Gordon Partners v. Blumenthal
Gordon Partners v. Blumenthal
Opinion of the Court
SUMMARY ORDER
Plaintiffs-Appellants Frederick Gordon, Sam Gordon, and Gordon Partners (collectively, “the Gordons” or “Appellants”) appeal the judgment of the United States District Court for the Southern District of New York (Kaplan, J.) granting summary judgment for Defendants-Appellees NTL, Inc. (“NTL”) and NTL’s corporate leaders, George Blumenthal, Barclay Knapp, and John F. Gregg (collectively, “Appellees”). The Gordons brought a securities action claiming that Appellees made false statements both to the public and to Frederick Gordon privately that misled the Gordons with the result that they lost millions of dollars in violation of both federal securities law and state common law. Accepting the magistrate’s recommendation (Peck, M.J.), the District Court dismissed all of the Gordons’ claims. On appeal, the Gor-dons assert that the District Court erred in finding (1) that the Appellants failed to prove loss causation, which was a necessary element of their federal securities claim, and (2) that the state law claims were precluded by the Securities Litigation Uniform Standards Act (“SLUSA”). We assume familiarity with the facts of the case, the procedural history, and the scope of the issues on appeal. Reviewing the case de novo, Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000), we affirm.
On appeal, the Gordons assert that the District Court erred in dismissing their claims under Section 10(b) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, by holding that Appellants failed to prove loss causation.
The Gordons argue that their demonstration of reliance on the personal statements that Appellees made to Frederick Gordon — i.e., transaction causation — is sufficient in this instance because they allege “fraud on the plaintiff’ as opposed to “fraud on the market.” This theory is without support. Loss causation is an element of, and must be shown in, any Section 10(b) action. Transaction causation alone may explain “why [a] plaintiff purchased ... stock, [but] it does not explain why it lost money on the purchase, the very question that the loss causation allegation must answer.” Emergent, 343 F.3d at 198. Thus, we have consistently held that a plaintiff may “recover only the excess of what he paid over the value of what he got, not ... the difference between the value of what he got and what it was represented he would be getting.” Gurary v. Winehouse, 235 F.3d 792, 800 (2d Cir. 2000). It follows that if the Gordons got the value of what they paid for, they
II. State Common Law Claim
The District Court dismissed the Gordons’ state common law fraud claims as preempted by the SLUSA. After receiving supplemental briefing from both parties as to whether New York common law fraud claims require a showing of loss causation, we find that this case does not require us to decide whether the SLUSA preempts the common law claims. Because loss causation is an element of a New York common law fraud action, see Laub v. Faessel, 297 A.D.2d 28, 31, 745 N.Y.S.2d 534 (1st Dep’t 2002), Appellants’ failure to prove loss causation as described above is also fatal to their state law claims. Accordingly, the Gordons’ common law fraud claims were properly dismissed.
We have considered all of Appellants’ claims and find them to be without merit. Accordingly, the judgment of the District Court is AFFIRMED.
. Appellants also assert that the District Court erred in holding that NTL's bankruptcy did not constitute a “forced sale” giving rise to a Section 10(b) and Rule 10b-5 action. Because of our finding on the loss causation issue, we can address this argument summarily and do so at footnote four infra.
. Courts at times talk about the two causal requirements as if one or the other is part of the requirement that proximate cause must be shown. In fact, loss causation and transaction causation are separate independent elements, each of which must not only be proven but also be shown to have been “proximate" to the harm.
. The equivalent of the loss causation requirement has long existed in ordinary torts cases as well. Thus, the fact that a car is speeding does not make the speeder hable simply because "but for” the speeding, the car would not have been under a tree when that tree fell. See, e.g., Berry v. Sugar Notch, 191 Pa. 345, 43 A. 240 (1899). See generally Guido Calabresi, Concerning Cause and the Law of Torts, 42 U. Chi. L.Rev. 69 (1975).
. The Gordons also contend that the District Court erred in dismissing some of their claims as "holder” claims because NTL’s bankruptcy should be considered a "forced sale,” and hence that their losses for shares converted during NTL’s reorganization should be cognizable under Section 10(b) and Rule 10b-5. Because Appellants failed to prove loss causation, we need not reach this issue as any claims, even if not "holder claims,” would fail on causation grounds. We note, however, that our Circuit's precedent suggests the Gordons’ "forced sale” argument is without merit. See Rand v. Anaconda-Ericsson, Inc., 794 F.2d 843, 848 (2d Cir. 1986) (holding that conversion of shares when a company enters bankruptcy does not constitute a "forced sale” that would give rise to a Section n 10(b) or Rule 10b-5 action).
Reference
- Full Case Name
- GORDON PARTNERS, Frederick L. Gordon, Sam D. Gordon v. George S. BLUMENTHAL, Barclay Knapp, John F. Gregg, NTL, Inc.
- Cited By
- 11 cases
- Status
- Published