Iowa Pub. Employee Ret. Sys. v. MF Global, Ltd., No. 09-3919 (2d Cir. 2010)

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09-3919-cv Iowa Pub. Employees Ret. Sys. v. MF Global, Ltd. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009 (Argued: July 15, 2010 Decided: September 14, 2010) Docket No. 09-3919-cv - - - - - - - - - - - - - - - - - - - - -x IOWA PUBLIC EMPLOYEES RETIREMENT SYSTEM, POLICEMEN S ANNUITY & BENEFIT FUND OF CHICAGO, CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, STATE-BOSTON RETIREMENT SYSTEM, MF GLOBAL INSTITUTIONAL INVESTORS GROUP, Plaintiffs-Appellants, MICHAEL RUBIN, individually and on behalf of all others similarly situated, Plaintiff, NANETTE KATZ, FRANK MATASSA, SUNSHINE WIRE AND CABLE DEFINED BENEFIT PLAN TRUST, individually and on behalf of all others similarly situated, MICHAEL J. RUDNICK, individually and on behalf of all others similarly situated, Consolidated-Plaintiffs, - v.MF GLOBAL, LTD., MAN GROUP, PLC, KEVIN R. DAVIS, AMY S. BUTTE, ALISON J. CARNWATH, CHRISTOPHER J. SMITH, CHRISTOPHER BATES, HENRI J. STEENKAMP, EDWARD L. GOLDBERG, DEUTSCHE BANK SECURITIES, INC., ABN AMRO ROTHSCHILD LLC, BANC OF AMERICA SECURITIES, LLC, BMO CAPITAL MARKETS CORP., HSBC SECURITIES (USA) INC., KEEFE, BRUYETTE & WOODS, INC., SANDLER O NEILL & PARTNERS, L.P., WACHOVIA CAPITAL MARKETS LLC, CL KING & ASSOCIATES, INC., DOWLING & PARTNERS SECURITIES, LLC, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 E*TRADE SECURITIES LLC, FORTIS SECURITIES LLC, GUZMAN & CO., ING FINANCIAL MARKETS, LLC, JEFFRIES & CO., INC., LAZARD CAPITAL MARKETS LLC, M.R. BEAL & CO., MIZUHO SECURITIES USA, INC., MURIEL SIEBERT & CO., INC., OPPENHEIMER & CO., INC., PIPER, JAFFRAY & CO., RAYMOND JAMES & ASSOCIATES, INC., RBC MARKETS CORP., ROBERT W. BAIRD & CO., INC., SAMUEL A. RAMIREZ & CO., INC., SMH CAPITAL INC., STIFEL, NICOLAUS & CO., INC., SUN TRUST CAPITAL MARKETS, INC., THE WILLIAMS CAPITAL GROUP, L.P., UTENDAHL CAPITAL PARTNERS, L.P., WELLS FARGO SECURITIES, LLC, WILLIAM BLAIR & CO., LLC, Defendants-Appellees, MERRILL LYNCH, PIERCE FENNER & SMITH, INC., CREDIT SUISSE SECURITIES (USA) LLC, CITIGROUP GLOBAL MARKETS, INC., J.P. MORGAN SECURITIES INC., LEHMAN BROTHERS INC., UBS SECURITIES LLC, GOLDMAN SACHS & CO., MORGAN STANLEY & CO., INC., Consolidated-Defendants-Appellees. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, B.D. PARKER and HALL, Circuit Judges. Plaintiffs appeal from a July 23, 2009 judgment of the 27 United States District Court for the Southern District of 28 New York (Marrero, J.), dismissing their complaint for 29 failure to state a claim. 30 misstatements and omissions in a prospectus and registration 31 statement of defendant MF Global, Ltd., and assert claims 32 under §§ 11, 12(a)(2), and 15 of the 1933 Securities Act. 33 AFFIRMED IN PART, VACATED IN PART, and REMANDED for further 34 proceedings consistent with this opinion. They allege material 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 MARK R. ROSEN, Barrack, Rodos & Bacine, Philadelphia, PA (Leonard Barrack, Barrack, Rodos & Bacine, Philadelphia, PA; William J. Ban, Barrack, Rodos & Bacine, New York, NY; Carol V. Gilden, Cohen Milstein Sellers & Toll PLLC, Chicago, IL; and Steven J. Toll, Daniel S. Sommers, Cohen Milstein Sellers & Toll PLLC, Washington, DC on the brief) for Appellants. DAVID B. ANDERS (Bernard W. Nussbaum, Elaine P. Golin, and Christina T. Shay on the brief), Wachtell, Lipton, Rosen & Katz, New York, NY for MF Global Appellees. David A. Barrett, Marilyn C. Kunstler, Boies, Schiller & Flexner LLP, New York, NY for Appellee Man Group plc. Stuart J. Baskin, Herbert S. Washer, and Adam S. Hakki, Shearman & Sterling LLP, New York, NY for Underwriter Appellees. Marshall H. Fishman, Freshfields Bruckhaus Deringer US LLP, New York, NY for Appellee Amy S. Butte. DENNIS JACOBS, Chief Judge: Plaintiffs appeal from a July 23, 2009 judgment of the 39 United States District Court for the Southern District of 40 New York (Marrero, J.), dismissing their putative securities 3 1 class action complaint for failure to state a claim. They 2 allege material misstatements and omissions in the July 2007 3 prospectus and registration statement of defendant MF 4 Global, Ltd., and assert claims under §§ 11, 12(a)(2), and 5 15 of the 1933 Securities Act. 6 MF Global plummeted after the February 2008 revelation that 7 a broker had evaded trading restrictions. 