OPINION AND ORDER
In yet another chapter of this putative class action for securities fraud arising from the collapse of Refco Inc. and its affiliated companies (“Refco”), Joseph P. Collins (“Collins”) and Mayer Brown LLP (“Mayer Brown”) (the “Mayer Brown Defendants”) — move for dismissal of the Second Amended Consolidated Class Action Complaint (“the Complaint”) as to them.
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The core issue before the Court is whether
BACKGROUND
The factual background of the fraudulent scheme to deceive investors and others about the true financial circumstances of the international brokerage firm Refco Inc. and its affiliated companies is set forth in detail in the Court’s prior opinion in
In re Refco, Inc. Sec. Litig.,
1. The Alleged Fraudulent Scheme
Prior to Refco’s spectacular collapse, it was among the world’s largest providers of brokerage and clearing services in the international derivatives, currency, and futures markets. Refco’s business model involved extending credit to its customers so that they could trade on margin and leverage their capital into larger trades, for which Refco could again extend credit. (ComplJ 2.) These trades generated substantial commissions, revenues, and profits for Refco, but over time Refco began making loans without adequately assessing customers’ credit-worthiness or the risks associated with their trading activities. (Comphlffl 428-30.) These lapses began to have consequences in the late nineties, when several global financial crises caused a number of customers to suffer massive trading losses. (Compl.lffl 3, 431-35.) The loans now became “uncollectible receivables” that Refco’s customers were unwilling or unable to repay.
Rather than write off or disclose these uncollectible receivables — the revelation of which would have had dire financial consequences for the company (CompLIffl 426, 579-80) — Refco’s management allegedly devised a scheme to conceal them from the public and Refco’s investors. (Comply 3.) First, they transferred the loans onto the books of Refco Group Holdings, Inc. (“RGHI”), an entity owned and controlled by Phillip R. Bennett (“Bennett”), Refco’s President, CEO, and Chairman. (Complin 3, 33.) As a result of these transfers, RGHI owed hundreds of millions of dollars to Refco, but RGHI had no liquid assets and no operational functions (Comphlffl 31, 638), and thus it had no eon
Next, to avoid the disclosure of large “related-party” receivables — the sum of which dwarfed Refco’s net income — a series of fraudulent transactions were arranged by which the RGHI receivables were periodically made to disappear from Refco’s books through so-called “round-trip loans” in which the receivables owed to Refco from RGHI were replaced with receivables purportedly owed by a third-party customer. (Compl.lffl 3, 450-51, 627.)
These loans, which straddled the end of each fiscal year from 2000 through 2005 and at the end of several fiscal quarters as well, all worked in essentially the same way. (Comply 451.) First, several days before Refco closed its books for each financial period, Refco Capital Markets Ltd. (“RCM”), a Refco subsidiary, would loan hundreds of millions of dollars to a third-party customer who then, through its account at Refco, simultaneously loaned the same amount to RGHI. (Id.) The loan agreements between the third party and RCM — which were done on a book basis (the principal never changed hands) — were meticulously structured so that they were essentially risk-free to the third-party customers; the customers’ loans to RGHI were guaranteed by Refco and the customers profited for their participation in the “loans” through interest earned on their loans to RGHI, which by design exceeded the interest they were charged by RCM. 4 (Compl.lffl 451, 633.) RGHI, in turn, used the loans from the customers to pay down the money it owed to Refco for its uncollectible receivables. (Id.) The net effect of these transactions was that at the close of each reporting period, Refco’s books would show “loans” to third-party customers and the RGHI receivables would be gone. Then, just days after the financial period closed, the transactions were unwound— the “loans” repaid, and the uncollectible receivables from RGHI'were returned to Refco’s books. Thus, these transactions enabled Refco to lend money to itself, through third parties, to conceal its grim, multi-hundred Million dollar losses from the public and from its investors. (Compilé 579-80.)
II. The Mayer Brown Defendants’ Participation in the Alleged Scheme
From 1994 until Refco’s collapse, Mayer Brown was Refco’s outside counsel and was Collins’s largest client.
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(Compl. ¶¶ 76-78.) Mayer Brown and Collins — the partner-in-charge of the Refco account— had a close working relationship with Ref-co, in which the firm provided the company with a broad range of legal services and through which Mayer Brown collected approximately $5 million per annum in legal fees.
(Id.)
