Dеbra GARIETY; Horst O. Bischoff, as Trustee of Bischoff Family Trust; Pamela Hanyzewki; John J. Cline; Thomas Allen, Individually and on Behalf of all Others Similarly Situated; Thomas J. Shannon, Jr., as Trustee, Natural Parent and Guardian of; SMV Holding Company, PLL; Vincent Paul; Charles Thornton, Individually and as Trustee, SEP; Fred L. Millner; Warren H. Hyde; Caryl Hyde; Teen Response, Incorporated; Elizabeth B. Sponseller; Michael J. Sponseller; Terry Overholser; and Lawrence Corman, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. GRANT THORNTON, LLP, Defendant-Appellant
No. 03-1629
United States Court of Appeals, Fourth Circuit
May 12, 2004
368 F.3d 356
No. 03-1629.
United States Court of Appeals, Fourth Circuit.
Argued: Feb. 27, 2004.
Decided: May 12, 2004.
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed in part, vacated in part and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge SHEDD and Senior Judge HAMILTON joined.
NIEMEYER, Circuit Judge:
Grant Thornton LLP, a national accounting firm, appeals the district court‘s
As more fully discussed below, we conclude that the district court‘s reliance on mere assertions did not fulfill the requirements that the district court take a “close look” at relevant matters, conduct a “rigorous analysis,” and make findings in determining whether the plaintiffs have demonstrated that the requirements of
I
Until the early 1990s, the First National Bank of Keystone (“Keystone“) was a relatively small community bank in McDowell County, West Virginia. In 1992, Keystone embarked on a growth strategy through which it became a niche lender focusing on subprime mortgage loans (i.e., loаns extended to higher risk borrowers), and in late 1993, it began buying Federal Housing Authority home improvement loans, pooling them, and selling shares in them to investors—a process called loan securitization. To pursue its loan securitization business, Keystone entered into financing relationships with other banks, paying higher than normal interest rates. In 1997, Keystone began to securitize its own high loan-to-value loans made to highly leveraged borrowers with little or no collateral. During these years, Keystone made its highly risky securitization business its principal business. From 1992, when Keystone had assets of $107 million, to 1999, Keystone‘s business grew almost tenfold. In 1995, Keystone was reported to be one of the most profitable community banks in the nation, and by 1999, it reported assets of $1.1 billion. Keystone was listed No. 1 in American Banker‘s June 1999 list of “the 75 most profitable large community banks,” with a “whopping” 7.24% return on average assets in 1998.
From 1992 until 1999, the Office of the Comptroller of thе Currency (“OCC“) examined Keystone‘s books annually, but the examinations proved unsatisfactory to OCC because of mutual distrust and the bank‘s resistance to examiners’ findings. The examinations repeatedly uncovered unsafe and unsound banking practices and regulatory violations, yet OCC enforcement actions proved largely ineffective. In May 1998, pursuant to an agreement with the OCC to hire an outside auditor, Keystone hired the accounting firm of Grant Thornton LLP. Grant Thornton issued an audit report on April 19, 1999 (the “Audit Report“), which revealed no problem in Keystone‘s statement of assets. The July 1999 edition of Walker‘s Manual of Unlist-
While OCC‘s examinations of Keystone generally focused on the credit risk associated with subprime mortgage loan securitizations, it was not until August 1999 that OCC independently verified that Keystone was unable to substantiate $515 million in loan assets, constituting almost one-half of its assets. On September 1, 1999, the OCC announced that Keystone was insolvent, and it closed the bank. A few months later, the FDIC‘s Bank Insurance Fund determined that the Keystone failure would cost the Fund between $750 and $850 million, making the loss one of the largest in history. A subsequent investigation by the Office of Inspector General determined that Keystone had been suffering heavy losses early in its growth period and that by late 1996 Keystone had become insolvent. Keystone conсealed its financial condition by continuing to record loans as assets even after they had been sold to investors as part of a securitized loan pool. The Office of Inspector General concluded that “[a]lleged fraudulent accounting practices, uncooperative bank management and reported high profitability may have all served to mask the bank‘s true financial condition from OCC examiners.”