8 allegations, dismissal of two is not appealed. 9 claim that the prospectus and registration statement 10 exaggerated risk-management measures, we vacate the 11 dismissal because the district court erroneously applied the 12 bespeaks-caution doctrine. 13 the prospectus and registration statement failed to disclose 14 deficiencies in the firm s controls of client accounts, we 15 affirm in part the district court s dismissal for lack of 16 causation, and in part vacate and remand. In a nutshell, the stock of Of four groups of As to the As to the remaining claim, that 17 18 19 20 I In the morning hours of February 27, 2008, a broker at MF Global, Ltd. lost $141.5 million speculating in wheat 4 1 futures.1 2 by taking positions vastly in excess of the firm s trading 3 limits and collateral requirements. 4 responsible for settling Dooley s trades at the 5 clearinghouse, and absorbed the losses. 6 the markets on February 28, MF Global s stock price fell 7 28%; it fell a further 17% the day after, resulting in a 8 two-day market capitalization loss exceeding $1.1 billion. 9 The broker, Evan Dooley, accumulated the losses MF Global was When news reached The Dooley trading incident revealed to the public that 10 MF Global s internal risk controls had not been applied to 11 brokers trading for their own accounts (or taking client 12 orders by phone). 13 exposure to market risks in brokerage accounts by 14 restricting trading and by managing margin credit with 15 collateral and other requirements. 16 deactivated the controls (as with Dooley) to speed 17 transactions. 18 MF Global had controls for limiting its But MF Global sometimes This putative class action was filed on March 6, 2008, 1 These facts, drawn from the plaintiffs complaint, are taken as true. See, e.g., Harrington v. County of Suffolk, 607 F.3d 31, 33 (2d Cir. 2010) (When review[ing] . . . a district court s dismissal for failure to state a claim, we assum[e] all well-pleaded, nonconclusory factual allegations in the complaint to be true. ). 5 1 alleging, on behalf of certain purchasers of MF Global 2 stock, that the firm misrepresented and failed to disclose 3 relevant material information in a prospectus and 4 registration statement2 issued when the brokerage firm went 5 public in July 2007. 6 (IPO), MF Global had been the brokerage arm of Man Group, 7 Plc, a hedge fund. 8 the IPO underwriters, and various MF Global officers and 9 directors. Until its initial public offering The defendants are MF Global, Man Group, Damages are sought under §§ 11, 12(a)(2), and 15 10 of the 1933 Securities Act,3 15 U.S.C. §§ 77k, 77l(a)(2) & 11 77o. 12 13 In response to a motion under Federal Rule of Civil Procedure 12(b)(6), the district court dismissed the 2 The prospectus and registration statement contained substantially similar statements and wording in relevant part. Any analysis of statements or omissions in either is therefore equally applicable to the other. 3 Section 11 imposes liability for material misstatements and omissions in registration statements. See 15 U.S.C. § 77k(a). And § 12(a)(2) imposes liability for material misstatements and omissions in prospectuses (and certain other communications). See 15 U.S.C. § 77l(a)(2). Section 15 imposes joint and several vicarious liability for violations of §§ 11 and 12 on any person who controls the primary violator. See 15 U.S.C. § 77o. The fate of the plaintiffs § 15 claim is therefore wholly dependent on our disposition of their § 11 and § 12 claims, and will not be analyzed separately here. 6 1 complaint in its entirety. See Rubin v. MF Global, Ltd., 2 634 F. Supp. 2d 459 (S.D.N.Y. 2009). 