Liu v. Credit Suisse First Boston Corp.
Liu v. Credit Suisse First Boston Corp.
Opinion of the Court
OPINION AND ORDER
Plaintiffs’ claims in the Liu action, No. 04 Civ. 3757, have been dismissed.
1. LEGAL STANDARD
Section 21(D)(c) of the PSLRA, entitled “Sanctions for abusive litigation,” provides:
In any private action arising under this chapter, upon final adjudication of the action, the court shall include in the record specific findings regarding compliance by each party and each attorney representing any party with each requirement of Rule 11(b) of the Federal Rules of Civil Procedure as to any complaint, responsive pleading, or dispositive motion.2
If the court determines that there has been a violation of Rule 11, section 21(D)(e)(2) imposes mandatory sanctions and adopts a rebuttable presumption that the appropriate sanction for noncompliance “is an award to the opposing party of the reasonable attorneys’ fees and other expenses incurred.”
Rule 11(b) states, in pertinent part:
*371 By presenting to the court ... a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after a reasonable inquiry under the circumstances ... the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law ... [and] the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.4
If after notice and a reasonable opportunity to respond, the court determines that the Rule 11 standard has been violated, the court may impose sanctions upon the attorneys, law firms, or parties.
“Rule 11 is violated when it is clear under existing precedents that a pleading has no chance of success and there is no reasonable argument to extend, modify, or reverse the law as it stands.”
II. DISCUSSION
A. The Alleged Scheme
Defendants argue that plaintiffs’ allegations of a fraudulent scheme were so meritless as to be objectively frivolous.
Plaintiffs alleged a complicated scheme. Corporate insiders and investment banks allegedly discounted earnings estimates for companies that had recently held initial public offerings (“IPOs”). This discounting, combined with an alleged “Pop” in prices that occurred after defendants allegedly underpriced the companies’ IPOs, created an environment in which the companies repeatedly beat their earnings estimates. Plaintiffs alleged that securities analysts employed by the bank defendants condi
In my March 31, 2005 Opinion and Order (“March 31 Opinion”) granting defendants’ motions to dismiss, I found that plaintiffs’ claims, which rested on the allegation that “[t]he purposes and effect of [the alleged] scheme was to create the illusion of ever rising stock prices ...
Though ultimately deficient, plaintiffs’ claims were not frivolous. Plaintiffs summarized thousands of statements allegedly made by defendants in pursuit of their fraudulent scheme.
B. The Issuers
Tumbleweed, Tanning Technology Corp. (“Tanning”) and eMachines, Inc. (“eMachines”) also argue that, even if plaintiffs’ alleged scheme was not frivolous as a whole, plaintiffs violated Rule 11 by bringing their claims against those specific issuers.
Defendants assert that plaintiffs violated Rule 11 with respect to their claims against Tumbleweed by proffering class representatives who lacked standing to sue Tumbleweed.
Hinn submitted a PSLRA certification showing that he had purchased no shares of Tumbleweed securities during the proposed class period. Plaintiffs later admitted that Hinn’s inclusion as a class representative was erroneous, and withdrew him as a potential class representative when defendants brought the error to plaintiffs’ attention.
Defendants also assert that Brewer, the other putative Tumbleweed class representative, lacked standing to pursue plaintiffs’ claims. Specifically, defendants argue that “Brewer ... sold all her stock during the alleged class period for a profit, and thus never had a viable claim against Tumbleweed.”
However, the parties’ correspondence reveals that plaintiffs intended to argue that “in-and-out sellers can still recover damages under [Rule] 10b-5 even if the stock was sold for more than it is purchased for and even if the sale was prior to the disclosure date.”
2. Tanning
Defendants argue that plaintiffs violated Rule 11 with respect to their claims against Tanning by failing to present a class representative with standing. Plaintiffs proffered Craig Mason, who purchased 500 Tanning shares on July 28, 1999. However, the first post-IPO analyst report for Tanning was not issued until August 17, 1999.
Defendants’ argument mischaracterizes plaintiffs’ complaint. Although plaintiffs were ultimately estopped from relying on allegations of pre-IPO misrepresentations,
3. eMachines
Finally, defendants assert that plaintiffs’ claims against eMachines are deficient “because eMachine’s stock price never rose, whether as a result of the alleged fraud or otherwise.”
Defendants also complain that none of the “conditioning statements” alleged by plaintiffs occurred prior to the first announcement that eMachines had beat its revenue forecasts. Defendants argue that this lack of aftermarket conditioning statements precludes plaintiffs from relying on the theory that such statements created investor excitement and caused artificial inflation in the period preceding earnings announcements.
