Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning
Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning
Opinion
Section 27 of the Securities Exchange Act of 1934 (Exchange Act),
I
Respondent Greg Manning held more than two million shares of stock in Escala Group, Inc., a company traded on the NASDAQ. Between 2006 and 2007, Escala's share price plummeted and Manning lost most of his investment. Manning blames petitioners, Merrill Lynch and several other financial institutions (collectively, Merrill Lynch), for devaluing Escala during that period through "naked short sales" of its stock.
A typical short sale of a security is one made by a borrower, rather than an owner, of stock. In such a transaction, a person borrows stock from a broker, sells it to a buyer on the open market, and later purchases the same number of shares to return to the broker. The short seller's hope is that the stock price will decline between the time he sells the borrowed shares and the time he buys replacements to pay back his loan. If that happens, the seller gets to pocket the difference (minus associated transaction costs).
In a "naked" short sale, by contrast, the seller has not borrowed (or otherwise obtained) the stock he puts on the market, and so never delivers the promised shares to the buyer. See
"
Naked" Short Selling Antifraud Rule,
Securities Exchange Commission (SEC) Release No. 34-58774, 73 Fed.Reg. 61667 (2008). That practice (beyond its effect on individual purchasers) can serve "as a tool to drive down a company's stock price"-which, of course, injures shareholders like Manning.
In this lawsuit, Manning (joined by six other former Escala shareholders) alleges that Merrill Lynch facilitated and engaged in naked short sales of Escala stock, in violation of New Jersey law. His complaint asserts that Merrill Lynch participated in "short sales at times when [it] neither possessed, nor had any intention of obtaining[,] sufficient stock" to deliver to buyers. App. to Pet. for Cert. 57a, Amended Complaint ¶ 39. That conduct, Manning charges, contravened provisions of the New Jersey Racketeer Influenced and Corrupt Organizations Act (RICO), New Jersey Criminal Code, and New Jersey Uniform Securities Law; it also, he adds, ran afoul of the New Jersey common law of negligence, unjust enrichment, and interference with contractual relations. See
*1567
75a-82a, ¶¶ 81-87. And the complaint couched its description of the short selling at issue here in terms suggesting that Merrill Lynch had again violated that regulation, in addition to infringing New Jersey law. See
Manning brought his complaint in New Jersey state court, but Merrill Lynch removed the case to Federal District Court. See
The Court of Appeals for the Third Circuit reversed, ordering a remand of the case to state court. See
Merrill Lynch sought this Court's review solely as to whether § 27 commits Manning's case to federal court. See Pet. for Cert. i. Because of a Circuit split about that provision's meaning,
1
we granted certiorari. 576 U.S. ----,
II
Like the Third Circuit, we read § 27 as conferring exclusive federal jurisdiction of the same suits as "aris[e] under" the Exchange Act pursuant to the general federal question statute. See
A
Section 27, as noted earlier, provides federal district courts with exclusive jurisdiction "of all suits in equity and actions at law brought to enforce any liability or duty created by [the Exchange Act] or the rules and regulations thereunder." 15 U.S.C. § 78aa(a) ; see supra, at 1567. 2 Much the same wording appears in nine other federal jurisdictional provisions-mostly enacted, like § 27, as part of New Deal-era regulatory statutes. 3
Merrill Lynch argues that the "plain, unambiguous language" of § 27 requires an expansive understanding of its scope. Brief for Petitioners 23. Whenever (says Merrill Lynch) a plaintiff's complaint either explicitly or implicitly "assert[s]" that "the defendant breached an Exchange Act duty," then the suit is "brought to enforce" that duty and a federal court has exclusive jurisdiction. Id., at 22; Reply Brief 10-11; see Tr. of Oral Arg. 7-8 (confirming that such allegations need not be express). That is so, Merrill Lynch contends, even if the plaintiff, as in this case, brings only state-law claims in his complaint-that is, seeks relief solely under state law. See Reply Brief 3-6. And it is so, Merrill Lynch continues, even if the plaintiff can prevail on those claims without proving that the alleged breach of an Exchange Act duty-here, the violation of Regulation SHO-actually occurred. See id., at 7-13; Tr. of Oral Arg. 3 ("[T]he words 'brought to enforce' [do not focus] on what the court would necessarily have to decide").
