Levitt v. J.P. Morgan Securities, Inc., No. 10-4596 (2d Cir. 2013)
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Plaintiffs, former customers of Sterling Foster, for which Bear Stearns, as a clearing broker, performed certain settlement and record-keeping functions, alleged that Bear Stearns violated section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. 78j(b), by participating in Sterling Foster's market manipulation scheme. Bear Stearns pursued this interlocutory appeal from a decision and order of the district court granting in part and denying in part plaintiffs' motion for certification of a class pursuant to Rule 23(b)(3). The court concluded that plaintiffs' allegations failed to trigger a duty of disclosure to Sterling Foster's clients such that the Affiliated Ute Citizens of Utah v. United States presumption of reliance applied. Therefore, plaintiffs failed to satisfy Rule 23(b)(3)'s predominance requirement. Accordingly, the court reversed the judgment of the district court.
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10-4596-cv Levitt v. J.P. Morgan Securities, Inc. 1 United States Court of Appeals 2 FOR THE SECOND CIRCUIT 3 August Term 2011 4 5 6 (Argued: December 12, 2011 Decided: March 15, 2013) 7 No. 10-4596-cv _____________________________________ 8 9 10 11 12 13 14 15 ROBERT LEVITT, for himself and as custodian for RICHARD LEVITT and MONICA LEVITT, STEPHEN G. SIBEN, PHILIP C. VITANZA, for himself, ELIZABETH VITANZA, and LUKE VITANZA, JOHN T. WHITE, as Trustee, GUY V. WOOD, as Trustee, TED M. JONES, as Trustee, KATHRYN N. JONES, as Trustee, Plaintiffs-Appellees, 16 17 18 ROBERT RICE, STEPHEN STROBEHN, STANLEY VELTKAMP, CARL ZANDER, JR., Plaintiffs, 19 -v.- 20 21 22 23 24 J.P. MORGAN SECURITIES, INC., J.P. MORGAN CLEARING CORP., Defendants Third-Party-Plaintiffs Cross-Defendants-Appellants. _____________________________________ 25 26 Before: POOLER, LIVINGSTON, and CARNEY, Circuit Judges. 27 28 29 30 31 32 33 34 35 36 37 38 Defendants Third-Party-Plaintiffs Cross-Defendants-Appellants J.P. Morgan Securities, Inc. and J.P. Morgan Clearing Corporation (referred to herein collectively as Bear Stearns ), pursue this interlocutory appeal from a June 24, 2010, decision and order of the United States District Court for the Eastern District of New York (Spatt, J.), granting in part and denying in part Plaintiffs-Appellees motion for class certification pursuant to Fed. R. Civ. P. 23(b)(3). On appeal, Bear Stearns argues that the district court erred in certifying a plaintiff class claiming violations of § 10(b) of the Securities Exchange Act of 1934 because, as a clearing firm engaged in mere clearing conduct, Bear Stearns owed no fiduciary duty to Plaintiffs-Appellees, who are customers of the introducing broker-dealer, to disclose that broker-dealer s 1 2 3 4 5 6 7 scheme to manipulate an initial public offering. Because it owed no duty of disclosure, Bear Stearns argues, the district court erred in applying a presumption of reliance under Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128 (1972), and, absent such a presumption, the class fails to satisfy the predominance requirement of Rule 23(b)(3). We agree that the proposed class fails the predominance requirement of Rule 23(b)(3) and REVERSE the order of the district court. 8 9 KERRY A. DZIUBEK (Michael D. Schissel and Mark A. Kleyna, on the brief), Arnold & Porter LLP, New York, NY, for Defendants Third-PartyPlaintiffs Cross-Defendants-Appellants. 10 11 12 13 14 LESLIE TRAGER, New York, NY, for PlaintiffsAppellees. 15 16 17 18 LIVINGSTON, Circuit Judge: 19 Defendants Third-Party-Plaintiffs Cross-Defendants-Appellants 20 Morgan Securities, Inc. and J.P. Morgan Clearing Corporation (referred to 21 herein collectively as Bear Stearns 1), pursue this interlocutory appeal from a 22 June 24, 2010, decision and order of the United States District Court for the 23 Eastern District of New York (Spatt, J.), granting in part and denying in part 24 Plaintiffs-Appellees motion for certification of a class pursuant to Fed. R. Civ. 25 P. 23(b)(3). The Plaintiffs-Appellees (the Levitt Plaintiffs or Plaintiffs ) are 1 J.P. At all times relevant here, Bear Stearns Securities Corporation ( Bear Stearns ) acted as the clearing agent for broker Sterling Foster & Company, Inc. On October 1, 2008, Bear Stearns and its parent corporation Bear, Stearns & Company Inc. were acquired by the Defendants Third-Party-Plaintiffs Cross-DefendantsAppellants J.P. Morgan Securities, Inc. and J.P. Morgan Clearing Corporation. 2 1 former customers of the New York broker-dealer Sterling Foster & Company, 2 Inc. ( Sterling Foster ), for which Bear Stearns, as a clearing broker, performed 3 certain settlement and record-keeping functions. The Levitt Plaintiffs allege 4 that Bear Stearns violated § 10(b) of the Securities Exchange Act of 1934 by 5 participating in Sterling Foster s market manipulation scheme. The district 6 court concluded that the Plaintiffs allegations satisfied Rule 23(b)(3) s 7 predominance requirement and granted class certification for violations of § 8 10(b). 9 On appeal, Bear Stearns argues principally that, as a clearing broker 10 engaged in mere clearing conduct, it owed no fiduciary duty of disclosure to the 11 Levitt Plaintiffs, who were customers of Sterling Foster, and that the district 12 court erred in finding that Bear Stearns participated in Sterling Foster s market 13 manipulation scheme to such an extent as to trigger a duty of disclosure to the 14 Levitt Plaintiffs. Accordingly, Bear Stearns contends, the district court erred in 15 finding that the Levitt Plaintiffs could rely upon a class-wide presumption of 16 reliance pursuant to Affiliated Ute Citizens of Utah v. United States, 406 U.S. 17 128 (1972), and in therefore holding that the putative class could satisfy the 18 predominance requirement of Rule 23(b)(3). 19 For the reasons stated below, we conclude that the Levitt Plaintiffs 20 allegations principally that Bear Stearns participated in Sterling Foster s 3 1 fraudulent conduct by, among other things, continuing to clear transactions for 2 Sterling Foster despite alleged knowledge of the ongoing manipulative scheme 3 and by failing to cancel unpaid trades in violation of Federal Reserve Board 4 Regulation T fail to trigger a duty of disclosure to Sterling Foster s clients such 5 that the Affiliated Ute presumption of reliance applies. The Levitt Plaintiffs 6 therefore fail to satisfy Rule 23(b)(3) s predominance requirement. Accordingly, 7 we reverse the decision of the district court certifying a class.2 8 BACKGROUND 9 10 11 I. Factual Background 12 1. The Role of Clearing Brokers 13 Approximately ninety percent of the broker-dealers registered with the 14 Securities and Exchange Commission ( SEC ) hire a clearing broker to perform 15 the back-office services associated with securities trading. 