In re Parmalat Securities Litigation
In re Parmalat Securities Litigation
Opinion of the Court
MEMORANDUM AND ORDER
This is a purported class action on behalf of purchasers of securities of the international dairy conglomerate Parmalat Finanziaria S.p.A. and its subsidiaries and affiliates (collectively “Parmalat”). The Court assumes familiarity with its prior opinions.
In a previous decision, In re Parmalat Sec. Litig., 376 F.Supp.2d 472 (S.D.N.Y. 2005), this Court upheld on a motion to dismiss the first amended complaint the legal sufficiency of some, but not all, of plaintiffs’ Section 10(b) claims against Citi and a number of other banks. It held that plaintiffs could have prevailed against those defendants under Rule 10b-5(a) and 10b-5(c) with respect to some (but not all) of the challenged transactions, assuming that they proved their allegations notwithstanding the lack of any actionable misrepresentations or omissions by them. The moving defendants now seek summary judgment of dismissal on the ground that Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., — U.S. --■, 128 S.Ct. 761, 169 L.Ed.2d 627 (2008), forecloses this theory of liability.
In Stoneridge, the Supreme Court held that “[rjeliance by the plaintiff upon the defendant’s deceptive acts is an essential element of the § 10(b) private cause of action.” 128 S.Ct. at 769 (emphasis added). Although it recognized that reliance may be presumed where (1) a party omits a material fact in breach of a duty to disclose or (2) a party’s deceptive acts are communicated to the public, the Court, in holding that neither presumption applied, rejected the proposition “that in an efficient market investors rely not only upon the public statements relating to a security but also upon the transactions those statements reflect.” Id. at 769-70. It then determined that where “[n]o member of the investing public had knowledge, either actual or presumed,” of a defendant’s “own deceptive conduct,” a plaintiff could not “show reliance ... except in an indirect chain ... too remote for liability.” Id. Plaintiffs argue that Stoneridge does not preclude a finding of Section 10(b) liability here because they can establish reliance with respect to all three movants.
Plaintiffs contend first that reliance should be presumed with respect to both BoA and Pavia because each breached a duty of disclosure. They claim that BoA, as a placement agent, breached a duty to disclose “the true facts about the BoA Brazilian transaction” to investors who purchased securities from BoA in private placements. Pis. Mem. at 9-10. And they contend that Pavia breached a duty, allegedly imposed by Rule 4.1 of the Model Rules of Professional Conduct, to disclose Parmalat’s allegedly fraudulent conduct with respect to its divestiture of certain brands and trademarks pursuant to an order from the Italian antitrust authority. Id. at 16. Plaintiffs’ arguments, however, are unpersuasive.
The fundamental problem with plaintiffs’ argument with respect to BoA flows from the fact that the duty of disclosure that BoA allegedly breached was a duty owed only to purchasers from BoA in
Plaintiffs’ only argument with respect to Pavia is that Pavia breached a duty to disclose by violating Rule 4.1 of the Model Rules of Professional Conduct. Pis. Mem. at 16. But even assuming arguendo the applicability of the Model Rules
Plaintiffs next attempt to show reliance by arguing that the public was made aware of the allegedly deceptive transactions in which each defendant was involved. Specifically, they contend that Parmalat (1) issued press releases, bond prospectuses, and offering memoranda in which it discussed the Brazilian transaction
Stoneridge made plain that investors must show reliance upon a defendant’s own deceptive conduct before that defendant, otherwise a secondary actor, may be found primarily liable. Plaintiffs’ evidence falls well short of this standard. Nothing about Parmalat’s disclosures describes any defendant’s own conduct, much less conduct that was deceptive. Indeed, the only defendant even named in any of Parmalat’s public statements — BoA—was involved in a transaction that was not in itself deceptive. See In re Parmalat Sec. Litig., 414 F.Supp.2d at 433-34. In consequence, even assuming the truth of plaintiffs’ factual allegations and granting every reasonable inference therefrom, plaintiffs’ evidence would establish only that investors relied on Parmalat’s deceptive disclosures concerning transactions to which defendants were parties. It would not establish reliance on any defendant’s own deceptive conduct except “in an indirect chain” the type of which the Supreme Court found “too remote for liability.” Stoneridge, 128 S.Ct. at 769.
As plaintiffs have failed to establish the reliance element of their Section 10(b) claims against BoA, Citi, and Pavia, the Court need not address defendants’ additional grounds for summary judgment. Moreover, plaintiffs’ Section 20(a)
For the foregoing reasons, Bank of America Corporation, Bank of America, N.A., Banc of America Securities Limited, Citigroup Inc., Citibank, N.A., Eureka Securitisation pic, and Pavia e Ansaldo’s motion for summary judgment dismissing the Third Amended Class Action Complaint as against them [04 MD 1653, docket item 1579; 04 Civ. 0030, docket item 982] is granted. As this ruling disposes of all claims against these defendants and there is no just reason for delay, the Clerk is directed, pursuant to Fed.R.Civ.P. 54(b), to enter final judgment with respect to these defendants.
SO ORDERED.
. Particularly relevant are the opinions reported at 376 F.Supp.2d 472 (S.D.N.Y. 2005), deciding inter alia Citi's and BoA’s motions to dismiss the first amended complaint, 383
. 15 U.S.C. § 78j(b).
. 17 C.F.R. § 240.10b-5.
.Plaintiffs recognize that "New York uses the Code of Professional Responsibility and has not officially adopted the Model Rules” but contend that the Second Circuit has recognized that the "Code” has been superseded by the Model Rules. See Pis. Mem. at 16 n.53, citing Purdy v. United States, 208 F.3d 41, 47 (2d Cir. 2000). But they are mistaken. The Second Circuit in Purdy noted no more than that the ABA’s Model Code of Professional Responsibility had been superseded by its Model Rules of Professional Conduct. That certainly is true as far as the American Bar Association is concerned. But the standard that governs New York lawyers remains New York’s Code of Professional Responsibility. See, e.g., In re McKelvey, 54 A.D.3d 24, 861 N.Y.S.2d 905 (4th Dept. 2008); see also Solow v. Conseco, Inc., No. 06 Civ. 5988(BSJ)(THK), 2007 WL 1599151, at *3 & n. 4 (S.D.N.Y. June 4, 2007).
. Plaintiffs do not oppose summary judgment on the Venezuela transaction. See BoA Rule 56.1 Statement ¶ 177.
. Plaintiffs no longer assert any claims against Pavia based on the Webholdings transactions. Pis. Mem. at 14 n.47.
. The Court has considered plaintiffs' other arguments regarding reliance and concluded that they are without merit.
. 15 U.S.C. § 78t(a).
. Plaintiffs assert no Section 20(a) claims against Eureka Securitisation pic.
.Plaintiffs assert a claim against Pavia under Section 20(a), in which they seek to impose control person liability for alleged Section 10(b) and Rule 10b-5 violations by its former partner, Gian Paolo Zini. As the Section 10(b) and Rule 10b-5 claims against Zini fail for the same reasons as those against Citi, BoA, and Pavia, the Section 20(a) claim against Pavia must be dismissed.
Reference
- Full Case Name
- In re PARMALAT SECURITIES LITIGATION
- Cited By
- 1 case
- Status
- Published