3 sorted the allegations into four groups, id. at 469-72, each 4 of which it analyzed separately: The district court 5 6 7 [1] Directional Trading: That the prospectus misrepresented the types of trading--directional 4 or only hedging--conducted by MF Global; 8 9 10 11 12 [2] Refco: That the prospectus failed to disclose the lack of adjustments to MF Global s riskmanagement systems made during and after Man Group s acquisition of Refco, another brokerage firm; 13 14 15 16 [3] Risk Management: That the prospectus misrepresented and failed to disclose material facts relevant to the strengths and weaknesses of MF Global s risk-management system; and 17 18 19 20 21 [4] Client Accounts: That the prospectus failed to disclose that traders did not have limits when trading for clients, and that with the proper password anyone could access client accounts and trade in them at any time, id. at 470; 22 The court dismissed the first group of allegations on the 23 ground that the cited statements were not false or 24 misleading, and the second on the ground that the plaintiffs 25 had insufficiently alleged the omission of any material 4 A directional trade is an affirmative bet on the market that increases the trader s risk--in contrast to a hedging trade, which reduces risk. 7 1 fact. 2 Claims premised on allegations concerning risk management 3 were dismissed on the ground that cautionary language 4 elsewhere in the prospectus 5 rendered the cited statements 5 or omissions non-actionable pursuant to the bespeaks-caution 6 doctrine. 7 The fourth category of allegations (concerning client 8 accounts) was dismissed on the ground that alleged omissions 9 concerning the accounts of clients could not have caused the 10 loss alleged, which resulted from revelations concerning the The plaintiffs do not appeal those specific rulings. (An alternative ground is discussed in note 13.) 5 The prospectus s relevant cautionary language included the following: ¢ [O]ur risk-management methods may prove to be ineffective because of their design, their implementation or the lack of adequate, accurate or timely information. If our riskmanagement efforts are ineffective, we could suffer losses that could have a material adverse effect on our financial condition or operating results. ¢ [W]e are exposed to . . . risks relating to employee misconduct. Among other things, our employees could execute unauthorized transactions for our clients or for their own or any of our accounts. 8 1 2 accounts of non-clients. 6 The plaintiffs timely appealed. We review the district 3 court s order de novo. E.g., Harrington v. County of 4 Suffolk, 607 F.3d 31, 33 (2d Cir. 2010). 5 II 6 7 To prevail on a § 11 or § 12(a)(2) claim, a plaintiff 8 must show that the relevant communication either misstated 9 or omitted a material fact. See 15 U.S.C. § 77k; 15 U.S.C. 10 § 77l(a)(2). 11 of the well-established principle that a statement or 12 omission must be considered in context. 7 The bespeaks-caution doctrine is a corollary In re Donald J. 6 The district court dismissed all claims without prejudice to repleading provided that the plaintiffs could plausibly show[] that such a repleading would not be futile. Rubin, 634 F. Supp. 2d at 475. The plaintiffs subsequently proffered an amended complaint; but after reviewing it the district court denied leave to replead, find[ing] that the filing of the Proposed Amended Complaint would be futile. Though the plaintiffs contest this denial on appeal, for the reasons set out in note 13 we need not reach that assignment of error. 7 The doctrine (and phrase) seems to have appeared first in Polin v. Conductron Corp., which held that statements of expectation, of anticipation, and of possibilities bespeak caution in outlook and fall far short of the assurances required for a finding of falsity and fraud. 552 F.2d 797, 806 n.28 (8th Cir. 1977). In this Circuit, the doctrine first appeared when it was quoted 9 1 Trump Casino Sec. Litig., 7 F.3d 357, 364 (3d Cir. 1993); 2 accord, e.g., Shaw v. Digital Equip. Corp., 82 F.3d 1194, 3 1213 (1st Cir. 1996); Fecht v. Price Co., 70 F.3d 1078, 4 1081-82 (9th Cir. 1995); Rubinstein v. Collins, 20 F.3d 160, 5 167-68 (5th Cir. 1994). 6 accompanied by sufficient cautionary language is not 7 actionable because no reasonable investor could have found 8 the statement materially misleading. 8 9 Family P ship L.P. v. Daum, 355 F.3d 92, 96-97 (2d Cir. A forward-looking statement See, e.g., P. Stolz 10 2004). In such circumstances, it cannot be supposed by a 11 reasonable investor that the future is settled, or 12 unattended by contingency. 