worth as measured by the assets and earnings of the issuing company. The absence of the term market value’ in the release, as well as the fact that the valuation was to be ’in the judgment of the First Boston Corporation’, would suggest to a prudent investor that ’value’ here was to be based on an appraisal of assets and earnings.”).
. See id.
. See eMachines Prospectus Excerpts, Ex. 1 to Issuer Mem., at 6, 21, 34.
. See CSFB Exhibit Book.
. See, e.g., Rombach, 355 F.3d at 173 ("Under the bespeaks caution doctrine, alleged misrepresentations in a stock offering are immaterial as a matter of law if it cannot be said that any reasonable investor could consider them important in light of adequate cautionary language set out in the same offering.”) (quotations marks, citation and alteration omitted). To hold otherwise would create an unacceptable burden on underwriters and issuers negotiating offering prices. As I have noted, "[flor at least five decades, studies have shown that IPOs generally trade on the open market at a price significantly higher than the offering price.” In re IPO, 241 F.Supp.2d at 300. If plaintiffs’ argument were adopted by the courts, then no amount of cautionary language would suffice to protect issuers and underwriters from liability whenever the market price of a security deviates substantially from the offering price. Not only would such a rule vastly increase the exposure of those who underwrite IPOs, it would effectively destroy the competitive process by which issuers search for underwriters, because no underwriter could offer to conduct an IPO at any price other than the predicted market value of the securities.
. TAC ¶¶ 256, 267. Plaintiffs’ remaining four claims for relief all arise under section 20(a) of the Exchange Act and depend upon plaintiffs’ 10b-5 claims, both of which explicitly allege that the scheme produced "the illusion of ever-rising stock prices.” See id. ¶¶ 276-294.
. Issuer Mem. at 28.
. Lentell, 396 F.3d at 174-75 (quoting First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994)).
. Ganino, 228 F.3d at 167 n. 8.
. Id.
. See Ex. B to Issuer Mem.
. TAC ¶ 221.
. Id. ¶ 222.
. See Issuer Mem. at 28.
. See Ex. B to Issuer Mem.
. DeMarco v. Robertson Stephens, Inc., 318 F.Supp.2d 110, 124 (S.D.N.Y. 2004) (explaining that price declines may not be inconsistent with theory that alleged misrepresentations artificially inflated stock prices, because plaintiffs could still recover if the artificially inflated price merely sunk less than the price otherwise would have sunk).
. TAC ¶¶ 256, 267
. See Ex. B to Issuer Mem; see also CSFB Exhibit Book (showing that market prices for the non-defendant Issuers fluctuated throughout the class period).
. Issuer Mem. at 28 n. 22.
.See, e.g., PI. Opp. at 8 ("the effect was to trick the public by way of the illusion of artificially created demand") (emphasis in original); id. ("Defendants wanted the stock price to keep going up”); id. ("What was the investing public to do but to wonder how long the winning streak from one company to the next would continue”); id. at 27 ("a litany of 'conditioning statements' ... were intended to evoke excessive buying-demand”); id. at 36 ("Plaintiffs make [allegations regarding prospectus misstatements] to provide support for their claims that Defendants engaged in an ongoing, consistent scheme of depressing revenue projections to achieve quick and sustained growth in share prices.”) (quoting In re IPO, 341 F.Supp.2d at 348 n. 185); id. at 37 ("scheme is based upon the conditioning of the market”); id. at 57 (noting that plaintiffs' omissions claims are "ancillary because they are entirely dependent upon” plaintiffs' claim that the market was conditioned to expect upside surprises) (emphasis in original); id. at 59 ("Plaintiffs’ complaint alleges that Defendants' manipulative scheme was successful in its intent to get each of the Issuer Defendant[s'] stock to 'Perform' to some degree above the IPO price ... [and] alleges that Defendants' manipulative scheme was successful in its intent to condition stock prices to rise in anticipation of forecasts being exceeded.”); id. at 62 (“The intent was to prime the market to expect (anticipate) that the surprise would occur (and keep occurring indefinitely). As the TAC states: 'During the class period, stock prices of technology IPO Stocks rose in anticipation of forecasts being exceeded by actual results.' ”) (emphasis in PL Opp.).
. See TAC ¶ 62.
. See PI. Opp. at 62-63 (noting that "Plaintiffs' Exhibits attached to their Complaint list exhaustively each such identifiable occurrence of these 'conditioning statements,' ... [but that] Plaintiffs do not include in their Complaint any data about what did or did not happen to the stock prices on the days when the false 'surprises’ were announced.”).
. Defendants assert that even this was not the case with respect to the eMachines IPO, which saw only very modest gains in the first trading day and actually closed that day below the IPO price. See eMachines Mem. at 1-2.
. TAC ¶¶ 256, 267.
. See, e.g., Lentell, 396 F.3d at 173; Broudo, 339 F.3d at 938.
. Defendants have raised numerous other loss causation arguments. However, because plaintiffs' TAC does not meet even the most lenient current standard for loss causation, there is no need to discuss defendants' other arguments, which are based on Second Circuit law that could be modified by the Supreme Court.
.See, e.g., In re IPO, 241 F.Supp.2d at 359-72 (dismissing some claims for which scienter had been inadequately pled and allowing others to proceed).
. As a result, plaintiffs’ motion for leave to amend their complaint and substitute lead plaintiffs in the Tumbleweed matter is denied as moot. See 2/26/05 Letter from John G. Watts, counsel for plaintiffs, to the Court.
Reference
- Full Case Name
- In re: INITIAL PUBLIC OFFERING SECURITIES LITIGATION This document relates to: Amy Liu, Robert Tenney, Robert Tate, Mary Gorton, Carla Kelly, Henry Ciesielski, Ed Grier, Frank Turk, Jennie Papuzza, Stanley Warren, Ellen Dulberger, Craig Mason, and Sharon Brewer v. Credit Suisse First Boston Corp., Credit Suisse First Boston (USA), Inc., Credit Suisse First Boston, Credit Suisse Group, Efficient Networks, Inc., eMachines, Inc., Lightspan Partnership, Inc., Tanning Technology Corp., and Tumbleweed Communications Corp.
- Cited By
- 4 cases
- Status
- Published