But a natural reading of § 27's text does not extend so far. "Brought" in this context means "commenced," Black's Law Dictionary 254 (3d ed. 1933); " to" is a word "expressing purpose [or] consequence," The Concise Oxford Dictionary 1288 (1931); and "enforce" means "give force [or] effect to," 1 Webster's New International Dictionary of the English Language 725 (1927). So § 27 confers federal jurisdiction when an action is commenced in order to give effect to an Exchange Act requirement. That language, in emphasizing what the suit is designed to accomplish, stops short of embracing any complaint that happens to mention a duty established by the Exchange Act. Consider, for example, a simple state-law action for breach of contract, in which the plaintiff alleges, for atmospheric reasons, that the defendant's conduct also violated the Exchange Act-or still less, that the defendant is a bad actor who infringed that statute on another occasion. On Merrill Lynch's view, § 27 would cover that suit; indeed, Merrill Lynch points to just such incidental *1569 assertions as the basis for federal jurisdiction here. See Brief for Petitioners 20-21; supra, at 1567. But that hypothetical suit is "brought to enforce" state contract law, not the Exchange Act-because the plaintiff can get all the relief he seeks just by showing the breach of an agreement, without proving any violation of federal securities law. The suit, that is, can achieve all it is supposed to even if issues involving the Exchange Act never come up.
Critiquing Merrill Lynch's position on similar grounds, Manning proposes a far more restrictive interpretation of § 27's language-one going beyond what he needs to prevail. See Brief for Respondents 27-33. According to Manning, a suit is "brought to enforce" the Exchange Act's duties or liabilities only if it is brought directly under that statute-that is, only if the claims it asserts (and not just the duties it means to vindicate) are created by the Exchange Act. On that view, everything depends (as Justice Holmes famously said in another jurisdictional context) on which law "creates the cause of action."
American Well Works Co. v. Layne & Bowler Co.,
Manning's view of the text's requirements, although better than Merrill Lynch's, veers too far in the opposite direction. There is no doubt, as Manning says, that a suit asserting an Exchange Act cause of action fits within § 27's scope: Bringing such a suit is the prototypical way of enforcing an Exchange Act duty. But it is not the only way. On rare occasions, as just suggested, a suit raising a state-law claim rises or falls on the plaintiff's ability to prove the violation of a federal duty. See,
e.g.,
Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg.,
An existing jurisdictional test well captures both classes of suits "brought to enforce" such a duty. As noted earlier,
*1570
Gunn v. Minton,
568 U.S. ----, ----,
Merrill Lynch objects that our rule construes "completely different language"-
i.e.,
the phrases "arising under" and "brought to enforce" in § 1331 and § 27, respectively-"to mean exactly the same thing." Reply Brief 7. We cannot deny that point. But we think it far less odd than Merrill Lynch does. After all, the test for § 1331 jurisdiction is not grounded in that provision's particular phrasing. This Court has long read the words "arising under" in Article III to extend quite broadly, "to all cases in which a federal question is 'an ingredient' of the action."
Merrell Dow Pharmaceuticals Inc. v. Thompson,
Nor can Merrill Lynch claim that Congress's use of the new "brought to enforce" language in § 27 shows an intent to depart from a settled (even if linguistically ungrounded) test for statutory "arising under" jurisdiction. That is because no such well-defined test then existed. As we recently noted, our caselaw construing § 1331 was for many decades-including when the Exchange Act passed-highly "unruly."
Gunn,
568 U.S., at ----,
B
This Court has reached the same conclusion before. In two unrelated decisions, we addressed the "brought to enforce" language at issue here. See
Pan American,
Pan American
involved § 22 of the Natural Gas Act (NGA), 15 U.S.C. § 717u -an exclusive jurisdiction provision containing language materially indistinguishable from § 27's.