13 held that statements in an offering memorandum as to the 14 potential cash and tax benefits of [a] partnership were For example, Luce v. Edelstein approvingly in dicta in Goldman v. Belden, 754 F.2d 1059, 1068 (2d Cir. 1985); it was first applied in Luce v. Edelstein, 802 F.2d 49, 56 (2d Cir. 1986). 8 Though we originally applied bespeaks caution to an action under § 10(b) of the 1934 Securities Exchange Act, 15 U.S.C. § 78j(b), see Luce, 802 F.2d at 56, we have since applied the doctrine to actions under § 11, see, e.g., Rombach v. Chang, 355 F.3d 164, 172-74 (2d Cir. 2004), and § 12(a)(2), see, e.g., P. Stolz Family P ship L.P v. Daum, 355 F.3d 92, 96-98 (2d Cir. 2004), of the 1933 Securities Act. 10 1 non-actionable because the Offering Memorandum made it 2 quite clear that its projections of potential cash and tax 3 benefits were necessarily speculative in nature[,] . . . 4 that [n]o assurance [could] be given that these projections 5 [would] be realized, and that [a]ctual results may vary 6 from the predictions and these variations may be material. 7 802 F.2d 49, 56 (2d Cir. 1986). 8 9 The doctrine is one of a set of rules coping with the problem that forward-looking information poses for 10 securities disclosure laws. For decades, the disclosure of 11 forward-looking information was generally prohibited by the 12 Securities and Exchange Commission (SEC).9 13 changed in the 1970s.10 14 looking information notwithstanding certain vulnerabilities, 15 including the tendency of predictions to be embarrassed by That policy To encourage disclosure of forward- 9 E.g. Statement by the Commission on the Disclosure of Projections of Future Economic Performance, Securities Act Release No. 5362, 1973 WL 149309, at *1 (Feb. 2, 1973); Louis Loss et al., 2 Securities Regulation 77 & n.80 (4th ed. 2007). 10 See generally Safe Harbor for Forward-Looking Statements, Securities Act Release No. 2324, 1994 WL 562021 (Oct. 13, 1994) (recounting history of SEC policy toward forward-looking information). 11 1 the passage of time, 11 regulators developed safe harbors. 2 The SEC promulgated a regulatory safe harbor in 1979, see 3 Safe Harbor Rule for Projections, Securities Act Release No. 4 532, 1979 WL 181199 (June 25, 1979) (codified as amended at 5 17 C.F.R. §§ 230.175, 240.3b-6); and Congress followed suit 6 in 1995, see Private Securities Litigation Reform Act of 7 1995 § 102(a), Pub. L. No. 104-67, 109 Stat. 737, 749 8 (codified at 15 U.S.C. § 77z-2). 9 courts contribution. 10 Bespeaks caution is the It is settled that the bespeaks-caution doctrine 11 applies only to statements that are forward-looking. 12 Stolz Family P ship, 355 F.3d at 96-97 & n.3 (adopting 13 explicitly a forward-looking limitation to the bespeaks- 14 caution doctrine, but acknowledging that elaborating such a 15 distinction may be unnecessary [b]ecause the bespeaks 16 caution doctrine is often defined with respect to forward- 17 looking statements ). 18 limitation. See P. We have consistently observed that 11 See Statement by the Commission on the Disclosure of Projections of Future Economic Performance, Securities Act Release No. 5362, 1973 WL 149309, at *3 (Feb. 2, 1973). 12 1 In P. Stolz Family Partnership, for example, the 2 doctrine insulated predictions of future capital-raising 3 transactions ( a sought-after $30 million or a future IPO ), 4 but not statements about the existence of an agreement to 5 try to plan an IPO. 6 Rombach v. Chang, 355 F.3d 164 (2d Cir. 2004), we applied 7 bespeaks caution to statements of optimism concerning the 8 future performance of newly acquired businesses, see id. at 9 172-76; but not to alleged omissions of information Id. at 97-98. Most recently, in 10 concerning existing financial and operational difficulties, 11 see id. at 173. 12 More examples are set out in the margin. 12 In Luce, we applied bespeaks caution to predictions of potential cash and tax benefits. 802 F.2d at 56. In I. Meyer Pincus & Associates, P.C. v. Oppenheimer & Co., Inc., we applied bespeaks caution to predictions of a security s performance (though we doubted that the challenged statement expressed any prediction at all). 