The plaintiffs, who were purchasers of Keystone stock during the period after Grant Thornton issued its Audit Report on April 19, 1999, and before the OCC closed the bank on September 1, 1999, commenced this action to recover damages suffered by reason of the bank‘s failure. The plaintiffs proposed to represent a class of all purchasers of Keystone stock during the April-to-September period. Their amended complaint, which alleged four counts of federal securities fraud and seven counts of fraud under state law, named as defendants Grant Thornton, other accountants, former Keystone directors and officers, broker-dealers, and other Keystone stockholders who allegedly dumped Keystone stock based on inside information.
Plaintiffs settled their claims with a number of the defendants, including Keystone‘s former auditors, Keystone‘s outside directors, and certain of the broker defendants. To implement the settlement agreement, the district court certified a class and, after a final fairness hearing conducted on June 23, 2003, approved the class settlement as to the settling defendants. No one objected to the settlement, and it has now become final. Grant Thornton, however, was not a party to the settlement and has continued to defend this action.
In the complaint‘s counts against Grant Thornton, the plaintiffs alleged violations of
In their motion to certify the action as a class action under
By an order dated March 28, 2003, the district court ruled that plaintiffs could maintain this action as a class action under
This court declines to make a detailed examination here of the efficiency of the market in which Keystone shares were traded because it would require the court to make judgments and conclusions regarding the extent and nature of the fraud alleged by the plaintiffs. Such determinations, in the absence of the procedural safeguards available at trial or the legal standard of sufficiency for summary judgment, could theoretically prejudice a party. . . . The court finds the fact that the plaintiffs have asserted that the Keystone market was efficient is enough at the certification stage to find the market efficient.
In response to Grant Thornton‘s additional argument that
Pursuant to
II
The underlying principles for certifying a class action are not controverted. A district court may, in its discretion, order that an action proceed as a class action only if it finds that the requirements of
The claims on which the plaintiffs seek to proceed against Grant Thornton as representatives of a class are essentially securities-fraud claims under federal and state law. To prove a violation of the federal antifraud рrovisions of
Reliance can, however, be treated as a common issue if it is presumed under the theory that the defendants defrauded the market—not the individual plaintiffs—so long as the plaintiffs purchased their stock in an efficient market. The “fraud-on-the-market” theory was recognized by the Supreme Court in Basic as a way to litigate securities-fraud class actions.
In Basic, the Court acknowledged that
The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company‘s stock is determined by the available material information regarding the company and its business. . . . Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements. . . . The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in the case of direct reliance on misrepresentations.
Id. at 241-42 (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir. 1986)). The Basic Court emphasized the difference between “modern securities markets, literally involving millions of shares changing hands daily, [and] the face-to-face transactions contemplated by early fraud cases. . . .” Id. at 243-44. With face-to-face transactions, the reliance inquiry focuses on the “subjective pricing” of information before an investor. Id. at 244. In a modern securities market, by contrast,
the market is interposed between seller and buyer and, ideally, transmits information to the investor in the processed form of a market price. Thus thе market is performing a substantial part of the valuation process performed by the investor in a face-to-face transaction. The market is acting as the unpaid agent of the investor, informing him that given all the information available to it, the value of the stock is worth the market price.
Id. (quoting In re LTV Sec. Litig., 88 F.R.D. 134, 143 (N.D. Tex. 1980)). Persuaded that “the market price of shares traded on well-developed markets reflects all publicly available information, and, hence, any material misrepresentations,” the Court concluded that “[a]n investor who buys or sells stock at the price set by the market does so in reliance on the integrity of that price.” Id. at 246-47. The Court held that “[b]ecause most publicly available information is reflected in market price, an investor‘s reliance on any public material misrepresentations, therefore, may be presumed for
Application of the reliance presumption is not, however, automatic in all federal securities-fraud actions. To gain the benefit of the presumption, a plaintiff must prove “(1) that the defendant made public misrepresentations; (2) that the misrepresentations were material; (3) that the shares were traded on an efficient market“; and (4) that the plaintiff purchased the shares after the misrepresentations but before the truth was revealed. Basic, 485 U.S. at 248 n.27 (citing Levinson v. Basic, Inc., 786 F.2d 741, 750 (6th Cir. 1986)).