16 Minnerop, Clearing Arrangements, 58 BUS. LAW. 917, 917 (2003) ( Clearing 17 Arrangements ). Major clearing firms . . . handle millions of trades daily on 18 behalf of customers of hundreds of [broker-dealers]. J.A. 973 (Expert Affidavit 19 of Henry F. Minnerop). A clearing broker s involvement in any given transaction 2 See Henry F. Bear Stearns also argues that the district court misapplied the preponderance of the evidence standard in deciding the motion for class certification and ignored testimony of the lead plaintiffs which demonstrated that they failed to satisfy the typicality requirement of Rule 23(a). In light of our disposition of the case, we do not address these arguments. 4 1 typically begins after the execution of a trade, when the clearing firm processes, 2 settles, and clears the transaction and prepares an appropriate trade 3 confirmation to send to the customer. Clearing Arrangements at 923-24. The 4 clearing firm . . . maintains custody of the customer s securities and funds upon 5 receipt, and may provide margin financing if the introduced customer has signed 6 a margin agreement with the clearing firm. Id. at 924. The broker-dealer 7 typically retains all customer-contact functions, including soliciting customers, 8 recommending the purchase or sale of securities to customers, and monitoring 9 customers transactions. Under the most common form of agreement between 10 clearing brokers and introducing firms, known as a fully disclosed agreement, 11 the introducing firm discloses the identity of each of its customers to its clearing 12 firm. The clearing firm then establishes on its books and records an account in 13 the name of each introduced customer and carries that account with its own net 14 capital. Id. at 920. Under these circumstances, the clearing firm s primary 15 (and frequently only) source of information about the customer is the introducing 16 firm. In re Bear, Stearns Secs. Corp., Exchange Act Release No. 7718, 1999 WL 17 569554, at *5 (Aug. 5, 1999). 18 Broker-dealers employing the services of a clearing broker are known as 19 introducing firms, to distinguish them from self-clearing broker-dealers, 20 which perform all of the functions of a clearing broker internally. Contracting 5 1 out for clearance and settlement services relieves introducing firms of the huge 2 costs associated with [these] back-office operations. Dillon v. Militano, 731 F. 3 Supp. 634, 636 (S.D.N.Y. 1990). 4 At all times relevant to the parties here, New York Stock Exchange 5 ( NYSE ) Rule 382 permitted clearing brokers contractually to allocate all 6 know your customer responsibilities including opening, approving and 7 monitoring of accounts [and] safeguarding of funds and securities to the 8 introducing firm.3 J.A. 968-69 (Minnerop Aff.). Rule 382, as amended, thus 3 New York Stock Exchange Rule 382 was adopted in 1968 and underwent several amendments in 1975, 1982, 1999, and 2001. See New York Stock Exchange ( NYSE ) Rule 382, New York Stock Exchange, Inc. General Rules (Wolters Kluwer Financial Services) ¶ 2382, at 3639-40 (2010). The Financial Industry Regulatory Authority (FINRA) recently adopted Rule 4311 governing carrying agreements, which closely incorporates and replaces NYSE Rule 382 and NASD Rule 3230. See FINRA, Regulatory Notice 11-26, Financial Responsibility: SEC Approves Consolidated Financial Responsibility and Related Operational Rules (2011). The transactions at issue in the instant case are governed by NYSE Rule 382 under the post-1982 amendments, and this opinion references the Rule s text as it applied to the parties at the time. As relevant here, Rule 382(b) provided [e]ach agreement in which accounts are to be carried on a fully disclosed basis shall specifically identify and allocate the respective functions and responsibilities of the introducing and carrying organizations, which agreement shall, at a minimum, address each of the following functions: (1) opening, approving and monitoring of accounts (2) extension of credit (3) maintenance of books and records (4) receipt and delivery of funds and securities (5) safeguarding of funds and securities (6) confirmations and statements (7) acceptance of orders and executions of transactions. NYSE Rule 382(b). 6 1 relieved clearing firms from their prior regulatory duty under NYSE Rule 405 2 to supervise introducing firms, including their sales activities. 3 Arrangements at 935; see also Fezzani v. Bear, Stearns & Co., 592 F. Supp. 2d 4 410, 425 (S.D.N.Y. 2008) ( Pursuant to the rules of the [SEC], the clearing 5 broker does not supervise and is not responsible for the sales practices of the 6 introducing broker. The introducing broker is responsible for its own sales 7 practices, and responsibility cannot be transferred to or imposed upon the 8 clearing broker. ). 9 brokerage firms to place investor assets into the custody of well-capitalized 10 clearing firms that possess[] the operational capacity to process and clear 11 transactions promptly and accurately and maintain timely and accurate 12 brokerage records. Clearing Arrangements at 936. Clearing Rule 382 thereby encourag[ed] minimally-capitalized 13 2. 14 Sterling Foster was established as a broker-dealer in 1994; it retained 15 Bear Stearns to serve as its clearing broker pursuant to an agreement dated 16 April 14, 1994 (the Agreement ). The Agreement provided that Sterling Foster 17 would be 18 19 20 21 22 Sterling Foster and the ML Direct IPO solely responsible for the conduct of the [customer accounts, or Accounts ], and ensuring that the transactions conducted therein are in compliance with the Applicable Rules. Such responsibility includes, but is not limited to: (i) using due diligence to learn and on a continuing basis to know the essential 7 15 facts of each Customer . . .; (ii) selecting, investigating, training, and supervising all personnel who open, approve or authorize transactions in the Accounts; (iii) establishing written procedures for the conduct of the Accounts and ongoing review of all transactions in Accounts, and maintaining compliance and supervisory personnel adequate to implement such procedures; (iv) determining the suitability of all transactions, including option transactions; (v) ensuring that there is a reasonable basis for all recommendations made to Customers; (vi) determining the appropriateness of the frequency of trading in Accounts; (vii) determining the authorization and legality of each transaction in the Account; and (viii) obtaining and maintaining all documents necessary for the performance of [Sterling Foster s] responsibilities under this Agreement and retaining such documents in accordance with all the Applicable Rules. 