III. CONCLUSION
Plaintiffs have satisfied the requirements of Rule 11(b). Accordingly, defendants’ requests for sanctions are denied in their entirety. The Clerk is directed to close this case.
SO ORDERED.
. See In re Initial Public Offering Sec. Litig. ("Liu Dismissal”), 383 F.Supp.2d 566 (S.D.N.Y. 2005).
. 15 U.S.C. § 78u-4(c)(1).
. 15 U.S.C. § 78u-4(c)(3)(A)(i)-(ii).
. Fed.R.Civ.P. 11(b).
. See Fed.R.Civ.P. 11(c).
. Corroon v. Reeve, 258 F.3d 86, 92 (2d Cir. 2001).
. Storey v. Cello Holdings, LLC, 347 F.3d 370, 387 (2d Cir. 2003).
. See Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011-12 (2d Cir. 1986).
. See Rodick v. City of Schenectady, 1 F.3d 1341, 1350 (2d Cir. 1993).
. See 7/1/05 Letter from Robert L. Dell Angelo, counsel for defendant Tumbleweed Communications Corp. ("Tumbleweed”), to the Court ("Dell Angelo Letter”) at 7; see also 7/\2105 Letter from Peter K. Vigeland, counsel for Credit Suisse First Boston (USA) ("CSFB”) and the CSFB-related defendants, to the Court ("Vigeland Letter”) at 1 (joining in the frivolousness arguments of the Dell Angelo Letter); 7/5/05 Letter from Michael L. Hirschfeld, counsel for defendants Efficient Networks, Inc. ("Efficient”) and Lightspan Partnership, Inc. ("Lightspan”), to the Court ("Hirschfeld Letter”) at 1 (same).
.Dell Angelo Letter at 7.
. See Liu Dismissal, 383 F.Supp.2d 566, 567.
. Plaintiffs’ Third Amended Complaint ¶¶ 256, 267.
. See Liu Dismissal, 383 F.Supp.2d at 584.
. See In re Initial Public Offering Sec. Litig. (“Liu Reconsideration"), No. 21 MC 92, 2005 WL 1162445, 399 F.Supp.3d 261 (S.D.N.Y. May 13, 2005).
. See Exhibits to [Third] Amended Complaint.
. See Third Amended Complaint (comprising 84 pages and nearly 300 paragraphs, and including sections addressed to each of the required elements of securities fraud).
. See Liu Reconsideration, 2005 WL 1162445, at *3, 399 F.Supp.3d at 261 (noting that "[n]onetheless, in material misstatement and omission cases, a court cannot presume dissipation of the inflationary effect; a plaintiff must explicitly allege a disclosure or some other corrective event”) (quotation marks and citation omitted).
. See id.
. See Dell Angelo Letter at 2-4.
. See 7/19/04 Plaintiffs’ Letter to the Court opposing defendants’ motions for sanctions ("Pl.Opp.”) at 14.
. Dell Angelo Letter at 3.
. Third Amended Complaint ¶ 53. Plaintiffs’ Second Amended Complaint excluded those who sold their shares during the class period and received a profit. On September 9, 2004, I issued an Order granting plaintiffs’ moved for leave to amend their class definition.
. 8/6/04 Letter from John Watts, counsel for plaintiffs, to Dell Angelo at 1.
. See id.
. See id. (citing Green v. Occidental Petroleum Corp., 541 F.2d 1335 (9th Cir. 1976)) (Sneed, J., concurring) ("A convergence of the price and value lines, however, presents a different question with respect to the purchaser who sells before disclosure. From the market he recoups only a portion of the original value of the misrepresentation for which he paid full value. The unrecovered portion should be recoverable from the corporate wrongdoer, even when the purchaser resells at a price greater than his cost.”).
. See Dell Angelo Letter at 5.
. See id.
. See Liu Dismissal, 383 F.Supp.2d 566, 580.
. See Pl. Opp. at 14.
. Dell Angelo Letter at 5.
. See 12/16/04 eMachines, Inc.'s Reply Memorandum of Law in Support of Motion to Dismiss the Third Amended Complaint at 1.
. See Dell Angelo Letter at 6.
. See Pl. Opp. at 13; Ex. E to Third Amended Complaint.
Reference
- Full Case Name
- In re: INITIAL PUBLIC OFFERING SECURITIES LITIGATION 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
- 1 case
- Status
- Published