In this case, Grant Thornton contends that the fraud-on-the-market theory cannot be applied to create the reliance presumption because (1) Keystone‘s shares were not traded on an efficient market, and (2) Grant Thornton did not make any public misrepresentations—i.e., misrepresentations on which the market could rely. It therefore contends that as a matter of law, the district court erred in applying the fraud-on-the-market presumption of reliance. Without that presumption, the plaintiffs must prove individualized reliance and therefore almost certainly cannot meet the requirement of
In its certification order, the district court recognized that “the predominance requirement can be a sticking point in securities class action certifications where fraud is alleged because individual issues of reliance on fraudulent misrepresentations may be such as to undercut a showing of predominance.” Indeed, the court observed that in this case “plaintiffs were in fact exposed to differing combinations of omissions and misrepresentations, including some oral, making individual reliance a live issue.” To overcome this barrier to finding predominance under
the fact that the plaintiffs have asserted that the Keystone market was efficient is enough at the certification stage to find the market efficient. . . . The plaintiffs further assert that they all purchased Keystone stock during the period when the fraud they allege was perpetrated on the market. Accordingly, the plaintiffs have demonstrated to the satisfaction of the court that they are entitled to a presumption of reliance for their fraud claims under the Securities Exchange Act.*
When
Time may be needed to gather information necessary to make the certification decision. Although an evaluation of the probable outcome on the merits is not properly part of the certification decision, discovery in aid of the certification decision often includes information required to identify the nature of the issues that actually will be presented at trial. In this sense, it is appropriate to conduct controlled discovery into the “merits,” limited to those aspects relevant to making the certification decision оn an informed basis.
The Eisen decision, upon which the district court relied, does not require a court to accept plaintiffs’ pleadings when assessing whether a class should be certified. In
Thus, while an evaluation of the merits to determine the strength of plaintiffs’ case is not part of a
The district court‘s concern that
At bottom, we agree with the conclusion reached by the Seventh Circuit when it observed:
The proposition that a district judge must accept all of the complaint‘s allegations when deciding whether to certify a class cannot be found in
Rule 23 and has nothing to recommend it. . . . Before deciding whether to allow a case to proceed as a class action . . . a judge should make whatever factual and legal inquiries are necessary underRule 23 . . . . And if some of the considerations underRule 23(b)(3) . . . overlap the merits . . . then the judge must make a preliminary inquiry into the merits.
Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675-76 (7th Cir. 2001).
We must not lose sight of the fact that when a district court considers whether to certify a class action, it performs the pub-
Because the district court concededly failed to look beyond the pleadings and conduct a rigorous analysis of whether Keystone‘s shares traded in an efficient market, we must remand the case to permit the district court to conduct the analysis and make the findings required by
III
When the district court indicated that it was relying only on the plaintiffs’ assertions to determine whether the predominance requirement had been satisfied, the court also said that “had it chosen to make an investigation into [the] efficiency of the market in question,” it would have found evidence to support a finding of market efficiency, citing the drop in price of Keystone shares during the days after the OCC closed the bank. Not only does this hypothetical finding fail to comport with the rigorous analysis required when determining whether a case may procеed as a class action, but it also overlooks the substantive requirements that a plaintiff must satisfy to sustain the fraud-on-the-market theory.
