JOAN PLASTIRAS MYERS, PLAINTIFF-APPELLANT, v. MERRILL LYNCH & CO., INC.; PAINEWEBBER GROUP, INC.; MORGAN STANLEY; DEAN WITTER; TRAVELERS GROUP, INC.; LEGG MASON INC.; BEAR, STEARNS & CO., INC., DEFENDANTS-APPELLEES, AND H. J. MEYERS & CO., DEFENDANT.
No. 99-17113
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted April 11, 2001. Filed May 16, 2001
249 F.3d 1087
Before: Mary M. Schroeder, Chief Judge, Dorothy W. Nelson, and Johnnie B. Rawlinson, Circuit Judges.
Appeal from the United States District Court for the Northern District of California William H. Orrick, Jr., District Judge, Presiding. D.C. No. CV-98-03532-WHO
Jonathan C. Dickey, Gibson, Dunn & Crutcher, Palo Alto, California, for the defendants-appellees.
OPINION
Schroeder, Chief Judge
This is a securities action brought under
The district court, in a published opinion, granted the defendants’ motion to dismiss under
As presented to the district court, plaintiff‘s claims were a broad gauge attack on the widespread practice in the securities industry of discouraging potential purchasers of stock in public offerings from quickly reselling or “flipping” their shares in order to turn a quick profit. The challenged practices included the imposition of so-called penalty bids on investors who resell too quickly.
On appeal, plaintiff has renewed the arguments she unsuccessfully advanced in the district court, but, in addition, she has endeavored to isolate from the rest of the case one narrow claim challenging the conduct of individual brokers who fail to disclose selling
Regardless of whether such a narrow challenge could be segregated from the practices more generally regulated under the federal securities laws, plaintiff did not attempt to segregate such a claim in the district court. Nor did the district court decipher any such discrete claim from plaintiff‘s complaint, as the court properly treated all of plaintiff‘s broad contentions as relating to securities practices expressly regulated by federal law. Thus the plaintiff now asks for the first time on appeal that such a claim be considered separately and held not to be preempted.
While we can, in our discretion, consider issues of law raised for the first time on appeal, see In re America West Airlines, Inc., 217 F.3d 1161, 1165 (9th Cir. 2000), we decline to do so in this case. The defendants have pointed out that the history of Regulation M suggests that the SEC may have made a conscious decision not to require the disclosure, by individual brokers to small investors, that the plaintiff now demands. See SEC Release Nos. 33-7375 & 34-38067, 62 Fed. Reg. 520, 537-38 (Jan. 3, 1997) (“In addition to the foregoing disclosure requirements, when a person subject to Rule 104 conducts transactions in securities and the price of those securities may be or has been stabilized, that person is required by paragraph (h)(3) of Rule 104 to send to a purchaser, at or before the completion of the transaction, a document containing a statement similar to that required by Item 502(d)(1)(i) of Regulations S-B and S-K . . . . The Commission proposed, but is not adopting at this time, that similar disclosure be given to the purchasers of securities subject to aftermarket activities. The Commission intends to reconsider the need for this disclosure as it continues to review developments in the aftermarket area.“). We do not attempt to resolve the issue definitively here. We hold only that plaintiff has provided no basis on which the district court‘s judgment should be disturbed.
The judgment of the district court is AFFIRMED.