640 F. App'x 45

2d Cir.

2016

Alejandro MEDINA, Individually and on Behalf of All Others Similarly Situated, and Adam Furman, Plaintiffs-Appellants, v. TREMOR VIDEO, INC. et al., Defendants-Appellees.

No. 15-2178-cv.

United States Court of Appeals, Second Circuit.

Feb. 8, 2016.

45-49

be considered for prosecutorial discretion.” Oral Argument at 3:05:16 (emphasis added). In fact, however, the Johnson Memo directs the agency to exercise prosecutorial discretion even in the case of noncitizens convicted of aggravated felonies. Specifically, the Johnson Memo directs that “aliens in Priority 1,” including those convicted of an “aggravated felony,” like Vargas,

must be prioritized for removal ... unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, or CBP Director of Field Operations, there are compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority....

In making such judgments, DHS personnel should consider factors such as: extenuating circumstances involving the offense of conviction; extended length of time since the offense of conviction; length of time in the United States; military service; family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal proceedings; or compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative.

Memorandum from Jeh Charles Johnson, Secretary, U.S. Department of Homeland Security, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants, 3, 5-6 (Nov. 20, 2014) (emphasis in original), available at https://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf. Thus, the governing memorandum to which the government refers appears to leave open the possibility of exercising discretion when considering the removal of a person like Vargas. Whether to do so is in the hands of the government, but any decision should not be made under a misapprehension of the governing departmental policy.

For the foregoing reasons, the petition for review is DENIED.

Susan K. Alexander (Andrew S. Love, on the brief), Robbins Geller Rudman & Dowd LLP, San Francisco, CA; Corey D. Holzer, Marshall P. Dees, on the brief, Holzer & Holzer, LLC, Atlanta, GA, for Plaintiffs-Appellants.

Koji F. Fukumura (Ryan E. Blair, on the brief), Cooley LLP, San Diego, CA; Adam Hakki, on the brief, Shearman & Sterling LLP, New York, NY, for Defendants-Appellees.

PRESENT: GUIDO CALABRESI, GERARD E. LYNCH, RAYMOND J. LOHIER, JR., Circuit Judges.

SUMMARY ORDER

Alejandro Medina brings this securities class action on behalf of himself and others similarly situated, along with Adam Furman (“plaintiffs“), against Tremor Video, Inc., an online video advertisement network provider, and its underwriters, Credit Suisse Securities (USA) LLC, Jefferies LLC, Canaccord Genuity Inc., and Oppenheimer & Co. Inc. (“defendants“), pursuant to Sections 11 and 15 of the Securities Act of 1933, 15 U.S.C. §§ 77k, 77o, claiming a failure to disclose known trends or uncertainties as required by Item 303 of the Securities and Exchange Commission‘s (“SEC“) Regulation S-K, 17 C.F.R. § 229.303(a)(3)(ii). On June 27, 2013 defendants issued 7.5 million common shares at $10 per share, pursuant to a registration statement and prospectus (collectively, the “Registration Statement“) filed with the SEC.

The United States District Court for the Southern District of New York (Paul A. Crotty, J.) granted the defendants’ motion to dismiss, holding that plaintiffs’ “conclusory complaint fails to allege sufficient facts to support a plausible inference” that defendants omitted material trends or uncertainties. Medina v. Tremor Video, Inc., No. 13-CV-8364 (PAC), 2015 WL 1000011, at *2 (S.D.N.Y. March 5, 2015). Further, the district court concluded that defendants’ Registration Statement had adequate cautionary language to defeat plaintiffs’ claim. Id. at *3. Subsequently, the district court denied plaintiffs’ motion for leave to amend their complaint under Federal Rule Civil Procedure 15(a)(2), holding that the “proposed amendments would be futile,” and denied plaintiffs’ motion to amend or vacate the judgment pursuant to Rules 59(e), 60(b). Medina v. Tremor Video, Inc., No. 13-CV-8364 (PAC), 2015 WL 3540809, at *2 (S.D.N.Y. June 5, 2015). Plaintiffs timely appealed. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. For the reasons stated below we affirm.

We review de novo both the district court‘s grant of defendants’ Federal Rule of Civil Procedure 12(b)(6) motion and its denial of plaintiffs’ request for leave to amend their complaint, because that denial was based on futility, which is a legal conclusion. See Meyer v. Jinkosolar Holdings Co., 761 F.3d 245, 249 (2d Cir. 2014); Starr v. Sony BMG Music Entm‘t, 592 F.3d 314, 321 (2d Cir. 2010).

As a preliminary matter, we reject plaintiffs’ attempt to characterize the actions of the district court in this case as following the same procedure held an abuse of discretion in Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160 (2d Cir. 2015). Loreley held that forcing a plaintiff to choose between “agree[ing] to cure deficiencies not yet fully briefed and decided or forfeit[ing] the opportunity to replead” was an abuse of discretion. Id. at 190. However, Loreley “le[ft] unaltered the grounds on which denial of leave to amend has long been held proper, such as ... futility.” Id. The court below did not require that the plaintiffs “forfeit[ ] ... the protections afforded by Rule 15” in the “absence of a definitive ruling,” id., but considered the proposed amended complaint pursuant to Rule 15 and found that the amendment would be futile, Medina, 2015 WL 3540809, at *2. We assume that the district judge did as he said and considered the proposed amended complaint under the proper Rule 15 standard. In any event, plaintiffs’ procedural objection is immaterial because we review the district court‘s decision de novo, and evaluate the proposed second amended complaint under the proper standard. Starr, 592 F.3d at 321.