Accordingly, Mayer Brown was familiar with Refco’s operations and finances and participated in seventeen rounds of the round-trip loan transactions between 2000 and 2005 by which Refco’s uncollectible receivable were concealed. (CompLIffl 79, 451-52.) Specifically, the role of the Mayer Brown Defendants was to explain the structure and terms of the transactions to potential third-party participants, negotiate the loans, draft and re
III. The Mayer Brown Defendants’ Participation in Statements that Refco Used to Issue Securities to Investors
While the round-trip loans concealed the trouble at Refco, certain Refco insiders began to consider cashing out of the company. Their plans began to unfold in 2004 when Refco issued $600 million in bonds (the “Bonds”) to public investors in connection with a leveraged buy-out (“LBO”), and came to fruition approximately one year later when Refco conducted a $670 million initial public offering (“IPO”), during which Refco sold approximately one-fifth of its shares to the plaintiff class. 7 (CompLITO 6-7, 195.) Both the LBO and the IPO yielded tens of millions of dollars in cash payouts to Bennett and other executives. (Id.)
The Mayer Brown Defendants participated in drafting the documents that were filed with the Securities and Exchange Commission (“SEC”) in order to induce investors to purchase Refco’s Bonds and, later, to effectuate the IPO. (Compl.1ffl 116, 127-28, 133, 135, 149-50, 152-53.) Specifically, with respect to the LBO, the Mayer Brown Defendants were involved, as were others,
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in drafting and disseminating the Offering Memorandum to investors. (CompLIffl 115, 117.) The Offering Memorandum, which stated that Mayer Brown represented Refco in connection with the offering, concerned the creation of unregistered bonds that, through an underwriting by certain financial institutions, were purchased and immediately resold to certain institutional investors, including some of the plaintiffs. (Compl.lHI 114, 116, 118.) The portions of the memorandum drafted by the Mayer Brown Defendants included the Management’s Discussion & Analysis (“MD & A”) and Risk Factors portions, which discussed Refco’s business and financial condition in a way that, given Mayer Brown’s involvement in the round-trip loan transactions and knowledge of the RGHI receivables, the Mayer Brown De
The Offering Memorandum, in turn, was used as the foundation for preparing the Bond Registration Statement whereby the Bonds issued in 2004 were exchanged for registered securities. (ComplV 165.) With respect to the Bond Registration Statement, the Mayer Brown Defendants, together with banks underwriting the Bonds received and reviewed SEC comment letters and participated in drafting sessions for amendments to the statement. 9 (Comply 170.) Like the Offering Memorandum, the Bond Registration Statement contained untrue statements and omissions of material fact because it failed to disclose the existence and full extent of the related-party transactions and the related-party indebtedness between Refco and RGHI. (Compl.lffl 181— 94).
Similarly, the Mayer Brown Defendants played a significant role in drafting and reviewing the IPO Registration Statement, which was prepared at the same time as the Bond Registration Statement. The IPO Registration Statement also specifically identified Mayer Brown as counsel to Refco. (Compile 116, 201.) In that capacity, the Mayer Brown Defendants received and presumably reviewed the SEC’s comments. (Comply 204.) Both the IPO and Bond Registration Statements were materially false and misleading for the same reasons as the Offering Memorandum — they misrepresented Ref-co’s financial condition and failed to disclose multi-hundred million dollar receivable that were concealed through the round-trip loans that the Mayer Brown Defendants helped facilitate. (Compl.1ffl 181,186, 203.)
IV. Plaintiffs’ Claims
As a result of Refco’s collapse, the value of plaintiff-investors’ interests in Refco plummeted, allegedly causing them millions of dollars in losses. (Compilé 17-19.) Plaintiffs allege that the Mayer Brown Defendants knew, or were reckless in not discovering, that Refco’s statements made in the Offering Memorandum, the Bond Registration Statement, and the IPO Registration Statement were false or materially misleading and that, accordingly, defendants should be held primarily liable for those statements under Section 10(b), either because they participated in drafting the documents and were identified as counsel for Refco in two of the three offering documents, or because they documented the round-trip loans that enabled Refco to issue false and misleading financial statements. Plaintiffs also contend that control person liability under Section 20(a) is sufficiently alleged. The Mayer Brown Defendants move to dismiss all claims pursuant to Fed.R.Civ.P. 12(b)(6). The motion will be granted.
DISCUSSION
I. Motions to Dismiss
On a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must accept as true all of the factual allegations in the Complaint and draw all reasonable inferences in plaintiffs’ favor.