5
The case began in state court when a natural gas purchaser sued a producer for breach of a contract setting sale prices. Prior to the alleged breach, the producer had filed those contractual rates with the Federal Power Commission, as the NGA required. Relying on that submission (which the complaint did not mention), the producer claimed that the buyer's suit was "brought to enforce" a liability deriving from the NGA-
i.e.,
a filed rate-and so must proceed in federal court. See
Our decision explained that § 22's use of the term "brought to enforce," rather than "arising under," made no difference to the jurisdictional analysis. The inquiry, we wrote, was "not affected by want" of the language contained in the federal question statute.
Pan American
thus went on to analyze the jurisdictional issue in the manner set out in our "arising under" precedents. Federal question jurisdiction lies, the Court wrote, only if "it appears from the face of the complaint that determination of the suit depends upon a question of federal law."
Merrill Lynch reads
Pan American
more narrowly, as holding only that § 22 does not confer federal jurisdiction when a complaint (unlike Manning's) fails to reference federal law at all. See Brief for Petitioners 32-33, 38. But that argument ignores
Pan American
's express statement of equivalence between § 27's language and the federal question statute's: "Brought to enforce" has the same "limitation[s]" (meaning, the same scope) as "arising under."
As a fallback, Merrill Lynch claims that
Pan American
is irrelevant here because it relied on legislative history distinct to the NGA in finding § 22's "brought to enforce" language coterminous with "arising under." See Brief for Petitioners 38-39. The premise of that argument is true enough: In support of its holding, the Court quoted a Committee Report describing § 22 as conferring federal jurisdiction "over cases arising under the act."
In any event, this Court in
Matsushita
addressed § 27 itself, and once again equated the "brought to enforce" and "arising under" standards. That decision arose from a state-law action against corporate directors for breach of fiduciary duty. The issue was whether the state court handling the suit could approve a settlement releasing, in addition to the state claims actually brought, potential Exchange Act claims that § 27 would have committed to federal court. In deciding that the state court could do so, we described § 27-not once, not twice, but three times-as conferring exclusive jurisdiction of suits "arising under" the Exchange Act. See
And still more: The
Matsushita
Court thought clear that the suit as filed-which closely resembled Manning's in its mix of state and federal law-fell outside § 27's grant of exclusive jurisdiction. As just noted, the claims brought in the
Matsushita
complaint sought relief for breach of a state-law duty. But in support of those claims, the plaintiffs charged, much as Manning did here, that the defendants' conduct also violated federal securities laws. See
C
Construing § 27, consistent with both text and precedent, to cover suits that arise under the Exchange Act serves the goals we have consistently underscored in interpreting jurisdictional statutes. Our reading, unlike Merrill Lynch's, gives due deference to the important role of state courts in our federal system. And the standard we adopt is more straightforward and administrable than the alternative Merrill Lynch offers.
Out of respect for state courts, this Court has time and again declined to construe federal jurisdictional statutes more expansively than their language, most fairly read, requires. We have reiterated the need to give "[d]ue regard [to] the rightful independence of state governments"-and more particularly, to the power of the States "to provide for the determination of controversies in their courts."
Romero,
Nor does this Court's concern for state court prerogatives disappear, as Merrill Lynch suggests it should, in the face of a statute granting exclusive federal jurisdiction. See Brief for Petitioners 23-27. To the contrary, when a statute mandates, rather than permits, federal jurisdiction-thus depriving state courts of all ability to adjudicate certain claims-our reluctance to endorse "broad reading[s],"
Romero,
Our precedents construing other exclusive grants of federal jurisdiction illustrate those principles. In
Pan American,
for example, we denied that a state court's resolution of state-law claims potentially implicating the NGA's meaning would "jeopardize the uniform system of regulation" that the statute established.