Although courts “should freely give leave [to amend pleadings] when justice so requires,” Fed.R.Civ.P. 15(a)(2), a court need not grant such leave if the proposed amendment would still not state a claim, so that the amendment would be futile, Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 50 (2d Cir. 1991). “In assessing whether the proposed complaint states a claim, we consider the proposed amendment[s] ... along with the remainder of the complaint, accept as true all non-conclusory factual allegations therein, and draw all reasonable inferences in plaintiff‘s favor to determine whether the allegations plausibly give rise to an entitlement to relief.” Panther Partners Inc. v. Ikanos Comme‘ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012) (internal citations and quotation marks omitted) (alteration in original). When a complaint pleads facts that are “merely consistent with” a defendant‘s liability, it “stops short of the line between possibility and plausibility of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quotation marks and alteration omitted). We conclude that the district court did not err in denying plaintiffs’ request for leave to amend because we agree such amendment would be futile.

Plaintiffs allege that defendants were aware of three material trends or uncertainties that they failed to disclose in their Registration Statement: (1) uncertainty about network delays in upfront ad buys (“upfronts“), (2) a trend toward demographic pricing, and (3) a trend toward increased programmatic ad buying. If adequately pled, such omissions could state a claim for a violation of Item 303. See 17 C.F.R. § 229.303(a)(3)(ii) (requiring the disclosure of “any known trends or uncertainties that have had or that the registrant reasonably expects will have a material favorable or unfavorable impact on net sales or revenues or income from continuing operations“) (emphasis added). However, the proposed second amended complaint fails to plausibly allege that defendants knew of the alleged uncertainties and trends at the time of the Registration Statement.

Plaintiffs’ proposed second amended complaint contains no assertions of defendants’ actual knowledge. To support their allegation that the Registration Statement omitted necessary information about delays in upfronts, plaintiffs allege that publicly available information made it “apparent” that two out of five major television networks, as of the date of defendants’ Registration Statement, were two weeks later in closing their upfronts than they had been the prior year.¹ JA 237 ¶ 41. As to the other alleged trends or uncertainties, plaintiffs allege only suppositions of what defendants “would have” known or were “in a position to know.” JA 242 ¶ 65, 243 ¶ 71. These allegations are insufficient. Our precedents require allegations of specific facts from which we could draw the “plausible inference” that defendants had actual knowledge of the trends or uncertainties at the time the registration statement was issued. See Panther Partners Inc., 681 F.3d at 121; Garber v. Legg Mason, Inc., 537 F.Supp.2d 597, 614 (S.D.N.Y. 2008) aff‘d, 347 Fed.Appx. 665 (2d Cir. 2009) (“Merseyside argues that pleading a trend‘s existence is enough to support a claim, and whether defendants were actually aware of the trend is not legally operative. Merseyside misreads Item 303, which requires that the trend actually be known.“) (emphasis in original).

Our two decisions in Panther Partners Inc. v. Ikanos Comme‘ns, Inc. are instructive. In the first appeal, we upheld the district court‘s ruling that the proposed amended complaint failed to state a claim where plaintiffs’ alleged the non-disclosure of a trend or uncertainty created by an allegedly high product defect rate but they failed to allege facts “answering the critical question about when the company knew that the defect rate [of their product] was unusually high,” and the failure to disclose the trend or uncertainty created by the high defect rate was the alleged violation of Item 303. 347 Fed.Appx. 617, 621 (2d Cir. 2009) (emphasis added). After we remanded to allow the plaintiff to amend the complaint, the district court again dismissed, but we reversed. In doing so, we found the following two additional allegations critical: “(1) that these customers [complaining about product defects] accounted for 72% of [the company‘s] revenues in 2005 and (2) that [the company] knew at the time it was receiving an increasing number of calls from these customers that it would be unable to determine which chip sets contained defective chips.” 681 F.3d at 121 (emphasis added).

Plaintiffs here offer no similar specific factual allegations from which we could infer that defendants knew at the time they issued the Registration Statement on June 27, 2013 about the trends or uncertainties, which they came by hard experience to learn were affecting their business when, in November 2013, they released their disappointing financial results from the third quarter. With the benefit of hindsight, it may be possible to say that seeds of what was to come were available to defendants at the time. But we cannot attribute to defendants, based on hindsight alone, knowledge that events that may well have appeared unremarkable at the time, were omens of future material problems. The proposed second amended complaint does not state facts from which we can infer that defendants knew of the existence or impact of any uncertainty or trend that the rest of the world did not know, and that therefore should have been disclosed.²

We have considered the plaintiffs’ remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

Notes

Plaintiffs refer to this two week disparity as a “delay,” but the historical data this characterization relies on is very slim. The complaint compares the dates on which the major television networks completed their upfronts for just two years, 2012 and 2013, and shows that three of the five networks completed their 2013 upfronts earlier than in 2012. What emerges from the historical data is not a clear pattern of a change in when major television networks completed their upfronts, but some spreading of the dates on which upfronts were completed as compared to one year before.

The fact that the underlying information was public is not in itself fatal to plaintiffs’ claim. Item 303 requires disclosure of the “potential future impact” of a publicly known trend, such as the downward trend in the real estate market, if it “might reasonably be expected to materially impact [the company‘s] future revenues.” (emphasis in original). Here, however, plaintiffs do not allege facts that support a plausible inference that defendants knew at the time of the Registration Statement that the publicly available information indicated anything in particular about its potential future impact on defendants’ business.

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