ATSI Commc’ns, Inc. v. Shaar Fund, Ltd.,
While the rules of pleading in federal court usually require only “a short and plain statement” of the plaintiffs claim for relief, Fed.R.Civ.P. 8, averments of fraud must be “stated with particularity,” Fed. R.Civ.P. 9(b). To comply with Rule 9(b), a plaintiff must: “(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.”
Rombach v. Chang,
II. Pleading a Violation of Section 10(b) and Rule 10b-5
Section 10(b) of the Securities Exchange Act of 1934 makes it unlawful “for any person, directly or indirectly ... [t]o use or employ, in connection with the purchase or sale of any security ... any manipulative or deceptive device or contrivance” in violation of the rules set forth by the Securities and Exchange Commission for the protection of investors. 15 U.S.C. § 78j. Pursuant to SEC Rule 10b-5, promulgated thereunder, it is unlawful:
(a) To employ any device, scheme, or artifice to defraud,
(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.
17 C.F.R. § 240.10b-5.
The Supreme Court recently articulated the elements necessary to sustain a private cause of action for securities fraud under § 10(b) and Rule 10b-5:
In a typical § 10(b) private action a plaintiff must prove (1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation.
Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc.,
In the context of securities fraud complaints, the Private Securities Litigation Reform Act of 1995 (“PSLRA”) has expanded on Rule 9(b)’s pleading requirements.
See
15 U.S.C. § 78u-4(b). The PSLRA provides that, where misleading statements or omissions under Section 10(b) are alleged, a plaintiff must “specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed.” 15 U.S.C. § 78u-4(b)(l);
see also Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
III. Sufficiency of the Rule 10b~5(b) Claim
In Count Nine of their Complaint, plaintiffs allege that the Mayer Brown Defendants violated § 10(b) and Rule 10b-5(b) when they drafted, reviewed, and revised portions of the Offering Memorandum and the IPO Registration Statement, which contained false and misleading statements and in which — at the conclusion of each document — Mayer Brown was identified as counsel for Refco. The Mayer Brown Defendants argue that Count Nine should be dismissed because none of the alleged misstatements were actually made by, or otherwise attributed to, Mayer Brown.
The starting point for this analysis is
Central Bank of Denver v. First Interstate Bank of Denver,
Nor can silence or mere association be construed as nonetheless conveying an actor’s “imprimatur.”
Lattanzio,
Public understanding that [a secondary actor] is at work behind the scenes does not create an exception to the requirement that an actionable misstatement be made by the [secondary actor]. Unless the public’s understanding is based on [that actor’s] articulated statement, the source for that understanding — whether it be a regulation, an accounting practice, or something else — does not matter.
Id. (holding that a securities regulation requiring that the company’s accountant review the quarterly unaudited financial statements did not “associate” the accountant with those statements to such a degree that, without more, those statements became the accountant’s statements). Here, the decisive question is whether the allegations against the Mayer Brown Defendants are sufficient to show that they “made” the alleged material misstatements and omissions such that plaintiffs relied on the defendants’ misrepresentation. Plaintiffs have not made such a showing.
Lattanzio
explains that only an “articulated statement” of attribution to a secondary actor is sufficient.
Id.; accord, United States v. Finnerty,
it is undisputed, as a matter of public record, that Andersen’s audit reports were included in all of GC’s registration statements and annual reports from 1998 to 2000, and that they were widely available to shareholders during the class period. Andersen’s role as GC’s auditor was thus well known to investors, who could easily have relied on the accounting firm’s involvement in making any public financial reports, even where a particular statement was not publicly attributed to it. Moreover, Andersen’s aggressive marketing of the novel accounting strategies promoted in the White Paper, which allegedly “became a ‘must-read’ in the telecom industry,” raises an inference that sophisticated investors would have known of Andersen’s role in creating the reporting practices behind GC’s false statements. These allegations are sufficient to raise a reasonable inference not only that Andersen was one of the ‘makers’ of the statements, but also that investors viewed it as such.
Global Crossing,
Here, plaintiffs allege that Mayer Brown’s involvement in the drafting process “provides more than a sufficient basis for ‘attributing’ the false statements therein to .Mayer Brown.” (PI. Opp. Mem. at 15.)