So too here, when state courts, in deciding state-law claims, address possible issues of the Exchange Act's meaning. Not even Merrill Lynch thinks those decisions wholly avoidable: It admits that § 27 does nothing to prevent state courts from resolving Exchange Act questions that result from defenses or counterclaims. See Brief for Petitioners 32-33;
Pan American,
Reading § 27 in line with our § 1331 caselaw also promotes "administrative simplicity[, which] is a major virtue in a jurisdictional statute."
Hertz Corp. v. Friend,
Making matters worse, Merrill Lynch's rule is simple for plaintiffs to avoid-or else, excruciating for courts to police. Under that rule, a plaintiff electing to bring state-law claims in state court will purge his complaint of any references to federal securities law, so as to escape removal. Such omissions, after all, will do nothing to change the way the plaintiff can present his case at trial; they will merely make the complaint less informative. Recognizing the potential for that kind of avoidance, Merrill Lynch argues that a judge should go behind the face of a complaint to determine whether it is the product of "artful pleading." See Tr. of Oral Arg. 7 (If the plaintiffs "had just literally whited out, deleted the references to Reg [ulation] SHO," the court should still understand the complaint to allege a breach of that rule; "the fact [that the plaintiffs] didn't cite it wouldn't change the fact"). We have no idea how a court would make that judgment, and get cold comfort from Merrill Lynch's assurance that the question would arise not in this case but in "the next third, fourth, fifth case down the road." Id., at 8. Jurisdictional tests are built for more than a single dispute: That Merrill Lynch's threatens to become either a useless drafting rule or a tortuous inquiry into artful pleading is one more good reason to reject it.
III
Section 27 provides exclusive federal jurisdiction of the same class of cases as "arise under" the Exchange Act for purposes of § 1331. The text of § 27, most naturally read, supports that rule. This Court has adopted the same view in two prior cases. And that reading of the statute promotes the twin goals, important in interpreting jurisdictional grants, of respecting state courts and providing administrable standards.
Our holding requires remanding Manning's suit to state court. The Third Circuit found that the District Court did not have jurisdiction of Manning's suit under § 1331 because all his claims sought relief under state law and none necessarily raised a federal issue. See supra, at 1567. Merrill Lynch did not challenge that ruling, and we therefore take it as a given. And that means, under our decision today, that the District Court also lacked jurisdiction under § 27. Accordingly, we affirm the judgment below.
It is so ordered.
Justice THOMAS, with whom Justice SOTOMAYOR joins, concurring in the judgment.
The Court concludes that respondents' suit belongs in state court because it does not satisfy the multifactor, atextual standard that we have used to assess whether a suit is one "arising under" federal law,
I
A
Section 27 provides that "[t]he district courts ... shall have exclusive jurisdiction ... of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder." § 78aa(a). * As the Court explains, under a "natural reading," § 27 "confers federal jurisdiction when an action is commenced in order to give effect to an Exchange Act requirement." Ante, at 1568; see also Webster's New International Dictionary of the English Language 725 (1927) ("enforce" means "give force to" or "give effect to"). And by providing "exclusive jurisdiction" to federal district courts over certain suits, § 27 strips state courts of jurisdiction over such suits.
Put differently, under § 27 a suit belongs in federal court when the complaint requires a court to enforce an Exchange Act duty or liability. In contrast, a suit belongs in state court when the complaint "assert[s] purely state-law causes of action" that do not require "binding legal determinations of rights and liabilities under the Exchange Act" or "a judgment on the merits of" an Exchange Act breach.
Matsushita Elec. Industrial Co. v. Epstein,
The statutory context bolsters this understanding. That context confirms that Congress reserved some authority to state courts to adjudicate securities-law matters. Although the Act provides numerous federal "rights and remedies," it also generally preserves "all other rights and remedies that may exist at law or in equity," such as claims that could be litigated in state courts of general jurisdiction. 15 U.S.C. § 78bb(a)(2). That provision shows that "Congress plainly contemplated the possibility of dual litigation in state and federal courts relating to securities transactions."
Matsushita, supra,
at 383,
A natural reading promotes the uniform interpretation of the federal securities laws
*1577
that Congress sought to ensure when it gave federal courts "exclusive jurisdiction" over federal securities-law suits. § 78aa(a). The textual approach fosters uniformity because it leaves to federal courts-which are presumptively more familiar with the intricate federal securities laws-the task of "adjudicat[ing] ... Exchange Act claims."
Matsushita,
The statutory text and structure thus support a straightforward test: Section 27 confers federal jurisdiction over a case if the complaint alleges claims that necessarily depend on establishing a breach of an Exchange Act requirement.
B
The Third Circuit was correct to remand this suit to state court. Respondents' complaint does not seek "to enforce any liability or duty created by" the Exchange Act or its regulations. § 78aa(a).
Although respondents' complaint alleges at different places that petitioners violated the Exchange Act or its regulations, the complaint does not bring claims requiring enforcement of the Exchange Act or its regulations. The complaint instead brings 10 state-law causes of action that seek to enforce duties and liabilities created by state law. Count 2 alleges that petitioners violated state law by investing money derived from racketeering. See App. to Pet. for Cert. 91a-93a, Amended Complaint ¶¶ 114-122 (citing N.J. Stat. Ann. § 2C:41-2a (West 2005)). Counts 3 through 9 allege standard state-law contract and tort claims: unjust enrichment, unlawful interference with economic advantage, tortious interference with contractual relations, unlawful interference with contractual relations, third-party-beneficiary claims, breach of the covenant of good faith and fair dealing, and negligence. See App. to Pet. for Cert. 93a-101a, Amended Complaint ¶¶ 123-158. Count 10 pleads a freestanding claim for punitive and exemplary damages. See
Count 1 presents a closer call, but it too does not trigger federal jurisdiction. That count pleads that petitioners violated a state law that makes it unlawful for a person to participate in a racketeering enterprise.
II
Although the Court acknowledges the "natural reading" of § 27,
ante,
at 1568, it holds that § 27 adopts the jurisdictional test that this Court uses to evaluate federal-question jurisdiction under
A
The Court first argues that "it is impossible to infer that Congress, in enacting § 27, wished to depart from what we now understand as the 'arising under' standard" because there was no "well-defined test" to depart from.
Ante,
at 1571. The Court's case law construing § 1331, the Court explains, "was for many decades-including when the Exchange Act passed-highly unruly."
But when Congress enacts a statute that uses different language from a prior statute, we normally presume that Congress did so to convey a different meaning. See,
e.g.,
Crawford v. Burke,
That is especially true given that § 27 does not use words supporting the convoluted arising-under standard. Section 27 does not ask (for example) whether a federal issue is substantial or whether a ruling on that issue will upset the congressionally approved balance of federal and state power. Indeed, § 1331
itself
does not even use words supporting the arising-under standard. See
ante,
at 1570 - 1571 (acknowledging that the arising-under standard "does not turn on § 1331's text"). Rather, the Court has refused to give full effect to § 1331's "broa[d] phras[ing]" and has instead "continuously construed and
*1579
limited" that provision based on extratextual considerations, such as "history," "the demands of reason and coherence," and "sound judicial policy."
Romero v. International Terminal Operating Co.,
B
The Court next relies on two prior decisions-
Pan American Petroleum Corp. v. Superior Court of Del. for New Castle Cty.,
In
Pan American,
the Court held that Delaware state courts had jurisdiction over state-law contract claims that arose from contracts for the sale of natural gas.
But
Pan American
does not require the Court to engraft the arising-under standard onto § 27.
Pan American
did not carefully analyze the Natural Gas Act's text or assess the contemporary meaning of the central phrase "brought to enforce." Instead, the Court relied on legislative history, reasoning that "authoritative [congressional] Committee Reports" implied a limitation on the Natural Gas Act's jurisdictional text.
Matsushita
provides even less support for the Court's holding today. In that case the Court held that Delaware courts could issue a judgment approving a settlement releasing securities-law claims even though the settlement released claims that were (by virtue of § 27) "solely within the jurisdiction of the federal courts."
The Court relies on
Matsushita
because in that case we three times "described" § 27 "as conferring exclusive jurisdiction of suits 'arising under' the Exchange Act."
Ante,
at 1572 (citing
C
Finally, the Court argues that its interpretation "serves the goals" that our precedents have "consistently underscored in interpreting jurisdictional statutes"-affording proper deference to state courts and promoting administrable jurisdictional rules. Ante, at 1573 see ante, at 1573 - 1575. But hewing to § 27's text serves these goals as well as or better than does adopting the arising-under standard.
First, the text-based view preserves state courts' authority to adjudicate numerous securities-law claims and provide relief consistent with the Exchange Act's design. See supra, at 1575 - 1577. As explained above, that view places all of respondents' state-law causes of action in state court. See supra, at 1577 - 1578. The text-based view thus "decline[s] to construe [a] federal jurisdictional statut[e] more expansively than [its] language, most fairly read, requires." Ante, at 1573.
Second, the textual test is also more administrable than the arising-under standard. The arising-under standard "is anything but clear."
Grable,
* * *
For these reasons, I concur in the judgment.
As the Court explains, the parties have not pressed us to construe § 27's language conferring jurisdiction over "violations" of the Exchange Act, its rules, or its regulations. See ante, at 1568, n. 2. Like the Court, I focus on § 27's "brought to enforce" language.
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See
United States v. Detroit Timber & Lumber Co.,
Compare
Section 27 also grants federal courts exclusive jurisdiction of "violations of [the Exchange Act] or the rules and regulations thereunder." 15 U.S.C. § 78aa(a). Manning argues that the "violations" language applies only to criminal proceedings and SEC enforcement actions. See Brief for Respondents 28. Merrill Lynch, although not conceding that much, believes the "violations" clause irrelevant here because, in private suits for damages, it goes no further than the "brought to enforce" language quoted in the text. See Reply Brief 1, n. 1. Given that both parties have thus taken the "violations" language off the table, we do not address its meaning.
See Securities Act of 1933, 15 U.S.C. § 77v(a) ; Federal Power Act of 1935, 16 U.S.C. § 825p ; Connally Hot Oil Act of 1935, 15 U.S.C. § 715i(c) ; Natural Gas Act of 1938, 15 U.S.C. § 717u ; Trust Indenture Act of 1939, 15 U.S.C. § 77vvv(b) ; Investment Company Act of 1940, 15 U.S.C. § 80a-43 ; Investment Advisers Act of 1940, 15 U.S.C. § 80b-14(a) ; International Wheat Agreement Act of 1949,
The concurrence adopts a slightly different approach, placing in federal court Exchange Act claims plus
all
state-law claims necessarily raising an Exchange Act issue. See
post,
at 1576 - 1577 (THOMAS, J., concurring in judgment). In other words, the concurrence would not ask, as the "arising under" test does, whether the federal issue embedded in such a state-law claim is also substantial, actually disputed, and capable of resolution in federal court without disrupting the congressionally approved federal-state balance. See
post,
at 1578 - 1579;
Grable & Sons Metal Products, Inc
.
v
.
Darue Engineering & Mfg.,
Section 22 grants federal courts exclusive jurisdiction "of all suits in equity and actions at law brought to enforce any liability or duty created by ... [the NGA] or any rule, regulation, or order thereunder."
The
Romero
Court continued: "A reluctance which must be even more forcefully felt when the expansion is proposed, for the first time, eighty-three years after the jurisdiction has been conferred."
Reference
- Full Case Name
- MERRILL LYNCH, PIERCE, FENNER & SMITH INC., Et Al., Petitioners v. Greg MANNING, Et Al.
- Cited By
- 195 cases
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- Published