In 1981 the plaintiffs invested $600,000 in oil and gas limited partnerships promoted by the defendants. The plaintiffs allege that, had it not been for the offering memo-randa’s misrepresentations and misleading omissions concerning the defendants’ competence and integrity, the plaintiffs would not have invested in these partnerships, which by 1984 were worthless. The original complaint charged violations of Rule 10b-5 of the Securities and Exchange Commission, and the RICO statute (18 U.S.C. §§ 1961
et seq.),
and sought damages equal to the investment. The district judge dismissed this complaint, but without prejudice, on the defendants' motion under Fed. R.Civ.P. 12(b)(6) to dismiss for failure to state a claim.
The plaintiffs filed an amended complaint, curing the RICO oversight, but they did not reallege a violation of Rule 10b-5. The district judge dismissed the amended complaint on the ground that proximate cause in a RICO case requires, much as in a Rule 10b-5 case, that the facts concealed or distorted were responsible for the decline in the value of the limited partnerships. The amended complaint contained no such allegation, no doubt for the same reason the plaintiffs had not amended their Rule 10b-5 count: they did not think they could prove loss causation. The dismissal this time was with prejudice, and so terminated the suit and set the stage for this appeal.
The defendants argue that having failed to include the Rule 10b-5 charge in the amended complaint, the plaintiffs have waived any challenge to the district judge’s dismissal of that charge in the original complaint. We disagree. That dismissal was not an appealable order, because the dismissal of a complaint with leave to amend is not a final decision.
Harris v. Milwaukee County Circuit Court,
It is not waiver—it is prudence and economy—for parties not to reassert a position that the trial judge has rejected. Had the plaintiffs repleaded their Rule 10b-5 charge without alleging loss causation, the judge would have dismissed the charge, not only with prejudice but with annoyance. If they had alleged loss causation, they would have abandoned their principal disagreement with Judge Duff, which is over whether such an allegation is necessary, and would indeed have exposed themselves to sanctions if, as we suspect, they have no evidence of loss causation. For if they had had sufficient evidence to satisfy Rule ll’s requirement of a reasonable pre-complaint inquiry, they would have amended their complaint, while reserving for appeal (should they lose in the district court) their contention that proof of loss causation is inessential.
The case is no different from one in which a district judge grants partial summary judgment for the defendant, dismissing one of the plaintiffs claims, and after a trial dismisses the rest of the claims. Except as permitted by Fed.R.Civ.P. 54(b), the plaintiff cannot appeal until all his claims have been dismissed, but when he does appeal he can bring up the grant of partial summary judgment. He need not request the district court to reexamine its earlier rulings.
We come to the merits. The plaintiffs argue that they should not be required to allege that, but for the circumstances that the fraud concealed, the investment that they were induced by the fraud to make would not have lost its value. They say it should be enough to allege that they would not have invested but for the fraud; for if they had not invested, they would not have lost their money, and the fraud was therefore the cause of their loss. They say they have no idea why their investment was wiped out and it does not matter; the defendants, being responsible for the disaster by having used fraud to induce the investment, must not be allowed to get off scot-free just because the plaintiffs do not know how the investment would have fared in the marketplace had the facts about the defendants’ competence and integrity been as represented. As a fallback position the plaintiffs argue that the defendants should have the burden of proving what part (if any) of the loss would have occurred even if the defendants had been as competent and honest as represented.
Rule 10b-5 is not a complete scheme for remedying securities fraud. Indeed, it is just a declaration that securities fraud is unlawful. The right to bring a private action for damages that the rule has been held to confer is an implied right,
Superintendent of Insurance v. Bankers Life & Casualty Co.,
Indeed what securities lawyers call “loss causation”
is
the standard common law fraud rule (on which see Prosser and Keeton on the Law of Torts § 110, at p. 767 (5th ed. 1984)), merely borrowed for use in federal securities fraud cases. It is
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more fundamental still; it is an instance of the common law’s universal requirement that the tort plaintiff prove causation.