936 F.2d 759, 762-63 (2d Cir. 1991) In Olkey v. Hyperion 1999 Term Trust, Inc., we applied bespeaks caution to predictions of an asset manager s ability to hedge interest rate risk. 98 F.3d 2, 9-10 (2d Cir. 1996). In Hunt v. Alliance North American Government Income Trust, Inc., we declined to apply bespeaks caution to statements by a mutual fund that it intended to use hedging devices insofar as those statements suggested that such hedging devices were available to the fund even while the 13 1 Here, it is alleged for example that the prospectus 2 failed to disclose the material fact that [MF Global s] 3 Risk Management System protocols and procedures . . . did 4 not apply to the Company s employees . . . [when] trading 5 for their own accounts. 6 omission of present fact, to which bespeaks caution does not 7 apply: The applicability of MF Global s risk-management 8 system to employee accounts was ascertainable when the 9 challenged statements were made. That allegation specifies an It was therefore error for 10 the district court to rely on the bespeaks-caution doctrine 11 to dismiss that claim. 12 The district court asked whether Plaintiffs are 13 essentially alleging that Defendants failed to disclose the 14 risk of a future negative event. 15 468. Rubin, 634 F. Supp. 2d at The doctrine then was applied to immunize any Fund managers [allegedly] knew (or recklessly disregarded) that these hedging techniques were not available (because they were too costly). 159 F.3d 723, 728-29 (2d Cir. 1998). In Halperin v. eBanker USA.com, Inc. , we applied bespeaks caution to statements of future plans, that [t]he Company intends to endeavor to file registration statements with the SEC, which the plaintiffs alleged was materially misleading insofar as it overstated the likelihood of registration. 295 F.3d 352, 355, 359-60 (2d Cir. 2002) . 14 1 statement that the court deemed to be essentially alleging 2 the non-disclosure of a risk, regardless of whether the 3 statement looked to the future or was rooted in the known 4 present: 5 6 7 8 9 10 11 12 13 The Court finds that it is appropriate to apply the bespeaks caution doctrine here because Plaintiffs objections to misrepresentations about specific or general shortcomings in MF Global s risk management system that existed at the time the Prospectus was issued are, in fact, objections to Defendants alleged failure to disclose the possibility that the risk management system might be unable to prevent future negative outcomes. 14 Id. at 472. 15 the bespeaks-caution doctrine too broadly.13 13 This misstates the threshold test, and applies In the alternative, the district court held that the plaintiffs risk-management allegations failed to state a claim because they focused on systemic risk-management problems only in February 2008, when the trading incident occurred, not in July 2007, at the time the prospectus and registration statement issued: Plaintiffs allegations are based on information about the MF Global risk management system that was disclosed after the February 2008 Trading Incident. . . . [T]here is nothing to indicate that this was the state of affairs in July 2007, when the Prospectus was issued. In other words, Plaintiffs have offered no factual averments that the alleged misrepresentations and omissions were, in fact, false or misleading at the time the Prospectus was issued. Rubin, 634 F. Supp. 2d at 474. 15 This conclusion fails to 1 The district court worried that [p]laintiffs in 2 securities fraud actions can easily characterize many 3 alleged misrepresentations or omissions regarding the risk 4 of future negative events as statements that simply concern 5 discrete present or historical fact. 6 example, an allegation that a corporation failed to disclose 7 the risk that it would default on outstanding financial 8 obligations in the future could just as easily be 9 characterized as a failure to disclose present or historical 10 financial instability. Id. at 468. For Id. draw a reasonable inference in the plaintiffs favor. See, e.g., In re DDAVP Direct Purchaser Antitrust Litig., 585 F.3d 677, 692 (2d Cir. 2009) (stating that courts must draw[] all inferences in favor of the plaintiff when ruling on a motion to dismiss). Depending on the problem, its existence in February 2008 may support an inference that it was present six months earlier. This is sufficient to raise [the plaintiffs ] right to relief above the speculative level. Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Because we reject this alternative basis, we need not reach the plaintiffs argument that the district court erred by denying their motion to replead. The plaintiffs argue here that their proferred repleading remedied deficiencies in the operative complaint by sufficiently showing that MF Global s risk-management lacunae existed when the prospectus and registration statement issued. The operative complaint supports that inference without amendment. 16 1 Investors are interested in issuer statements only 2 insofar as those statements bear on the future. 3 it is true that predictions about the future can represent 4 interpretations of present facts (and vice versa), there is 5 a discernible difference between a forecast and a fact, and 6 courts are competent to distinguish between the two. 7 forward-looking statement (accompanied by cautionary 8 language) expresses the issuer s inherently contingent 9 prediction of risk or future cash flow; a non-forward- But while A 10 looking statement provides an ascertainable or verifiable 11 basis for the investor to make his own prediction. 12 The line can be hard to draw, and we do not now 13 undertake to draw one. 14 risk of default is distinct from a statement of present or 15 historical financial instability, even though they both bear 16 upon the same risk. 17 firm s operations may be forward-looking--and thus insulated 18 by the bespeaks-caution doctrine--even while statements or 19 omissions as to the operations in place (and present 20 intentions as to future operations) are not. However, a statement specifying the And a statement of confidence in a 17 1 A statement may contain some elements that look forward 2 and others that do not. 3 characterization of present or historical fact may be 4 partially predictive. 14 5 that a statement that restructuring reserve was adequate 6 is forward-looking insofar as it suggests that [the issuer] 7 would take no further restructuring charges in the near-term 8 future. ). 9 may depend on predictions: of future cash flows for example, Shaw, 82 F.3d at 1213. A See, e.g., id. at 1213 (holding A present fact like an appraisal or valuation 10 or future risks. 11 Bespeak Caution , 49 Bus. Law. 481, 489 (1994). 12 may extrapolate present or historical facts into the future. 13 Id. 14 the non-forward-looking are severable. Donald C. Langevoort, Disclosures That A forecast But in each instance the forward-looking elements and 14 Some of the puffery cases (those analyzing puffing of present or historical facts) can be seen as falling into this category: To the extent that puffery suggests a rosy future, the principle underlying bespeaks caution applies. See, e.g., ECA, Local 134 IBEW Joint Pension Trust of Chi. v. JP Morgan Chase Co., 553 F.3d 187, 205-06 (2d Cir. 2009) ( Puffery statements that issuer s risk management was effective and highly disciplined would not be relied upon by a reasonable investor because they did not, and could not, amount to a guarantee that [the issuer s] choices would prevent failures in its risk management practices. ). 18 1 Here, characterizations of MF Global s risk-management 2 system--that the system was robust, for example--invite 3 the inference that the system will reduce the firm s risk. 4 However, bespeaks caution does not apply insofar as those 5 characterizations communicate present or historical fact as 6 to the measures taken. 7 ( Cautionary words about future risk cannot insulate from 8 liability the failure to disclose that the risk has 9 transpired. ). 10 Rombach, 355 F.3d at 173 We remand to the district court to analyze the 11 plaintiffs remaining allegations under the standard set out 12 above.15 15 MF Global remarks in a footnote that the heightened pleading standard of Federal Rule of Civil Procedure 9(b) may apply to at least some of the plaintiffs allegations. See generally Rombach, 355 F.3d at 171 (holding that the heightened pleading standard of Rule 9(b) applies to Section 11 and Section 12(a)(2) claims insofar as the claims are premised on allegations of fraud ). The district court declined to address this issue, see Rubin, 634 F. Supp. 2d at 469, and so do we. See, e.g., Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001) ( It is a settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. (internal quotation marks omitted)); Norton v. Sam s Club, 145 F.3d 114, 117 (2d Cir. 1998) ( Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal. ). 19 1 III 2 3 The plaintiffs also challenge the dismissal of their 4 client accounts allegations: that the prospectus failed to 5 disclose that traders did not have limits when trading for 6 clients, and that with the proper password anyone could 7 access client accounts and trade in them at any time, 8 Rubin, 634 F. Supp. 2d at 470. 9 these allegations on the ground that the plaintiffs alleged 10 losses resulted from the failure to manage trading risks in 11 accounts of non-clients (such as Dooley), and that the 12 losses therefore were not caused by alleged misstatements or 13 omissions concerning accounts of clients. 14 The district court dismissed Loss causation is not an element of a plaintiff s prima 15 facie case; rather, the absence of loss causation is an 16 affirmative defense. 17 causation defense prevails if the defendant proves that an 18 otherwise recoverable loss was not caused by the alleged 19 misstatement or omission. 20 be raised by a pre-answer motion to dismiss under Rule See 15 U.S.C. §§ 77k(e), 77l(b). Id. 20 A An affirmative defense may 1 12(b)(6) . . . if the defense appears on the face of the 2 complaint. 3 67, 74 (2d Cir. 1998). 4 Pani v. Empire Blue Cross Blue Shield, 152 F.3d The district court dismissed the plaintiffs client 5 accounts allegations because the Trading Incident that 6 sparked the sharp drop in MF Global s stock price, which 7 caused the losses that Plaintiffs complain of, had nothing 8 to do with MF Global s trading for clients or trading in or 9 access to client accounts. . . . Rather, the Trading 10 Incident involved trades in a non-client account. 11 634 F. Supp. 2d. at 470. 12 This is sound as far as it goes. Rubin, But the Dooley 13 trading incident (and events precipitated by it) revealed 14 that risk-management deficiencies affected client accounts 15 as well. 16 acknowledged that existing internal controls could have 17 stopped Mr. Dooley s trades from being processed--but were 18 turned off in a few cases to allow for speedier transactions 19 by brokers at the firm who traded for themselves or took 20 customer orders by phone. Shortly after the Dooley incident, MF Global (emphasis added). 21 Thus, at 1 least as to phone orders, the firm s risk-management 2 controls did not reliably constrain brokers who executed 3 trades on behalf of clients. 4 director at Fitch Ratings publicly stated that the Dooley 5 incident does open the view that [MF Global s] customers 6 are taking more risk than we thought. 7 This concern--likely shared by others--may have had a 8 negative impact on MF Global s stock price because client 9 business might be lost and because clients market risks are 10 Unsurprisingly, a managing (emphasis added). at least partially shared by the firm. 11 However, neither the Dooley trading incident nor 12 subsequent events revealed to the public that anyone with 13 the password could access client accounts . . . and trade at 14 will therein, as the plaintiffs allege. 15 concerns a security risk, of client fund misappropriation-- 16 not the sort of risk made plain by and after the Dooley 17 losses. 18 complaint, Pani, 152 F.3d at 74, that the stock price 19 decline (and the plaintiffs resulting losses) cannot be 20 attributed to the prospectus s failure to disclose that This allegation It is therefore app[arent] on the face of the 22 1 2 alleged fact; and the allegation was properly dismissed. Accordingly, we affirm the district court insofar as it 3 dismissed the plaintiffs allegation concerning access to 4 client accounts; but vacate and remand insofar as it 5 dismissed their allegation that telephone orders were not 6 subject to risk management. 7 * * * 8 For the foregoing reasons, the district court s 9 judgment is affirmed in part and vacated in part, and the 10 case is remanded for further proceedings consistent with 11 this opinion. 23

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