991 F. Supp. 2d 479 | S.D.N.Y. | 2014
MEMORANDUM OPINION
This is yet the next chapter in the litigation regarding the standing instruction foreign exchange (“FX”) trading service provided by Bank of New York Mellon (“BNY Mellon”)
Here, a relator brings claims on behalf of four California governmental entities against BNY Mellon, its affiliates, and unnamed individuals under the California
Background
I. Procedural History
Relator FX Analytics first filed a complaint against defendants under seal in Alameda County Superior Court in October 2009. It asserted CFCA claims on behalf of a number of California governmental entities including, inter alia, Los Angeles County Retirement Association (“LACERA”), Los Angeles Department of Water & Power Employees’ Retirement Plan (“LADWP”), the Santa Barbara County Employees’ Retirement System Fund (“SBCERS”), and the Tulare County Employees’ Retirement Association Fund (“TCERS”).
In March 2012, the California district court held that none of the CFCA claims stated a legally sufficient claim, upheld the legal sufficiency of all of the non-CFCA claims except that for unjust enrichment, and held that the venue was improper as to LACERA’s complaint in consequence of a forum selection clause in the relevant custody agreement.
Meanwhile, pursuant to the March 2012 opinion, LACERA re-filed its claims in a new complaint in the Central District of California in September 2012. That case too was transferred to this Court by the JPML, and defendants moved to dismiss in December 2012.
Following filing of the motions to dismiss in December 2012, both LACERA and LADWP filed amended complaints, LACERA’s first and LADWP’s fifth. As previously indicated, the Court treats the December 2012 motions as being addressed to the subsequent amended complaints in the interest of judicial economy.
II. Factual Background
LACERA, LADWP, SBCERS, and TCERS each had a custodial agreement with BNY Mellon
From time to time, the clients wished to engage in FX trading, e.g., to convert foreign currency dividends into U.S. dollars. Each used BNY Mellon’s standing instruction service to do so. The Court assumes familiarity with its prior opinions that lay out the details of this program.
“In standing instruction (‘SI’) trading, BNY Mellon automatically converted its customers’ funds from one currency to another as such needs arose, informing the customer of the executed price only after the fact. It described the service, among other things, as providing ‘best execution.’ Plaintiffs in this and other actions have alleged, however, that this term had an industry meaning inconsistent with the Bank’s actual pricing practices. These practices, which were not disclosed to customers, were to price the trades at or near the least favorable interbank market rate of a given trading day. SI trading was highly profitable for BNY Mellon ... as its margins well exceeded those of directly negotiated FX transactions.”14
LACERA and LADWP allege that they or their investment managers signed certain FX procedure forms relating to the program.
Each client received monthly transaction statements relating to standing instruction transactions that indicated the prices at which their currencies had been converted during the prior month.
Aside from the FX conversion rates at which BNY Mellon executed the trades, certain clients allege that they paid separate and additional transaction fees for each standing instruction trade and that these transaction fees were billed on the custodial invoices discussed above. In particular, LACERA alleges that it was charged a fee ranging from $12 to $75 for each standing instruction trade.
Discussion
LADWP, LACERA, and relator (on behalf of TCERS and SBCERS) each brings claims under the CFCA. LADWP and LACERA bring claims also of breach of contract, breach of fiduciary duty, fraud by concealment, and violation of California Business and Professional Code Section 17200.
I. Breach of Contract
LACERA and LADWP contend that defendants are liable for breach of contract on a number of grounds, including their alleged failures to (1) provide best execution, (2) net trades, (3) keep proper records, (4) provide competitive rates, (5) exercise reasonable care in the execution of duties, and (6) disclose the standing instruction pricing scheme.
The Court denies defendants’ motions insofar as plaintiffs advance the theory of breach of contract this Court sustained in SEPTA — that FX procedure forms relating to standing instruction incorporated a contractual best execution obligation that defendants allegedly failed to meet.
Plaintiffs allege that defendants have breached a contractual obligation to net their trades based on a representation on defendants’ website that they would aggregate and net trades “based on guide
Plaintiffs allege also that the contracts obliged defendants “to provide extremely competitive market driven rates” and that defendants asserted that the competitiveness of their rates was ensured through a report showing rates falling outside of the daily range.
The Court has accepted the sufficiency of plaintiffs’ “best execution” theory because plaintiffs plausibly have alleged that the term has an industry meaning inconsistent with defendants’ pricing practices.
Nor may plaintiffs proceed on a theory that defendants’ pricing breached a contractual standard of reasonable care. To be sure, plaintiffs allege that defendants assumed a contractual duty to discharge their duties “with the competence, care, skill, prudence, and diligence prevailing in the custodial industry.”
Plaintiffs assert also a breach of the implied covenant of good faith and fair dealing. But as the Court explained in SEPTA, that contention is inapposite in this context.
II. Breach of Fiduciary Duty
LACERA and LADWP allege that their custodial contracts created a fiduciary relationship and that defendants breached their fiduciary duties. The Court considers the two alleged breaches of breach of fiduciary duty they advance.