Cenco Inc. v. Seidman & Seidman,
The plaintiffs alleged that they invested in the defendants’ limited partnerships because of the defendants’ misrepresentations, and that their investment was wiped out. But they suggest no reason why the investment was wiped out. They have alleged the cause of their entering into the transaction in which they lost money but not the cause of the transaction’s turning out to be a losing one. It happens that 1981 was a peak year for oil prices and that those prices declined steadily in the succeeding years. U.S. Dept, of Commerce, Bureau of the Census, Statistical Abstract of the United States, 1989, at 677 (tab. 1181). When this happened the profitability of drilling for oil (and gas, which generally is produced with it) in the continental United States plummeted. The costs of obtaining oil and gas from our depleted reservoirs are far higher than the costs in other regions, and drilling for oil and gas is therefore profitable only in times when prices are very high. Suppose that because of the unexpected drop in oil prices after 1981, all or the vast majority of the oil and gas limited partnerships formed in 1981 became worthless. Then it would be highly unlikely that the plaintiffs’ loss was due to the defendants’ fraud. If the defendants had come clean in their offering memoranda, then we may assume—because the plaintiffs allege, and the case was dismissed on the complaint—that the plaintiffs would not have invested in the defendants’ limited partnerships. But there were plenty of other oil and gas limited partnerships they could have invested in. They wanted to invest in oil and gas limited partnerships; they only wanted to be sure that the general partners were honest and competent people. Yet to be honest and competent is not to be gifted with prevision. If the alternative oil and gas limited partnerships to Which these plaintiffs would have turned had the defendants leveled with them were also doomed, despite competent and honest management, to become worthless, the plaintiffs were not hurt by the fraud; it affected the place but not the time or amount of their loss.
To satisfy Rule 11 all that the plaintiffs had to do was to obtain evidence from persons knowledgeable about oil and gas ventures in the early 1980s that many or most oil and gas ventures had succeeded notwithstanding the downturn in price after 1981. Perhaps if the plaintiffs had conducted such a search they would have discovered, contrary to our speculation (and it is just that), that oil and gas ventures managed by competent and honest businessmen had survived the drop in oil prices. If so, this would support an inference that if the defendants had been as competent and honest as they represented themselves to be, they would not have lost the plaintiffs’ $600,000. The plaintiffs’ unwillingness to make this allegation in their amended complaint suggests to us that they may have made inquiry of experts in the oil and gas industry and discovered that the cause of the disaster was unrelated to the competence and honesty of the defendants.
If the plaintiffs would have lost their investment regardless of the fraud,
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any award of damages to them would be a windfall. Other sections of the securities laws, such as section 12(2) of the 1933 Act, 15 U.S.C. §
111,
permit windfall recoveries, but we do not see how this helps the plaintiffs. Those sections deal with other conduct and some of them contain restrictions on liability that Rule 10b-5 does not. See, e.g., 15 U.S.C. § 77m;
Wilson v. Ruffa & Hanover, P.C.,
“Loss causation” is an exotic name—perhaps an unhappy one,
LHLC Corp. v. Cluett, Peabody & Co.,
We have treated the question whether loss causation is an element of a claim for damages under Rule 10b-5 from the ground up because there is no controlling precedent in the Supreme Court or in this circuit, and because there are cases on both sides of the question in the other circuits, though they greatly preponderate in favor of the requirement and such conflict as there is appears to be within rather than among circuits. Compare
Schlick v. Penn-Dixie Cement Corp.,
Because “loss causation” is just an exotic name for a standard requirement of tort law, Judge Duff was also correct to dismiss the amended complaint. Cf.
Currie v. Cayman Resources Corp., supra,
The cases go further, by requiring not only cause but also “proximate cause.”
Brandenburg v. Seidel, supra,
AFFIRMED.