16 Bear Stearns issued a so-called Rule 382 Notice to Sterling Foster s 17 customers; such notices inform[ed] . . . customers that their brokerage firm had 18 entered into a clearing agreement with a specified clearing firm [here Bear 19 Stearns], J.A. 959 n.13 (Minnerop Aff.), and provide[d] a summary of the 20 allocation of functions and responsibilities between the introducing and clearing 21 firm as set forth in their clearing agreement, id.4 Here, the Rule 382 Notice 22 advised Sterling Foster s customers that your brokerage firm [Sterling Foster] 23 shall at all times be exclusively responsible for . . . . [t]he conduct of your account 24 and ensuring that transactions effected therein are in compliance with all 1 2 3 4 5 6 7 8 9 10 11 12 13 14 4 Rule 382 required at the relevant time that [e]ach customer whose account is introduced on a fully disclosed basis shall be notified in writing upon the opening of his account of the existence of the agreement and of the relationship between the introducing and carrying firm. NYSE Rule 382(c). 8 1 applicable law and rules. The Rule 382 Notice further provided that Bear 2 Stearns would be responsible for . . . [a]ny extensions of credit to [the customer], 3 which includes complying with Regulation T of the Federal Reserve Board 4 determining maintenance margin, paying and charging interest and 5 rehypothecation or loan of any of your margin securities. 6 In the two years following Sterling Foster s establishment in 1994, the 7 firm underwrote five initial public offerings ( IPOs ) for which Bear Stearns 8 served as clearing broker. In each of these offerings, Sterling Foster engaged in 9 stock-manipulation maneuvers whereby it entered into secret agreements with 10 inside shareholders which resulted in substantial profits for Sterling Foster. 11 Under standard lock-up agreements with inside shareholders investors 12 affiliated with the issuing corporation, such as the corporation s founders and 13 inside consultants these shareholders were prevented from selling their shares 14 for a certain period of time following the IPO, unless the shares were released 15 for sale earlier with the permission of the underwriter, Sterling Foster. The 16 prospectuses for the five offerings represented that Sterling Foster had no 17 prearranged agreements with the inside shareholders to release them from their 18 lock-up agreements. In fact, and unbeknownst to the buying public, Sterling 19 Foster had already entered into agreements with the inside shareholders to 20 purchase their shares at a price substantially below the prevailing market price 9 1 at the time of the IPO. Then, on the first days of trading in the IPO, Sterling 2 Foster would use aggressive sales tactics that created a large demand for the 3 offerings and would sell shares far in excess of what was being offered, . . . . 4 creat[ing] a significant short position for Sterling Foster in these securities. 5 J.A. 578 (Transcript of Plea Allocution of Adam Lieberman (S.D.N.Y. Mar. 4, 6 1998)). Sterling Foster covered its large short position by releasing the inside 7 shareholders from their lock-up agreements and purchasing their shares at 8 below-market prices, resulting in a substantial profit to Sterling Foster of the 9 difference between the prevailing market price and the price paid to the inside 10 shareholders. Id. 11 The Levitt Plaintiffs are former customers of Sterling Foster who 12 purchased securities in the September 4, 1996 IPO of ML Direct, Inc. ( ML 13 Direct ). Although the ML Direct IPO was nominally underwritten by Patterson 14 Travis, Inc. ( Patterson ), and not by Sterling Foster, Sterling Foster was able 15 to engage in a market manipulation scheme similar to that described above. 16 The ML Direct prospectus (the Prospectus ), dated August 2, 1996, 17 announced that ML Direct would be offering 480,000 units in its IPO. Each unit 18 consisted of two shares of common stock and one purchase warrant and would 19 be offered at an initial price of $15.00 per unit. In total, approximately 1.1 20 million common shares of ML Direct would be issued in the IPO. In addition to 10 1 the public offering, the Prospectus disclosed that ML Direct would also be 2 seeking registration from the SEC for a so-called shelf offering, which would 3 cover the sale of 2.4 million shares and 2 million warrants that were owned by 4 certain shareholders affiliated with ML Direct (hereinafter the 5 Securityholders ). The Prospectus disclosed the existence of a standard lock-up 6 agreement with the Selling Securityholders which restricted their ability to sell 7 their shares of ML Direct directly following the commencement of the IPO: 8 The securities held by the Selling Securityholders may be sold commencing 12 months from the date of this Prospectus, subject to earlier release at the sole discretion of Patterson Travis, Inc., the representative (the Representative ) of the underwriters of this offering . . . . The Representative has no agreements or understandings with any of the Selling Securityholders with respect to release of the securities prior to the respective periods and has no present intention of releasing any or all of such securities prior to such periods. 9 10 11 12 13 14 15 16 Selling 17 18 Although the Prospectus stated that Patterson had no existing agreement with 19 the Selling Securityholders to release them from their 12-month lock-up 20 agreement, and no present intention of entering into such an agreement, in fact, 21 Sterling Foster had already caused Patterson to enter into a secret agreement 22 with the Selling Securityholders to sell their shares to Sterling Foster once the 23 IPO was underway. 24 When trading commenced on September 4, 1996, Sterling Foster 25 purchased nearly all of the 1.1 million shares of ML Direct common stock being 11 1 offered to the public. But it also sold more than three and a half times the 2 number of shares registered in the IPO, for a total of 3.9 million shares of ML 3 Direct. This resulted in a substantial short position of 2.86 million shares of ML 4 Direct at the end of the first day of trading. 5 Sterling Foster would have had to pay more than $43.69 million to cover 6 this short position at the prevailing market price of $15.25 per share. But 7 instead of covering its short position of 2.86 million shares by purchasing shares 8 of ML Direct in the market, Sterling Foster caused Patterson to release the 9 Selling Securityholders from the lock-up agreement on September 10. Sterling 10 Foster then purchased the shares of the Selling Securityholders at a price of 11 $3.25 per share, substantially below the prevailing market price of $15.25 to 12 $15.50 per share, resulting in more than a 400% profit to Sterling Foster. 