A. Fiduciary Obligation to Provide Best Prices
First, SEPTA alleged that BNY Mellon was acting in a fiduciary capacity
LAJDWP’s complaint alleges little to warrant a different conclusion. It quotes a part of its custodial contract indicating that BNY Mellon “acknowledge[d] that it is a Plan fiduciary with respect to the duties undertaken pursuant to this Agreement.”
LACERA’s complaint is similarly deficient. It alleges that the contract defined “Custodian” as BNY Mellon “in its fiduciary capacity as the entity which is obligated to preserve, control and safekeep any Property” entrusted to it by LACERA.
Perhaps recognizing these deficiencies, plaintiffs rely almost entirely on supposed contractual language that appears nowhere within the four corners of the complaints. LADWP relies on language said to obligate BNY Mellon to “[t]ake actions necessary to settle transactions in ... foreign exchange or foreign exchange contracts.”
While the Court has discretion to consider language from documents such as these — the documents plainly are relied on by plaintiffs and are integral to the complaint — it declines to do so.
Thus, plaintiffs’ breach of fiduciary duty claim, insofar as it is premised on an alleged freestanding fiduciary obligation of BNY Mellon to provide the best possible pricing, is dismissed.
B. Alleged Misrepresentations and Nondisclosure
Despite dismissing the claim that BNY Mellon acted in a fiduciary capacity while executing SEPTA’s standing instruction trades, the Court permitted SEPTA to pursue a claim for breach of fiduciary duty based on assertions that BNY Mellon misleadingly described the program as providing “best execution”
Defendants have not provided a reason to rule differently here. They do not argue that LADWP or LACERA’s contracts warrant a different conclusion — as in SEPTA the Court concludes that standing instruction was closely related to BNY Mellon’s undisputed fiduciary duties, triggering a need for BNY Mellon not to mislead its clients when it sought further profit from the relationship. Defendants allude briefly to the fact that SEPTA was decided as a matter of Pennsylvania law, whereas California law governs the present case.
Indeed, if anything, California appears to recognize the same basic principles that supported SEPTA’s position under Pennsylvania law. In Van de Kamp v. Bank of America,
The Court cannot conclude as a matter of law that the duty of disclosure has been satisfied here.
Ill CFCA
LACERA, LADWP, and relator (on behalf of TCERS and SBCERS) bring several claims under the CFCA, which generally proscribes, among other things, the submission of false claims for money, property, or services, to the government. It has been designed “to prevent fraud on the public treasury”
A. The Relevant Version of the CFCA
As an initial matter, it is necessary to determine which of two versions of the CFCA applies here.
California substantially broadened potential liability under CFCA, effective in January 2010. Those changes generally conformed the CFCA to changes to the FCA in the 2009 Fraud Enforcement and Recovery Act (“FERA”).
Athough plaintiffs’
B. Section 12651 (a)(1)
Section 12651(a)(1) makes it unlawful to “[k]nowingly present[] or cause[] to be presented to an officer or employee of the state or of any political subdivision thereof, a false claim for payment or approval.”
1. Transaction Statements
Judge Asup rejected the transaction statement theory on the ground that those statements did not constitute “claims” under the CFCA.
Plaintiffs contend principally that the statements functionally were requests or demands because plaintiffs had the right to object to the transactions and not remain liable for the trades.
The structure of the CFCA is enlightening as well. In Section 12651(a)(4), the legislature specifically contemplated the possibility that a defendant might be liable — even in the absence of a “claim”— when it “[h]as possession, custody, or control of public property or money” and fails to deliver all of that property.
In so holding, the Court does not require plaintiffs to allege an explicit request or demand. Surely Sections 12651(a)(1) and (2) do not require a formal invoice for liability to attach; conduct amounting to an implicit request may be sufficient.
Finally, plaintiffs argue that the statements were implicit requests because “they induced [plaintiffs] to continue paying out money through the Standing Instruction service.”
2. Custodial Invoices
The Court thus turns to plaintiffs’ new theory, which has not been addressed by any other court — 'that their monthly custodial invoices constituted “false claims” under the CFCA.
Plaintiffs advance four separate theories as to why the custodial invoices were false.
a. False on Their Face
Plaintiffs contend first that the custodial invoices were false on their face because they allegedly “represented to Plaintiff[s] a flat-fee for [BNY Mellon’s] services but failed to disclose the significant amount of additional moneys Plaintiffs] paid over to the Bank through Standing Instruction FX services.”
Under Rule 9(b), “a party must state with particularity the circumstances constituting fraud.”
