Boca Raton Firefighters and Police Pension Fund v. Bahash
Boca Raton Firefighters and Police Pension Fund v. Bahash
Opinion of the Court
SUMMARY ORDER
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the District Court is AFFIRMED.
Plaintiff Boca Raton Firefighters and Police Pension Fund, on behalf of itself and a putative class of former shareholders of The McGraw-Hill Companies, Inc. (“McGraw-Hill”), appeals from the District Court’s September 24, 2013 order denying plaintiffs motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(2) and plaintiffs motion for leave to amend its complaint pursuant to Federal Rules of Civil Procedure 15(a) and (d). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
BACKGROUND
Plaintiff brought this putative securities fraud class action nearly seven years ago against The McGraw-Hill Companies, Inc. and two of its executive officers alleging violations of the Securities and Exchange Act of 1934. Plaintiff alleges that the company’s financial services division, Standard & Poor’s (“S & P”), made material misstatements touting the integrity, independence, and surveillance of its ratings of residential mortgage-backed securities (“RMBS”) and collateralized debt obligations (“CDOs”) when, according to plaintiff, ratings criteria were in fact driven by defendants’ desire to preserve market share, please clients, and increase profits. After nearly five years of litigation and affording plaintiff multiple opportunities to amend its complaint, the District Court dismissed plaintiffs second amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Reese v. McGraw-Hill Cos., No. 08 Civ. 7202, 2012 WL 9119573 (S.D.N.Y. Mar. 30, 2012). We affirmed. See Boca Raton Firefighters & Police Pension Fund v. Bahash, 506 Fed.Appx. 32 (2d Cir. 2012).
Several months after this Court affirmed the District Court’s dismissal, plaintiff filed a motion for relief from judgment and a motion for leave to amend its complaint. Plaintiff cited supposedly “newly discovered evidence” — in the form of a complaint filed by the U.S. Department of Justice against McGraw-Hill and S & P in the U.S. District Court for the Central District of California, and a previously sealed deposition transcript of S & P’s former head of RMBS ratings from another case — which plaintiff contends cures the defects in its second amended complaint.
DISCUSSION
We review a district court’s denial of relief from judgment for abuse of discretion. Devlin v. Transp. Commc’ns Int’l Union, 175 F.3d 121, 132 (2d Cir. 1999). Rule 60(b)(2) provides that a court “may relieve a party or its legal representative from a final judgment, order, or proceeding for ... newly discovered evidence that, with reasonable diligence, could not have been discovered” within twenty-eight days after the entry of judgment. Fed.R.Civ.P. 60(b)(2). “A motion for relief from judgment is generally not favored and is properly granted only upon a showing of exceptional circumstances.” United States v. Int’l Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001). The party seeking relief from judgment bears the burden of meeting the following “onerous” standard:
(1) the newly discovered evidence was of facts that existed at the time of trial or other dispositive proceeding, (2) the movant must have been justifiably ignorant of them despite due diligence, (3) the evidence must be admissible and of such importance that it probably would have changed the outcome, and (4) the evidence must not be merely cumulative or impeaching.
Id. at 392. “Properly applied, Rule 60(b) strikes a balance between serving the ends of justice and preserving the finality of judgments.” Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986). A court abuses it discretion only when “(1) its decision rests on an error of law or a clearly erroneous factual finding; or (2) cannot be found within the range of permissible decisions.” Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir. 2011) (per curiam).
After review of the record and relevant case law, we conclude that the District Court was well within its discretion in denying plaintiffs motion for relief from judgment and motion for leave to amend for the reasons stated in its September 24, 2013 order. As the District Court found, the new evidence does not alter the District Court’s and this Court’s previous conclusion that defendants’ statements regarding the “independence” and “integrity” of their ratings constitute “mere commercial puffery.” Boca Raton, 506 Fed.Appx. at 34, 37 (citing City of Omaha, Neb. Civilian Emps.’ Ret. Sys. v. CBS Corp., 679 F.3d 64, 67 (2d Cir. 2012)). Alleged new evidence showing that, for example, S & P slowed the roll out of a new ratings model that might negatively affect CDO ratings, S & P analysts discussed that CDO issuers were upset by subprime RMBS ratings downgrades, or S & P may have been concerned about market share and profits, does not alter the “generic, indefinite nature” of the statements at issue or demonstrate why they are false. Id. at 37. As the District Court correctly observed, these statements are too general to cause a reasonable investor to rely upon them as a guarantee that ratings would not be made without regard to profits, market share, or client feedback. See ECA, Local 134 IBEW Joint Pension Trust of Chicago v. JP Morgan Chase Co., 553 F.3d 187, 206 (2d Cir. 2009).
Because the District Court’s denial of plaintiffs motion for relief from judgment was well within its discretion, its denial of plaintiffs motion for leave to amend was likewise not an abuse of discretion.
CONCLUSION
We have considered all of plaintiffs remaining arguments and find them to be without merit. Accordingly, we AFFIRM the September 24, 2013 order of the District Court.
. We previously denied plaintiffs motion to take judicial notice of the deposition transcript during plaintiff’s prior appeal. Boca Raton, 506 Fed.Appx. at 36 n. 4.
. Plaintiff also filed a motion to file a supplemental brief with additional, recently discovered evidence, which the District Court also denied in its September 24, 2013 order. Plaintiff does not appeal the denial of that motion. Appellant’s Br. 6 n. 4.
. Plaintiff also argues that the District Court committed legal error by considering the “na
Dissenting Opinion
dissenting:
I respectfully dissent because I believe the new evidence to be sufficient to assert that the statements previously found to be but puffery were not believed when made and may provide the basis for actionable material misrepresentations with the requisite scienter. Therefore, I would remand for such further consideration.
Reference
- Full Case Name
- Claude A. REESE, Individually and on Behalf of All Others Similarly Situated, Plaintiff, Boca Raton Firefighters and Police Pension Fund, Plaintiff-Appellant, v. Robert J. BAHASH, the McGraw-Hill Companies, Inc., Harold McGraw, III, Defendants-Appellees
- Cited By
- 12 cases
- Status
- Unpublished