13 3. The Role of Bear Stearns in the ML Direct IPO 14 According to the Levitt Plaintiffs, in August 1996, prior to the first day of 15 trading on September 4, Sterling Foster s president, Adam Lieberman 16 ( Lieberman ), informed Keith Brigley ( Brigley ), an associate director in Bear 17 Stearns clearing division, that Sterling Foster intended to create a large short 18 position in ML Direct stock on the first day of trading. Lieberman indicated to 19 Brigley that the short position would be significantly larger than short positions 20 that Sterling Foster had taken in previous IPOs, but assured Brigley that 12 1 Sterling Foster would cover the short position by purchasing shares of the 2 Selling Securityholders, which Patterson had agreed to release and which 3 Sterling Foster had arranged with the Selling Securityholders to purchase. Bear 4 Stearns had previously received a copy of the Prospectus which stated that 5 Patterson had no present intention of releasing the shares of the Selling 6 Securityholders before the 12-month lock-up period had expired. 7 After learning of Sterling Foster s plans for the ML Direct IPO, Bear 8 Stearns required Lieberman to sign a personal guarantee (the Guarantee ). On 9 August 21, Brigley faxed Lieberman a copy of the Guarantee; on the cover letter, 10 he wrote, [w]e need these items to be addressed now. There is no approval for 11 you to proceed with the deal at Bear until the above items are addressed. Please 12 call ASAP. Brigley testified that the reason for the Guarantee was because 13 [t]he dollar amount [of the ML Direct offering] was getting huge. (Internal 14 quotation marks omitted). The Guarantee provided that Lieberman 15 16 17 18 19 20 21 22 23 24 25 26 27 unconditionally and personally guarantees to [Bear Stearns] . . . the prompt payment when due of all liabilities, debts, obligations, and expenses . . . arising out of or incurred in connection with [Bear Stearns] providing securities clearance services . . . in connection with the clearance and settlement by [Bear Stearns] of the following: (i) all transactions in an initial public offering of 480,000 units of [ML Direct] to be offered on or about August 22, 1996 . . . at a price of approximately $15.00 per unit and with respect to which [Sterling Foster s] retention as a member of the [ML Direct] syndicate is approximately 192,000 units and, (ii) all transactions in [ML Direct] executed in the secondary market . . . . Brigley s cover letter also noted a need to have more collateral on hand. 13 1 From September 4, the first day of trading in the ML Direct IPO, through 2 September 11, Bear Stearns carried Sterling Foster s large short position of 2.86 3 million ML Direct shares on its books. The Levitt Plaintiffs allege that although 4 the provisions of Federal Reserve Board Regulation T required Bear Stearns to 5 cancel customer trades that remained unpaid two days after the settlement date 6 (or submit extension requests to the NYSE), Bear Stearns failed to cancel unpaid 7 trades made on September 4. By the close of business on September 12, Sterling 8 Foster customers owed more than $13.8 million for purchases of ML Direct 9 shares made on September 4. Ultimately, Bear Stearns canceled nearly one- 10 fourth of the purchases by Sterling Foster customers made on that day. 11 On September 11, the Selling Securityholders delivered their shares, 12 which Sterling Foster had agreed to purchase at the below-market price of $3.25 13 per share, to Bear Stearns. 14 Securityholders on September 12. Bear Stearns issued checks to the Selling 15 The trade confirmations that Bear Stearns sent to Sterling Foster s 16 customers, reflecting their purchases of ML Direct stock in the IPO, stated, 17 [y]our broker makes a mkt [market] in this security, and acted as principal. 18 Finally, Bear Stearns records reveal a number of customer purchases 19 recorded as of September 4. Typically the designation as of is used when a 20 trade is corrected after the date on which it was originally entered into. Here, 14 1 however, Sterling Foster employed the designation as of even though the 2 trades had never been entered into on the as of date, but instead were executed 3 much later. In fact, some of the as of trades recorded by Sterling Foster were 4 recorded on behalf of customers who had opened their accounts with Sterling 5 Foster after September 4, thus making it impossible that the trade was 6 originally executed on this date. Designating the trades as of allowed Sterling 7 Foster to record trades at the higher September 4 market prices, rather than the 8 actual market prices prevailing at the time of the trade. 9 II. Procedural History 10 11 The procedural history leading to the present appeal is extended and 12 complex; the proceedings specifically relevant to the present appeal, however, 13 are straightforward. Purchasers of securities in the IPOs underwritten by 14 Sterling Foster brought suit for securities fraud in various district courts across 15 the country. These suits were consolidated and a group of plaintiffs known as 16 the Rogers Plaintiffs were appointed lead plaintiffs. In February 1998, the 17 Judicial Panel on Multidistrict Litigation transferred the consolidated cases 18 against Sterling Foster to the United States District Court for the Eastern 19 District of New York (Spatt, J.). After the transfer, the Rogers Plaintiffs 20 amended their complaint to add Bear Stearns as a defendant. 21 15 1 In February 1999, the Levitt Plaintiffs brought suit against Bear Stearns 2 in the United States District Court for the Southern District of New York. See 3 Levitt v. Bear Stearns & Co., Inc., 340 F.3d 94, 100 (2d Cir. 2003) ( Levitt I ). 4 They alleged federal causes of action for securities fraud and a state-law cause 5 of action for common-law fraud in connection with the ML Direct IPO. Id. at 6 100-01. The action was transferred to the United States District Court for the 7 Eastern District of New York (Spatt, J.) in April 1999 as a tag-along to the 8 consolidated class action suit against Sterling Foster by the Rogers Plaintiffs. 9 Id. at 101. 10 Eventually, after considerable procedural back-and-forth not material 11 here, the district court granted the Levitt Plaintiffs motion to be appointed lead 12 plaintiffs for the ML Direct class (the Rogers Plaintiffs having since settled). See 13 In re Sterling Foster & Co, Inc., Sec. Litig., MDL Docket No. 1208 (ADS), 2008 14 WL 399296 (E.D.N.Y. Feb. 12, 2008). On September 25, 2009, the Levitt 15 Plaintiffs filed an amended class action complaint (the Complaint ) against 16 Bear Stearns on behalf of a class of all persons who purchased ML Direct 17 common stock or warrants during the period September 4, 1996 through 18 February 18, 1997, and who lost money on such purchases. The Complaint 19 alleged that Bear Stearns had knowledge of Sterling Foster s plan to manipulate 16 1 the market for ML Direct stock prior to the commencement of the IPO and that 2 Bear Stearns, 3 4 knowing of the fraud, joined in, permitted and facilitated said fraud and market manipulation by: 5 6 7 8 (a) Giving Sterling Foster permission to do the underwriting and agreeing to act as clearing agent for said underwriting. 