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Even if the Mayer Brown Defen
Further, unlike in Global Crossing, where the plaintiffs pleaded facts that raised a reasonable inference that investors knew that Andersen had masterminded the misleading accounting behind the issuer’s false statements, here plaintiffs have offered no reason why the Mayer Brown Defendants’ status as counsel for Refco would be understood by investors as an endorsement of the accuracy of Refco’s assertions about its financial condition. Nor is such an inference self-evident. Indeed, it is implausible that the mere fact that the issuer’s law firm was identified in the offering documents would, without a great deal more, be perceived as an articulation by that law firm of the accuracy of the statements made in those documents.
Although it is well settled that a lawyer who makes a material misstatement (or omission) on which a purchaser or seller of securities relies may be liable as a primary violator under § 10(b) and Rule 10b — 5(b),
Central Bank,
IV. Sufficiency of the Rule 10b-5(a) and (c) Claim
In addition to liability for its statements in the offering documents, plaintiffs posit an alternative theory of liability, commonly known as “scheme liability,” for Mayer Brown’s role in the fraud alleged: subsections (a) and (c) of Rule 10b-5, which prohibit “employing] any device, scheme or artifice to defraud,” or “engaging] in any act, practice or course of business which operates ... as a fraud or deceit upon any person” in connection with the sale of securities. 17 C.F.R. § 240.10b-5(a), (c). Plaintiffs allege that the Mayer Brown Defendants “design[ed] and implement[ed] sham transactions used by Refco to fraudulently transfer uncollectible debt and design[ed] and participat[ed] in blatantly fraudulent sham loan transactions.” (ComplV 766.) The Mayer Brown Defendants seek dismissal of this claim, inter alia, on the ground that the Supreme Court’s decision in Stoneridge forecloses this theory of liability. They are correct.
In
Stoneridge,
the Court examined the issue of “when, if ever, an injured investor may rely upon § 10(b) to recover
Here, there is no dispute that plaintiffs had no knowledge of the Mayer Brown Defendants’ conduct that facilitated the fraudulent transactions. Plaintiffs’ Complaint specifically alleges that “[p]lain-tiffs ... purchased Refeo securities” “[i]n ignorance of the fraudulent conduct of Collins, Mayer Brown” and others. (Comply 771.) Accordingly, the Mayer Brown Defendants contend that no liability can attach because plaintiffs could not have relied on their conduct, just as the plaintiffs in
Stoneridge
did not know of, and thus could not have relied on, the transactions in that case.
See Stoneridge,
Plaintiffs nevertheless attempt to distinguish Stoneridge, arguing that the Mayer Brown Defendants were not unrelated suppliers or customers such that they were “remote” from the issuer and that Mayer Brown’s conduct “made it necessary or inevitable for [the issuer] to record the transactions as it did.” Id. at 769-70. This line of argument is unavailing. The nub of plaintiffs’ contention is that as Ref-co’s primary counsel, the Mayer Brown defendants could not be “remote” within the meaning of Stoneridge, because they were directly involved in creating and executing the fraudulent scheme, including the drafting of misleading communications to Refeo investors. (PI. Opp. Mem. at 23-24.) Plaintiffs’ reading of “remote” is myopic. The issue is not the distance between the issuer and the defendant, but rather the distance between the defendant’s conduct and the investor.
As in
Stoneridge,
plaintiffs admittedly did not know of, and thus did not rely on, any of Mayer Brown’s work on the fraudulent loan transactions. Nor can plaintiffs salvage their claim by arguing that the “inevitable consequence” of the transactions on which Mayer Brown worked were the misstatements on which investors relied. In
Stoneridge
as well, the transaction at issue — participation by outside vendors in an issuer’s patently fraudulent scheme to create fictitious documents and backdate contracts — had no other plausible purpose than to misstate the issuer’s financial condition, but this fact was insufficient to establish liability, because irrespective
As alleged in the Complaint, the Mayer Brown Defendants explained the structure and terms of the transactions to potential third-party participants; negotiated the loans; drafted and revised the documentation for the transactions including the relevant loan agreements, promissory notes, guarantees and indemnification letters; transmitted documents to the participants; distributed executed copies of the documents; and marked the third-party customers’ promissory notes to RCM as “paid in full” when the transactior was unwound. (Compl. ¶¶ 451-52, 457-60, 471, 476, 482, 488, 494, 500, 506, 512, 514, 550-58, 564-65, 567, 569-72, 574.)