The fraud-on-the-market theory was recognized as a surrogate for individualized reliance, creating a presumption of reliance, based on the proposition that “[a]n investor who buys or sells stock at the price set by the market does so in reliance on the integrity of that price.” Basic, 485 U.S. at 247. The fraud-on-the-market theory “interpret[s] the reliance requirement to mean reliance on the integrity of the market price rather than reliance on the challenged disclosure.” Daniel R. Fischel, Efficient Capital Markets, the Crash, and the Fraud on the Market Theory, 74 Cornell L. Rev. 907, 908 (1989). In contrast to face-to-face transactions, where an investor has no reason to rely on the integrity of an offered price because the price may not reflect available information, “[t]he central premise of the fraud on the market theory is that prices of actively traded securities reflect publicly available information.” Id. at 911; see also Basic, 485 U.S. at 243-44 (quoting In re LTV Sec. Litig., 88 F.R.D. at 143) (contrasting face-to-face transactions with modern securities markets). For face-to-face transactions, the reliance requirement serves
to ensure that the plaintiffs who would not have acted differently if the true information were known cannot recover. The requirement guarantees, in other words, that information that does not affect a buyer‘s or seller‘s view of the merits of a transaction cannot form the basis of a cause of action. In organized markets, however, the market has already performed the function of distinguishing between unimportant and important information.
Daniel R. Fischel, Use of Modern Finance Theory in Securities Fraud Cases Involving Actively Traded Securities, 38 Bus. Lаw. 1 (1982). A reasonable investor will rely on the integrity of the market price, however, only if the market is efficient, because in an efficient market, “the market price has integrity[;] it adjusts rapidly to reflect all new information.” Jonathan R. Macey & Geoffrey P. Miller, Good Finance, Bad Economics: An Analysis of the Fraud-on-the-Market Theory,
Although Basic clearly requires that a market be efficient in order for the fraud-on-the-market presumption of reliance to be invoked, 485 U.S. at 248 n.27, the decision offers little guidance for determining whether a market is efficient. The Court does refer to “modern securities markets, literally involving millions of shares changing hands daily,” id. at 243, but that is obviously a general statement offered as a contrast to face-to-face transactions and is not meant as a necessary requirement for finding that a market is efficient. Of more relevance, but only of limited guidance, are the Court‘s references to an “open and developed” market and an “impersonal, well-developed market.” See id. at 241, 247.
Nonetheless, it is recognized that it is “[r]ivalrous competition among market professionals [that] drives securities prices to their efficient levels.” Macey & Miller, supra, at 1086; see also West v. Prudential Sec., Inc., 282 F.3d 935, 937 (7th Cir. 2002) (“The theme of Basic and other fraud-on-the-market decisions is that public information reaches professional investors, whose evaluations of that information and trades quickly influence securities prices“); Eckstein v. Balcor Film Investors, 8 F.3d 1121, 1129 (7th Cir. 1993) (“Competition among savvy investors leads to a price that impounds all available information, even knowledge that is difficult to articulate. We call a market ‘efficient’ because the price reflects a consensus about the value of the security being traded . . .“). Thus, “[t]he more thinly traded the stock, the less well the price reflects the latest pieces of information.” Eckstein, 8 F.3d at 1130.
As a consequence, to determine whether a security trades on an efficient market, a court should consider factors such as, among others, whether the security is actively traded, the volume of trades, and the extent to which it is followed by market professionals. See, e.g., Cammer v. Bloom, 711 F. Supp. 1264, 1285-87 (D.N.J. 1989) (examining (1) average trading volume, (2) number of securities analysts following the stock, (3) number of market makers, (4) whether the company was entitled to file an S-3 Registration Statement, if relevant, and (5) evidence of a cause and effect relationship between unexpected news and stock-price changes).
While the district court‘s brief allusion to the drop in the price of Keystone‘s shares during the days after the OCC announced that Keystone was insolvent reflects the assimilation of market information at its grossest level, that single piece of information, standing alone, does not rеpresent adequate evidence that the plaintiffs in this case purchased their shares of Keystone stock in an efficient market. But this is not to say that there is no other evidence for the court to consider. There is. Substantial discovery has taken place since the district court issued its certification order, and on remand, the court is free to consider matters developed through this discovery, as well as other matters it considers appropriate for making its
IV
Also in connection with the issue of whether the district court conducted a sufficiently rigorous analysis of the predominance requirement of
A
Grant Thornton properly notes that in order to rely on presumed reliance flowing from an application of the fraud-on-the-market theory, the plaintiffs must demonstrate, among other things, that the defendant made a public misrepresentation. See Basic, 485 U.S. at 248 n.27. It also notes that such a misrepresentation must be directly attributable to Grant Thornton and not to some other person, because liability under
In this case, the plaintiffs contend that Grant Thornton can be held liable for public misrepresentations from (1) the contents of its Audit Report; (2) its alleged substantial participation in the preparation of Keystone‘s Call Reports filed with the FDIC; and (3) “the verbatim recitation of financial information contained in the Audit Report included in Walker‘s Manual.” Grant Thornton argues that it could not be so liable because the Audit Report was not publicly filed and Grant Thornton was not the author, nor credited as the author, of the FDIC Call Reports or the summary contained in Walker‘s Manual.