9 10 11 12 13 14 15 16 17 (b) Extending credit to Sterling Foster during the period that Sterling Foster s trading account and overall accounts were in a short position including a margin call for over $23 million which call was never met prior to the delivery of the shares from the selling shareholders, thereby making Bear Stearns, in effect, an unsecured creditor of Sterling Foster for over $23 million during that period of time. 18 19 20 21 22 23 24 25 26 (c) Sending out false confirmations to purchasers of ML Direct stating that Sterling Foster with respect to these transactions was acting as a principal and making a market in ML Direct thereby implying that the purchase was a market transaction rather than, as Bear Stearns knew, disclosing that the purchasers had purchased at an underwriting in which Sterling Foster was making a profit of over 400%. 27 28 The Complaint asserted four causes of action against Bear Stearns. These were: 29 (1) participation in a fraudulent scheme, in violation of § 10(b) of the Securities 30 Exchange Act of 1934, 15 U.S.C. § 78j(b); (2) knowingly making false statements 31 to purchasers of ML Direct securities in trade confirmations, also in violation of 32 § 10(b); (3) control person liability under § 20(a) of the Securities Exchange Act 33 of 1934, 15 U.S.C. § 78t(a); and (4) common-law fraud. 17 1 On December 31, 2009, the Levitt Plaintiffs moved for certification of the 2 class with respect to claims of the class under the Securities Exchange Act, 3 Section 10b and Section 20 and the rules issued thereunder pursuant to Fed. 4 R. Civ. P. 23(b)(3).5 In support of their motion for certification, the Levitt 5 Plaintiffs, among other things, submitted the expert report of Robert W. Lowry 6 ( Lowry ); Lowry is the president of RL Consulting Services, a securities 7 consulting firm, and a former accountant with the SEC. In support of their 8 opposition to the Levitt Plaintiffs motion for class certification, Bear Stearns 9 submitted the expert report of Henry F. Minnerop ( Minnerop ), a senior counsel 10 at Sidley Austin LLP who specializes in representing clearing brokers. 11 The district court granted certification as to the Levitt Plaintiffs § 10(b) 12 claims and denied certification on the § 20(a) claim by a June 24, 2010, 13 memorandum decision and order.6 Levitt v. J.P. Morgan Secs. Inc., 270 F.R.D. 14 127 (E.D.N.Y. 2010). While acknowledging that [i]t is well-established that a 15 clearing broker such as Bear Stearns generally owes no duty of disclosure to the 16 clients of introducing brokers, the district court agreed with the Levitt Plaintiffs 17 that a preponderance of the evidence shows that Bear Stearns participated in 5 The Levitt Plaintiffs did not move for class certification on their common-law fraud claim. 6 The June 24 opinion was amended by an order of June 30, 2010, which made minor edits to the wording of the Opinion. 18 1 Sterling Foster s scheme in such a way as to trigger a duty to disclose. Id. at 2 133-34. The district court specifically noted the allegation that Bear Stearns 3 participated in Sterling Foster s fraudulent scheme by granting Sterling 4 Foster permission to underwrite the sale of the insiders shares even though 5 officers at Bear Stearns knew that Sterling Foster intended to establish a 6 substantial short position and cover that position with insider shares that were 7 subject to the lock-up agreement. Id. at 134. The district court also referred to 8 the view of Robert Lowry that Bear Stearns participated by failing to cancel 9 trades, allegedly in violation of Regulation T, which, Lowry said, was an 10 important component of the scheme because it gave Sterling Foster more time 11 to find buyers to purchase the canceled shares, thus enabling Sterling Foster to 12 maintain an artificial price for ML Direct. Id. 13 Having found that Bear Stearns sufficiently participated in Sterling 14 Foster s market manipulation scheme so as to trigger a duty of disclosure to 15 Sterling Foster s customers, the district court held that the Levitt Plaintiffs were 16 entitled to a presumption of reliance on what it characterized as Bear Stearns 17 omission its failure to disclose the ML Direct market manipulation scheme 18 to Sterling Foster s customers. Id. at 133. Thus, the district court held that the 19 Levitt Plaintiffs § 10(b) claims satisfied the predominance requirement for 20 certification of a class under Rule 23(b)(3). 19 1 The district court denied class certification with respect to the Levitt 2 Plaintiffs claim under § 20(a), holding that the Complaint s allegations [fell] 3 short of establishing that Bear Stearns controlled Sterling Foster [because] 4 [t]here is simply no indication . . . that Bear Stearns directed Sterling Foster s 5 management and policies, as is required by Section 20(a). Id. at 135.7 6 Bear Stearns moved for leave to pursue an interlocutory appeal of the 7 district court s June 24 opinion, which a panel of this Court granted on 8 November 10, 2010. DISCUSSION 9 10 We review a district court s grant of class certification for abuse of 11 discretion, Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 250 (2d 12 Cir. 2011), and review the conclusions of law underlying that decision de novo, 13 id. at 251. We also review for abuse of discretion the district court s finding that 14 the Levitt Plaintiffs satisfied the predominance requirement of Rule 23(b)(3), 15 although we review for clear error the factual findings underlying th[at] ruling. 16 Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 17 196, 201 (2d Cir. 2008). When reviewing a grant of class certification, we accord 18 the district court noticeably more deference than when we review a denial of 7 The Levitt Plaintiffs do not contest the district court s ruling with respect to the § 20(a) claim on appeal. 20 1 class certification. In re Salomon Analyst Metromedia Litig., 544 F.3d 474, 480 2 (2d Cir. 2008). 3 I. Rule 23 Requirements 4 A district court may only certify a class if it determines that each Rule 23 5 requirement is met. See McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 221 (2d 6 Cir. 2008). Rule 23(a) provides that a class action is appropriate 7 8 9 10 11 12 only if (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. 13 14 Fed. R. Civ. P. 23(a). If the Rule 23(a) criteria are satisfied, an action may be 15 maintained as a class action only if it also qualifies under at least one of the 16 categories provided in Rule 23(b). See Brown v. Kelly, 609 F.3d 467, 476 (2d Cir. 17 2010). 18 The Levitt Plaintiffs sought certification under Rule 23(b)(3), which 19 permits certification if the questions of law or fact common to class members 20 predominate over any questions affecting only individual members, and . . . a 21 class litigation is superior to other available methods for fairly and efficiently 22 adjudicating the controversy. Fed. R. Civ. P. 23(b). 21 1 In evaluating a motion for class certification, the district court is required 2 to make a definitive assessment of Rule 23 requirements, notwithstanding their 3 overlap with merits issues, and must resolve material factual disputes relevant 4 to each Rule 23 requirement. Brown, 609 F.3d at 476 (internal quotation marks 5 omitted). 6 preponderance of the evidence. Id. The burden of proving compliance with all 7 of the requirements of Rule 23 rests with the party moving for certification. See 8 In re Initial Pub. Offering Sec. Litig., 471 F.3d 24, 40 (2d Cir. 2006). The Rule 23 requirements must be established by at least a 9 The principal question in this appeal is whether the district court properly 10 determined that the Rule 23(b)(3) predominance requirement was met. This 11 question largely turns on whether Bear Stearns s conduct in its role as a clearing 12 broker was such that Bear Stearns owed (and breached) a duty of disclosure to 13 Sterling Foster s customers. 14 II. The Private Right of Action under § 10(b) 15 Section 10(b) makes it unlawful for any person, directly or indirectly, . . 16 . [t]o use or employ, in connection with the purchase or sale of any security . . ., 17 any manipulative or deceptive device or contrivance in contravention of such 18 rules and regulations as the [SEC] may prescribe. 15 U.S.C. § 78j(b). Rule 10b- 19 5, promulgated thereunder, provides as follows: 20 22 1 2 3 It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, 4 5 (a) To employ an device, scheme, or artifice to defraud, 6 7 8 9 10 (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 11 12 13 14 (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, 15 16 in connection with the purchase or sale of any security. 17 18 17 C.F.R. § 240.10b-5. 19 In a typical § 10(b) private action a plaintiff must prove (1) a material 20 misrepresentation or omission by the defendant; (2) scienter; (3) a connection 21 between the misrepresentation or omission and the purchase or sale of a 22 security; (4) reliance upon the misrepresentation or omission; (5) economic loss; 23 and (6) loss causation. Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 24 552 U.S. 148, 157 (2008). 25 actionable under § 10(b), the defendant must be subject to an underlying duty 26 to disclose. See Basic v. Levinson, 485 U.S. 224, 239 n.17 (1988) ( To be 27 actionable, . . . a statement must also be misleading. Silence, absent a duty to 28 disclose, is not misleading under Rule 10b-5. ); In re Time Warner Inc. Secs. In addition, for an omission to be considered 23 1 Litig., 9 F.3d 259, 267 (2d Cir. 1993) ( [A]n omission is actionable under the 2 securities laws only when the [defendant] is subject to a duty to disclose the 3 omitted facts. ). Finally, an omission of a material fact by a defendant with a 4 duty to disclose establishes a rebuttable presumption of reliance upon the 5 omission by investors to whom the duty was owed. Affiliated Ute, 406 U.S. at 6 153-54. 7 8 III. Duty of a Clearing Broker (Generally) 9 10 We have previously said that a clearing agent[] is generally under no 11 fiduciary duty to the owners of the securities that pass through its hands. 12 Edwards & Hanly v. Wells Fargo Secs. Clearance Corp., 602 F.2d 478, 484 (2d 13 Cir. 1979); see also Flickinger v. Harold C. Brown & Co., 947 F.2d 595, 599 (2d 14 Cir. 1991) (holding that a clearing broker did not owe a fiduciary duty under 15 New York law to a customer of an introducing broker). Nor does the simple 16 providing of normal clearing services to a primary broker who is acting in 17 violation of the law . . . make out a case of aiding and abetting against the 18 clearing broker. We made this latter point in Greenberg v. Bear, Stearns & Co., 19 220 F.3d 22, 29 (2d Cir. 2000), which dealt with claims against Bear Stearns 20 arising out of the very same ML Direct IPO at issue in the present case. There, 21 we affirmed the district court s denial of a petition to vacate an NASD 24 1 arbitration award that had in turn dismissed securities fraud and state-law 2 claims brought against Bear Stearns by an investor in the IPO. As relevant 3 here, we noted that there was ample evidence for the arbitrators to conclude 4 that Bear Stearns participation [in the ML Direct IPO] was insufficient to 5 constitute substantial assistance under New York aiding and abetting law.8 Id. 6 at 29. 7 Applying these principles, district courts in this Circuit have distinguished 8 two categories of cases. First, in cases where a clearing broker was simply 9 providing normal clearing services, district courts have declined to impose[] 10 liability on the clearing broker for the transgressions of the introducing broker. 11 Fezzani v. Bear, Stearns & Co., 592 F. Supp. 2d 410, 425-26 (S.D.N.Y. 2008); see 12 also, e.g., Cromer Fin. Ltd. v. Berger, 137 F. Supp. 2d 452, 470 (S.D.N.Y. 2001) 13 ( A clearing broker does not provide substantial assistance to or participate in 14 a fraud when it merely clears trades. ); In re Blech Sec. Litig., 961 F. Supp. 569, 15 584 (S.D.N.Y. 1997) ( [P]rimary liability [under § 10(b)] cannot attach when the 16 fraudulent conduct that is alleged is no more tha[n] the performance of routine 17 clearing functions. ). The district courts have so held even if the clearing broker 18 was alleged to have known that the introducing broker was committing fraud, 8 There is no private right of action under § 10(b) or Rule 10b-5 for aiding and abetting claims. See Stoneridge, 552 U.S. at 157-58; Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994). 25 1 Fezzani, 592 F. Supp. at 425; even if the clearing broker was alleged to have 2 been clearing sham trades for the introducing broker, In re Blech, 961 F. Supp. 3 at 584; and even if the clearing broker was alleged to have failed to enforce 4 margin requirements against the introducing broker thereby allowing the 5 introducing broker s fraud to continue in violation of Federal Reserve and 6 NYSE rules, Cromer, 137 F. Supp. 2d at 471-72. 