Plaintiffs’ pleadings as to this theory fall well short. Plaintiffs allege substantially nothing about the text of the custodial invoices. They fail to identify a single statement in any of the invoices that arguably was false or even misleading. Given that plaintiffs allege that they received
Plaintiffs’ inadequate pleadings would warrant dismissal under Rule 8 as well. Plaintiffs’ allegations do not explain how defendants’ invoicing of a flat custodial fee plausibly could have misled plaintiffs into believing that defendants were forswearing the ability to make additional compensation from the relationship. Plaintiffs’ subjective beliefs are irrelevant absent a plausible basis to conclude that the beliefs were reasonable and induced by the statements in question.
b. Underpinned by Fraud
Plaintiffs’ failure to allege any falsity on the face of the invoices does not end the matter. Some California courts have recognized that “the claim itself need not be false but only need be underpinned by fraud.”
Plaintiffs allege a number of different fraud theories. The Court takes them in turn.
i. Best Execution
The Court considers first whether plaintiffs adequately have alleged that the custodial invoices were underpinned by fraud due to defendants’ “best execution” representations — a theory sustained under the federal mail and wire fraud statutes in DOJ. Defendants principally challenge this theory for failing to allege inducement or reliance.
Defendants argue that these allegations are insufficient because plaintiffs nowhere allege that the fraud induced the original contract — they contend that “[p]laintiffs must allege that BNYM made misrepresentations about [the] standing instruction service which caused the Funds to retain BNYM as custodian.”
Defendants’ narrow understanding of the fraud-in-the-indueement theory has lit-tie to recommend it, and the Court rejects it. As the Fourth Circuit has described it, the critical question is whether the fraudulent conduct “caused the government to pay out money.”
In assessing whether the fraud induced payment of the invoices to create CFCA liability, it is natural to consider California’s “actual reliance” standard for common law fraud in the inducement claims.
Defendants therefore overreach in arguing that plaintiffs’ payment of custodial fees after the alleged fraud was revealed forecloses inducement as a matter of law. This argument may persuade at summary judgment or trial, but does not carry the day now. Moreover, at least certain plaintiffs allegedly were billed individual transaction fees for each standing instruction trade.
Nevertheless, plaintiffs’ allegations are conclusory and insufficient. Nowhere do plaintiffs allege that they or their agents reviewed the web page on which the “best execution” representation was made
ii. Fraudulent Omissions
Plaintiffs next allege that defendants fraudulently omitted their markups and time stamps on trades.
Nor have LACERA or LADWP alleged facts sufficient to establish such a duty to disclose. They were not acting in a fiduciary capacity as to standing instruction trades. While the Court has allowed them to proceed on claims of breach of fiduciary duty with respect to certain alleged misrepresentations and nondisclosures, neither LACERA nor LADWP has sought to explain how that would give rise to a duty to disclose the omissions of which they complain — markups and time stamps.
Hi. Remaining Theories
Plaintiffs allege that defendants fraudulently “assigned] fictitious FX rates to currency trades as exhibited in reports and statements.”
Plaintiffs allege that defendants fraudulently represented that they would offer competitive rates.
LACERA and LADWP, but not relator, allege that BNY Mellon fraudulently represented during the RFP process that it would act as a fiduciary and safekeep and accurately report the fund’s assets.
Finally, plaintiffs fail to allege that defendants’ representations regarding netting amounted to fraud for the reasons explained in DOJ.
c. Implied Certification
Under this theory, a contractor’s submission of a claim for payment is understood to be an implicit certification that it has complied with certain contractual or regulatory requirements.
Plaintiffs contend that in submitting the custodial invoices, defendants impliedly and falsely certified that they complied with alleged contractual obligations to (1) provide best execution, (2) provide competitive rates, (3) provide netting, and (4) generally act for the benefit of its custodial clients.
Plaintiffs’ allegations fail.
Thus, even assuming that plaintiffs adequately have alleged that defendants knowingly failed to provide best execution contrary to their representations, they have not alleged that defendants knowingly failed to provide best execution contrary to their material contractual obligations. The difference is critical. In the former case, defendants may be liable for common law fraud and breach of fiduciary duty. They may even be liable under Section 12651(a)(1) if the fraud was part of a wrongful scheme to induce the government to pay on a claim. But only in the latter case would the defendants’ submission of a claim constitute a wrongful implied certification.
None of plaintiffs’ other purported breach of contract claims warrants a different conclusion. The netting provision theory suffers the same defect as best execution. The Court has rejected outright a breach of contract claim predicated on “competitive rates.” Finally, the Court rejects plaintiffs’ implied certification claim
d. Fraudulent Underbidding
LACERA and LADWP contend that the custodial invoices were false on a theory of “fraudulent underbidding.”
In Hooper v. Lockheed Martin Corp.,
Plaintiffs here allege that BNY Mellon reduced its fees for custodial services to win the business, anticipating that it could make much more from plaintiffs through standing instruction FX trades.
The analogy to Hooper is not apt. A critical component of liability in Hooper was that the initial bid was supposed to reflect the contractor’s good-faith estimate of the cost of the project. The contractor was liable because it knowingly understated this amount. But this case is more analogous to United States ex rel. Bettis v. Odebrecht Contractors of Cal., Inc.