Plaintiffs have clearly alleged facts, including the suspicious timing and the “risk-free” quality of the loans, that give rise to a strong inference of scienter, that is, that the Mayer Brown Defendants knew or acted in reckless disregard of Refco’s intention to use the transactions to inflate its revenues, and knew or should have known that the resulting financial statements issued would be relied upon by research analysts and investors. Plaintiffs allege, moreover, that acting with such knowledge, the Mayer Brown Defendants engaged in conduct that materially aided Refco’s fraud. Such allegations if proven true, are adequate to establish liability for aiding and abetting securities fraud, but are not enough to establish civil liability as a
primary
actor. As was the case in
Stoneridge,
it was Refco, not the Mayer Brown Defendants, “that ... filed fraudulent financial statements; nothing [the Mayer Brown Defendants] did made it necessary or inevitable for [Refco] to record the transactions as it did.”
The critical holding of Central Bank— that liability to investors under Rule 10b-5 does not extend to those who merely aid and abet violations by primary actors — -is not limited to violations of Rule 10b~5(b). To establish liability under the other subsections of the Rule as well, a plaintiff must show that it was the defendant itself that “employfed]” the scheme to defraud or “engage[d] in the deceitful practice, and not merely that the defendants assisted another party in its fraudulent practices. Here the scheme to defraud was Refco’s effort to hide from its investors the true state of its finances by concealing the uncollectible receivables and it was Refco that engaged in the deceitful practice of making the round-trip loans and reporting them in its financial statements as if they were bona fide loan transactions. However significant a role the Mayer Brown Defendants played in assisting Refco’s management to engage in these transactions, and however culpable they may have been to do so with the knowledge that the transactions were ultimately designed as part of a scheme to defraud and practice a deceit upon Refco’s shareholders — indeed even if the acts of Collins were, as the Government has charged, criminal — the liability that attaches to those acts is liability for aiding and abetting Refco’s schemes and manipulation, not principal liability for executing schemes of the Mayer Brown Defendants’ own.
Plaintiffs’ attempts to argue to the contrary are unpersuasive because it was Ref-
A thoughtful and highly-respected judge in this district has, following
Stoneridge,
and under similar circumstances, come to precisely this conclusion.
See In re Parmalat Sec. Litig.,
Finally, plaintiffs argue that they are nevertheless entitled to a presumption of reliance under three distinct theories. None of the presumptions applies here. First, plaintiffs invoke
Affiliated Ute Citizens of Utah v. United States,
Third and finally, plaintiffs invoke the so-called “fraud-ereated-the-market” presumption, where reliance may be presumed if the defendants’ fraudulent activity is “so pervasive that it goes to the very existence of the [securities] and the validity of their presence on the market.”
Ross v. Bank South, N.A.,
In sum, even if the Mayer Brown Defendants’ conduct helped Refco to carry out their scheme to defraud investors, under
Stoneridge
plaintiff-investors have no claim under the federal securities laws against the Mayer Brown Defendants.
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V. Section 20(a) — Control Person Liability
As plaintiffs have failed to plead Section 10(b) claims against the Mayer Brown Defendants, plaintiffs’ Section 20(a) claims, 15 U.S.C. § 78t(a), in which they seek to impose control person liability for alleged Section 10(b) and Rule 10b-5 violations by former Mayer Brown partner Collins, fail as a matter of law because plaintiffs have not made out a prima facie case of any such violations by any of those defendants.
See In re Pfizer, Inc. Sec. Litig.,
CONCLUSION
For the reasons stated above, the Second Amended Consolidated Class Action Complaint is dismissed in its entirety as to the Mayer Brown Defendants. As this ruling disposes of all claims against Joseph P. Collins and Mayer Brown LLP and there is no just reason for delay, the Clerk is directed, pursuant to Fed.R.Civ.P. 54(b), to enter final judgment with respect to those defendants.
SO ORDERED.
Notes
. The Complaint added Mayer Brown and Collins as defendants and incorporated the allegations made in a separate complaint filed
. In an order dated February 8, 2006 (Doc. # 63), the Court appointed RH Capital Associates LLC ("RH Capital") and Pacific Investment Management Company LLC (“PIMCO”) as lead plaintiffs pursuant to 15 U.S.C. § 78u-4(a)(3)(B) and 15 U.S.C. § 77z-l(a)(3).
.
See, e.g., Thomas H. Lee Equity Fund V. L.P. v. Grant Thornton LLP,
. Although the third parties purportedly earned interest from RGHI the payment of the difference in interest was made by RCM. (Comply 451, 632.) In effect, RCM paid the interest on a loan extended by a customer to a purportedly separate entity, RGHI. (CompU 632.) This payment to the third-party customer was the only occasion on which funds actually changed hands in these "round-trip”, transactions.
. Mayer Brown began representing Refco in 1994 when Collins moved to Mayer Brown from Schiff Hardin & Waite and brought Ref-co with him as a client. (Comply 77.)
.Plaintiffs' opposition papers incorporate the criminal indictment of Collins (Sabella Decl. Ex. 1) into their allegations, arguing that it "confirms in detail Collins' and Mayer Brown's indispensable role in conceiving and effectuating [Refco's] fraudulent scheme." (PL Opp. Mem. at 4, n.3.) Whatever its substance, the Court can take judicial notice of the indictment, "not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.”
Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc.,
. Two months later, on October 10, 2005, Refco announced that it bad discovered the RGHI receivable and that, accordingly, investors could no longer rely on its financial statements for the preceding four years. (Compl.HK 233-34.) On October 17, 2005, Refco filed for Chapter 11 bankruptcy protection. (Compl.1l 244.)
. Participants included, inter alia, Credit Suisse Securities (USA), Banc of America Securities LLC, Deutche Bank, Bennett, Robert C Trosten, Scott L. Jaeckel, and the so-called THL Partners. (Compl.H 115.) All of these parties are defendants in this action.
. Specifically, Refco filed a Form S-4 Registration Statement with the SEC on October 12, 2004, which was subsequently amended through numerous Form S-4/A filings in late 2004 and early 2005 (collectively, the "Bond Registration Statement”). (Comply 165.) The Bond Registration Statement became effective, and registered bonds were issued pursuant thereto, on or about April 13, 2005. (Compl-¶ 166.)
. The Second Circuit has recognized a largely indistinguishable set of elements necessary to state a claim for relief under § 10(b) and Rule 1 Ob-5, which requires that a plaintiff prove that defendants " '(1) made misstatements or omissions of material fact; (2) with scienter; (3) in connection with the purchase or sale of securities; (4) upon which plaintiffs relied; and (5) that plaintiffs' reliance was the proximate cause of their injury.’ "
Lattanzio v. Deloitte & Touche LLP,
.
Lattanzio
does not discuss
Global Crossing
and the Mayer Brown Defendants question whether
Global Crossing
and the cases that follow it can be reconciled with Lattanzio’s renewed endorsement of
Wright
and its prohibition against relying on “public understanding” to attribute statements to actors for purposes of Rule 10b-5 liability. It is not necessary, however, to reach that issue, since plaintiffs have not pleaded facts that would meet even this "relax[ed]” version of the
Wright
standard.
Global Crossing,
. At one point, plaintiffs also argue that the fact that the Mayer Brown Defendants "devised and perpetrated a fraudulent scheme to falsify the issuer's financial statements” provides a basis for attributing the misstatements in the financial statements to Mayer Brown. (Pl. Opp. Mem. at 17.) This argument improperly conflates the distinct elements of a claim for false statements under subsection (b) of Rule 1 Ob-5, which requires a misrepresentation or omission, with those of a claim for engaging in a fraudulent scheme under subsections (a) or (c).
See
17 C.F.R. § 240:10b-5;
Affiliated Ute Citizens of Utah v. United States,
. Plaintiffs contend that this decision,
see In re Parmalat Sec. Litig.,
. Although plaintiffs point to a single paragraph in the Complaint, which alleges that had investors known about the Refco fraud "there would have been no market for the Bonds.” (ComplA 733), plaintiffs have pleaded no facts to support that conclusion, and the vast weight of the Complaint establishes only that "had Refco’s true financial .picture been disclosed to investors at the time of the Bond Offering, investors would have known that the credit risk associated with the Bonds was substantially greater than they otherwise believed,” (ComplA 733). Specifically, in both Counts Nine and Eleven of the Complaint, plaintiffs allege only that as a result of the Mayer Brown Defendants’ conduct, they "purchased Refco securities at artificially inflated prices.” (Compl-¶¶ 753, 771.) Under these circumstances, plaintiffs cannot rely on a “fraud-created-the-market” presumption as a stand-in for reliance on defendants’ "own deceptive conduct.”
Stoneridge,
. It is perhaps dismaying that participants in a fraudulent scheme who may even have committed criminal acts are not answerable in damages to the victims of the fraud. However,, as the Court noted in
Stoneridge,
the fact that the plaintiff-investors have no claim is the result of a policy choice by Congress.