7 In the second, much more limited category of cases, district courts have 8 found plaintiffs allegations to be adequate and so have permitted claims to 9 proceed where a clearing broker is alleged effectively to have shed its role as 10 clearing broker and assumed direct control of the introducing firm s operations 11 and its manipulative scheme. Thus, in Berwecky v. Bear, Stearns & Co., 197 12 F.R.D. 65 (S.D.N.Y. 2000), the district court granted class certification in a suit 13 brought by investors against clearing broker Bear Stearns for its role in the 14 introducing firm A.R. Baron & Company s ( Baron ) scheme to defraud investors. 15 The Berwecky plaintiffs alleged that Bear Stearns asserted control over Baron s 16 trading operations by, inter alia, placing Bear, Stearns employees at Baron s 17 offices to observe Baron s trading activities, approving or declining to execute 18 certain trades, imposing restrictions on Baron s inventory, and loaning funds to 19 Baron. Id. at 67. The plaintiffs alleged that Bear Stearns asserted control over 20 Baron s activities in order to keep A.R. Baron a viable concern while Bear, 26 1 Stearns . . . continued to reap the large profits they received from their activities 2 with A.R. Baron. Id. The district court found the allegations that Bear Stearns 3 control[led] the implementation of the scheme to manipulate the price of 4 securities sold by Baron sufficient to satisfy Rule 23(b)(3) s predominance 5 requirement. Id. at 68-69. 6 Similarly, the district court in In re Blech, 961 F. Supp. 569, found that the 7 [c]omplaint crosse[d] the line dividing secondary liability from primary liability 8 when it claim[ed] that Bear Stearns [the clearing broker] directed or contrived 9 certain allegedly fraudulent trades. Id. at 584. The plaintiffs in Blech had 10 alleged that Bear Stearns directed Blech & Co. [the introducing firm] to sell 11 Blech Securities by demanding that Blech reduce its debit balance with 12 knowledge of Blech s history of sham trading, and that Blech, in response to 13 Bear Stearns s pressure, engaged in manipulative parking transactions, which 14 Bear Stearns cleared. 15 instigation of trading that Bear Stearns knew or should have known would 16 result in fraudulent trades that would artificially inflate the price of the Blech 17 Securities, and Bear Stearns s subsequent clearing of the resultant fraudulent 18 trades for its own pecuniary benefit constituted an attempt to affect the price 19 of the Blech Securities and was therefore sufficient to state a claim for primary 20 liability under § 10(b). Id. at 584-85 (emphasis added). Id. The district court concluded that the alleged 27 1 We think that the distinctions drawn by these district courts properly 2 implement Rule 382 s scheme, which allows clearing and introducing brokers to 3 contractually allocate functions amongst themselves. As noted above, this 4 scheme permits clearing brokers to place the burden of monitoring trades on the 5 introducing broker. In return, the introducing broker has access to the services 6 of the clearing broker and thus avoids the overhead costs associated with 7 providing clearing services in-house. In view of the importance of not holding 8 clearing brokers liable for conduct for which the introducing broker assumed 9 responsibility pursuant to NYSE Rule 382, we here adopt the approach thus far 10 taken by the district courts of this Circuit in § 10(b) suits against clearing 11 brokers governed by Rule 382. 12 In the present case, however, we conclude that the district court 13 misapplied this approach. As the district court noted, the Levitt Plaintiffs do not 14 argue that Bear Stearns s liability flows directly from its alleged participation 15 in Sterling Foster s scheme. 16 triggered a duty to disclose the scheme, rendering Bear Stearns s omission to do 17 so actionable. In our view, however, and assuming, arguendo, that this theory 18 of liability is otherwise available9 the Levitt Plaintiffs have failed to allege Rather, they contend that this participation 9 There is some disagreement over whether the act of market manipulation itself triggers a duty to disclose. Compare Desai v. Deutsche Bank Sec. Ltd., 573 F.3d 931, 941 (9th Cir. 2009) (distinguishing between omission and manipulation claims 28 1 sufficiently direct involvement by Bear Stearns in Sterling Foster s scheme to 2 manipulate the ML Direct IPO to create any such duty owed by Bear Stearns to 3 Sterling Foster s customers. And absent a duty to disclose, there can be no 4 material omission under § 10(b), precluding the Levitt Plaintiffs from invoking 5 the presumption of reliance of Affiliated Ute and thereby satisfying the 6 predominance requirement of Rule 23(b)(3).10 7 IV. Duty of the Clearing Broker in the Present Case 8 Here, the Complaint itself alleges only that Bear Stearns, knowing of the 9 fraud, joined in, permitted and facilitated said fraud and market manipulation. 10 (emphasis added). The Levitt Plaintiffs do not assert that Bear Stearns 11 instigated or directed the manipulative scheme. Rather, they allege, at most, 12 that Bear Stearns approved the ML Direct offering; that it agreed to serve as 13 clearing broker for the offering; and that it may have violated certain NASD 14 rules and Federal Reserve regulations in connection with the offering. We think under Rule 10b-5), with In re Initial Pub. Offering Sec. Litig., 241 F. Supp. 2d 281, 381 (S.D.N.Y. 2003) (holding that market manipulation creates a duty to disclose). Given our conclusion that Bear Stearns was not sufficiently involved in Sterling Foster s manipulative scheme for any kind of primary liability to attach, we need not address the question. We similarly need not identify in detail other possible sources of an actionable duty to disclose. We note, however, that courts have found that [f]iduciary relationships and their concomitant duty to disclose may be established by state or federal law. Camp v. Dema, 948 F.2d 455, 460 (8th Cir. 1991) (collecting cases). 10 In light of this disposition, we likewise need not and do not address whether the Levitt Plaintiffs could satisfy the other elements of an action under §§ 10(b) and 10b-5 for the purpose of class certification. 29 1 substantially more direct participation by the clearing broker is required for a 2 duty of disclosure to exist. 3 To be sure, the Levitt Plaintiffs have attempted to show that Bear Stearns 4 did more than simply clear trades; in particular, they offer expert testimony that 5 Bear Stearns activities in connection with the ML Direct IPO were irregular. 6 These arguments are unavailing. 7 First, Plaintiffs claim that Bear Stearns requirement that it approve the 8 ML Direct offering and its demand for a personal guarantee and increased 9 collateral from Sterling Foster were unusual. They do not assert, however, that 10 any of these requirements are atypical in the industry or, even if they are, that 11 this would support the conclusion that Bear Stearns had a duty to disclose 12 Sterling Foster s misconduct. To the contrary, Bear Stearns expert testified that 13 requirements for increased collateral and approval of large IPOs were standard 14 among clearing brokers and represented an attempt to mitigate the clearing 15 broker s risk. The Levitt Plaintiffs allegations thus boil down to a claim that the 16 demand for a personal guarantee and increased collateral are irregular in the 17 context of Bear Stearns alleged knowledge that Sterling Foster would attempt 18 to manipulate the market in ML Direct shares by releasing the Selling 19 Securityholders from the lock-up agreement after trading commenced. But as 20 discussed above, a clearing broker s knowledge of the fraud alone is an 30 1 insufficient basis on which to impose a duty of disclosure on the clearing broker; 2 we do not think otherwise-normal clearing practices become irregular simply 3 because they are undertaken with such knowledge. Certainly plaintiffs here do 4 not allege that Bear Stearns, beyond merely acquiescing in the ML Direct 5 scheme, went so far as to control and implement that scheme in the manner 6 alleged, for example, in Berwecky. 7 The Levitt Plaintiffs next assert that the statements on the trade 8 confirmations issued by Bear Stearns to Sterling Foster customers who 9 purchased shares of ML Direct in the IPO contained misleading statements. The 10 confirmations contained boilerplate language indicating that Sterling Foster 11 makes a mkt [market] in this security [i.e., ML Direct], and acted as principal. 12 Bear Stearns responds that the trade confirmations were automatically 13 populated by Bear Stearns with data imputed by Sterling Foster. Plaintiffs do 14 not contradict this assertion on appeal. Instead, they argue that Bear Stearns 15 had a duty to correct Sterling Foster s misrepresentation. This conduct standing 16 alone, however, does not constitute the sort of extraordinarily high involvement 17 in the fraudulent scheme necessary to create such a duty on the part of Bear 18 Stearns. 19 Plaintiffs argue that Bear Stearns went beyond merely serving as an 20 ordinary clearing broker because Bear Sterns allowed Sterling Foster to resell 31 1 . . . repurchased shares from September 12 through September 30, 1996, as of 2 September 4, at the share price prevailing on September 4, rather than on the 3 date the shares were actually sold. Appellee s Br. 27-28 (emphasis added). Even 4 assuming this characterization of Bear Stearns actions to be correct (which 5 Bear Stearns contests), we fail to see how allowing or clearing putatively sham 6 or manipulative trades is comparable to directing or instigating such trades, see 7 In re Blech, 961 F. Supp. at 584-85. 8 Finally, the Levitt Plaintiffs allege that Bear Stearns conduct was 9 irregular because the clearing broker violated Regulation T , 12 C.F.R. pt. 220, 10 in connection with the ML Direct offering. The district court also relied heavily 11 on Bear Stearns alleged violations of Regulation T, citing the contention of 12 Plaintiffs expert that Bear Stearns failure to cancel trades (as Regulation T 13 demanded) gave Sterling Foster more time to find buyers to purchase the 14 canceled shares, thus enabling Sterling Foster to maintain an artificial price for 15 ML Direct. Levitt, 270 F.R.D. at 134. Even if a clearing broker s violations of 16 Regulation T are irregular, however, they do not support the conclusion that 17 the clearing broker has a duty to disclose a broker-dealer s misconduct to that 18 broker-dealer s customers. 19 Regulation T was promulgated by the Federal Reserve Board under § 7 of 20 the Securities Exchange Act, 15 U.S.C. § 78g, see Mfrs. Hanover Trust Co. v. 32 1 Drysdale Secs. Corp., 801 F.2d 13, 22 (2d Cir. 1986), and, as relevant here, sets 2 forth time periods for payment of customer purchases in a broker-dealer account. 3 Regulation T provides that a broker-dealer shall promptly cancel or otherwise 4 liquidate a transaction . . . for which the customer has not made full cash 5 payment within the required time. 12 C.F.R. § 220.8(b)(ii)(4). The Levitt 6 Plaintiffs argue that Bear Stearns violated Regulation T when it failed to cancel 7 unpaid trades in Sterling Foster accounts during the ML Direct IPO. We have 8 held, however, that there is no private right of action under § 7 or under Federal 9 Reserve Board Regulation U, also promulgated under § 7, see Bennett v. U.S. 10 Trust Co. of N.Y., 770 F.2d 308, 312 (2d Cir. 1985) (finding no private right of 11 action under § 7 or Regulation U and observing in support of that holding that 12 the underlying purpose of section 7 is to regulate the use of credit in securities 13 transactions ). 14 Plaintiffs do not directly argue for a private cause of action for a clearing 15 broker s Regulation T violation, but rather urge that Bear Stearns can be held 16 liable as a primary violator of § 10(b) because its violations of Regulation T 17 permitted Sterling Foster to manipulate the market for ML Direct by allowing 18 trades to go unpaid until the Selling Securityholders delivered their shares. But, 19 in the absence of other conduct of Bear Stearns outside the normal course of 20 activities for a clearing broker, deeming the violation of Regulation T to trigger 33 1 a duty to disclose, and in so doing to constitute a material omission under § 2 10(b), would be tantamount to the creation of a right of action for a Regulation 3 T violation. The margin and cancellation requirements of Regulation T are 4 designed to protect the viability of brokerage houses and not to protect 5 investors, Cromer, 137 F. Supp. 2d at 472 (citing Bennett, 770 F.2d at 312), and 6 we decline to effectively adopt a private right of action for investors to enforce 7 these regulations. 8 The Levitt Plaintiffs have not adduced any evidence at the class 9 certification stage that indicates that Bear Stearns directed or instigated sham 10 or fraudulent trades, or that it otherwise so departed from the performance of 11 normal clearing functions as to establish that Bear Stearns owed Sterling 12 Foster s customers a duty of disclosure. Without a duty of disclosure, Bear 13 Stearns could not have engaged in a material omission for the purpose of § 10(b); 14 in the absence of a material omission, Plaintiffs cannot employ a classwide 15 presumption of reliance under Affiliated Ute; nor, therefore, can Plaintiffs satisfy 16 the predominance requirement of Rule 23(b)(3). The district court accordingly 17 erred in certifying a (b)(3) class. 18 19 20 CONCLUSION For the foregoing reasons, we REVERSE the order of the district court and remand for further proceedings consistent with this opinion. 34
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