C. Section 12651(a)(2)
Plaintiffs’ Section 12651(a)(2) count also requires that they allege that defendants’ submitted a false claim. As discussed above, plaintiffs have failed to do so.
D. Section 12651 (a) (b)
Section 12651(a)(4) renders liable one who “[h]as possession, custody, or control of public property or money used or to be used by the state or by any political subdivision and knowingly delivers or causes to be delivered less property than the amount for which the person receives a certificate or receipt.”
Plaintiffs’ argument borders on the nonsensical. The “certificate or receipt” quantified property in the “custody” of BNY Mellon in order to judge whether the amount of property returned by BNY Mellon to plaintiff was proper.
E. Section 12651(a)(7)
As relevant here, Section 12651(a)(7) imposes liability on one who “[k]nowingly makes, uses, or causes to be made or used a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the state or to any political subdivision.”
The Court assumes, contrary to defendants’ contentions, that the term “obligation” encompasses defendants’ alleged contractual obligation to provide best execution in this case.
IV. Fraud by Concealment
The allegations of LACERA and LADWP regarding their fraud by concealment counts could not be more general.
The Court recognizes that “Rule 9(b) does not require that the complaint explain the plaintiffs theory of the case, but only that it state the misrepresentation, omission or other action or inaction that plain
V. Section 17200
Defendants may be held liable under Section 17200 if their actions were unlawful, unfair, or fraudulent.
Finally, plaintiffs contend that defendants’ practices were unfair. As a number of courts have recognized, California law regarding what constitutes an “unfair” practice under this statute is in considerable disarray.
A practice need not violate another law to be deemed unfair.
VI. Claims Against BNY Mellon Corp.
Defendants move to dismiss claims against BNY Mellon Corp., contending
Conclusion
For the foregoing reasons, defendants’ motions to dismiss [12 MD 2335 DI 167, 12 Civ. 8990 DI 4; 12 MD 2335 DI 213, 12 Civ. 3064 DI 108] are granted in all respects as to BNY Mellon Corp. and granted in all respects as to the other defendants save, with respect to the other defendants, that they are denied insofar as LACERA and LADWP assert the claims sustained in SEPTA — that is, claims for (1) breach of contract premised on defendants failure to provide “best execution,” and (2) breach of fiduciary duty premised on certain alleged misrepresentations and nondisclosures. LACERA, LADWP, and relator may move for leave to amend provided that any such motion shall be filed no later than June 15, 2014.
SO ORDERED.
. “BNY Mellon” refers collectively to Bank of New York Mellon and its various predecessors and affiliates.
. 921 F.Supp.2d 56 (S.D.N.Y.2013).
. 941 F.Supp.2d 438 (S.D.N.Y.2013).
. 12 U.S.C. § 1833a.
. The complaint included several other entities who are no longer part of the case and need not be discussed further here. See In re Bank of N.Y. Mellon Corp. False Claims Act Foreign Exch. Litig. ("In re BNYM”), 851 F.Supp.2d 1190, 1193 (N.D.Cal.2012).
. See generally id.
. LADWP and SBCERS entered into these arrangements in 2004, TCERS in 2003, and LACERA in 1994. See Relator Cpt [DI 119, Ex. A] ¶ 124; LADWP Cpt [DI 257, Ex. A] ¶ 123; LACERA Cpt [DI 259, Ex. A] ¶ 122.
. See LADWP Branson Decl. [DI 215], Ex. 1 at 9; LACERA Branson Deck [DI 169], Ex. 1 at 6.
. LACERA Cpt ¶ 132; LADWP Cpt ¶ 128; Relator Cpt ¶¶ 126-27.
. Moreover, the fee schedule for each client appears to have been subject to amendment over time. See, e.g., Ex. 6, 7, Branson Decl. (depicting revisions in LACERA’s fee schedule).
. See, e.g., LACERA Branson Decl., Ex. 6. For brevity and convenience, the Court will at times omit parallel citations relating to each fund. Except where otherwise indicated, the funds' pleadings are consistent with each other.
. See, e.g., id.
. See DOJ, 941 F.Supp.2d at 444-49; SEPTA, 921 F.Supp.2d at 62-70.
. In re Bank of New York Mellon Corp. Forex Trans. Litig., 12 MD 2335(LAK), 11 Civ. 8471(LAK), 991 F.Supp.2d 457, 458-59, 2013 WL 3358028 at *1 (S.D.N.Y. July 2, 2013) (footnotes omitted). The allegations of the instant complaints are consistent with this summary.
. LACERA Cpt ¶¶ 158-64; LADWP Cpt ¶¶ 132-38.
. 921 F.Supp.2d at 64-69.
. See, e.g., LACERA Cpt ¶ 195.
. See, e.g., id. ¶ 194.
. LACERA Cpt ¶ 196; LADWP Cpt ¶ 140; Relator Cpt ¶ 142.
. LACERA Cpt ¶ 134.
. Relator Cpt ¶¶ 127, 130.
. LADWP Cpt ¶ 182.
. The California district court (Alsup, J.) denied defendants’ motion to dismiss as to LADWP’s non-CFCA claims, except that for unjust enrichment, but its decision ultimately dismissed LACERA’s claims on venue grounds.
"[Tjraditional principles of law of the case counsel against the transferee court reevaluating the rulings of the transferor court.” Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir.1991). Nevertheless, the law of the case goes to the transferee court’s discretion, not its power. Id. The plaintiffs’ non-CFCA claims are closely interrelated with the amended CFCA claims that Judge Alsup did not consider and that now are before this Court. In the circumstances of this case, the Court reluctantly exercises its discretion to consider defendants’ motion to dismiss LADWP's non-CFCA claims de novo notwithstanding the traditional rule.
. See, e.g., LACERA Cpt ¶¶ 222-23.
. SEPTA, 921 F.Supp.2d at 70-78. Defendants effectively concede that the recent amendments by LACERA and LADWP adequately allege the breach of contract theory sustained in SEPTA. DI 263.
. See, e.g., LACERA Cpt ¶ 56 (emphasis omitted); see also DOJ, 941 F.Supp.2d at 446 (explaining the concept of netting and BNY Mellon's alleged representations).
. Id. at 478-79.
. LACERA Cpt ¶ 123. The “daily range” appears to refer to the range between the lowest and highest interbank rates that the currency traded that day.
. SEPTA, 921 F.Supp.2d at 76-77; DOJ, 941 F.Supp.2d at 465-67.
. See Bustamante v. Intuit, Inc., 141 Cal.App.4th 199, 209, 45 Cal.Rptr.3d 692 (2006) ("To be enforceable, a promise must be definite enough that a court can determine the scope of the duty, and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages.” (internal quotation marks and alterations omitted)).
. See, e.g., LACERA Cpt ¶ 28.
. See Michel v. Palos Verdes Network Group, Inc., 156 Cal.App.4th 756, 762, 67 Cal.Rptr.3d 797 (2007) (distinguishing concepts).
. 921 F.Supp.2d at 78-80. Plaintiffs point to no California law to the contrary.
. LADWP Cpt ¶ 27 (emphasis added).
. Id. ¶ 124(a).
. Id. ¶¶ 123, 124(b).
. LACERA Cpt ¶ 28(b).
. Id.f 28(c).
. Id. ¶ 129(a).
. Id. ¶ 129(b)-(c).
. LADWP Branson Decl., Ex. 1 § 6(c).
. LACERA Opp. [DI 170] at 4-5; see LAC-ERA Branson Decl., Ex. 1 at A-3.
. Matson v. Bd. of Education of City Sch. Dist. of N.Y., 631 F.3d 57, 62 (2d Cir.2011) ("On a motion to dismiss, the court may consider any written instrument attached to the complaint as an exhibit or incorporated in the complaint by reference, as well as documents upon which the complaint relies and which are integral to the complaint.” (alterations omitted and emphasis added)).
Of course, even if the Court were to consider the language LADWP quotes, LADWP would have to address SEPTA’s conclusion that it would be "quite a leap” to go from a fiduciary settlement obligation to a fiduciary execution obligation. 921 F.Supp.2d at 82-83.
. 921 F.Supp.2d at 87. The Court permitted such a claim in the alternative to the claim that best execution was a contractual obligation.
. At least one court has reached the same result following SEPTA. See People ex rel. Schneiderman v. Bank of New York Mellon Corp., No. 114735/09, 40 Misc.3d 1232(A), 2013 WL 4516209, at *22 (N.Y.Sup.Ct. Aug. 5, 2013) (concluding that "a similar claim is potentially viable” under New York law and citing several cases).
. Status Report [DI 234] at 37.
. SEPTA, 921 F.Supp.2d at 86. In their motion to dismiss LADWP’s complaint, defendants cite Petersen v. Secs. Settlement Corp., 226 Cal.App.3d 1445, 1456, 277 Cal.Rptr. 468 (1991), and Brown v. California Pension Adm’rs & Consultants, Inc., 45 Cal.App.4th 333, 348, 52 Cal.Rptr.2d 788 (1996). But those cases stands only for the uncontroversial principle that fiduciaries performing ministerial functions have no obligation to advise against imprudent investments. They do not say that such fiduciaries may seek to profit as principals after providing misleading disclosures about a program closely connected to their fiduciary obligations.
. 204 Cal.App.3d 819, 251 Cal.Rptr. 530 (1988).
. Id. at 860-61, 251 Cal.Rptr. 530.
. Id. at 861, 251 Cal.Rptr. 530 (emphasis added).
. The court ultimately concluded that no such disclosure was required because the transaction occurred only after termination of the agency relationship and thus was not "connected with its agency.” But that is not this case.
. See also Twomey v. Mitchum, Jones & Templeton, Inc., 262 Cal.App.2d 690, 715, 69 Cal. Rptr. 222 (1968) ("The fact that defendants made more in trading as principal and that they did so trade with the plaintiff, without full disclosure, tends to show an indifference to the fiduciary duty owed to a client whose funds they controlled.”); Cleveland v. Johnson, 209 Cal.App.4th 1315, 1338, 147 Cal. Rptr.3d 772 (2012) (noting that fiduciary "can take no advantage from his acts relating to the interest of the other party without the latter’s knowledge or consent”); Jorgensen v. Beach ‘N’ Bay Realty, Inc., 125 Cal.App.3d 155, 162, 177 Cal.Rptr. 882 (1981) ("[W]hen the acts of an agent have been questioned by his principal and the fiduciary relationship has been established, the burden is cast upon the agent to prove that he acted with the utmost good faith toward his principal and that he ma[d]e a full disclosure prior to the transaction of all the facts relating to the transaction under attack.” (internal quotation marks omitted)).
.In SEPTA, this Court concluded that the "mere reference to 'principal basis’ in a document incorporated by” an FX procedure form did not foreclose a plausible claim that the disclosures were insufficient. 921 F.Supp.2d at 87. SEPTA specifically had not disputed that the document containing the "principal basis” disclosure governed its trades. Id. at 83. In this case, plaintiffs allege that "[a]t some point” their investment managers were required to acknowledge receiving the FX policies and procedures that apparently contained this disclosure. Further, they conclusorily allege that this document did not affect defendants’ obligations.
. State v. Altus Finance, S.A., 36 Cal.4th 1284, 1296, 32 Cal.Rptr.3d 498, 116 P.3d 1175 (2005) (internal quotation marks omitted).
. San Francisco Unified School Dist. ex rel. Contreras v. Laidlaw Transit, Inc., 182 Cal. App.4th 438, 446, 106 Cal.Rptr.3d 84 (2010) (internal quotation marks omitted).
. Altus Finance, 36 Cal.4th at 1299, 32 Cal. Rptr.3d 498, 116 P.3d 1175 (internal quotation marks omitted).
. P.L. 111-21, 123 Stat. 1617 (2009).
. LADWP Def. Mem. [DI 214] at 22. Defendants expressly make this argument only with respect to liability under one particular subdivision of the CFCA, Section 12651(a)(4). But the Court is aware of no reason to conclude that the applicability of the recent amendments would vary by subdivision.
. For convenience, throughout this section, the court refers to "plaintiffs” as including relator.
. Cal. Gov’t Code § 12651(a)(1) (2009).
. In re BNYM, 851 F.Supp.2d at 1196-97.
. Schneiderman, 2013 WL 4516209 at *25-26; Commonwealth ex rel. FX Analytics v. Bank of New York Mellon, 84 Va.Cir. 473, 2012 WL 7874398 (2012).
. The Court thus need not reach defendants’ other contentions for dismissal of this theory.
. Cal. Gov't Code § 12650(b)(1) (2009). The definition was amended effective January 1, 2010, but in no way that either party contends is meaningful here.
. LACERA Opp. 26; LADWP Opp. 26.
. Altus Finance, 36 Cal.4th at 1296, 32 Cal. Rptr.3d 498, 116 P.3d 1175.
. Contreras, 182 Cal.App.4th at 446, 106 Cal. Rptr.3d 84 (internal quotation marks omitted).
. In re C.H., 53 Cal.4th 94, 100, 133 Cal. Rptr.3d 573, 264 P.3d 357 (2011) ("If the statute's text evinces an unmistakable plain meaning, we need go no further” (internal quotation marks omitted)); cf. Hedges v. Obama, 724 F.3d 170, 189 (2d Cir.2013), cert. denied, - U.S. -, 134 S.Ct. 1936, 188 L.Ed.2d 960 (2014); United States v. Coppola, 671 F.3d 220, 240 (2d Cir.2012).
. Emphasis added.
. Plaintiffs' reliance on outdated federal authorities warrants no different conclusion. In United States v. McLeod, 721 F.2d 282 (9th Cir.1983), and Scolnick v. United States, 331 F.2d 598 (1st Cir.1964), the courts concluded that knowingly cashing a mistakenly issued check constituted a false claim. These decisions were issued prior to 1986, when the federal FCA first defined a claim to be a "request or demand” and first introduced the reverse false claims provision. See 31 U.S.C. § 3729(b)(3) (recently amended version of FCA making clear that "obligation” for purpose of reverse false claims liability included duty arising from retention of overpayment); see also Schneiderman, 2013 WL 4516209, at *26 (reasoning that endorsement of check would constitute the requisite claim in such circumstance).
. See United States ex rel. Schwedt v. Planning Research Corp., 59 F.3d 196, 199 (D.C.Cir.1995) (addressing circumstance under federal FCA in which defendant did not
. LADWP Opp. at 26; LACERA Opp. at 26.
. None of the prior courts considering whether defendants are liable under various state false claims acts for their standing instruction service has been presented with this theory of liability.
. LACERA Cpt ¶ 187; LADWP Cpt ¶ 185; Relator Cpt ¶ 184.
. LACERA Cpt ¶ 188; LADWP Cpt ¶ 186; Relator Cpt ¶ 185.
. Fed. R. Civ. P. 9(b).
. Lundy v. Catholic Health Sys. of Long Island, Inc., 711 F.3d 106, 119 (2d Cir.2013) (internal quotation marks omitted).
. See Gold v. Morrison-Knudsen Co., 68 F.3d 1475, 1476-77 (2d Cir.1995) (concluding that Rule 9(b) applied to pleading violations of the federal FCA).
. City of Pomona v. Superior Court, 89 Cal.App.4th 793, 802, 107 Cal.Rptr.2d 710 (2001); accord Contreras, 182 Cal.App.4th at 448, 106 Cal.Rptr.3d 84.
. Pomona, 89 Cal.App.4th at 802, 107 Cal.Rptr.2d 710 (quoting Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 787 (4th Cir.1999)).
. Harrison, 176 F.3d at 787.
. Id. (quoting United States ex rel. Marcus v. Hess, 317 U.S. 537, 543, 63 S.Ct. 379, 87 L.Ed. 443 (1943)).
. Id. (quoting Hess, 317 U.S. at 543, 63 S.Ct. 379).
. Id. at 788.
. See, e.g., LACERA Cpt ¶ 184.
BNY Mellon suggests that the Court need not undertake this analysis because plaintiffs’ failure to attach a copy of a custodial invoice or specify any invoice’s precise contents warrant dismissal of this theory under Rule 9(b). The Court disagrees. Under the fraud-in-the-inducement theory, the circumstances constituting the relevant fraud are the statements and omissions inducing payment of the invoices. The content of the invoices themselves is peripheral, at best.
.Defendants contend also that CFCA claims must be grounded in an "objective falsehood,” whereas federal mail fraud requires only that the statement be misleading. See United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir.2008). But plaintiffs do not contend merely that "best execution” was misleading. Rather, they allege that the term had an industry
. See, e.g., LACERA Cpt ¶ 182.
. Id. ¶ 183.
. LADWP Def. Mem. at 17 (emphasis in original); LACERA Def. Mem. at 17 (emphasis in original).
. Harrison, 176 F.3d at 788.
. United States ex rel. Onnen v. Sioux Falls Ind. Sch. Dist. No. 49-5, 688 F.3d 410, 414 (8th Cir.2012) (emphasis added) (internal quotation marks omitted).
. Engalla v. Permanente Medical Grp., Inc., 15 Cal.4th 951, 976, 64 Cal.Rptr.2d 843, 938 P.2d 903 (1997).
. Id. at 977, 64 Cal.Rptr.2d 843, 938 P.2d 903.
. Id.
. Id.
. In re Tobacco II Cases, 46 Cal.4th 298, 328, 93 Cal.Rptr.3d 559, 207 P.3d 20 (2009).
. Mirkin v. Wasserman, 5 Cal.4th 1082, 1093, 23 Cal.Rptr.2d 101, 858 P.2d 568 (1993).
. Defendants vigorously dispute that they ever charged such fees. This is a curious dispute, as it would seem objectively ascertainable to all parties whether such fees were being charged. In any event, plaintiffs' allegations as to this purely factual matter must be taken as true at this stage. To the extent that defendants believe that plaintiffs’ counsel can have no good-faith basis for this allegation, there is other relief they may seek at the appropriate time.
. See, e.g., LACERA Cpt ¶ 182.
. See In re Lehman Bros. Sec. and ERISA Litig., 903 F.Supp.2d 152, 191 (S.D.N.Y.2012) (“Nowhere does any plaintiff allege, however, that it ever read any of the Offering Documents and relied on the alleged misrepresentations contained in those documents in making its decision to purchase Lehman securities, as is required to sustain a claim for fraud under California law.” (citing Murphy v. BDO Seidman, LLP, 113 Cal.App.4th 687, 701, 6 Cal.Rptr.3d 770 (2003))); cf. Small v. Fritz Cos., 30 Cal.4th 167, 184, 132 Cal. Rptr.2d 490, 65 P.3d 1255 (2003) (requiring specific allegations of reliance to mount a securities holder claim).
. See Murphy, 113 Cal.App.4th at 702-3, 6 Cal.Rptr.3d 770 (setting forth circumstances in which plaintiffs may plead indirect reliance).
. The Court addresses duties to disclose in the next subsection.
. The Court emphasizes that it expresses no view about how much need be alleged to clear this bar. See Murphy, 113 Cal.App.4th at 698-701, 6 Cal.Rptr.3d 770 (setting forth pleadings of reliance that suffice). It holds only that the present allegations are insufficient.
. See, e.g., LACERA Cpt ¶ 184.
. 941 F.Supp.2d at 469, 482-83.
. See, e.g., LACERA Cpt ¶ 184.
. See La. Mun. Police Emps. Ret. Sys. v. JPMorgan Chase & Co., No. 12 Civ. 6659(DLC), 2013 WL 3357173, at *9 (S.D.N.Y. July 3, 2013).
. See, e.g., LACERA Cpt ¶ 184.
. See, e.g., LACERA Cpt. ¶ 184; LADWP Cpt. II 182.
. LACERA Cpt ¶ 122; LADWP Cpt ¶ 123.
. DOJ, 941 F.Supp.2d at 478-79.
. See generally Contreras, 182 Cal.App.4th at 447-53, 106 Cal.Rptr.3d 84 (citing cases).
. United States v. Sci. App. Int'l Corp., 626 F.3d 1257, 1267 (D.C.Cir.2010) ("SAIC”) (emphasis omitted).
. Contreras, 182 Cal.App.4th at 453, 106 Cal.Rptr.3d 84.
. Id.
. The Court need not reach defendants’ arguments based on Mikes v. Straus, 274 F.3d 687 (2d Cir.2001).
. Wilson, 525 F.3d at 378.
. United States ex rel. Lamers v. City of Green Bay, 168 F.3d 1013, 1018 (7th Cir.1999).
.This does not mean that contractual requirements must be crystal clear to create false claims liability. Where the defendant advances its interpretation in bad faith, or perhaps even when it is aware of a sufficiently high risk that its interpretation is wrong, then it may act recklessly by seeking payment without disclosing the potential dispute. Plaintiffs have not alleged facts sufficient to conclude that this is such a case.
. Relator (on behalf of TCERS and SBCERS) does not advance this theory.
. 688 F.3d 1037, 1049 (9th Cir.2012).
. See, e.g., LACERA Cpt ¶¶ 87-88.
. See, e.g., id. ¶ 193.
. 393 F.3d 1321, 1328 (D.C.Cir.2005)
. The Court notes further that while plaintiffs allege that BNY Mellon falsely represented that it would price transactions within a “range of the day,” LACERA Cpt ¶ 200, it cites no such representation with particularity-
. Cal. Gov't Code § 12651(a)(4) (2009) (emphasis added).
. See, e.g., LACERA Cpt ¶ 210.
. There is little law regarding the contours of this requirement in either the CFCA or the federal FCA. See United States ex rel. Aakhus v. Dyncorp, Inc., 136 F.3d 676, 681 (10th Cir.1998) (concluding that certificate or receipt "must be created by the government,” "must have some connection or relationship to the defendant’s return of property,” and "must indicate how much property defendant allegedly returned to the government”).
. Cal. Gov’t Code § 12651(a)(7) (2009) (emphasis added).
. See, e.g., LACERA Cpt ¶ 216.
. See United States ex rel. Bahrani v. Conagra, Inc., 465 F.3d 1189, 1202 (10th Cir.2006); United States v. Pemco Aeroplex, Inc., 195 F.3d 1234, 1237-38 (11th Cir.1999).
The Court considers only the contractual obligation because, as noted above, plaintiffs have not alleged adequately that defendants had an independent fiduciary duty to provide best execution pricing.
. A New York court has rejected an equivalent reverse false claim count on the same ground. See Schneiderman, 2013 WL 4516209, at *29 (dismissing claim because "plaintiffs' very claim as to the existence of a breach is the subject of a bona fide dispute”).
. LADWP Cpt ¶¶ 231-39; LACERA Cpt ¶¶ 234-42.
.LADWP Cpt ¶ 237.
. Midwest Commerce Banking Co. v. Elkhart City Centre, 4 F.3d 521, 523 (7th Cir.1993).
. See Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal.4th 163, 180, 83 Cal.Rptr.2d 548, 973 P.2d 527 (1999).
. The Court expresses no view regarding whether plaintiffs could allege unlawful conduct in light of this Court’s conclusion in DOJ that the federal government adequately alleged claims that BNY Mellon was liable for mail and wire fraud. See People ex rel. Trutanich v. Joseph, 204 Cal.App.4th 1512, 1525, 140 Cal.Rptr.3d 9 (2012) ("The unlawful practices prohibited by section 17200 are any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made.... [S]ection 17200 borrows violations of other laws and treats them as unlawful practices independently actionable under section 17200 et seq.”).
. In re Tobacco II, 46 Cal.4th at 326, 93 Cal.Rptr.3d 559, 207 P.3d 20 (concluding that plaintiffs needed to show actual reliance to establish standing under fraud prong of Section 17200).
. Drum v. San Fernando Valley Bar Ass’n, 182 Cal.App.4th 247, 256-57, 106 Cal.Rptr.3d 46 (2010) (discussing three different tests that have been applied).
. Cel-Tech Commc’ns, 20 Cal.4th at 186, 83 Cal.Rptr.2d 548, 973 P.2d 527.
. Id. at 181, 83 Cal.Rptr.2d 548, 973 P.2d 527.