In addressing this issue and reaching the conclusion that the plaintiffs fulfilled the requirement in this respect for satisfying the fraud-on-the-market theory, the district court again relied on mere allegations made by the plaintiffs that Grant Thornton “actively falsified Call Reports sent to the FDIC,” that “the falsified reports influenced public opinion about Keystone,” and that Walker‘s Manual contained a summary of the Audit Report. Because the district court must, on remand, make a finding of whether common issues predominate over individual issues in the context of reliance and the application of fraud-on-the-market theory, it should also address more completely whether Grant Thornton made a public misrepresentation for which it may be found primarily liable. See Wright v. Ernst & Young LLP, 152 F.3d 169, 175 (2d Cir. 1998) (“[A] secondary actor cannot incur primary liability under the [Securities Exchange] Act for a statement not attributed to that actor at the time of its dissemination“); Anixter, 77 F.3d at 1226 (“[F]or an accountant‘s misrepresentation to be actionable as a primary violation, . . . [he] must [himself] make a false or misleading statement (or omission) that [he] know[s] or should know will reach potential investors“). But see In re Software Toolworks, Inc. Sec. Litig., 50 F.3d 615, 628 n.3 (9th Cir. 1994) (acknowledging Central Bank and holding that a secondary actor can be primarily liable under
B
Apart from the fraud-on-the-market theory, Grant Thornton contends that because the law of several States will have to be applied to resolve state law claims, such individual determinations would preclude a finding of predominance under
The district court allowed that the laws of at least six States are applicable, and the plaintiffs do not dispute Grant Thornton‘s characterization of these laws as including a reliance requirement. Moreover, as Grant Thornton points out, the laws of the six States identified relate only to the 16 representative parties and not to the absent class members. The proposed class includes 150 оr more persons, and with respect to the absent class members, the applicable state law has not yet been identified. The plaintiffs have the burden of showing that common questions of law predominate, and they cannot meet this burden when the various laws have not been identified and compared. Moreover, with the potential for individualized reliance determinations having to be made under the law of at least six different States, the district court did not explain why it could find the predominance requirement satisfied. At least four of the States identified so far have declined to adopt the fraud-on-the-market presumption of reliance to substitute for finding individualized reliance. See In re Medimmune, Inc. Sec. Litig., 873 F. Supp. 953, 968 (D. Md. 1995); Kaufman v. i-Stat Corp., 165 N.J. 94, 754 A.2d 1188, 1200-01 (2000); Ackerman v. Price Waterhouse, 252 A.D.2d 179, 683 N.Y.S.2d 179, 192 (App. Div. 1998); Kahler v. E.F. Hutton, 558 So. 2d 144, 145 (Fla. Dist. Ct. App. 1990). And, as we have indicated, individual inquiries into reliance typically preclude a finding that common issues of fact predominate. See Gunnells, 348 F.3d at 434-35; Broussard, 155 F.3d at 341; see also Castano, 84 F.3d at 745 (going so far as to hold that “a fraud class action cannot be certified when individual reliance will be an issue“).
Because the plaintiffs bear the burden in this regard of demonstrating satisfaction of the
V
Finally, Grant Thornton contends that the district court abused its discretion in appointing Horst Bischoff and Debra Gariety as lead class representatives under
The district court found that “whatever challenges Mr. Bischoff may face as a class representative,” he “has demonstrated that he is adequately involved in the litigation by reading pleadings and conferring with Ms. Gariety and his counsel regarding strategy.” We conclude that the district court did not abuse its discretion in making this finding.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED